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to Lord Carlisle, with a reservation of a strict The bequest in this case, as we have seen, rent of 41 per cent. in specie on the product of having been not of the lands themselves, nor the islands, and afterward King Charles II. of the rents and profits thereout arising, nor had granted £1,000 per annum in money, out yet of a rent-charge upon the lands, but of of the produce of that rent, to Lord Kinnon an annuity payable to the legatee personally, and his heirs, is to the same effect. As there and terminable at his death, and the remedy observed by the lord chancellor, “this would for non-payment thereof being, in general, by have been a mere annuity, * * * because a personal action of debt, or covenant on the a rent cannot be reserved or granted out of a instrument creating the annuity, (3 Kent, rent. Part of a rent may be granted, indeed; Comm. 460,) or by bill against the trustee to but a new rent cannot be reserved or granted compel an account; and, as the assignee in thereout, because no distress can be or assize bankruptcy did not, as we have seen, assume taken of it, as there is nothing to be put in to sell the annuity of his bankrupt, nor the view of recognizers of the assize; which, the purchaser to buy it; and, further, as appellant rule is, is necessary, and has been so deter- relies solely upon the rights acquired by the mined.” See, also, 3 Greenl. Cruise, 74. purchaser at the assignee's sale,—the conclu

It is thus, as we think, made clearly to ap-sion is irresistible that her cross-bill was withpear from the authorities that the devise of a out equity, and was properly dismissed. The yearly sum, to be paid, by a trustee to whom decree of the circuit court is therefore aflands are devised, upon uses and out of the firmed. net rents that may accrue from the lands in

ON REHEARING. his possession, and which sum is contingent upon the exigencies of the trust, is in no

(Nov. 26, 1889.) sense a devise of rents issuing out of such SCHOLFIELD, J. Very clearly, the paylands, but is in the nature of an annuity. ments which the will directs the trustee to And hence it follows, as it seems to us, that make to the widow and the children are not the legatee neither took nor acquired any in- a rent-charge. 1 Thom. Co. Litt. 349, (1436;) terest in the particular real estate. This 3 Greenl. Cruise, 71, 72; 3 Kent, Coinm. (12th must certainly be true, unless the annuity be- Ed.) 595, (496.) They are simply annuities to queathed was made a charge upon the lands; be paid from the annual rents contemplated in which case it became a rent-charge, de- to accrue from the leasing of the Sherman scendible, in general, to the heirs of the dev- House. 1 Broom & H. Comm. (Wait's notes,) isee, as real estate. 3 Kent, Comm. 460.459, (*55;) 1 Thom. Co. Litt. 352, (1446;) 3 That the annuity bequeathed to Francis was Kent, Comm. (12th Ed.) 595. It could not not made a rent-charge upon the trust lands, have been intended by the testator that the seems also clear to us, upon authority. There payment of these annuities are a charge are not only no words creating a legal rent-against the corpus of the estate, because that charge, but there is entirely wanting a power might have defeated the power expressly givto distrain if the annuity be not paid; and, en to the trustee to borrow money to rebuild according to all the definitions and authori- and secure the loan by mortgage on the propties, the distinctive characteristic of a rent-erty, and his expressed intention that his truscharge is the right of distraint. 2 Bl. Comm. tee “shall have, hold, and manage the Sher42; 3 Kent, Comm. 460; People v. Haskins, man House property, entire and undivided, 7 Wend. 469. A grant, by deed, that A. may and appropriate the rents, issues, and profits distrain land for a rent, is a rent-charge; for in the manner therein before directed, during the land is charged with it by way of distress. the natural lise of his wife and children, and Co. Litt. § 221. So, if it is said that A., if not until the death of the survivor of them. The paid so much per annum, shall distrain for it rule is that, unless it appears it was intended in the manner of B. Id. So, a devise of by the testator to charge the payment of the rent, with power to distrain at the usual annuities upon the corpus of the estate, they feasts, will be a rent-charge, though no par- can only be enforced against the trustee perticular lands are mentioned. Kings well v. sonally, so far as he has received the rents. Cawdrey, Moore, 592. So, a grant of rent The fee in the realty, whether for life or for out of B., and, by the same or another deed, years, cannot be sold for their payment. Irdistress is granted for it in other lands. It win v. Wollpert, (Ill.) 21 N. E. Rep. 501; is a rent-charge, issuing solely out of B., Delaney v. Van Aulen, 84 N. Y. 16; Nudd though distress be in other lands. Co. Litt. v. Powers, 136 Mass. 276; Baker v. Baker, 147a. So, too, a grant or reservation of rent, 6 H. L. Cas. 616. Whatever, therefore, may, with power of distress and re-entry, were in other respects, be the effect of the deed held to create a rent-charge. Hurst v. Lith- of assignment of Francis T. Sherman, the grow, 2 Yeates, 24; Bantleon v. Smith, 2 deed of the assignee in bankruptcy to Hugh Bin. 146; Gordon v. Correy, 5 Bin. 552. And A. White, and the deed of Hugh A. White herein lays the distinction between rent- to De Haven, it is impossible that they charge and rentseck. The latter was where can have the effect of passing a freehold in rent was reserved or created without clause the Sherman House property to De Haven. for distress; and hence the name “rentseck,” It hence follows that, under the eighty-ninth (redditus siccus,) a dry rent. Co. Litt. $$ section of the Practice Act, (2 Starr & C. St. 217, 218. And, if not paid, the grantee's 1842,) the appeal should have been to the aponly remedy was an action at law therefor. 'pellate court of the first district, instead of te

this court. The appeal is accordingly dis- / and seventh counts of the declaration did not missed, at appellant's costs, and leave is state the law correctly, or state such facts as given to her, if she shall so desire, to with would show a legal liability on the part of draw record, abstracts, and briefs, for the the appellant, the instruction was improperly purpose of filing them in the appellate court. given. The second count of the declaration Appeal dismissed.

alleges the failure of the defendant to keep a

competent person at the top and bottom of (130 III. 551)

the shaft to attend to signals, and that Maehl CONSOLIDATED COAL CO. 0. MAEHL.

was killed by reason of defendant's failure to (Supreme Court of Illinois. Oct. 31, 1889.) discharge that duty, while the statute reNEGLIGENCE OF MASTER-DAMAGES-TRIAL. quires only that such person be so placed

1. In an action against a coal company for an while coal is being hoisted, or within 30 accident in its mine causing the death of an em- minutes before or after that operation begins ploye, an instruction which correctly recites the and concludes; the fact proven being that precautions which the statute requires coal-mine owners to use, and directs the jury to find defend-coal was not being hoisted, and that it was ant guilty if the accident was caused by its will- an hour and a half before the hoisting would ful failure to comply with the “provisions of said begin when Maehl was killed. The seventh statute, as stated in said declaration,” is not prej. count proceeds on the same theory, udicial error, though some counts of the declaration do not show any violation of the statute.

We are of opinion that the criticism of the 2. An instruction allowing the jury, in estab- instruction in the respect stated is not warlishing damages, to take into consideration that ranted. It begins: “The court instructs the the deceased left a wife and children, is not preju: jury that the statute of this state makes it struction, limiting the damages to plaintiff's pe- the duty of persons and corporations operatcuniary loss.

ing coal mines by shafts and steam power, 3. Allowing defendant's engineer to testify as to his want of experience when he was first em- among other thingsFirst, to provide safe ployed by defendant, two months before the acci- means of hoisting and lowering persons in a dent, is not prejudicial error, where the jury spe cage, covered with boiler iron, so as to keep cially find that the accident was not caused by the safe, as far as possible, persons descending engineer's negligence.

4. Rev. St. Ill. 1889, c. 110, $ 58a, which pro- into and ascending out of such shaft; and, vides for special findings “upon any material second, to provide every drum with a suffiquestion of fact,” does not require a judge to sub-cient brake to prevent accident in case of the mit to the jury questions as to defendant's negli- giving out of the machinery; third, to furgence in regard to a particular act, when evidence as to such negligence has been refused admission, nish a sufficient light at top and bottom of and the proof of it abandoned by the plaintiff. the shaft to insure, as far as possible, the

5. Where a jury, which has, by agreement, safety of persons getting on or off the cage; been allowed to separate, after finding a sealed verdict, fails to return special verdicts as direct- and, fourth, not to place in charge of any ed, it is proper for the judge, on the reassembling engine whereby men are lowered into or of court, to require the jury to retire again, and hoisted from the mine any other than a comreturn a proper verdict.

petent, experienced, and sober engineer, not Appeal from appellate court, third dis- less than eighteen years of age. No fault trict.

is found with the statement of the requireCharles W. Thomas, for appellant. B. ments of the statute, but, as before seen, it R. Burroughs and George L. Zink, for ap- is objected that the jury was referred generpellee.

ally to the declaration for the law. A casual

reading of the instruction will demonstrate SHOPE, C. J. This suit was brought in the fallacy of this contention. After stating the Macoupin circuit court by appellee to re- the duty of persons operating such mines, as cover pecuniary da nages for the loss occa- before stated, the instruction then tells the sioned by the death of her husband, John jury that if they believe from the evidence Maehl, at the mines of appellant, as it was that the defendant was operating the mine, alleged, through the negligence of appellant, and that Maehl was killed, in the manner aland its failure to perform its legal duty in leged; that he left plaintiff as his widow, respect of said mines and the operation there. etc.; and that Maehl was in the service of of. A trial resulted in a verdict for plain- defendant working in said mines,-proceeds, tiff for $5,000. Motion for new trial was “and if the jury believe further from the overruled, and judgment entered on the ver- evidence that at the time said Maehl was so dict. On appeal to the appellate court this killed the defendant then and there willfully judgment was affirmed, and the defendant refused, or willfully failed, to comply with its below prosecutes this further appeal. duty under the said provisions of the said stat

Four reasons are urged why the judgment ute, or willfully violated any of the said proshould be reversed, which we will notice in visions of the said statute, as stated in said the order presented by counsel:

declaration, and the death of Maehl was caused First. That the court erred in giving the by reason of such willful refusal or willful first of plaintiff's instructions, The first neglect, and damage is found from the evidence criticism of the instruction is that it tells the to have accrued to plaintiff, then they should jury to find the defendant guilty if they be- find defendant guilty,” etc. The instruction lieve from the evidence it violated any of the is incorrectly given in the abstract; but upon provisions of the statute, “as stated in the looking at the record it is found that the atdeclaration;" and that, as the second, fourth, tention of the jury is alone directed to the

provisions of the statute, or requirements of want of experience and competency at the it, stated in the forepart of the same instruc-time of his employment, and to what protion. The statutory obligations were first ficiency he had attained as an engineer in given, and the jury told that if they believed that time. This, it is insisted, was error, and [rom the evidence that defendant had will-tended to the prejudice of appellant. We fully failed to comply with its duty, or will-think that, in so far as it tended to show his fully violated said provisions of said statute, capacity at the time of the accident, it was as (in the manner) alleged in the declaration, clearly competent. It was for the jury to say, the defendant will be liable, if the other nec- if they found that the injury resulted through essary facts concurred. It seems impossible the fault or negligence of the engineer, that the jury could have understood this in- whether he was a competent, experienced, struction in any other way. It is to be ob- and sober engineer, such as appellant was reserved that the instruction omits any refer- quired to place in charge of its engine, used ence to the statutory duty to keep at the bot-in lowering into or hoisting persons from the tom and top of the shaft, while coal is being mines. His previous training and experihoisted, and for 30 minutes before such hoist- ence, or want of it, would furnish one means ing is to begin, a competent person to attend by which a conclusion might be reached. signals; and the jury could not, we think, But, aside from this, the jury, by their sechave understood the instruction as in any way ond special finding, expressly found that referring to the matter alleged in the second Maehl's death was not caused by the negliand seventh counts of the declaration. This gence of the engineer, and it cannot be seen view becomes more pronounced, when we that this evidence, if improper, could have consider that the first witness who testified prejudiced appellant. in respect of the condition of the mine and Third. Appellant requested the submission the injury to Maehl showed that the injury to the jury of five questions, to be answered occurred at a time when no signal-men were by special verdicts. The court gave two of required by law to be kept at the shaft, and them, but refused the first, second, and third thereupon the court, on the objection of ap- thereof, which are as follows: “(1) Was pellant, refused to permit appellee to prove Maehl's death caused by the willful neglect that no signal-man was on duty, and the rec- of defendant to place a man at the bottom of ord is barren of any evidence on that sub- the shaft, for the purpose of preventing men ject. While the instruction in the form giv- from carrying tools or material with them on en is not to be commended, we are unable to the cage? (2) Did the accident by which perceive prejudicial error in the respect in- Maehl was killed occur more than thirty mindicated.

utes before the hoisting of coal commenced It is also urged that this instruction is in the morning of that day, and more than faulty in further stating that, “if the jury thirty minutes after such hoisting had ceased further believe from the evidence that the for the night before? (3) Was Maehl's death plaintiff has been damaged by reason of the caused by the willful neglect of defendant to loss of the life of the said John Maehl, then place a man at the top of the shaft, to attend the jury will find the defendant guilty,” and to signals?” This refusal is assigned for erin "estimating said damages the jury may ror. We have to some extent anticipated take into consideration that Maehl left sur-the answer to this contention. It is maniviving him said children, in addition to the fest that the failure of the defendant complaintiff, his widow.” Whether said Maehl pany to keep a competent person at the top, had left children, and plaintiff, as his widow, and another at the bottom, of the shaft was had in a former portion of the instruction not insisted upon. The evidence, as already been left to the jury to be found from the evi- said, tending to prove a failure in this redence. It is not claimed that the inclusion spect had been refused

refused admission. The of the element in respect of the children is plaintiff, in her instructions, when giving erroneous, (Beard v. Skeldon, 113 Ill. 584;) the legal duty of the defendant, had, as we but it is said that the jury are thereby left have seen, wholly omitted any mention of the free to award damages for all loss, not confin- duty to so keep persons at the shaft, and we ing it to pecuniary damage.

think the court, in the exercise of its disIt is conceded that the instruction is not cretion, was warranted in holding that the accurate, but it was not intended as an in- special findings requested and refused were struction upon the measure of damages, not, "upon any material question or ques . while the next instruction was so intended, tions of fact,” within the contemplation of and states the rule clearly and correctly. the act in relation to special verdicts. Rev. Taking the two instructions, the law was St. Ill. (Ed. 1889,) c. 110, § 58a. While stated with substantial accuracy, and the the finding of the appellate court as to quesdamages properly limited to the pecuniary tions of fact is binding and conclusive upon loss sustained by the plaintiff. There was, this court, we have, as we may, to determine therefore, no prejudicial error in this regard. whether the law has been correctly applied,

Second. The engineer testified that he had looked into the facts; and it is, as said by the run the engine connected with the hoisting appellate court, apparent “that all other apparatus at this mine for two months prior charges in the declaration, except that of deto the injury of Maehl, and, over appellant's fective machinery and want of lights, were objection, was permitted to testify to his practically abandoned during the trial.” We

are of opinion that the court did not err in 6 is and has been a public highway for over refusing the requests for such special find- | 40 years, known as the · Lake Shore Road.' ings.

During the life-time of said Miller he sold Fourth. After the case went to the jury, several pieces of land in this said tract, which, by agreement of the parties, the jury, when by a series of deeds, are now held, one piece they had agreed upon a verdict, were per- by one Ann Robbinson, another by one Nick mitted to seal their verdict and separate, and Pitts, another by this plaintiff, and two othmeet the court on the following morning. On er pieces by the defendant, Daniel Titus. the reassembling of court the jury were pres- That when said pieces of land were first sevent in court, and answered to their names, erally sold by said Miller there was and still and the sealed verdict was handed to the is no public highway by which ingress and judge, who, upon opening the same, and egress can be had to or from said land. That, finding that the jury had failed to return the for the purpose of rendering said lands accessspecial verdicts required, against the objec-ible by teams and vehicles, said Miller opened lions of appellant, ordered the jury to retire and constructed a lane or way to each piece of and further consider of their verdict, and to land so sold, to-wit, a lane or way commencing return answers to the three questions sub-on said Lake Shore road and running south to mitted for special verdicts. Upon their re- the north line of section No. 5. That said turn into court the court read the general and lane or right of way was opened and laid out special verdicts, and polled the jury, each of for the benefit of said several grantees, their whom answered “that these were their ver- heirs, administrators, and assigns, and all Ilicts.”

It is apparent the jury were not persons wishing to travel the same to reach discharged. They were to meet the court at said land. That said Miller also, at the time the hour of convening on the following he established said way, was the owner of morning, and were in attendance. It was, about 10 acres of land situated in said section we think, correct practice for the court to re- 5, and at the south end of said lane, being one quire them to again retire and return proper one of the pieces now owned by said Daniel verdicts, and, having done so, to discharge Titus, and that said lane furnished the only them.

means of getting to and from said ten acres. Finding no error in this record, the judg- Plaintiff says said right of way or lane has ment of the appellate court will be affirmed. been used, traveled over, and occupiel for the

purpose of reaching said several pieces of land (46 Ohio St. 528)

for the past twenty-five years, with the asSHIELDS V. TITUS.

sent, acquiescence, and knowledge and agree(Supreme Court of Ohio. Oct. 29, 1889.) ment of said Miller and his several grantees WAYS-MUTUAL AGREEMENT-INJUNCTION. and their assigns, to whom he has conveyed

1. A way, laid out by an owner over his lands the premises over which said way runs. That for the benefit of parcels thereof, into which he prior to the year 1875 one Joseph Fretter, by subdivided them for sale, the boundaries of which way the purchasers of the several parcels definite- purchase, became the owner in fee of said ly establish by mutual agreement, and thereafter ten acres of land in sec. No. 5 and of the land improve and use it for the benefit of their lands, now owned by said Daniel Titus in sec. No. is an easement annexed to the lands, and passes by 6. That in that year 1875 the said Joseph a grant of the land without being mentioned in the Fretter, Ann Robbinson, Andrew Seifert, and grantor had with respect to it, and holds his land this plaintiff, being at that time the owners subject to the burden it imposed.

of all the land over which said lane ran, for 2. Where proprietors of adjacent lands, by the purpose of settling definitely the width mutual agreement, definitely establish the boundaries of a private way previously laid out along and exact location of said way, mutually their lines, and appropriate the strip of land em- agreed between and among each other that braced therein to be used as a perpetual easement said way should be thirty feet wide its entire for the benefit of the abutting lands of each, and the common benefit of all, and, in pursuance of the

length. That thereupon, by virtue of said agreement, fence to the boundaries so agreed up- agreement, each of said parties built fences on, and thereafter improve and use the way thus along the sides of said way, to-wit: Said established, the agreement may be enforced in eq. Fretter built a fence 30 feet west of his said uity, at the suit of a purchaser from one of such proprietors, against a purchaser with notice from east line, and Robbinson built a fence 30 feet another.. Injunction, preventing the permanent west of the east line of about ten acres of obstruction of or interference with such way, is a land, and said plaintiff and said Seifert each proper mode of enforcing the agreement.

built a fence fifteen feet east of the center of (Syllabus by the Court.)

said lane across their respective farms; and Error to circuit court, Lorain county. said Robbinson also built fences 5 feet west of

The plaintiff in error commenced his ac. said center of said lane across the remaining tion against the defendant in error and Adam part of her said farm, thus making a lane 30 Seymour in the court of common pleas of feet wide, extending from said Lake Shore Lorain county, by filing therein the following road south to the south line of sec. 6. That petition: “Plaintiff says that Alexis Miller, large ditches were constructed, bridges built, now deceased, was the owner of a large tract and said road was otherwise worked and imof land situated in sec. Nos. 5 and 6 in Avon proved. That afterwards said Joseph Frettownship, Lorain Co., Ohio. That sec. No. ter sold and by deed conveyed all his in6 is bounded on the north by Lake Erie, and terest in any land in said sections Nos. 6 and that along near the north side of said sec. No.5 to the defendant Daniel Titus. Plaintiff

says the land so sold to defendant Titus, in ship in said county, out of which he sold in section No. 6, is bounded as follows: On the his life-time in section six two small pieces, north by the Lake Shore road, on the east by one to Aaron H. Bullock and one to Evan land owned by Thomas Shields, formerly Richards, and conveyed the same to them, owned by A. H. Bullock, on the south by respectively, by deeds; that the one, six acres, land owned by Ann Robbinson, and on the sold by said Miller to said Richards, is now west by land owned by P. J. Miller. That owned and occupied by one Catherine Pitts, said 30-foot lane runs over and across tbe east and the one sold to said Bullock is now owned side of said land last above-described. Said and occupied by the plaintiff; that across the Robbinson's land is just south of above-de- northerly part of said section six there is, and scribed land, and the land so owned by said for many years last past has been, a public Seifert and said plaintiff in 1875 is adjoin-highway known and called • The Lake Shore ing said Robbinson's said land on the east. Road;' that the said Miller, in the sale of Plaintiff says in the year 1875 he sold and said six acres to said Richards, did agree and conveyed all his right in his said premises to covenant with said Richards that each should said Nick Pitts, who is still in possession, and throw out fifteen feet of land, respectively, the owner thereof. That in the year 1878 he across said six acres for a private way, so purchased the said farm of said Seifert, and that said Miller could reach his lands in said now is in possession thereof, and the owner section five, and that the said Richards should in fee. That said lane now furnishes, and have the right and privilege, together with has for 25 years, the only way to get to and his heirs and assigns, in consideration of from the land now owned by the said Rob- said purchase and the throwing out of said binson, Pitts, and plaintiff. That defendant fifteen feet from the west side of said six Titus, when he purchased his said land of said acres, of traveling in a northerly direction Fretter, well knew all and singular the facts over and across the premises to and from above set forth, and bought said premises said Lake Shore road at all times for the free subject to the perpetual right of plaintiff and use and enjoyment of said six acres; that one the several owners of said several tracts of Ann Robbinson now holds, by a land conland, their heirs, administrators, executors, tract, as defendant is informed and believes, and assigns, to use, enjoy, occupy, and travel and avers the fact to be about sixty acres of said lane its entire length with wagons, ve- land, formerly owned in said sections five hicles, and whatever conveyances, and when and six by said Miller, and has no way of necessary, to fully enjoy their said land. ingress thereto and egress therefrom except That defendant Adam Seymour claims some of necessity over this private way to said interest in the said farm of said Titus, by Lake Shore road. Defendant says that he lease or otherwise. Plaintiff says that not owns a small piece of said land so owned by withstanding the facts above stated said de- said Miller in section five, and all of section fendants, Titus and Seymour, now claim that six so owned by said Miller, north of lands said plaintiff has no right, title, or interest as aforesaid by Ann Robbinson, and west of in and to the possession or use of said lane or land of the plaintiff, and lying between the right of way. That they each now refuse to lands occupied by said Robbinson and the allow him to enter upon the part of said lane Lake Shore road aforesaid; that the land of lying on the east side of the farm of said Ti- the said plaintiff lies next east of his and tus, and threaten to forcibly eject him and fronts on said Lake Shore road, which said his teams therefrom, and threaten to fence road gives said plaintiff amplė, free, and easy up the same, and threaten to and have already access to bis said premises, and every part sued him for trespass for entering upon said thereof. Defendant, further answering, says lands with his teams, and threaten wholly to that at the time said Miller sold said premdeprive him of the use of the same. Where-ises to said Bullock no grant was conveyed fore plaintiff asks that on the final hearing to said Bullock to pass and repass over the hereof he may be quieted in his right to the premises now owned by this defendant, by enjoyment of said right of way, as above set deed or otherwise, and none existed of neforth, and be decreed to have the right to cessity, and at the time said Bullock conuse and enjoy the same, together with his veyed the same to said plaintiff no right to heirs, administrators, executors, and assigns pass or repass over and across the premises of said premises so owned by him, and that of this defendant through this private way said defendants, their heirs, administrators, aforesaid was conveyed to him, either by and assigns, may be forever enjoined from grant, implication, or of necessity. Defendinterfering with the use and enjoyment there- ant avers he purchased said premises of one of for the purposes as above set forth, and Joseph Fretter, free and clear of all incumfor such other rights and equities that the brances, except the private right of way court can give and law requires."

of said Catherine Pitts by grant, and of A general demurrer to the petition was the said Ann Robbinson of necessity; and overruled, and thereupon the following an- defendant avers his said premises are free swer was filed: “The defendant Daniel Ti- and clear of any incumbrance, right of way, tus, for answer to the petition of said plain- or servitude to the premises owned and octiff, says he admits that one Alexis Miller, cupied by said plaintiff. Defendant admits deceased, in his life-time owned a tract of he has denied, and still denies, said plainland in sections five and six in Avon town- tiff's right to travel over said private right

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