NEGLIGENCE. NEGLIGENCE IN RAILROADS.
at the time the accident occurred, as the train had not reached the plat- form where passengers were expected to get off. Ohio and Mississippi Railroad Co. v. Schiebe, 460.
3. Stopping a passenger train on a side track. It is not negligence to run a passenger train on the side track, where it is necessary to permit a freight train too long to run into the side track, to pass, when the evidence shows that such a course was not unusual. Ibid. 460.
4. In an action against an express company to recover the amount of a note taken by the company for collection, and alleged by them to be lost, it is not error to instruct the jury, that, if the company fail to show the circumstances of the loss, it may be presumed to have been through care- lessness. When a party is intrusted with property, and is not able to account for it, except that it is lost, if not a legal presumption of care- lessness, it is so far conclusive that a court would not reverse for giving such an instruction. American Express Co. v. Parsons, 313.
AS TO THE SAFETY OF HIGHWAYS IN CITIES. See HIGHWAYS, 1 to 4.
NEW TRIALS.
MOTION FOR NEW TRIAL.
1. When not necessary. In cases tried by the court, it is not necessary that a motion for a new trial should be made, in order that the evidence in the case may be reviewed in this court. Mahony v. Davis et al. 289.
2. It is only to cases when trial is had by a jury, that the practice of moving for a new trial is confined. Ibid. 289.
VERDICT AGAINST THE EVIDENCE.
3. A judgment not supported by the evidence in the case is erroneous. Thus, where, in an action on the case against the American "Express company," 'Merchants' Despatch," and certain individuals by name, the court gave judgment against the American Express company and the Merchants' Despatch, for the value of cases of plate glass which were shipped from New York to Chicago, and when there opened the glass found broken; and the evidence offered in the case, and under which the glass was shipped, was a bill of lading purporting to be issued by the Merchants' Despatch, without using the name or referring to the Ameri- can Express company therein, and nothing in the record tending to show that the express company ever assumed any liability in regard to the carriage of the goods, held, that, there being no proof tending to show the American Express company ever undertook the carriage of the glass, the judgment was unsupported by the evidence and was erroneous. Mer- chants' Despatch, etc., v. Smith et al. 319.
4. Where a verdict is manifestly against the weight of evidence, the court should on motion set it aside and grant a new trial, and failing to do so, this court will reverse for error. Ohio and Mississippi Railroad Co. v. Schiebe, 460.
NEW TRIALS. VERDICT AGAINST THE EVIDENCE. Continued.
5. A sued B for work and labor performed for him. Both parties were sworn, and the defendant testified that he had paid plaintiff in full, and was corroborated in this by other witnesses, who worked for defendant, in the same shop with plaintiff, and who testified that defendant païd his workmen every week, and never delayed longer than two weeks, and that they had seen plaintiff paid nearly every week. Held, that a verdict of the jury in favor of the plaintiff was unwarranted. Koester Esslinger, 476.
6. In an action for the unsoundness of a horse, a verdict for the plaintiff was set aside as not being supported by the evidence, there being no war- ranty shown, and it appearing the animal was sold as an unsound animal. Nickle v. Williamson, 48.
7. Although the correctness of a verdict may be doubtful, yet if it is not clearly against the evidence, or unsupported by it, the finding will not be disturbed. Chicago and Northwestern Railway Co. v. Dement, 74.
8. So in an action against a railroad to recover the value of a cow alleged to have been killed by a train, the proof as to the manner in which the cow was killed was, that, when found, she was lying on her back in the railway ditch, between two and three feet from the track, bloated, and the blood oozing from her nose. The jury found she came to her death from a passing train, and the court, though doubtful of the correctness of their finding, refused to disturb it. Ibid. 74.
9. A verdict against evidence cannot stand. In an action to recover $180, balance due on a contract, the plaintiff proved, without contradic- tion, that he made and delivered to the defendant, at a stipulated price, two hundred washing machines, which were received without objection. The defendant claimed that forty or fifty of the machines were not exactly according to the pattern furnished. The jury found for plaintiff, but only gave him $45; the court refused a motion for a new trial. Held, that the verdict was against the evidence, and that the court ought to have granted a new trial. Tilley v. Spalding, 80.
10. The jury, seeing the witnesses on the stand, have opportunities superior to an appellate court to determine the weight proper to be given to evidence when conflicting. So has the circuit judge who presides at the trial better means of determining whether the verdict is sustained by the evidence. An appellate court will not, therefore, interfere to set aside a verdict because it is against the weight of evidence, unless it is clearly unsustained. Davis v. Hoeppner, 306.
11. When the proof, though slight, supports the verdict, and is uncon- tradicted, this court will not disturb it. Chicago & Northwestern R. R. Co. v. Williams, 176.
12. In an action of trespass, when the right of recovery is limited to compensatory damages merely, and a verdict for vindictive damages is given, a new trial will be granted. Pierce v. Millay, 189.
NEW TRIALS. EXCESSIVE DAMAGES.
13. In an action for slander the damages are for the jury to determine, and their finding will not be disturbed, unless the damages are palpably excessive, or there was manifest prejudice, or other misconduct of the jury. Baker et ux. v. Young, 43.
14. In an action for an assault and battery, it appeared the assault was unprovoked and of a brutal character, and resulted in serious injury to the plaintiff, for which he recovered a verdict of twenty-five dollars. The judgment was reversed because the verdict was for too small an amount. Gibson v. Webster, 483.
OBVIATING GROUNDS FOR NEW TRIALS.
15. By concessions from the opposite party. Where the plaintiff in a suit, who has a verdict returned in his favor, asks a new trial on the ground that the verdict is too small, it is not error for the court to state, that the new trial will be allowed unless the defendant will consent that the ver- dict shall be raised to the amount shown by the instrument sued on to be due, and upon such consent being given, to enter the judgment accord- ingly. James v. Morey, 352.
16. Of remittitur. Where the jury, finding for the plaintiff, assess the damages at an amount in excess of what the evidence proves the plaintiff is entitled to, a new trial will be granted, unless, on remanding the cause, a remittitur is entered for the damages so claimed to be excessive. Winchester v. Grosvenor, 425.
NON EST FACTUM.
ON FORECLOSURE BY SCIRE FACIAS.
Non est factum not pleadable. See MORTGAGES, 22.
OF TAKING PROOF BEFORE A MASTER.
1. Of sufficiency of notice. Where a cause is referred to a master to state an account, it is not sufficient to mail a letter to a party's attorney about three days prior to the time fixed for the hearing, thus allowing, had no delay occurred in the mail, barely time to reach the office of the master at the appointed time-such notice is not sufficient. Strang et al. v. Allen, 429.
OF WHAT A PARTY MUST TAKE NOTICE.
Of purchaser at judicial sales. See PURCHASERS, 1, 2.
AS TO AUTHORITY OF AN AGENT.
When necessary to give notice that authority has ceased. See AGENCY, 6. ON SALES OF GOODS.
When purchaser should give notice of non-acceptance. See SALES, 3. Shipping goods on an order ·
whether notice to purchaser neccessary. Same
OF RESCISSION OF A CONTRACT.
Whether party rescinding must give notice of his intention so to do. See CONTRACTS, 9.
WHERE A PERSON HAS BECOME INSOLVENT.
Notice not necessary. See ASSIGNMENT FOR THE BENEFIT OF CREDITORS, 13.
TAX COLLECTOR'S NOTICE IN CHICAGO.
Of the notice that the collector will levy upon personal property, as required by the charter. See TAXES, 15.
EQUALIZING ASSESSMENTS IN CHICAGO.
Whether notice thereof required. See TAXES, 16, 17.
NOTICE TO QUIT.
FOR NON-PAYMENT OF RENT.
Under the common law, and under the act of 1865. See LANDLORD AND TENANT, 1 to 9.
PREVENTING THE LOCATION OF A CEMETERY.
1. Authority of a town under a power "to abate and remove nuisances.” When, by an act of the legislature, certain officers of the town of Lake View were created a board of trustees, with power, among other things, "to abate and remove nuisances, and punish the authors thereof by penalties, fines and imprisonment, and to authorize and direct the sum- mary abatement thereof;" and such board of trustees, under this authority, passed an ordinance, forbidding any cemetery to be opened in the town, without first obtaining their permission, under pain of a certain penalty, -held, that the board of trustees had no power under this grant, to prohibit in advance, the establishment of any cemetery except as authorized by the board. Town of Lake View v. Letz et al., 81.
2. When in chancery and when at law. Where the thing complained of is not necessarily a nuisance, but may or may not be so, according to cir- cumstances, a court of chancery will not stay a party until the matter has been tried at law, or, in special cases, by a jury on an issue directed out of chancery. Ibid. 82.
3. And, where the alleged nuisance consists in the obstruction of a street, there is, unless in rare and exceptional cases, a complete remedy at law, to which resort must first be had, and in which the right must be established. Ibid. 82.
4. So, where it is proposed to establish a cemetery in a town, a court of chancery will not interpose its preventive power, upon the alleged grounds that the cemetery will be injurious to the public health, and that it will obstruct certain streets which have been dedicated to the public. Ibid. 82.
1. Loss of residence. On information in the nature of quo warranto to test the eligibility of a party to hold the office of judge; held, that a conditional removal from this to another State, does not render the party upon return ineligible to the office of judge, under the 11th section of article 5, of our Constitution. Smith v. The People ex rel. 16.
1. How far process a protection. When an officer, by virtue of an attachment, seizes property claimed by a third person under a sale from the defendant in the attachment suit, and judgment is recovered in the attachment suit, such officer, when sued for the property so seized, may show, that the sale of the property levied on was in fraud of creditors, and that, as to that property, he represented creditors. Pease v. Anderson, 218. PARTIES.
1. In chancery, all the parties in interest, and whose rights may be affected, ought to be made parties to the bill, except where the parties are very numerous, and so scattered that their names and residences cannot be ascertained without great difficulty. Smith et al. v. Rotan et al. 506. 2. This rule is enforced most generally in cases where titles may be divested. Ibid. 506.
3. In a bill for an accounting filed against the administrators of the deceased obligors in a guardian's bond, objection was made, that the heirs of the deceased obligors had not been made parties to the suit. Held, that this was unnecessary; that it was sufficient to make the administrators parties, and if they were compelled to pay, recourse to the heirs might be had by them, in the event they took any thing by descent. Ibid. 506.
4. In a bill for dower. A widow instituted proceedings and obtained a decree for her dower in the estate of her husband, and then assigned the decree to a third person; afterward, the heirs, by bill of review, procured the decree to be set aside as erroneous, the assignee of the decree thus set aside not having been made a party to the bill of review. Held, that, upon the widow bringing a second suit for her dower, the assignee of the decree in the first suit is a necessary party to the new proceeding. Bonner et al. v. Peterson, 257.
IN FORCIBLE ENTRY AND DETAINER.
5. Against whom the action will lie. See FORCIBLE ENTRY AND DETAINER, 1 to 4.
SLANDER BY A MARRIED WOMAN.
6. Action should be against husband and wife. See SLANDER, 3. ON FORECLOSURE OF MORTGAGE.
7. Wife of mortgagor. In foreclosing by scire facias the wife, if she signed the mortgage, is a proper and necessary party in order to bar her equity of redemption and right of dower. Camp et ux. v. Small, 37.
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