MARRIED WOMEN. OF CONTRACTS BY MARRIED WOMEN. Continued.
the common law can not bind herself by contract even for necessaries.
Bauman, Admr. v. Street et al. 526.
2. Under statute of 1861 wife may contract respecting her separate
property. Where the marriage takes place after the passage of the
Married Woman's act of 1861, and the wife had property, whether
real or personal, belonging to her at the time of the marriage, or if,
during coverture, she, at any time after that act took effect, derives
property from any person other than her husband, she, in either case,
will be entitled to hold, possess and enjoy the same as though she
were sole and unmarried, and, by implication, has the legal capacity
to contract with reference to and for the benefit of such separate es-
tate, and such contracts are enforceable at law. Ibid. 526.
3. Of contracts not in respect to their separate property. There
doubtless may be cases when the wife has a separate estate under the
act of 1861, and her contracts are not in relation to or for the benefit
of such estate, that although such contracts would not fall within the
implied legal capacity conferred by the statute, yet if they were made
for her own personal benefit, upon the faith and credit of such sepa-
rate estate, they might be enforced in equity, the same as in cases
where the wife, independently of the statute, had a separate estate in
equity under a settlement. Ibid. 526.
4. Requisites of bill to enforce their contracts in equity. In order to
show a case by bill in equity to enforce a contract of a married woman
entered into prior to the act of 1874, the bill must distinctly show that
she held a separate estate under such circumstances as would clothe
her with the right to hold, possess and enjoy it as though she were
sole and unmarried, under the statute of 1861, or show a settlement
giving her an estate in equity without reference to any statute,
and if the latter, whether the settlement specifies the mode and man-
ner of her creating a charge upon it, and what that mode is. Ibid.
526.
5. Whether set aside for undue influence of her husband. Where a
married woman executed a deed of trust upon her separate property,
to secure a debt of her husband, with great reluctance, and after much
importunity from the latter, and many threats on his part to leave her
if she did not sign it, and for the purpose of preserving her relations
with her husband, it was held, that it could not be said to have been
freely and voluntarily executed; but where neither the trustee nor the
person whose debt was thus secured were parties to such coercion,
and had no knowledge whatever of it, and she acknowledged to the.
officer taking the acknowledgment, separate and apart from her hus-
band, that she executed the same freely, etc., and it appeared that she
was well acquainted with its contents, and never made known the
MARRIED WOMEN. DEED BY MARRIED WOMAN. Continued.
facts until after the property was sold, it was held, that it could not
be then set aside, as that would be to allow her to perpetrate wrong
and injustice to other innocent parties. Marston et al. v. Brittenham,
611.
1. Injury from negligence of fellow-sercant. It has been uniformly
held by this court, as by the English courts, that the doctrine of re-
spondeat superior does not extend to the case of an injury received by
one servant through the carelessness or negligence of another, while
both are engaged in the business of the principal, if the latter has
taken proper care to engage competent servants to perform the duties
assigned them. Toledo, Wabash and Western Railway Co. v. Durkin,
Admx. 395.
2. Servant of railroad corporation assumes the risks incident to his
employment. When a person enters into the service of a railroad com-
pany, he thereby undertakes to run all the ordinary risks incident to
the employment, including his own negligence or unskillfulness and
that of his fellow-servants engaged in the same line of duty, or inci-
dent thereto, provided such other servants are competent to discharge
the duties assigned them. Ibid. 395.
MEASURE OF DAMAGES.
IN CASE OF DEATH CAUSED BY NEGLIGENCE.
1. In an action by the personal representative of one killed by a
railroad train, against the company, to recover damages for the kill-
ing, the court instructed the jury, in case they found the defendant
guilty, to assess such damages as they believed would be right: Held,
that the instruction was erroneous, as by it the jury were at liberty to
include damages for mental suffering and anguish of parents, while
the statute limits the damages to compensation with reference to the
pecuniary injuries resulting to the next of kin. Chicago and Alton
Railroad Co. v. Becker, Admr. 25.
IN SUIT AGAINST ASSIGNOR OF NOTE.
2. In a suit by the assignee against the assignor of a promissory
note, the measure of damages is the amount paid for the note to the
assignor, with interest, but the recovery in no case can exceed the
amount of the note and interest; and when the note requires the maker
to pay an attorney's fee, in case of suit, the assignor, it seems, is not
liable for such fee in a suit against him. Short & Co. v. Coffeen, 245.
EXEMPLARY DAMAGES.
3. In suit for selling liquor to plaintiff's husband. In a suit by a
wife against a party, for selling liquor to her husband, to recover
MEASURE OF DAMAGES. EXEMPLARY DAMAGES. Continued.
damages for an alleged injury to her means of support, where the evi-
dence tended to show that the defendant endeavored to prevent the
husband from getting liquor at his place; that he frequently refused
him, and instructed his clerk to refuse him liquor, but showed that
the husband procured it through others, concealing his name, and
there was no attempt to show how or in what manner the plaintiff's
means of support was affected by defendant selling liquor to her hus
band, it was held, that there was no foundation laid for exemplary
damages; and where the only instruction given for plaintiff was based
upon exemplary damages, which resulted in a verdict of $300 dam.
ages, the judgment thereon was reversed. Bates v. Davis, 222.
SALE OF INTOXICATING LIQUORS.
4. Measure of recovery in civil action against seller by one who has
taken care of a drunken person, or a person who has received injury while
drunk. See SPIRITUOUS LIQUORS, 1, 2.
OF LIQUIDATED DAMAGES-PENALTY.
5. Measure of recovery in respect thereto. See LIQUIDATED DAM-
AGES, 2, 3, 5.
MECHANIC'S LIEN. See LIENS, 4, 5, 6.
WHERE GRANTEE IN DEED IS DESCRIBED BY WRONG NAME.
In whose name to sue, and how to avoid the misnomer.
MENT, 3; PARTIES, 5, 6: PLEADING, 1.
PARTY INDICTED BY WRONG NAME. See ABATEMENT, 4.
SUFFICIENCY OF PROOF THEREOF.
1. Effect upon rights of subsequent incumbrancer. As against a
subsequent incumbrancer, the admission of the mortgagor of a mis-
take in the starting point of the boundaries of the prior mortgage is
not sufficient evidence. To affect such subsequent incumbrancer's
rights, there must be proof of the mistake, and that he had notice of
it at the time he took his mortgage. Russell et al. v. Ranson, 167.
2. In this case a party gave the complainant a mortgage on a lot
described by metes and bounds, and as commencing "fifty feet, nine
inches and thirty feet east of the north-west corner" of a certain quar-
ter section of land, being the same description as in the mortgagor's
deed under which he held possession of the premises, commencing
fifty feet nine inches south and thirty feet east of the north-west cor-
ner of the quarter. The mortgage was duly recorded, and the mort-
gagor subsequently gave a second mortgage to the defendants on the
lot by its number as laid off. The defendants, in their answer, admit-
ted that they knew the first mortgage covered part of the lot described
43-76TH ILL.
MISTAKE. SUFFICIENCY OF PROOF THEREOF.
in their mortgage: Held, that the facts were sufficient to show the
mistake and charge the defendants with constructive notice of that
fact. Russell et al. v. Ranson, 167.
CORRECTION, AS AGAINST SUBSEQUENT PURCHASER.
3. Where a mistake was made in the description of land in a con-
veyance and in a mortgage given to secure the payment of money,
and possession was taken of the land intended to have been conveyed,
and upon discovery of the mistake the grantor executed a conveyance
for the land actually sold, it was held, that the mortgagee, on bill to
have his mortgage corrected, had a superior equity to a judgment
creditor who had notice of the mistake before the making of the
second deed, and who, after such notice, caused his execution to be
levied upon the land, and also against his assignee, who procured a
sheriff's deed. Milmine et al. v. Burnham et al. 362.
1. In trust for the mortgagor. Where a married woman conveyed
land owned by her, to A, taking back notes secured by mortgage on
the land for the purchase money, but her husband did not unite with
her in the deed under the belief it was not necessary, and A afterwards
sold to the defendant, who went into possession, promising to pay
the notes of A, and gave his mortgage on the premises to A for the
balance due above the notes of A outstanding, and the defendant
afterwards, on learning of the defect in his title, sent his son to pro-
cure a deed from the original vendor and her husband, which they
gave to remedy the defect, but the son took the deed in his own
name: Held, on bill by the assignee of the first notes and mortgage
to foreclose, and on cross-bill by A to foreclose, that the acquisition
of the legal title in the manner stated presented no bar to the fore-
closure, and that the title claimed by the son was subject to both mort-
gages, he being but a trustee for his father. Hall et al. v. Sheer,
Tompkins & Co. 296.
2. When title becomes vested in mortgagee. It is well settled that
upon the failure of the mortgagor to perform the condition of the
mortgage, the legal title to the chattel mortgaged becomes vested
absolutely in the mortgagee. Before default or the exercise of the
right to take possession under an insecurity clause in the mortgage,
the general property is not in the mortgagee so as to draw to it a pos-
session in law. Simmons v. Jenkins, Admr. 479.
3. Right of mortgagee to maintain action for levying execution on
chattels. If mortgaged chattels be levied upon in the hands of the
mortgagor under a right given to retain possession until the debt
MORTGAGES. CHATTEL MORTGAGES.
secured matures, and such levy be before default, then, whether the
mortgage contains the insecurity clause or not, the officer is not a
trespasser in making the levy, and neither the action of trespass nor
replevin in the cepit will lie in favor of the mortgagee for such act.
Simmons v. Jenkins, Admr. 479.
4. Where a mortgage contains no insecurity clause, and the debt
matures before sale under the officer's writ, or where the mortgage
contains such clause, and the property is levied upon, the mortgagee
may demand the property of the officer, and, on refusal to surrender
the same, maintain trover or replevin in the detinet for the wrongful
detention. Ibid. 479.
5. Mortgagor's interest liable to execution. A mortgagor in posses-
sion of the mortgaged chattels under a clause in the mortgage giving
him the right to retain possession until his debt matures, has such a
legal interest in the property as may be seized under execution, and
but for an insecurity clause giving the mortgagee the right to reduce
the same to possession, may be sold under execution against him.
Ibid. 479.
6. Rights of mortgagee in case of intermixture. Where the mort-
gagor, without the knowledge or consent of the mortgagee, intermixes
the goods mortgaged with other goods, so as to destroy the identity
of those mortgaged, the lien of the mortgagee will not be thereby
destroyed. Ibid. 479.
7. But where the identity of the mortgaged goods is destroyed by
the mortgagor carrying on a retail business with the same, and filling
up the stock with others, the mortgagee can not hold the substituted
goods unless they pass into his hands before other liens attach, and
then his lien will be only an equitable one cognizable in a court of
equity. Ibid. 479.
8. Permitting mortgagor to sell at retail. If, by any arrangement,
express or implied, the mortgagee permits the mortgagor to continue
in the sale of the mortgaged goods at retail for his own benefit, the
mortgage will be unavailing against a judgment creditor of the
mortgagor, and such arrangement or permission may be shown by
circumstances. Ibid. 479.
TO PROCURE THE LOCATION OF STATE INSTITUTION.
1. The act of April 19, 1869, entitled "An act to authorize cities
and towns in Southern Illinois to issue bonds in aid of the Southern
Illinois University," taken in connection with the charter of the Uni-
versity, which makes the location of that institution to depend upon
the aid and inducements which may be offered in the different locali-
ties, is not liable to any constitutional objection, although such legis
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