PRACTICE IN THE SUPREME COURT. Continued.
ERROR WILL NOT ALWAYS REVERSE.
9. Admission of improper testimony. Although improper testimony
may have been admitted, yet when it appears, from the verdict, that
the jury were not influenced by it, and no injury resulted from its
admission, the error will not be sufficient to justify a reversal. Crist
et al. v. Wray, 204.
10. Where a deposition taken in another suit was permitted to be
read in evidence against a party's objection, and it did not appear
that its admission injured the party objecting, it was held no ground
of reversal. Schweizer v. Tracy, 345.
11. Giving improper instructions. Although the law of a case may
not be accurately stated in instructions given for the successful party,
yet, if the law is clearly and forcibly given in the instructions for the
other party, so that the court can see that the jury were not misled by
the faulty instructions, the judgment will not be reversed. Lodge v.
Gatz & Co. 272.
WHAT IS THE SUBJECT OF A PRESCRIPTIVE RIGHT.
1. A prescription can not be for anything which can not be raised
by grant; for the law allows a prescription only in supply of the loss
of a grant, and therefore every prescription presupposes a grant to
have been made. City of Quincy v. Jones et al. 231.
2. As an incorporated town or city holds the title to its streets and
alleys for the use of the public, and have no rightful authority to
grant them for any purpose inconsistent with the public use, it fol-
lows that an individual can not acquire a prescriptive right therein
for any private use. Ibid. 231.
3. The doctrine seems well settled that an adverse right to an ease-
ment can not grow out of a mere permissive enjoyment for any length
of time. Ibid. 231.
PRESUMPTIONS.
OF LAW AND FACT.
1. In support of verdict, not in opposition to record. Where a bill
of exceptions purports to contain all the evidence, this court can not
presume other testimony was given to support the verdict. Such pre-
sumptions are indulged only when the bill of exceptions does not
state that it contains all the evidence. Chicago and Alton Railroad
Co. v. Becker, Admr. 25.
2. Presumption as to right of alien born person to vote-in case of a
contested election. See ELECTIONS, 1.
3. As to knowledge of facts by ward on settlement with his guardian.
See GUARDIAN AND WARD, 1.
PRESUMPTIONS. OF LAW AND FACT.
4. As to the extent of the effect of a statute upon the common law. See
COMMON LAW, 1.
5. As to parties being in court by publication of notice. See NON-
RESIDENT DEFENDANTS, 1.
SENDING PROCESS TO FOREIGN COUNTY.
1. By what law governed. Where a suit was brought before the
Practice Act of 1872 took effect, the law in force at the time the suit
was brought was held to govern as to the right to send summons to
another county for service. Funk v. Ironmonger, 506.
2. Of a plea in abatement in respect thereto-its requisites. See
ABATEMENT, 2.
AGAINST NON-RESIDENT DEFENDANTS.
In chancery. See NON-RESIDENT DEFENDANTS, 1.
WHO REGARDED AS AN INNOCENT PURCHASER.
1. Of an attaching creditor of a fraudulent vendee. See FRAUD,
9, 10.
2. Purchaser of crop from a tenant with notice of landlord's lien.
See LIENS, 2.
PURCHASER OF CERTIFICATE OF PURCHASE.
3. Protected against prior agreement to extend time for redemption
of which he had no notice. See REDEMPTION, 3.
PURCHASER FROM FRAUDULENT VENDEE.
4. Of his rights as against the vendor. See FRAUD, 8.
MISTAKE IN A PRIOR MORTGAGE.
5. Effect thereof on rights of subsequent incumbrancer.
TAKE, 3.
1. Or whether a reorganization of a former company. Where an act
of the legislature provided that the trustees in a deed of trust given
by a railway company upon its franchise, road and property con-
nected therewith, and the cestuis que trust and their associates, who
should thereafter purchase at the sale under the deed of trust, should
be incorporated by a name different from that of the old company,
with power to purchase and own the franchise and property of the
old company, and upon such purchase should be invested with all
RAILROADS. OF A NEW INCORPORATION. Continued.
the corporate powers, privileges, etc., before given to the old com-
pany, but did not give the stockholders under the old any rights in
the new company, or require the latter company to pay the debts of
the former: Held, that the effect of this legislation was to create a
new and distinct corporation, capable of purchasing, owning and
using that which was conveyed by the deed of trust, and was not a
reorganization of the old company, and that it took what it purchased
subject to no liens or claims save such, if any, as were paramount to
the deed of trust. Morgan County et al. v. Thomas et al. 120.
2. Duty to make approaches and crossings over new streets. Where,
long after the construction of a railroad, a street was extended so as
to cross the same, and the city passed an ordinance requiring the
railway company to make a safe and proper crossing by grading the
approaches of the street at the crossing, there being nothing in the
charter of the company imposing such duty, or any such duty imposed
by any general law in force at the time the company was created:
Held, that the company was not liable to this new burden any further
than might have been required of an individual, and that, as the
whole burden was sought to be placed upon the company without
regard to benefits, the ordinance was in violation of the constitution,
and could not create any liability upon the company, and that the
legislature itself could not impose such burden without making
compensation. Illinois Central Railroad Co. v. City of Bloomington,
3. Rebate on freight. Where a shipper of grain at customary rates
of freight, by contract with the railroad company became entitled to
a rebate on the price of carrying, it was held, such contract was not
in violation of the statute to prevent unjust discriminations in charges
by railroad carriers. Toledo, Wabash and Western Railway Co. v.
PRESIDENT OF RAILWAY COMPANY.
4. Of his power to consent to change of terms of municipal subscrip-
tion. See MUNICIPAL SUBSCRIPTION, 6.
ASSETS-MUNICIPAL SUBSCRIPTION.
5. Rights of creditors. See MUNICIPAL SUBSCRIPTION, 3.
UNAUTHORIZED ACTS OF PUBLIC OFFICERS.
1. Where public officers do an act in the absence of any power, it
is void, and can not be subsequently ratified or made valid for any
purpose. School Directors v. Fogleman, use, etc. 189.
WHEN IT MAY BE TAKEN BY THE SHERIFF.
1. The power of a sheriff to take a recognizance from a person
who is indicted, is not limited to the time of making the arrest, but
he may take the same at any time after he has committed such person
to jail. Welborn et al. v. The People, 516.
SCIRE FACIAS ISSUES WITHOUT SPECIAL ORDER.
2. No order of court is necessary for the issuing of an alias scire
facias upon a forfeited recognizance. It is made the duty of the
clerk to issue a scire facias upon the order of the court declaring a
forfeiture. Lane et al. v. The People, 300.
MUST ARISE OUT OF THE CONTRACT SUED UPON.
1. Where the plaintiff sold land for the defendant, agreeing to take
security for the first payment of $3000 on other land of the value of
$6000, and afterwards the defendant sold to the same purchaser cer-
tain personal property, for the sum of $2500, and directed the plaintiff
to take mortgage on the purchaser's farm, then valued at $11,200, for
both payments, and record the same, and the plaintiff did take such
mortgage, but, through his neglect, it was not recorded until after
liens to the extent of $1179.50 had attached to the mortgaged premises,
which the defendant, after foreclosure of his mortgage, was compelled
to discharge by payment: Held, in a suit by the plaintiff to recover
the compensation agreed upon for making the sale, that the defendant
could not recoup the damages sustained by him in consequence of
the neglect to record the mortgage, as the same did not arise out of
the contract sought to be enforced by the plaintiff, but that his remedy
should be sought in a distinct suit. Evans v. Hughey, 115.
2. Recoupment and set-off are governed by different principles.
In recoupment, a claim originating in contract may be set up against
one founded in tort, and vice versa; the cross demand must proceed
from the same subject matter as the plaintiff's right of action, and
the defendant can not, as in the case of a set-off, recover any excess
in his favor. It can only be used to mitigate or extinguish damages.
Waterman v. Clark et al. 428.
3. Need not arise as between all the parties. In an action on a
promissory note given by principal and surety on a contract of the
principal, it is competent to recoup the damages of the principal
growing out of the contract, to the same extent as if the note had
been given by the principal, and he alone were sued. Ibid. 428.
4. Giving a note with knowledge of the facts. The right to recoup
is not barred by the fact that the damages to be recouped were known
to the party executing the note. While the note is an admission of
the amount due, and evidence, it is not conclusive of a settlement or
MUST ARISE OUT OF THE CONTRACT SUED UPON.
waiver of any claim for damages, especially when given under pro
test. Waterman v. Clark et al. 428.
5. Whatever defense, by way of recoupment, will avail the princi-
pal, is also available to the surety. Ibid. 428.
6. A claim for recoupment is properly set up under the statute by
special plea. Ibid. 428.
EXTENDING TIME FOR REDEMPTION.
1. Of an agreement in respect thereto. Where a judgment debtor,
whose land had been sold on execution, before the expiration of twelve
months from the date of the sale paid the holder of the certificate of
purchase a small portion of the money necessary to redeem, the lat
ter giving a receipt for the same, to apply on redemption of the land:
Held, that this afforded no evidence of an agreement to extend the
statutory period of redemption, but the fair intendment was, that it
was paid on a redemption to be made within the time allowed by law.
Stevens v. Iroin et al. 604.
2. But the receipt of money by the holder of the certificate of pur-
chase after the twelve months had expired, but before the expiration of
fifteen months, the time for taking out a deed, to apply on the redemp-
tion, would seem to imply that further time was given. But in the
absence of proof, the debtor would be required to complete the re-
demption before the fifteen months expired, or within a reasonable
time from the payment. Ibid. 604.
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3. As against an innocent purchaser. Notwithstanding there may
be an agreement to extend the time for redemption of land sold on
execution, beyond fifteen months from the day of sale, which would
be enforced as between the parties to the agreement, yet, if the certifi-
cate of purchase is sold and assigned to an innocent purchaser, who
has no notice of the agreement, and who pays its value, he will take
the same discharged from all equities in favor of the debtor as against
the assignor. Ibid. 604.
RELEASE OF ERRORS. See PRACTICE IN THE SUPREME
COURT, 4, 5.
FOR BREACH OF CITY ORDINANCE.
1. In a suit by a city to recover the penalty fixed by ordinance, for
selling liquors contrary to the terms of his license, it is no defense
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