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has been put to great costs and expenses : Cook v. Cook, 100 Mass. 191.
By special damage in such a case is meant pecuniary loss, but it is well settled that the term may also include the loss of substantial hospitality of friends : Moore v. Meagher, 1 Taunt. 42; Williams v. Hill, 19 Wend. 306.
Illustrative examples are given by the text writers in great numbers, among which are loss of marriage, loss of profitable employment or of emoluments, profits or customers, and it was very early settled that a charge of incontinence against an unmarried female, whereby she lost her marriage, was actionable by reason of the special damage alleged and proved : Davis v. Gardiner, 4 Co. 16 b., pl. 11: Reston v. Pomfreicht, Cro. Eliz. 639.
Doubt upon that subject cannot be entertained, but the special damage must be alleged in the declaration and proved, and it is not sufficient to allege that the plaintiff “has been damaged and injured in her name and fame," which is alleged in that regard in the case before the court: Hartley v. Herring, 8 Term 133: Addison on Torts 805; Beach v. Ranney, 2 Hill 309.
Tested by these considerations, it is clear that the decision of the court below, that the declaration is bad in substance, is correct.
ABSTRACTS OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF THE UNITED STATES."
SUPREME COURT OF ILLINOIS.?
Action. See Foreign Judgment. Judgment — Interference by Real party in Interest though not nominally on the Record— Stutute of Limitations.—The real defendant who pays a judgment against a nominal party, afterwards vacated, may recover in his own name the money so paid : Mann et al. v. T'he Ætna Insurance Co., 38 Wis.
Plaintiffs covenanted with A., S. & Co., for value, to discharge all indebtedness and liabilities of the latter firm, indemnify it against an
| From J. W. Wallace, Esq., Reporter; to appear in vol. 22 of his Reports. 2 From Hon. N. L. Freeman, Reporter; to appear in vol. 69 Illinois Reports. 3 From Hon. 0. M. Conover, Reporter ; to appear in 38 Wisconsin Reports.
action by the present defendant against it then pending in New York, and pay any judgment which should be rendered against it therein. On a judgment rendered against A., S. & Co. in that action, this de. fendant recovered a judgment in Wisconsin against that firm, which was paid by plaintiffs, but afterwards vacated on their motion, for the reason that the New York judgment had been reversed. lleld, that such payment by plaintiffs was not a voluntary one, but one to which they were bound by their covenant; and they may recover from this defendant the amount so paid : Id.
This action for such recovery was commenced more than six years after payment by plaintiffs of said Wisconsin judgment, but less than six years after the reversal of the New York judgment. Held, that it was not barred by the statute; the cause of action not having accrued until such reversal : ld.
ADMIRALTY. Submission of Litigated Matters to Arbitration-Prize.—Captors (Admiral Farragut and others) having filed a libel in the admiralty for prizes taken below New Orleans in April 1862, they and the government agreed to refer the cause to the "final deterunination and award” of A., B., and C., “the award of whom," said the agreement of reference, "shall be final upon all questions of law and fact involved, said award to be entered as a rule and decree of court in said case, with the right also of either party to appeal to the Supreme Court of the United States, as from other decrees or judgments in prize cases. The arbitrators made an award, finding certain matters wholly or chiefly of fact, and also certain conclusions of law, and their award was, after exceptions to it, made a decree of the court where the libel was filed. An appeal was taken to the Supreme Court.
Helil as principles of law applicable to the case :
1. That there was nothing in the nature of the admiralty jurisdiction or of an appeal in admiralty, which prevented parties in the Court of Admiralty, whether sitting in prize or as an instance court, from submitting their case by rule of court to arbitration.
2. That the award in the present case was to be construed here and its effect determined by the same general principles which would govern it in a court of common law or of equity.
3. That notwithstanding the expression in the agreement of submission, that all questions of law in the case were to be concluded by the award, the agreement was in this respect no more than a submission of all matters involved in the suit.
4. That accordingly where the award found facts, it was conclusive; where it found or announced concrete propositions of law, unmixed with facts, its mistake, if one was made, could have been corrected in the court below, and could be corrected here; that where a proposition was one of mixed law and fact, in which the error of law, if there was any, could not be distinctly shown, the parties must abide by the award.
5. That the award was also liable, like any other award, to be set aside in the court below, for such reasons as would be sufficient in other courts; as for exceeding the power conferred by the submission, for manifest mistake of law, for fraud, and for all other reasons on which awards are set aside in other courts of law or chancery: United States v. Farragut, 22 Wall.
AGENT. Cannot act for both Buyer and Seller.—Where an agent employed to sell property, sells the same to a purchaser for whom he is acting as agent in effecting the purchase, the seller, in equity, may avoid the contract : Fish v. Leser, 69 Ills.
ARBITRATION AND AWARD. See Admiralty. BANKRUPTCY. See Lantllord and Tenant; Partnership. Redemption of Land by Bankrupt ofter Sale for Taxes Owner.Under a statute which enacts that the owner,” may within a time named redeem land sold for taxes, a redemption may properly be made by a person who has been decreed a bankrupt, the lands having been his. In the case here before the court there had as yet been po appointment of an assignee, nor assignment and conveyance to such person, as pro. vided for in the fourteenth section of the Bankrupt Act of 1867; and the redemption was made between the date of the decree and of such appointment: Hampton v. Rouse, 22 Wall.
A charge that a person who had been decreed a bankrupt on his own application had by such decree ceased to be owner and had lost the right to redeem, Held to be erroneous; there having been evidence tending to show a redemption by such a person : Id.
BILLS AND Notes. Promissory Note-Defence allowed where Plaintiff sues on Note as Trustee for another.- Where the plaintiff in an action on a promissory note is a mere trustee for another, the maker may avail himself of any defence which he might set up against the real owner if the action had been brought in his name: Belohradsky v. Kuhn, 69 Ills.
CONSTITUTIONAL LAW. Release of Claim by State-Restriction on Legislative Powers - The provision of the Constitution of Missouri, which ordains, “ The General Assembly shall have no power, for any purpose whatever, to release the lien held by the state upon any railroad,” a provision having reference to the statutory liens held by the state on different railroads for the credit of the state, lent to tliem by the issue of state bonds, the principal and interest of which the railroad companies were to pay-was not meant. in case of a failure by the railroad companies, to prevent the state from making a compromise with
debt due to it or to become due; and on the compromise being effected to release the lien : Woorlson v. Murdock et al., 2.2 Wall.
This view of the meaning of the clause is not altered by reading it in the light of the constitutional ordinance, “ for the payment of state and railroad indebtedness," adopted at the same time as the state constitution, and as part of it, which ordinance, after providing for a sale by the state of any railroad indebted to it, and for the possible case of a purchase by the state of the road, provides further for a sale of the road after the state has so become owner, ordaining in such case,
- That no sale * * * shall be made without reserving a lien upon the property and franchises thus sold *** for all sums remaining clue.” This expression is to be regarded not as having reference to what the railroad company
originally owed the state, that is to say, reference to the debt for which the road was first sold, but to any portion of the purchase-money which may remain unpaid upon a second sale; a sale by the state, after she has become owner : Id.
The provision in the same constitution, “That no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in its title,” is not violated by any act having various details, provided they all relate to one yeneral subject : II.
Hence, where an act was entitled, “ An act for the sale of the Pacific Railroad. and to foreclose the state's lien thereon, and to amend its charter,” held, that after certain sections providing for the sale, a section providing that in certain contingencies no sale should be made, was not a violation of the constitutional provision: I.
CORPORATION. Damages-Liability for Malicious Assault, by its Employee. - The validity of ch. 273 of 1874, so far as it prescribes maximum tolls for the carriage of persons and property over the railways of this state, is no longer an open question in this court: Hinckley v. The C., M. & St. P. Railway Co., 38 Wis.
If, in removing plaintiff from defendant's train for his refusal to pay a greater rate of toll than the maximum prescribed by said act, defendant's servants, in addition to the degree of force required for such remoral, made a malicious and aggravated assault on plaintiff, which was either authorized or approved by defendant, it was a case for exemplary damages : Id.
Such an assault was alleged in the complaint and denied in the answer. The jury found plaintiff's actual damages to be $600; but the verdict and judgment in his favor was for $1000 damages. On defendant's appeal
, the bill of exceptions failed to set out all the evidence. Held, that the verdict must be presumed to have been warranted by the evidence: II.
DAMAGES. See Corporations. Vindictive-- As against Municipal Corporations.-Municipal corporations are not liable to vindictive or exemplary damages for personal injuries growing out of mere neglect to keep a sidewalk in a safe condition. In order to justify such damages, the negligence of the authorities must be so gross as to be wilful : City of Chicago v. Kelly, 69 Ills.
Trespass— Vindictive Damages.- Where a person, on the commission of a wrongful act, becomes liable only in consequence of his subsequent approval or sanction of it, he will be liable only for the real injury sustained, and will not be subject to vindictive damages : Grund v. Van Vleck, 69 Ills.
DEED. Delivery in Escrow-Statute of Frauds. The conditions upon which an escrow was to be delivered to the grantee therein named, may rest in parol and be proved by parol: Campbell v. Thomas, 38 Wis.
When the person vamed as grantor still retains the right of control over the deed, notwithstanding the deposit thereof with a third person, , it is not an escrow : Id.
A deed deposited by the person named therein as grantor, with a third person, with instructions to deliver it to the person named as yrantee, is not an escrow unless there is a valid contract of sale and purchase between such grantor and grantee : Id.
In pursuance of the terms of an oral agreement for the sale and pur. chase of land, C. paid T. a small sum, on account of purchase-money, and T. signed, sealed and acknowledged a deed of the land to C. (which purported, by its own terms, to be for a consideration of $3000), : nu ve. livered it to H. with directions to deliver it to C. if the latter should...a the second day thereafter, deposit with H. his two notes for a certa:n sum (part of the purchase-price), secured by a mortgage on the same land, and pay to H for T.'s use the balance of the price. Within the time limited, C. offered to H. the notes, mortgage and money required by the oral agreement; but H., by T.'s instructions, refused to deliver to C. the deed, and T. at the same time tendered back to C. the money already paid, and left it with H. for C. upon the refusal of the latter to receive it. Ix an action by C. to compel a delivery of the deed to him by H.: Ileld, (1) That the oral agreement was void by the Statute of Frauds. (2) That if the deed deposited with H. had contained the whole contract, it would have been a sufficient memorandum in writing to answer the requirements of the statute. (3) That if the mortgage had been drawn and signed by C. at the same time that the deed was signed by T., and deposited with the deed, the two instruments construed together as a single contract, would probably have been a sufficient conipliance with the statute. (4) That as there was no such contemporaneous execution or deposit of the mortgage, and as the deed does not show a contract by which C. was to give his notes and a mortgage for a part of the purchase-price (which is the contract alleged by him, and upon which alone he could maintain the action), there was no valid contract between the parties, the deed was not an escrow, and it remained subject, in H.'s hands, to the control of T.: Id.
EQUITY. See Joint Tenants. Practice-Parties to Bill.-In general, one who will be directly affected by a decree in equity, is a necessary party to the suit; and this rule is departed from only when the parties are so numerous that conpliance with it would be impossible or inconvenient. Where the grounds of action averred against several defendants to a suit in equity arise out of the same transaction or a series of transactions forming one course of dealing and all tending to one end, the bill is not multifarious : Superrisors of Douglass Co. v. Walbridge and others, 38 Wis.
ESTOPPEL. Holiliny another out as the Owner of Party's Property.-- Where the owner of property holds out another, or allows him to appear as the owner of, or as having full power of disposition over the property, and innocent parties are thus led into dealing with such apparent owner or person har. ing the apparent power of disposition, they will be protected: Anderson v. Armistead, 69 Ills.
FACTOR. Fiduciary Character-Liability for Misuse of Proceeds of Sales.