STATE AND FEDERAL COURTS.
5. Neither can interfere with the process of the other. See CON-
FLICT OF LAWS, 1, 2.
DISSOLUTION OF INJUNCTIONS.
6. In what manner effected—striking cause from the docket. A suit
restraining by injunction the collection of a judgment was commenced
and the writ served in June or July of 1857. The case was continued,
from term to term, until the September term of 1862, when the follow-
ing order was made: "Ordered, that this cause go off the docket.”
On the 14th of March, 1867, execution issued upon the judgment and
was levied on property of the debtor, and a sale thereof made on
the 13th of April following: Held, the order striking the case from
the docket, acquiesced in, and no attempt made to reinstate the case,
was a virtual dissolution of the injunction. Gold v. Johnson, 62.
ASSESSMENT OF DAMAGES ON DISSOLUTION.
7. Suggestions in writing. To confer jurisdiction on the court to
hear evidence and assess damages, on the dissolution of an injunction,
suggestions in writing should be filed, stating the nature and amount
of damages claimed. The plaintiff should thus have notice of the claim
set up against him, and it is error to make the assessment without such
suggestions. Hamilton v. Stewart et al. 330.
8. Evidence to be preserved. In assessing damages in such cases, it
is necessary that the evidence heard on the assessment should be pre-
served in the record as in other chancery proceedings, and failing to
preserve the evidence in the record, there is nothing to sustain the de-
cree for damages, and it will be reversed. Ibid. 330.
1. An instruction which informs the jury that if they find certain
facts, which, if true, constitute a defense, to be true, then they should
find the issue in a particular manner, does not find the facts, and is un-
objectionable. Bartlett et al. v. Board of Education, 364.
2. Where an instruction asserts a correct legal proposition, appli-
cable to the facts of the case, it is proper for the court to give it; and if
the other party desires to have its operation limited to a particular point
in the case, he should ask an instruction for the purpose. Ibid. 364.
3. Need not set forth every element of the case. In an action to re-
cover damages resulting from the alleged negligence of the defendant,
it is held that in such an action it is not an unusual, nor is it an objec
tionable, practice, where the plaintiff's counsel desires an instruction
INSTRUCTIONS. OF THEIR QUALITIES.
as to the rule of damages, to say to the jury that, if they find from
the evidence that the defendant is guilty, as charged in the declaration,
then the plaintiff is entitled to recover, and to define the measure of
damages. Chicago, Burlington & Quincy Railroad Co. v. Payne, Admr.,
534.
4. Such a mode obviates the necessity of stating, and perhaps, re-
iterating, hypothetically, each element of the cause of action, before
coming to the real point in the instruction. Ibid. 534.
5. Should be based on the evidence. Instructions should not be based
on suppositions, in support of which there is no evidence. Cottom v.
Holliday, 176.
1. Renewal receipt—whether a new contract. Where a policy is is-
sued to insure the life of a person for the term of life, in consideration
of the premium paid, and to be paid annually during its continuance,
a receipt given for the annual premium, and which recites that the
policy was thereby continued in force for another year, does not con-
stitute a new contract, but merely operates to continue the old one.
Mutual Benefit Life Ins. Co. v. Robertson, 123.
2. Effect of misrepresentation. The wife of the party whose life
was insured, and for whose benefit the policy was obtained, stated to
the agent of the company at the time of procuring such a renewal re-
ceipt, in answer to his inquiry on the subject, that her husband, who
was absent in another State, had written to her and that he was in his
usual health: Held, in an action on the policy, the statement being
verbal, and not referred to in the policy, should be deemed to have been
a mere representation. It was independent of the contract, and col-
lateral to it. It may have been untrue, and yet not avoid the policy.
To give it that effect it must be proved to have been material, and that
it induced the risk. Ibid. 123.
3. But even the failure to communicate a material fact, unknown
to the assured, will not vitiate a policy. The undertaking is merely
to represent, truly, facts within the knowledge of the assured. Ibid.
123.
OF A WARRANTY BY THE ASSURED.
4. A warranty is in the nature of a condition precedent; it must
appear on the face of the policy; or, if on another part of it, or on a
paper physically attached, it must appear that the statements were in-
tended to form a part of the policy; or, if on another paper, they must
be so referred to in the policy as clearly to indicate that the parties in-
tended them to form a part of it. A warranty can not be created nor
extended by construction. Ibid. 123.
5. In an action upon a policy of life insurance, the introduction of
the policy, and receipts for the annual premiums required by its terms
to be paid, and proof of the death of the party whose life is insured,
will make a prima facie case in favor of the plaintiff. He is not bound
to set out the application and prove its truth. Mutual Benefit Life Ins.
Co. v. Robertson, 123.
IN MATTERS OF ACCOUNT BEFORE A MASTER.
1. Where a matter of account is referred to a master, without di-
rections from the court, he can not, in computing interest, make rests;
but there are some exceptions to the rule of practice. Where the
facts stated in the bill, and taken to be true by the default, require rests
in computing interest, and they are allowed by the master without ob-
jection, and the report is confirmed, the objection can not be raised in
this court. Hurd v. Goodrich, 450.
TRUSTEE-COMPOUND INTEREST.
2. A trustee is only chargeable with compound interest where he
has been guilty of gross negligence, as when the trustee has used the
money of the cestui que trust for his own purposes, and, it is presumed,
with profit. Ibid. 450.
JOINT RIGHTS AND INTERESTS.
JOINT PURCHASES FOR PURPOSES OF SALE.
1. Within what time a sale should be made. Where two persons
purchase land, as tenants in common, to be sold and the profits
divided, and no time is agreed upon in which the sale is to be made,
the law will require a sale in a reasonable time. Smith v. Gear, 381.
2. Of the rule for dividing the proceeds-and adjustment of the rights
of the parties. Where parties were purchasing stock, and one fur-
nished money therefor, and the other to have half of the net profits
when sold, and the parties purchased notes, secured by mortgage on
lands, and it was agreed that the notes and mortgage were to be held
by them in the same manner that they held the stock, and the mort-
gage was foreclosed, and the land purchased by the party who fur-
nished the money to buy the stock, in his name, it would be error to
decree one-half of the land to the person who was to have but one-
half of the net profits. Ibid. 381.
3. In such a case, it is not necessary to prove that there would be
profits on a sale of the lands before the court would render a decree
of sale, as it was the agreement of the parties that there should be a
sale. But the chancellor might provide that the land be offered for
JOINT RIGHTS AND INTERESTS.
JOINT PURCHASES FOR PURPOSES OF SALE.
sale, and if a sum sufficient to yield a profit should not be bid, order
that it be withdrawn, and the decree ordering the sale be set aside, and
dismiss the bill. Smith v. Gear, 381.
4. In such an event, if anything should be found due to the other
party, who was to receive net profits, he would have a lien on the land
for the same, and if not paid, the land should be sold to pay the same.
Ibid. 381.
5. In such a case it is error to order the property to be sold, and to
reserve the question as to the equities of the parties until the coming
in of the master's report. Ibid. 381.
6. In such a case the party only entitled to share in net profits did
not acquire a lien against the land by purchasing in an outstanding
tax title and the equity of redemption, without the consent of the
other party. In such a case as this, he had the right to make the
purchase if he believed their rights were jeopardized; but so long as
he claimed an interest in the contract, he could not purchase and set
up an outstanding title. He could tender the title to the other party,
and if he refused to assent to the purchase in aid of his title, for their
mutual benefit, and allow what they cost or their reasonable value,
the former could abandon his claim under the contract, and could use
such a title adversely to the other party. Ibid. 381.
7. In a case like this, after a reasonable time had elapsed, by use
of ordinary diligence, for making a sale of the property, and it had
not been sold, it was competent for the party not holding the title to
file a bill to compel the property to be offered for sale, and if a sale
could not be so made, and the party only having an interest in the pro-
fits failing to release his interest in the property on having any sum
due him refunded, it would be competent for the other party to file a bill
to have the claim of the party having an interest in the profits extin-
guished, and neither party would be bound to wait an unreasonable
time. Ibid. 381.
1. Presumption as to proofs. Where a court of general jurisdic-
tion receives the confession of a judgment, the presumption will be
indulged that the court heard evidence that the claim was due, and
proof of the execution of the power to confess the judgment. Such
evidence need not be preserved in the record. Osgood v. Black-
more, 261.
Warrant of attorney-description of the note. When a power of
attorney is written on the same paper and below the note, and refers
38-59TH ILL.
JUDGMENTS. CONFESSION OF JUDGMENT.
to the "foregoing note," and describes it correctly except as to the
time when it was to begin to draw interest, the description is suffi-
cient to identify the note, and the presumption is, the judgment
was confessed on the note as authorized by the power of attorney.
Such a case is not the same as where the judgment is confessed on a
note entirely different in date from that described in the power of
attorney. The case of Chase v. Dana, 44 Ill. 262, considered and dis-
tinguished. Osgood v. Blackmore, 261.
JUDGMENT ON ADMINISTRATOR'S BOND.
3. Its extent. In an action upon an administrator's bond, the for-
mal judgment in debt need not be for the full penalty of the bond.
Pinkstaff et al. v. The People, use, etc. 148.
4. Its requisites. A judgment in replevin, awarding a writ of re-
torno habendo, will not be regarded as too general in the description of
the property, if it follow the declaration in that regard. Lammers v.
Meyer, 214.
ON CONDEMNING RIGHT OF WAY.
5. Judgment against railroad under act of 1852—for damages accru-
ing to the owner of lands by the construction of the road-of the form
thereof. The form of the judgment, where a recovery is had under
the act of 1852, should conform to that prescribed by section 15 of the
Wilson v. The Rockford, Rock Island & St. Louis Railroad Co. 273.
AGAINST AN ESTATE.
6. Effect of the two years limitation on the character of the judgment.
See ADMINISTRATION OF ESTATES, 6.
JUDICIAL ACTION.
IN AWARDING COMPENSATION.
1. When private property is taken for public use.
tion of what is "just compensation" for private property when taken
for public use, is a judicial act, which can properly be performed only
by the judicial department of the government, and former decisions
of this court holding the award in that regard, of persons not of the
judicial department, such as the commissioners of the board of public
works in the city of Chicago, to be conclusive, are overruled. Rich
et al. v. The City of Chicago, 286.
JUDICIAL SALES. See SALES, 1 to 8.
1. The presumption is in favor of the jurisdiction of a court of
general jurisdiction, without the facts appearing in the record; on
|