SUPREME COURT OF ILLINOIS.1

Swamp Lands-Character of the Grant to the State.-By the grant of swamp and overflowed lands to the state of Illinois, under the provisions of the Act of Congress of September 28th, 1850, to enable the state of Arkansas and other states to reclaim the "swamp lands" within their limits, a fee-simple estate passed unconditionally. The state became the absolute owner of the lands, with power to dispose of them in such manner, and for such purposes, as to the Legislature might seem most expedient: Supervisors of Whiteside Co. vs. Burchell et al.

Swamp Lands-Policy of the State.-It was the intention of the General Assembly, under the various acts on the subject, to grant to the several counties in the state the swamp and overflowed lands within their limits, respectively, and to remit to such counties the exclusive control over these lands, and over their proceeds: Id.

Swamp Lands-Rights of Purchasers—Obligation of Counties.--So, where a party purchased swamp lands from a county in 1856, and executed his notes for the absolute payment of the purchase-money, he has no remedy to compel the county to appropriate the proceeds of the sales of such lands to their reclamation, as was contemplated by the legislation on the subject, in force at the time of his purchase; but his rights in that regard are to be determined by the policy subsequently adopted by the Legislature, which placed the whole subject of the control of these lands, and the appropriation of their proceeds, in the hands of the several counties, and released them from all the liabilities and obligations theretofore imposed upon them respecting them: Id.

And where such purchaser claimed the right to pay the purchasemoney for which he had given his notes, in labor to be bestowed in the reclamation of the lands, it was held, that he could in no way have insisted upon such right, except by being the lowest bidder at the lettings of the work under the Act of June 22d, 1852, and that under the subsequent legislation, the county was under no obligation to carry out the system of reclamation of the lands as contemplated by that act: Id.

Power of Courts over the Legislature.-Even if the grant of the swamp lands to the state had been made upon the trust that the proceeds of the lands should be expended in reclaiming them, such a trust would have

1 From Norman L. Freeman, Esq., Reporter; to appear in 31 Illinois Reports.

been of municipal and not fiducial concern, over which the power of the state would have been plenary and exclusive. The courts have no power to compel the legislature to execute such a trust: Id.

Mortgage with power of Sale-Foreclosure in Equity.-A mortgage contained a power of sale on notice by advertisement. The mortgagee filed his bill in equity to foreclose, making the subsequent incumbrancers parties defendant. Pending the bill, the mortgagee advertised and sold to A., who had no actual notice of the pendency of the foreclosure suit. B., a subsequent mortgagee, and defendant in the foreclosure suit, filed his cross-bill to redeem from the first mortgage, and to have the sale to A. set aside: Held, 1st, that it was a fraud to advertise and sell under the power while the foreclosure suit was pending, and that the purchaser at that sale was chargeable with notice of the suit pending; 2d, that A., the purchaser at that sale, was a proper party defendant to the cross-bill: Hurd et al. vs. Cone et al.

SUPREME COURT OF MISSOURI.1

Dower. The widow is entitled to dower in the lands which her husband held under an inchoate title, although he may have conveyed it prior to the confirmation; and, to the extent of her dower, the widow is the representative of the claimants: Margaret Thomas vs. Frederick Hesse et al.

Dower-Conveyance.-If the husband sell the land without the relinquishment of dower by the wife, she will be endowed in accordance with the law in force at the time of the husband's conveyance. Under the statutes of 1825, the wife is not barred by the fact that the husband owed debts at the date of his deed or the time of his death, unless the claims of the creditors be properly enforced. A third person cannot set up the debt as a bar to the action for dower: Id.

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Dower-Action.- Where the alienees of the husband have subdivided the land, which is held in several parcels, the dower of the widow shall be assigned in each parcel separately: Id.

Equity-Trusts.-An agent who buys with his own funds, at a public sale by third parties, the reversionary estate in the lands of his principal,

1 From Charles C. Whittlesey, Esq., Reporter; to appear in Vol. XXXIV. of Missouri Reports.

will not be held a trustee for his principal unless he purchased under an agreement to that effect: Ophelia Kennedy vs. Mary Keating et al.

Will-Devise.-A will made in 1824, and properly attested, provided as follows:-"I do nominate for my sole and only heir of all the goods, chattels, rights and credits, and effects, which I shall be possessed of at the time of my death, I do bequeath the whole unto my adopted child, Sophia," &c., "to inherit and enjoy all and singular the said goods, chattels, rights, credits, and effects, which I shall be possessed of at the time. of my death." Held, that real estate did not pass by the will: James B. Brown vs. Jacques Furman.

Practice-Negligence.-Negligence and unskilfulness are matters of fact, and their existence is a question for the jury. A court cannot direct a jury that such or such supposed facts show or do not show negligence: Bertha Huelsenkamp vs. Citizens' Railway Company.

Damages-Negligence.-In an action against a carrier, under the statute for the better security of life, &c. (1 R. C. 647), if the deceased was killed by reason of his voluntarily taking an improper or dangerous position by which he lost his life, the carrier is not liable: Id.

Action-Contract.-Sub-contractors, not contracting with the owner of a building, but with a person with whom the owner agreed for the construction, are not liable to the owner in an action for negligently and unskilfully doing their work, by which the owner is injured. There is no privity of contract. The action must be brought against the principal contractor: Geo. R. Bissell vs. David Roden et al.

Note-Interest.-A note for a certain sum, "with ten per cent. interest thereon till paid," carries interest from date: Hail W. Pittman vs. Richard F. Barret et al.

Administration-Trust.-Where a party, acting as executor de son tort, procures a lease of premises which had been previously held by his testator, but which had been forfeited for non-payment of rent, he will hold the property as trustee for the benefit of the distributees or representatives of the deceased: Geo. Lich vs. John L. Bernicker et al.

Landlord and Tenant.-A tenant, holding under a lease for a definite period of years, which requires the landlord to pay the appraised value of the buildings erected by the tenant and remaining at the expiration of the lease, cannot hold over the possession after the term, on the ground that he has not been paid such value by his landlord, unless such authority

be given by the terms of the lease. The tenant must seek his remedy by action upon the lease: Theresa Speers vs. Thomas Flack.

Banks-Forfeiture.-A debtor sued by one of the banks of this state cannot plead, in bar of the suit, that the bank has suspended payment of its liabilities in specie, and has thereby forfeited its charter by virtue of the provisions of § 9, art. 1, of the act of incorporation. (Sess. Acts, 1856-7, p. 17.) Such a forfeiture can only be enforced by the state in a direct proceeding for that purpose: The Farmers' Bank vs. Andrew

Garten et al.

Note-Indorser.-A party indorsing a blank note cannot, as against an indorsee for value without notice, object that the blanks have been filled contrary to the agreement made between the parties: Id.

Banks.-A debtor to a bank cannot plead, as a defence to a suit by the bank, that it has refused to redeem its five-dollar notes in coin; or that it has not kept in its vaults the amount of coin required by its charter. Such violations of the law cannot be inquired into collaterally, but only by some direct proceeding on the part of the state: Id.

Covenant.-A. sold to B. a part interest in a steamboat, and covenanted to put B. in possession and command of the boat as captain. A. put B. in possession and command, but subsequently B. was removed from his command by the owners, and another person placed in charge. In a suit upon the covenant by B. against A., held, that A. was not bound to maintain B. in his command of the boat: Isaac H. McKee et al. vs. Jos. Kinney.

Vendor's Lien.-The vendor of land who has given his bond for a conveyance upon full payment of the notes given for the purchase-money, cannot be required to convey to an assignee of the vendee until the purchase-money be paid, although he may have given up the notes and have accepted a new note from the vendee with collateral security: Geo. T. Johnson vs. Elijah Scott et al.

Bills and Notes-Illegal Banking.-The indorsee of a bill or note even with notice takes the instrument, subject only to such defences and equities as attach to the instrument itself. That a corporation indorsing a note had violated the provisions of the act concerning illegal banking, R. C. 1855, sec. 4 and 5, by receiving and passing the notes of non-speciepaying and foreign banks, does not affect the note itself, but is a defence only when the party is sued by the corporation: William Mattoon vs. Wm. G. McDaniel.

COURT OF APPEALS OF NEW YORK.1

Evidence of Expert.-Evidence by an expert that a machine was not constructed in a workmanlike manner is admissible, though the party offering the evidence decline to follow it by proof of the particulars in which the machine was defective: Curtis vs. Gano et al.

Railroad Company-Exaction of greater Fare than allowed by Law. -The penalty imposed by chapter 185 of 1857 upon a railroad corporation for exacting a greater rate of fare than is allowed by law, is incurred where its conductor illegally required five cents in addition to the legal fare, because the passenger had no ticket: Chase vs. The N. Y. Central R. R. Co.

Chapter 228 of 1857 allows the charge of five cents for not having a ticket only when the company has its ticket office, at the station where the passenger starts, open at the time of starting, though this be at midnight, and the statute imposes no duty upon the corporation of keeping its ticket offices open after 9 P. M. Id.

Insurance-Evidence of receipt of Premium-Waiver of Conditions by Agent.—The acknowledgment in a fire policy of the receipt of premium does not, it seems, estop the insurer from showing that it has not been paid. It is evidence, but not conclusive: Sheldon et al. vs. Atlantic Ins. Co.

The cases relating to marine insurance by brokers, who kept open accounts with the underwriters and assured, and credited the one, and were allowed by the other for the premium as paid, discriminated, by EMOTT, J. Id.

A general agent of the insurer may waive a condition in the policy that no insurance should be considered as binding until actual payment of the premium: Id.

Where the agent sent a policy by mail to an applicant for insurance, with a statement that the premium charged was higher than usual, and saying, "Should you decline the policy, please return it by mail; if you retain it, please send me the premium"-Held, that this was a waiver of prepayment, and that the policy became effectual upon the insured retaining and thereby accepting it, or, at all events, that the question should have been submitted to the jury: Id.

A nonsuit in such case will be set aside on exceptions, though the plaintiff did not expressly ask that the evidence be submitted to the jury: Id.

1 To appear in Vol. XII. of E. P. Smith's Reports.