HOMESTEAD. FAILURE TO SET OFF HOMESTEAD.
the sale should be set aside upon payment of complainant's judgment, if
the parties interested should be willing to pay the same. Leupold et al.
v. Krause, 440.
MANNER OF ASSERTING RIGHT.
6. Where a bill in chancery, in seeking relief against one who is
occupying the premises involved, as a homestead, discloses the fact that
the homestead right is involved in the litigation, it is not necessary the
answer should allege the same facts. Ibid. 440.
Payment to the husband-whether sufficient. See WILLS, 6.
IMPROVEMENTS.
UPON THE LAND OF ANOTHER.
Upon bill to establish a trust in lands, and to remove a cloud upon title-
whether improvements put upon the land will be charged upon the estate. See
CHANCERY, 9.
MAKING INJUNCTION PERpetual.
1. Under prayer for preliminary injunction. Under a prayer in a bill
to enjoin the removal of machinery, etc., for mining purposes, pending
proceedings to determine the forfeiture of the lease, until the further
order of the court, the court may, on the hearing, make the injunction
perpetual, if satisfied there never should be any further order to the con-
trary. Wilmington Star Mining Co. et al. v. Allen et al. 288.
POWER TO APPOINT CONSERVATORS.
And of the sale and conveyance of estates. See CONSERVATORS, 1 to 6.
INSTRUCTIONS.
1. Need not be repeated. There is no error in refusing an instruction
when substantially the same principle enunciated in it is embraced in
others which are given. Bulliner et al. v. The People, 394.
2. When accuracy especially required. In an action on the case to re-
cover damages for a personal injury alleged to have been caused by
negligence of the defendant, in which the question of contributory neg-
ligence arises, and where the evidence is very conflicting, it is important
that the jury should be accurately instructed. Stratton v. Central City
Horse Railway Co. 25.
INSTRUCTIONS. OF THEIR REQUISITES.
3. Of stating exceptions to general rule. It is not required that all the
law on the subject of negligence shall be embodied in one instruction,
nor is it necessary in all cases, where the general rule of law is stated,
to state all the exceptions to it. Where the further explanation showing
the exception to the rule is given to the jury in another part of the
charge, an omission to insert the exception in each statement of the gen-
eral rule will not be regarded as vicious or erroneous. Stratton v. Cen-
tral City Horse Railway Co. 25.
4. In respect to evidence improperly admitted. Where the statements or
admissions of an accused are improperly admitted in evidence, it is
equally improper to refer to them in an instruction. Fox v. The People,
INSTRUCTIONS PREPARED BY THE COUrt.
5. The court has the clear right to prepare and give instructions to
the jury in lieu of those asked by a party, and if those so given do not
contain the substance of those asked by the party he must except to the
ruling of the court if he desires to assign the same for error. Bromley
V. Goodwin, 118.
ERRONEOUS INSTRUCTION CURED BY OTHERS.
6. Necessity of accurate instructions in closely contested cases. Upon the
trial of a party, under an indictment for manslaughter, the court erro-
neously instructed the jury substantially that the act of killing could
not be justified except the defendant acted in his necessary self-defence,
ignoring the rule that under proper circumstances a person who is as-
saulted may act in self-defence, although the danger be not real but only
apparent. Some of the instructions given for the defendant laid down
the correct rule. Upon a vital question in the case-as to which party
made the attack-the evidence was conflicting. It was held not enough
that some of the instructions were correct. The court could not know
but what the jury followed the erroneous instruction in finding the de-
fendant guilty. Where a case is close in its facts, or where there is a
conflict in the evidence on a vital point in the case, the rights of parties
can not be preserved unless the jury are accurately instructed. Stein-
meyer et al. v. The People, 383.
1. Whether allowable. It is not within the powers of a county board
to allow or pay interest on common county orders issued for current
county expenses. Hall v. Jackson County, 352.
2. Estoppel-as to promise by county to pay interest. Where a county
order drawn upon the county treasurer contains a clause for the payment
of interest, it appearing the order was issued for current expenses and
for interest upon prior orders given also for current expenses, the county
is not estopped to set up the plea of ultra vires in respect to the interest
so provided for. Hall v. Jackson County, 352.
ON FORECLOSURE OF MORTGAGE,
3. Whether interest to be computed on the note secured or on the judgment
thereon. See MORTGAGES, 7.
TO DETERMINE THE SUCCESSION TO AN ESTATE.
Jurisdiction in chancery. See CHANCERY, 11.
LACHES. See LIMITATIONS, 2 to 7.
1. Breach of condition. Where a written lease of a coal mine required
the lessee to prosecute mining for coal without interruption, and forbid-
ding him to assign the lease without the consent, in writing, of the lessor,
and providing for a forfeiture and determination of the lease in case of a
breach of any of its provisions, in which event the lessee was to surren-
der up the premises and property; and where the lessee, without the
assent of the lessor, assigned the lease to a third person, who discon-
tinued all mining operations for more than a year, and had dismantled
the mine and taken the machinery away before the appointment of a
receiver of a corporation claiming under the assignee, and the lessor had
re-entered and taken possession, it was held, on a petition by the receiver,
that he was not entitled to a decree for possession, and that a decree dis-
missing his petition, and ordering him not to disturb the lessee or his
assignee, was proper. Wilmington Star Mining Co. et al. v. Allen et al. 288.
LANDLORD'S LIEN.
2. Waiver estoppel. A tenant sold his part of a crop of corn raised
on the leased premises, and the purchaser from the tenant sold to another.
The question arose between the landlord and this second purchaser,
whether the former had waived his lien upon the crop for his rent. It
appeared that the purchaser from the tenant, after his purchase, and be-
fore he had paid for the corn or sold to his vendee, 'told an agent of the
landlord that he had bought the corn, whereupon the agent said it was
all right, that he was satisfied-that he had settled with the tenant, and
that nothing was due except the part of the crop which remained. After
this conversation the first purchaser sold, informing his vendee thereof,
and out of the money received on his sale he paid the tenant for the corn.
It was held to be a case where the doctrine of estoppel by conduct and a
waiver would apply. Goeing et al v. Outhouse et al. 346.
EFFECT OF PROOF OF GOOD CHARACTER,
1. Is for the jury. On the trial of a person charged with crime, the
court has no right, by an instruction, to tell the jury that proof of good
character on the part of the accused constitutes a complete defence
against the charge. This is a question for the jury and not for the
court, and they have the right to consider all the evidence, and from it
find the facts. Fox v. The People, 71.
2. What is proper care to be exercised by a plaintiff suing for an
injury caused by negligence is a question of law, but whether such care,
which is ordinary care, has in fact been exercised in the conduct of a
party in a given case, is a question of fact which may be properly sub-
mitted to the jury. Stratton v. Central City Horse Railway Co. 25.
By breach of condition. See LANDLORD AND TENANT, 1.
TRANSFER OF REAL ESTATE FOR BENEFIT OF CREDITORS.
By what law governed, as to its validity. See CONFLICT OF LAWS, 1
1. Parties-on petition for mechanic's lien—incumbrancer by deed of trusl.
Where it is sought to enforce a mechanic's lien, under the statute, against
an incumbrancer whose debt is secured by deed of trust appointing a
third person as the trustee, it is not enough that the trustee be made a
party, the owner of the indebtedness himself, as his interest alone is
to be affected by the decree, is an indispensable party. Clark et al. v.
Manning et al. 580.
2. Limitation-time of commencing suit as against one made a party after
filing the petition. Under the statute which provides that a mechanic's
lien shall not be enforced as against incumbrancers unless suit be insti-
tuted within six months after the last payment for the labor and mate-
rials shall have become due, if one not made a party at the time of filing
the petition shall afterwards be made a party defendant, as to such de-
fendant the suit will be regarded as commenced at the time he was made
a party, and not before. Ibid. 580.
LIEN OF SPECIAL ASSESSMENT.
3. Of its duration. The meaning and object of the legislation in
relation to the West Park and boulevard in Cook county was to charge
the lots, etc., benefited, with their share of the expense of making the
improvements proposed in the act, to be ascertained by assessment, and
43-95 ILL.
the time of five years was allowed for making a valid assessment. But a valid assessment, once made, is, under the act, declared a lien, and it can only be discharged by payment. The amount of the assessment, when once fixed within five years, remains a charge until paid. The People ex rel. Mc Crea v. Atchison et al. 452.
4. Whether assignable. A vendor's lien is a right that can only be enforced by the vendor himself, and is not assignable.* Small et al. v. Stagg, 39. See SUBROGATION, 3.
5. Waiver estoppel. See LANDLORD AND TENANT, 2.
LIEN IN FAVOR OF A DEPOSITOR.
6. In what manner created. See BANKS, 12.
AS TO SPECIAL ASSESSMENTS.
1. The five years' limitation in section 5 of the act of January 27, 1869, in regard to assessments for park purposes, was made for cases of an abortive effort at an assessment, involving the necessity of a new assessment, and has no reference to the case of a first and valid assessment. The People ex rel. Mc Crea v. Atchison et al. 452.
SUIT TO ENFORCE MECHANIC'S LIEN.
2. Time of commencing suit as against one made a party after filing the petition. See LIENS, 2.
LAPSE OF TIME ASIDE FROM THE STATUTE.
Mere delay, short of the period fixed as
a bar by the Statute of Limitations, will not preclude the assertion of an equitable right. Where the adverse party is not lulled into security by the delay, or prejudiced thereby, the defence of laches can not be considered. Gibbons et al. v. Hoag, 45.
4. Delay in taking steps to avoid sale. Where no steps are taken by a mortgagor, or those claiming under him, for more than five years to set aside a sale under a power in the mortgage, during which time a third person becomes a purchaser in good faith, relying on the validity of the sale, who is suffered from year to year to expend money on the land, in payment of taxes, etc., such laches will exclude all inquiry into mere irregularities which would but render the sale voidable, if assailed by the proper parties in apt time before the intervention of the rights of third parties. Ibid. 45.
*See Markoe v. Andras, 67 Ill. 34, as to the rule where the lien is expressly reserved in the deed.
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