Opinion of the Court. of proving property in himself upon the appellant, as we have seen by the case of Anderson v. Talcott, supra. The fifth plea, as amended, averred the taking of one-eighth of the property, and averred that the title to that eighth was in Brink, and traversed the plaintiff's title to the same. And issue having been joined on that traverse, the burden of proving ownership in the plaintiff to that part devolved upon him. He averred ownership in his declaration, and it having been traversed, he must, to succeed, prove the averment. It, then, follows that appellant suffered no wrong by the modification of his first instruction. As modified, it required him to prove property prima facie in himself, before appellee was put upon proof to rebut it. From what has already been said, it will be seen that the second of appellant's instructions was properly refused, as it, if given, would have imposed the burden of proving property in Brink, in the first instance, on appellee. The third was also properly refused, as a partner's interest in the firm property may be sold under an execution, and that interest, whatever it may be, will pass by such a sale to the purchaser. But he takes it precisely as it was held by the defendant in the execution. If, on a settlement of the partnership affairs, defendant in execution is entitled to nothing, the purchaser would obtain nothing by his purchase. Such a purchaser would be compelled to settle with the other partner precisely as would the defendant in execution had his interest not been sold. On a trial of this character, such a settlement could not be made, and hence this instruction was irrelevant, and properly refused. The fourth instruction was properly refused, inasmuch as it was immaterial how much capital was put in by Brink, or how he became a partner, provided he was a partner, and entitled to an eighth interest in the property in dispute. From what has been said, it results that appellee's instructions do not accurately state the law, as the pleas of property in defendant and in a third person were accompanied with a traverse of plaintiff's right. But in this case it could not Syllabus. mislead the jury, as the ownership of the property in the third and fifth pleas was an inducement to the traverse, and the issue was on appellant's ownership, and imposed the burden of proving that fact on him. We see no objection to the third and fourth of appellee's instructions. We perceive no error in this record of which appellant can complain, and the judgment of the court below must be affirmed. Judgment affirmed. CHRISTINA TRICKEY v. MATTHIAS SCHLADER et al. 1. DEDICATION-for a public highway—what constitutes. Where the owner of land joined in a petition to open a road, which was to run in part through his land, and such owner, as one of the commissioners of highways, acted upon the petition, and granted the order to establish the road, and afterward executed a release of all claim to damages, under seal, and for a valuable consideration, and such road was opened, used and worked: it was held, that these acts amount to a dedication of the land for the purposes of this easement, and estop him, and all persons claiming under him, from averring anything against them. 2. Nor can it be objected, that all the requirements of the statute were not observed, when the owner himself instituted the proceedings, and every act done was with his knowledge and consent, and the question of the want of power can not arise. 3. HOMESTEAD-in an easement. Where an easement, or right of way, was granted by the owner of premises who occupied them as a homestead, the fee still remaining in the grantor, the question of a homestead right in the land by the surviving widow can not arise. WRIT OF ERROR to the Circuit Court of Jo Daviess county; the Hon. BENJAMIN R. SHELDON, Judge, presiding. Opinion of the Court. This was a bill in chancery, exhibited in the court below by Schlader and Schultz against Christina Trickey, praying that she be enjoined from closing up a certain public road running through certain land of which her husband died seized. The court below granted the injunction, and this writ of error is prosecuted to reverse that decree. The facts fully appear in the opinion of the court. Mr. D. W. JACKSON, for the plaintiff in error. Mr. E. A. SMALL, for the defendants in error. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court: We are unable to perceive from this record that any right which the plaintiff in error has in the land over which this road runs, has been invaded. The facts are, that the road was petitioned for at the instance of the owner of the land over which it was to run in part; that he, as one of the commissioners of highways, acted upon the petition, and granted the order to establish the road; that he executed a release under seal, for a valuable consideration, as expressed in the instrument, of all claim to damages sustained by him by reason of laying out and opening the road through his land; that the road was opened, used and worked up to the time of the owner's death, he assisting in building bridges upon it. These acts amount to a dedication of the land for the purposes of this easement, and estop him, and all others claiming under him, from averring anything against them. They manifest an intention, on his part, to appropriate this land occupied by the road to the purposes to which it was appropriated. The objection, that all the requirements of the statute were not observed can have no weight, when the owner himself initiated the proceeding, and that every act done was with his knowledge and consent. Syllabus. It is too late for the plaintiff in error now to deny there was a road legally established. As this road was only an easement, and did not dispose of the fee, the question of a homestead right in the land by the surviving widow can not arise. As this road was not established against the will of the owner of the land, but at his instance and request, no question of power can arise. We decide the case on the acts of the owner, which, in our judgment, amount to a dedication of the land. The decree of the circuit court is affirmed. Decree affirmed. JAMES GALLAGHER et al. v. DAVID R. BRANDT et al. 1. BILL OF EXCEPTIONS—its requisites. Where the error assigned is, that the verdict is against the evidence, but the bill of exceptions in the case does not purport to embody all the evidence, this court will not regard such assignment of error as properly before it. APPEAL to the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding. The opinion states the case. Mr. H. M. CHASE, for the appellants. Mr. G. W. BRANDT, for the appellees. Syllabus. Mr. JUSTICE LAWRENCE delivered the opinion of the Court: This was an action of trespass, in which the plaintiff recovered a verdict and judgment for one hundred dollars, and the defendants appealed. It is urged by appellees' counsel that the verdict is not sustained by the evidence. That question, however, is not before us, for the bill of exceptions does not purport to embody all the evidence. No objection is urged by counsel to the ruling of the court upon the instructions, and we discover no error in regard to them. Judgment affirmed. CHICAGO & ROCK ISLAND RAILROAD Co. v. THOMAS FAHEY. 1. RAILROADS must carry the baggage of passengers. The price paid for a passenger ticket upon a railroad includes the carrying of his baggage, and the recognition by the road over which the passenger is entitled to travel, of the validity of the ticket, is an admission that the check given for the baggage is equally binding. 2. SAME where the line of transit is over the roads of different companies— liability of each for loss of baggage. Where a passenger ticket entitles the holder to travel over different lines of road to his place of destination, and to which his baggage is checked, all of them recognizing the validity of the ticket when presented by the passenger, each company to whose possession the baggage may come will be liable to the owner for its loss while in the possession of such company. 3. SAME of whom tickets may be purchased. Where a passenger seeks to hold one of several roads in his line of transit, liable for the loss of his baggage, the recognition of his ticket purchased at the beginning of his trip, by the conductor of such road, is, in effect, an admission that it was issued by some person having competent authority to bind the company, and in such case it is immaterial whether the ticket was issued by a special agent of the company sought to be held liable, or by the ticket agent of some other company. 6-52ND ILL. 52 81 162 529 52 81 59a 489 |