Peck v. Cooper. ever tending to charge them with any responsibility for the trespass complained of. No attempt is made to connect them. with the promulgation of the alleged order, nor is it even shown that they had any knowledge or notice of its existence. The only fact proved against them is, that they were stockholders and directors of the company. But this of itself has no tendency to establish their liability for torts committed by the employes of the company, though committed in pursuance of the company's rules, or the orders of some other of its officers or agents. The mere fact that a person is a director and stockholder in a corporation, does not render him liable for the torts of the corporation or its agents. Some knowledge of and participation in the act claimed to be tortious must be brought home to him. As to defendants, Clarence I. Peck and Harold S. Peck, no attempt was made to do this, and as to them the verdict is unsupported by any semblance of evidence. The second instruction given to the jury at the instance of the plaintiff was erroneous, for the reason that there was no evidence upon which it could be based. It submits to the jury the question whether the defendants, as officers, directors, or managers of the corporation, made or caused to be executed any rule or regulation commanding, requiring or authorizing any person or persons in their employment, or under their control or management, to refuse to carry as passengers in or upon any of their omnibuses, and to eject from their omnibuses any and all negroes who should take passage, or enter therein in violation of such rule or regulation. So far at least as this instruction applied to Clarence I. and Harold S. Peck, there was no evidence tending to prove the fact submitted. The judgment will be reversed and the cause remanded. Judgment reversed. Baker v. Rend. WILLIAM BAKER V. WILLIAM P. REND ET AL. INSUFFICIENT EVIDENCE.-The evidence upon which judgment is rendered in this case was mere hearsay and insufficient. APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed March 29, 1881. This was assumpsit, originally brought by appellees against Tappan, McKillop & Co., of Chicago, alleged to be a corporation, to recover the amount of a claim left with them to be sent to Ottumwa, Iowa, for collection, and which it is alleged by appellees, was collected by an attorney acting for appellant at Ottumwa, to whom it was sent for that purpose. The plaintiff's below recovered a judgment against Tappan, McKillop & Co. for $209.35, which was reversed by this court at its October Term, 1879, on two grounds: first, that the defendant corporation was not in existence when the claim was left for collection, and the claim was not left with the defendant but with Baker, prior to the formation of the corporation; and secondly, that the proof was insufficient to show that the money had in fact been collected. The case is reported in 5 Bradwell, 152. The case having been remanded to the court below, Baker was substituted as defendant in place of Tappan, McKillop & Co., and a trial was had, resulting in a judgment for the plaintiff for $261.26. The defendant Baker now brings the case here by appeal. Messrs. LEAMING & THOMPSON, for appellant; that it is in the power of a collecting agency to limit their responsibility by the terms of their receipt, cited Bradstreet v. Everson, 72 Pa. St. 135; Bullit v. Baird, 27 Legal Int. 171; West. Trans. Co. v. Newhall, 24 Ill. 466; Adams Ex. Co. v. Haynes, 42 Ill. 89; Adams Ex. Co. v. Stettaners, 61 Ill. 184. Gage v. Board of Directors. Messrs. WALKER & CARTER, for appellees; as to the liability of an agent to his principal for moneys of the latter received by a sub-agent, cited Story on Agency, 231a; Taber v. Perrett, 2 Gall. 565; Morgan v. Tener, 83 Pa. St. 306. PER CURIAM. By the substitution of Baker as the party defendant, the first ground of objection to the plaintiff's recovery was removed, but as to the second ground we do not see that the evidence makes any stronger case for the plaintiff than was made at the former trial. The evidence now, as then, amounts in substance to this: that when appellees called on appellant for the money alleged to have been collected, they were referred to Freeman, appellant's attorney in Chicago, who stated that he had no personal knowledge on the subject, but that from certain correspondence in relation to the matter, he learned that the Gas Company at Ottumwa claimed to have paid the money to the attorney to whom it had been sent for collection. He also stated substantially the same thing to plaintiff's witness, Olcott; but he at no time professed to have any personal knowledge about it; on the contrary, he all the while declared he had none. As we said in our former opinion, the burden was on the plaintiff to show by competent testimony that the money had been collected. It is obvious that what was relied on as proof was merely hearsay. If parties choose to submit their cases on incompetent proof when better evidence is readily attainable, they must suffer the consequences. The judgment below is reversed and the cause remanded. ASAHEL GAGE V. THE BOARD OF DIRECTORS, etc. 1. FORECLOSURE OF MORTGAGE-ADVERSE INTEREST BY WAY OF TAXTITLE. In a proceeding to foreclose a mortgage, an adverse claim of title in no way connected with the mortgagee, as a title under a tax sale, is not a proper subject for consideration. Gage v. Board of Directors. 2. JURISDICTION-FREEHOLD.-A freehold cannot be said to be involved in a case in which a title is not and cannot be made a proper subject of inquiry and consideration. ERROR to the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding. Opinion filed March 29, 1881. This was a bill in chancery, brought by the board of directors of the Chicago Theological Seminary, to foreclose a certain deed of trust, executed by Joshua S. Seaverance to Thomas D. Snyder, as trustee, to secure the promissory note of the grantor for $15,000, payable to the complainants. To this bill Asahel Gage, the plaintiff in error, was made a party defendant, on the allegation that he claimed some interest in a certain portion of the premises covered by the deed of trust, by virtue of a certain tax deed thereon, issued to him by the county clerk of Cook county, upon certain pretended sales for taxes due the State and county for the year 1870. The bill, however, alleges that said tax deed is void, by reason of various defects in the proceedings for the assessment and levy of said taxes, and in the application for judgment therefor, but that by reason of said deed a cloud exists upon the title of the complainants, and the security of said trust deed is impaired. The bill prayed that said tax deed be adjudged to be void, and ordered to be delivered up for cancellation. Gage failing to appear and answer, a decree was entered against him by default, in accordance with the prayer of the bill. Mr. A. N. GAGE, for plaintiff in error; that the court could not hear and determine plaintiff in error's title in this proceeding, cited Gage v. Perry, 93 Ill. 176. After default, if complainant amends his bill, this virtually sets aside the default: Lyndon v. Lyndon, 69 Ill. 43; Gibson v. Reese, 50 Ill. 383. No presumptions will be indulged against a tax deed: Hyde v. Heath, 75 Ill. 381. A default admits only the facts that are well pleaded: Cronan v. Frizzell, 42 Ill. 319; C. & N. W. R. R. Co. v. Coss, 73 Ill. 394. Gage v. Board of Directors. Mr. DAVID FALES, for defendant in error; that if there was a joinder of two causes of action it should have been taken advantage of by demurrer, cited 1 Daniell's Ch. Pr. 346. The court may hear and deterinine bills to quiet title and to remove clouds from title: Rev. Stat. 1880, 190, § 50; Wing v. Sherrer, 77 Ill. 200. BAILEY, J. The case of Gage v. Perry, 93 Ill. 176, is decisive of this case. That was a bill to foreclose a mortgage, and Gage was made a party defendant, upon the allegation that he claimed some interest in the mortgaged premises as purchaser, mortgagee, judgment creditor or otherwise, but that such interest, if any there was, had accrued since, and was subject to the lien of the complainant's mortgage. Gage answered the bill, setting up an adverse legal title to a portion of the mortgaged premises by virtue of a tax deed, and expressly denying that his interest in the property was subject to the lien of the mortgage. The case was heard on bill, answer, replication and proofs, and a decree rendered foreclosing Gage's interest in the premises. This decree was reversed, it being held that an adverse claim of title in no way connected with the title of the mortgagor, was not a proper subject of consideration in a suit to foreclose a mortgage, and when it was disclosed by the answer of the defendant and the proofs that such was the character of his claim, he should have been dis. missed from the suit. In the present case, the nature of the interest claimed by Gage is set out by the complainants in their bill, so that it sufficiently appears from the face of the bill itself that Gage claims an interest in a portion of the premises in question adverse to the title of the complainants, and in no way connected therewith; and consequently, upon the doctrine of the case of Gage v. Perry, the bill should have been dismissed as to him. It is suggested, however, that this court has no jurisdiction of the case, for the reason that it involves a freehold, and the case of Gage v. Bailey, 7 Bradwell, 619, is cited in support of that position. A freehold cannot be said to be involved in a |