Volume 100 — Illinois Reports

<p>Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.</p>

John J. Glenn, Judge, presiding. William S. Goembel and Jacob Goembel filed their bill in chancery in the office of the clerk of the circuit court of Henry county, against Samuel J. Arnett, Jacob Arnett and Wesley C. Graham, alleging therein, in substance, that in September, 1875, William S. Goembel, Samuel J. Arnett and John Eapp formed an equal partnership, for the purpose of merchandising in Geneseo; that such firm did business until November, 1876, when Eapp retired from…

<p>Writ of Error to the Circuit Court of Cook county; the Hon. M. F. Ttjley, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county.</p>

<p>1. Municipal cobpobation—power to require milk dealer to take out license. Under the 41st subdivision of section 62 of the general Incorporation law of 1872, a city incorporated under that act has the power to pass an ordinance malting it unlawful for any person to sell, expose for sale, or deliver milk from any wagon, cart or other vehicle, within its limits, without first procuring a license, and to provide a punishment for its violation.</p> <p>2. Peddler—what constitutes. The term “peddler," in the 41st subdivision of section 62 of the general law of 1872 for the incorporation of cities and villages, is used in its general and unrestricted sense, and fully embraces persons engaged in going through a city, from house to house, and selling milk in small quantities to different persons, and this though they may have regular customers to whom they daily sell milk. ,</p>

David McCullough, Judge, presiding. This was a bill in chancery, filed September 6, 1866, by Timothy Moshier, against David Norton and others, to foreclose a mortgage of certain lands in Henry county, executed by the latter to the former on November 4, 1857, to secure the payment of a promissory note of the same date made by Norton to Moshier, for $6000, payable two years after January 1, 1858, with interest payable annually, at the rate of 10 per cent per annum.

<p>Writ of Error to the Appellate Court for the First District ;—heard in that court on error to the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.</p>

Josiah McRobebts, Judge, presiding. It appears from the record, that in vacation, after the October term of the circuit court of LaSalle county, there was entered on cognovit, under the ordinary warrant of attorney, a judgment against Charles J. Borchsenius, in favor of Anna Irgens, upon a promissory note made by the latter to the former on February 29, 1876, for $850, payable one day after date, with ten per cent interest.

<p>1. Cbbtiobabi—of the return to the common law writ. The purpose of the common law writ of certiorari is to have the entire record of the inferior tribunal brought before the court for inspection and judgment thereon. It requires no return of the evidence or certificate of facts outside the record, and the trial must be had upon the record alone.</p> <p>2. Same—judgment. If it appears from the return to the writ that the-inferior tribunal had jurisdiction, and had not exceeded it, and had proceeded according to law, the writ should be quashed; but if the court finds that the inferior body had no jurisdiction, or exceeded it, or had not proceeded according to law, it should quash the proceedings shown by the return.</p> <p>3. Officebs—legislature may authorise county board to remove county treasurer. Section 15 of chap. 36, Rev. Stat. 1874, which authorizes county boards to remove county treasurers from office for a neglect or refusal to render an account, or make settlement when required by law or such board, or when he is a defaulter, or is in arrears with the county, etc., is not in contravention of any constitutional provision, but is a valid law.</p> <p>4. Same—county treasurer is not a State officer. A county treasurer, though commissioned by the Governor, and required to collect State revenue, is not a State officer, and, therefore, sec. 15 of art. 5 of the constitution of 1870, making all State officers liable to impeachment for misdemeanors in office, has no application to such officer.</p> <p>5. Constitution—deprivation of properly without due process of law. That clause in the Bill of Bights that no person shall be deprived of life, liberty or property without due process of law, is not infringed by a statute giving the county board power to remove a county treasurer from office for nonfeasance or malfeasance in office, without a trial in a court of law, there being no such thing as title or property in a public office, within the meaning of that provision.</p> <p>6. ' Same—rights of officer not protected as a contract. The election and induction of a person into an office does not create such a contract as is protected in its obligation under the Federal and State constitutions.</p> <p>7. Bbmoyaxi fbom office — not a judicial act. The settling of a county treasurer’s accounts by the county board, and finding that he had not settled and accounted for moneys of the county as required by law, and that he had been and still is in arrear with the county, and removing him from office, is not a judicial act, and may properly be performed by the county board.</p>

Agreed case from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding. .The following are the facts shown in the record in this case: On the 4th of June, 1879, the Chicago and Western Indiana Railroad Company was duly organized under the general law of this State in force July 1, 1872, which provides for the incorporation of such corporations, and defines then: powers.

<p>1. Stockholders in insurance companies—of their liability under act of 1889. The 16th section of the general Insurance law of 1869 makes shareholders and directors of insurance companies organized under that act, severally liable for all debts or responsibilities of their respective companies, to the amount by them subscribed; until the whole amount of the capital stock shall be paid in, and a certificate thereof recorded, as therein provided; and section 19 of the same act imposes the same liability on shareholders in companies organized under special charters, and brought under the provisions of the general law.</p> <p>2. Same—“corporator” means shareholder. Under section 16 of the act, as well as sec. 2 of art. 10 of the constitution of 1848, the word “ corpora-tors ” is used in the sense of shareholders, and not in that of commissioners or promoters of the organization of the corporations.</p> <p>3. Same—effect of act of 1869 on companies organised before its pas-sag e. Under the general Insurance law of 1869, the capital stock of companies doing business under previous charters was to continue the same as authorized in their respective charters, and all investments of their capital stock and surplus, according to their charters, were to remain unaffected by the general law.</p> <p>4. Same—saving of charter privileges to previously formed companies. The exception in section 19 of the act, in favor of companies previously organized,' that they shall “also be entitled to all the privileges and powers granted” by their charters, secures to such companies, and prevents the general act from impairing, their privileges and powers to effect fire, marine, life and health policies of insurance. Matters performed in organizing were not required to be abandoned, and performed under the general law, but as to their subsequent dealings it was intended to bring them under the controlling power of the State,, to provide security to their creditors as provided in the general law.</p> <p>5. Same—duty to procure Auditor’s certificate'. By the act, insurance companies organized under special charters were required to procure the certificate of the Auditor of the payment of all the stock subscribed, and record the same, as a condition to authorize them to continue in business, and relieve its shareholders from the individual liability imposed by the 16th section of such act.</p> <p>6. Same—duty of Auditor to examine a/nd give certificate. An insurance company organized under a special charter prior to the passage of that law, may require the Auditor of the State to have its affairs examined, and ascertain whether all of its capital stock has been paid in and invested as required by its charter or the general law, and if so found, to give the requisite certificate, the same as if such company had been organized under the general law.</p> <p>7. Corporation—right to impose further duties and liabilities. The acceptance of an amendment to the charter of a private corporation, which reserves the right to bring such corporation under any general law regulating the same, makes it subject to the power of the legislature to impose further duties and make restrictions not contained in the charter.</p> <p>8. Declaration—in suit to enforce liability of stockholder for debt of corporation. In a suit by a creditor of an insurance company to enforce the individual liability of a shareholder under a law making stockholders liable to the extent of their stock until the entire capital stock is paid in and invested, and a certificate thereof made and recorded, the declaration averred that the defendant had subscribed for fifty shares of the capital stock of the company, and that the whole amount of the capital of the corporation had not been paid in, and that no certificate of such payment had been given or recorded, as required by the statute, but on the contrary not more than one-half of said capital stock had ever been paid in to said company: Held, on demurrer, that the declaration showed a right of recovery.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District heard in that court on appeal from the Circuit Court • of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

N. M. Laws, Judge, presiding. On the 1st of August, 1869, Bissell, being possessed of certain buildings in Peoria, leased to the firm of Billings, Lloyd & Schembs a part thereof, for a term of five years from that date, at a yearly rent of $1000, payable monthly.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Samuel M. Mooee, Judge, presiding.</p>

<p>1. Stockholders—liability for debts of corporation—by whom and ■ how enforced. Under section 9 of the act of 1857, relating to manufacturing . corporations, the stockholders are made severally and individually liable to the “creditors” of the company to the amount of stock held by them, for all debts, etc., made by such company prior to the time when the whole capital stock shall have been paid in. This liability can not be enforced by a single creditor, suing in his own behalf, alone. It can be enforced only upon a bill brought by, or at least in behalf of, all the creditors of the corporation.</p> <p>2. Same—stockholders’ liability not enforceable until assets of the corporation are. exhausted—parties to bill. Stockholders in a corporation organized under a law making them liable individually “to the creditors” of the corporation, will not be required to pay any portion of the debts until the assets of the corporation are first exhausted. If such assets are in the hands of an assignee for the benefit of creditors, he will be a necessary party to a bill in chancery to enforce the stockholders’ individual liability.</p> <p>3. Same—quaere, whether the act of 1857 is superseded by act of 1872. The court are inclined to think that the provisions of the act of 1857, relating to corporations, and making stockholders individually liable for the debts of the corporations, were superseded and became inoperative by reason of the general law of 1872 upon the same subject, but find it unnecessary to adjudge that question.</p>

<p>Practice—to show ruling of law on trial by court. On a trial by the court without a jury, in order to present a question of law to this court as having been passed upon by the court below, the party should submit to the trial court written propositions of law, to be “held” or “refused,” or set out in the bill of exceptions the ultimate facts found by that court from the evidence.</p>

Joseph E..Gaby, Judge, presiding. This is assumpsit, brought by appellee against appellant, Gammon, and three others, Orvis, Cutler and Obadiah Huse, as partners, under the style, or firm name of “F. K. Orvis & Co.,” upon a promissory note, payable to the order of Mary J. K. Huse, for the sum of $1200, one year after date, with interest at ten per cent from date, dated December 1, 1870, and signed by the firm name of F. K. Orvis & Co., with allegation that appellee was, at…

Writ of Error to the Criminal Court of Cook county; the Hon. Kirk Hawes, Judge,.presiding. Charles Moeck was indicted for manslaughter, for the killing of Adam Conrad, by shooting with a pistol, on the night of November 6, 1880, in the city of Chicago.

Writ of Error to the Appellate Court for the First District; —heard in that court on error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought in the Superior Court of Cook county, by Charles E. Bay and William C. Whitney, against Thomas Mackin.

John G. Rogers, Judge, presiding. This was an action of assumpsit, brought by the New Market Savings Bank, upon a promissory note. The declaration contained the common counts, and two special counts, the note sued upon being alleged to have been made by Gil-let and others to Longley, and by him assigned to Chase and others, and by them to the plaintiff. Gillet alone was served.

<p>Writ of Error to the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Sangamon county; .the Hon. Charles S. Zane, Judge, presiding;

<p>1. Remedy—when two concurrent ones may be pursued at same time. The vendor of land may sue at law upon the note given for the purchase money, and at the same time proceed in equity to enforce a lien reserved in his deed-for the payment of the same.</p> <p>2. Since the passage of the act of 1865, authorizing a personal decree on the foreclosure of a mortgage for any balance remaining due after sale of the premises, and the award of an execution therefor, the mortgagee may bring his action at law, the same as before, for any balance due him after the sale under the foreclosure, or he may in the first instance sue at law on his note, and proceed to foreclose the mortgage in equity at the same time.</p> <p>3. Amendment—as to amornit of decree, at same term. It is competent for a judge other than the one who presided at the hearing of a cause, presiding at the same term of court, to amend the decree rendered upon the hearing, so as to show the true amount due, and when the amendment lessens the amount the defendant can not complain that the amendment was allowed without notice to him, although correct practice may require it.</p> <p>4. Interest—-judgment rate governs after judgment. On bill to enforce a vendor’s lien when the note has been reduced to a judgment, the true rule for ascertaining the sum due is to calculate the interest on the judgment, and not upon the note.</p> <p>5. Evidence—proof of fact admitted by pleadings not necessary. Where, on a bill to enforce a vendor’s lien, the answer admits the making of the note for the purchase money and the reservation of the lien in the deed to the defendant, the necessity of introducing in evidence the deed which reserves the lien will be obviated. It is wholly unnecessary to prove on the hearing that which is solemnly admitted by the answer.</p>

<p>Mortgage—satisfaction, when set aside and original rights restored. Where a mortgagee, for the purpose of extending the time of payment, took new notes secured by a new mortgage on the same land, giving up the old notes, and entering satisfaction of the old mortgage, in ignorance of the fact that the mortgagor had, only a day or two before, given another mortgage to a third person, which was on record at the time, it was held, that in equity his lien on the land wa-s not made subordinate to that of the intervening- mortgage, but the court, on bill, would reinstate his prior hen; and the fact that the new notes were, by mistake in calculation, taken for more than was due on the old ones, would not prevent such relief, nor would the fact that by the new notes interest was obtained on interest already due.</p>

<p>Appeal from the County Court of Logan county; the Hon. Stephen H. Foley, Judge, presiding.</p>

<p>1. Evidence—in capital cases. Where a person is on trial upon the charge of murder, and the evidence relied on to connect the accused with the offence is entirely circumstantial, it is highly important to him, as well as essential to the due administration of justice in the prosecution of the case, that the State should be held to at least a substantial, if not a strict, observance of the well established rules governing the production of testimony, in its efforts to establish the charge against him. No matter or thing should be admitted in evidence, against the objections of the accused, which does not prove or tend to prove the issue, more especially if the evidence, when admitted, would have an improper influence upon the minds of the jury, or place the accused at a disadvantage before them.</p> <p>2. Same—of the theory of witness and others as to guilty party. On the trial of one for murder, where the only evidence relied on to connect the prisoner- with the crime was circumstantial evidence, a captain of the police was allowed to testify that on the night of the homicide he saw another person and learned what he knew about the prisoner and another, and that he and the police formed the theory that the prisoner and such other person did the shooting of the deceased: Held, that the admission of this testimony was unjust to the accused, and clearly erroneous.</p> <p>3. Amending bidd of exceptions—in vacation. While the mere settling and signing of a bill of exceptions may not be the exercise of judicial power, yet when one is once signed, sealed, and filed in the proper office, it becomes a part of the record, and, like other portions of the record, it imports a verity, and no plea or averment will be admitted which questions the truth of what it imports.-</p> <p>4. If what purports to be a record has been so made up by the clerk or other officer as not to speak the real facts, it must be amended so as to conform to them, and this can only be done by the court whose record is sought to be amended. If substantial amendments of the records of court are to be made, based upon extrinsic testimony, it can only be done on due notice, after a solemn adjudication of the matter in open court.</p> <p>5. In this case, after a bill of exceptions had been settled, signed and sealed by the judge who presided at the trial of the cause, and was filed in the proper office, and while the cause was pending on error in this court, the same judge who tried the cause in the court below, upon notice to the party to be affected, in vacation, and in a county other than that in which the cause was tried, signed and sealed a supplemental bill of exceptions, which purported to amend the record of the original bill of exceptions in a material point concerning the evidence. It was held, not competent for^the judge to make the amendment at chambers and in vacation.</p>

<p>1. Publication—sufficiency of, in chancery, to non-resident. Where the publisher’s certificate of publication of a notice to non-resident defendants in chancery states that the paper was weekly in its publication, and that the notice was published four weeks successively, beginning on December 17, 1875, and ending on the 7th of January, 1876, it appearing that the first and last insertions were each on a Friday, it will be sufficient to show that each insertion was in a separate week, and will satisfy the statute.</p> <p>2. Multieabiousnbss—in bill no ground of reversal on default. The practice is well settled that multifariousness in a bill can not be urged as a ground of reversal of a decree rendered on a default. « •</p> <p>3. The objection that a bill is multifarious may be waived, and is so considered, unless taken in apt time and in an appropriate manner, although courts, to avoid embarrassment in the trial of a case, may, suo sponte, enforce the objection.</p> <p>4. Patent—when title passes by. Where a patent is filled, countersigned, sealed, and recorded in the general land office, the title to the land vests in the ¡person named as the grantee in the patent, without a formal delivery of the instrument, and when so vested it can not be taken away by any mere ministerial officer of the government.</p> <p>5. Any effort by a ministerial officer to cancel a x>atent which transfers title to a grantee, and reinvest the title in the government, is absolutely void, and can not affect the rights of any one, and legislative authority is incompetent to confer such power upon a land officer.</p> <p>6. Constitutional bights—as to security in property. It is a fundamental principle that before a person can be deprived of a right, even by judicial sentence, he must have notice and reasonable opportunity to be heard in defence of his rights.</p> <p>7. Supreme Court oe the United States—decision when binding on State courts. A decision of the Supreme Court as to the effect of a patent, being in relation to an act of Congress, is authoritative and binding on all other tribunals.</p> <p>8. Cloud on title—sufficiency of bill to remove. A bill which shows the establishment of a preemption right to land by one under whom the complainant claims, the issue of a certificate of purchase, and finally a patent, which was duly recorded in the general land office, and that afterwards the commissioner of the land office, without authority or notice, and without the knowledge of the patentee, set aside and cancelled the certificate of purchase and patent, and issued a patent to another, the original patentee being in possession all the time, is sufficient, on default, to authorize a decree setting aside the last patent as a cloud upon the title of the complainant.</p>

<p>Writ oe Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>1. Chattel mobtgage—mortgagee may pwrchase at his own sale by consent of mortgagor. A purchase by a mortgagee at his own sale under a chattel mortgage will not be set aside and a redemption allowed, where the sale and purchase were made with the consent of the mortgagor, and under an understanding with him.</p> <p>2. Sale tjndeb poweb in mobtgage—when made to mortgagee by consent will not be set aside. Where the mortgagor and his wife gave the mortgagee an absolute conveyance of the mortgaged premises in full satisfaction of the indebtedness, and the mortgagee, to avoid certain intervening judgment liens, made a sale under a power in his mortgage of the property to one, who immediately conveyed back to the mortgagee, without paying anything on the purchase, and the mortgagee then surrendered the notes and the mortgagor’s deed, and received possession of the premises, and held them without any claim or objection by the mortgagor for over three years, and it appearing that the property was worth but little more than the indebtedness, and no fraud or overreaching being shown, it was held, that a bill to set aside the sale and allow a redemption was properly dismissed.</p>

<p>1. Cross-bill—whether germane to the original bill. On bill against the parties foreclosing a mortgage and the purchaser at the sale, to compel a transfer of the certificate of purchase to the complainants, the heirs of the mortgagor, on the ground that the payee of the notes was insane when he assigned the same, a cross-bill by the purchaser against the complainants, seeking to have a deed made to him on the same certificate, is not improper, as presenting new and distinct matter from that in the original bill.</p> <p>2. Same—time in which it may be filed. The filing of a cross-bill is a matter of right, and it may be filed at any time before the hearing, so that it does not delay the hearing on the original bill. "When not filed in time, the court is under no obligation to stay a hearing until the cross-bill is at issue and ready for trial.</p> <p>3. Same—on change of venue. Where a defendant has a right to file a cross-bill in a suit in equity, he may exercise it after a change of venue has been had in the original suit. The change of yenue will not change his rights.</p> <p>4. Chancery practice—preserving the facts found, in decree. It is sufficient to uphold a decree that the facts as found by the court from the evidence are recited in the decree, and such finding must be taken as true when the evidence has not been preserved in the record.</p> <p>5. Master’s deed—demand—limitation. The demand of a deed upon a certificate of purchase issued upon a judicial sale, in proper time, and the refusal of the master or officer, wrongfully, to make the same, will defeat the bar of the statute, which otherwise would make the sale void in five years after the expiration of the time of redemption.</p> <p>6. Pkactice—variance from summons—when objection must be taken. The neglect to make the objection of a variance between a cross-bill and the summons issued thereon, in the court below, is a waiver of the objection. Such an objection can not be made in the appellate court for the first time.</p>

William C. Jones, Judge, presiding. This was a bill in chancery, filed by John G. Higgins in his lifetime, against Carrie Kingman, to set aside a sale of his homestead under execution, in which Carrie Kingman claims title.

Charles S. Zane, Judge, presiding. This -was an action of debt, brought in the circuit court, by Helen Womer against George N. Black, wherein it was sought to hold the defendant liable, as a corporator and stockholder in the Lamar Insurance Company, under a policy of insurance issued to the plaintiff by the said company. Upon a trial in the circuit court the plaintiff recovered.

This was an application to this court for an alias peremptory writ of mandamus, to compel the present supervisor of Barnett township to perform a duty which his predecessor in office had refused to perform, as indicated in The People ex rel. v. Supervisors of Barnett Township, 91 Ill. 422.

<p>1. Will—devise—when to take effect. Where a testator directed that as soon as could advantageously be done after the death of his widow, all his notes, etc., be collected, and all his property, real and personal, be sold, and after paying the expenses of executing the will, his daughter A should be paid $1000, and the remainder of his estate be given to his daughter B, if living when the will should be executed, but if not living, her part to be given her daughter C, and appointed B hie executrix: Held, that the disposition made by the will was not to take effect until after the death of the widow of the testator, and then the "division was to be with reference to the condition of things as at that time existing.</p> <p>2. Where a will provided for the conversion of all the testator’s property into money on the death of his widow, and its division among his two daughters, but directed that if his daughter B should not be living “at the time this will shall be executed,” her share should be given to her daughter: Reid, that the words, “at the time this will shall be executed,” referred to the time of converting the estate into money and distributing it under the will.</p> <p>3. Same—when property descends to heir. Where real estate is directed by a testator to be sold and converted into money after the happening of a certain contingency, and no disposition is made of such estate in the meantime, the legal title will devolve upon the heirs at law of the testator, subject to sale under the power, at the proper time.</p> <p>4. Same—whether executor takes legal title. Where the executor of a will is directed to sell the testator’s real estate and divide the proceeds of the sale between certain devisees, the executor takes only a power of sale, that being all that is necessary to execute the will, and no legal estate in the land.</p>

Owen T. Beeves, Judge, presiding. This was an action of assumpsit, brought in the McLean circuit court, by Amasa J. Merriman, administrator of the estate of Jane'Hendryx, deceased. The declaration contained the common counts only, alleging the indebtedness to have accrued on the first day of January, 1874.

<p>Appeal from the County Court of Coles county; the Hon. J. E. Cunningham, Judge, presiding.</p>

<p>1, Decebe—can not affect parties and interests not before the court. On bill by a municipal corporation to have its bonds and the coupons thereto attached declared illegal and void, when neither the bonds nor the owners are within the jurisdiction of the court, no decree can be rendered that will affect such bonds or their owners.</p> <p>2. TAXES'—who may enjoin their collection. A municipal corporation can not maintain a bill to restrain the collection of a tax levied on property within its limits to pay bonds of the corporation, though they are illegal. Only tax-payers can complain of such tax.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Eplbr, Judge, presiding.</p>

Writ of Error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding. This was a hill in chancery, filed by Eh P. Williams, against Isaac M. Jones and wife, to foreclose a deed of trust. The bill alleged, among other things, that the debt was for purchase money, which was. denied by the answer, and a homestead set up in defence, it not having been properly released in the trust deed.

<p>1. Surety oe guardian—extent of his liability—impeaehmg guarddcm’s report. If a guardian makes fictitious reports to the county court, falsely charging himself with money not in fact due from him to his ward, for the fraudulent purpose of making his surety liable, a court of equity will doubtless interfere at the suit of the surety to correct such reports, and make them conform to the truth as to the amount of money in fact owing by the principal.</p> <p>2. Where, at the death of a guardian, the funds of his ward were in the hands of the attorney of the guardian, who, as the attorney also of the executor of the guardian’s estate, had the same inventoried by the executor as coming to his hands, and such attorney, on being appointed as guardian of the ward, procured the allowance of a glaim against the estate of the former guardian in favor of the ward for such sum, and afterwards reported to the county court the receipt of the amount of such claim as paid by the executor, when, in fact, no money passed between them, it was held, that the surety of the guardian could not have such report set aside as fraudulent, simply because no money, in fact, passed from the executor to the guardian. The charge made against the guardian in such case would not be regarded as fictitious, he being in fact liable in such amount to the ward.</p> <p>3. Where one being liable for trust funds to an infant is appointed guardian of the infant, and in his report to the county court charges himself with such money as then in his hands, the surety of the guardian will not be permitted to exonerate himself from liability as to such money by showing that the person who had thus become guardian had squandered the same before his appointment.</p> <p>4. Subrogation—in favor of swrety of guardian. The surety of a guardian who is compelled to pay money to a succeeding guardian of a ward, will in equity be subrogated to all the rights of such succeeding guardian against other persons for the same money.</p>

O. A. Harker, Judge, presiding. This was an action of assumpsit, brought to the December term of the Jackson circuit court, upon a county order issued by the county board of Jackson county to Isaac Rapp, dated December 24, 1877, and assigned to the plaintiff. A jury was waived and the cause tried by the court, who rendered judgment for $500, refusing to allow interest upon the order.

<p>1. Deed-—impeaching and overcoming certificate of acknowledgment. To impeach the certificate of the acknowledgment of a deed, the proof must show a conspiracy between the officer taking the acknowledgment and the grantee, or that the officer practiced imposition or fraud upon the grantor, and the testimony of the grantor alone is not sufficient to overcome the certificate and the officer’s testimony in support of the same.</p> <p>2. As between the immediate parties to the deed, the acknowledgment may be impeached for fraud, collusion or imposition, but not otherwise;-— and the evidence to warrant the setting aside of a deed upon the ground that the acknowledgment was obtained through fraud, collusion or imposition, must, by its completeness and reliable character, fully and clearly satisfy the court that the certificate is untrue and fraudulent.</p>

<p>1. Practice—appeal—reviewing controverted questions of fact. In a suit to recover a penalty for obstructing an alleged highway, depending upon the question of fact whether land at the place obstructed had been dedicated for a public road, this court, on appeal or error, is concluded by the finding of facts by the Appellate Court, and can only review questions of law properly preserved in the record.</p> <p>2. Same—allowing security for costs after motion to dismiss. There is no error in allowing a plaintiff in an action upon a penal statute to file security for costs after a motion to dismiss the suit for want of such security.</p>

Wbit of Ebbob to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.

<p>1. Election—irregularities in conducting are not fatal. Mere irregularities in conducting an election and counting the votes, not proceeding from any wrongful intent, which deprive no legal voter of his vote and do not change the result, will not vitiate the election, so as to justify the rejection of the entire poll of the town or precinct in which the irregularities occurred.</p> <p>2. The failure to number the ballots cast at an election, and to count the votes in the manner required by the statute, and to string the ballots on a thread or twine in the order of their reading, and the allowance of persons not judges or clerks of the election to assist in counting the votes, and the presence of persons in the room during the count not challengers or officers, where nothing appears to show any injurious effect, or that the votes were not truly counted, will not justify the court, on a contest of the election, to exclude.the entire poll and vote of a town as fraudulent and void. The rules prescribed by the statute in respect to these particulars are directory merely,— not jurisdictional or imperative.</p>

<p>Appeal from the Appellate Court for • the Third District;— heard in that court on appeal from the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.</p>

C. B. Smith, Judge, presiding. Appellees filed their bill in equity in the circuit court of Piatt county against appellants, alleging that appellee Calvin B. Smythe was the owner of certain lots therein described, which he, with his wife, the appellee Aramentia M. Smythe, occupied as a homestead; that on October 4, 1875, appellees executed a mortgage on said premises to the appellant the Monticello Mutual Building, Loan and Homestead Association, to secure the payment of a…

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Gass county; the Hon. Cyrus Epleb,. Judge, presiding.</p>

<p>1. Limitations—partial payment—implied new promise therefrom— joint debtors—partial payment by one—effect as to co-debtor. In order to remove the bar of the Statute of Limitations in respect to a debt, there must be a new promise to pay the debt. But to bind a party to a new promise there must exist the elements essential to a new contract, .express or implied. There must be such circumstances as will reasonably authorize an inference of an intention to waive the bar of the statute. There must be affirmative action or conduct designed to prospectively affect the rights of the parties to the prior contract.</p> <p>2. This new promise may be implied from the fact of a partial payment made after the bar of the statute has become complete, by the party originally chargeable. But in order to authorize the inference of a new promise from the fact of such payment, the party making the payment, and sought to be charged thereby, must have had an affirmative intention in making the payment, and that it should be applied to the particular debt.</p> <p>3. In respect to the effect to be given to the making of a partial payment, as authorizing the inference of a new promise, payment before the bar is complete, thereby arresting the running of the statute so that it shall commence to run anew, and payment afterward, whereby the bar of the statute is removed, rest upon precisely the same principle. In either case, if the running of the statute is arrested, or if the bar already complete is removed, it is because of the new promise, express or implied, and it is that new promise,'—i. e., contract,—resting upon the consideration of the old debt, where the statute is pleaded, that is replied to take the case out of the statute. In either case the same elements of contract must exist.</p> <p>4. It is doubtless the law that joint debtors, in matters respecting their joint indebtedness, may, to a certain extent, bind each other by their admissions,—but this can only be as to facts affecting rights or remedies then existing. The admissions must relate to matters showing what are the terms of a contract already made, or whether it has been performed or otherwise discharged. The idea, however, can not be sanctioned, that a co-debtor, merely because he is such, has authority to bind his associates to a new contract, although it may be in regard to the old debt.</p> <p>5. In the case of joint debtors, therefore, a partial payment by one, without the knowledge or assent, or subsequent ratification, of the others, will not operate to bind the latter so as to authorize the inference of a new promise on their part, and therefore will not affect the defence of the Statute of Limitations as to them.</p>

<p>Writ of Error to the Circuit Court of Clinton county; the Hon. George W. Wall, Judge, presiding.</p>

<p>1. FrauduiiEnt conveyance—to hinder and delay creditors—secret trust. A debtor can not convey real estate to another, to be held, wholly or in part, in secret trust for himself, so as to cut off the rights of existing creditors;—for although such a transaction may be upon a valuable consideration, yet it lacks the element'of good faith. While it professes to be an absolute conveyance on its face, there is a concealed agreement between the parties to it inconsistent with its terms, securing a benefit to the grantor at the expense of those he owes. A trust thus secretly created, whether so intended or not, is a fraud on creditors, because it places beyond their reach a valuable right, and gives” to the debtor the beneficial enjoyment of what rightfully belongs to them.</p> <p>2. Where the secret trust reserves to the grantor future support, the gist of the objection to the transaction consists, not in the amount to be paid to the grantor on that account, but in the fact that the promise of future support forms part of the consideration as an inducement to the transfer. Where it is shown that the present consideration is inadequate tp satisfy his debts, whatever may be the amount secured to the debtor, the law, instead of endeavoring to determine what part of the consideration is money or other property, and what part is to be paid in future support of the grantor, and holding the grantee responsible for the latter sum, will treat the conveyance as a nullity, as between the grantee and the creditors of the grantor, and hold the property liable for their claims.</p> <p>3. Same—evidence in rebuttal. Evidence is admissible, however, upon the question of fact whether a secret trust really does exist. If the future ' support provided for was a mere gratuity tendered by the grantee, then it would be subject to be revoked at any time, and could not, even as between them, create a trust. But, presumptively, where the future support of the grantor is reserved, it represents an equivalent value in the property conveyed,—so the burden is upon the grantee to overcome such presumption by a clear and satisfactory preponderance of evidence.</p>

This is an application to this court for leave to file a petition for a writ of mandamus to compel the circuit court of Will county to enter an order granting a change of venue in a cause therein pending.

At the March term of this court the appellee entered his motion for a rule upon the appellant to give an additional appeal bond in a larger sum. At the present term the appellant moves to discharge the rule entered under the prior motion.

<p>Practice in the Supreme Court—changing judgment at a subsequent term. A motion to vacate an order entered at a preceding term denying a petition for the rehearing of a cause in this court, will not be entertained. The term at which the order was entered having passed, this court has no power to change its judgment, or to entertain any motion to that end.</p>

This was an information in the nature of a quo warranto, brought in the name of the People, on the relation of Henry Linnemeyer, against. James J. McGrath, charging him with usurping and intruding into the office of alderman of the 14th ward of Chicago. On the hearing of the cause in the court below judgment of ouster was pronounced.

This was an' action on the case, brought by Hankins, in the circuit court of McHenry county, against the defendant ' company, to recover damages, laid in the declaration at §1500, for the killing of a mare on the defendant’s road, claimed to have resulted from the negligence of the company’s servants in' running a train. A trial in the circuit court resulted in a judgment for the defendant. The plaintiff appealed to the Appellate Court, where that judgment was affirmed.

Upon the affirmance of the judgment of the Appellate Court, a petition for a rehearing was filed, and a stipulation by the parties to change the record so as to present a different case for consideration.

Writ oe Error to the Appellate Court for the Second District. Moshier, the plaintiff in error, in 1874, held against Shear notes upon which, according to the face of the notes and the indorsements, there was due on the 9th of March, 1867, the sum of $400, and this sum was claimed by Moshier to be due from Shear, with interest from March 9,1867. Shear, on the other hand, claimed that Moshier, on a settlement of accounts, would owe him over $1000.

This was a suit in chancery for the foreclosure of a mortgage upon real estate. Mr. C. B. Garnsey, for the appellee ' Knox, moved the court to dismiss the appeal for want of jurisdiction, there not being a freehold involved in the suit, and none of the other conditions necessary to give this court jurisdiction of the appeal, existing.

This was an application to this court for leave to file a petition for a writ of mandamus to compel the Governor to call an. election. . .

Mr. B. F. Herrington, for the appellees, entered a motion for leave to withdraw the record in this casé from the files of this court, for a sufficient length of time to use the same in the Appellate Court in support of a motion in that court to tax certain unnecessary portions of such record against the appellants.

Writ of Error to the Circuit Court of Peoria county. This was a suit in chancery to foreclose certain mortgages, in respect to which there was a question as to priority. One of the mortgagees also sought to have his mortgage reformed in respect to the omission of a tract of land which was intended to be included therein. About this alleged mistake there was no controversy.

Upon the rendering of a decision in this case at a former term of this court, the appellee filed a petition for a rehearing, which was fully considered, and denied. Now a second petition for a rehearing is filed by the same party. The appellants move that it be stricken from the files.

Writ of Error to the Circuit Court of Cook county. On the 7th day of July, 1877, the Auditor of Public Accounts filed in the circuit court of Cook county a petition for the dissolution of the Chicago Life Insurance Company, under the act of 1874 on that subject.

In vacation after the January term, 1878,—on the 24th of June, 1878,—an opinion was filed in this cause, reversing the decree of the court below, and remanding the cause for farther proceedings in conformity with that opinion,—and judgment wTas entered accordingly. Subsequently a rehearing of the cause was granted, under the rules of this court, and a re-argument was heard at the January term, 1880.

There was a joint resolution passed by the Senate and House of Representatives of the Thirty-first General Assembly, which convened on the 8th day of January, 1879, as follows: “Resolved, by the Senate of the State of Illinois, the House of Representatives concurring herein, That there shall be submitted to the voters of this State, at the next election for members of the General Assembly, a proposition to so amend the eighth (8) section of the tenth (10) article of the…

This was an application to this court for a writ of mandamus. This ease, and the preceding ease of The People ex rel. Lynch v. The Board of Supervisors of LaSalle County, being of like character, were argued together as one case.

<p>1. Fobeolosube—right to fund arising from sale on foreclosure. Where a decree for the foreclosure of a mortgage on railroad property, and a sale, provides that the proceeds of the sale shall be brought into court to await the further order of the court as to its distribution, saving the rights of all persons in the fund for future determination, a party may, on petition, after such sale and before a distribution is made, have an order to pay him out of the fund any moneys to which he may be entitled as having been advanced to save the mortgaged property from levy and sale for taxes due thereon, which were a prior lien, before payment to the other creditors.</p> <p>2. Same—taxes paid by mortgagee to save property from sale. Where a deed of trust on railroad property provides that the mortgagor shall pay the taxes on the property, a creditor secured by the trust deed may, as a mortgagee, pay such taxes when the mortgagor fails to pay the same, and in such case he will, as to the taxes so paid, have a prior lien in equity upon the mortgaged premises or on the fund arising from their sale on foreclosure.</p> <p>3. Practice—objection to evidence for vndefiniteness and want of particularity. The objection to a party’s testimony as to the taxes paid by him upon railroad property, giving only the sums paid and when paid, that it is not sufficiently definite, in failing to show the amount of the taxes due and paid to the collector of each county through which the road was located, and for want of the production of the tax receipts, will not avail when the party objecting, on the cross-examination, fails to call for a detailed statement and for the tax receipts.</p> <p>4. Beheabing in chanoeby—not allowed if party is chargeable with negligence. A rehearing ■will not be granted in a chancery cause to a defendant, when, by the exercise of proper diligence, he might have produced all the facts on the hearing, relied on in support of the motion, nor when the application fails to show a meritorious defence.</p>

<p>Whit of Eeros to the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding.</p>

<p>li Appeal—does not lie except on final decree or judgment. A decree upon the verdict of the jury that a complaining wife is entitled to a separate maintenance from the defendant, declaring the wife to be so entitled, but not finding the amount to be paid, leaving that for future determination, is not a final decree from, which an appeal lies, but is only interlocutory.</p> <p>2. No appeal will lie from a merely interlocutory order or decree made in the progress of a cause, either at law or in equity.</p>

Edwin S. Leland, Judge, presiding. This is an action by Russell against Spradling and one Miller, brought to the October term, 1876, which began on the 9th day of that month. The summons was served on both defendants more than ten days before the return day. The declaration was filed twelve days before the term began. The first count was upon a promissory note alleged to have been made by defendants, to which was added the common counts.

<p>Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Circuit Court of Cook county.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. William H. Éarnum, Judge, presiding. This was a bill filed in the circuit court of Cook county by William M. Bailey, George B. Buggies and Amasa M. Eaton, trustees under the will of Sarah B. Eaton, deceased, praying that a certain tax deed executed by the clerk of the county court of Cqok county to Portia Gage, dated February 14, 1877, be set aside and cancelled as a cloud on the title of defendants in error.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.</p>

<p>1. Purchaser—sale of canal land by State officer to himself is not void. A sale of canal land by the treasurer of the board of canal commissioners, whose duty it was to sell the same, to himself, at the price fixed by law, is not void, and will pass the title, if not avoided by the State, and this can not be done in an action of ejectment. The sale can be set aside only in a court of equity, where the rights of all the parties in interest may be protected.</p> <p>2. Same—ratification of voidable sale maltes it good. If a sale of canal lands by an officer of the State to himself was voidable by the State, a subsequent ratification of it by the State will render the sale valid and binding, which ratification may be shown by the receipt by the State of the price, and returning the land as subject to taxation, and the collection of subsequent taxes thereon.</p> <p>3. Ejectment—legal title only considered. In an action of ejectment legal titles only are considered, and not equities. Therefore any sale of land by the State, though voidable in equity for irregularity, must prevail in a court of law.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Appeal from the Appellate-Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.</p>

Writ of Error to the City Court of Aurora; the Hon. Charles D. E. Smith, Judge, presiding. In 1855, Nahum Parkhurst and his son, Reuben Parkhurst, bought of one Ferris the tract of land, in the county of Kendall, to which this controversy relates, and it was conveyed to them jointly. They then executed a note and mortgage to Ferris for the sum of about $1000, being the purchase money, or a part thereof.

Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.

<p>1. AiiiMONY—allowance to wife to defend, etc., discretionary. The allowance of alimony to the wife for her support pending a suit for a divorce, to enable her to maintain or defend the suit, under the statute, as at common law, is discretionary; but this discretion is a judicial and not an arbitrary one, and is subject to review upon appeal or error.</p> <p>2. It is wholly within the discretion of the court to allow a wife temporary alimony in a suit against her for a divorce, before the filing of an answer by her, and its allowance after the expiration of the time allowed her to answer, is in effect a further extension of time to answer.</p> <p>3. Same—alimony for support of children pendente lite. The power given by the statute to the court to make such order concerning the custody of the minor children of the parties during the pendency of a suit for divorce, as may be deemed expedient and for the benefit of the children, includes power to make an order for the payment of a sum reasonably sufficient for their support pendente lite ; and the allowance of such a sum to the wife for the support of her child, is in effect an adjudication that she have the custody and care of the child during the pendency of the suit.</p> <p>4. Same—whether temporary alimony is excessive. An allowance of temporary alimony to a wife, during the pendency of a suit for divorce, will not be disturbed by this court unless clearly convinced that the amount is so excessive as to amount to an abuse of discretion. Such allowance is at all times subject to modification, to meet anynew and unforeseen circumstances.</p> <p>5. In this case the husband filed his bill for a divorce. The court made an order allowing the wife $200 for solicitor’s fee, and $19.23 per week for the support of herself and child pending the suit. The husband appeared to be worth $45,000 in property. The necessities of the wife were shown to be great. While" the allowance was considered to be full liberal, this court could not say it was excessive.</p>

<p>1. Continuance—for new counsel to prepane for trial. Where the defendant’s counsel, on the 16th day of the month, withdrew from the case, and on the same day other counsel were retained, who moved for a continuance to enable them to prepare for trial, which was refused, and the trial did not take place until the 23d of the same month, it was held, there was no abuse of discretion in denying the motion, calling for a reversal.</p> <p>2. Jubob—inquiry as to competency. A question to jurors asking them to state briefly their idea of the duties of a juror; with a view of ascertaining whether they were men of sound judgment and well informed, is not proper for that or any other purpose.</p> <p>3. Ebbob will not always bevebse—as to admission of evidence. A mere technical error in the admission of evidence of an unimportant character is no ground for reversal.</p> <p>4. Pleading and evidence. Evidence of what a flagman of a railroad company said and did at the time and just before a person about to take passage on a train was struck by another train passing on another track at a rapid speed, is pertinent in an action to recover for the injury, under an allegation that the company failed to keep a flagman at the spot to signal and warn of the approach of impending danger. Such allegation means more than that there was no flagman employed there.</p> <p>5. Instbuctions—one given by the court of its own motion may supersede others ashed. Where the court gives an instruction of its own in place of others refused, which fairly states the law of the case, the party asking those refused will have no cause of complaint.</p> <p>6. Negligence—instruction as to negligence of the plaintiff. Under peculiar circumstances going to excuse the plaintiff from taking the usually necessary precautions to avoid danger, an instruction in a suit to recover for a personal injury from a passing train at the intersection of the track with a street crossing, that if the plaintiff knew of the existence of the track at the place of the injury, and that trains frequently passed along the same, and could havedooked for and seen, or have listened and heard, the approaching train before going upon the track, and did not thus look and listen for the train, and that by reason of such neglect he failed to avoid the injury, may be properly refused, although ordinarily such an instruction should be given.</p>

Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Livingston county; the Hoñ. Franklin Blades, Judge, presiding.

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.</p>

Francis Goodspeed, Judge, presiding. This was an action brought by the Commissioners of Highways of the township of Dimmick, in the county of La Salle, against the Commissioners of Highways of the township, of Waltham, in the same county, to recover one-half of the cost of a bridge erected across Tomahawk creek, on the town line between the two towns.

<p>Appeal from the Appellate Court for the Second District;— heard in that court on writ of error to the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, pre-. siding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas Moran, Judge, presiding.</p>