Volume 101 — Illinois Reports

<p>1. AcknowiiEDgment—evidence to impeach. In the absence of evidence of fraud, conspiracy or overreaching of any kind, or anything casting a suspicion upon the integrity or honesty of the certifying officer, and when the certificate of acknowledgment of a deed is in conformity with the statute, it can not be impeached by merely negativing the facts therein stated.</p> <p>2. As between the former owner of land and an innocent purchaser under a deed of trust, before the title of the latter can be defeated by impeaching the truthfulness of the certificate of acknowledgment to the trust deed, the evidence must be clear and conclusive, excluding every reasonable doubt.</p>

<p>1. Criminal law—receiving stolen goods and concealing same for gain, etc.—proof necessary. . In order to convict, under sec. 239 of the Criminal Code, for receiving and aiding in concealing stolen goods for gain, or to prevent the owner from recovering the same, etc., it is essential, first, to show that the property alleged to have been received or concealed was in fact stolen; secondly, that the accused received the goods knowing them to have been stolen, guilty knowledge being an essential ingredient of the crime; and lastly, that the accused, for his own gain, or to prevent the owner from recovering the same, bought, received, or aided in concealing the stolen goods.</p> <p>2. Where the owner authorizes or licenses another to receive stolen goods, and such other person receives the goods from the thief knowing them to have been stolen, with a felonious intent, he will be guilty of a felony in receiving the property, notwithstanding the license.</p> <p>3. Same—receiving stolen property—must be with criminal intent. Where a defendant, on behalf of the owner, receives stolen goods from the thief, for the honest purpose of restoring them to the owner without fee or reward, or the expectation of any pecuniary compensation, and in fact immediately after obtaining their possession restores all he receives to the owner, and is not acting in concert or connection with the party stealing to make a profit out of the transaction, he will not be guilty, under the statute.</p>

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. John G. Rogers, Judge, presiding.

<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. J. A. Jameson, Judge, presiding.</p>

<p>1. Bipabian pbopbietok—on both sides owns the bed of the stream. A stream above the tide, although it may be navigable in fact, belongs to the riparian proprietors on each side of it to its center thread, unless the grant shows a contrary intention; and the only right the public has therein is an easement for the purpose of navigation. If the same person is the owner on both sides of a river, ho owns the whole stream to the extent of the length of his lands upon it. This is the rule of .the common law which has been adopted in this State.</p> <p>2. Same—rights of riparian proprietor to use of the water. A riparian owner has rights with respect to water in a running stream, which authorize the actual talcing of a reasonable quantity of the water for his own use for domestic, manufacturing and agricultural purposes. The limitation in extent of the use of the water is, that it shall not interfere with the public right of navigation, nor in a substantial degree diminish or impair the right of use of the water by a lower or upper proprietor, as it passes along his land.</p> <p>3. Same—rights of riparian owner, to ice on stream over his land. The just and reasonable use of the water which belongs to the riparian proprietor, in case of its being congealed into ice, would give him the unlimited use and appropriation of the ice as his exclusive property, of which he can not be deprived by a mere wrongdoer. The ice may be regarded as attached to the soil, and, like any other accession, may be considered as a part of the realty, and any stranger who enters upon the same and appropriates the ice to his own use, will be liable to the owner in trespass guare clausum, fregit.</p> <p>4. Measure oe damages—talcing and removing ice from stream over the land of another. Where a person takes the ice in a stream, over the land of another, to which the owner of the land has the exclusive right, the measure of damages in trespass for such wrongful taking is the value of the ice as soon as it is made a chattel,—that is, when scraped, plowed, sawed, cut and severed, ready for removal. The rule is analogous to cases where coal is wrongfully taken from the soil of another.</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. John A. Jameson, Judge, presiding.</p>

Wbit of Ebbob to the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding. - The plaintiff in error, the complainant below, owned a tract of land near Geneseo, -on which were several valuable springs. He conveyed it by trust deed to one Steel, to secure a debt of $3500 to one Young, which he was unable to pay, and the premises were advertised for sale by the trustee,— sale to be on Monday, February 17,1879.

<p>1. Chancery—laches—when a bar to relief. Equity will not assist a party who has not been reasonably diligent in asserting his rights. Stale claims will not be encouraged, since by the lapse of time there must of necessity be great difficulty in arriving at the exact facts of the case; and this rule will be applied as a bar to relief sought against a trustee.</p> <p>2. On a bill for the partition of land in which the complainants claimed an equitable title, and that the defendant held the legal title in trust for them, which bill was not filed until thirteen years after the defendant obtained his deed, under which he had ever since claimed the land against all others, the defendant in his answer set up the laches and delay of the complainants as a defence: Held, that the laches, unexplained, was such as to constitute a bar to the relief sought.</p> <p>3. Error will no.t always reverse—exclusion of evidence. The exclusion of the testimony of a defendant, when called by the complainants to prove facts occurring before the death of a common ancestor under whom both parties claim, if error, is no ground for the reversal of a decree dismissing the bill, where the laches of the complainants has been such as to bar any claim to relief.</p>

<p>Writ of Error to the Circuit Court of Cook county; • the Horn Murray F. Tuley, Judge, presiding.</p>

Joseph E. Gaby, Judge, presiding. This was an action on the case, brought by appellee against appellant, in the Superior Court of Cook county, in consequence of the negligence of appellant resulting in the death of her intestate.

<p>1. Guardian—leasing wards’ land—approval by probate court. A lease of property by a widow in her own right, and as guardian for her minor children, can not be avoided by the lessee for want of its approval by the probate court. A lease executed by a guardian in behalf of his wards for a term not exceeding their majority, is valid, unless disapproved by the probate court. The approval of that court is not essential .to the validity of the lease.</p> <p>2. Landlord and tenant—prior tenant holding over*—rights of the parties to the second lease. A lessee can not have his lease set aside and be released from his covenants to pay rent, from the mere fact that a prior tenant, whose term has expired, holds over, without right. The lessee, having the right of possession, should take legal steps to obtain possession against such prior tenant.</p> <p>3. Same—prior tenant in possession—acceptance of rent by landlord from second lessee. Where the assignee of a lease makes an arrangement with a prior lessee holding over without right, dismissing a suit for possession, whereby the prior lessee is to pay the same rent the lessee was to pay, the payment of such rent for several months by such prior tenant to the agent of the lessor, and its acceptance by him as payment of rent under the last lease, is no cause for setting aside such last lease and discharging the last lessee from his covenants to pay rent.</p> <p>4. Lease by an ineant—who may avoid it. A lease executed by a minor is not void, but. only voidable at his election, and the lessee can not set up the disability of the lessor to defeat the lease or be relieved from its covenants.</p>

<p>1. Evidence—on cross-examination—as to character of transaction between commission merchant and his customer—on ma/rgins. In a suit by a commission merchant or broker to recover of a person for whom a purchase was made, for loss on a re-sale, for want of putting up of a further margin, the defendant will have the right, on cross-examination, to inquire when, where, and in what manner the purchase was made for him, and whether the plaintiff has settled the purchase, and if so, what was paid, to whom, and the manner it was paid, to show whether the mode of dealing was fair, and free from fraud and injustice or wrong to him.</p> <p>2. A commission merchant has no right to adopt methods in making purchases for his customers that he may refuse to explain, or that are so intricate or tortuous that they are incapable of being explained to the full comprehension of an ordinarily intelligent jury.</p> <p>3. In a suit where the plaintiff claims that he made a contract for lard for the defendant, for future delivery, and that in consequence of the defendant’s failure to indemnify him against loss he was compelled to sell the lard, and pay the loss to the person from whom the purchase was made, and that he has paid and settled the loss, 'and has the right to recover the same of the defendant, the latter will have the right to learn the particulars of the entire transaction, on the trial.</p> <p>4. Practice in the Supreme Court—what may be assigned as error. On appeal from the last judgment of the Appellate Court in a case, this court cannot consider the propriety of the admission of evidence on a second trial in the lower court, under the prior ruling of the Appellate Court when the case was first before it.</p> <p>. 5. Error wild not always reverse—as to admission of evidence. The admission of evidence technically inadmissible, to prove a fact already proven beyond dispute by unobjectionable proof, the improper evidence not being calculated to mislead the jury, affords no ground for a reversal.</p>

<p>Wbit of Ebbob to the Criminal Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Stark county; the Hon. D. McCulloch, Judge, presiding.

• Appeal from the Appellate Court for the Second District;:— heard in that court on appeal from the Circuit Court of DuPage county; the Hon. C. W. Upton, Judge, presiding.

<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>

Writ of Error to the Appellate Court for the Second District heard in that court on writ of error to the Circuit Court of Kankakee county; the Hon. Nathaniel J. Pillsbury, Judge, presiding.

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

Thomas A. Moban, Judge, presiding. Appellee, on the 6th of March, 1876, brought his action on the case, against appellant, in the circuit court of Cook county, alleging his damages at $20,000, for injuries to the west half of lot'22, School Trustees’ subdivision of ^section 16, town 38, range 14 east, containing five acres, situated on the north-east corner of Fifty-ninth street and Stewart avenue, by reason of the location and operation of certain railroad tracks on said…

, Josiah McRoberts, Judge, presiding. Elizabeth Wright, on the 29th day of April, 1878, exhibited in the Will circuit court her bill in chancery, against Ellen McIntyre, Charles Hammond, John Gray, and Henry Prepenbrink, as sheriff, praying for the specific performance of a parol contract for the purchase of a tract of land alleged to have been made between complainant, the purchaser, and the said Hammond and Archibald McIntyre, the ancestor of ■ the said Ellen McIntyre, and…

<p>Appeal from the Circuit Court of Champaign county.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.</p>

This is a petition for a mandamus, filed in this court by Francis P. Gleeson, against George A. Meech.

Joseph E. Gary, Judge,presiding. This was an action of ejectment, by appellant against appellees, for certain real estate in the city of Chicago, tried in the Superior Court of Cook county. The plea was, hot guilty. Preliminary affidavit was filed showing that the parties O claimed from a common source of title—one Richard B. Appleby.

Writ of Error to the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.

Writ of Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of - error to the=Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding. This was an action of assumpsit, brought by T. E. Ells-worth, against A. E. Harmon, in the Champaign circuit' court, to the March term, A. D. 1880, upon his guaranty of a promissory note.

Writ oe Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

Writ of Error to the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding. Messrs. John M. & John Mayo Palmer, for the plaintiff in error, contended that under our statute an information would lie in a case like this. Prima facie the rules and regulations complained of are contrary to the policy of the State, are unreasonable, and are inconsistent with the laws.

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Ford county. Benjamin Berman made complaint before a justice of the peace against Benjamin F. Payne, charging him with threats against the person of the complainant.

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

<p>Appeal from the County Court of St. Clair county; the Hon. F. H. Pieper, Judge, presiding.</p>

William H. Snyder, Judge, presiding. This was a petition for a writ of mandamus, brought by-appellant, to compel the execution by appellee, sheriff of Randolph county, of a deed for the lands described in the petition, under substantially the following facts: At the September term, A. D. 1879, of the Randolph county circuit court, one Roxana Phillipps obtained a decree of foreclosure against James B. Vinson, Mary A. Vinson, Margaret Vinson, and Elizabeth Kelley, the heirs of…

This was an application in this court by the relator, against Jacob Gross, clerk of the circuit court of Cook county, for a mandamus to compel him to receive and file a certain paper entering the appearance of a number of defendants in a -certain cause in chancery, upon payment of $1.50 for all, which had been tendered to the clerk and refused by him, he demanding the- payment of the further sum of $36, and claiming he was entitled to the same under the statute, as fees for…

<p>1. Boundaeies—desobiption—mistake in surveyor’s certificate—controlled by monuments. A mistake in the surveyor’s certificate,'attempting to give a description of the land actually surveyed and platted into town lots, describing the town as being on a different quarter of the proper section, does not render the survey and subdivision of the property into lots and blocks uncertain, and for that reason void, when the monuments planted by the surveyor at the time of the survey, fix the boundaries of the survey definitely and certainly.</p> <p>2. It is well settled law that the monuments established by a surveyor at the time of “making the survey, will always prevail over written descriptions, when a contradiction exists.</p> <p>3. Description—of its sufficiency, generally. Any description of land or a lot, for purposes of .taxation, by which it may be identified by a competent surveyor with reasonable certainty, either with or without extrinsic evidence, is sufficient.</p> <p>4. Taxation—personal judgment for taxes—its effect upon the lien— and the right to a judgment against the land,. The recovery of a personal judgment by the State, against the owner of real estate for taxes due thereon, does not discharge the lien given by the statute for such taxes, and hence is no bar to an application by the collector for judgment against the property. The State may have a personal judgment against the owner for the taxes, and at the same time, or at any other time, enforce payment against the land itself by a proceeding in rem; but the payment of either judgment will be a satisfaction of both.</p>

W. H. Snyder, Judge, presiding. The bill in chancery in this case alleges that Marion D. Hoge was collector of taxes of Franklin county for the year 1867; that on December 5, 1867, he gave bond, as required by the statute, for the faithful performance of his duties as such collector, which was duly approved and recorded, and that the bond was signed by the complainants, and Daniel Mooneyham and Lewis G. Payne, as sureties for Hoge; that there came to the hands of Hoge, as…

William C. Jones, Judge, presiding. Andrew Darling, in and by his last will and testament, appointed Adaline Darling, Robert Byers, and Samuel C. Clubh, to be executors of the same. After his death, and on the 28th day of April, A. D. 1874, letters testamentary, in due form of law, were thereupon granted to them by- the county court of Richland county, and they then duly qualified as such, and entered upon the administration of the estate.

<p>Writ of Ebbob to the Circuit Court of Randolph county ; the Hon. Amos Watts, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Madison county; the Hon. George W. Wall, Judge, presiding.

<p>1. Insolvent debtors—discharge from arrest or imprisonment—malice as “the gist of the action." The word “malice,” in sec. 2, ch. 72, Rev. Stat., éntitled “Insolvent Debtors,” implies a wrong inflicted on another with an evil intent or purpose. It requires the intentional perpetration of an injury or wrong on another. Such intention to commit the wrong is necessary to deprive the party of the right to a discharge from arrest or impiisonment under the act.</p> <p>2. A party shipped a lot of hogs to commission merchants in Cincinnati for sale, taking a bill of lading from the railroad company, after which he applied for and obtained a loan of $400 from a bank, giving the bank a sight-draft on the commission merchants for that sum, and pledging the bill of lading, which he attached to the draft, and then, before the draft was presented, collected the entire sum due from the commission men, leaving nothing to pay his draft, which was protested: Held, that his act in collecting the money, after giving the draft, was an intentional wrong, little, if anything, short of a criminal act, and was malicious, in the statutory sense.</p> <p>3. So where a judgment was recovered in an action on the case based upon such cause of action, and upon the non-payment of the judgment a capias ad satisfaciendum was issued, under which the defendant was arrested and imprisoned, it was held, that by reason of his wrongful act he could not avail of the provisions of the Insolvent Debtor’s act to "obtain his discharge from the imprisonment.</p> <p>4. Action—what is the gist. The gist of an action is the cause, ground or foundation of the suit, without which it will not lie, or in other words, the ground essential to give rise to a cause of action.</p> <p>5. Same—when malice is of the gist. If a party wrongfully and dishonestly draws money of his own in the hands of another, after giving a draft for the same to one who advances him the money upon it, the fraud so practiced upon the party advancing him the money is of the essence or foundation of an action on the case against him, and is malicious; within the statutory sense of that word, as used in section 2 of the Insolvent Debtor’s act.</p>

Writ of Error to the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding. William P. Hall, now deceased, in his lifetime was the owner of the patent title to the south-west quarter of the south-west quarter of section twenty-eight (28), in township four (4) north, of range seven (7) west of the third principal meridian.

<p>1. Eminent domain—lawfulness of possession obtained under the act— before and after a reversal. After an appeal had been prayed and allowed in favor of the land owner, in a proceeding to condemn his land for a right of way, in which his compensation had been fixed by a jury, the railroad company seeking the condemnation paid the sum found by the jury to the county treasurer, and gave the proper bond, as required by the statute, to give a right to enter upon the land. Before the judgment in the proceeding was reversed, on the appeal to this court, the land owner accepted the money deposited with the treasurer, which he never offered to return, and without causing the remanding order to be filed and the cause redocketed for further proceedings brought ejectment against the lessees of the railroad company for the land used as a right of way: Held, that as the possession, when first taken, was lawful, the mere reversal of the judgment without taking any further steps, or returning or offering to return the money paid, did not render the continuance of such possession unlawful, and that the action could not be maintained.</p> <p>2. The reversal of a judgment condemning land for a right of way, on appeal by the land owner, will not divest the possession of the corporation procuring the condemnation lawfully obtained, or render its continuance unlawful. It has no effect whatever upon the right of possession. In such case, if the land owner deems the compensation allowed and paid to him as insufficient, he should, within two years after the reversal, have the cause remanded and docketed, giving the proper notice, and have another trial. If he fails to do so, and retains the sum paid him, he may be regarded as abandoning any claim for further compensation.</p> <p>3. Ejectment-—must be an unlawful entry and unjust detention. The action of ejectment proceeds for1 the possession of premises, claiming that they have been unlawfully entered and unjustly withheld, and facts which go to disprove these, make a legal defence.</p>

<p>Writ of Error to the Circuit Court of Williamson county; the Hon. Monroe C. Crawford, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Clay county; the Hon. William C. Jones, Judge, presiding.

<p>1. Divorce—alimony—decreeing husband’s land to wife. On cross-bill by a wife for a divorce from her husband, it appeared that the husband’s real and personal property was worth about $26,000. On granting the divorce the court gave the wife, for herself and two children, as alimony, $3000, to be paid in ninety days, and a like sum to be paid in eighteen months, and by the decree gave her the title in fee to 160 acres of his land. On petition-of the husband for a modification of the decree, it appeared that he had paid a judgment to the wife’s father of $1390 for her support; that he had paid "the first $3000, and the other $3000 had been paid by a sale of 210 acres of his land, which sale had passed redemption; that the balance of his lands was incumbered by a claim of dower held by his mother, and that the income derived from them was small, and that the value of the lands had decreased thirty per cent since the final decree; and that none of his property had been derived from or through his wife. The petition was denied; Held, that it was error to decree the wife the quarter section of land, and that the $6000 allowed by the court was quite as large a sum as should have been allowed.</p> <p>2. Where the husband has obtained no money or property through his wife, and she has contributed nothing to make the property, the court is not justified, on any principle, in decreeing to the wife the title in fee to a portion of his lands, on a divorce. It might be otherwise if the wife, at the time of the marriage, or during coverture, acquired money which passed into the hands of the husband, and he invested it in real estate.</p>

Writ op Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.

<p>1. Delivery or deed—essential to its validity. A delivery is essential to render a deed operative, and it does not take effect until it is delivered. Without delivery it is void.</p> <p>2. Same—what amounts to a delivery—to whom, it may he made. The delivery of a deed may be to the grantee or to his agents, and no particular form or ceremony is necessary to constitute a sufficient delivery. It may be by acts, or words, or both; but what is said or done must clearly manifest the intention of the grantor and of the grantee, that the deed shall at once become operative, to pass the title, and that the grantor shall lose all control over it.</p> <p>3. Where a deed is executed and delivered to a stranger, to be delivered to the grantee, without conditions, it will be a sufficient delivery to pass the title; but the execution of a deed, and having it recorded, without'the knowledge of the grantee, is not a delivery.</p> <p>4. When the facts show that the grantor did not intend to lose control over the deed, and he still continues to have power over the title without the consent of the grantee, there is not such a delivery as the law requires to render it a deed, and it can not pass title.</p> <p>5. So, where a father made and acknowledge! a dee! to his two minor children, but retained it until his death, and declined to have it recorded, on the express ground that he would thereby place the title beyond his power or control, and expressed ah intention, after he had made and acknowledged the deed, to sell the land if he could get a certain price, and in pursuance of that intention did offer to sell the land, it was held, that the deed was inoperative for want of a delivery.</p> <p>6. Judicial sale—party can not impeach, and still retain the proceeds. A party can not impeach a sale of his interest in land, under a proceeding by his co-tenants, when he has received and retains his share of the proceeds, on any ground, either for want of jurisdiction in the court ordering the sale, or for any irregularity in the sale. He who seeks equity must do equity. Before he can be heard to deny the validity of the sale he should restore, or offer to return, the money so received by him.</p>

<p>1. Homestead—as to the character of the exemption. Under the Homestead law of 1873, “all right and title” which the head of the family has in the premises which constitute his homestead, is exempted from forced sale for the payment of his debts, or other purposes. It is not the mere right of occupancy, but it is the lot or ground occupied as a residence that is exempted.</p> <p>2. "Where the homestead premises do not exceed in value $1000, there can he no valid sale of the property itself on execution or decree for the payment of debts or other purposes, and this exemption, on the death of the householder, is continued in force as to his widow and children, precisely as held by him.</p> <p>3. Same—exempt from administrator’s sale. No sale can he rightfully made of the homestead by the administrator of the deceased householder to pay his debts, when the property does not exceed in value $1000, until the exemption in favor of the widow and minor children has been in some mode terminated; and if such a sale is made, a court of equity has the power to set the same aside at the instance of the homestead occupant. The homestead, when not exceeding $Í000 in value, can not even be sold subject to the homestead right.</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. D. M. Browning, Judge, presiding.</p>

<p>Writ of Error to the County Court of St. Clair county; the Hon. Frederick H. Pieper, Judge, presiding.</p>

<p>Appeal from the County Court of Alexander county; the Hon. Reuben S. Yocum, Judge, presiding.</p>

<p>1. Becobding act—of the rule of priority. A mortgage on land was not recorded until after a conveyance by the mortgagor was made to a person having notice of the mortgage, which deed was recorded, and not until after a conveyance was made by such grantee to another who had no notice of the existence of the mortgage, the mortgage being recorded a few days after the malting of the second conveyance. On bill to foreclose the mortgage, such last grantee failed to produce his deed, or show when it was recorded: Held, that as the evidence did not show such second conveyance was recorded prior to the recording of the mortgage, it could not take precedence over the mortgage.</p> <p>2. Under our recording laws, the instrument first on record takes priority, without regard to the time of its execution. So, a subsequent deed will not take effect to cut off a prior mortgage, unless it is first put upon record.</p>

<p>Appeal' from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court.of Pope county; the Hon. Daniel M. Browning, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Richland county; the Hon. William C. Jones, Judge, presiding.

<p>1. Former adjudication—as to homestead right. Where in a suit in which the heirs and devisees of a deceased owner of land, occupied by him as a homestead, are parties, the premises are set off to the widow of the deceased as her homestead, this is an adjudication that up to that time she had not lost her homestead by abandonment.</p> <p>2.. Homestead—not abandoned by a sale. The alienation of the homestead by a widow after it has been set off to her, does not constitute an abandonment of it, but her grantee may hold the same against the heir.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.

<p>1. Limitation—possession to defeat legal title. Adverse possession sufficient to defeat the legal title must be hostile in its character, and continue uninterruptedly for twenty years.</p> <p>2. Same—under the act of 1835. To make seven years possession by actual residence a bar to the recovery of land, under the Limitation act of 1835, the party must show that during such possession he had a connected title, in law or equity, deducible of record from this State or the United States.</p> <p>3. Same—under act of 1839—payment of taxes. Where the record shows that both parties in an action of ejectment have paid the taxes on the land in suit for seven years prior to the suit, without showing which paid first, a defence is not made out under the Limitation law of 1839. The burden of proof is upon the defendant setting up the statute, to show that he paid such taxes before the plaintiff. The party paying first in any year is the one who has paid the taxes of that year.</p>

David McCulloch, Judge, presiding. On May 21, 1864, the Peoria, Pekin and Jacksonville Railroad Company executed its 1200 coupon bonds, payable to Francis Cooley, or hearer, of which 800 were each for $1000 principal, and 400 were each for $500 principal, and they all bore interest, payable annually, at the rate of seven per cent per annum, after January 1, 1865, and the principal was payable July 1, 1894. These bonds were numbered consecutively, from 1 to 1200.

<p>1. Evidence—under general issue in assumpsit. Under the general issue in assumpsit it devolves upon the plaintiff to prove the defendant’s promise, as charged in the declaration, by direct proof, or to show by the evidence a state of facts from which the law will imply such promise.</p> <p>2. Pleading—sufficiency of declaration admitted by pleading the general issue. By pleading the general issue in assumpsit the defendant, as a general rule, impliedly admits the legal sufficiency of the declaration, and the right of the plaintiff to recover upon proof of the facts therein charged. But there are cases in which, notwithstanding this implied admission, the declaration will be insufficient- to support a judgment for the plaintiff.</p> <p>3. Appeals—reviewing questions of fact by Supreme Court. The decision of the Appellate Court upon all questions of controverted fact is made final and conclusive upon this court by the statute, except as to certain classes of cases enumerated therein.</p> <p>4. The statutory provision making the judgments of the Appellate Courts “final and conclusive as to all matters of fact in controversy, ” embraces not only the principal facts upon which a right to recover is claimed, but also the evidentiary facts, or facts which are mere evidence of the principal facts,—in other words, it includes the ultimate facts to be proven on the trial, together with all subordinate facts offered as evidence of their existence.</p> <p>5. Same—inference as to»the facts from a finding against plaintiff. Where an issue of fact is found against the plaintiff by both the circuit and Appellate courts, the legal inference is that the plaintiff failed to prove the principal facts upon which his right to recover rested,—in other words, that the evidentiary facts did not sustain the principal or ultimate facts.</p> <p>6. Same—decision of Appellate Court not conclusive on questions of law. y, during the progress of a trial, the court improperly admits or excludes evidence, or otherwise commits error, except in passing upon questions of fact in its final determination, and such erroneous ruling or other error is preserved in the record, and the Appellate Court fails to correct it, it may be done in this court.</p> <p>7. Practice—mode of presenting and preserving questions of law on a trial by the court. On a trial by the court alone, if the counsel, has any doubt as to the correctness of the view of the law of the case as held by the court, he should prepare and submit written propositions of law as he understands it, to be held or refused by the court, and thus preserve for review any erroneous view of the law applicable to the case which the court may entertain.</p> <p>8. Same—general objection to evidence—what it will embrace. Objections of a general character to the admission of evidence will be regarded as going only to its competency or relevancy.</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. George Gardner, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding. Frisbie and Eappleye were partners, doing business as such, in Chicago. John Seely Wallace was the father-in-law of Eappleye.

M. F. Ttjlby, Judge, presiding. This is a proceeding in chancery, instituted by Miner and others, constituting a mercantile firm of Boston, as creditors of Eli D. Terry, deceased, to set aside certain deeds made by Terry and his wife, during his life, to Caroline A. Jackson, the appellant. The first deed called in question is a conveyance of a lot and dwelling house known as 1393 Indiana avenue, in Chicago, alleged to have been made about December 21, 1871.

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. D. McCulloch, . Judge, presiding.</p>

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.</p>

Mason B. Loomis, Judge, presiding. ■ Mr. Wm. C. Gotjdy, for the appellant, contended that the five acres which is taxed was real estate on which an institution of learning is located, within the meaning of the statute, and consequently, exempt from taxation. The division of it from the other land does not change its character. ' The exemption is of all the property of an institution of learning, and not merely of. the real estate on which the institution is located.

William Brown, Judge, presiding. Bill was filed in the circuit court of Ogle county, by Isaac M„ Mallory, Daniel Shockley, and Samuel L. Bailey, tax-payers of the town of Flagg, 'in Ogle county, against the Chicago and Iowa Railroad Company, and certain officers of said town of Flagg, to enjoin the issuing to the Chicago and Iowa Railroad Company of $50,000 of the bonds of the town, payable ten years after date, and bearing interest at the rate of ten per cent per annum,…

<p>National banks—who is a “shareholder” that is made liable for debts of bank. While it may be true that a bank organized under the National Banking law may not be bound to admit a purchaser of shares of stock in the association to all the rights and liabilities of the prior holder, unless the transfer is made on the books of the bank in the manner prescribed by the by-laws or articles of association, yet where it does issue certificates of shares to a subsequent purchaser in lieu of the certificates of the prior owner, without observing its by-laws, so far as creditors of the bank are concerned a party taking and holding such shares of stock will be subject to the liabilities imposed by section 5151 of the National Banking law.</p>

Murray F. Tuley, Judge, 'presiding. In April, 1873, A. D. Waldron became treasurer of the village of Hyde Park, and entered upon his duties as such. He continued to hold the office (being from time to time selected as his own successor) until May, 1878, when he was succeeded in that office by Geo. A. Follensbee.

John Burns, Judge, presiding. This was a proceeding, by petition of .Jacob Darst, for the partition of certain real estate in the city of Peoria. The property originally belonged to George Morton, through whom all the parties to the record claim, and the controversy in the case turns upon the construction to be given to a deed executed by him of the premises in 1852.

<p>1. Insurance—policy construed as to time offwrnishing proofs of loss. Where an insurance policy provides, that “in case of loss assured shall forthwith give notice of said loss, * * * and as soon after as possible render a particular account of such loss,” the words “forthwith," anti “as soon as possible," will be construed to mean within “a reasonable time,” “without unreasonable delay,” and are the equivalent of “due diligence."</p> <p>2. Same—delay to furnish proofs, when unreasonable. A policy of insurance required that notice of a loss should be given forthwith, and proofs of the particulars of the loss rendered as soon thereafter as possible, and payment was not to be made until sixty days after such proof. No attempt was made to furnish the company such proofs for more than nine months after a loss, and no excuse was shown for the delay:. Eeld, that the delay was unreasonable, and that no recovery could be had on the policy.</p>

John A. Jameson, Judge, presiding. On the 28th of May, 1874, Martin 0. Walker died intestate, leaving Martha A. Walker, his widow, and Samuel 0. and Edward S. Walker, his only heirs. At the time of Walker’s death he was the owner in fee, subject to certain incumbrances, of several pieces of land in the city of Chicago, Cook county, including what is known, respectively, as the Fort Dearborn and the Ellis avenue property, the latter being the property now in controversy.

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. John Y. Eustace, Judge, presiding.</p>

<p>This is an information presented to this court, in the name of the People, against Samuel Appleton, an attorney of this court, for the purpose of having the defendant’s name stricken from the roll of attorneys. The defendant filed his answer, and also took exception to the sufficiency of the information, by way of demurrer thereto, and thereupon moved the court to set the cause down for hearing on oral argument upon the demurrer.</p>

This was a proceeding in the court below .to condemn land for a right of way for a railroad over the premises of appellee. The railroad company appealed. A motion is now made on behalf of the appellee to dismiss the appeal for the want of jurisdiction in this court, it being insisted the appeal should have been taken to the Appellate Court. Messrs.

A petition for a rehearing of this cause was filed in behalf of the defendants in error, in vacation preceding the March term, 1882. At that term counsel for the petitioners asked leave to file additional suggestions in support of the application for rehearing.

Pending an application for a re hearing of this cause, counsel for the plaintiff in error entered the following motions: First—To receive and file the additional transcript herewith presented, as part of the record in the above entitled cause, and to consider the same in connection with the transcript already filed, upon the assignment of errors alleged thereon.

The original opinion in this case was filed in vacation preceding the September term, 1881. The defendant in error filed his petition for a rehearing of the cause, under the 0 rules of this court, which was considered at that term, and denied, the court, however, taking occasion to modify, in some respects, the language of the opinion previously filed, but adhering to its decision already made.