Volume 102 — Illinois Reports

Murray F. Tuley, Judge, presiding. This was a bill in equity, filed by William M. Bailey, Geo. B. Buggies, and Amasa M. Eaton, trustees, under the will of Sarah B. Eaton, deceased, to set aside a sale and conveyance of certain lots for the taxes of 1872.

Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. Mr. Edward Roby, for the plaintiff in error. Mr. John P. Wilson, for the defendant in error John V. LeMoyne.

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

Wbit of Ebbob to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.

Thomas A. Moran, Judge, presiding. This was an action upon a policy of insurance, to recover for a loss upon a building in the city of Chicago.

<p>1. Statute op Frauds—sale of land by agent—of the writings required. Under recent legislation an intent is shown not to relax, but to increase, the rigor of the Statute of Frauds, by not only requiring the authority of an agent for the sale of land to be in writing, and signed by his principal, but that there shall also be a memorandum of the sale in writing, and signed by the agent.</p> <p>2. Same—authority of agent—effect of certain letters to a third person—and a telegram to the alleged agent. A letter by an owner of real estate to his son, saying: “I wrote to F. if I could get a fair price I would sell,—might rent if I found a satisfactory tenant, ” aside from its ambiguity in not referring to any specific property, can not, by any known rules of construction, be held to confer the slightest authority on F. to sell the "writer’s property, especially when he afterwards went to F. and arranged verbally for him to fix the price, commissions, etc., and will not satisfy the requirements of the statute.</p> <p>3. Neither does a subsequent letter by the owner to his son, saying: “If you can see F. say to him, if he can not get A. up to my figures, to hold him till I return, when I can help the sale, j>erhaps,” nor his telegram to F. in reply to an inquiry, “Will you accept $10,000 net? Must know immediately, ” to “Hold on; will be home to-morrow noon; see my son,” confer any sufficient authority in writing, under the statute, to F. to make a sale of the party’s property. They show at most only that F. was employed to" solicit and negotiate for prices, but not to make any binding contract for the sale of the property.</p>

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

<p>1. Action—where, none lies for an injury. Where a thing not malum in se is authorized to be done by a valid act of the legislature, and it is performed with due care and skill, in strict conformity with the provisions of the statute, its performance can not be made the ground of an action. In such case the statute affords complete indemnity to those acting under its authority, notwithstanding the injury complained of would, in the absence of the statute, be actionable at common law..</p> <p>2. Eminent domain — “property,” as used in constitution, defined. “Property,” in its appropriate sense, means that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or objects, and generally to the exclusion of all others, and doubtless this is substantially the sense in which the word is used in the constitution, as to the taking or damaging of private property for the public use. But the word is often used to indicate the subject of the property or the thing owned.</p> <p>3. Same—what is a “taking” of private property. Up to the time of the adoption of the present constitution it was the settled doctrine of this court that any actual physical injury to private property, by reason of the erection, construction or operation of a public improvement in or along a public street or highway, whereby the appropriate use or enjoyment of the property was materially interrupted, or its value substantially impaired, was regarded as a “taking” of private property, within the meaning of the constitution, to the extent of the damages thereby sustained, and actions for such injuries were uniformly sustained. But the remedy was restricted to such cases of direct physical injury.</p> <p>4. Same—rights under constitution of 1848, as extended by that of 1870. That restriction of the remedy of the owners of private property to cases of actual physical injury to the property, was under the constitution of 1848,' which simply provided that private property should not “be taken or applied to public use,” without just compensation, etc. The constitution of 1870, however, provides that “private property shall not be taken or damaged for public use without just compensation,” thus affording redress in cases not provided for by the constitution of 1848, and embracing every ease where there is a direct physical obstruction or injury to the right of user or enjoyment of private property, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which, by the common law, would, in the absence of any constitutional or statutory provision, give a right of action.</p> <p>5. Same—former decisions. Any expressions used in the opinions of this court in Stetson v. Chicago and, Evanston R. R. Co. 75 111. 74, and Chicago, Milwaukee and St. Paul R. R. Co. v. Hall, 90 HI. 42, which may seem to restrict the remedy of owners of private property, as given by the present constitution, to eases where there has been a direct physical injury to the property, are not to be accepted as embodying the views of the court on that subject.</p> <p>6. Same—limitation of the rule under constitution of 1870. But while the present constitution was intended to afford redress in a class of eases for which there was no remedy under the old constitution, still it was not intended to reach every possible injury occasioned by a public improvement. The building of a jail, police station, or the like, will generally cause a direct depreciation in the value of neighboring property, but that is a case of damnum absque injuria.</p> <p>7. So, in order to authorize a recovery by an individual for an injury to his property by the construction of a public improvement under authority of a statute, it must appear that there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his propierty, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property, in excess of that sustained by the public generally, and which by the common law, in the absence of any constitutional or statutory provision, would have given a right of action.</p> <p>8. Same—as to the particular case. "Where a city constructed a viaduct or bridge on a public street, near its intersection with another street, thereby cutting off access to the first named street from the plaintiff’s house and lot over and along the street intersected, except by means of a pair of stairs, whereby the plaintiff’s premises fronting on the latter street and near the obstruction were permanently damaged and depreciated in value, by reason of being deprived of such access, it was held, the city was liable to the plaintiff in damages for the injury.</p>

Writ of Error to the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding. ■ At and prior to the transactions hereinafter referred to, Maston C. Scótt was the owner of certain real estate in Peoria county, the location of which may he understood better by reference to the following plat or diagram, taken from the brief of defendants in error: [[Image here]] TTis property was incumbered as follows, which statement is also taken from the brief of defendants in…

<p>1. Former adjudication—-how far conclusive, generally. A judgment at law, iu any form of action, is conclusive upon the parties upon all questions, titles and rights involved in the litigation and passed upon by the court, which the court had power and jurisdiction to hear and determine, and nothing more; and when the same questions or the same rights or titles are again drawn in issue, whether in a court of law or equity, between the same parties or their privies, the previous adjudication will be regarded as conclusive upon them.</p> <p>2. Same—in ejectment. A judgment at law, in an action of ejectment, against the plaintiff, for the reason that a sheriff’s deed to him under a purchase of the land on a sale under execution was not sufficient to pass the title of the defendant in execution, owing to mistakes and imperfections in the deed, is no bar to a suit in equity to have the plaintiff’s equitable title to the land converted into a legal title, and the sheriff’s deed corrected so as to pass the legal title.</p> <p>3. A judgment in ejectment in bar of the plaintiff’s action, from a want of his having the legal title to the premises, is no bar to a second suit in ejectment by him upon an after acquired legal title, the titles in the two suits not being the same.</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>

<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>

<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. Moore, Judge, presiding.</p>

<p>Writ of Ebbob to the Circuit Court of Cook county; the Hon. William H. Babnum, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Knox county; the Hon. John J. Glenn, Judge; presiding.-

Josiah McBobebts, Judge, presiding. This was an action on the ease, by appellee against appellant, for diverting the water in the Desplaines river from the plaintiff’s mill. There was a plea of not guilty, with notice of special matter, embracing the evidence relied upon in defence.

<p>1. Rescission op contracts—for want of fair dealing and honesty. While courts of equity do not sit to enforce mere moral rules, the only-sanction for which is found in public opinion, yet it is part of their mission to see that common honesty, good faith and fair dealing shall be observed in the ordinary business affairs of life.</p> <p>2. When a party, in procuring conveyances of valuable property to be made to himself without any consideration, knows that the fee of the same is in the grantors, and also knows that they are ignorant of that fact, they supposing they have no title to convey, and fails to inform them of their rights, and they convey, through mere kindness, to enable him to make a loan on the property, under the belief that the title is already in him, a court of equity will set the conveyances aside, when the rights of innocent purchasers have not intervened.</p> <p>3. Recording act—how far notice thereunder is conclusive. The presumption that a party has notice of the contents of a deed from the record thereof, whereby he has an interest, is not conclusive, but may be rebutted by evidence to the contrary in a suit to avoid a conveyance made by such party, on the alleged ground of ignorance of his rights, where the grantee is not a bona fide innocent purchaser, or the rights of innocent purchasers have not intervened. But in the contest between the grantor and an innocent purchaser from the fraudulent grantee, the record would be conclusive upon the former.</p> <p>4. New trial—in chancery—on the evidence. The finding of the court below as to a question of fact in a chancery case, will not be disturbed on appeal or error, where, from a consideration of the entire testimony bearing upon the same, the reviewing court has a well founded doubt as to how the question should have been determined, without any clear conviction the one way or the other.</p>

<p>Appeal from the Criminal Court of Cook county; the Hon. Sidney Smith, Judge, presiding.</p>

<p>1. ' Criminal daw—general conviction sustained, if any good counts. Judgment will not be arrested, nor will a judgment be reversed, on a general verdict of guilty, in a criminal case, because one count in the indictment is bad, if other counts are good.</p> <p>2. Same—larceny—recent possession of stolen goods. A recent possession of stolen property after the theft is sufficient to warrant a conviction, unless the attending circumstances so far overcome the presumption thus raised as to create a reasonable doubt of the prisoner’s guilt, when an acquittal should follow.</p> <p>3. Same—waiver of constitutional right to he present at trial. The constitutional right of a prisoner to appear and defend in person and by counsel, to demand the nature and cause of the accusation, and to meet the witnesses face to face, is conferred for the protection and benefit of one accused of crime, but, like many other rights, it may be waived by him.</p> <p>4. So where a prisoner, after his trial has begun, voluntarily abandons the court room, and refuses to appear, he will be regarded as having waived a right which is guaranteed to him, and the court is under no obligation to stop the trial, but may proceed in his absence to final judgment. He will not be allowed to take advantage of his own fault.</p> <p>5. Evidence—relevancy of fact on cross-examination. On the trial of one for burglary, and the larceny of certain goods, there is no error in refusing to allow the prosecuting witness, on cross-examination, to state the names of the firms from whom he purchased goods, as this could throw no light on the question of the defendant’s guilt or innocence.</p> <p>6. Same—opinion of witness as to fact. On a trial for burglary and larceny, a witness for the defendants testified very fully that they were not away from home on the evening the crime was committed, stating that they were not away from home that evening, and went to bed at ten o’clock. The witness was then asked if they were away from home as much as half an hour, to which she replied, not that she knew of. She was then asked could they have been gone that time without her knowing it, which question the court held improper: Held, that the ruling was correct, as the answer would have been a mere matter of opinion.</p> <p>7. New triad—newly discovered evidence. A new trial will seldom be granted in a criminal case on the ground of newly discovered cumulative evidence, and this only when it seems to be decisive in its nature.</p>

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

<p>Criminal practice—comments on defendants neglect to testify. Any allusion to or comments by the prosecution in a criminal case" on the fact the defendant has not testified as a witness in his own behalf, especially when allowed by the court over the defendant’s objection, is such a violation of the letter and spirit of the statute, and such an error, as to require a reversal of a judgment of conviction, when the proofs of guilt are not so clear and conclusive that the court can affirmatively say the accused could not have been harmed from that cause.</p>

<p>1. Error&emdash;who may assign&emdash;only party injuriously affected. On bill for separate maintenance by a wife, the relief prayed for was granted, and a decree rendered also against a bank, which was made a co-defendant, for a portion of moneys paid over by it to the assignee of the husband after the service of an injunction on it, the assignment being only colorable, from which decree the bank alone appealed: Held, that the bank could not call in question the decree against the husband, or urge that the sum allowed was excessive, or that there was error in allowing a sum in gross, as it had no interest jn such questions.</p> <p>2. Injunction&emdash;to • preserve property for alimony or separate maintenance. Where a wife, in her bill for a divorce or for separate maintenance, alleges that her husband is about to place his property beyond the jurisdiction of the court to control it, a court of equity will assume, by temporary injunction, to preserve the property within its control, so that it may be charged by a decree for alimony or separate maintenance, if granted.</p> <p>3. Same&emdash;party paying money in violation of injunction&emdash;liability. AVhere a bank, in a suit by a wife against her husband for separate maintenance, was enjoined from paying to the husband, or to any other person upon his order or indorsement, any money on deposit in the bank, generally or specially, by the husband, and the bank, after the service of the injunction, paid the sum deposited with ‘it to an assignee of the certificates of deposit,- it was held, that the bank paid the same at its peril, and the assignment of the certificates being shown to be merely colorable, the bank was held liable for the deposit, the same as if it had kept the same.</p> <p>4. Assignment—when payment is enjoined. While it is true that a bank issuing certificates of deposit is not bound, before paying the same to an indorsee, to ascertain whether the assignment was in good faith, yet if it is enjoined from paying the deposit to the depositor, or his assignee, it is its duty not to pay out the funds so deposited until the parties claiming the same can have an opportunity to contest, by interpleader or otherwise, the good faith of the assignment.</p> <p>5. Same—of a hank deposit. Where a depositor draws his check on his general account on a bank having funds deposited by him to an equal or, greater sum than is called for by the check, the transaction will operate to transfer the sum named to the payee, who may sue for and recover the amount from the bank in his own name, and in like manner the assigning of a certificate of- deposit transfers to the assignee the whole sum deposited, as stated in the certificate.</p>

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

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

<p>1. Deliveby of a deed. A deed may be delivered, although not actually passed over from the hands of the grantor to the hands of the grantee. No particular form is necessary to constitute a delivery. It may be by acts without words, or by words without acts, or by both. Anything manifesting the intention of the parties that it shall presently become operative and effectual, constitutes a sufficient delivery.</p> <p>2. Where a deed was made and acknowledged by a husband and wife, for lands of the wife, and placed by the wife in the husband’s hands, leaving him to determine when, if ever, it should be delivered, and he failed to exercise that discretion in his wife’s lifetime, and the wife, after the date of the deed, built a large house on the premises, in which she and her husband resided until her death, after which he passed over the deed to the grantee: Held, that the deed never took effect for want of delivery in the lifetime of the wife, and that upon her death his authority to deliver was revoked.</p> <p>3. Conveyance—inuring of after acquired title. A quitclaim deed of a party to land without any covenants of warranty, will not pass an after acquired title by the grantor.</p>

C. B. Smith, Judge, presiding. This was a hill -in equity, filed in the circuit court of Piatt county hy the appellant, seeking to have a deed executed by him and his wife to appellee Henry V. Moore, for the land in controversy, declared a mortgage.

Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding. Mary 0. Wilson filed a bill against her husband, Andrew Wilson, for divorce, charging habitual drunkenness; also, extreme and repeated cruelty. ■ He answered, denying the charges, and filed a cross-bill, seeking a divorce upon charges made therein against his wife, of adultery. Her answer denies these charges.

<p>1. Homestead—execution sale is void. A sale of a party’s premises, occupied and held by him as his homestead, which are of less value than $1000, on execution against the occupant, is void, and may be set aside on bill by the householder, when his homestead has not been waived, released or abandoned.</p> <p>2. Same—surrender of possession—what constitutes. Where the owner of a homestead of less value than $1000, after its sale under execution against him, and before the taking out of a sheriff’s deed, let the assignee of the certificate of purchase into possession of- one of the houses upon the premises, under an agreement the assignee should take care of and maintain him during his life, and then have the property, which contract the assignee denied, and refused to maintain the occupant: Held, that this was not such a surrender of the possession as to make the sheriff’s deed valid, or prevent the occupant from having the sale and deed set aside.</p>

<p>1. Conveyance—grantee bound by its terms and conditions—heir cut off from further participation in ancestor’s estate. The" acceptance of a deed for land by a son from his father, which recites that “said land is deeded as an advancement to said 3. W. K. (the grantee,) out of the estate of said J. K. (the grantor,) and the deed is accepted by said J. W. K. as his full and entire" share of his father’s estate, ” the recording of the same, and the enjoyment of the estate thereby conveyed, will operate to estop such grantee from denying that the seal attached to the deed is his, as well as that of the grantor, and he will not be entitled to any further share in the grantor’s estate.</p> <p>2. Contbact—release of an expectancy by a prospective heir. An executed contract, whereby a prospective heir releases his expectancy in his father’s estate, in consideration of a present grant of real estate to him by the father, is valid and binding upon the heir, and will be enforced in a suit for partition of the residue of the lands of the estate.</p> <p>3. Statute oe Fbauds—agreement by a son to accept an advancement in full of his prospective share in his father’s estate. Where a son accepts a deed from his father for a tract of land, the deed declaring in the body of it that it is accepted by the grantee as his full share in the grantor’s estate, and the grantee takes and enjoys the possession of the premises, the agreement to accept such grant in full of his share in the father’s estate will be binding on the son, and is not within the Statute of Frauds, as not having been signed by the grantee.</p> <p>4. Pabod evidence—to explain or contradict written contract. Where a clause in a deed for land is binding upon the grantee, by his acceptance and enjoyment under the deed as a contract, in the absence of fraud or mistake the deed can not be explained or contradicted by parol evidence, but must speak for itself.</p> <p>5. Witness—competency of party who is an heir against other heirs, in partition suit. On bill for the partition of lands among the heirs at law of the deceased owner, the court was not disposed to controvert the proposition that an heir whose right to share in the estate was denied, was a competent witness to prove that a deed accepted by him from his father was not intended to deprive him of further participation in his father’s estate, if it was competent to make such proof by. any other witness. But it was held such evidence was not competent for the purpose indicated.</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. Cbiminal law—motion to quash—waiver. A pending motion to quash an indictment is waived by pleading to the merits.</p> <p>2. Same—practice—entering plea after trial. Under section 423 of the Criminal Code, the clerk is required to enter the arraignment and plea of a defendant upon the minutes of the proceedings, and if he neglects to do so, it may and shall be done, at any time, by order of the court, which shall cure the error or defect. This entry may be ordered even after the trial, nunc pro tunc.</p> <p>3. Habitation—right to eject intruder. "Where a person requests another to leave his house, and the latter refuses to go, the former has the right to use such force as is necessary to remove him, and no more.</p> <p>4. Ebbob—when instruction not acted on by the jury. The giving of an instruction, on the trial of one for an assault with intent to murder, that the jury might convict of an assault with intent to commit manslaughter, if warranted by the evidence, can not be assigned for error, when the jury find the defendant guilty of the crime as charged in the indictment.</p> <p>5. Pbactice—time to object—limiting argument of counsel. The limiting of counsel in their argument to the jury, in a criminal case, can not be urged as error by the defendant, where no objection was made thereto at the time, and no further time was asked. The objection comes too late when made for the first time in the reasons for a new trial.</p>

<p>1. Bankruptcy—sufficiency of assignee’s deed under act of 1841. Under the Bankrupt law of 1841, the title of all the bankrupt property vested in the assignee as soon as the owner was adjudged a bankrupt and the assignee was clothed with the right to sell the same, and his deed is not invalid for not reciting an order of the court to sell at private sale. The deed containing a copy of the decree of bankruptcy and of the appointment of the assignee, needs no other recitals, and will be good, if in other respects sufficient, the same as a deed made by the bankrupt before the adjudication.</p> <p>2. Recording law—deed not recorded, void as to subsequent purchaser. A deed from an assignee in bankruptcy, for land, which is not recorded, is void as to a second grantee from such assignee without notice of the prior deed, the subsequent deed being properly recorded.</p> <p>3. Same—purchase presumed to bebona fide. Under the recording laws a subsequent purchaser from the same grantor whose prior deed is unrecorded, is presumed to be a bona fide purchaser, and the burden of proof to show bad faith or want of consideration is upon the party alleging it.</p>

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

<p>Taxes—requisites of collector’s return—as to hack taxes of specific years. A judgment against a village lot for $451.93, for the taxes of 1880, and back taxes for the years 1875 to 1879 inclusive, of which sum the back taxes amounted to $391, without showing what part thereof is for the year 1879, can not be sustained, where the collector’s report only shows “back taxes 1879, and subsequent years, $391,” and contains no statement of any charge against the lot for back taxes for either of the years 1875, 1876j 1877 or 1878. The collector’s return fills the place of a declaration, and judgment can not be rendered thereon for matter not embraced in its allegations.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Oliver L. Davis, Judge, presiding.</p>

Murray F. Tuley, Judge, presiding. This is a joint appeal, prosecuted hy Lucius B. Otis, as receiver of the State Savings Institution, and Melville C. Eames and others, creditors of that institution, from a decree dissolving an injunction which had been granted to restrain Elizabeth J. Doris, with other creditors of the institution, from prosecuting actions at law against its shareholders to enforce the stock liability under section 9 of its charter, and sustaining the…

<p>1. Taxes—distress therefor—Men—necessity for a warrant. A warrant is an indispensable part of the tax boohs, without which the collector has no power to levy and distrain for the payment of the taxes, and such warrant is essential to the creation of any lien on the personal property of the person charged with the taxes.</p> <p>2. Same—Ken on personalty, lost by neglect to levy. If the collector fails to make any levy on personal property for taxes until after the return day of the warrant, the warrant then being dead all liens that might have been, but were not, perfected by a levy, will be gone, and a purchaser from the tax debtor will take the property freed from any lien thereon for taxes.</p> <p>3. Same—lien on personalty for back taxes. Back taxes can not be made a lien, any more than current taxes, upon personal property, until the collector’s books, with a warrant authorizing their collection, is placed in the hands of the collector, and if such property is sold under chattel mortgage, and possession taken before any such lien attaches, the purchaser may enjoin a sale of the same on a subsequent levy, regardless of whether the mortgage was properly acknowledged or not.</p> <p>4. Decbee—construed as to saving liens for taxes. A decree of the United States Circuit Court that certain personal property of a railway corporation under mortgage be sold, “subject to all claims legally due for taxes which are a lien” on the same, and a direction in a certain other order that the proceeding should be “without prejudice to any of the rights or liens” that the treasurer, etc., had on the property for taxes, will preserve only such liens as are prior to the rights derived under the mortgage.</p>

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

<p>1. Constitutional law—power of police magistrate to issue process against the body. A provision in a charter of a town giving the police magistrate power, in certain contingencies, to issue process against the body of an offender, for the satisfaction of the judgment against him for violation of an ordinance, is not in violation of any constitutional provision, and is valid.</p> <p>2. Process—when a protection^ to officer serving. The statute having authorized the issue of execution by justices of the peace, in certain cases, within less than twenty days from the date of the judgment, a constable receiving an execution against the body of a defendant, issued within twenty days from the judgment, will have the right to assume that the justice had properly issued the same, and if good upon its face, it will fully protect the constable in executing its mandate.</p>

<p>Appeal from the County Court of Edgar county; the Hon. Andrew Y. Trogden, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Vermilion county; the Hon. Oliver L. Davis, Judge, presiding.

William H. Babnum, 'Judge, presiding. The Union Building Association filed a bill in the circuit court of Cook county, against the city of Chicago, alleging therein that complainant was a property owner and tax-payer of the city of Chicago, and the owner of a building on the south-west corner of Washington and LaSalle streets, fronting on LaSalle street 100 feet; that there was located on the south-east corner of Washington and LaSalle streets a building, called the Chamber…

<p>1. Practice—exception to ruling of the court. In a case coming to this court from the Appellate Court, in which the judgment of the trial court is affirmed, no questions of fact can be considered, and in such case, if the record fails to show any exception to any ruling of law by the court below, as to the admission of evidence, or the instructions, it will be presumed the Appellate Court properly affirmed the judgment.</p> <p>2. Appeal—when it lies from Appellate Court. No appeal will lie from the Appellate Court, in affirming a judgment for the defendant for costs, in an action on the casé for obstructing the natural flow of water from the pdaintifFs land.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county. This was an action of assumpsit, by Ilett and others, appellants, brought by them in the Superior Court of Cook county, to recover the price of certain real estate, conveyed by them to defendants, appellees. On trial, judgment was rendered for defendants in the action. Plaintiffs appealed to the Appellate Court, where the judgment was affirmed.

Wbit of Ebbob to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Josiah McEobebts, Judge, presiding.

<p>Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This is an action by Madaus, against the gravel road company, for personal services. The plaintiff gave evidence tending to prove that his services were worth some thirty-six dollars ($36) per month. The defendant contended that the work was done under a special contract for twenty-four dollars ($24) a month.

Amos Watts, Judge, presiding. On December 24, 1872, Adam Kumpf, and Maria, his wife, executed to Frederick Parrott a mortgage on certain real estate in Monroe county, to secure the payment of a note for $2000, five years from that date. On July 9, 1875, Kumpf and wife executed to Parrott another mortgage, to secure the payment of a note of that date for $500, payable December 24, 1877. Both notes bore interest from date, at the rate of ten per cent per annum.

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding. On the 13th of July, 1865, George A. Miller and W. S. Combs made their joint and several promissory note for the sum of $1350, payable to Patience C. Morrison, or order, two years after date, with interest from date, at the rate of eight per cent per annum, payable annually.

Carroll C. Boggs, Judge, presiding. This was an action upon a guardian’s bond, brought in the county court of Wayne county, by appellee, against the guardian and against appellant.

<p>. Appeal from the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.</p>

Writ of Error to the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding. This was a petition for dower, filed by appellee, as widow of Daniel Montague, deceased, claiming dower and homestead in certain real estate in Madison county. The facts are, that Daniel Montague died intestate on the 17th day of November, 1877, leaving appellee, his widow, owning the equity of redemption in about 260 acres of land in said county.

Clair county; the Hon. William H. Snydeb, Judge, presiding. An action of assumpsit was begun in the City Court of East St. Louis, to the March term thereof, in 1880, by the appellant against appellee, and on the 15th of May, 1880, an alias summons was issued and served upon the defendant, claiming damages in the sum of $2000, and returnable on the first Monday of June, 1880.

Clair county; the Hon. M. J. Dale, Judge, presiding. On the 17th day of November, 1880, and during term time, the Venice and Carondelet Railway Company filed in the county court of St. Clair county a petition, under the Eminent Domain act, against John B. Bowman, Frank B. Bowman, and Joseph L. Griswold, for the assessment of damages and right of way over certain lands lying near East St. Louis, in which the defendants, respectively, appeared of record to have an interest.

<p>1. Eminent domain—jurisdiction im proceeding to condemn for right of way—continuance. Where service is had upon the land owner, but not ten days before the day set by the judge for the hearing of a petition presented in vacation to condemn land for a right of way, the service, though not in time for the purposes of a trial, will give the court jurisdiction of the person of the defendant, and the petition gives jurisdiction of the subject matter and of the person of the petitioner, and the court will have the power to continue the cause, and such a continuance will not abate the proceeding.</p> <p>2. Statutory proceeding—o/i7ie degree of strictness required. The rule which requires great strictness in a statutory proceeding, has application only in summary and ex parte cases, where the person whose rights are to be affected is not a party. It is not enough, to require the rigid rules of strictness, merely that the proceeding is a statutory one'. The rule does not apply to a proceeding to condemn land for right of way, under the statute.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county. Mr. Ira J. Bloomfield, and Mr. Benj. D. Lucas, for the plaintiff in error: A writ of error lies to the Supreme Court from the decisions of the Appellate Court in bastardy cases. Baber v. Pittsburg, Cincinnati and St. Louis R. R. Co. 93 Ill. 342.

Josiah McBoberts, Judge, presiding. On the 21st day of April, 1857, Cornelius Jessup, Edward H. Jessup, and John S. Jessup, entered into partnership, as hardware merchants, under the firm name of “Jessup Brothers. ” The storehouse in which their business was subsequently carried on, was situated on the north 28 feet of lot 4, in block 4, in Wilmington, Will county, this State, one-half of which belonged in fee to Cornelius, and the remaining half belonged to the other two…

<p>1. Taxation—license money for dram-shops is not a tax. The money received by a city for dram-shop licenses is not a tax, and the fund thus derived is not required by any constitutional provision to be applied solely to municipal purposes. It is a burden imposed for the right of exercising a privilege which the legislature has the right to withhold or inhibit altogether.</p> <p>2. Constitutional law—devoting license money to school fund. A section in a city charter providing that one-half of all the money received into-the city treasury from dram-shop licenses collected shall be paid over at least quarterly to .the treasurer of a school township, by him to be apportioned to the several schools taught in said city, in the same mode and manner as interest on the township school fund is required to be distributed, is not in violation of any constitutional provision. The legislature may dispose of such a fund for any public use it may choose.</p>

<p>1. Jurisdiction in chancery—remedy at law. Where a party has a full and adequate remedy at law, a court of equity will not assume jurisdiction, but will remit the party to whatever remedy or defence he may have in the courts where such matters are properly cognizable.</p> <p>2. Injunction—to restrain collection of taxes—remedy at law. A court of equity will not enjoin a county collector from applying for judgment against the right of way of a railroad company for taxes due on its capital stock, on the ground the complainant claims to have succeeded to such company’s rights, the defence, if any, being available at law, and this especially when the complainant has obligated itself by contract to pay such taxes.</p> <p>3. Same—where railroad company having the use of another road agrees to advance money to the latter to pay its taxes. A court of equity will not give a party relief against that which it is his duty to do, by contract or otherwise. So, where a complainant corporation has agreed with a railway company, for a consideration, to make advances to pay its taxes, when necessary to maintain its organization, and has been put into possession of all its property, it will not be allowed to enjoin the collection of such taxes which are proper and legal, on the assumed ground of its ownership of the property.</p> <p>4. Same—whether foreign corporation may complain of tax against a domestic corporation. A foreign corporation can not interfere by bill to enjoin taxes legally or illegally assessed, under the laws of this State, against a domestic corporation, unless the former will itself be injuriously affected by the collection of such taxes, as to its property or otherwise.</p> <p>5. Taxation—as to ownership of property—not lost by contract for its use, etc. A contract between two railroad companies, whereby one is to take charge of the road of the other, with all its equipments, and operate the same as a continuous line with its own line, and exercise all the rights and privileges of the other under its franchise, for a consideration named, does not change the ownership of any of the property of the latter company, and the rolling stock of such company is liable to distraint for taxes assessed upon its capital stock. Parting with the possession and use of a thing does not always imply a parting with the absolute ownership.</p> <p>6. Kailroad—power to lease to a foreign corporation—a charter construed. Without enabling legislation a railroad company possesses no power to lease its road to a foreign corporation, and surrender its road and franchises into its control.</p> <p>7. Under an amendment to a railroad charter, providing that the company shall have power to consolidate and connect its road with any other continuous line of railroad, either in this State or in the State of Indiana, upon such terms as may be agreed upon between the companies uniting or connecting, and for that purpose giving full power to the company to make and execute such contracts with any other company as will secure the object of such consolidation or connection, the domestic corporation can only do one of two things: either consolidate its road with another railroad in this or the State of Indiana, or maleé an agreement for connection with such road, so as to secure a continuous line. Under such law it has no power to lease its road to a foreign railroad company.</p> <p>8. Same—contract, whether for consolidation, or merely a connection with another road. A contract between a railroad company of this State and a railroad company of Indiana, provided that upon the completion of the two roads to the State line, so as to connect, the Indiana company should take charge of and operate the road in this State, with its equipments, for 999 years, for which it was to be allowed sixty-five per cent of the gross receipts from all traffic moved on the line, or business done thereon, as a consideration for working and maintenance expenses, the remaining thirty-five per cent to be appropriated—first, to the payment of interest on the first and second mortgage bonds of the Illinois company, according to their priority; and second, all the surplus of said thirty-five per cent to be paid over to the Illinois company semi-annually, to be disposed of by it for the benefit of its stockholders; also, that if the thirty-five per cent should not, for any cause, be sufficient in amount to protect the interest on the mortgage bonds, and the sinking fund therefor, as they matured, together with the payment of the taxes, and proper costs of maintaining organization, so that the rights of stockholders might be preserved, then, in that event, the lessees should advance for the company whatever might be needed, to be accounted under yearly averages of the lease during the contract: Held, that the agreement was not a lease of the Illinois road, nor a contract of consolidation, but one of connection between the two roads, only, leaving the Illinois corporation the owner of the road, the franchise, and all its rolling stock, though in the use and under the control of the Indiana company.</p>

<p>Wbit of Ebbob to the Circuit Court of Cumberland county; the Hon. Wílliam C. Jones, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>1. Contract—legality. The general rule is, that all contracts made in violation of an express statutory provision are inoperative and void, and no recovery can be had upon them though the defendant is a party to the violation of the law, in the absence of fraud or bad faith on his part upon which to found an estoppel.</p> <p>2. Same—loan by bank to a director in violation of its charter, is illegal. Under a provision in a bank charter that “no director of said corporation shall be indebted to said corporation, either directly or indirectly, or individually, at any time, to an amount greater than seventy-five per centum of the capital stock held by such director, in good faith as his own,” it is held, that a director can not enter into a valid contract with the bank, as guarantor or indorser, without regard to his ownership of stock and in violation of such provision, and no recovery can be had by the bank under such a contract against him or his -estate. The prohibition in such case applies to the bank as well as to the directors.</p> <p>3. The distinction in some of the old cases between malum prohibitum and malum in se has long since been exploded, and the rule is now well established that no agreement to do an act forbidden by statute, or to omit to do an act enjoined by statute, is binding.</p> <p>4. A provision in a bank charter prohibiting the directors from besoming indebted to the bank, is not purely personal to the directors, but it is equally a mandate to the bank, which it is as much bound to observe as the directors themselves. It goes directly to the power or capacity of both the bank and directors to enter into any engagement or agreement by which the latter may become indebted to the former. »</p> <p>5. Conflict of laws—rulings of Supreme Court of United States— when not binding on this court. The decisions of the Supreme Court of the United States, while entitled to great respect, are not of binding authority on this court in the construction of one of our own statutes, especially when such construction is at variance with the previous decisions of this court.</p>

Clair county; the Hon. Willlam H. Snyder, Judge, presiding. This was an action of debt by the People of the State of Illinois, for the use of St. Clair county, on the official bond of George W. Sieber, late treasurer of that county, against the obligors therein.

<p>1. License—power of the legislature—license fee as distinguished from a tax—application of the rule of uniformity. The constitution of 1870 has in nowise limited the power of the legislature to impose, or to authorize the imposition of, the duty upon natural persons or corporations to procure a license to pursue any calling. In this respect the power of the legislature is the same as it has ever been since the organization of the State government, to require persons engaged in various avocations to procure a license for the purpose, and thus to regulate the exercise of the vocation.</p> <p>2. A license fee, when applied to any proper subject, is not a “tax,” in the sense of that clause of the constitution prescribing the rule of uniformity in levying taxes.</p> <p>3. Perry license—the rule applied thereto. So, it is competent for the legislature to authorize a municipal corporation to demand a license fee from the keeper of a ferry, for the privilege of carrying on the business of ferrying within its jurisdiction.</p> <p>4. Same—as applied to the Wiggins Ferry Company in the exercise of its franchise upon the Mississippi river. The city of East St. Louis, under a general authorization in its charter “to license, tax and regulate ferries,” imposed a license fee, by ordinance, upon the keepers of ferries, for each boat ferrying between that city and the opposite bank of the Mississippi river. The Wiggins Perry Company, which was organized for the purpose of running a ferry between the city of East St. Louis and the opposite bank of the Mississippi river, resisted the collection of this license fee. The original grant of the ferry privilege was to Samuel Wiggins, in 1819, it being provided in the grant that the ferry thereby established should be subject to the same taxes as should be imposed on other ferries in the State, and “under the same regulations and forfeitures.” In 1853 the present corporation-—the Wiggins Perry Company—was organized under an act of the General Assembly, which provided that the new company might purchase, hold, use and enjoy the ferry franchise theretofore granted to Samuel Wiggins. In questioning the power to impose the license fee by the city, the ferry company contended that as it was using the franchise as originally granted to Wiggins, no higher taxes could be imposed upon it than any other ferry in the State was liable to pay, therefore the city could not properly demand this special license fee. But it was held, keeping in view the distinction between a license fee and a tax, the constitutional rule of uniformity in the levy of taxes had no application, and nothing contained in either the original grant of the ferry franchise, or in the charter of 1853, could he construed as an exemption from the exercise of the power to impose the license fee.</p> <p>5. Moreover, this ferry company had for years paid a license fee to the county in which it was exercising its franchise, under the general law on that subject, thereby, by its own construction of its charter, conceding the power to require the fee, and the company should be held to that construction, as authorizing the legislature to so understand it, in granting the power to the city.</p> <p>6. Besides, in these relations, corporations stand upon precisely the same footing with natural persons, and the legislature may not grant to either special exemptions from the ordinary and usual burdens of government.</p> <p>7. Samti¡—the Mississippi river being a navigable stream, as to the relative powers of the State and Federal governments in relation thereto. As affecting the power of the State to authorize a municipal corporation to impose this license fee in respect to a ferry upon the Mississippi river, it was said that river is a navigable stream, and therefore is under the control of the Congress; that Congress has the power to regulate inter-State commerce, and has regulated it by requiring every ferry boat propelled by steam to be inspected, according to an act of Congress, and such regulations as Congress may prescribe must be complied with before a certificate will be granted. But it was held, these inspection laws were in no sense to be regarded as a regulation of commerce, but were purely a police regulation for the safety of persons. The exercise of such a police power by the Federal government in no way impaired the authority of the State to exercise its police power in the granting of ferry licenses. This power in the State is one of the reserved powers, never delegated to the general government.</p> <p>8. Nor is the license fee a tonnage tax, or its imposition an attempt to regulate commerce by the State. A tonnage tax does not apply to ferry boats, but to a wholly different class of vessels. The imposition of a license fee is a police regulation, and not a regulation of commerce, in any such sense as that in which the term is used in relation to the power of Congress to regulate commerce between the States.</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. John A. Jameson, Judge, presiding.

<p>1. Homestead—of the nature of the title to which it may attach. Under the Homestead act of 1872, a tenant holding a leasehold interest in premises may claim the benefit of the statute, as well as if he were the owner of the fee; and the holder of any possessory interest in lands, without regard to the extent of title, may invoke the aid of the statute. The holder of land under a contract of purchase, under that act, as well as under the act of 1851, occupying the same as a residence with his family, is entitled to a homestead right in the premises to the value of $1000, as against all creditors, except his vendor for the unpaid purchase money.</p> <p>2. SAME—new one bought from proceeds of sale of former one. Where a person lawfully entitled to a homestead in premises sells his interest therein, and out of the proceeds of the sale within one year purchases a house and lot for a residence for himself and family, which does not cost or exceed in value $1000, and goes into its actual occupancy, by residence, in four or five days afterwards, such- house and lot will constitute his homestead, and any sale thereof on execution against him will be a nullity, and the sheriffs deed will pass no title.</p>

John A. Jameson, Judge, presiding. Certain lots in Chicago, owned by appellees, were sold for taxes for the year 1875, at a sale made in October, 1876, under a judgment of the county court, upon due notice, as required by the statute. The owners did not appear or interpose any objections to the rendering of such judgment.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. William H. Barndm, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, 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. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.</p>

John V. Eustace, Judge, presiding. This was an information in the nature of a quo warranto, filed by the relator, as State’s Attorney for the county of Ogle, against the town of Woo-Sung, James T. Wilson, James M. Atley, John G. Annan, Andrew Zollinger, Ellis Osterhundt, James H. Anderson, Charles H. Brown, Amos H. Sanford, John Reynolds, Clinton D. Coe, and Aldro Goodrich, to test the legality of the formation of a new town by the hoard of supervisors, the persons named as…

<p>Appeal from the Circuit Court of Cook county; the Hon. William H. Babnum, Judge, presiding.</p>

<p>1. Administration of estates—domicil of intestate m amother State —jurisdiction to grant letters of administration. Where a person, at the time of his death, has his domicil in another State, the proper court in such State has jurisdiction to grant letters of administration upon his estate.</p> <p>2. Same—foreign administrator may collect debts in this State. An administrator of an estate appointed in any other State or territory by a court having jurisdiction, has the legal right, under our statute, to collect notes due to his intestate, and to that end he may foreclose deeds of trust securing them, when no administration is granted on the same estate in this State.</p> <p>3. Same—legal title vests in administrator—notes due intestate. Upon the death of a party and the appointment of an administrator, the legal title to all notes and debts due the intestate vests in the administrator, who alone can sue and recover upon the same. The heir at law or his personal representative can maintain no action whatever on such notes.</p>

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

<p>1. Eminent domain—right to have jury view land after the evidence and arguments. The statute giving the right to have the jury go on the land sought to be condemned, or damaged, in a proceeding for right of way, and examine the same, is imperative, and fixes no time when it shall be allowed, and it is error to refuse a motion to have the jury view the premises, even after the evidence has been closed and the arguments heard, but before the instructions are given.</p> <p>2. The right of either party, in-a proceeding to condemn land, to have the jury go upon and examine the premises, may be exercised at any stage of the case before the court gives its instructions, and it is error to deny the exercise of such right.</p>

<p>1. Injunction—parties—to prevent violation of public duty by officers. "Where a public duty about to be violated by public officers is public in its nature and effects, one not suffering any special injury can not maintain a bill to enjoin the violation, but the remedy must be sought by the public through its proper officer.</p> <p>2. Same—to restrain the licensing of a dram-shop. A board of supervisors will not be enjoined from issuing a license to keep a dram-shop in violation of law, on a bill by a private citizen, who will sustain no greater injury than the public generally by the act sought to be prevented. The only remedy in such case is on the application of the proper public officers of the State on behalf of the public.</p>