Volume 103 — Illinois Reports

John Burns, Judge, presiding. This was a bill in chancery for a partition of certain real estate, and assignment of dower therein, brought in the circuit court of Peoria county by appellants, representing the four elder children of John Bland, deceased, against appellees, representing the widow and five younger children of said deceased, and basing their right to the relief asked upon the provisions of the will of such decedent.

<p>1. Evidence in criminal cases—admission of defendant’s affidavit for a continuance on defence of insanity. On a trial for an assault with intent to murder, when insanity alone is relied on in defence, the assault and shooting not being controverted, it is error to admit in evidence, on behalf of the prosecution, the affidavit of the defendant made for a continuance, in which he denies the act alleged, and his guilt, it being wholly irrelevant to the issue of insanity.</p> <p>2. Same—defendant’s affidavit for continuance as evidence. An affidavit of a party,for a continuance is competent evidence against him on the trial, when it is relevant to the issue, it standing on the same footing as any other declaration made by him under oath.</p> <p>3. Same—evidence showing a different offence, not proper. On the trial of one for an assault with intent to murder, he can not be punished for perjury in his affidavit for a continuance, and the admission of the affidavit in evidence for that purpose, or where its only effect is to show his perjury, is error;</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. John A. Jameson, 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. John A. Jameson, Judge, presiding.

<p>1. Taxation—license fee on dogs—not a tax. The license fee imposed on the owners of dogs, under the act of 1879, entitled “An act to indemnify the owners of sheep in cases of damage committed by dogs, ” is in no sense a tax, and is therefore not within the constitutional provision that all needful revenue shall be raised by levying a tax by valuation. Such fee is imposed under the police power, and not under the taxing power of the State.</p> <p>2. Police power of the State—imposing license fee upon dogs. Everything hurtful to the public interest is subject to the police power of the State, and may be brought within restraining and prohibiting influence. Therefore the act authorizing a license fee to be imposed upon and collected of the owners or keepers of dogs is not subject to any constitutional objection.</p> <p>3. Statute—expressing subject in the title—act concerning dogs. The matter of imposing a license fee upon the owners or keepers of dogs is sufficiently expressed in the title of the act entitled “An act to indemnify the owners of sheep in eases of damage committed by dogs.”</p>

Cook county; the Hon. Mason B. Loomis, Judge, presiding. • This was a condemnation proceeding begun by the West Chicago Park Commissioners under an ordinance passed by them on May 2, 1881, and providing as follows: 1. That a boulevard running from the south end of Douglas Park to the Illinois and Michigan Canal, be located and established, as shown by an accompanying map. 2.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p>

<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. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal ' from the Circuit Court of Will county; the Hon. Francis G-oodspeed, Judge, presiding.</p>

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

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.</p> <p>This was a proceeding by garnishment, under the statute, against Frederick Stahl, president of the Galena and Southern Wisconsin Railroad Company, as garnishee, to subject a supposed interest held by the railroad company, acquired under the foreclosure sale of the company’s mortgaged property, to the payment of a judgment of Madison Y. Johnson against the company. On a hearing had before it, the circuit court discharged the garnishee, which judgment was affirmed on appeal to the Appellate Court for the Second District, and an appeal taken to this court.</p> <p>The supposed interest sought to be reached is claimed to arise in respect to twenty-eight bonds of the company, which had been deposited with the National Bank of Galena as collateral security for certain indebtedness of. the company to the bank. In 1872 the railroad company executed its mortgage upon its property and franchise to secure the payment of four hundred of its own bonds, of $1000 each, with interest. Twenty-eight of these bonds were deposited by the company at different times with the National Bank of Galena, to secure three notes given to the bank for the debt of the company. The first note was for $2276.65, dated April 29, 1875, and was signed individually by four persons, then directors of the company, for the collateral security of which the company deposited ten of the twenty-eight bonds. The next note was for $4671.20, dated June 30, 1877, and signed individually by the directors of the company. For the collateral security of this note the company deposited eleven of said twenty-eight bonds. The last note was for $2127.80, dated June 30, 1877, and signed by the company only, for the collateral security of which the company deposited the remaining seven of the twenty-eight bonds.</p> <p>In September, 1878, the railroad company executed to William W. Wagdin a deed of trust upon all of its property and franchises, to secure the payment of the three notes referred to, the bank continuing to retain the twenty-eight bonds as collateral security for the debt. At the February term, 1879, of the circuit court of Jo Daviess county, a decree of foreclosure of the original mortgage was entered of record, and an absolute sale, subject to the Wagdin deed of trust, was ordered of all the mortgaged property, to pay the mortgage bonds and interest. The bank proved up the twenty-eight bonds before the master, and in the decree a judgment was rendered on them, for “the use of the bank.” On May 3, 1879, a sale took place, under the decree, to a committee appointed to make the purchase by and for the bondholders, or a portion of them, who had entered into an agreement to form a new company, and assessed on each bond the' sum of five dollars, to pay the costs and expenses of the foreclosure. The mortgaged .property was bid in by this committee for $2000. The purchasers formed a new railroad company, subscribing in it as stock the amount due them from the old company, at fifty cents on the dollar. This new company elected officers, and operated the road up to April, 1880. In April, 1880, the Chicago and Northwestern Railroad Company purchased the stock of this new organization, and thus became the owner of the property. On the ,26th of the same month it paid the bank debt secured by the Wagdin deed of trust, and on the same day the garnishee, Stahl, as president of the Galena and Southern Wisconsin Railroad Company, gave to the bank his receipt, stating that the twenty-eight bonds deposited with the bank, as collateral security for such debt, had on that day all been returned back to that company. The garnishee answered that the company was entirely insolvent, and without any property since the foreclosure sale, and that at and since the service of process on him he had no property of the company in his possession, power or control. Issue was taken upon the truthfulness of the answer, and the foregoing facts were relied upon as sustaining the issue against the garnishee.</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; the Hon. John A. Jameson, Judge, presiding.

<p>1. Removing cloud upon title—reimbursing purchaser at tax sale— effect of illegality of tax. Upon bill in chancery to remove a cloud upon the title to land, the alleged cloud consisting of a tax deed, the defendant claiming under the tax deed, and who was the purchaser at the sale of the land for taxes, insisted, if his title should be set aside he ought at least to be reimbursed the amount he had paid at the tax sale. The taxes for the non-payment of which the land was sold had been assessed upon personal property in a district in which the property was not liable to the assessment, so there was no obligation on the part of the owner of the land to pay them. Hence the entire proceedings concerning the levy of the tax and the sale of the land therefor were void, and the purchaser at the tax sale was not entitied to be reimbursed the amount he paid at that sale, as a condition to the granting of the-relief sought by the bill.</p> <p>2. Purchasers at tax sales are bound to know at their peril that the supposed delinquent is in truth and in fact a delinquent,—that he has been lawfully assessed, and has failed to make payment.</p>

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

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

<p>1. Writ of error—to the probate court. A writ of error will not lie from this court to a probate court in cases where an appeal from the judgment is allowed to the circuit court.</p> <p>2. Appear—.fromprobate court to circuit cou/rt. An appeal being given from the final orders, judgments, etc., of the probate court to the circuit court, except in proceedings of administrators to sell land to pay debts, this court will not entertain a writ of error to the probate court to review an'order dividing a widow’s award between herself and her minor children.</p>

<p>1. Appeal from, Appellate Court—reviewing the facts. Where the facts are found by the Appellate Court, in a suit upon a guaranty of a note, this court is precluded from their consideration further than to determine whether the law has been properly applied to them.</p> <p>2. Variance—where evidence tends to prove allegations. Where several things are averred as forming the consideration of a guaranty, if there is evidence tending to prove each one, there is no variance.</p> <p>3. Same—only material averments need he proved. The plaintiff is only required to prove the material allegations of Ms declaration. If two considerations for the contract are alleged, one good and the other immaterial, as forming none, the plaintiff will only be required to prove the one which is sufficient.</p> <p>4. Consideration—one good one is sufficient. Where various considerations are averred and proved, some good and some insufficient, one sufficient one will support the contract.</p> <p>5. Same—extension of time of payment for guaranty. The extension of the time of payment of an antecedent debt, is a sufficient consideration to support a contract guarantying its payment.</p> <p>6. Practice in Supreme Court—party controverting Ms own proposition. Where a party asks and obtains instructions that an agreement not to collect more than legal interest on a note forms no sufficient consideration for a guaranty of its payment, he will not, on appeal or error, be allowed to controvert such proposition.</p>

<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 Iroquois County; the "Hon. Franklin Blades, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the County Court of Will county; the Hon. Benjamin Olin, Judge, presiding. The plaintiff in error was, at the May term, 1880, of the Will county circuit court, indicted for selling intoxicating liquor to a minor without first having the written consent of his parents, guardian, or family physician.

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

<p>Appeal from the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.</p>

<p>1. County courts and probate Courts—of their jurisdiction of probate and other matters. Section 18 o£ article 6 of the constitution of 1870, declares that county courts shall have jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlement of their accounts, in all matters relating to apprentices, and in proceedings for the collection of taxes and assessments, and such other jurisdiction as may be provided for by general law:</p> <p>2. By section 20 of the same article, it is provided that probate courts, when established under the constitution, shall have original jurisdiction in all ^matters of probate, the settlement of estates of deceased persons, the appointment of guardians and conservators, and the settlement of their accounts, in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts.</p> <p>3. Upon the establishment of a probate court in a particular county, the county court of such county is at once, by operation of law, deprived of its jurisdiction in matters of probate, and in all other matters over which probate courts are given jurisdiction. There can not be concurrent jurisdiction between the two courts in the same County. The jurisdiction of the probate courts is exclusive.</p> <p>4. Same—of the extended jurisdiction of county courts in counties in which probate courts are or maty be established—constitutionality of the act of 1881. The act of 1881, “to extend the jurisdiction of county courts in counties in which probate courts are or may be established,” provides, “that in all counties in which probate courts are or may hereafter be established, county courts may have concurrent jurisdiction with the circuit court in all cases at law and in equity, except criminal cases where the punishment may be death, or confinement in the penitentiary:" Held, the act was unconstitutional, the extended jurisdiction attempted to be thereby conferred being restricted to county courts in certain counties, and not affecting the county courts in all the counties in the State alike, thus being within the inhibition of that clause of sec. 29, art. 6, of the constitution, declaring the jurisdiction “of all courts of the same class or grade” shall be uniform.</p> <p>5. So it was held, the county court of Cook county, that being one of the counties in which a probate court has been established, and in which it was sought to make the act operative, has no jurisdiction of a bill in chancery for relief against certain taxes alleged to have been illegally assessed against the property of the complainant.</p>

At the present term, Mr. James F. Meagher, in behalf of the appellee, moved the court to dismiss this appeal, for the following reason: “Because said Supreme Court has no jurisdiction to hear and determine said appeal.”

This is an original proceeding in this court, for a writ of mandamus.

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Tazewell county; the Hon. Ninian M. Laws, Judge, presiding. This is an action upon a guardian’s bond. Judgment in the circuit court was against the defendant. This was affirmed in the Appellate Court, and defendant in the circuit court brings the ease here on error.

This is an appeal by the railroad company, the appeal bond being signed, “Indianapolis and St. Louis Railroad Company, by John T. Dye, General Attorney, ” with the seal of the corporation attached.

N. M. Laws, Judge, presiding. This was a suit in ejectment, brought by Matilda Wight-man, against Daniel Sapp and Oliver Goodwin, in the circuit court of Tazewell county, to the September term, 1881, to recover possession of the west half of the south-west quarter of section 24, town 24 north, range 6 west of the third principal meridian, in Tazewell county, Illinois, wherein the plaintiff, on trial by the court without a jury, recovered, and the defendant Sapp appealed.

<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>

John Burns, Judge, presiding. This was a suit in ejectment, brought by Matilda Wight-man, against Joseph Tackle, in the circuit court of Tazewell county, to the May term, 1881, to recover the possession of the north-east quarter of section 25, town 25 north, range 5 west of the third principal meridian, in Tazewell county, Illinois, wherein the plaintiff recovered, and the defendant appealed.

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. The board of directors of the Chicago Theological Seminary exhibited their bill in chancery in the circuit court of Cook county, against Joshua A. Severns, Thomas D. Snyder, Asahel Gage, and others.

<p>1. Former recovery—of entire and separate demands—as, principal and interest. Where a promissory note, running, according to the face of it, for several years, provides that the interest shall be payable annually, and “if the interest is not so paid the entire principal sum shall immediately become due and payable,” the omission to pay the interest for a given year will not operate to render the annual interest thus accrued and unpaid, together with the principal sum, an entire demand, in any such sense as will preclude a recovery for each year’s interest as it shall accrue, in successive suits therefor.</p> <p>2. So where a recovery was had for one year’s interest, under such a contract, it was held the judgment so recovered would not operate as a bar to a subsequent suit for the interest which had accrued in the succeeding year.</p> <p>3. Of course, if the prior action had been brought for the principal sum, and the interest which had accrued up' to a particular date, then the recovery therein would bar any further suit upon the note, although it was for less than the amount actually due. 1</p>

D. McCulloch, Judge, presiding. The Peoria and Springfield Railroad Company, a corporation duly organized under the laws of this State, on the 31st day of October, 1871, entered into a written contract with B. S. Prettyman, D. T. Thompson, Thos.

Appeals from the Appellate Court for the Third District; —heard in that court on appeals from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.

Wbit of Ebbob to the Appellate Court for the Third His- trict;—heard in that court on writ of error to the Circuit Court of Logan county; the Hon. Cybus Epleb, Judge, presiding.

<p>Appeal from the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.</p>

George Gardner, Judge, presiding. The appellant, John Seeley Wallace, a minor, by his guardian, Thomas Lord, on April 24, 1879, filed his bill for partition of real estate, against Frank R. Wallace, in her own right and as one of the administrators of their father’s estate, and Albert P. Smith, the other administrator. The property in question descended to John Seeley and Frank R. Wallace from their father, John S. Wallace, who died intestate, December 25, 1878.

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

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

<p>1. Carrier—liability beyond its own line of conveyance. While it is true that a railroad carrier may by contract restrict its liability to its own line, there is no doubt that it may also extend its liability beyond its own line.</p> <p>2. So, where a railroad company in its own wrong shipped a lot of cotton from its depot in Arkansas, to Waterville, in the State of Maine, beyond the terminus of its road, and on the application of the agent purchasing the cotton, gave him a bill of lading containing a. printed stipulation restricting its liability to its own line of road, naming the number of bales, and containing this .entry, written in a blank: “To be' forwarded from Waterville, Maine, (where the cotton is now lying) at consignee’s expense. All charges for transportation to that point, and necessary charges, to be paid by him, ’’—and the pral evidence showed it was to be transported to Putnam, Connecticut, it was held, that the company was liable to the assignee of the bill of lading, the consignee, for the value of the cotton, on account of its non-delivery at Putnam.</p> <p>3. Same—which of two carriers liable. An agent for eastern parties bought cotton in Arkansas, which he left at the defendant’s railroad depot, taking receipts for the same, but gave no orders for its shipment, and the pulroad company, without any authority from such agent, shipped the sajne to Waterville, Maine, where another company—the Maine Central Railroad Company—delivered the same to a person who was not in fact entitled to it. 'On learning the facts the defendant railroad gave a bill of lading, agreeing to transport the cotton to the person who was entitled to it, in Connecticut, at the consignee’s cost and expense, which was not done, the person receiving the cotton refusing to give it up, claiming it was bought for him. The agent drew a draft on his principal, to which he attached the bill of lading, properly assigned, which w’as paid by the principal, and the latter brought suit against the defendant railroad for the value of the cotton, and recovered. It was contended that the consignee should have sued the Maine Central railroad, and not the defendant: Held, that while he might have waived the defendant’s contract, and have sued the' other company for a conversion, or the person receiving the cotton, he was under no obligation to do so, and that the recovery against the defendant was warranted.</p> <p>4. Same—estoppel to assert facts that would defeat transfer of property by an assignment of a bill of lading. While it may be that property in the adverse possession of another is not transferable so as to pass the title, yet where a railroad company gives a bill of lading reciting that the property is then lying in a depot at a certain place, and agrees to forward the same to the consignee, and others advance money on the faith of such bill of lading, which is assigned by the shipper, the railroad company will be estopped, as against such persons, from showing that at the time of giving such bill of lading, and its indorsement, the goods were in the adverse possession of another person, so as to defeat an action brought by the consignee so advancing money on the bill of lading.</p>

<p>1. Evidence—in action for injury from defective sidewalk—evidence in rebuttal, as to previous physical condition of the plaintiff. In an action against a village to recover damages for injuries from the falling of a sidewalk, the plaintiff claiming that he received an injury in his back, the defendant introduced evidence of a previous complaint on his part of weakness in the back. In answer to this, witnesses on the part of the plaintiff were allowed to testify to their not having heard any complaint by him in regard to his back previous to the accident: Held, that though of a negative character, and entitled to but little, if any, weight, it was not irrelevant.</p> <p>2. Same—as explanatory of plaintiff continuing a journey after he was ' injured. A party, after receiving .a personal injury from a defective sidewalk in this State, went to Canada, where his deposition was taken in a suit by him to recover damages. In the cross-examination he was asked if he stopped over at any place on his return to Canada, and answered that he did not, and then said in explanation that a physician on the train advised him not to stop off over night, but to get home as soon as he could: Held, that in rebuttal of the inference as to his physical condition, which might be drawn from the fact of his being able to go through to Canada without any stopping, it was proper for him to give his reason for not stopping over.</p> <p>3. Same—as to physical condition of plaintiff a year before receiving a personal injury. Where a plaintiff left Canada to go to the village of Warren, in this State, in March, 1876, and there received a personal injury in May, 1877, by the falling of a sidewalk, in a suit by him against the village, evidence on the part of the plaintiff as to his good physical condition when he left Canada was objected to as too remote: Held, that as there was testimony on the part of the defendant as to the poor health of the plaintiff but a short time after his coming to Warren', the objection was without force.</p> <p>4. Error wild not always reverse—as to admission of evidence. On the trial of an action to recover for an injury from a defective sidewalk, the court admitted on the part of the plaintiff evidence of the rebuilding of the walk, the manner in which it was built, and that it was different from the mode of the original construction: Held, that while this evidence should not have been received, yet as there was much testimony that the sidewalk had come to be in a manifestly defective and unsafe condition, the reception of such evidence was not a fatal error.</p> <p>5. In the same proceeding it was error to admit evidence on the part of the plaintiff that he was a married man, and had a family; but the defendant having proved the same fact, and the plaintiff’s counsel afterwards having withdrawn such evidence from the jury, the error was regarded as a harmless one, though there might be a question whether the withdrawal of the plaintiff’s evidence on this point would have cured the error.</p> <p>6. Instruction—giving facta of one aide only. An instruction which sets forth at length the facts as testified to by the party’s own witnesses, and upon the hypothesis of the belief of such facts directs the jury how to find, is objectionable, and is propeily refused.</p> <p>7. Same—stating facts as constituting due care. An instruction is faulty which details certain facts as constituting ordinary care and diligence, instead of leaving it to the jury to determine, from all the evidence in the case, whether there had been the exercise of due care and diligence by the party charged with negligence.</p> <p>8. Same— construed—as whether assuming a controverted question of fact. In an action against an incorporated village to recover for a personal injury alleged to have resulted from a defective sidewalk, the defendant asked an instruction to the effect that if the sidewalk was constructed by adjacent lot owners then there would be required of the corporation only a certain measure of diligence. The court modified this instruction by saying, “that where a corporation authorizes the lot owner to construct the sidewalk, it is the duty of the corporation,” etc. The modification was held not to be obnoxious to the criticism that it assumed that the corporation authorized and directed the construction of the sidewalk, or that it was done under its supervision, when that was a contested point in the case whether the sidewalk was thus constructed, or was built entirely by the lot owner. The word “authorize” imported no more than the corporation allowing the lot owner to construct the sidewalk, as he might well have done under the village ordinance.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, by Clara Luclwig, who sues in her own right, and as guardian of Otto Ludwig and Emma Ludwig, minors, against- the United States Life Insurance Company, on four policies of insurance issued by that company to Otto C. Ludwig, insuring his life.

<p>Appeal—whether a freehold involved. A proceeding to establish and enforce a mechanic’s lien against land, does not involve a question of freehold any more than a bill to foreclose a mortgage, and hence this court has no jurisdiction to review a decree giving the lien, in the first instance, by writ of error to the trial court, brought by one claiming an interest in the land.</p>

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

<p>1. Practice in chancery—findings must support decree where the evidence is not preserved. Where the evidence in a chancery suit is not preserved in the record, no presumptions can be indulged in this court as to what the court below found, but the findings must speak for themselves, and if they are not sufficient to sustain the decree, it will be erroneous, and must be reversed.</p> <p>2. If there is in such a case a finding of facts sufficient to support the decree, this court will presume the evidence warranted the finding, when it is not preserved in the record.</p> <p>3. Where copies of affidavits filed in the county clerk’s office of the purchase of a lot for taxes, and of the service of notice of the time when the redemption will expire, are preserved in the record as exhibits, in a bill to set the tax deed aside as a cloud upon the former owner’s title, a finding in the decree of the court that said affidavits are null and void, and not in compliance with the statute, will not preclude this court from examining the exhibits to see if they are void, and not in compliance with the statute.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the City Court of Aurora; the Hon. C. D. Smith, Judge, presiding.</p>

<p>1. Witness—competency—defendant in chancery for a co-defendant. Where a party defendant in a suit in chancery disclaims any interest in the subject matter of the litigation and the result of the suit, he is a competent witness, both at common law and under the statute, for his co-defendants. Under the practice in chancery, a defendant might always testify for a co-defendant, if his evidence did not necessarily involve his own interest.</p> <p>2. Remainders—of vested and contingent remainders. Where a conveyance of a particular estate is made to support a remainder over, the tenant for the particular estate takes it, and if the remainder-man is in being, he takes the fee. In such a case the remainder is not contingent as to its becoming a vested remainder, because the title vests in the remainder-man on the delivery of the deed. The title thus vested becomes an estate of inheritance, and in case the remainder-man dies before the previous estate is expended, the title passes to his heirs, unless the deed directs otherwise.</p> <p>3. A remainder is vested when there is a fixed right of future enjoyment. A vested remainder is a fixed interest, to take effect in possession after the intervening estate is spent or ceases, but if it be uncertain whether a use or estate limited in futuro shall ever vest, that use or estate is contingent. The fact, however, that the remainder-man may die before the tenant for life, will not affect the vested nature of the estate. It is the present capacity of taking effect in possession, in case the prior estate were determined, that distinguishes a vested from a contingent remainder.</p> <p>4. Where a conveyance is made to a woman, of a life estate, and the remainder to the children of her body, or such as may be living at her death, or the descendants of any one that may be then deceased, it will pass immediately to her children a vested remainder in fee, and not a contingent remainder.</p> <p>5. Statute oe Frauds—sale of land by parol—performance to tahe a case out of the statute. The owner of several tracts of land sold one of them to his agent in this State in consideration that the latter would fence certain others of the remaining tracts, which the agent did according to the terms of the agreement, though no written contract was made, and in 1856 took actual possession of the tract so sold him, inclosed the same, and put a part of it in cultivation, and made valuable and lasting improvements thereon, and kept such possession until in 1879, when he conveyed .the same to a woman for life, with remainder to the children of her body. It was held, that these facts were sufficient to take the case out of the Statute of Frauds, and that the conveyance vested in his grantees an equitable title to the premises conveyed.</p> <p>6. Evidence—as to ownership of land—by paying taxes in former owner’s name. Where a person claimed to have purchased a tract of land from a non-resident owner, for whom he was agent in respect to a large number of other tracts, the alleged purchase being a verbal one, and during a period of thirty years afterward, in paying taxes as agent on his principal’s other lands, he included his own tract in his principal’s list of lands, but there was no proof that he ever charged the taxes on his tract to the principal in any of their settlements: Held, that this was likely a mistake, and the facts did not afford sufficient evidence to show that his claim to the tract alleged to have been bought, was unfounded.</p> <p>7. Chanceby—affirmative relief on answer not proper. A defendant is not entitled to affirmative relief on his answer alone, when it is not made a cross-bill. To obtain such relief it must be on original or cross-bill.</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>

M. F. Tuley, Judge, presiding. Bill was filed in the Circuit Court of Cook county, on the 23d of March, 1881, by Esther E. Taylor, against Simon Reid, Thomas Murdoch, Frederick Fischer, Anton Christian-son Berg, and George S. Bullock, to redeem lots 2 and 4, in block 20, of Duncan’s addition to Chicago, from a sale made under a deed of trust.

<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>

Mason B. Loomis, Judge, presiding. Appellee filed a petition in the county court of Cook county, under section 3 of “An act to aid industrial schools for girls, ” approved May 29, 1879.

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

•• Appeals from the Appellate Court for the First District;— heard in that court on writs of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

Robert R. Wallace, Judge, presiding. This was a proceeding instituted by the telegraph company under chapters 47, entitled “Eminent Domain, ” and 134, entitled “Telegraph Companies, ” of the Revised Statutes of 1874, by petition to the county court of Kankakee county, and change of - venue to Livingston, where a trial was had, with a jury, a verdict rendered, and judgment for $50, and an appeal taken to this court by Lockie, the defendant land owner.

<p>1. Trespass—levy and sale under execution—effect of subsequent reversal of the judgment. Where an execution, fair on its face, is issued on a judgment of a court of general jurisdiction having jurisdiction of the subject matter and of the parties, and levied on a stock of goods which are sold to a third party by the officer, the plaintiff in the execution will not .be liable in trespass, notwithstanding such judgment may have been reversed after the levy and sale, for error. The acts being lawful when done, can not be made tortious by a reversal of the judgment.</p> <p>2. Reversal of judgment—right of restitution. After the reversal of a judgment, the prevailing party is entitled to restitution of the money received under the judgment. He may recover the money collected on it by levy and sale to a third party, as so much money had and received to his use, but there is no liability as for a trespass for goods seized and sold prior to the reversal, under an execution issued upon the judgment.</p> <p>3. Appeal from Appellate Court—the record alone will be considered. This court, on error or appeal, will not notice any proceedings had in the Appellate Court in a different case, which are not presented in the transcript of the record before it, to see on what grounds that court reversed a judgment, nor can it look to the report of such case in that court, where the record shows nothing as to such report.</p>

<p>Highway—penalty for continuing partial obstruction after notice. The building of a fence upon a road, whether across the same or longitudinally with the road, is an obstruction thereof, within the meaning of section 58 of the Road law of 1874, and the person so obstructing is liable to the statutory penalty for suffering such fence to remain upon the road after being ordered to remove the same by the highway commissioners, although the penalty for the original obstruction may be barred by the Statute of Limitations.</p>

<p>1. Description— of property conveyed by deed. It is a rule of uniform application that to pass a thing granted it must be embraced in a general or specific description, and the description must be such as to distinguish it from all other things. The property may be identified by extraneous evidence, but the description in the grant can not be enlarged or restricted by such evidence. Where there is a general and a specific description, the latter must control.</p> <p>2. Effect must be given to a deed according to the intention of the parties, as ascertained from the language they have used; but it is a well established rule of construction that when the description of the property intended to be conveyed includes several particulars, all of which are necessary to ascertain the land to be conveyed, no land will pass except such as will agree with the description in every particular.</p> <p>3. Thus, where a deed describes the premises conveyed as a certain bridge, by its name, then in course of construction, together with the approaches thereto on both sides of the river, and being a strip fifty feet in width, describing such strip, together with all franchises and privileges held by the grantor company by its charter, the grant will be confined to the bridge itself, the approaches thereto, and the company’s franchises and privileges, and all other property owned by the grantor will be excluded, and will not pass.</p> <p>4. A deed of trust by a bridge company described the property conveyed as the bridge named, “and also all and singular such pieces or parcels of land occupied by the railway track, culverts, bridges, trestles and other structures thereon, of such bridge company, as now are or hereafter shall be acquired by said party of the first part, for the purpose of laying thereon railway tracks, to connect or make junction between the railway tracks on said bridge and the railway track or tracks of any other corporation or corporations, person or persons, in or about East St. Louis, together with all and singular the tenements, hereditaments and appurtenances to several lots, strips, pieces and parcels of land belonging or of right appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all rights of way, easements, licenses and claims to or for the use and occupation of the same, and also all the estate, right, title, interest, property, possession, claims and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in and to the above described premises, and every part and parcel thereof, with the appurtenances:” Held, that this description did not embrace land and lots of the bridge company not at the time or since occupied for the purposes named in the deed, or appropriated to such purposes then or since.</p> <p>5. Same—words “tenements, hereditaments and appurtenances." In such a conveyance the words “tenements, hereditaments and appurtenances,” apply to the property previously described, and not to property not before enumerated, and the same is true of the reversions, remainders, rents, issues and profits, which words are expressly confined to the property before described.</p> <p>6. Same—what passes as an appartenance. One piece of land held in fee, or by a lesser title, can not be appurtenant to another tract. Nothing can properly be appendant or appurtenant to anything, unless the principal or superior thing be of perpetual subsistence and continuance. An incorporeal hereditament or an easement may be an appurtenance, and pass as such by a grant of the principal to which it is appurtenant.</p> <p>7. Easement—what constitutes. An easement can only consist of the privilege upon or in the land of another, such as a right of way and the like. From its nature a person can never have an easement in his own land.</p> <p>8. Grant— of franchise, does not carry tangible property. The tangible property of a corporation does not pass as an incident or accession on the sale of the franchise.</p>

<p>Eminent domain—of the damages for right of way for a telegraph line. A telegraph company sought to condemn a strip of land eighteen inches wide and three feet deep every one hundred and fifty feet from the point of beginning, etc., of sufficient width to erect telegraph poles and fixtures thereon, the poles to be set along the line of the right of way of a railroad which was fenced, and the proof showed there would be eleven poles on defendant’s land, which was worth $60 per acre. Three witnesses for the defendant testified that the damages would be $10 a pole, arising from their interfering with the use of farming implements, while three witnesses for the petitioner testified, one that fifty cents, and the other two that one dollar a pole, would be full compensation, and that when the poles pursued the line of the right of way of a railroad company, as in this case, in their judgment there could be no other damage than the value of the land taken. It also appeared that a strip of land six feet wide across the whole tract would be two-tenths of an acre, of the value of $12, at $60 an acre, and such a strip eighteen feet wide would be but six-tenths of an acre, and worth but $36. The jury, by their verdict, gave the defendant $38.50: Held, that the verdict was manifestly too high, and for this error the judgment was reversed.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action brought in attachment by the Laclede Bank against Chauncey H. Keeler. The writ was levied upon a certain tract of land in St. Clair county.

<p>1. Eminent domain—condemnation proceedings in vacation. Under the statute relating to eminent domain, the circuit and county courts are always open for proceedings to condemn land for right of way, and when the summons is quashed the court may order an alias summons returnable in vacation, and when so issued and served ten days before the return day, the court will acquire jurisdiction to assess the compensation to be paid for the right of way.</p> <p>2. Same—amending summons, when no error, though not proper. Where a summons issued by the county court on an application to condemn land for right of way was made returnable before the county court on a day in vacation, and the court caused the same to be amended so as to read “returnable before the judge,” instead of the court, but it was properly served as issued, it was held, that the amendment should not have been made, it having been properly made returnable in the first instance; but it was further held, that as the amendment worked no harm, it presented no ground to reverse the judgment of the court. A summons in such case, returnable before a judge in vacation, means before the court of which he is judge.</p>

<p>Appeal from 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.</p>

<p>1. Chancery—affirmative relief on answer—necessity of cross-bill. Affirmative relief can not be granted to a defendant in chancery upon his mere answer to the bill. To obtain such relief the defendant must file a cross-bill praying for the relief he seeks.</p> <p>2. Upon bill filed to reform a deed in respect to an alleged misdescription of the land intended to be conveyed, the defendant answered, admitting the mistake in the description of the land in the deed, but setting up another and different mistake—that it was intended to convey only a life estate in the land, whereas the deed purported to convey the fee. The evidence on the hearing tended strongly to support the answer, and the court below entered a decree setting the deed aside. It was held erroneous to grant such relief to the defendant in the absence of a cross-bill.</p> <p>3. Same—construction of a bill as to the character of relief sought. The deed in which the misdescription occurred, purported to convey five acres off the east side of a certain quarter section, when the intention was to convey that number of acres off the east side of a forty acres of that quarter section. The bill prayed that the deed be corrected according to the facts, and that so far as it applied to the forty-acre tract not intended to be affected, the deed be for naught held, or that the error or mistake be corrected as the court might deem best, and for other and further relief. It was held this prayer in the bill could not be construed as embracing the setting aside of the deed altogether, on the basis of the defendant’s answer, and thus to obviate the necessity of a cross-bill. The prayer was for the correction of the deed by a further conveyance, in conformity with the facts charged in the bill.</p>

<p>1. Fraudulent conveyance—settlement by husband on his wife. A husband in failing circumstances had conveyed sixty acres of land, including his homestead, in satisfaction of prior loans of his wife to him of $1700, and being pressed by his creditors he procured a loan of $3000 on the land, and the wife gave up her conveyance, and joined in the mortgage to secure such loan, releasing her dower, in consideration that her husband would settle upon her twenty-three acres of the land, including their homestead, agreeing to sign any other deed or mortgage her husband might make to settle with his creditors. The husband, in pursuance of such arrangement, conveyed to her the tract of twenty-three acres, and it appeared that his indebtedness to her was ample consideration for the property conveyed to her above the amount of the homestead exemption: Held, that the conveyance to the wife was upon a sufficient consideration, and valid against the creditors of her husband.</p> <p>2. Same—conveyance by husband to his wife. A husband, though in failing circumstances, may make a conveyance to his wife, when it is made upon a full and fair consideration; and when such conveyances are made in good faith, they will be sustained to the extent of the consideration actually paid, and no further.</p> <p>3. Witness—competency of wife in relation to conveyance to her by her husband. On creditor’s bill to set aside a conveyance of land by a husband to his wife, she is a competent witness to prove the consideration of the conveyance, and its good faith.</p> <p>4. Same—of attorney, as to matters coming to him as such. An attorney at law may testify to facts coming to his knowledge while securing a debt of his client, in a contest betwe'en other parties than his client, the latter having no interest in the litigation.</p>

George W. Wall, Judge, presiding. This was an action of ejectment, brought by the appellee against the appellant, in the circuit court of Marion county. The record showed that William Aird was the. common source of title under whom both parties claimed title, the defendant claiming under a sale made on a deed of trust given by Aird, and the plaintiff under a sale of the same land on execution against Aird, issued upon a decree of the Marion circuit court.

<p>1. Former adjudication—when a bar to relief, or relief on new ground. Where the same matters involved in a suit in equity were involved in a prior suit, though in the United States Circuit Court, and the two suits were between the same parties, the decision in the prior suit will be conclusive on the trial of the second suit brought in the State court.</p> <p>2. Where a suit is brought in the United States Circuit Court to enjoin the collection of a certain tax for certain years, which relief is denied on a final hearing on the merits, and the bill dismissed, this will be a bar to a bill filed by the same complainant against the collectors of the same counties, seeking the same identical relief, although other reasons and grounds may be alleged in the second suit for granting the same. A prior adjudication between the-same parties is conclusive upon them, not only as to the matters actually determined, but as to every other thing within the knowledge of the parties which might have been set up as a ground for relief or defence.</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. Pasties—who may sue—on failure by purchaser at execution sale to make payment. An action of assumpsit will not lie in favor of the plaintiff in execution, against a bidder at sheriff’s sale under the execution, for failing ' to complete his purchase by payment of the purchase money, there being no privity between the parties.</p> <p>2. The sheriff who makes a sale under execution, alone, can maintain an action against the purchaser for a breach of his contract of purchase. The sheriff, in making such sale, does not act as the agent of the creditor, but as an officer of the law in performing a legal duty.</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 Bond county; the Hon. William H. Snyder, Judge, presiding.

<p>1. Appeals and writs op error—by one or more of several parties. Under the provisions of the Practice act, any one of two or more parties to a suit, either at law or in equity, may sue out a writ of error to have reviewed the propriety of any final decree or judgment.</p> <p>2. Franchise —whether involved in suit to wind up affairs of a corporation, and to dissolve the same. Where a bill is filed against an insolvent corporation by certain of its stockholders and creditors, making the other stockholders parties, praying that the affairs of the corporation be wound up and the corporation itself dissolved, and its effects placed in the hands of a receiver, and a decree is granted to the same extent, a franchise is involved in the litigation, and a writ of error must be sued out, if at all, by the corporation from this court, and the fact that some of the defendants have perfected an appeal to the Appellate Court, will not deprive this court of jurisdiction of a writ of error brought by the corporation.</p> <p>3. Service op process—on corporation. On a bill by a director of a private corporation and others, stockholders and creditors of the corporation, the only service on the corporation was by leaving a copy of the summons with the complainant director, the return stating that “the president, clerk, secretary, superintendent, general agent, cashier and principal of said company not found.” The bill alleged that the president and all the other directors and officers of the company were non-residents: Held, that the service as to the corporation was void, the director with whom the notice was left being a party complainant in the suit, and, the service being void, advantage might be taken of it on error as well as in the trial court.</p> <p>4. Receiver—whether properly appointed—to take charge of affairs of corporation. On a bill by a portion of the stockholders, a director and creditor of a private corporation, against the corporation and the other stockholders, alleging mismanagement of the business of the company, its insolvency, its ceasing to prosecute the work for which it was organized, and that it would be useless to resume business, on account of financial embarrassment, and praying for a dissolution of the corporation and the appointment of a receiver, in which the defendant stockholders were properly served by actual or constructive notice of the suit, though the service of summons as to the corporation itself was void, it was held, that a clear case was shown for the appointment of a receiver, and the part of the decree making such appointment was affirmed, while that part dissolving the corporation was reversed for want of proper service on the corporation.</p>

<p>1. Divorce—“extreme and repeated cruelty,” as a ground for divorce. It is difficult to define with precision what is and what is not extreme and repeated cruelty. The same act is not the same thing under all circumstances and to all persons. Necessarily each case must, to a large degree, be judged by itself.</p> <p>2. As extreme and protracted suffering may be produced primarily by operating on the mind alone, threats of physical violence, and false charges of adultery, by a husband against hie wife to her face, maliciously made, are competent evidence to prove cruelty, on a bill for divorce, and when they are accompanied or followed by acts of actual malicious physical violence, they seem to magnify the atrocity of the acts.</p> <p>3. It seems that any willful misconduct of a husband which endangers the life or health of his wife,—which exposes her to bodily hazard and intolerable hardship, and renders cohabitation unsafe,—is extreme cruelty. To amount to such cruelty it is not necessary there should be many acts, and whenever force and violence, preceded by deliberate insult and abuse, have been once wantonly and without provocation used, the wife can hardly be considered safe.</p> <p>4. On the trial of a bill for divorce brought by a wife, the proof showed four or five distinct assaults and batteries upon her by the husband, apparently without provocation, and in addition falsely charging her with a want of chastity, and almost constant insult and abuse within a period of three years, terminating in their separation: Held, that the facts authorized a decree of divorce.</p> <p>5. Same—of the. allegations and proofs. Literal proof of every allegation of a bill in chancery, as, on a bill for divorce as to cruelty, is not required. Substantial proof of the material allegations is sufficient.</p> <p>6. Evidence—as to contents of a letter written by the witness. On the trial of a suit for a divorce brought by a wife against her husband, her brother was called by her as a witness, and on the cross-examination the court refused to allow him to testify to the contents of a letter written by him to the defendant, though he was allowed to state the facts he knew and the state of his feelings: Held, no error in the ruling.</p>

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

Josiah McRoberts, Judge, presiding. By direction of a joint resolution passed by the General Assembly in 1881, the Attorney.

Charles Kelluh, Judge, presiding. This suit was instituted in the circuit court by Thomas L. Johnson, as administrator of Christian L. Johnson, deceased, against the railroad company, to recover damages for the death of the plaintiff’s intestate, occasioned, as is alleged, by the negligence of the company in the management and running of a locomotive and train of cars.

<p>1. Chancery—amendment of bill—multifariousness. After the filing of an original bill to set aside a sale of lots for unpaid special assessments, on the ground that the ordinance under which the assessment was made was illegal and void, a supplemental bill was filed showing a subsequent sale of the same property to the same purchaser, and a redemption from such sales within the time provided by law, but that the purchaser had taken out deeds on the sales, which it prayed to have set aside: Held, that the supplemental bill was a mere amendment, and as an amendment was proper, and that the bill as amended was not multifarious, the matters in the two bills not being distinct and unconnected.</p> <p>2. Same—retaining bill to grant complete relief—effect of amending bill. Where a court of chancery once obtains jurisdiction of a cause on any equitable ground, a subsequent amendment of the bill asking other relief will not deprive the court of jurisdiction to grant complete relief. When the court acquires jurisdiction for one purpose, it may go on and do complete equity between the parties.</p> <p>3. Same—ground of jurisdiction—distinguished from bill to remove a cloud upon title. To give a court of equity jurisdiction of a bill solely to quiet title, or remove a cloud from the title, the complainant must allege and prove possession of the premises, or that they are unimproved and unoccupied.</p> <p>4. But where a bill was originally filed by the owner of land for the purpose of enjoining the execution and delivery of a deed therefor upon an alleged void special assessment, it is not to be regarded as a bill to quiet title or remove a cloud, and does not fall within the rule stated as governing that class of bills. Nor will the character of the jurisdiction in that regard be considered as modified by the filing of a supplemental bill, setting up that the complainant had redeemed from the sale under the alleged void assessment, and that after such redemption the purchaser had taken out a deed, and praying that such deed be set aside and canceled.</p> <p>5. Evidence—questioning judicial proceedings collaterally— confirmation of special assessment. A party by suffering judgment of confirmation of a special assessment upon his property by a court of record, is estopped in a collateral proceeding from showing the illegality of such assessment by reason of the insufficiency of the ordinance on which it is based.</p> <p>6. Same—proof of ownership of land—sufficiency. While a complainant must prove every material allegation of his bill which is denied, yet when his ownership of lots, in respect of which relief is sought, is not a mooted question, his testimony that he purchased the property originally with his own money from C D, in connection with the deed made to him by C D, may be regarded as sufficient proof of ownership.</p> <p>7. Same—to prove redemption from tax sale. The book of tax sales and redemptions which the county clerk is required to keep, and in which to enter all sales for taxes, the quantity sold, name of purchaser, etc., and the name of the person redeeming, the -date and amount of the redemption money, is competent evidence of the facts therein entered, and of a redemption appearing therein.</p> <p>8. Redemption—from sale of land for taxes. Where several judgments are rendered at the same time against land for State and county taxes and special assessments, and the land is sold under such judgments in July, August and September of the same year, the sale being continued through these months, this will be regarded as only one sale, and a party attempting to redeem from such sale must pay the penalty provided by the statute. Section 211 of the Revenue law has no application to such a case, but to a case where the same land is again sold for the taxes of a succeeding year.</p>

John A. Jameson, Judge, presiding. In December, 1877, appellants, who were doing business in Chicago in the ship-chandlery business, wishing to add to their business a sail-making branch, employed appellee to take charge of and manage the sail-making branch of the business. His compensation, by their agreement, was to be a salary of $700 a year and one-half of the net profits accruing from the sail-making. This contract was for one year— 1878.

Writ of Error to the Appellate Court for the First District. This was a motion to dismiss the writ of error upon the ground it was not sued out in proper time.

<p>Appeal from the Circuit Court for the Second District;— heard in that court on appeal from the Circuit Court of Iroquois County; the Hon. Franklin Blades, Judge, presiding.</p>

This is an original application in this court by John B. Zanone, against the authorities of Mound City, to compel them to grant him a license to keep a dram-shop within the city. The respondents demurred to the petition.

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

<p>1. Accommodation paper—defined. Accommodation paper is either a negotiable or non-negotiable bill or note made by one who puts his name thereto without consideration, with the intention of lending his credit to the party accommodated. As between the party accommodated and the maker, the note or bill is not collectible.</p> <p>2. Same—what constitutes accommodation paper. Land actually belonging to A, stood of record in the name of B, who conveyed the same to 0, taking back O’s two promissory notes to B, for $6000 each, secured by deed of trust upon the land, and B, the payee, indorsed the same in blank, and delivered the same to A, with the understanding of all parties that the notes were to be used by him as he pleased, without any restrictions, the conveyance in fact not being in pursuance of any contract of sale: Held, that such notes were to be taken and treated as accommodation paper.</p> <p>3. Same—as to the use of such paper by the beneficiary—and of defences by the maker. It is a principle of general application that the beneficiary of an accommodation note without restriction as to the mode of its use, may transfer it, either in payment of his indebtedness, or as collateral security for a concurrent or even an antecedent debt, and the maker will have no defence.</p> <p>4. As to the holder of an accommodation note into whose hands it has come in the usual course of business for a valuable consideration, the maker will have no defence, and it makes no difference that the holder may have taken the note with full knowledge that it was accommodation paper.</p> <p>5. Same—sale of land for accommodation of vendor—rights of third persons. Although the sale of real estate is colorable and for the accommodation of the vendor or real owner, yet as to third persons who have in good faith acquired an interest in the notes given for the purchase money, or the property itself, the vendee or nominal purchaser will not be permitted to allege his purchase was for the mere accommodation of the vendor, and for that reason not binding on him. As to such third persons all parties to the transaction will be concluded by the record they have made, and it will be treated as an absolute sale.</p> <p>6. Same—release of security for accommodation paper—by whom—and under what circumstances. Accommodation paper, so long as held by the beneficiary, may be negotiated for his benefit even after maturity; and while such paper is in such condition it is not in the power of the beneficiary to release the lien of a trust deed securing the same, given by the maker on land of the beneficiary conveyed to the maker for his protection and indemnity, nor can any one else release the same, and the trustee can not, without evidence of the surrender of such paper to the maker or its cancellation otherwise.</p> <p>7. Same—pledge of accommodation paper, and payment of the principal 'debt—whether a discharge of a mortgage given to secure the paper pledged, as against holders of suck paper pledged a second time. A, the owner of real estate, procured B, in whom the record showed the title, to convey the same to 0, for C’s two notes, of $6000 each, secured by deed of trust on the premises to D, and C then conveyed the premises to A, who conveyed the same by warranty deed to E for the full value of the land. Before the conveyance to E, B had indorsed the notes in blank to A, who had pledged them as collateral security to a bank for a loan of $10,000; but A’s name did not appear upon the notes so pledged, or his interest therein. Afterwards A paid off his debt and took up the notes of O which were pledged, but still left them with the bank, and some time afterwards again pledged them as collateral security for another loan from the bank, and the bank transferred A’s note with the collaterals to innocent purchasers for value. E contended that when A paid off his first note of $10,000, and redeemed the pledge of the notes which were secured by the trust deed, that deed was discharged, and the debt secured by it paid: Held, that the trust deed was not thereby discharged, and that the notes of O, though accommodation paper, still' remained valid obligations in A’s hands, and that the second pledge of them was valid.</p> <p>8. Recording act—claimant under trust deed—conveyances subsequent to suck deed. A person buying or taking as collateral security notes secured by trust deed, is under no obligation to search the records before buying or taking the same, to ascertain what conveyances the grantor in the trust deed, or his grantee, has made since the making and recording of the deed of trust. The law charges such purchaser with notice of conveyances in the direct line of the title he is buying, and nothing more.</p> <p>9. Assignee—subject to what defences. The assignee of a mortgage takes it subject to the same equities that have attached to it in the hands of his assignor. But this rule does not apply to one pledging a note secured by mortgage not payable to him, but held by him under a blank indorsement of the payee, as to which paper he is not a party. Equities against such pledgor will not affect the pledgee or holder of such note.</p> <p>10. The rule that a mortgagor having the oldest equity may make the same defence against an equitable assignee as he could against the assignor, has no application to an assignee or holder of accommodation paper secured by mortgage. The msiker of such paper can not make any defence against one who has taken it in good faith in the usual course of business.</p> <p>11. Same—whether the mortgage should accompany the paper secured. Where accommodation paper which is secured by a mortgage has been indorsed and placed in a bank as collateral security for a loan, it is not essential to the protection of the rights of the bank in respect to the security afforded by the mortgage, that the mortgage itself should have passed to the hands of the bank concurrently with the notes secured by it. The assignment of the notes carried with them an equitable assignment of the mortgage, and it did not matter that the assignee did not at the same time obtain possession of the mortgage. That he could obtain at any time when needed.</p>

<p>1. Plea in abatement—bankruptcy. A plea of the bankruptcy of the plaintiff: and the transfer of his property and rights to an assignee after the commencement of the suit, in abatement of the action, without any prayer of any kind, is subject to demurrer.</p> <p>2. Parties—assignee in bankruptcy—substitution as plaintiff. Under section 5047 of the Revised Statutes of the United States, the assignee, at any time after his appointment, has the right to be substituted as plaintiff, on his request, in an action pending in the name of the bankrupt for the recovery of a debt or other thing which might or ought to pass to the assignee, who may thereafter prosecute the suit the same as if originally brought in his name, and such substitution will furnish a good replication to a plea in abatement of the plaintiff’s bankruptcy.</p> <p>3. Action—commencement of suit—what constitutes, as affecting the limitation of actions. The bringing of a suit is the issuing of a summons or other process to bring the defendant into court. The substitution of the assignee of a bankrupt as plaintiff in a suit, is not to be regarded as the commencement of the suit by the assignee, within the meaning of the United States statute limiting such actions to two years after the assignee’s appointment.</p> <p>4. Limitations—as to suits by assignee in bankruptcy—under the act of Congress—to what suits the statute applies. The statute of the United States limiting the bringing of suits by the assignee of a bankrupt within two years from the time of his appointment, was designed only to apply to suits brought by him, and not to actions already pending in which he maybe substituted as plivntiff, although such substitution may be more than two years after his appointment.</p> <p>5. Same—generally—as to cases embraced in the statute. In construing statutes of limitations, the courts can only hold that they embrace such subjects as are specifically named or embraced in enumerated classes. Gases or classes not enumerated are excluded from their operation by implication.</p> <p>6. Same—does not run during pendency of suit. The Statute of Limitations does not run against a cause of action after a suit thereon is commenced, and during its pendency, and numerous cases hold that the mere commencement of a suit without service within the statutory period, will prevent the statute from becoming a bar.</p> <p>7. Same—effect of making new parties, or introducing new matter, by amendment. Where not only new parties are made in a pending suit, but by amendment also new rights or causes of action already barred are brought before the court, the Statute of Limitations may be properly set up as to such new matter, but not where no new rights are brought into the suit which were not barred when the suit was brought.</p> <p>8. Lien—how created, and by whom—lien of carrier for demurrage. All liens are created by law or by contract of the parties, and when the law gives none, neither party can create one without the consent or agreement of the other. Hence the consignee of goods shipped by railroad is not bound by rules and regulations of the railway company providing for a lien for demurrage, though published] without his or the consignor’s assent thereto 1 when the contract for shipping the goods was made. Even a knowledge of such rules, without assent thereto, will not affect the shipper or consignee.</p> <p>9. Same—presumption as to assent. The law will never indulge in the presumption of assent to rules of a railway company for a lien for damages caused by delay in receiving the goods shipped] from the publication of the same.</p> <p>10. Demurrage—allowable only on maritime contracts. The right to demurrage does not attach to carriers by railroads. If it exists at all as a legal right, it is confined to the maritime law, and only exists as to carriers by sea-going vessels, and even then it is believed to exist alone by contract.</p>

<p>1. Usury—whether recoverable back when whole debt is voluntarily paid. Usurious interest once voluntarily paid on a note or contract which has been fully paid and surrendered, can not be recovered back either in a court of law or equity.</p> <p>2. Same—in, respect to distinct and separate transactions. Where five notes were given, each for a distinct and separate loan, procured at different times, and a note secured by deed of trust was deposited with the holder as collateral security for their payment, and all such original notes were paid and taken up except one, which was assigned, together with the collateral, it was held, on bill to foreclose the mortgage by the assignee against a subsequent purchaser of the mortgaged premises and others, that usurious interest voluntarily paid on the four original notes so taken up could not be allowed as a credit upon the remaining unpaid note, as the giving of the collateral did not convert these several notes into one transaction, but each remained a separate cause of action, the same as before.</p> <p>3. Mortgage—subsequent purchaser—application of payments—duty of holder of mortgage. The holder of a note secured by deed of trust as collateral security, without actual notice of a subsequent purchase from the mortgagor, is not bound to act with reference to such purchaser’s rights in applying payments as a credit.</p>

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

<p>1. Will—whether void for uncertainty— construction as to who are the ultimate takers—and as to the character of the intervening estate. A testator provided by his will: “After all my debts are paid and discharged, that the residue of my property, both real and personal, shall remain as my estate as long as I have a living child,—the rents, use and interests of my estate, both personal and real, I dispose of as follows: First, to my wife I will and bequeath one-third of the net income of my estate, both personal and real, during her life, if she accepts it in lieu of dower. Secondly, I will and bequeath to my children the remaining two-thirds of the net income of my estate,” naming each child, “during the life of their mother, and after the death of their mother the whole of the net income of my estate during their lives; and should any of my children die before the time for the final division of my estate, leaving heirs of their body, then their children shall take the share of their parent until the final settlement of my estate, and at the death of my last surviving child, my will is that my estate be equally divided between my grandchildren, they to share and share alike. Should any of my grandchildren die before the final division of my property, leaving heirs of their body, their children to take the share of their parent. I hereby appoint my son-in-law, Jonathan Eoyse, and my son, Asa F. Mather, to be executors of this my last will and testament. ” It was held, the will was sufficiently certain in its provisions to be enforced, and that the purpose of the -testator was, that all his property, both real and personal, should be kept together as one entire estate, the net income of which, in the meantime, was to go, one-third to his wife during her life, and the remaining two-thirds thereof to his children, and upon the death of the wife the entire net income to go to his children until the death of his last surviving child, and on the happening of that event his whole estate to be equally divided among a class of persons described in the will, who might be living at such period of distribution,—the class who were to be the ultimate takers consisting of the grandchildren of the testator, or the children of such of the grandchildren as may have died before the time of distribution, including as well such grandchildren as may have been born after, as those born before, the death of the testator.</p> <p>2. Same—0/ a devise to a class—who .shall take. The rule is, where a will carves out a particular estate which intervenes the death of the testator and the period of distribution of an estate devised to a class, then all persons belonging to such class, living at the time the estate is to be divided, are included, notwithstanding some of them may have been born after the death of the testator.</p> <p>3. Same—of the sufficiency of the particular intervening estate to support a remainder in fee—devise of the net income of an estate. It has been held that a devise of rents and profits will pass the land out of which the rents and profits are to arise. So where, as in this case, there is a devise of the net profits of an estate to the wife and children of the testator during their lives, that will operate as a devise of the property to them during their lives. And this particular estate so devised to the wife and children is of such character as will support a remainder in fee devised to another, or to a class of persons. In such case the estate in remainder will not vest in possession at the death of the testator so as to cut off any of those properly belonging to the class designated in the will as ultimate takers.</p> <p>4. Same—as to the management of an estate until distribution—by whom. ' In this case, in view of the fact that the net profits of the estate which were to go to the first takers under the will during their lives, must arise out of the personal as well as the real estate, and the direction that the entire estate should be kept together as the estate of the testator until the period for final distribution, and there was no specific direction in the will as to the persons in whose hands the estate should remain, or by whom it should be managed in the meantime, it was held to have been the intention of the testator that this duty should devolve upon the executors named in the will, under their general appointment as executors of his last will and testament.</p>

Writ of Bbbob to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Grundy county; the Hon. Josiah McBobebts, Judge, presiding.

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

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Probate Court of Cook county; the Hon. Joshua C. Knickerbocker, 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. John A. Jameson, Judge, presiding.</p>

This is an original petition, filed in this court, for a writ of mandamus, to compel the commissioners of highways of the town of Oswego to,levy a tax for the payment of the damages assessed for right of way, and proceed to open a road laid out by supervisors on appeal. The facts appear in the opinion.

Writ of Error to 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. This was a bill filed by Cook county against the City of Chicago, to obtain an injunction against the city to restrain it from cutting off the supply of water furnished by it to the Cook county hospital, situated in the city of Chicago.

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