Volume 104 — Illinois Reports

George Gardner, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District, affirming a decree of the Superior Court of Cook county, wherein the appellant, Walter P. Boche, is charged personally, as the assignee of William M. Butler, with one-half the cost of a party wall constructed by appellee, under a written contract with Butler, upon the dividing line between adjacent lots in the city of Chicago, belonging, respectively, to Butler…

<p>1. Taxation—what constitutes an assessment. The schedule returned by a party to the assessor is not an assessment until it is passed upon and approved by the assessor. The schedule is required to enable the assessor to perform his duty of assessing the value of the property. The act of assessing is official, and must be performed by the assessor.</p> <p>2. Same—remedies for grievances in assessment. The statute has provided ample means for all grievances in the assessment of property for taxation, whether by over-valuation, or by imposing the assessment on property not subject to taxation, or on property not owned or liable to be assessed to the tax-payer. The statute embraces every kind of grievance in the assessment of property.</p> <p>3. The statute gives an appeal from the action of the assessor to the town board of review, and again to the county board. On property assessed after the fourth Monday of June, application for relief is given to the county board, under the rules regulating the township board of review, at the meeting of the same on the second Monday of July in each year.</p> <p>4. Chancery—remedy at law. To entitle a party to equitable relief where he has not availed of his legal remedy, he must have used every reasonable effort to have sought his legal remedy. His or his agent’s negligence is fatal in such case.</p> <p>5. In matters of revenue, courts of equity rarely grant relief, and never where the party has means of relief at law, and fails or refuses to pursue his legal remedy, or show equitable excuse for' such failure.</p> <p>6. Same—relief against taxes on the ground of accident or mistake— negligence to pursue legal remedy. A person assessed for taxation who knows of the amount assessed in time to appeal to the county board to have the same corrected for over-valuation, and makes a slight effort to do so by filing objections with the county clerk, who promises to notify him when to appear before the board, which the clerk fails to do, has no ground for equitable relief under the head of accident or mistake. ' The clerk’s neglect, as his agent, is his own, for which he is responsible.</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. William H. Barnum, Judge, presiding.

John A. Jameson, Judge, presiding. The record in this case shows that John George Both, a subject of the kingdom of Wiirtemberg, came to this country, and settled in Chicago at an early day, and there accumulated a large amount of property, consisting chiefly of real estate, which is the subject of controversy in this suit; that in 1855 he married, in Chicago, Madelaine Moser, a native and subject of France, who had a short time before accompanied him bn a return visit from…

<p>1. Taxes—assignee of tax debtob—petition by the collector that the assignee be compelled to pay the taxes. A petition by a collector, of taxes for an order to compel an assignee -of the tax debtor to pay taxes due from the person who made the assignment, out of funds in his hands, which fails to show that any property went into the assignee’s hands to which a lien could attach in any event, and simply charging that he has funds in his hands sufficient to pay the assignor’s taxes, without stating from whom the fund is derived, is wholly insufficient, and is properly dismissed for want of equity,</p> <p>2. Transcript of record—what regarded as a part of the record. This court can not notice a deed of assignment transcribed into the record by the clerk, which is not made an exhibit in the case or made a part of the record in any manner known to the practice.</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 LaSalle county; the Hon. Josiah MoEoberts, Judge, presiding.

<p>Appeal from the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding.</p>

<p>1. Pbactice—when summons issues, and is not delivered to officer, suit does not'abate. Where summons is sued out in a suit at law and placed in the hands of the plaintiffs attorney, who retains the same until the return day, when he gives it back to the clerk with instructions to issue another, which is issued returnable to the next term of the court, and returned duly served, the suit commenced by the issuing of the first summons will not be thereby abated, but will stand continued by law until the next term.</p> <p>2. Commencement of suit—what constitutes. A policy of insurance provided that suit should be brought within one year after a loss, or the action barred. Within the year the plaintiff filed his prceeipe for a summons against the insurance company, and it was issued by the clerk of the court and placed in the hands of the plaintiff’s attorney, who retained the same until its return day, when he handed it back to the clerk, ordering a new writ, which was issued and served returnable to the next term thereafter. The last process was issued after the expiration of the year from the date of the loss. The defendant pleaded the limitation in the policy in bar of the action, and on the trial the court instructed the jury that the suit not having been brought within a year from the loss, the plaintiff could not recover, and a verdict was returned for the defendant: Held, that the court erred in the instruction, and that the suit was commenced when the prceeipe was filed and the first summons was issued by the clerk.</p> <p>3. Jurisdiction of the person of the defendant is not essential to the commencement of a suit at law, hut a suit is not commenced until the court has in some manner acquired jurisdiction, either of the person of the plaintiff, or of the subject matter, or both. The court acquires jurisdiction of the plaintiff when he applies, in the form prescribed by law, for its assistance to compel the defendant to render him his rights. This is done where the plaintiff files his prceeipe for the process he desires, and the court also acquires jurisdiction over the subject matter. The court then has power to carry on the case and see that the defendant is brought into court, and if the clerk refuses to issue the summons for that purpose the court may compel him to do so.</p> <p>4. Jtjbisdiotion—defined. Jurisdiction in a court is the power to hear and determine a cause. It is coram judice whenever a case is presented which brings this power into action. The filing of a prceeipe for a summons in a suit at law brings this power into action, and it, or the law through the clerk, then acts by the issuing of the summons, and a suit is commenced as soon as there is action, or the law requires action.</p>

William H. Barnum, Judge, presiding. In 1863, Mary Clark, Jane, Hannah, and Helen Stewart, the daughters, and Fanny Matthews, the grand-daughter, of Hart L. Stewart, became seized, as tenants in common, of certain real estate'in the city of Chicago. Mary Clark, who died January 11, 1871, devised her interest to Hart L. Stewart, in trust for Stewart Clark.

Herrington exhibited his bill in chancery in the circuit court, against Peck and Booth, by which it was sought to enjoin the defendants from opening a ditch on their own lands, through which the water of certain ponds on the lands of defendants would be discharged upon the lands of complainant. The circuit court dismissed the bill. .

This was an indictment for keeping a common gaming house. A trial in the court below resulted in a, conviction of the defendants, and the penalty imposed was a fine of

In this case an appeal was prayed from the Appellate Court for the Second District. The order granting the appeal, made in vacation, was dated August 23, 1882, and was filed in the clerk’s office August 25. The order allowed an appeal on condition an appeal bond should be filed within thirty days. The cause was heard in the Appellate Court at the May term, 1882, and a judgment of affirmance entered in vacation on the 8th day of August, following.

Walter B. Scates instituted a suit against the Chicago and Northwestern Bailway Company, to recover damages for personal injuries received by him while a passenger on a train upon the railroad of the defendant company, such injuries .resulting, as was alleged, from the negligence of the defendant. A trial resulted in a verdict and judgment for the defendant. On appeal to the Appellate Court that judgment was affirmed.

Pending an application for a rehearing in this cause, the petitioner moved the court to, stay a decision upon that application until the court should come to the consideration of a certain other case which is on the docket of the present term, the reason assigned for such request being that the same questions are involved in the two cases, and that these questions have been very fully argued in the case now pending.

This cause came to this court on appeal from the circuit court of Kane county. A transcript. of the record not having been filed in this court within the time prescribed by the statute, the appellee entered his motion, based upon what is known• ás a “short record,” for a dismissal of the appeal. That motion was allowed.

Writ of Error to the Circuit Court of La Salle county. John McGowan and Thomas Garrity were indicted, and upon a trial were convicted of the crime of burglary, and were duly sentenced to serve a term in the penitentiary. After their trial and conviction the defendants sued out this writ of error to bring in review the rulings and judgment of the court below.

•Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Jo Daviess county. The judgment in this case, as rendered in the circuit court, was for the sum of $5668, .which, with interest and costs, amounted to nearly $7000. On granting the appeal from the circuit court to the Appellate Court the appeal bond was required to be given in the penalty of this latter sum, and the bond was so executed.

The final decree from which this appeal was taken was entered on the 12th day of June, 1882,- of the May term of the circuit court, which ended on the 10th day of June, 1882, so that more than twenty days have intervened between the last day of the term at which the decree appealed from was entered and the sitting of the present term of this court.

<p>1. Behoving ceoud upon titee—requisites of the bill. If the complainant in a bill in chancery, who seeks thereby to remove a cloud upon title to land, is in the actual possession of the land, that fact should be alleged in the bill.</p> <p>2. Same—effect of a sale of the land by party seeking the relief. A sale of land by the owner pending a suit brought by him to remove a cloud from the title, will not operate to defeat the suit. The decree obtained will inure to the benefit of his grantee.</p> <p>3. Chancery practice—jurisdiction—of the pleadings—waiver. In such.suit, if the fact of possession in the complainant be not alleged in the bill, the objection, to be availed of on demurrer to the bill, should be specifically pointed out in the demurrer, according to the practice in chancery. If not made in that mode, or by plea, or by answer, the objection will be deemed to have been waived.</p> <p>4. The court may, of its own motion, interpose the objection of the want of jurisdiction over the subject matter of a suit, at any stage of the proceeding. It is otherwise, however, as to jurisdiction of the parties,—that must be raised by the pleadings. <</p> <p>5. Amendment op record—on petition for rehearing—whether allowable, and on what terms. In a suit in chancery to remove a cloud upon title, which was before this court on error, the answer of the complainant in the original bill to a cross-bill filed by the defendant, as the same appeared in the original transcript of the record, admitted that the defendant in the suit was in possession of the land, and the case was considered in the light of that admission. Afterwards, on petition for rehearing, a certified copy of the answer was filed with the petition, by which it appeared possession in the defendant was denied instead of being admitted, the clerk, in making up the transcript in the first instance, having made the mistake. An amendment of the record in this court was allowed, in respect to the discrepancy between the two copies of the answer, on the terms that complainant in the suit pay all costs subsequent to the entry of the previous judgment in the case.</p> <p>6. Tax deed—service of notice. The notice, required by the constitution as preliminary to the making of a deed for land sold for taxes, served upon a mere laboring man in the employment of the owner, not his business agent, or in any way authorized to receive such-notice, will not be regarded as sufficient.</p> <p>’ 7. Proof of title—on 6ill to remove a cloud. If it appear that the complainant in a bill in chancery to remove a cloud upon the title to land, is in the actual possession of the land, that will be sufficient proof of title to authorize the relief sought, in the absence of proof of title in some one else.</p> <p>8. Awarding execution—in chancery. Upon bill to set aside certain tax deeds as a cloud upon complainant’s title, where, upon granting the relief sought, it is decreed that the complainant pay to the defendant a certain sum in redemption of the property from the tax sale, the decree should award execution therefor, and it is error if the decree omits to do so.</p>

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

John J. Glenn, Judge, presiding. This was a bill in chancery, brought by Harriet Willetts, against Milton L. Willetts, in the Mercer circuit court, to cancel an agreement to provide separate maintenance for the complainant, a mortgage to secure the same, a lease to her for life, and a release by her of her.dower in the estate of the defendant, her husband, made and entered into on July 5, 1880, and then provide separate maintenance other and different from that provided in…

<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. Appeal—from trial cowrt to Supreme Cowrt—in forcible detainer. Unless the validity of a statute is involved in a proceeding in forcible detainer, an appeal will not lie from the judgment of the circuit court to this court, the title to the land not being in question.</p> <p>2. Same—whether validity■ of a statute is involved. In an action of forcible detainer brought before a justice of the peace in Cook county, the venue in the justice’s summons was, “State of Illinois, Cook county,” and “Chicago'district,” and the writ was directed to “any constable Of said district.” The defendants appeared without objection to the process and went to trial, and also on their appeal another trial was had on the merits in the circuit court, and judgment rendered against the defendants: Held, that the validity of the statute of May 30, 1881, purporting to divide Cook county into two justice’s districts, was not involved in an appeal from the judgment of the circuit court, and hence such appeal would not lie directly from that court to this court.</p> <p>3. Justice of the peace —jurisdiction by appearam.ce. No irregularity in the summons issued by a justice of the peace can affect his jurisdiction of the subject matter, and such irregularity in the process, or service thereof, is waived by the appearance of the defendant and going to trial on the merits. Such appearance confers jurisdiction of the person of the defendant, even if there is no summons or no service whatever.</p> <p>4. Same—appeal cures defects in proceedings before justice. By am appeal from the judgment of a justice of the peace to the circuit court, the defendant so appealing enters his appearance to the cause in the circuit court, and by so doing waives all defects in the process, the want of process, defects in the service of or want of service, before the justice.</p>

- Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John A. Jameson, Judge, presiding.

.George. Gardner, Judge, presiding. The facts material-, to a proper: understanding of this case are, in substance, as follows: On the 10th of May, 1871, Eben F. Eunyan, being the owner in fee of a certain lot of ground in Chicago, Cook county, mortgaged the same to Iza H. Scribner, to secure a loan of $2000, the mortgage being filed in the proper office for record the day it was executed.

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.

This is an original application by the relator in this court to be discharged from imprisonment in the jail of Macon county. The grounds relied on 'for the discharge are sufficiently -stated in the opinion.

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. William H. Barntjm, Judge, presiding.

John J. Glenn, Judge, presiding. Patterson, being the owner of real estate in Knox county, conveyed the same fraudulently for the purpose of delaying and hindering his creditors. Afterwards appellees sued out attachments in suits in Mercer county, brought against Patterson, and caused the writs of attachment to' be levied specially upon the lands, as the property of Patterson, thus fraudulently conveyed by Patterson, the defendant.

<p>1. Evidence—attaching judicial proceedings collaterally—relevancy. On bill by a husband to compel his divorced wife to' restore a conveyance of her land to him, which she had surreptitiously taken from him, and cross-bill by her to set aside such conveyance, on the ground it was procured through the fraud, imposition and treachery of her solicitor in the divorce suit against her, acting in collusion with her husband, testimony tending to show the propriety of the decree of divorce is irrelevant and improper.</p> <p>2. Fraud—as between husband and wife—procuring conveyance of wife's land by fraud—effect of adultery on the part of the wife. A married woman and her brother, having acquired certain lands by descent, each a moiety thereof, partitioned the same by mutual conveyances, the husband by her consent taking a conveyance from her brother for one-half of a three hundred acre farm, leaving her the owner of the legal title to an undivided half thereof, and the equitable owner of the other half. Pending a suit against her by the husband for a divorce, he obtained her conveyance of the premises through fraud, and the imposition and treachery of her solicitor acting in collusion with him, which deed the wife afterward surreptitiously obtained, and refused to surrender: Held, that a hill by the husband for a restoration of the deed was properly dismissed, and the wife properly restored to her title on cross-bill to set aside her conveyance to her husband, and have the title to the land confirmed in her. The fact that the wife may have committed adultery did not deprive her of her property rights, or the right to protection against the fraudulent action of her husband.</p> <p>3. Administbatios of estates—application of rents and profits arising from lands belonging, in equity, to a third person. Where a deed from a wife to her husband has been set aside as having been obtained by fraud, and the title to the land found to have been, in equity, all the time in the wife, subject to a mortgage given by her and her husband, and his rights growing out of the marriage relation, during his lifetime, his executors will have no authority to apply the rents and profits of such land accruing after his death to their own use, or in payment of the general creditors of the estate. After the death of the husband the rents and profits belonged to the wife, subject to the rights of the holder of the mortgage to have them applied on the mortgage.</p> <p>4. Same—power of executor with condition attached—as to payment of debt under direction in will. In such a state of case, where the husband, by his will, directed the payment of the mortgage debt'out of the income to be derived from the land, it was held to be the duty of his executors to pay the debt out of assets of the estate, whether it was allowed or not by the county court. The direction by the testator to pay the debt was a recognition of the justness of the claim, and if the direction to pay was coupled with a condition that could not be legally performed, the condition should be rejected, leaving the direction to pay absolute.</p> <p>5. Same—debt of testator created in purchase of outstanding dower right in wife’s land—mortgage by husband and wife on her land to secure the same—primary liability of husband’s estate. Where a husband has a freehold estate as tenant by the curtesy initiate in his wife’s land, subject to a dower interest in the widow of the wife’s deceased father, and to extinguish which dower interest he gives his note to the dowress, secured by a mortgage from him and his wife on the same land, the mortgage debt will be that of the husband, and not that of the wife, and his estate is the primary fund for its payment, although his life estate in the land may have been terminated by his death, and the wife’s estate in the land, as between her and his legal representatives, will be treated-as only secondarily liable.</p> <p>6. Mobtgages—application of rents and profits—party treated as mortgagee in possession. Where a husband and wife give a mortgage to secure a debt of the forrner, upon her land* and the husband dies, whereby his life estate in the land is terminated, the rents and profits accruing therefrom after his death will belong to the wife, until the mortgagee interposes and appropriates the same; and where the executor of the deceased husband procures an assignment of such mortgage for her use and benefit, all rents and profits received by her afterward should be applied from year to year upon the mortgage debt, less the taxes and necessary repairs, as with a mortgagee in possession.</p> <p>7. Pabties—on bill for account of rents and profits by mortgagor against assignee of mortgagee. After the-giving of a mortgage by a husband and wife upon the land of the latter for the debt of the former, he obtained a divorce from the wife, and again married. After his death, his widow, who was also one of his executors, and in possession of the land, procured an assignment of the mortgage debt to one in trust, for her use: Held, that the widow, both as executrix and mortgagee in possession, and her trustee, the legal holder of the mortgage debt, were not only proper but necessary parties to a bill by the former wife and owner of the land for an account of the rents and profits of the land since the death of the husband, and that it was error to dismiss a supplemental bill making such persons parties, when the change in interest occurred after the filing of the original bin.</p> <p>8. Pleading—striking out irrelevant and impertinent matter. The object of a pleading of any kind is to state the facts upon which the rights of the parties depend, and nothing more. When a bill in chancery contains irrelevant and impertinent matter, such as mere legal arguments and reasons occurring to counsel why this or that step should or should not be taken, and the violation of the- rule of pleading is palpable and gross, the court itself will direct that the irrelevant and impertinent matter be eliminated.</p> <p>9. Pleading and evidence—relief in chancery must be warranted by the pleadings. It is a familiar rule of chancery practice that no relief will be decreed which is not warranted by the general scope of the pleadings.</p> <p>10. A husband obtained a decree of divorce against his wife, in which proceeding she was allowed $500 per annum alimony. In that proceeding the husband, through fraud and imposition, and the treachery of the solicitor-of the wife in the suit, who was acting in collusion and concert with the husband, procured from her a conveyance of her farm of three hundred acres of land. On discovering the fraud she filed her bill to set aside the agreement and conveyance by which her husband acquired title to her lands, but in it did not seek to impeach the decree of divorce and alimony. It was objected that it was inequitable tó set aside the conveyance and permit the decree for alimony to stand: Held, that in the absence of anything in any of the pleadings seeking such relief, the court was justified in refusing to disturb the decree for alimony. The seeking of her rights in respect to her property did not affect at all the binding force of the decree for divorce and alimony.</p>

<p>1. Evidence—proof of custom—as bearing on the question of comparative negligence. In a suit against a railroad company to recover damages for causing the death of.the plaintiff's intestate, on the ground of negligence, it appeared that the deceased, at the time of the injury, was engaged in his duty of inspecting cars then standing in a yard kept for that purpose, and was under a standing car, examining the same, which, by being suddenly struck by other cars in motion, caused the injury resulting in his death. It further appeared, the defendant, in taking some of its cars to the yard, there to be left, detached them from the engine propelling them before entering the yard, and suffered the ears, without any brakeman to control their momentum, to enter the yard and strike the cars then standing on the track, and thereby causing the injury. It was also shown that the deceased, who was engaged as car inspector about the yard, placed no signal on the track to notify the switchman or any one else that he was engaged in inspecting the cars, and that no warning was given the deceased, by bell, whistle or otherwise, of the approaching cars. On the trial the defendant asked a witness what the custom was, at the time of the accident, in letting cars into the yard .on tracks, and permitting them to run against standing cars, which the court refused to allow: Held, that the question was proper, as, if such was the custom, the answer would have aided the jury in determining the degree of care the deceased observed, and whether he was guilty of such negligence on his part as to prevent a recovery.</p> <p>2. Same—construing rule of a railroad company. A question calling" upon a witness to state whether, under a certain rule of a railroad company, there would be any objection to doing a thing a certain way, is not proper, as calling upon the witness to construe the rule, which is not within the domain of verbal evidence.</p> <p>3. Same—as to what constitutes negligence. In an action based upon alleged negligence of the defendant, it is not allowable to prove by a witness that the act complained of was not negligence, or objectionable. It is for the jury to say, from all the facts and circumstances, whether an act constitutes negligence.</p> <p>4. Instbtjction—summing up facts on one side only. An instruction is calculated to mislead, and erroneous, which sums up all or a number of the facts the evidence tends to prove on one side, and omits all on the other, thus impressing on the jury that the facts recited are the only ones that are important in the case.</p> <p>5. Ebbob will not always bevebse—giving improper instructions. Whether a judgment will be reversed because of erroneous instructions, depends upon whether they did, or probably did, mislead the jury to find an erroneous verdict. When it can be seen they did not produce such effect, the judgment will not be reversed, but it will be reversed when the case is not free from doubt. ,</p> <p>6. Pbactice—instructing jury to find for the defendant. Where there is evidence tending to show a right of recovery in the plaintiff, the court should not instruct the jury, on all the evidence, to find for .the defendant.* </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>

Sidney Smith, Judge, presiding. This is an action of debt, by James Bolton, against the Board of Education of District No. 3, town 37, range 11, in Cook county, upon four bonds, executed by the directors of said district, for $500 each, and payable to A. H. Andrews & Co., by. whom they were indorsed to the plaintiff.

<p>1. Appeal—reviewing questions of fact—as to comparative negligence. In an action by an administrator to recover damages of a railroad company for negligence, causing the death of the intestate, the question of negligence, and its comparison as between the deceased and the defendant, is one of fact, and whether it is found correctly can only be inquired into by the Appellate Court.</p> <p>2. So, where a jury has found, from the evidence, that the act of a passenger in alighting.from a train, at the time and under the circumstances appearing, was slight negligence, and the negligence of the servants of the railroad company in starting its train, when compared with that of the passenger, was gross, and such finding is sustained by the Appellate Court, it is conclusive on this court, and can not be reexamined.</p> <p>3. Negligence—as to what constitutes negligence. The value of a certain fact in evidence depends largely on the attendant circumstances. Hence what acts are negligent, depends upon other facts and circumstances. It may be true that alighting from a train of cars while in motion is negligence, when the railroad company is not in fault, and the team has considerable speed, but it is not necessarily true when it is a question of comparative negligence.</p> <p>4. Same—as a question of fact. It is the settled doctrine of this court, that what is or is not negligence in a particular case is a question of fact to be found by the jury, and it is equally well settled that a question of comparative negligence is one for the jury.</p> <p>5. Practice—instructing jury as to right of recovery. If a plaintiff by the evidence establishes a liability on the part of the defendant to him, he will have a right to a recovery, and it is not error to so instruct the jury, leaving them to find the amount of the damages from the evidence.</p> <p>6. New trial—excessive damages. Fourteen hundred dollars damages in an action by an administrator against a railroad company, to recover for gross negligence, causing the death of the plaintiff’s intestate, even if this court may review the case as to damages, is not so large as to require a reversal.</p>

C. B. Smith, Judge, presiding. This was an action of ejectment, brought by Deborah Henderson, against William Blackburn, for two certain tracts of land, situated in Clark county. There was a judgment for the defendant, and the plaintiff appealed. Both' parties claim title from a common source,—the will of Julius H. Blackburn, deceased, who died testate January 12, 1869.

<p>1. Limitations—act of 1839—what is color of title. A quitclaim deed for a parcel of ground which includes a strip claimed adversely by another party, is color of title to such strip, under the seven years Limitation law, and possession and payment of taxes thereon, under such claim and color of title, for seven successive years, will be a bar to a recovery in ejectment under such adverse claim or title.</p> <p>2. Same—possession not lost by use in others subordinate to the party claiming. The use of a strip of land adjoining a party’s lot, by the claimant’s permission, in connection with other property adjoining it, as a common driveway by others, and also by himself, does not impair such claimant’s possession under the Limitation law. In such case the use of the strip is not adverse, but strictly in subordination to his right of possession.</p> <p>3. Evidence—on question of possession under claim and color of title. The signing and acknowledging of a plat of certain grounds, for the purpose of describing the land of the signer, and that adjacent thereto, by numbers, for conveyance and taxation, in which a strip of land was marked as belonging to another, and the declaration of such signer that his land only came to a certain fence, which would not include such strip, is competent evidence against such party on the question of possession under claim and color of title.</p> <p>4. Same—admissions—declarations—of their weight as evidence. In order to make an admission or declaration of a party of any value as evidence, it ought to appear that it was made by the party with a full knowledge of his rights, and deliberately. If made in ignorance of his rights, it amounts to nothing. The jury, in weighing such evidence, should consider all the circumstances throwing light on the admission.</p> <p>5. Same—declaration of former owner of land, as affecting title. On the trial of an action of ejectment, the plaintiff, who claimed title under one H., proposed to prove by a witness that once, while he and H. were looking at the land in dispute, the witness proposed to buy it of H., but H. declined to sell it, for the reason that he wanted it for a driveway, which the court refused to allow: Held, that this evidence was not admissible on the ground that it was a part of the res gestee, nor on the ground that it was a declaration against interest.</p> <p>6. Same—declaration as to disputed boundary. Nor is such evidence admissible on the ground it was a declaration as to the boundary line between H. and the defendant, it not being shown that H. was in possession of the land, and that there was any dispute then,- in regard to the boundary line, between H. and the .defendant, especially 'when the effect of such evidence was not to settle a boundary line, but to show title in H.</p> <p>7. Estoppel in pais—not available in an action of ejectment. Estoppels in pais affecting permanent interests in land, can only be made available in a court of equity. They can not be used in the.trial of an action of ejectment.</p> <p>8. Same—declarations must have been acted on. The declarations of a party not made with a knowledge of the facts, or with the intention they should be acted on, or which, in fact, have not been acted upon, will not constitute an estoppel in pais.</p> <p>9. Description—sufficiency as to certainty. A description of land, in a tax receipt or deed, as, the “North side S. "W. \ of block 2,” etc., is not void for indefiniteness and uncertainty. Those words mean the north half of the south-west quarter of the lot. Mathematical accuracy is not indispensable, and descriptions are not to be rejected because they are awkwardly and inaptly expressed. If, taking the language in the connection in which it is used, the meaning is reasonably clear to the ordinary apprehension, it is sufficient.</p>

<p>Pleading and evidence—as to claim against an estate, alleged to arise “as per contract.” On a claim filed in the county court, against an estate of a deceased person, for work and labor done, and for boarding, care, and money expended “as per contract, ” a recovery may. be had upon an implied contract. On prooi of such services, etc., under circumstances showing they were not mere gifts, a recovery may be had without proof of a special contract for the payment.</p>

<p>1. Ebrob—when will not reverse. This court will not reverse a conviction in a criminal case for every trivial error, without regard to whether it exerted an improper influence over the jury or not.</p> <p>2. Instructions—their office. The office of instructions is to inform the jury what the law is relating to the case in hand, and to assist them in applying it to the evidence before them; and it is the duty of courts of review, in criminal cases, to see that no substantial error is committed in attempting to accomplish these objects, which may prejudice the rights of the accused, and this is all the law requires.</p> <p>3. Evidence—acts, declarations and exclamations of persons as part of the res gestee. Where it becomes important to show, upon the trial of a cause, the occurrence of any fact or event, it is competent and proper to also show any accompanying act, declaration or exclamation which relates to, or is explanatory of, such fact or event. Such acts, declarations or exclamations are known as res gestee.</p> <p>4. On the trial of ope upon a charge of rape, two witnesses were called who were near by and witnessed the perpetration of the offence, and who testified they s'aw and readily recognized the accused near the scene of the . transaction on the next day thereafter, and that one called the attention of the other to the accused, exclaiming, “There goes the man!” and that the other replied, “Yes, there he goes.” The defendant objected to the witnesses repeating their exclamations made at the time, but the court permitted the same: Held, no error.</p> <p>5. The true test of the admissibility of such testimony is, that the act, declaration or exclamation must be so intimately interwoven with the principal fact or event which it characterizes, as to be regarded a part of the transaction itself, and also to clearly negative any premeditation or purpose to manufacture testimony.</p>

<p>1. • Chancery—illegal contract will not be enforced. Where property is conveyed to trastees in trust, for the benefit of a railroad company, under a contract which is contrary to public policy, and illegal, a court of equity will not aid either party in any effort he may make to reap the benefits which may flow from such illegal contract.</p> <p>2. So, where the owner of lots conveyed the same in trust, for the benefit of a railroad company, in consideration of the illegal agreement of the company not to establish any depot or station within three miles of a certain place on its road, and the trustee afterward reconveyed the property back to the grantor, it was held, that the company could not maintain a bill to have the lots sold for its benefit, and have the same again conveyed to a trustee for its benefit, nor could it claim the right to have the taxes paid on the lots made a charge thereon for its reimbursement.</p> <p>3. In determining whether a contract is illegal, the entire contract on both sides will be considered, and if the consideration is illegal, no part 'of it will be enforced. One part can not be disregarded and the other enforced.</p> <p>4. Same—reimbursing party for taxes paid by mistake. If a party pays taxes on land which belongs to another, under the mistaken belief of ownership, a court of equity will not grant him any relief by which he may be reimbursed the sum paid.</p>

<p>1. Statute of Frauds—verbal contract to convey land. A verbal agreement by a person to convey lands to another, in consideration that the latter would remain with her family on the place of the former, and make a home there for the owner so long as he should live, is within the Statute of Frauds, and equity will not enforce the same when there has been no performance that will take the contract out oí the statute.</p> <p>2. Trust—not created by reguest of owner to Ms heirs to convey land. The owner of lands wrote a letter to his brother, who was a prospective heir of such owner, requesting him and his sister, on the owner’s death, to let a certain person have certain of his land for her kindness to him in sickness, and desiring them to see that his wishes as to the bounty be carried out, and subsequently wrote another letter to another person, showing more clearly that the former letter was a mere request, stating in the last letter further: “I give her my note for $4000, against me or my estate. * * * If my people refuse to give her the property, then they must pay the note:” Held, that this created no trust in respect to the land in favor of the person to whom the owner wished it secured, and being a mere request as to what disposition should be made of a part of his property, it was obligatory on no one to perform it.</p>

Owen T. Beeves, Judge, presiding. This was an action on the case, brought by appellee, in the circuit court, against the city of Bloomington, for the recovery of damages for personal injuries occasioned, as it is alleged, by the negligence of the city in permitting a defective sidewalk to remain out of repair. A trial resulted in a judgment for the plaintiff, which, upon appeal, was affirmed in the Appellate Court. The defendant thereupon appealed to this court.

<p>Specific performance—the alleged contract must be proven. In order to entitle a person to the specific performance of an alleged contract to convey land, the contract must be proven. The mere expression of an intention to make a gift of the land will not suffice.</p>

from the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.

This is an original proceeding, commenced in this court by the relator, against the town of Granville, G. F. Morey, supervisor, and W. H. Kibbler, clerk of said town, to compel the issue of the bonds of said town to the relator. The principal facts appear in the opinion.

<p>1. Appeals—only a party to the suit can appeal. The right of appeal is purely statutory, and there is no statute in this State authorizing an appeal by a person not a party to the suit.</p> <p>2. Same—in the case of an information, who may appeal. Where an information on the relation of a person is dismissed by the Attorney General, or on his motion it is dismissed, without any judgment against the relator for costs, and subsequently a motion by the relator to set aside the order of dismissal, and for the court to direct that the cause be prosecuted, is overruled at his costs, no appeal lies in favor of the relator from the orders of the court, for the reason he is no party complainant or defendant, and is not affected personally by the dismissal.</p> <p>3. Same—what is a franchise within the statute relating to appeals. The word “franchise,” as used in the Appellate Oourt act (sec. 8) in relation to appeals directly from the trial court to this court, does not include liberty or privilege merely, but is there used in the restricted sense of a special privilege conferred by grant from the State or sovereign power, as being something not belonging to the citizen of common right. No one can have a franchise to be a relator, and to cause a-prosecution to be carried on in an information.</p> <p>4. Ineokmation—by whom it may be controlled. By the common law the relator in an information can not take any step in the cause in his own name, and independent of the Attorney General. The Attorney General is the only person whom the court will recognize, and he may dismiss the proceeding, if he thinks proper, in the discharge of his official duty.</p>

<p>1. Appeal—reviewing facts. On an appeal to this court from the Appellate Court, in an action to recover damages for a personal injury from negligence or willful act of the defendant’s servant, the facts will not be examined any further than may be necessary to an understanding of questions of law raised,—as, for instance, the propriety of instructions based upon the evidence. The finding of the facts by the Appellate Court, in such case, is conclusive,</p> <p>2. Cabbieb op passengebs—when the relation exists. The purchase of a ticket by a person on a company’s railway, between two stations, creates the relation of carrier and passenger between them, with all the duties the law imposes on each.</p> <p>3. Same—relative duties of railroad carrier and passengers as to getting off and on cars. It is the duty of every railroad company to cause its passenger trains to stop at each station advertised as a place for receiving and discharging passengers, a sufficient length of time to receive and let off passengers with safety, and to provide a reasonably safe way of reaching and departing from their cars at all usual stations, and it is the duty of passengers to exercise ordinary care for their safety in attempting to take passage on railway cars.</p> <p>4. No degree of carelessness or negligence on the part of a passenger will excuse a wanton and malicious attack on him by the conductor or other servant of the railroad company. No matter how negligent a passenger may be for his safety, that will not warrant the infliction of a willful injury by a railroad employe.</p> <p>5. Master and servant—liability of master for acts of servants. In an action for damages against a railway company, the proof showed that the plaintiff, having a ticket, delayed getting upon the train until it had started and got under considerable speed, when he caught hold of the railing at the end of the rear car and stepped upon the bottom step, when he was swung round to the rear of the car, with his back toward it, and in an effort to recover himself swung back, and with his right hand took hold of the other guard rail, and while in that position, it was claimed he was wantonly and maliciously assaulted by the conductor. The court instructed the jury</p> <p>' that if they believed, from the evidence, that plaintiff, under all the circumstances, in attempting to board the1 train acted as a reasonably prudent man would have done under like circumstances, without negligence, and used ordinary care to prevent accident, and that injuries were sustained by him resulting from the willful or wantonly malicious conduct of the servant of defendant acting in the line of his duty, the defendant was liable for such injuries: Held, that while under some circumstances the principles of the instruction might be applicable, it was calculated to mislead the jury under the facts of the case tried.</p> <p>6. Exemplary damages—not given as a matter of right. Where an injury is wantonly and willfully inflicted, the jury may, in addition to the actual damages sustained, visit upon the wrong-doer vindictive or punitive damages, by way of punishment for the wrongful act, but the party is not “entitled” to such damages as a matter of right, and it is error to so instruct, in any case. Whether the party may have such damages, rests largely in the discretion of the jury, under all the circumstances, and they should be left free to exercise their judgment in this respect.</p> <p>7. Instructions—must not ignore important fact beaming on party’s rights. An instruction is vicious which ignores an important fact intimately connected with and affecting the plaintiff’s right, or the extent of the defendant’s liability, which the evidence tends to prove. Thus, in an action against a railroad company to recover for a permanent personal injury to the plaintiff, including one to his spine, claimed to have resulted from an unjustifiable assault upon him by the conductor as he was attempting to board a car while in motion, the proof tending strongly to show that the principal injury, the one to his spine, was caused by a severe strain or wrenching of his body in attempting to get on the train, an instruction which ignores the fact that such injury might have resulted from his own imprudent act, should not be given. It should exclude from the jury all idea that there could be any recovery for injuries sustained by the imprudent attempt to board the car while in motion.</p> <p>8. Same—error when not cured by others. It is not sufficient, in such a case, that some of the defendant’s instructions may have stated the law correctly on such branch of the case. The plaintiff’s instructions should have done the same thing, so that the jury might not be misled by considering one set or the other of the charges given.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding. On April 25, 1873, there was an administrator’s sale of lots 2 and 3, in block 48, in Beardstown, for $364, and a deed, therefor executed to Leo. Eckert and Leopold Eckert, father and son.

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

<p>Appeal—an office is not a franchise. An office is not a franchise, within the meaning of the constitution and the statute prescribing the appellate jurisdiction of the Supreme and Appellate Courts. Therefore, an appeal does not lie directly to this court from a judgment of the circuit court, ousting a party from an office.</p>

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

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

<p>Appeal—whether freehold is involved. On creditor’s bill to set aside certain deeds as fraudulent, and subject the lands thereby conveyed to the payment of the judgments against the grantor, no freehold is involved, and therefore no appeal lies directly from the trial court to this court, from a decree setting aside such deeds as fraudulent, and ordering a sale of the property. Such appeal should be taken to the Appellate Court.</p>

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.</p>

<p>Appeal from the County Court of Jersey county; the Hon. Robert A. King, Judge, presiding.</p>

<p>1. Taxation—rents of land, as distinguished from the lemd itself. Bent arrear is a chose in action, and taxable as a credit, but rent to grow due is a part of the land,—an incident to it, passing as such to a grantee,—and is therefore not subject to taxation against the owner of the land which is also taxed. The taxation of rents before due, is the taxing of something included in the taxation of the land.</p> <p>2. An owner of lands leased the same, for several years in succession, for a cash rent, payable on the first day of January in each year, the terms commencing on the first day of March in the year. The assessor, through a period of years, assessed him with two months’ rent,—that is, from March 1 to the first day of May,-—as having accrued, though not due. The taxes not having been paid on these assessments, suit was brought against the owner to recover a personal judgment for the same: Held, that no recovery could be had, and the judgment below for the taxes was reversed.</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 Morgan county; the Hon. Cyrus Epler, Judge, presiding.

Thomas S. Casey, Judge, presiding. This was a bill in chancery, exhibited in the court below by Kettle, against Ella Douthett, Henry B. Kepley, Bernard H. Wernsing, county treasurer, and the county of Effingham, to set aside a sheriff’s deed to Ella Douthett, alleged to be a cloud upon complainant’s title to certain real estate.

<p>1. Witness—competency—of a-party,-against heirs. 'A party seeking a decree for the specific performance of an agreement of his father to convey to him a tract of land, after the father’s death, as against his heirs, is not a competent witness in his own behalf to prove the contract.</p> <p>2. Specific performance—must be based on contract, and not on expressions of an intent to give. A specific performance of an alleged agreement of a father to convey a tract of land to his son on the performance of certain conditions, will not be decreed when the evidence, instead of showing any contract of the father on the subject, shows only the expression of an intention or expectation on his part to let the son have the land upon his paying off a mortgage on the same, given by the father, which has not been done, and when the rents and profits of the land have compensated the son for all his outlays in respect to the same.</p>

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

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

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

<p>1. Industrial school—not sectarian, within meaning of constitutional prohibition. There is nothing in the various provisions of the act of May 28, 1879, entitled “An act to aid industrial schools for girls,” which authorizes or contemplates the organization of these schools for sectarian purposes, within the meaning of section 3, article 8, of the constitution, prohibiting any appropriation or pay from any public fund, or anything in aid of any church or sectarian purpose, by any public.corporation, but on the contrary, it is expressly prohibited in the last section of the act.</p> <p>2. If, notwithstanding this inhibition in the act, such a school should be prostituted to any church or sectarian purposes, the law affords ample means, for a speedy correction of such an abuse of the act.</p> <p>3. Same—constitution not to be so construed as to deprive the legislature of the power of protecting dependent and unfortunate infants. It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patrice, to protect and provide for the comfort and well-being of such of its citizens as, by reason of infancy, defective understanding, or other misfortune or infirmity, are unable to take care of themselves, and all constitutional limitations must be so construed and understood as not to interfere with thd proper and legitimate exercise of this important governmental function.</p> <p>4. Same—act does not infringe constitutional guaranty of personal liberty. The act of 1879, in relation to industrial schools for dependent infant females, is not obnoxious to the objection that it infringes upon the constitutional guaranty of the personal liberty of the citizen. The restraint which the act imposes is only such as is essential to the comfort and well-being of the unfortunate class brought within its provisions. All governmental and parental care necessarily imposes more or less wholesome restraint.</p> <p>5. Same—remedy for abuses under act. The claim that the act is not well guarded with a view of preventing abuses, is a matter that addresses itself more properly to the legislative than to the judicial department of the government, and if conceded to be well taken, affords no ground for declaring the act unconstitutional. If such objection is well founded, the constitution clothes the judiciary with ample authority to correct any abuses that may arise under the act.</p> <p>6. County—liable for expenses of keeping dependent infant female. "Where an order of the county court is duly and properly made, committing a dependent infant female to an industrial school, under the act of 1879 relating to industrial schools for girls, and is executed by those in charge of such a school to which the girl was sent, the county from which such person is sent will be liable for the reimbursement of the proper expenses of carrying out the order of the court.</p>

Writ of Error to the Criminal Court of Cook county; the Hon. George Gardner, Judge, presiding. John Keenan was indicted in the court below for murder, and upon a trial was convicted. A motion for a new trial was denied, and the accused was sentenced to death. He thereupon sued out this writ of error.

<p>1. Attacking jttdiciab pboceedings cobbatebabby—for mere error —annual allowance for alimony, without limit as to time. A decree for alimony which directs the defendant to pay the complainant $100 per annum, without stating for what length of time this shall be done, is not for that reason vqid, when the court had jurisdiction of the parties and of the subject matter. It will be a good decree for the payment of $100 per annum until reversed on appeal or error. The objection that no limit is fixed for the duration of the obligation imposed, if good at all, is only so in a direct proceeding to reverse the decree.</p> <p>2. Sheeiee’s deed—misrecital as to judgment or decree. A misrecital of the judgment or decree and execution in a sheriff’s deed, where they are so described that they may be fully identified, is not fatal to the validity of the deed. A reference to the decree as a judgment, may be regarded as a clerical error, when it can not mislead any one; and a recital in a sheriff’s deed that the complainant recovered judgment for $175, and costs of suit, when in fact the decree was only for $100, to be paid quarterly, in advance, but there was due $175 on the decree when the exec ition issued, was held to constitute no valid objection to the deed as evidence.</p> <p>3. Evidence—secondary evidence—preliminary proof as to loss of execution. In an action of ejectment by the purchaser of land under execution sale, the affidavits of the plaintiff, and the clerk of the circuit court from which the execution was issued, are competent preliminary evidence of the existence and loss of the execution.</p> <p>4. Same—sheriff’s deed, as evidence of facts recited therein. By the statute, a sheriff’s deed, or certified copy thereof, is made prima facie evidence of the existence, the issuing and contents of the execution under which land has been sold.</p> <p>5. Possession—whether of an entire tract. The visible and exclusive appropriation and use of a part of a tract of land, claiming the whole under color of title, or a deed purporting to convey the whole, is in law the actual possession of the entire tract, except so far as adverse possession may exist.</p> <p>6. Same—possession as evidence of title. Prior possession of land alone is evidence of a fee, and although the lowest, until rebutted by a higher evidence it must prevail.</p> <p>7. Ejectment—by purchaser under execution against the defendant in execution—estoppel. Whatever title a defendant in execution may have to land, passes to the purchaser under the execution, upon receiving a sheriff’s deed on a valid sale; and in an action of ejectment by such purchaser against the defendant in execution to recover possession of the land, the latter will be estopped-from disputing the title of the purchaser.</p>

<p>1. Homestead—in the wife’s land—by what law governed—power of disposition in the wife. A husband’s homestead rights in the lands of his wife are determined by the law in force at the death of the wife, and not by any different law in force at any time prior thereto. Under the law in force since 1874, a wife has no power to devise her homestead to another, and thus deprive her husband of that estate. •</p> <p>2. Same—abandonment—temporary absence. The fact of the absence of a husband from his residence on his wife’s premises for a short time, in consequence of some difficulty with his wife, when he returns during her last sickness, and lives with her on the property till her death, will not be such an abandonment of the homestead as to deprive him of any right the statute gives him, or preclude him from claiming the estate of homestead.</p> <p>3. Constitutionad daw—change of law relating to curtesy, dower and descent. It is competent for the legislature to change the law in regard to descent, dower and curtesy, or abolish expectant rights under such laws, at any time before they become vested estates by the death of the person from whom they are derived, when the land or property of the deceased will pass according to the laws then in force. Any change, however, in the law after that will have no bearing on the parties’ rights.</p> <p>4. Dower of the husband in wife’s land—and his heirship in-respect thereto—change i/n the law after the marriage. A woman, at the time of her marriage, in 1869, owned certain lands, which she retained until her death. By the law in force at the time of the marriage the husband was not entitled to dower in such land; but by the law in force at the time of the death of the wife, (August 30, 1877,) the estate by the curtesy was declared abolished, and the husband given dower in his wife’s real estate, and by section 12 of the Dower act it was provided, that “if a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower, * * * one-half of all the real and personal estate” remaining after the payment of debts. The wife left a will disposing of her land to others than her husband, and’ he renounced the will, and claimed under the statute: Held, that having elected to take under the statute, he became seized in fee of an equal undivided one-half of the wife’s lands.</p> <p>5. Chancery jurisdiction—accounts between co-tenants. A court of equity has undoubted jurisdiction in suits between co-tenants of land for an accounting.</p> <p>6. Chanoeby pbactioe—amending and retaining bill as to rights not passed on. A wife by her will devised the east half of a tract of land owned by her at her death, to her brother for life, with remainder to his children, and the west half to a nephew in fee. At her death, in 1877, she had a husband, who survived her, and continued to occupy the land, and receive the rents and profits of the same. The brother filed a bill against the husband, praying for an account of the rents and profits, and that complainant’s rights in the land be ascertained and declared, and he be declared the sole owner of the east half of the tract for life, free from any claim of the defendant, and for possession, and for other relief generally. The husband having renounced the will, was found by the court to be entitled to one-half of the whole tract in fee, and the bill was dismissed: Held, that the bill should have been retained, and amended, so that a partition might be had and an account taken, settling all the rights of the parties, and for this purpose the order of dismissal was reversed.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Geobge W. Wall, Judge, presiding.</p>

<p>1. Description of land in a deed—sufficiency. Any description of land in a deed by which the property may be identified by a competent surveyor, with reasonable certainty, either with or without the aid of extrinsic evidence, is sufficient.</p> <p>2. A deed for real estate conveyed a number of lots in the town of Athens, St. Clair county, Illinois, referring to the plat of that town, and purported to convey another tract, described as, “also another piece or parcel of land, being all that part of the north-west quarter of the south-west quarter of section 27, lying out of the town, containing,” etc: Held, that the description of the latter tract, taken by itself, was not sufficient in certainty, but that the word “town,” meant the town of Athens, the plat of which is a fixed monument, from which the location of the tract may be found with precision, and hence the description was sufficient.</p> <p>3. Delivery of a deed—presumption as to time. In the absence of other proof, the delivery of a deed will be presumed to have been on the day it bears date, and the subsequent date of the certificate of acknowledgment alone can not overcome this presumption.</p> <p>4. Deed—correcting mistake by memoranáwm at the bottom. To a deed purporting to have been executed on June 12, 1837, was appended a memorandum, to the left of and below the signatures of the grantees: “Interlined, altered and scratched out before signed, Belleville, June the twelfth, eighteen hundred and thirty-eight. ” It was not stated by whom this was made, nor was it shown, except by the mere inference to be drawn from the date, that it was made when the deed was signed: Held, that such entry alone was not sufficient to show there was a mistake in the date of the deed.</p> <p>5. Covenants for title—effect of outstanding title in grantee. Where the holder of the undivided three-fourths of a tract of land conveys the entire estate therein, by warranty deed, to the owner of the undivided one-fourth part, the coveriants of the grantor are not broken by reason of the outstanding title in his grantee at the time the deed was made, and the grantee can maintain no action on such covenants.</p> <p>6. Inuring of title subsequently acquired by grantor. A subsequently acquired title of a grantor inures to the benefit of his grantee by way of estoppel, to avoid circuity of action, and where there is no liability on the covenants of the grantor’s deed there is no foundation for the estoppel, and a title subsequently acquired from his grantee will not inure to such grantee, and thereby make his deed inoperative.</p> <p>• 7. Title—interchange of conveyances. A and B owned land in common, or as partners, the first the undivided three-fourths thereof, and the .latter the other undivided fourth. A conveyed by warranty deed to B, the whole title, and B afterward .conveyed to A the undivided one-fourth of the same: Held, that' by these deeds each party conveyed to the other the interest he held at the time in the land, thus exchanging places, and that B did not own the entire estate, but only one-fourth thereof.</p>

<p>1. Error—as affecting jurisdiction. Where the court acquires jurisdiction in respect to lands in a suit for partition, and to assign dower, it will not be deprived of it by any error in the proceedings, or by any mistake made in the description of the lands set off as dower. Such mistake is a mere error affecting the dowress alone, and will not affect the validity of the decree under which the lands are sold under the proceeding for partition.</p> <p>2. Decree in partition—as to certainty in finding interests of the parties. On a bill for partition and for the assignment of dower, the court in its decree found that the ancestor died intestate, leaving A, his widow, and the other complainants and defendants, seven in number, who were named, his children and only heirs, and also died seized of the lands described in the decree, and that no other person's had any interest in such lands, and then ordered, adjudged and decreed “that partition be made of said real estate among the several parties to this suit, equally, according to their respective shares:” Held, that, taken in connection with the law, the finding of the respective interests of the parties was sufficiently certain.</p> <p>3. The finding in the decree that the deceased owner left a .widow, shows that she is entitled Under the statute to one^third of the lands for life, and a finding that there were seven, and only seven, heirs of the deceased, entitles each under the statute to one-seventh of the lands,—in other words, to an equal division among them. Had the parties derived title by deed, or under a will, it might have been necessary for the decree to have defined the interest of each specifically.</p> <p>4. Same—certainty as to lands ordered sold. A. decree was entered for the partition of certain lands described, and the assignment of a widow’s dower therein, and appointing commissioners to set off the dower and divide the lands, who, after assigning the dower, repotted that the_ balance of the lands could not be divided without manifest prejudice, etc. The court, after approving this report,' decreed that “the balance of said real estate not set off as aforesaid,” etc., “be sold by the master in chancery:” Held, that the decree of sale was not invalid for want of certainty as to the lands to be sold.</p> <p>5. Same—effect of decree as to power of master to convey. In partition, the decree ordered the master in chancery to sell the property, and take from the purchaser “a mortgage on the premises sold, to secure the payment of the purchase money. ” It was held, without reference to the question whether an order to sell, standing alone, would imply authority in the master to make a deed, the order to sell, coupled with the order to take a mortgage on the premises, would permit the implication of authority to convey.</p> <p>6. Judicial sale—confirmation of master’s sale—whether necessary. A sale under a valid decree of a court of equity, in other respects regular, can not be impeached .on the ground alone that the master failed to make report to the court and Obtain a decree of confirmation. But the better practice is to report such sale, and have it confirmed. The rule is different in guardian’s sales, as the statute requires a confirmation of them before the title .passes.</p>

Clair county; the Hon. Amos Watts, Judge, presiding. The bill in equity in this case for an injunction, filed December 27, 1879, sets out that on the 23d day of December, 1876, James A. Smith, the complainant, leased all that part of United States survey No. 764, in St. Clair county, Illinois, which lies west of Water street, in the town of Brooklyn, and extending to the center thread of the Mississippi river, from James Purdy and wife, they then being in the actual…

<p>Writ oe Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

Wbit of Ekbob to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Jefferson county; the Hon. Thomas 8. Casey, Judge, presiding.

<p>' 1. Eight oe wat—in gross, not assignable. Where a grant of a right of way is in gross, it will be personal to the grantee, and incapable of assignznent; but if it is appurtenant to other lands, or an estate, it is the subject of transfer, and will pass by a conveyance of the estate to which it is appurtenant'</p> <p>2. Same—whether appurtenant or in gross. A granted a right of way across his land to B, C and D, fifteen feet wide, to the land of C, as located' by an engineer of a railway company in a section described, “to be used by said grantees and others for railroad and switch purposes,” to revert to the grantor when not so used, otherwise to remain the property of the grantees, their heirs and 'assigns forever, and it appeared that the grantees paid the consideration and constructed the switch at their own expense, and each of the grantees had coal lands adjoining such switch from which they mined and raised coal for transportation over such switch to a railroad, although the land of C alone was mentioned in the deed, and that at the time of the grant the switch had been actually located across the lands of the several grantees. It was held, that the right of way thus granted was appurtenant to the lands of B and D as well as to the land of 0, which alone was described, and as such was transferable to their grantees.</p> <p>3. Deed—circumstances looked to in construing. The ordinary rule that the rights of the parties to a deed must be ascertained from the words of the instrument, is subject to the modification that surrounding circumstances may be taken into consideration in order to ascertain the intention of the parties. Courts must give a common-sense construction to grants, and will consider the state of things and the considerations in view of the parties at the time the grant is made, which move them to its execution and acceptance.</p> <p>4. Same—plat referred to becomes a-part of description. "Where a grant of a right of way from a railroad track to certain coal mines refers to it as having been located by an engineer, the location thus referred to becomes a part of the deed,—a descriptive part of the subject of the conveyance,—the same as if the plat thereof had been set out in full in the deed.</p> <p>5. Easement—presumption that it is appurtenant. Though an easement, like a right of way, may be created by grant in gross, or attached to the person of the grantee, this is never presumed when it can fairly be construed to be appurtenant to some other estate.</p> <p>6. Same—may be in part appwrtenant and partly in gross. In the grant of a right of way to several persons, it may be a right .appurtenant as to some of the grantees, and in gross as to others. There is no incompatibility in such a grant.</p>

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

This was a suit in chancery. The cause was heard in the court below at the February term, 1882, thereof, and taken under advisement by the judge of that court, “to consider the said cause in vacation, and decree to be entered in vacation as of this (the February) term. ” Afterwards, and in vacation preceding the August term of the circuit court, to-wit, on the 12th day of May, 1882, the judge of that court entered a decree dismissing the bill, which decree was entered of…

<p>Appeal from the Circuit Court of Shelby county; the Hon. Jesse J. Phillips, Judge, presiding.</p>

Writ of Eebob to the Circuit-Court of Ford county; the Hon. Owen T. Beeves, Judge, presiding. ■ This was an action of debt brought in the court below, in the name of the People of the State of Illinois against the Wabash, St. Louis and Pacific Bailway Company.

Wbit of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.

Writ of Error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. At the March term, A. D. 1882, of the Criminal Court of Cook county, John Devlin and John Van Liew were jointly indicted for an attempt to rob Edward Dougherty of articles of personal property it is alleged he had on his person. On the trial, Devlin was found guilty in manner and form as charged, and his punishment fixed at five years’ imprisonment in the penitentiary.

<p>1. Partition—parties—persons holding adverse titles. Under the statute the petitioners for the partition of land are required to make all persons known to hold an interest in, or who claim title to, the premises, parties to the proceeding. The jurisdiction of the court is not limited to the line or chain of title under which a part or even the whole of the tenants in common claim. The statute even authorizes the removal of clouds upon the titles involved in the suit for partition.</p> <p>2. Same—statement in bill as to adverse titles. But to bring such adverse or conflicting titles before the court, the bill must state, if known, their nature, and pray for a decree in reference to them. If the nature of the title is unknown, that fact should be alleged, and the holder or claimant can be made a defendant, and required to discover the extent and the nature of his claim, upon which the bill may be amended, so as to pray for the desired relief in respect to it.</p> <p>3. Same—relief limited to case made by the bill. Where a bill for partition shows that certain persons made parties defendant, have or claim some interest in the premises, and asks to have their claims and interests, if any, ascertained, and makes no other statement or prayer as to their interests, it is error to declare certain tax titles, claimed by them, to be irregular and void, and decree the cancellation of their tax deeds, and perpetually enjoin the assertion of any title under them. A complainant can only have such relief as he shows himself entitled to by his bill and proofs.</p> <p>4. Chancery—statement in bill to remove cloud on title. To authorize the court to set aside or cancel tax deeds for land as a cloud on the complainant’s title, the deeds should be set out in the bill, and the objections to their validity alleged, with a prayer for relief against them.</p>

<p>Appeal from the Appellate Court for the Second District; ■—heard in that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.</p>

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

<p>1. Criminal law—larceny—what constitutes. If the owner of goods alleged to have been stolen parts with both the possession and the title to the goods to the alleged thief, then neither the taking nor the conversion is felonious. It can but amount to a fraud. »</p> <p>2. If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending that the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a larceny.</p> <p>3. Same—in the particular case. On the trial of a person on an indictment for larceny, the facts, as shown by the prosecution, were, that one C. entered a place of business kept by one F., to make a purchase, and procured the article desired. The buyer, not having the exact amount of money with which to pay for the article purchased, handed the proprietor a twenty dollar gold coin for the purpose of making “ change. ” The proprietor, on looking over Ids money on hand, said he could not “change” it, and thereupon pushed the coin towards the accused, who was standing near, and requested him to go and get the coin “changed.” The accused took the coin, left the room, and never returned or accounted for the coin. It was held, these facts made a case under the indictment.</p> <p>4. Same—variance—by whom the coin was delivered. It was charged in the indictment that the coin was delivered to the accused by 0., the buyer, while the proof showed it was delivered by F., the proprietor, to whom it had been handed by 0., for the purpose of making “ change, ” and in this it was alleged there ivas a variance. But it was held, that as to the act of delivery, F., the proprietor, was to be regarded as the agent of G., the buyer, and the rule applicable was, what the -principal does by an agent he does by himself. So the allegation was literally sustained.</p> <p>5. Same—in whom was the property in such case—and in whom the title might be alleged. -Under the facts given, the property inUie coin was properly laid in the indictment as being in O.^the buyer. In an indictment for larceny, the property alleged to have been stolen may be laid as being the property of the real owner, or of any person having a special property in it as bailee. But in this case no title passed from 0., the buyer, to either F., the proprietor, or to the accused. It may be, however, that if the property had been alleged to be in F., the proprietor, the accused could not have objected to his title, but that would furnish no objection to the property being alleged in the real owner.</p> <p>6. Same—one good count—general verdict. Where a count for larceny and a count for embeZzleihent are joined in the same indictment, if the count for larceny be good, that will support a general verdict of guilty, although the count for embezzlement be bad.</p> <p>7. Same —joinder of counts. A count for larceny and a count for embezzlement may be joined in the same indictment.</p> <p>8. New trial—newly discovered evidence—in a criminal case. Upon conviction for larceny in converting to the prisoner’s own use a gold coin which had been entrusted to him for the purpose of gettipg the same exchanged for money of smaller denominations, and to be returned to the owner, the prisoner, upon motion for a new trial, presented affidavits of persons who stated that, the prisoner did, on the day of the alleged larceny, ask them to “change” a gold coin of the denomination of the coin alleged to have been stolen. But what particular piece of money it was sought to have “changed,” did not appear, and if it had been shown to be the identical coin delivered to.the prisoner, that fact could not avail him as ground for- a new trial, as the offence was not in failing to get the money “changed,” but in failing to return it, and in appropriating it to his own use.</p> <p>9. Same—questioning competency of counsel assigned by the court to defend a person on a criminal charge. Where the trial court has assigned counsel for the defence of a person charged with a criminal offence, it mil be presumed the counsel so assigned was competent to the duty to which he was appointed, and the question of the competency of such counsel will not be permitted to be introduced as an issue on a motion for a new trial.</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>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>Writ of Error to the. Circuit Court of Will county; the Hon. Josiah McBoberts, Judge, presiding.</p>

<p>1. Paying contract with a city—construed—who are “representatives of property.” A person entered into a private contract with the owners of a portion of the property fronting on a street in a city, to curb, grade and pave the street fronting their property, and the city council afterwards made a contract with the same person, evidenced by an order of record, for the curbing, grading and paving of the street in front of the other property on the street not embraced in the private contract, in which second contract it was recited, that “whereas, the owners and representatives of three-fourths of the property fronting on” the street had made a private contract for curbing, etc., the street, with such contractor, and in which a contract was ordered to be made with the same person to make a similar improvement of the street in front “of the property not represented in said private contract,” at the same price. It was held, that the words “representatives of property,” in the contract with the city, meant only those who had legal authority to represent the property and bind the owners by their undertaking, and not those who might have assumed to represent such property, and that the contract with the city embraced the improvement of the street in front of all the property, except such as the owners, or those having authority to bind the owners, had contracted to have done, so that the two contracts should embrace the entire work on the street.</p> <p>2. In such case the city had the right to levy a special assessment upon any property fronting on the street improved, for the cost thereof, where the owners thereof had not bound themselves to pay the contractor by themselves, or through their authorized agents.</p> <p>3. Special assessment—prima facie evidence of its lawfulness. A special assessment of property for the improvement of a street in front of the same, is of Itself at least prima facie evidence that the property is lawfully assessed, and the burden of proof is upon the owner to show that it is not so assessed, and this may be done by showing that the work on the street was done under a private contract with the owner or his duly authorized agent.</p> <p>4. Same—letting work to'lowest bidder. Where the order and contract of the city of Chicago, for the curbing, grading and paving of a street, or portion thereof, is adopted by a vote of more than two-thirds of the aldermen elected, the law does not require that the work shall be let to the lowest bidder, in order to justify a special assessment upon the property benefited, lor the cost of the improvement.</p>

<p>Evidence of title—under Burnt Records act. The statute known as the “Burnt ^Records act,” makes an “abstract of title made in the ordinary course of business,” prior to the destruction of the title papers and records, competent evidence to show title to land, but not a copy of a “letter press copy” of such abstract, or the “letter press copy” itself, and it is error, in a proceeding under that statute to establish title, to admit in evidence such letter press copy of an abstract, or a copy thereof.</p>

Arthur A. Smith, Judge, presiding. This was a suit originally brought before a justice of the peace of Bock Island county, by Seymour, Morgan & Allen, against Harley Haines, and taken by appeal to the circuit court of Bock Island county, where a trial was had before the court, without a jury, resulting in a finding and judgment for the defendant, which, on appeal, was affirmed by the Appellate Court.

<p>1. Criminal law—finding party guilty of two offences growing out of a single transaction. A party can not be guilty Of robbery and of having received the same goods obtained by the robbery, knowing them to have been so obtained, where there is but a single transaction involved, and a verdict finding him guilty of the robbery, and of the larceny of the goods so taken, and of receiving them, knowing them to have been stolen or acquired by robbery, is inconsistent. The latter offence imports a subsequent and distinct transaction from the robbery, and involves some other person who had previously obtained the property by robbery.</p> <p>2. Receiving- stolen goods—verdict must find their value. There can not be imprisonment in the,penitentiary for the offence of receiving property obtained by robbery, unless the value of the property exceeds fifteen dollars; and to authorize such punishment the verdict of the jury must find the value of the property.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

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

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

Writ op Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.

This was an application on behalf of the city of Gilman, against Franklin Blades, to compel him, as judge of the circuit court, to sign a bill of exceptions prepared in an action wherein Margaret Haley was plaintiff, and .the city of Gilman defendant, tried before him in the circuit court of Iroquois county. The material facts appear in the opinion of the court.

<p>1. Evidence—relevancy to counteract effect of other testimony. In a case involving the question of negligence of a railway company in suffering loose planks to lie on a culvert between the rails of the track, resulting in personal injury to the plaintiff, the evidence was conflicting as to the fact of the culvert being worked upon on -the day before" the injury, the section boss and one H., a servant under him, having testified that no work was done on the culvert on the day claimed. After this the plaintiff’s father and mother both testified that the servant, on the day of the accident, said to them that he told the boss the evening before that it was a dangerous way to leave the planks, without being spiked down. • The court refused to allow the defendant to prove in rebuttal by the boss that the servant never told him anything of the kind: Held, that the proposed evidence, under the circumstances, was proper, and that the court erred in refusing it.</p> <p>2. Same—corroborative in case of conflict. Where there was evidence by the plaintiff that repairs were made by the servants of a railway company, the defendant, on a culvert on a certain day, and that the planks on the same were removed and left lying loose, while on the other side there was evidence that nothing was done to the culvert on ■ such day, which question was a material one in the case, the defendant called a witness who stated that he had been for twenty-three years in the defendant’s employ as a carpenter, his work including that of overhauling and repairing culverts, and was acquainted with their durability and use, and described the manner in which he rebuilt the culvert some nine months before the time of the alleged repairs, and that he left it in good repair, and the witness was then asked this question: “Undisturbed, how long would that condition last?” which the court refused to allow the witness to answer: Held, that the court erred in not allowing the witness to answer, as his answers would have terided strongly to corroborate the testimony on the one side or the other.</p> <p>3. Same—as to witness’ knowledge, or means of knowledge. In the same case a witness for the defendant had testified that on Saturday night before the accident, when he left, there was no place on the culvert where the planks were loose,—no place that he knew of. He was then asked, “Would you have known of it if there were?” which question the court excluded: Held, that the question was proper, and should have been allowed to be answered, although the more correct inquiry might have been to have asked the witness to state what means of knowledge he had as to the condition of the planks.</p> <p>4. Same—as to the occasion for removing the cover from a dangerous excavation. In the same ease a witness on the part of the defendant was asked, “For what purpose, or in what case, would the planking be removed by the company for the purpose of maintaining and operating its road? ” to which question the court sustained an objection: Held, that an answer should have been allowed to the question. The line of inquiry indicated by these questions would tend to settle the disputed question whether work was actually done on the culvert on the day named.</p>

<p>Writ of Error to the Circuit Court of Lee county; the Hon. William Brown, Judge, presiding.</p>

<p>1. Trust— sufficiency of evidence to show. A, in 1867, erected a block of frame buildings, obtaining money from B for some of the cost thereof, B then residing with A, and continuing to so reside until A’s death, and with his widow afterward; but the proof failed to show how much money B furnished, or on what terms or understanding, except that A had often stated that one of the buildings, particularly named, belonged to B. Shortly before A’s death he and his wife executed a deed to B for all the property, which was left with 0, and not 'delivered and recorded until after A’s death. The purpose of this deed was not clearly shown, but it seems to have been left with 0 until A and B should settle their respective dealings, and the interest of each in the property. After A’s death B obtained a loan of, $6500 on the property, giving a deed of trust thereon to secure its repayment, and afterward, the interest, taxes and insurance having reached $2000, and the property being advertised for sale, B applied to the directors of the Firemen’s Benevolent Association to advance money to save the property for A’s widow and minor children, disclaiming title, and offering to waive any rights he might have, and to induce that association to aid the widow, voluntarily conveyed the property to her. That body paid the interest, taxes, etc., and the widow gave it her note for $1200, secured by deed of trust on the property. She died, having devised the property to the association in trust for her minor children, when B filed his bill claiming an equitable title in the property, and seeking to have his quitclaim deed to the widow and her will as to the property set aside, and asking to be decreed the owner of the property: Held, that the evidence failed to establish a trust, or show any kind of equitable title in B authorizing or requiring a conveyance to him of any portion of the property.</p> <p>2. Witness—competency as against heirs defendant. On bill in chancery against the widow and heirs of a deceased person, seeking a conveyance of real estate held by the father of the heirs at his death, the complainant is not a competent witness to testify in his own behalf to anything occurring before the death of the ancestor 6f the defendant heirs.</p> <p>3. Chanoeby practice'—dismissal of cross-bill on dismissal of original bill. Where an original bill is dismissed, on the hearing, for want of equity, there is no error in dismissing also a cross-bill by the defendants, which only seeks to dispossess the complainant from real estate, when the defendants’ remedy for possession is complete and adequate at law.</p>

<p>1. Mortgage—personal liability of purchaser from mortgagor. A grantee of a mortgagor who merely purchases the equity of redemption, is not liable to the mortgagee for any part of the mortgage debt not satisfied by sale on foreclosure; but if he purchases the property of the mortgagor, and-as a part of the contract of purchase assumes and agrees to pay the mortgage indebtedness, he becomes personally liable to the mortgagee, and an appropriate action may be maintained against him to enforce his liability under the contract.</p> <p>2. Where a party receives a warranty deed, containing a clause that it is made subject to a prior mortgage given upon the land by -the grantor to a third person, this of itself will create no personal liability on the part of the grantee to pay the outstanding incumbrance.</p> <p>3. A deed, for the expressed consideration of $15,000, conveyed certain lots, and recited that it was made subject to three mortgages on the property, given by the grantor, whicK'were described, amounting to $10,191, for which conveyance, and another for a house and lot, the grantee therein conveyed to the grantor 560 acres of other land, estimated at the value of some $5000. The deed from the mortgagor provided that the grantee should pay all taxes for the year of the sale, then a lien on the property, but omitted to make provision for the payment of the mortgage indebtedness, and the proof was that the deed of the mortgagor was drawn as the parties had agreed and directed it to be made. It was held, that the purchaser did not thereby assume and bind himself to pay the mortgages, nor did the fact he expected to pay them in time, and even paid some interest on them, operate to fix his personal liability to the mortgagees.</p>

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

<p>1. Rule of goubt—providing preliminary call of docket to ascertain cases for trial, is valid. A rule of court, providing for a preliminary call of the docket of the first fifty cases on the first day of each term of court, on which call the cases shall be either marked for trial, dismissed, or continued for cause shown, and that if neither party answers, the case shall be dismissed, and that at the close of the preliminary call the court will announce the number of cases, not exceeding fifty, subject to a similar call on the next day, is not repugnant to the provisions of any statute, and is a proper and valid rule. Such rule is a proper exercise of the discretion given the court' in section 17 of the Practice act, and is not arbitrary or uncertain itii its operation, and does not necessarily work any hardship.</p> <p>2. Same—all the judges of the court not required to act jointly in making. A rule of court adopted in a branch court of the Superior Court of Cook county, applicable only in such branch, is not invalid or void because not adopted by all the judges of such court, and made uniform in each branch of such court.</p> <p>3. Supebiob Coubt of Cook oounty—powers of judges holding branch courts. The law has empowered -each of the judges of the Superior Court of Cook county to hold a branch court, and this power to act as a court implies authority to exercise the full powers and functions of a court, among which is the power to make and enforce rules of practice not repugnant to the statute. All of such judges being authorized to hold separate courts, each, when so acting, may exercise all the judicial powers of the court.</p> <p>4. Same—each judge holding branch court bound by its rules.' Where a rule of court is adopted in any branch court of the Superior Court, applicable only in such branch court, any of the judges holding that branch will be governed by such rule.</p> <p>5. Constitution—clause relating to courts construed. Section 29, article 6, of the constitution, requiring all laws relating to courts of the same grade to be uniform, etc., refers alone to laws passed by the legislature, and not to mere rules of court regulating practice.</p> <p>6. Practice—dismissal under rule of court. Under a rule of court providing for a call of the docket to ascertain the cases to be set for trial, and that if neither party answers on such call the suit shall be dismissed, an appeal may properly be dismissed, on motion of the appellee, on such preliminary call, the appellant failing to appear or answer.</p> <p>7. Same—when defendant appealing fails to appear, a trial by jury not</p> <p>required. It is not error to dismiss an appeal taken by a defendant from the judgment of a justice of the peace, for want of prosecution, without a trial by jury. The defendant not appearing, the plaintiff is not required to establish his demand before a jury before the appeal is dismissed. 0</p> <p>8. Default—setting aside, a matter of discretion. The setting aside of a default or dismissal of an appeal for want of prosecution, is a matter addressed to the discretion of the court, and the exercise of such discretion will not be interfered with by a court of review unless it is clear that it has .been abused, to the injury of the party in default.</p> <p>9. Same—sufficiency of affidavit for setting aside. Where an appeal was dismissed for want of prosecution, a motion was made fifteen days afterward to set aside the order of dismissal and reinstate the ease on the docket, based on affidavit that the appellant and his attorney were absent from the State, attending to legal business of appellant, at the time the appeal was dismissed, it not appearing that his attorney had no partner or clerk that could have answered to the call of the case, it was held no abuse of discretion in refusing the motion.</p>

<p>Chancery jurisdiction—bill to remove nuisance. A bill in chancery by property owners, seeking to have removed a building in a highway appurtenant and affording access to their property, and to enjoin the closing up of the highway, there being nothing about the building deleterious to the health of the complainants, or such as to render the use of their habitations uncomfortable or dangerous, it being simply inconvenient to have it occupy the street, shows no case for equitable relief.</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. Rollin S. Williamson, Judge, presiding.

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.</p>

Charles S. Zane, Judge, presiding. The Home Insurance Company of New York, the appellant, brought an action in the Sangamon circuit court, against Charles P. Swigert, the appellee, to recover money paid by the company to appellee, as Auditor, under section 29 of the general Insurance act, commonly known as the “reciprocity provision. ” Counsel have embodied in a written stipulation the material facts upon which the rights of the parties depend, from which it appears the…