Volume 105 — Illinois Reports

Rollin S. Williamson, Judge, presiding. This was an action of ejectment, brought by Turpin, receiver of the Fidelity Savings Bank and Safe Depository, against the Baltimore, Ohio and Chicago Railway Company, to recover the right of way used and occupied by the latter,' being a strip of land sixty-six' feet wide, and being thirty-three feet in width on each side of the center line of its roadway, such strip being a part of lots 11 and 13, of Seip’s subdivision of the west…

<p>Appeals—reviewing question of fact. In an action of debt upon an official bond of an officer who had served several years, in each of which he gave a bond, when the only controversy was in what year the officer became a defaulter, a finding by the circuit court that the default happened in the year the bond sued on was given, when affirmed by the Appellate Court, is conclusive upon this court as to the question of fact, and can not be reviewed.</p>

<p>1. Decree—conditional—when inoperative. On bill to foreclose a mortgage, a cross-bill was filed seeking the cancellation of' the mortgage as a cloud upon the title, and a decree entered on the cross-bill finding the sum due on the mortgage, and requiring the mortgagee to release the mortgage on payment of that sum by a day named, and providing that if the payment was not made by that time, the cross-bill should stand dismissed. The money not having been paid, the court at the same term dismissed the cross-bill, and entered a decree of foreclosure: Held, that the amount found to be due in the two decrees could not be added together as the sum required to be paid,—that the first decree was conditional, and became inoperative on the failure to pay, and the cross-bill stood dismissed without any further order; but were it otherwise, the first decree was rendered inoperative by the second decree foreclosing the mortgage, and only the sum found in the last decree could be collected, with the interest and costs.</p> <p>2. Cross-bill—when not necessary. On bill to foreclose a mortgage given by a person claiming to be the conservator of an insane person, against his successor, the latter answered denying that the person executing the note and mortgage was the conservator of the insane person, and his authority to bind the estate, and also filed a cross-bill setting up the same facts as in the answer, but no new facts, and asking to have the noté and mortgage set aside and canceled: Held, that the cross-bill was improperly filed, and should have been dismissed had a motion been made for that purpose. The defence in the answer, if successful, would have barred all future claim under the mortgage, the same as a decree declaring it void.</p> <p>3. Appeal—when freehold is involved. A proceeding to foreclose a mortgage does not involve a freehold, and when the decree is for less - than $1000 no appeal lies from the Appellate Court affirming the decree of foreclosure to this court.</p>

<p>Appeal—does not lie from interlocutory order. An appeal will not lie from a mere interlocutory order in a suit in chancery, as, from an order refusing to allow one to become a party defendant to the bill, there being no final decree in the case. Until such decree is entered it can not be known that the refusal has prejudiced the applicant’s rights.</p>

<p>1. Special assessment—;judgment of confirmation—whether conclusive. If, upon an application for the confirmation of a- special assessment, the court has jurisdiction to render the judgment of confirmation, such judgment will conclude the land owner from questioning any of the proceedings had prior thereto, on a subsequent application for a- judgment and order for sale of the premises. If, however, the proceedings anterior to the judgment confirming the assessment were so defective as not to authorize the court to act at all upon the question of confirmation, then objections to those proceedings may properly be made upon an application for judgment and order of sale, as well as at any other time.</p> <p>2. Same—confirmation, when a valid judgment. Where the proceedings in the case of special assessments anterior to the order of confirmation conform substantially with the requirements of the statute on the subject, the confirmation will be conclusive on the parties interested as to all objections to the proceedings anterior to the judgment confirming the assessments.</p> <p>3. Former adjudication—not on merits, no bar to second suit. Where an application for judgment against" lots for unpaid special assessments is denied by the court, merely for the reason that no ordinance had ever been passed by the city council regulating the action of the city collector in making his report of delinquent lands and lots to the county collector, the order denying the application will be no bar to a second application for judgment, for the reason there was no hearing upon the merits on the first application.</p>

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

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

<p>1. Appeals—finding of facts by Appellate Court. The affirmance of a judgment by the Appellate Court implies a finding of the facts in the same way they were found in the trial court; and where the action is upon a promissory note, and infancy, and illegality of the consideration are pleaded, such finding of the facts upon issues thus formed can not be reviewed by this court.</p> <p>2. Error—will not always reverse. An error in the admission of evidence which does no injury, as, where the same fact has been shown by other unobjectionable evidence, is no ground for a reversal of the judgment.</p> <p>3. Practice-—when to object to question to witness. An objection to a question to a witness comes too late when made for the first time in this court. It should be made at the time the question is propounded.</p> <p>4. Evidence—question to party—whether improper. On the trial of a suit upon a promissory note, in which one of the defences was that the note was given for money due and owing upon a gambling contract for the purchase of options on the board of trade, the court asked one of the plaintiffs, who was a witness in the case, if there was no understanding between him and the defendant that he was to furnish pork or grain, and whether the whole of the transaction, from beginning to end, was not merely to charge the defendant with the differences that might have grown out of the transactions: Held, that there was no special objection to the questions.</p> <p>5. Instruction—modifying, by directing jury to the evidence, no error. The modifying of instructions, by calling the attention of the jury to the fact of their duty to determine the nature and character of the transaction in dispute between the parties, from all the evidence in the case, is not an error.</p>

<p>1. County court—in Cook county—divested of probate jurisdiction. The act of 1877, creating probate courts in counties having a population of 100,000 or more, divested the county courts in those counties of all probate jurisdiction.</p> <p>2. Appeal—dismissed for refusing to pay cost of transcript, etc. An appeal by an executrix from an order of the county court of Cook county allowing a claim against the estate she represented, was allowed and perfected in 1875, but the appellant failed to file any transcript in the case in the circuit court, and in December, 1881, the party in whose favor the claim was allowed obtained from the clerk of the probate court (to which court the records and papers had been transferred) a transcript of the judgment appealed from, and the papers, properly certified, and filed the same in the circuit court, and after giving'the executrix notice, obtained a rule on her to refund the costs paid for the transcript by a short day named, and that in default thereof her appeal be dismissed. The rule not being complied with the appeal was dismissed. On appeal by the executrix from the order of dismissal, the judgment was affirmed.</p>

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

<p>Practice—in trial by court—question of law, how presented. If, on a trial by the court, without a jury, a party desires to raise the question whether a contract offered in evidence is fraudulent in law, or to preserve in the record the ruling of the court as to the law of the case, so as to have the same reviewed, he should require the trial court to give its holding in an appropriate proposition for that purpose, otherwise this court can not know that the court erred as to the law of the case.</p>

Kirk Hawes, Judge, presiding. On the 4th of May, 1876, appellee sued appellant, in the Cook circuit court, in an action on the case, for negligence. The general issue, and also special pleas of accord and satisfaction, and a special plea of release, were pleaded. The similiter was added to the general issue.

<p>1. Contracts—condition subsequent. Where the act on which an estate or right depends does not necessarily precede the vesting of the estate oi right, but may accompany or follow it, the condition is a condition subsequent,—not a conditional.limitation.</p> <p>2. Same—when performance prevented—right becomes absolute. The rule at law is, that if a condition subsequent is possible at the time of making it, and becomes afterwards impossible, by the act of God, or the law, or the grantor, the estate having once vested is not thereby divested, but becomes absolute. It is said, however, that equity will not apply the principle to the extent of the last particular, to make the estate absolute.</p> <p>3. Same—application of the rule. So where a city granted a license to a railway company to construct its road across the streets, upon an express condition that the tracks authorized should be constructed within one year from the time of the grant, and the company was prevented from completing its track within the year from injunctions, and also by the police officers of the city, acting under the direction of the mayor, it was held, the right of the company under the grant was not lost, and the city might be enjoined from interfering with the laying of the track after the expiration of the year, when it is apparent that the same would have been completed within the time limited had it not been prevented by operation of law and the acts of the city authorities.</p> <p>4. Municipal corporation—when bound by acts of its officers. The unauthorized acts of municipal officers are regarded as the acts of the corporation, when they are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation upon the subject to which the particular act relates.</p> <p>5. Decree—construed. A decree enjoining a city from interfering with the construction and operation of a railway through certain streets, can not be construed to prevent the city from the exercise of any legal remedies to prevent the laying of the railroad track across school lots without acquiring the right of way over the same.</p> <p>6. Ordinance—construed, as to leasing railroad to other companies. An ordinance giving a railroad company license to construct its track across and along the streets and alleys of a city, upon the condition it shall permit any other companies, not exceeding two in number, to use its main track, upon such fair and equitable terms as may be agreed upon, will not be construed as prohibiting the company from leasing the use of its track in the city to more than two other companies. Such provision is a limitation, not upon the right of the company to admit other companies to a joint use of its track, but upon the exclusive enjoyment of the estate granted by the city.</p>

D. McCulloch, Judge, presiding Mary Oakley filed her bill in equity, in the office of the clerk of the circuit court of Peoria county, on the 14th of December, 1880, in which she alleged that prior to and on the 22d of July, 1879, she was the owner in fee of sundry real estate in said county, worth, then, $10,000, and then renting for $65 per month, and was all she had; that she was then eighty years old, and had five children, all of age, and without means to support…

John V. Eustace, Judge, presiding. At the September term, 1880, of the Jo Daviess county court, William Ennor presented his petition, under the Insolvent Debtor’s act of this State, for discharge from imprisonment in jail under a ca. sa. execution upon a judgment for debt.

<p>1. Appeal—lies directly to this court in proceeding to condemn. By section 12 of the Eminent Domain act, an appeal is expressly given directly to this court from the judgment of the trial court, in a proceeding to condemn land for right of way, and there is nothing in the Practice act that takes away this right.</p> <p>2. Corporate existence—pro of thereof in a collateral proceeding. The general rule is, that in all collateral proceedings at the suit of an alleged corporation, the introduction of the charter of the company, and proof that the company is exercising the franchises granted, afford sufficient evidence upon the question of the corporate existence of the company. In such case it is. not required to show that the company is a corporation de jure.,</p> <p>3. Same—what is a collateral proceeding. A proceeding for the condemnation of the right of way for a railroad is a collateral proceeding, so far as concerns the question of the corporate existence of the company seeking the condemnation.</p> <p>4. Same—former decision. In this case a railroad company sought to condemn a right of way, under the Eminent Domain act. As proof of its corporate existence the company gave in evidence the special charter under which it claimed to have been organized, and also gave evidence of user of the franchises granted by the charter. This was held sufficient to authorize the proceeding.</p> <p>5. But it was contended the case of Allman v. Havana, Rantoul and Eastern R. R. Co. 88 111. 521, holds a different doctrine; that in that ease it was held, in a suit on a subscription for stock to the company, the defendant could interpose as a defence that the requisite amount of stock had not been subscribed to authorize the company to collect assessments on subscriptions. That decision was under the general Railroad law, and this is under a special charter. It was considered, if this'does not distinguish that case from this, then the former must be limited to cases arising under the general Railroad law, or must be overruled, as the court, on more mature reflection, are convinced it is repugnant to the general doctrine applicable to cases like the present.</p> <p>6. Eminent domain—elements of damage—right of way for railroad across the track of another railroad. The law requiring railroad trains to stop before crossing another railroad, being a mere police regulation, and subject to repeal at any time, the damages sustained by a railroad company for the delay, inconvenience and trouble in stopping before crossing another road seeking a condemnation for right of way across the track of an existing railroad, are too vague, indefinite and contingent to be an element in the assessment of damages, in favor of the road to be so crossed.</p> <p>7. Nor is the increased danger arising from the crossing of the track of one railroad by the trains of another, to be considered as an element of damage in such proceeding. To allow damages on such a claim would violate the rule that they can not be allowed on mere conjecture, speculation, fancy or imagination,—they must be real, tangible and proximate.</p> <p>8. Same—former decision. Nor is this rule in conflict with what was said in Lake Shore and Michigan Southern R. R. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21, where it was held that only such injury and inconvenience as reduce the capacity of the corporation to transact its business, and necessarily result in damage and loss, are elements of damage.</p> <p>9. Same—generally. Direct and immediate damages alone are’recoverable in this class of cases, and remote or merely incidental damages can not be considered. It is that injury which depreciates the value of the property, whether by taking a portion of it or rendering the portion left less useful, or, in case of a railroad company or other corporate body, less capable of transacting its business,—such a hindrance and inconvenience as to occasion loss, or diminish and limit its capacity to transact its business by decreasing the power to transact as much, or necessarily increasing the expense of what may be done, although not diminished; and this hindrance must produce immediate or future loss. If the new structure, when made, does not necessarily abridge the owner’s capacity without increased expense to transact an equal volume of business, then, although there may be inconvenience and annoyance, unless the property is depreciated in value these are not elements of damage.</p> <p>10. Same—damages to elevator. Where an elevator used for the deposit of grain stands on ground considerably above and some distance from a river upon which grain was carried from the elevator, and it appearing that the grain was transferred from the elevator to boats at the wharf through an inclined chute or tube, called a “conductor,” and that a railroad for which a condemnation was sought was proposed to be located between the elevator and the river, and was to be constructed on trestles, and elevated entirely above the chute or conductor, so as not to interfere with the transferring of grain from the elevator to the river, it was held, there was no loss to the owner of the elevator, and therefore could be no damage.</p> <p>11. Same—plans of road as evidence. In a proceeding to condemn a right of way for a railroad over a strip of land between an elevator and a river, the plans by which the company proposes to build the road, as showing the track is to be laid upon trestles elevated so high as not to interfere with the transfer of grain from the elevator to the river in chutes or conductors, are admissible in evidence on the question of damages and compensation claimed.</p> <p>12. Same—nominal damages. In the assessment of damages for the taking of property for the right of way, the amount of the damage must be shown,—not necessarily with precision, but approximately. If damage is shown, but the amount is not approximately made to appear, no more than nominal damages can be allowed.</p> <p>13. Evidence—weight of. In the assessment of damages for a right of way, the jury will be warranted in giving but slight, if any, weight to the evidence of mere experts, based simply on theory and conjecture, as to the damage the construction of a railroad between an elevator and river would be to the owners of the elevator.</p> <p>14. Ebbob will not always reverse—improper instruction to jury. An instruction stating a mere abstract legal proposition having no application to the evidence, though not announcing a correct rule of law, is not such an error as to call for a reversal, when the court can see that it could not have operated to the prejudice of the other party, or have misled the jury.</p>

John A. Jameson, Judge, presiding. In the fall of 1872, appellants, under the firm name of Morris Selz & Co., were engaged in the wholesale shoe and boot business at Chicago, and in the manufacture of shoes and boots at Joliet, with which they, in whole or in part, supplied their Chicago house.

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

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

<p>Appeaii—whether it lies to this court. On a bill by the owner of a lot alleging such ownership and actual possession, and that no proceedings were ever instituted to dispossess him of his title, and that the city in which the lots are, had thrown down his fence, and by force and violence interrupted his possession, and praying for an injunction to prevent any further disturbance of his possession, no appeal lies in favor of the complainant directly to this court from a decree dismissing his bill, no freehold being involved. The appeal in such a case should be, in the first instance, to the Appellate Court.</p>

<p>1. Juror—competency. A person proposed as a juror stated, on his voir dire, he had read an account of the case in the newspapers, but remembered no part of what he read,—-that the account made no impression on his mind, and that he, at the time he was examined, had no impression, and it would not require evidence to remove any impression, but said if the evidence was evenly balanced it might be difficult to decide: Held, that he was impartial, and qualified.</p> <p>2. Official bonds—bond of deputy sheriff—of its form and validity. The statute authorizes a sheriff to take a bond from his deputy, but prescribes no form for the condition. That being so, mere technicalities should not render such bond void. Unless the condition is contrary to public policy or in contravention to the law, such a bond should be upheld and enforced.</p> <p>3. In this case the bond of a deputy sheriff given to his principal, after reciting: “Whereas, the above bounden (deputy) has, by the said (principal), sheriff, been duly appointed deputy sheriff, ” contained this condition: “Now, if the said (deputy) shall well and faithfully perform all the duties of the said office as deputy sheriff that are or may be required of him by law, then, ” etc.: Held, the condition was sufficiently explicit, and the bond was a valid one.</p> <p>4. On the objection that there was no such office as deputy sheriff, as described in the condition of the bond, it was held this did not matter, as the obligors undertook that the deputy should perform all the duties the law imposed upon him, whether the deputyship was an office or a mere place. Moreover, it was considered the word “office,” used in the condition, might as well be referred to the office of sheriff as to that of deputy. The bond was valid and binding, either as a statutory bond or as a common law obligation.</p> <p>5. Same—duty of the obligee towards the sureties—and as to representations by him to them. The mere fact that a sheriff or his principal deputy may have known that another deputy did not make return of executions in his hands promptly on the return days thereof, and still retained him in office, will afford no defence by the sureties of the deputy so in default in an action on'his bond to the sheriff to recover for moneys collected on executions, and embezzled by such deputy, when the sheriff had no knowledge of the deputy’s misappropriation of moneys collected by him, and nothing was brought to the sheriff’s notice to lead him to an inquiry into the conduct of the deputy.</p> <p>6. If, however, a sheriff has knowledge that his deputy, from whom he has taken a bond of indemnity, with sureties, is misappropriating moneys collected by him on executions, and is a defaulter, or is notified of that fact by credible persons, or made aware of it by facts and circumstances, it becomes his duty to require the deputy to settle, ahd remove him from office, and give notice to his sureties; and if he fails to discharge this duty, and keeps him in office, it will be a fraud on the rights of the sureties.</p> <p>7. A sheriff informed persons about to become sureties on the bond of a deputy that it was a rule of his office that all deputies collecting money under executions should report daily and settle for the money so received, and thereby insure the faithful conduct of the deputies, and prevent defalcation in paying over such money, and in case any of them failed to so report he should and would remove him from office. It was held, a failure of the sheriff to remove a deputy for a neglect to make such a report daily, where such representation did not appear to have been fraudulently made, but such was the rule of the office, except that no one had been removed under it, would not operate to release the sureties upon the bond of the deputy, to whom such statement was made. Such statement, if anything, was a contract, and it did not go to the execution or consideration of the bond, nor did it ojierate as a release as to the sureties, although broken and not performed.</p> <p>8. Pleading and evidence—proof of particvdars under general breach. _ A declaration on a bond given to a sheriff by his deputy showed the execution of the bond, with a condition that he should perform all the duties of the office of deputy sheriff required of him by law, and one breach assigned was, that he did not perform all the duties of the office required of him by law, but neglected and refused to account for and pay to plaintiff divers sums of money, in all $5000, which were received by him as such deputy sheriff, which it was his duty to pay to plaintiff: Iield, that under this general breach it was competent to prove various defaults on the part of the deputy in respect to the payment of moneys collected by him on execution, although the particular defaults were not specified in the declaration. The general rule is, that the plaintiff may assign the breach generally, by negativing the words of the covenant or condition.</p> <p>9. Pleading—plea waives grounds of demurrer. A party by pleading over after his demurrer is overruled, waives all grounds of demurrer. He can not both demur and plead to the same pleading at the same time.</p> <p>10. Same—plea not responsive to declaration, etc. To a declaration upon the bond of a deputy sheriff to recover moneys collected and not paid over, the defendants pleaded that there was no record of the recoveries or of the executions named in the declaration; and that no such executions ever existed and came to the hands of the deputy, and prayed that these facts might be tried by the court: Held, that- as the declaration contained no averment of the recovery of any judgments, or that the executions were of record, the plea was not responsive to the declaration, and the first part neither denying any fact alleged nor confessing or avoiding any averment, it was clearly bad on special demurrer; and so was the averment that such executions never existed, etc., this being a question of fact, not to be tried by the record.</p> <p>11. Judgment—when in excess of affidavit of merits. A judgment for a greater sum than the amount claimed in the plaintiff’s affidavit of merits is not erroneous, where the excess is made up by the allowance of interest from the time the affidavit was made until the recovery.</p>

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

<p>1. Specific performance—refused after great delay and default, unexplained. A court of equity will not enforce the specific performance of a contract which has become stale, or where the complainant himself is in, default, when no sufficient excuse appears for the delay or for the default.</p> <p>2. " Same—estoppel by party’s acquiescence in claims of others. Where a purchaser of land thirty years before filing his bill for a specific performance, not having made any payments for the same, stands by and sees others who have bought and paid' for the land make valuable and costly improvements thereon, and allows others to purchase, making no objections, and interposing no claim to the property, during all which time he pays no taxes or assessments on the same, and takes no legal steps to assert his supposed rights, and does not call on those occupying the same and assert his ownership, or call for an account of the rents and profits, and in his bill gives no excuse for his delay and conduct, he will not be entitled to equitable relief, and his bill will be properly dismissed.</p> <p>3. Notice—what is given by the records. Subsequent purchasers of land, in the absence of express notice of latent equities in another than their grantors, can only be affected by such legal consequences as may be fairly drawn from the record itself; and when such records show that the claim of a prior purchaser has been cut off and defeated by a sale or foreclosure, or by a forfeiture of his contract, or of the contract of his vendor, such subsequent purchasers will have the right to rely on what is thus disclosed.</p> <p>4. Purchaser—rights of, defeated, by sale under foreclosure against his vendor, not revived by his vendor’s subsequent purchase. A and B, being the owners of land, contracted to sell the same to C, who afterwards contracted to sell the undivided three-eighths of the same to D. A and B gave deeds of trust on the same land to E, to secure a debt due to a bank, subject to their contract with 0. The bank foreclosed these deeds of trust, making A and B, and C and D, and others, parties, in which bills were sought a decree for the balance of the purchase money due under the contract of sale from A and B to C, and to foreclose and bar all claims of the defendants to the land under such contract, and a decree was entered accordingly, under which the lands were sold, and from which sale no redemption was had. Long after the redemption had expired, 0, by consecutive purchases, acquired reconveyances for a considerable portion of the land sold: Held, that by the foreclosure sale the rights of 0, under his contract of purchase from A and B, were cut off and barred, which also defeated D’s claim, and that the subsequent repurchase of some of these lands by 0 did not revive D’s rights in the property which had been thus cut off.</p> <p>5. Contract of sale—what is a declaration of forfeiture. Where a contract for the sale of land provides that if the purchaser fails to perform any of his covenants the vendor or his assigns shall have the right to declare the contract null and void, a sale by such vendor or his grantee, for a valuable consideration, to another party, is in effect a declaration of forfeiture of the purchaser’s contract.</p>

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

Oweñ T. Beeves, Judge, presiding. This was an action of assumpsit, brought by the De Steiger Glass Company, against C. M. & J. S. Capen, to recover the price of fifty-four gross of Mason’s patent fruit jars, sold and delivered. The contract price was $16 per gross. The defence was that the plaintiff, had. sold and agreed to deliver to the defendants five hundred gross.

<p>Appeal—creditor’s MU involves no freehold, so as to give appeal directly to this court. A creditor’s bill to set aside fraudulent conveyances of a debtor, and subject the lands conveyed to sale for the payment of the creditor’s judgment, does not involve any freehold, and therefore no appeal lies directly from a decree of the trial court dismissing such bill, to this court.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that- court on appeal from the Circuit Court of Stephenson county; the Hon., William Brown, Judge, presiding.

<p>1. Municipal corporation—power to declare use of steam to propel cars in streets a nuisance. Under provisions in a town charter giving the board of trustees the control and supervision of the highways, streets, alleys, public grounds and parks within its limits, and power “to define and declare what shall be deemed nuisances, and to prevent and abate the same, and provide for the punishment of offenders against any order or ordinance passed concerning the same, by fine or imprisonment, or both,” the town authorities will be warranted in passing an ordinance declaring the use of steam as a motive power to propel any street car or other vehicle upon or along any street railway or horse railroad, located or running upon or along any street, etc., in the town, to be a nuisance, and prohibit, under penalties for the violation of such an ordinance, in the absence of any legislative grant authorizing it, the use of steam as a motive power in propelling street cars.</p> <p>2. Same—extent of power to declare a nuisance. Under a general grant of power to declare what shall be a nuisance, town authorities will have no right to pass an ordinance declaring a thing a nuisance which is clearly not such, such as the trade and calling of a physician, druggist, and the like. In all such cases as these, courts, acting upon their own experience and knowledge of human affairs, would say, as matter of law, the exercise of these trades or callings, or things of like character, are not nuisances, and that any attempt to so declare them would be an unwarranted abuse of the power.</p> <p>3. In doubtful cases, however, when a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power to declare and define what shall be nuisances, their action, under such circumstances, would be conclusive of the question.</p> <p>4. On the other hand, there are many things which courts, without proof, will, on the same principle, declare nuisances, as, for instance, the digging of a pit, or erection of a house, or other obstruction, in a public highway, and an ordinance declaring such things a nuisance would be valid on its face, and a conviction might be had under it without any extrinsic proof to show the act complained of was in fact a nuisance. In all such cases it is sufficient to show the existence of the fact constituting the nuisance.</p> <p>5. Of this character is the use of steam for the purpose of propelling street cars along a public street in a thickly populated town, in the absence of any legislative grant. authorizing it to be done. Such a use of steam is, per se, a nuisance.</p> <p>6. Street railway—charter construed-as .to motive power, to he used. A charter authorizing a company thereby incorporated to maintain and operate a street railway along and over a public street in an incorporated town, which is silent as to the character of the motive power'to be used for propelling the company’s cars, will be intended as giving the right to use that kind of motive power which would be most conducive to the best interests and safety of the public having occasion to use the street as a common highway, and which was, at the time of passing the charter, in ordinary use.</p> <p>7. Statute—use of title in construction. As the constitution of 1848 required the subject of all private or local laws to be expressed in their titles, the title of such an act. may be looked to in the construction of the law in connection with the words and .provisions in the .law itself.</p> <p>8. Error—when not material or fatal. The refusal of a trial court, in trying a case without a jury, to pass upon written propositions of law submitted by a party, if an error, is not such a one as to be ground for the reversal of a judgment clearly proper. Error will not always reverse.</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>

M. F. Tuley, Judge, presiding. This was a creditors’ bill, filed to set aside certain conveyances, as being made to hinder, delay and defraud creditors. The relief sought was granted. In this court a motion was made to dismiss the appeal for want of jurisdiction.

<p>Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>1. Railroads—unjust discrimination in freights on a through contract from points in this State to points in another State. The court adheres to the conclusion reached in this case in 104 Ill. 476, holding section 87 of the Railroad act, to prevent unjust discriminations in the rates charged for carrying passengers or freights, to be free from any constitutional objection, and holding a railroad company liable to the penalty imposed by such section for discriminating in the rate of charges as to different contracts for through transportation of freight from points in this State to a point in another State, for different distances, charging a greater sum for the less distance of the entire carriage, than for the greater distance.</p> <p>2. But this court disclaims the idea that the legislature of this State has authority to regulate commerce in any other State, holding, in the absence of anything showing to the contrary, that a single and entire contract to carry freight for a gross sum from a point in this State to a point in another State, necessarily implies that such sum is charged proportionally for the carriage on every part of the entire distance, and that charging a greater sum by a railroad company for freight to a point in another State, from a point in this State less distant than from another point in this State, is an unjust discrimination, prohibited by the statute, where it is not shown that such inequality in the charges is all for carriage entirely beyond the limits of this State.</p>

This was an application in this court for a peremptory writ of mandamus, to compel the respondent, Joseph E. Gary, one of the judges of the Superior Court of Cook county, to sign and seal a bill of exceptions tendered to him. The facts of the case are stated in the opinion of the court.

W. E. Welch, Judge, presiding. It is conceded by all parties in this case, that Henry Lenders, in 1867, made a contract to purchase of Martha A. Paisley the land in controversy, a quarter of a s'ection, at the price of $1750, and gave to her his three promissory notes, bearing interest from date, at the rate of ten per cent per annum,—one for $750, payable June 1, 1868, one for $500, due June 1, 1869, and a third for $500, due June 1, 1870, —and took from her a bond for a…

<p>1. Decree-for payment of money must be according to contract. On a bill for the specific performance of a contract, bearing elate July 6, 1880, for the payment of money, payable in one and two years from its date, with interest, it is error to decree its payment in one and two years from the first day of August, 1880. Should the contract be enforced at all, it must he done as the parties made it.</p> <p>2. Specific performance—matter of legal discretion. An application for the specific performance of a contract is within the sound legal discretion of the court, which is always controlled by the equitable circumstances of the case, and not by the mere caprice of the chancellor.</p> <p>3. Same—character of contract enforceable. Before a court of equity will compel the specific performance of a contract, it must appear that it was founded on a good and valuable consideration, and is reasonable, fair and just in all its parts. If the contract is not fair and just, or its enforcement specifically will he oppressive, or work a hardship, or is inequitable, it will not be so enforced. A court of equity is not bound to enforce every contract, though legal, and there be no sufficient reason for annulling the same.</p> <p>4. Where one partner sold his interest in the firm to another for a sum to be paid in installments, a part in a few days and the balance in one and two years, for which two last installments the purchaser was to give Ms notes, secured by mortgage on real estate, with interest, and it appeared that the vendor concealed the fact that the firm was indebted largely in local debts not appearing upon the firm books, so that the assets of the firm were not nearly so valuable as the purchaser supposed them to be, the account of such indebtedness being kept in a private book of one of the partners, of which the purchaser had no notice, the contract will not be specifically enforced at the suit of the vendor, notwithstanding some delay on the part of the purchaser before refusing to pay, and notwithstanding the vendor informed him he did not know the value of his interest, and that he was only selling his interest, whatever it might be, but the vendor will be left to his remedy at law.</p>

<p>1. Partnership—right of retiring partner to lien on partnership assets for payment of firm, debts. If one partner, on a dissolution of the firm, sells his interest in the partnership stock of goods to his co-partner, relying alone upon the agreement of the latter to pay the firm indebtedness, the retiring partner will have no equitable lien on the goods for the payment of the partnership liabilities, that can be enforced in equity.</p> <p>2. But where, on the dissolution of a partnership, an amount of the stock of goods equal to the firm indebtedness is left with one who continues the business, to be converted into money, with which he is to pay the partnership indebtedness, he can not be held a purchaser, so as to subject the goods to the payment of his individual debts as against the equities of the retiring partner, but he is a trustee of such goods for the payment of the firm liabilities, and the trust may be enforced in equity by the retiring partner for the benefit of the partnership creditors, as'against subsequent purchasers or execution creditors with notice of the equities of the retiring partner.</p> <p>3. Same—articles of dissolution construed, as whether passing title to goods to partner continuing the business. On the dissolution of a partnership, the articles of dissolution provided that an invoice of the goods, etc., and a schedule of the firm debts, should be made, and that the surplus of the assets above the indebtedness should be divided, and that one partner should retain a sufficient amount of the goods, etc., from which he agreed to pay such debts within a given time, and as rapidly as such assets could be realized for that purpose. The partner so retaining the goods continued the business, and a creditor of such partner, having notice of the facts, levied his execution upon the goods. It was held, that the retiring partner could maintain a bill in equity to enjoin the sale on the execution, and have the proceeds of the goods applied in payment of the firm debts, and that the interest of the retiring partner did not pass to his co-partner by the articles, there being no sale thereof.</p> <p>á. Notice—what is, and when inferred. Where a party has notice of facts sufficient to put a prudent man on inquiry, he is chargeable with notice of such facts as might have been ascertained from a prudent investigation. Notice of the character in which a remaining partner holds goods of a firm after dissolution, and retirement of the other partner, may be inferred from the intimate relations existing between such partner continuing the business and his father, they both residing in the same town, and the father being often in his son’s store, and familiar with his business.</p>

<p>1. Consideration—for deed by father to his daughter. Where a father, while not indebted, made a voluntary deed to his daughter of a tract of land, for natural love and affection, and the daughter afterward consented to his selling and conveying the same in consideration of his agreement to convey her another tract, or to pay her for the land so sold, and he afterwards, while he may have been indebted, attempted to convey to her the other tract, but by a mistake in drafting the deed the land was described as in a different township from the true one, it was held, as against a purchaser from the assignee in bankruptcy of the father, of that tract, that the second deed to the daughter was founded upon a valuable consideration, and might be reformed in equity as against the purchaser, he having notice of her equities before his purchase.</p> <p>2. Ebaudueent conveyance—fraud must be shown. Where a deed is alleged to be fraudulent as to creditors of the grantor, fraud must be proved. A voluntary deed made by a father to his daughter, at a time when no indebtedness is shown against him, and when, for aught appearing, he was perfectly solvent, is good and valid, and a second conveyance made by him to her for another tract in case of her relinquishing her right and estate in the land first conveyed, and allowing the father to sell the same and receive the proceeds, being founded upon a valuable consideration, is not fraudulent as to creditors of the father having claims against him when the same is made.</p> <p>3. Eobmeb adjtjdicaton—when no bar. Where land is sold and conveyed by deed, which, by mistake, misdescribes the land, and it is sold by the grantor’s assignee in bankruptcy, the refusal of a motion in the District Court of the United States to set aside the assignee’s sale and deed for the reason the bankrupt had no title to the land sold, is no bar to a bill in equity by the grantee in the first deed to have his deed reformed and the mistake therein corrected, and to enjoin the execution of a judgment in ejectment recovered by the purchaser at the assignee’s sale, the questions involved in the motion and the bill not being the same.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a proceeding by mandamus, in the circuit court of St. Clair county, to enforce payment of a judgment recovered by the appellee, as executrix of William H. Underwood, upon bonds and coupons of the city of East St. Louis.

<p>1. Possession—evidence and presumption of. On proof of a person’s possession of land at a particular time, there may be a presumption of a continuance of such possession thereafter, but not of a prior possession.</p> <p>2. Same—evidence showing. Possession under an unrecorded deed, when shown some four years after its date, will naturally be referred back to a time at or about the date of the deed, when the proof shows that five years after the date of the deed the grantee had a"n old log house upon the tract, and was living in it, coupled with the unusual circumstance that the deed was for only one and a quarter acres in the corner of a forty-acre tract, indieating some special reason for such a sale and purchase, such as, that the house had been built by the grantee by mistake as to boundary lines on the adjoining quarter to the grantee’s other land, and that such deed was made on discovery of the mistake, to secure to the grantee the site on which the house and orchard stood.</p> <p>3. Same—constructive notice of grantee's equities. The possession of land by a grantee in a deed, which, by mistake, misdescribed the forty acres out of which the grantor intended to convey, is constructive notice of the occupant’s rights to any and all subsequent purchasers claiming under the grantor in such deed. And the removal of the house from such tract is no abandonment of such possession, where the tract remains inclosed, and the owner gathers the fruit yearly from an orchard on the same.</p> <p>4. Laches—when excused. The uninterrupted enjoyment of the possession of land under a deed which, by mistake, failed to properly describe the premises, for many years, without knowledge of the mistake, and without question of the party’s right, will excuse the party from the imputation of laches in not bringing suit to correct the mistake until an opposing claim was set up leading to a discovery of the mistake.</p>

Clark W. Upton, Judge, presiding. This case was originally a petition by Powell & Barrett for a mechanics’ lien, against Henry C. Stout, owner, and Mrs. Asenah C. Bogers, a mortgagee, of a lot of land in Miller’s subdivison, in the city of Aurora. A decree was had establishing the lien, under which the property was sold to A. D. Warner, for the amount of the decree, and costs.

<p>1. Jtjdioiaii sale—time within which to procure the deed.' Where land was sold oil execution on August 10,1871, and the sheriff’s deed was not taken out until on December 21, 1878, under the act of March 22, 1872, which went into effect July 1,1872, it was held, that the certificate of purchase became void, because the deed thereon was not made within five years from the expiration of the time of redemption, and the sheriff’s deed thereon was a nullity, passing no title.</p> <p>2. Same—notice to purchaser of what record shows. Notice to a purchaser at a sheriff’s sale under execution, of the existence of a deed of trust given by the execution debtor for the purchase money after the date of the judgment upon which the execution issued, will not, in a court of law, affect the lights of the purchaser, as the records would show such deed of trust, and also that it was subsequent to the date of the judgment, nor would it avail in equity, as the taking of the trust deed is a waiver of the vendor’s lien.</p> <p>3. Limitation—retrospective effect. A statute limiting the time of taking out deeds on a certificate of purchase at sheriff’s sale, changing the time fixed by this court, and applying to sales made before its passage or before it took effect, if it gives a reasonable time for taking out such deed, is a valid law, taking away no vested right, but affecting and changing only the remedy.</p> <p>4. Judgment men—as against subsequent incumbrance. A judgment in a court of record is a lien upon the defendant’s land from its date, and the lien thereof will be prior to that of a deed of trust subsequently given on real estate by such defendant, though for the purchase money, and though the sheriff’s deed to the purchaser on execution is not made until after the recording of the trust deed. The sheriff’s deed, when made, relates back to the date of the judgment, and takes effect as of that date against intervening incumbrancers and purchasers.</p> <p>5. Vendor’s men—waimer by taking other security. The taking of a trust deed by the vendor of land is a waiver of his implied lien for the purchase money, and such deed of trust then becomes the sole measure of the vendor's right in the land for the security of the payment of the purchase money by the vendee.</p> <p>6. Homestead—only in favor of householder. It is not every person owning or occupying land that is entitled to a homestead in it, but only a “householder having a family. ” Without proof that a defendant in execution was such a person, no claim of exemption arises.</p>

This was a petition for mandamus, filed in this ease by the relator, William F. Carroll, to compel the clerk of the Superior Court of Cook county to file the joint appearance and objections of several defendants on the payment of one fee, involving the construction of section 33, chapter 53, Eev. Stat. 1874, relating to fees and salaries.

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

Writ op Error to the Circuit Court of Clay county; the Hon. William C. Jones, Judge, presiding. Caleb Franklin, and Eachel, his wife, on December 1, 1874, executed a mortgage or deed of trust, with due relinquishment of homestead and dower, of one hundred and forty acres of land, then owned by said Caleb, to secure the payment of a promissory note for $900, payable in five years, with ten per cent interest.

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Clinton county; the Hon. George W. Wall, Judge, presiding.</p>

<p>1. Will—rule of construction. In the construction of a will the principal inquiry is the intention of the testator, from the words used, and if this satisfactorily appears from the will, it should prevail over any artificial rule of construction.</p> <p>2. Same—devise of the “homestead”—life estate, with power of disposition. A testator, being the owner of six hundred and thirty acres of land, forming one connected body of land, upon which he resided, and which he cultivated and carried on as one common farm, besides some disconnected • tracts, made a devise to his wife, as follows: “I give and bequeath to my wife, Mary, my homestead, to have and to hold during her life, to occupy and use the same, or dispose of it, at her. will and pleasure, and use and control the proceeds thereof, in lieu of her dower in my real estate, and one horse,” etc.: Held, that the word “homestead” was not used in the statutory sense, as known in the Homestead Exemption law, but it was meant to embrace the entire farm upon which he resided, being six hundred and thirty acres, but not the detached tracts; that only a life estate was given, and that the power of disposition in the wife was limited to the life estate.</p> <p>3. Executors—circuit court not authorized to appoint. The appointment of executors belongs to the jurisdiction of the county court, and when one of several executors dies, the circuit court should not appoint another ■ on bill for construction of the will, but should leave that with the county court.</p>

<p>1. Injunction—to prevent a trespass. An injunction will not lie to prevent a simple trespass to property, consisting of a single act, where the person committing or threatening the trespass is able to respond in damages; but if he is insolvent, and trespasses of a grave character are threatened to be repeated, equity will interfere to prevent the wrong by restraining the threatened trespass.</p> <p>2. Where a party, claiming to act as a road commissioner, had removed complainant’s fences a considerable number of times, claiming they were obstructions to a public road, and had said he would remove' them as often as replaced, and he had no property subject to execution, and the proofs failed to show the road was in fact located over the place in dispute, it was held, that the case fell within the exception to the general rule, and that a court of equity had jurisdiction to enjoin the defendant from again removing such fences, for the reasons there was no adequate remedy at law, and to prevent multiplicity of suits.</p> <p>3. Highway—party removing fences must show they are on the road. A party attempting to justify the removal and threatened removal of fences on the ground they are on a legally established road, must not only prove the establishment of the road, but also that such road was established and located at the precise places where the fences are built.</p> <p>4. Same—proof of., by user for twenty years. Evidence tending to prove that a road had been traveled over uninelosed prairie land for forty years, in a general direction, but the line of travel varying considerably, and had been changed within twenty years past, is insufficient to show a road by user or prescription over a particular place in question, so as to justify a road commissioner in removing fences placed thereon.</p> <p>5. Because a road is traveled, or even legally established, does not authorize a road commissioner to open or remove fences not within the boundaries of the road. His power to act is confined within the limits of the road, and to obstructions within those limits, and where he attempts to justify such a removal he must prove that his acts were done between the outer lines of the road.</p> <p>6. Evidence—of field notes, to show location of a road. To prove the establishment and location of a public road by commissioners appointed by an act of the legislature in 1847, some field notes were read in evidence, purporting to be those of the surveyor, dated in 1847, with certain pages cut out. The county clerk testified that he, on search, had not been able to find in his office any record of the road across a particular tract of land, and that the paper purporting to be the field notes was handed to him by a person collecting materials for a history of the county. There was no evidence of its authenticity, or how the person giving it to the clerk became possessed of it, or that it was ever filed as a part of the records establishing the road, or that the person making it was surveyor of the county, or was appointed by the commissioners to make the survey, and there was no proof of the signature of the surveyor, or that the notes were ever filed or intended to be filed: Held, that the evidence was not proper, and was inadmissible.</p>

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

<p>Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the City Court of East St. Louis; the Hon. Charles T. Ware, Judge, presiding.</p>

<p>1. Inspectors of grain— boards of trade of Fast St. Louis and Chicago—their powers. By the act of 1867, incorporating the East St. Louis Board of Trade, there were conferred upon that board all the powers and privileges, and it was subjected to all the restrictions, of the Chicago Board of Trade as then existing under its charter of 1859. Section 10, of the charter of the board of trade of Chicago, merely authorizes an inspection of grain by inspectors appointed by the board of trade, among its members, or as to any other person who may agree thereto; and such inspectors so appointed have no authority to act in any other case, or under other or different circumstances.</p> <p>2. Same—public warehouses—act of 1871 construed as not affecting boards of trade. The act of 1871, for the regulation of public warehouses, was not intended as an amendment of the charters of boards of trade. That act was intended as a complete system of itself, in no manner connected with or depending upon any other law on the subject. Under it no provision is made for the appointment of inspectors of grain for public warehouses in class “B.”</p> <p>3. Siam—effect of act not providing for inspectors. Under the act of 1871, in relation to public warehouses, it making no provision for the appointment of inspectors of grain in class “B,” the owners or proprietors of that class of warehouses could conduct their business without inspection, as before the passage of the law. This .seeming defect in the act can not be construed to invest boards of trade with the power of appointing such inspectors.</p> <p>í. Section 19, of the act of 1871, prohibits warehousemen of class “B” from receiving and mixing the grain of different owners until the same shall have been inspected, in all places where there are legally appointed inspectors of grain. Such inspectors are not such as are appointed by a board of trade, but such as might be appointed under power subsequently conferred by law. So inspectors appointed by the board of trade of East St. Louis are not legally appointed under this section.</p>

<p>1. Eminent domain—condemnation of right of way for a railroad across the right of way and track of another railroad—covenant to construct and keep in repair the crossing—its admissibility in evidence—and its effect upon the question of damages. In a proceeding for the condemnation of a right of way for a railroad across the right of way and railway track of another railroad, the petitioning corporation offered in evidence a stipulation or covenant, regularly signed by the petitioner, in which it was expressly stipulated by the petitioner “that it would and should, at its own expense, put in, and thereafter maintain in suitable and proper repair, the frogs and crossing across two main tracks of the defendant; that this stipulation should be binding on the successors and assigns of said petitioner so long as a grade crossing should be maintained at the crossing the right of ■way for which was being condemned therein.” It was held, this was a valid obligation, enforceable against the petitioner, and its successors and assigns, and was properly admissible in evidence.</p> <p>2. The obligation being a valid one, securing the construction and maintaining of the proposed crossing at the expense of the petitioner, its successors and assigns, the cost thereof could not become an element of damages in favor of the defendant corporation, and would operate to exclude any evidence on behalf of the defendant on that subject.</p> <p>3. The stipulation is sufficiently definite as to the manner in which the work of making the crossing was to be done, and as to what extent it would affect the defendant. A “suitable and proper” crossing, is a phrase well understood by civil engineers and practical railroad men. Any marked departure from the stipulation in that regard would afford to the defendant a right of action for the recovery of any damages occasioned thereby.</p> <p>4. The force and effect of the obligation, as an instrument of evidence, and as to the exclusion of all question of damages to arise from the expense in constructing and maintaining the crossing, in the proceeding for condemnation, are not at all impaired by the suggestion that it is a mere promise—an undertaking—which, by reason of financial embarrassment, or from other causes, may not be performed. It is a valid obligation. The covenant is thought to run with the land, and for any breach thereof a right of action is given which will afford complete indemnity to the company whose road is proposed to be crossed. It can not be presumed, in the absence of testimony on the subject, that the petitioner will be unable, from any cause, to perform its obligation.</p> <p>5. In this case the proposed crossing was upon grade, and it would be the duty of both parties to see to it that the crossing was properly constructed, and maintained in a safe condition, and in this respect it is to be distinguished from the case of Chicago and Alton Railroad Co. v. Sj)ringfleld and Northwestern Railroad Co. 67 Ill. 142, and 96 id. 274. In that case the crossing was not upon grade, but was an under-crossing, made by cutting through a high embankment under the track of defendant’s road, thereby removing all the support it had. It did not appear that the petitioning corporation was under any obligation by its duty to the public as a common carrier, or by any stipulation or otherwise, to keep defendant’s track above its own in a suitable and safe condition, so the expense incurred by the defendant company in that regard was a very proper element of damages in that case.</p> <p>6. SAME'—effect of stopping a train on approaching a railway crossing upon the hauling capacity of the engine—as an element of damag'es. It was represented in the case that if the crossing were established at the point proposed, the defendant company, in conforming to the requirement of the statute in respect to the stopping of trains on approaching a railroad crossing, at certain distances therefrom, would be compelled to bring its trains to a halt upon an ascending grade, and that thereby the hauling capacity of its engines would be impaired, and it was contended that such impairment ought to be considered as an element of damages. But the statute in question is simply a police regulation, with which all railroad companies are required to comply, the existence of which is subject to the will of the legislature, so it is of too uncertain duration to be made the subject of damages as for a perpetual inconvenience and injury.</p> <p>7. Moreover, it is a principle underlying all conduct, that neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation. Obedience to law is a service all citizens and corporations are bound to render to the State, and no damages can grow out of such act of obedience.</p>

<p>Writ of Error to the Circuit Court of Jasper county; the Hon. William C. Jones, Judge, presiding.</p>

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

<p>1. Constitutional law—limit of legislative power. The question of legislative power and its extent depends on the limitations contained in the constitution. When a State is created it is invested with complete sovereign power, unless restricted by constitutional limitation.</p> <p>2. By section 1, acticle 4, of our constitution, full, unlimited and uncontrolled legislative power is conferred, and may be exercised unless limited by other provisions of that instrument or by the Federal constitution.</p> <p>3. Counties—are public bodies, and their property held for the public. Counties are mere political divisions of the State, as a convenient mode of exercising political, executive and judicial powers of the State. They are wholly public in their character, and are a portion of the State organization, and all their powers are conferred and duties imposed by the constitution and the statutes of the State. They are public, and all the property they hold is for the public use. It belongs to the public, and the county is biit the agent invested with the title, to be held for the public.</p> <p>4. Same—property of, subject to legislative control. The property of a county being held for the public, it is under the uncontrolled power of the General Assembly, as it is not restricted or limited in its absolute control over the same. A county can neither hold nor dispose of property except by constitutional or legislative authority, and the legislature has the power to sell or dispose of it without the consent of the county authorities.</p> <p>5. Same—legislative direction to county to reconvey property to donors. Certain parties, to procure the location of a county seat at a certain place, made donations to the county, both to acquire the title to the land for the town site and to erect the county buildings. In 1857 an act was passed, under which the county seat was removed, and which provided that in case of such removal the board of supervisors should convey the court house and block of land upon which it was erected, and all other lands and town lots theretofore donated to the county for the purpose of erecting public buildings, to the parties who originally conveyed said property to the county, or to their legal representatives, in proportion to the donation made by them, respectively, for the purpose of procuring said lands and erecting such court house: Held, that such act conferred upon and vested the equitable title in the donors, and their representatives, in the proportion each had originally contributed, and that the county authorities could not lawfully refuse to make the conveyance to them accordingly, and upon their refusal so to do a court of chancery would compel the conveyances to be made.</p>

<p>1. Exception—not necessary on overruling motion to quash indictment. An exception to the ruling of the court on a motion to quash an indictment is not necessary to be taken and preserved by bill of exceptions, in order to present the question of the sufficiency of the indictment to this court, any more than there is for an exception to the decision of the court upon a demurrer to a pleading.</p> <p>2. Same—when necessary. The rule requiring the record to show an exception to the ruling of the court, applies only where such ruling is based upon extrinsic matter which does not, without being embodied in a bill of exceptions, constitute a part of the record.</p> <p>3. Indictment—attempt to produce abortion. An indictment charged that the defendant did, on, etc., at, etc., “unlawfully, feloniously and willfully use and employ a certain instrument, the name of which is to the grand jury unknown, in and upon one O D, then and there being pregnant with child, by then and there forcing, thrusting and inserting said instrument into the private parts of the said C D, and then and there did thereby unlawfully, feloniously and willfully attempt to procure and produce the miscarriage of the said CD:” Meld, that the indictment was substantially good. It would have been more technically accurate to have given some general description of the instrument used, as, “a certain metallic instrument, whose name is unknown,” etc., and the statement of the offence would have been somewhat moré specific by adding the words, “and womb," after the words, “private parts.”</p> <p>4. Criminal law—two can not be jointly convicted of distinct offences. Under an indictment against two or more, two can not be convicted jointly for distinct offences, though of the kind charged in the indictment, when committed by them severally, and growing out of separate transactions.</p> <p>5. Same—evidence against one of two persons charged. As all crimes committed by two or more persons are several as well as joint, it follows that it is not necessary to prove all guilty in order to convict one under an indictment charging both with the commission of the offence. Hence, on a charge against two of an attempt to produce an abortion, proof of an act by one defendant done to effect such purpose is properly admissible against him before the People’s evidence is closed.</p> <p>6. Same—neglect of defendant to testify—calling attention of jury to that fact, improper. On the trial of an indictment against two, one of the defendants testified as a witness, and the other did not. The court, on the part of the People, in substance instructed the jury, that in this- State every defendant is permitted to testify in his own behalf if he desires, and that the defendant.who testified was a competent witness, but the jury were not bound to believe her evidence, and treat it the same as that of other witnesses, etc.: Held, that the first part of the instruction, while true as an abstract proposition of law, had but little, if any, appropriate connection with the succeeding part, and announced no principle calculated to aid the jury, and was well calculated to mislead. It was regarded as an adroit device to have the court, under the guise of giving the law to the jury, call their attention to the fact that one of the defendants had declined to testify, and in this respect was erroneous.</p> <p>7. Same—when prosecution must elect on what evidence to rely. On the trial of a man and a woman for an attempt to produce an abortion, the prosecutrix testified to an attempt made upon her at her father’s house by the man alone, with which, it appeared at the close of the testimony, the other defendant had no connection, and there was evidence against both as to similar attempts at the house of such other defendant: Held, that when this appeared at the close of the testimony, the People should have been put to their election whether to proceed against the man alone for his separate act, or against them both for what occurred at the house of the other defendant, and if the prosecution elected to proceed for the latter offence, all evidence of the former should have been excluded.</p> <p>8. Same—evidence of similar offences. Upon the trial of a party for one offence growing out of a specific transaction, evidence to prove a similar substantive offence founded upon another and separate transaction is not admissible, but in such case the prosecution will be put to its election. An exception to this rule is found in prosecutions for passing counterfeit money, and the like, for the purpose of showing guilty knowledge.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.</p>

This was a suit commenced by petition in the circuit court of Cook county, under chapter 12 of the Revised Statutes, entitled “Attachment of Water Craft, ” by the Chicago and Pacific Elevator Company, against Jacob Johnson, for damages arising from the tug-boat “Parker, ” of which Johnson was alleged to be the owner, through the negligence of the agents of Johnson then in charge of the tug-boat towing the schooner “G-.

<p>1. Set-cm?—demands must be mutual. It is a familiar rule that debts, to be the subject of set-off, must be mutual between the parties to the action. A debt due from a firm can not be set off against the claim of an individual partner of the firm.</p> <p>2. Joint obligations—statute making them several, construed. Section 3, chapter 76, of the Revised Statutes, which delares that “all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants, ” has reference only to contracts, obligations or covenants made jointly by persons in their individual capacity, and not to partnership obligations or debts. The statute does not authorize suit to be brought on a partnership debt against one member of the firm.</p> <p>3. Bank check—recovery when drawer has not a sufficient deposit to pay. A bank is under no obligation to pay any sum on a check payable to the drawer’s order, and by him assigned, when the drawer has not sufficient money on deposit to his credit in the bank to pay the check in full, and no recovery in such case can be had by the assignee. The rule may be different when the drawer himself is plaintiff.</p>

This was an information filed in this court by George R. H. Hughes, against Samuel Appleton, an attorney of this court, to have his name stricken from the roll of attorneys of this State, on the grounds which appear in the opinion of the court.

<p>1. Chancery jurisdiction—to remove cloud from title. There are only two cases, under the laws of this State, in which a party may file a bill to quiet title or remove a cloud from the title to real- property: First, when he is in possession of the lands; and second, when he claims to be the owner, and the lands in controversy are unimproved and unoccupied.</p> <p>2. Where the defendants are in the actual possession of land, though acquired by force and violence, a court of equity will not undertake to determine the validity of the respective titles of the parties, but will leave the complainant to his remedy at law. The rule is of general application, that where there is a plain and adequate remedy at law a court of equity will not interfere.</p>

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

<p>1. Rescission of contract—setting aside sale procured by misrepresentation. A party selling his interest in premises supposed he was selling to a person interested in the same, but in fact conveyed to another party, who held the legal title for the entire property in trust for himself and the other two: Held, that this misapprehension on the part of the grantor afforded no reason for setting aside the conveyance, as it could not have prejudiced his rights,—but if it were otherwise, the fact that he conveyed to the trustee was enough to put him on inquiry, if material to know with which party he was dealing.</p> <p>2. Fraud—suppressio veri—confidential relation. One occupying a confidential relation to the owner of an interest in land as his trustee, in dealing with such owner for a purchase of his interest is not bound to disclose to him the sale of a half interest in the property previously made -by such trustee, when the deed evidencing such sale has been recorded, and such owner, before that time, had learned of such sale by the trustee, and filed a bill to set it aside.</p> <p>3. Same—when duty to disclose facts ceases. After the filing of a bill by a cestui que trust against the trustee and others to avoid a sale made by the trustee, placing the parties in direct antagonism in any dealings thereafter between them for the purchase of the interest of the cestui que trust by the trustee, if the former desires further information from the latter respecting the property and its condition, it is as much the duty of the party desiring the information to make inquiry of the trustee, as it is his duty to give information.</p> <p>4. Same—when party is responsible for representations of another. The purchaser of an interest in land will not be held responsible for the representations of a mere go-between, not strictly the agent of either party, made to the vendor to induce the sale, and communicating to each matters coming from the other, especially when the representations seem to have been made on his own account, and from his own promptings, to sustain his own interests.</p>

<p>1. Contract—exchange of lands—furnishing abstracts of title—condition precedent. Where parties make a contract for the exchange of lands, each to exhibit to the other abstracts of title showing a good title to their respective lands, by a day named, this is a condition precedent to be performed before either party can call upon the other to perform the agreement; and if the abstract of either is not satisfactory, and fails to show the title agreed.to be made, the other may elect to consider the contract at an end, and if it is recorded in the proper county, have it set aside as a cloud upon his title.</p> <p>2. Same—must be performed on day named. Where an abstract is to be furnished, under a contract for an exchange of lands, showing a good title, by a day named, the party to furnish the same has no right to demand an extension of the time in which to furnish an additional abstract, the first not showing a good title; and if the other party refuses to give such extension, and refuses to perform for want of an abstract in proper time showing a good title, this will put an end to the contract.</p> <p>3. Same —forfeiture for not performing—liquidated damages. Where a contract for the exchange of lands provides that each party shall furnish the other an abstract showing a good title for his land, by a day named, and if either refuses to perform he shall forfeit and pay to the other S1000 as liquidated damages, and one fails to exhibit such an abstract of title, so that the other, who has furnished a satisfactory abstract, declines to perform the contract, neither being ready to convey to the other neither one can have a decree in his favor for the sum agreed upon as damages.</p> <p>4. Cloud on title—contract not recorded. A contract for the sale or exchange of lands, not recorded in the county where the land of one of the parties is situated, is no cloud upon his title.</p> <p>5. Costs— discretionary, i/n chancery. The costs in chancery cases, by statute, are within the discretion of the court rendering the decree, which, ordinarily, will not be interfered with by an appellate court.</p>

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

<p>1. Eminent domain—the petition—its office and effect. The statute having determined specifically what facts must appear on the face of the petition, in a proceeding under the Eminent Domain act, the court or judge is powerless to take any action in the premises until a petition is filed containing the statutory requirements, for it is by the petition jurisdiction is obtained of the subject matter.</p> <p>2. Same—what petition must contain, to confer jurisdiction. Every petition, properly framed, must contain all the statutory requirements, and will therefore, of necessity, show, in every case where such petition is sufficient to confer jurisdiction, the authority of the company seeking the condemnation to take the specific land sought to be taken, and the object or purpose for which it is required; and from this statement of facts it must clearly appear the use for which the land is sought to be condemned is a public one.</p> <p>3. Same—answer to petition for condemnation, not proper. There is no rule of law or practice authorizing the filing of an answer of any kind to a petition for the condemnation of land under the Eminent Domain>act, and it is not the proper practice to permit one to be filed in any case. If one is filed, the court may properly have the same stricken from the files. Hence, there is no error in striking out any portion thereof.</p> <p>4. Same—the truth of the facts necessary to a condemnation may be questioned without written pleadings. If the truth of any of the averments of the petition may depend upon the existence or non-existence of facts not appearing upon the face of the petition, and hence their truth or falsity is open to extrinsic proofs, this proof may be made on the part of the land owner as well without an answer as with it, for the inquiry in such case will be directed to the truth or falsity of the petition.</p> <p>5. Same—what land is necessary—how and by whom to be determined. Where the description of the land and the purpose for which it is sought to be taken are stated in the petition, as they must be in every case, whether the land is reasonably necessary for the purpose stated depends mainly upon the facts thus stated in the petition. But the court in passing upon this question, as it must before submitting the question of damage or compensation to the jury, should take into consideration the section of the country and the particular locality in which the improvement is to be constructed,— whether in an obscure country village, or in a great commercial center; and acting upon its own knowledge of the commerce and business necessities of the country, must, upon the facts stated in the petition, determine this question for itself. The jury impaneled can find no fact except what is just compensation to the owner.</p> <p>6. The law does not contemplate that when the petitioner has brought itself within the provisions of the statute, the right of condemnation can be defeated by simply showing, in the opinions of witnesses who have no interest in or connection with the objects of the proceeding, that the land sought to be condemned is not necessary for the purpose stated.</p> <p>7. Every company seeking to condemn land for a public improvement must, in a modified degree, be permitted to judge for itself as to the amount that is necessary for such purpose. This right is subject to all constitutional and statutory restrictions, and to the further limitation that the courts are clothed with ample power to prevent any abuse of the same.</p> <p>8. If the court can see from the facts stated, and its general knowledge of the locality and the public wants, that the lands sought to be taken are manifestly in excess of what is reasonably necessary for the purpose stated in the petition, it will be fully warranted in denying the application,—otherwise it will not.</p> <p>9. Same—of granting a new trial. Where the evidence is conflicting, in a case for the condemnation of land, as to the damages and compensation to be paid to the owners, and consists chiefly of the opinions of witnesses, some of whom sustain the finding and others do not, this court will not feel justified in reversing unless it is able to say the verdict is clearly against the weight or preponderance of the evidence.</p> <p>10. Instruction—as to the weight to he given to witness’ testimony. While a court may state, in a general way, what facts appearing in evidence may be taken into consideration in determining the weight to be given to witness’ testimony, it, in doing so, should always, and particularly in cases where the evidence is conflicting and nearly balanced, carefully guard against the use of any expression indicating or tending to indicate the extent of the weight to be given to such facts. While it is true it is the duty of the jury to consider such facts, after all it is left to them to say what credit the witness is entitled to receive.</p> <p>11. It is not proper for the court to single out some particular fact as affecting the value of the opinions of a particular witness or class of witnesses in a case where opinions are allowed, and then tell the jury that the opinions of such witnesses should not be permitted or “allowed to counterbalance or overcome the opinions” of witnesses not affected by the fact thus singled out, and an error in that regard is not cured by adding that such is the rule other things being equal.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding. The bill in this case was brought by George A. Gibbs, against Samuel A. French, Elizabeth A. French, and Garrie S. French, and was for an account, and other relief.

<p>1. Appeals—effect of reversal and remandment. The only effect of a judgment of this court reversing the judgment of the Appellate Court, and remanding the case to that court without specific directions, is to render null and wholly inoperative the decision of that court, and to reinstate the case before it in the same condition it was before that court had acted on it at all.</p> <p>2. Same—as to rulings of Appellate Courts on the law and the facts. Where the Appellate Court reverses a judgment of the circuit court for a supposed error of law when the record of the trial court discloses none, the judgment of the Appellate Court will be reversed for that reason; and if the Appellate Court reverses for an error of fact, that judgment will be reversed if that court fails to certify, in its final order, the facts as found by the court. Without such finding of facts this court can not know whether its judgment was warranted by its own finding or not.</p> <p>3. The Appellate Court being the final arbiter as to the facts established by the evidence in a certain class of cases, this court is concluded by its finding of the facts, and has nothing to do with the evidence or reasons which controlled that court in arriving at its conclusions of fact, and so far as this court is concerned, it matters not whether the evidence was much or little, or sufficient or insufficient.</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. Elliott Anthony, Judge, presiding.

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Grundy county; the Hon. Josiah McRoberts, Judge, presiding.</p> <p>The original bill filed in this case by the Wilmington Star Mining Company of Coal City, a corporation, seeks to compel the specific performance of a contract in relation to the sale of certain real estate therein described, situate in Grundy county, in this State. The contract is in writing, and was executed by H. Leroy Thayer and Charles H. Goold, as parties of the first part, and one Ira F. Benson, as party of the second part, and bears date October 3, 1876. Shortly after the execution of the contract, in November, 1876, it was assigned by Benson to the Wilmington Star Mining Company of Coal City, and thereupon the latter took possession of the premises, and from that time, either by its agents or its receiver, has been in possession thereof, taking out large quantities of coal, greatly exceeding in value all payments made on the contract and all expenditures made otherwise, of whatever kind.</p> <p>By the terms of the contract Benson was to pay Thayer and G-oold each the sum of $4300, with interest at eight per cent per annum, in three years after the date of the contract, interest payable semi-annually; and Benson also assumed to pay two mortgages on a portion of the real estate, each made to secure the sum of $12,500, with interest at.ten per cent per annum, bearing date April 1, 1875, the notes thereby secured being due in one, two and three years from date, interest payable annually, the two mortgages and the notes having been executed by the Coalfield Coal Company, and respectively given to Thayer and Goold. Benson also agreed to save Thayer and Goold harmless from all loss on account of certain other liens and incumbrances existing upon the premises, and pay the interest thereon as the same should mature, which-were prior to Thayer and Goold’s mortgages. Benson further covenanted to cause to be built, within six months from the date of the contract, a steam railroad track from Coal City, to intersect the Chicago and Alton railroad at or near Mason creek, and cause to be erected a freight and passenger depot at Coal City, and also to pay a royalty of ten cents per ton on all coal mined, payable monthly,—the principal sums secured by said mortgages of Thayer and Goold to be paid within three years from the date of the contract. The lands embraced in the contract,—being some nine hundred and sixty acres,—are coal lands, and had a mining shaft located thereon, with appliances for mining coal, when the contract was executed. The amounts to be paid Thayer and Goold became due and payable October 1, 1879. The bill was filed May 6, 1880, against Thayer, it alleging that Goold had assigned all his interest in the contract and lands to Bacon Wheeler and Isabella Clark, and that the company had made a satisfactory arrangement with the latter in respect of the Goold part of the contract. Time and the prompt performance of every covenant and agreement are made of the essence of the contract, and it is also provided that Benson should forfeit all rights under the contract unless the same should, in all respects, be complied with by Benson at the respective times and in the manner therein .declared, and should also comply with all the covenants and agreements on his part to be performed.</p> <p>The evidence shows that neither Benson nor the company, or its receiver, have ever paid any portion of the principal sums stipulated to be paid to Thayer; that the interest on the $4300 has been paid only to October 3, 1878, and the interest on the $12,500 mortgage held by Thayer has been paid from date of the contract to April 1,1878, and no excuse is offered in the bill for the laches or failure to make the payments mentioned in the agreement at the times they severally became due. It alleges, however, that the amount due and unpaid to Thayer will not exceed $15,811; that on May 5, 1880, the complainant caused to be tendered to Thayer the sum of $15,811, in full payment of the amount his due, and demanded a deed; that Thayer refused to accept the amount or make a deed, and that complainant is ready, upon just accounting had, to pay, and it offers to pay, to Thayer, such sum as shall be.found justly his due. Thayer filed a cross-bill, making the corporation and its receiver defendants thereto, setting up the making of the contract, the assignment thereof, its conditions, amounts agreed to be paid thereby, insisting that the same had been forfeited by reason of non-compliance with its terms, and for failure to make the payments at the times the same severally became due.</p> <p>It appears that in April, 1878, upon a creditor’s bill filed in the circuit court of Will county, alleging insolvency of the corporation, Milford D. Buchanan was appointed receiver of all the property of the company, and ever since has been in possession of the real estate, and engaged in carrying on the business of the corporation,—of mining and selling coal,— and that in pursuance of an order of the court the company executed to the receiver a deed of all its property.</p> <p>The circuit court rendered a decree in favor of the complainant company, requiring it or its receiver, within forty-five days, to pay Thayer the sum of $16,794.46, and upon tender thereof ordering him to convey to the company the real estate described in the contract. It was also decreed, that in case of failure to pay such sum within the time limited, the master in chancery, at the request of Thayer, might make sale of the interest of the company in the real estate, and from the proceeds, after paying costs, to pay said sum to Thayer. The Appellate Court for the" Second District affirmed the decree on appeal, and Thayer appealed to this court.</p>

<p>1. Practice—when specific objection should be made. In a suit against a city to recover for a personal injury from a fall, on June 12, 1878, caused by a defective sidewalk, a witness was asked if he knew the condition of the sidewalk in the month of June, 1878, to which the defendant made a general objection, which the court overruled: Held, that there was no error in the ruling. It was proper to prove the condition of the walk in the month of June prior to the injury, and if the defendant desired to object to evidence in regard to its condition after the accident, the objection should have been more definite, and confined to that particular time.</p> <p>2. Negligence— of city in respect to sidewalk—liability. A city will not be held liable for an injury from a defective sidewalk unless the authorities have notice of the defective walk, or unless they have notice of such facts and circumstances as would, by the exercise of reasonable diligence, lead a prudent person to such knowledge.</p> <p>3. Same—comparative negligence—statement of the rule. In an action based on negligence as the cause of injury, the court instructed the jury, that if they found, from the evidence, “that the plaintiff was herself guilty of some negligence, but that the defendant was guilty of gross negligence, contributing to such injury, and that the plaintiff’s negligence was slight as compared with the negligence of the defendant, still she may be entitled to recover:” Held, that the rule of comparative negligence was correctly stated.</p> <p>4. Instruction—construed, as to requiring notice. In a suit against a city to recover damages for an injury received from a defective sidewalk, the court instructed for the plaintiff that it was the duty of the defendant to use reasonable diligence to keep the sidewalk in a reasonably safe condition, and if the jury believed, from the evidence, that the defendant had failed to perform such duty, and that by reason of its negligence in that regard the said sidewalk was permitted to remain out of repair and in a dangerous condition, etc. It was objected that this might authorize the jury to conclude no notice of the defect was necessary to charge the defendant: Held, that the words, “was permitted to remain out of repair,” implied a knowledge on the part of the city of the condition of the walk.</p> <p>5. Same—need not be repeated. Where the substance of the part of an instruction stricken out by the court is embraced in another instruction which is given, there will be no error in the modification, even though the portion stricken out was a correct statement of the law.</p> <p>6. Error—mil not always reverse. A technical error in modifying an instruction, not calculated to mislead the jury, and which did the party complaining no harm, affords no ground to reverse a judgment fairly obtained.</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 Will county; the Hon. Josiah McRoberts, Judge, presiding.

<p>Writ of Error to the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding.</p>

George Gardner, Judge, presiding. This was a creditor’s bill, brought by John E. Lemon, in the Superior Court of Cook county, against John H. S. Quick and John T. Temple, stockholders of the Prudential Life Association, to reach unpaid subscriptions to the capital stock of the corporation, to satisfy a judgment which the complainant had recovered against the corporation.

Arthur A. Smith, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Second District, reversing a judgment of the circuit court of Knox county.

John J. Glenn, Judge, presiding. The original hill in this case was brought by the heirs of William McMahill for a partition of the lands of which he died seized, among themselves. The widow of decedent was made defendant, and the bill charged she was not entitled to dower or homestead in the lands of her late husband, on account of an ante-nuptial agreement.

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

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

M. F. Tuley, Judge, presiding. On May 1, 1877, the Republic Life Insurance Company was a corporation organized under the laws of Illinois, and doing business as such in this State. Its principal place of business was in the town of South Chicago. J. Alder Ellis was its president.

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

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action of debt, by Sophia Meisser, a creditor of the People’s Bank of Belleville, against William C. Buchanan, as stockholder in that bank.

<p>Writ of Error to the Circuit Court of Hamilton county; the Hon. William C. Jones, Judge, presiding.</p>

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

<p>1. Limitation—in chancery, for money had and received by school directors. Where a township treasurer by mistake pays the moneys arising from taxes levied in one school district to the directors of schools of another district, the Statute of Limitations will bar a bill in equity by the directors of the district entitled to the funds after the lapse of five years from the last payment so made to the wrong district, by analogy to the limitation at law for money had and received.</p> <p>2. Same—school funds—whether held in trust. Money belonging to a school district while in the hands of the township treasurer is a trust fund, but when he pay's it out to the directors of another district, on their orders, by mistake, without fraud or collusion, or notice to the recipients that it belonged to another district, it can not be held to be a trust fund in their hands which will exclude the operation of the Statute of Limitations.</p> <p>3. Same—applies to municipal corporations. In an action on contract or for a tort, a municipal corporation may plead or have pleaded against it the Statute of Limitations.</p>

<p>1. Railroads—what is a “regular passenger train" which is required to stop at county seat stations. A through passenger train, equipped and operated in the same manner as other passenger trains on the same road, carrying passengers and baggage as other trains, and running upon the official time table of the company the same as its other passenger trains do, the only difference being that the other trains stopped at all the stations while this did not, is held to be a “regular passenger train,” within the meaning of the act approved May 29, 1879, which requires all such trains to stop at county seat stations a sufficient length of time to receive and let off passengers with safety. The act does not, perhaps, include a wild train, a freight or excursion train, or a special train.</p> <p>2. Same—act requiring regular passenger trams to stop at county seats is a proper police regulation. The act of May 29, 1879, requiring all regular passenger trains to stop at county seat stations long enough to receive and let off passengers with safety, is not a regulation of inter-State commerce, and therefore inhibited by the constitution of the United States, though the line of the road may pass through different States. Such a law is but a proper exercise of the police power of the State.</p> <p>3. Same—subject to.reasonable police regulations. A railroad company takes its charter upon the implied condition that its franchises shall be exercised subject to the power of the State to impose such reasonable regulations upon it as the comfort, safety or welfare of society may require.</p>

This was a petition in this court by the relator, for a mandamus, against Charles S. Zane, judge of the circuit court of Sangamon county, to require him to take cognizance of an indictment preferred by the grand jury of Macoupin county against one Lewis Biggs, in which cause the venue had been changed, and the cause sent to the circuit court of Sangamon county, and to require such judge to try the cause. The material facts are fully stated in the opinion of the court.