Volume 106 — Illinois Reports

<p>Appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.</p>

<p>Appeal from the Comity Court of Coles county; the Hon. J. E. Cunningham, Judge, presiding.</p>

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.

<p>1. Pleading in ejectment—what special pleas allowed—evidence under the general issue. The practice in ejectment suits in this State does not warrant the filing of any special pleas, except such as are expressly enumerated in section 22 of the Ejectment act. Under the general issue the defendant may give in evidence any matter that may tend to defeat the plaintiff’s action, except as is provided in said section 22. If any special plea is filed other than such as is authorized, the court should, on its own motion, strike it from the files.</p> <p>2. Eobmeb adjudication—in ejectment—effect of a new trial. Where the plaintiff in ejectment, after judgment against him, obtains a new trial under the statute, and by amendment makes a new party defendant, and before a second trial dismisses his suit, the former judgment is no bar to a second action brought by him against such new defendant. The effect of the new trial is to vacate and render wholly inoperative the prior judgment, and leave the parties as they stood before the trial, except that the plaintiff can not claim a second new trial under the statute in the same suit.</p>

Amos Watts, Judge, presiding. This was a bill by appellant, against appellees, to set off homestead and dower.

<p>1. Chancery jurisdiction—to enjoin use of street for a railroad A court of chancery has no jurisdiction to enjoin a railway company from the use of a public street of a city for a switch, under a permit from the city council, when the fee of the street is in such city, on the ground of injury to private property situate on such street. The party complaining, if he has any remedy, must seek it in a court of law.</p> <p>2. Franchise—whether involved in suit. A bill filed to test the authority of a railroad company to use a public street in front of complainant’s residence for the use of its railroad track, does not involve the right, title or validity of a franchise, and an appeal in such case is properly taken to the Appellate Court in the first instance.</p>

<p>1. Taxation—non-resident’s property brought into the State after May 1. On the 1st day of May, 1879, the owner of a lot of lumber, being a resident of the State of Michigan, shipped the same to a lumber yard in Cook county, in this State, rented by the owner on May 1, 1879, the lumber being, received at the yard on May 10, 1879: Held, that such lumber was not subject to assessment for taxation for that year’, and its assessment was without warrant of law, and that a decree perpetually enjoining the' collection of the tax was proper.</p> <p>2. The statute in providing that “the owner of personal property moving into this State from another State between May 1 and July 1, shall list the property in the town whei'e he resides, ” unless he has been assessed for the property for that year in another State, relates to a case where the owner moves into the State, and not to the moving of the property.</p>

<p>1. Mortgage—deed of trust as a mortgage. A deed of trust is, in almost every respect, a mortgage. It, like a mortgage, is a mere security for money, or for the performance of certain undertakings by the grantor. It is a mere incident to the debt it secures, and upon which it depends and follows. When the debt is paid the mortgage is satisfied, but as long as the debt remains the mortgage exists, unless actually released.</p> <p>2. Same—once a mortgage always a mortgage. The rule of law is, that a conveyance once a mortgage is always a mortgage, until the debt is satisfied and extinguished or the equity of redemption foreclosed or released. In equity the mortgage still exists whatever form the parties may give the transaction, unless it is intended by both parties that it shall be released or extinguished.</p> <p>3. Same—deed absolute in form—when a mortgage. In equity a deed absolute in form is but a mortgage, if made as a security, and it will be treated and enforced as a mortgage, though the agreement for redemption therefrom rests only in parol, notwithstanding the Statute of Frauds.</p> <p>4. Same—extending time of payment after foreclosure—effect as giving the character of a mortgage to the title under the foreclosure. The holder of a debt secured by deed of trust assured the debtor, though not in writing, that he might have further time to pay the debt after foreclosure, and thereby induced him to let the property be sold, when, but for such assurance, the debtor might have redeemed before the sale. The creditor acquired the legal title at the foreclosure sale at less than one-fourth of the actual cash value of the premises. It was held, the creditor would still hold such title as a mortgage for the payment of the debt, the same as before the foreclosure, and the debtor might, in equity, redeem the property by paying the sum due, with costs, etc.</p> <p>5. Statute of Frauds—not allowed to protect a fraud. The Statute of Frauds was not intended to facilitate the perpetration of or to protect fraud, but to prevent it; and the courts will not permit the statute to be used as an engine of fraud.</p> <p>6. Corporations—of their private rules and regulations concerning the powers of their officers and agents—effect on the rights of strangers. A foreign insurance company doing business in this State will be bound by the acts and contracts of its president and general agent here, in respect to persons in this State dealing with such corporation, when the acts of such officer or agent are within the powers of the company or within the scope of his apparent power, notwithstanding such officer or agent has no power to do such acts or make such contract under the private rules and regulations of the company. In such case, the company, as to strangers having no notice of its private rules and regulations, will be estopped to deny the power of its president or general agent.</p> <p>7. Same—power of the president to hind hy his contract. As a general rule the president of an insurance company has the power to bind the company within the scope of its powers, and any one not connected with the company will not be presumed to have notice of any by-law or rule limiting the apparent power of such officer.</p> <p>8. Laches—in filing hill to redeem from, sale under a deed of trust. Where land was sold under a deed of trust, and purchased by the creditor, an insurance company, -under an agreement on the part of the purchaser to hold the trustee’s deed as a further security for the debt, and to give the debtor further time in which to redeem, a delay of three years in filing a bill by the debtor to set aside the trustee’s deed, and for redemption, was held not to be such an unreasonable delay as to bar the relief sought.</p>

Writ of Error to the Circuit Court of Mason county; the Hon. George W. Herdman, Judge, presiding. On the motion to withdraw the plea of guilty, the Hon. Lyman Lacey presided.

Owen T. Beeves, Judge, presiding. This was a hill hi chancery to enjoin the collection of a tax alleged to have been assessed against the complainants upon personal property owned by another person.

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding. Plaintiff in error was indicted and convicted of selling liquor to a minor. Upon the trial, James Cantner testified: “I will be twenty on the 10th of April next. Know defendant when I see him. Know his place of business. It is in Champaign county, Illinois. He is a saloon keeper.

<p>1. Appeals—reviewing controverted questions of fact. In a suit upon a note, in which usury is pleaded, and evidence introduced on both sides as to the issue, when the Appellate Court affirms the judgment of the trial court the judgment of the Appellate Court is conclusive upon this court as to the fact of usury, when so found, as well as upon all other controverted questions of fact.</p> <p>2. Practice—withdrawal of plea. The practice is well settled that a defendant may, in the discretion of the court, abandon any part of his defence during the trial, and hence there is no error in allowing a defendant to withdraw his plea of the general issue in assumpsit, and rely on his special pleas.</p> <p>3. Usury—what constitutes usury. If a contract exists, whether express or implied, at the time of or subsequent to the entering into the agreement, to take or reserve more than lawful interest, it is such an agreement as is within the provisions of the statute. To constitute usury from the taking of interest upon interest, it is not necessary to prove that there was an agreement made in advance for the payment of such interest.</p> <p>4. An agreement to give a given sum in excess of the legal rate of interest in consideration of an extension of the time of payment, is as much in violation of the statute against usury as an agreement to pay twenty per cent interest. The statute can not be evaded by any shift or device. The law looks to the substance, and not the form of the transaction.</p> <p>5. Same—measure of recovery. If usury is reserved in a note, the payee will only be entitled to recover the amount due him when the contract for usury was made.</p> <p>6. Same—effect of subsequent promise to pay. After a contract to pay more than the legal rate of interest has been made, a subsequent promise to pay will not relieve the contract of the taint of usury, or prevent the defence of usury from being interposed.</p> <p>7. Same—proof in avoidance of plea of usury. In a suit on a note in which usury and usurious payments are pleaded, there is no error in instructing the jury, for the defendant, that if the plaintiff relies upon an agreement to pay compound interest, he must prove such agreement by a preponderance of the evidence.</p> <p>8. Tendee—of the proper judgment. If the amount due on a note is tendered before suit is brought thereon, and the tender is kept good by bringing the money into court, the defendant is entitled to a verdict on that issue when the tender is pleaded.</p>

John A. Jameson, Judge, presiding. The contract and trust deed which are the foundation of this suit, are as follows: “The undersigned hereby agree to convey to Stein, Hirsch & Co., Henry Greenebaum, Clark Lipe, Charles E. Steele, Wallace E. Condict, S. F. Leopold, and Ernst Prussing, or to such person, for their use, as they may elect, the land and premises known as Nos. 337, 339 and 341 State street, in the city of Chicago, subject to all incumbrances and liens now…

Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.

Thomas A. Moran, Judge, presiding. On the eighth day of August, 1877, Michael Daly brought an action on the case, in the circuit court of Cook county, against Charles C. Holton, to recover for injuries caused by the bursting of an emery wheel, through negligence, etc. The general issue was pleaded. The cause was tried at the October term, 1878, of the court, resulting in a verdict for the plaintiff, assessing his damages at $5000.

<p>1. Instruction—as to matters not in issue. An instruction directing the attention of the jury to an element of liability not shown by the pleadings or evidence in the case, is calculated to mislead, and is erroneous. It is not proper to direct the attention of the jury to matters not in issue.</p> <p>2. Same—directing the jury as to what is the better evidence. It is obvious error for the court to announce to the jury what is the better evidence in a case, or what the jury may so regard. It is the province of the jury to say to what evidence they will attach the greater weight in case of a conflict, and with this right or privilege the court should not interfere.</p> <p>3. Same—assuming facts. An instruction which assumes the existence of material facts, without which the plaintiff can not recover, some of which are matters of contention between the parties, is erroneous.</p> <p>4. SAME'—generally■—as to character of signal to be given on railroad train approaching highway crossing. In an action against a railroad company to recover for an injury caused by a collision with a buggy while crossing the railroad, the court instructed the jury, in substance, that it was the duty of the railroad company, when its trains were about to cross a highway on a common level, to give “due warning,” so that a person traveling on the highway with a team and carriage might stop and allow the train to pass: Held, that the instruction ought not to have been given, as it might have led the jury to believe that the company was bound to do more than to ring a bell or sound a whistle.</p> <p>5. Evidence—affirmative and negative testimony—of their relative weight. In a suit against a railroad company for negligence in not giving the statutory signals on approaching a road crossing with a train, the jury are not, as a matter of law, justified in giving greater weight to the testimony of witnesses who state negatively that no bell was rung or whistle sounded, than to that of witnesses stating affirmatively that such was done. The rule would seem to be the other way.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding.

<p>Laches—asserting a resulting trust. A bill filed by heirs eighteen years after their majority, to assert a resulting trust against real estate, on the ground that the same was bought with means derived from their father’s estate thirty years before, is subject to the defence of unreasonable delay, and laches, unless the delay is satisfactorily accounted .for.</p>

<p>Appeal from the County Court of Macoupin county; the Hon. Lewis P. Peebles, Judge, presiding.</p>

<p>1. Tax title—defeat in notice of application for judgment cured by appearance and resisting application. Where the owner of land appears and. resists an application for judgment against the same for taxes, this is a waiver of all objection to the sufficiency of the notice of the application, and gives the court jurisdiction, and he or his grantee will not be allowed to urge the insufficiency of the notice to defeat a sale made under the judgment of the court in such proceeding.</p> <p>2. Same—former adjudication—as to objections filed. Where the owner of land appears and files objections to the rendering of judgment against the same for taxes, which are overruled, the questions thus put in issue and decided against him become res judicata, and he and his grantee will be precluded from urging the same matters thus decided to defeat the tax title acquired by a sale under the judgment.</p> <p>3. Same—mere error no ground to defeat tax sale. Where the court rendering a judgment against land for taxes has jurisdiction, the judgment, though erroneous, is just as conclusive until reversed as if it was entirely free from all error.</p> <p>4. Same—of the proof required to support judgment for taxes. On application for judgment against land for taxes, the collector’s report of the list of delinquent lands, when proof is made of the notice of the application, makes out a prima facie case in support of the application, and judgment will be rendered upon it unless good cause is shown to the contrary by those contesting the same; and when the application is resisted, and the objections to the rendering of judgment are overruled, and the land sold and a tax deed taken out, the party relying on such tax deed is not required to prove that the taxes were lawfully levied, and the authority to collect the same, to maintain his title.</p> <p>5. Same—variance between amount of judgment and amount bid 'at the sale—as affecting the validity of the sale. The question of variance between the amount of the judgment against land for taxes and the amount bid at the sale not being jurisdictional, can not affect the validity of the title acquired at the sale. It seems questionable whether the addition of the costs to the amount of the judgment constitutes any variance.</p> <p>6. Same—of the precept—by whom to be issued, in case of appeal to circuit court—form of the precept. Where judgment has been rendered against lands or lots for taxes, on appeal to the circuit court it is the duty of the circuit clerk to make and deliver to the county clerk a record of the lands and lots against which judgment is rendered, substantially as is required of county clerks by section 194 of the Bevenue act, which shall constitute the process on which such lands shall be sold. Such record, made in substantial compliance with the statute, will be sufficient, and it will not be invalidated by the insertion therein of more than the statute requires. The statute having prescribed no form to be observed, the addition of useless but not repugnant matter will not vitiate it.</p> <p>7. Same—effect of a precept also issued by the county cleric. Where a sufficient precept of sale of delinquent lands has been made out by the clerk of the circuit court on a judgment against real estate for taxes, rendered in that court on appeal from the county court, and delivered to the county clerk, which, alone, is a sufficient authority for the sale, a precept of sale, also issued by the county clerk for the same purpose, being an abortive attempt to confer power already existing, is harmless, and can not invalidate the sale.</p> <p>8. Same—of the notice to be given before taking out tax deed. Under section 5, article 9, of the constitution, relating to notices of tax sales, the legislature is unrestricted as to the kind of notice to be given. It may be provided that the notice shall be by publication, and if by publication', in what form, or that it shall be otherwise, and prescribe in what manner. The only imperative requirement is, that occupants shall be served with personal notice.</p> <p>9. The affidavit of the notice of a purchase at a tax sale showed that no person was in the actual possession of the land sold, to a period less than three months before the time of redemption expired, which is more than the statute requires; that the land was assessed in the name of J. M., and that he, upon diligent inquiry, could not be found in the county, and did not reside therein for any period of the time from the day of the sale down to within three months before the expiration of the time of redemption, and it appeared from the record that J. M. continued to he owner of the land until the sale for taxes: Held, that it was not the duty of the purchaser, in giving notice under the statute, to hunt up other parties claiming to have subsequently acquired an interest in the property, and that notice by publication was sufficient to entitle him to a deed.</p> <p>10. The statute prescribes no form of notice to be published,'and specifies nothing essential, except that which is to be included in the body of the notice,—-that is, when the land or lot was purchased, in whose name it was taxed, the description of the land or lot, for what year taxed, and when the time of redemption expires. It is no objection that it is directed “to whom it may concern.”</p>

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

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

This was a petition for a mandamus, filed in this court, the contents, object and purpose of which fully appear in the opinion of the court.

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

<p>Statute—whether the provisions of an act are expressed in the title ■—of the “Act to incorporate the Dixon and Quincy Railroad Company”— authorizing townships to give aid to the company, etc. The fourth section of the act approved March 4, 1869, entitled “An act to incorporate the Dixon and Quincy Railroad Company,” assumes to confer on townships power to subscribe to the capital stock of or to make donations to said company, and provides for elections to decide as to such subcriptions or donations, for taxation for the payment of the same if voted, and for the issue of bonds to represent the same, etc. It is held that section does not cover and embrace a subject not expressed in the title of the act, within the meaning of the provision in the constitution of 1848, declaring that “no private or local law which may be passed by the General Assembly shall include more than one subject, and that shall be embraced in the title,” and is therefore not unconstitutional. The provisions in such section are so far germane to the subject expressed in the title as to be fairly embraced therein.</p>

<p>1. Special assessments—exemption—lialility of property of counties, cities, etc. Exemption from taxation does not exempt from special assessments. The constitution makes a distinction between taxation and such assessments. While it provides that -the General Assembly may exempt the property of the State, counties and other municipalities from the former, it makes no such provision as to the latter, but on the contrary authorizes the legislature to vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments, without any restriction as to the property to be assessed.</p> <p>2. The exemption, not the inclusion of the property liable to special assessments, must specifically appear. The general language of the statute authorizing cities, etc., to make improvements by special assessments, includes the property of counties, cities, etc., as well as private property.</p> <p>3. While the State may not authorize corporate authorities to levy special assessments upon the property of the United States, as it would he an invasion of the rights of a distinct sovereignty, no such reason exists as between the several agencies of the State government, which are subject to its control and direction. It may authorize a burthen to be imposed on one of its agencies to the extent it is benefited by another agency, for the benefit of the entire public.</p> <p>4. Same—how payment enforced against property of county. Real estate of a county can not be sold for a special assessment levied by a city for a public improvement, and the title passed to private parties or to the city. In such case the amount should be paid out of the county treasury, and should this not be done, mandamus would lie to compel it; but before this step can be taken a judgment at law must be obtained for the amount.</p> <p>5. Same—former decision. In Craw v. Village of Tolono, 96 Ill. 255, holding that no personal liability could be enforced against the owner of land on account of a special assessment, but that it must be collected from the property itself, it was not intended to overrule the case of Taylor v. People ex rel. 66 Ill. 322, and hold that public property could be sold in such cases; nor was it intended to overrule Higgins v. City of Chicago, 18 Ill. 276, and Scammon v. City of Chicago, 42 Ill. 192, and hold that public property was not liable to special 'assessments, but it was intended only to lay down a rule in regard to the special assessment of properly of private owners.</p>

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

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

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

<p>Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

John V. Eustace, Judge, presiding. This is an action of assumpsit, brought by Hammond, against Puterbaugh, in the circuit court of Carroll county, to the January term, 1881. The declaration consisted of the common counts, for goods sold and delivered; for money lent and advanced to defendant; for moneys paid, laid out and expended for defendant; for money had and received; for money due for interest; for work and labor done and materials furnished, and upon an account stated.

<p>1. Death occasioned by intoxication—suit by widow for injury in her means of support by the loss of her husband—grounds of action under Dram-shop act. In a suit by a widow against a dram-shop keeper to recover for an alleged injury in the means of support of the plaintiff as the result of the death of her husband, occasioned by his being in a state of intoxication produced by the drinking of intoxicating liquors furnished to him by the defendant, to make out a ease under the statute it is necessary to establish, first, that the defendant sold or gave to the plaintiff’s husband intoxicating liquors; second, that the giving or selling of such liquors caused, in whole or in part, his intoxication; third, that such intoxication caused his death; and fourth, that by reason of his death the plaintiff was injured in her means of support.</p> <p>2. Same—inference of injury to means of support—shifting the burden of proof. If, upon the trial in such a suit, the death of the plaintiff’s husband is shown, and that his death was occasioned by intoxication produced by liquors sold or given to him by the defendant, in the absence of any proof to the contrary the jury will be warranted in inferring therefrom an injury to the plaintiff’s means of support. That will be sufficient to shift the burden of proof, and entitle the plaintiff to at least nominal damages.</p> <p>3. Same—measure of damages—of evidence proper to be considered. In such case, in order to ascertain the measure of the plaintiff’s loss from the death of her husband, it is proper to show his age, what he himself had done in his lifetime, the character of his business, his habits of industry and thrift, income, and all that sort of thing, with a view of determining what he probably would have continued to do but for his death.</p> <p>4. But what the widow may have done, or what expenditures she may have made, since his death, in respect to the business in which her husband had been engaged, would afford no ground of presumption as to what he would have done in the event he had lived. So where, in such a case, it appearing the plaintiff’s husband was a farmer, the plaintiff was permitted to prove that since her husband’s death she had expended considerable sums in ditching upon the farm, and having rails split, and fencing made, it was held that proof of such expenditures should not have been allowed, as it afforded no criterion by which to determine the extent to which the plaintiff’s means of support had been permanently diminished by her husband’s death.</p> <p>5. The plaintiff was also permitted, in giving her testimony, to detail to the jury the inconveniences she had labored under since her husband’s death,—how she had to go to town on cold days, and the fact of one of her girls having to work out, and, also, to speak of the mangled condition in which she found her husband shortly after the injury which was the immediate-cause of his death; how she fainted away, and his dying remark to her, “Mary, I can’t see you any longer,—I am getting blind. ” All this was improper, as having no bearing on the issue as to the extent of injury to the plaintiff’s means of support by the death of her husband, and only calculated to enhance the damages through sympathy for the plaintiff and prejudice against the defendant.</p> <p>6. Evidence—leading questions. While it is conceded that leading questions may be propounded to a witness who is hostile to the party calling him, or is required to testify against his own interest, yet in the absence of any considerations of this character, as, where the witness is favorable to the party examining him, such a course of examination is not allowable.</p>

<p>1. Statute—giving a new remedy applies to prior cause of action. Under the act of 1881, amendatory of section 253 of the Revenue law, so far as it gives a new remedy to enforce the lien on land for taxes by foreclosure in equity, the remedy may be used or employed to enforce a preexisting right, as well as one subsequently accruing. It makes no difference when the cause of action arose,—the remedy, when given, may be availed of.</p> <p>2. Taxation—Ken for taxes, and “costs, interest or penalty”—under acts of 1872 and, 1881. Section 253 of the Revenue act of 1872, made not only the “taxes" on land a lien thereon, but also the penalties, interest and costs, as section 292, division 14, of that act declares that the word “tax” or “taxes,” when used in that act, shall include “costs, interest or penalty.” Therefore the act of 1881, amending section 253, although it, in terms, makes not only the taxes, but the “penalties, interest and costs” a lien upon the property assessed, creates no new lien.</p> <p>3. Same—remedy by foreclosure—to what it is limited. The statute limits the remedy in equity for the collection of taxes by foreclosure to cases where the “taxes for two or more years, upon the same description of property, shall have been forfeited to the State."</p> <p>4. Same—what constitutes a forfeiture to the State. Real property is forfeited to the State when, at any regular tax sale under the Revenue*act, the collector shall offer it for sale, and it shall not be sold for want of bidders.</p> <p>5. Same—effect of irregularities in obtaining judgment under which forfeiture was had. On an application for judgment against land for the current and back taxes, and for penalties, interest and costs, it is not important to inquire whether the judgment under which the land was forfeited to the State was in every respect in conformity to law, if the land was in point of fact so forfeited. So in a suit in chancery for foreclosure in respect to taxes, penalties, etc., due upon forfeited lands, the question whether the judgment under which the forfeiture was had was in strict conformity with the statute will not be considered.</p> <p>6. Same—payment of current taxes—as a bar to a forfeiture in respect to back taxes. The payment by the owner of land, of the current taxes thereon, to which have been added back taxes with' penalties, interest and costs, will not operate to avoid a forfeiture of the land for such back taxes, penalties, etc.</p> <p>7. Same—adding “penalties, interest and costs”—under what circumstances allowable—the statute construed. Under sections 129 and 229 of the Revenue act now in force, in case of real property having become forfeited to the State for non-payment of taxes, “penalties, interest and costs” may be imposed in respect to such forfeited real property, which may be collected, with back taxes. In such case section 277 of that act has no application, as it has reference to a case where a tax assessed on property liable to taxation has been prevented from being collected for any year or years on account of any erroneous proceedings.</p> <p>8. Former adjudication—concludes only as to right sought in prior suit. A judgment in a suit at law against a party,.holding that the defendant was not personally liable for back taxes, penalties, interest and costs, is no bar to a suit in equity to enforce the statutory lien on the land for the same taxes, penalties, interest and costs, and subject it to sale for the same, nor is a decree dismissing a bill filed to enforce such lien for want of jurisdiction a bar to a second one filed for the same purpose after the enactment of a law giving such remedy.</p> <p>9. Same—:judgment against land for taxes. A land owner, in 1879, appeared in the county court and objected to judgment against his land for the taxes of 1878 and prior years, claiming that there was no legal forfeiture of the property for the years 1871 to 1878, and that the clerk had no right to place such taxes on the tax book for either year, for the “reason that the several tax sales were made under pretended judgments for taxes for said years without any process, as required by law. ” Judgment was rendered against the property for the greater part of the back taxes, and judgment was again rendered against it in 1880 for the current taxes, and back taxes, with penalties, interest and costs thereon, and in 1881 a similar judgment was rendered, over the objection of the owner: Held, that the owner, by these judgments of the county court, was concluded from questioning their validity, and denying that the land was legally forfeited.</p>

Thomas A. Moran, Judge, presiding. On Monday, the 20th of September, 1880, appellees sold to H. C. Ranney & Co., upon the board of trade of Chicago, 1737 bushels of No. 2 spring wheat, for $1616.02, cash. Delivery of the wheat was made by means of three warehouse receipts issued to appellees, and by them indorsed, calling, respectively, for 488, 864 and 385 bushels of No. 2 spring wheat.

<p>1. Statute—rule of construction. In construing a statute the courts are not confined to the words employed, but may look to the preceding law and other statutory provisions relating to the same subject. The plain literal reading of language may be departed from when it is required to avoid an absurd consequence, or to carry out the manifest intention.</p> <p>2. Taxation—road and bridge tax—to- be extended on current year’s assessment. The bridge tax provided for in section 119 of the Eoad and Bridge act of 1879, is not required to be extended upon the assessment valuation of the preceding year, but upon the assessment for the current year. It is meant by that section that such tax shall not exceed forty cents on the one hundred dollars, according to the assessment of the previous year; but when the sum to be levied is thus fixed by reference to the preceding assessment, the clerk of the county court is required to extend that sum upon the property of the town according to the assessment for the current year.</p>

<p>Writ of Error to the Circuit Court of Jersey county; the Hon. Albert G. Burr, Judge, presiding.</p>

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

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

<p>1. Specific) performance—title of purchaser held in pledge by vendor to indemnify him as surety. Where the purchaser of land, after having paid the purchase money so as to entitle himself to a deed, pledges the title, then in the hands of a third person, to his vendor, to indemnify the latter against loss as surety of the purchaser in another transaction, a specific performance will not be decreed until the debt for which the vendor is surety has been paid, and a decree granting a specific performance upon condition of the payment of such debt by a day fixed, and in default of such payment ordering the premises to be sold for such indebtedness, is not erroneous as to the party seeking such specific performance.</p> <p>2. Statute of Frauds—pledge of title to land to indemnify surely— not in writing—the ninth section of the statute in relation to trusts, construed. A purchased a tract of land and-took a bond for a deed from B, the vendor. The premises had before been sold on the foreclosure of a prior mortgage, and to cut off a dower right in the wife of the mortgagor, B procured an assignment of the certificate of purchase to his son, who received a 'master’s deed investing him with a clear, legal title, and A, after payment of the purchase money, procured B to become his surety upon a note for $1000, agreeing that the title might remain in B’s son as an indemnity to B, until such note should be paid: Held, on bill by the assignee of A for specific performance, that the agreement respecting the holding of the title by B’s son as an indemnity to the vendor was not within the Statute of Frauds, and was valid and binding, though not in writing.</p> <p>3. The ninth section of the Statute of Frauds was intended to prevent persons holding the title to land from creating a trust, appointing a trustee, and declaring who should be the beneficiary, and declaring the terms of the trust in any other manner than in writing. It was not intended to prevent the holder of the legal title from agreeing with the holder of the equitable title upon other and different terms and conditions than those originally agreed upon, when the latter shall be entitled to a conveyance of the legal title. Such parties may verbally agree upon new terms for the conveyance of the legal title, or may rescind the contract altogether.</p> <p>4. Purchaser of an equity—chargeable with notice. A party purchasing only an equity takes it subject to all equities with which it may be encumbered. So, where a person takes an assignment of a bond for a deed after his assignor has pledged the title in the hands of a third person to indemnify the maker of the bond as his surety, the assignee will take no better right or equity than his assignor had at the time of the assignment.</p> <p>5. Error—who may avail of it. A party will not be allowed to avail himself of an error which does him no harm.</p>

Murray F. Tuley, Judge, presiding. Lockwood resided in the town of West Chicago, and under the style of S. T. Lockwood & Co., carried on business in the town of South Chicago of a commission merchant,—that is, of receiving consignments of goods from divers manufacturers, and storing and selling the same on commission.

John H. Williams, Judge, presiding. This was a bill in chancery, brought by Lorenzo Bull, Edward Prince and William B. Bull, against the city of Quincy and its chief of police, to restrain their interference with the laying of water pipes by the complainants in streets of said city.

Cyrus Epler, Judge, presiding. Suit was commenced by the city of Lincoln against David T. Littler, before a justice of the peace of Logan county, for obstructing certain streets. The justice rendered judgment for Littler, and the city appealed to the circuit court of that county. Judgment was there rendered in favor of the city, and against Littler, for $200.

N. J. Pillsbuby, Judge, presiding. This was an action on the case, by William W. Hall, against the appellant, to recover damages for a personal injury alleged to have been caused by negligence, as stated in the opinion of the court.

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

<p>Appeal—directly from trial court—creditor’s bill. A decree in the circuit court dismissing a creditor’s bill, the purpose of which was to subject certain premises to the payment of a judgment, can not be brought directly from that court to the Supreme Court for review.</p>

<p>1. Statute of Frauds—sale of land by parole-part performance. The payment of the purchase money for land, taking possession under the contract to convey, and the making of lasting and valuable improvements upon the land, in equity, will take a parol sale out of the Statute of Frauds.</p> <p>2. Resulting trust—whether it arises. Where two persons purchased forty acres of land, under a verbal agreement between themselves that one was to pay one-fourth of the price for ten acres off a certain side of the tract, and he paid his fourth of the purchase money, which in effect was used directly in the purchase of the entire tract, and the other took a deed to himself for the whole, it was held, that a trust resulted by operation of law in favor of the party so bargaining for the one-fourth as to his part of the tract, and that the Statute of Frauds had no application to the case.</p> <p>3. If one person purchases land with the money of another, and takes a deed in his own name, though done under a verbal agreement between them, a resulting trust is created by operation of law in favor of the one furnishing the money, which a court of equity will enforce.</p> <p>4. Limitation—as against one in possession. Two persons purchased a tract of land, each to have a certain portion thereof, and one of them took a deed for all, giving back a mortgage to the vendor to secure the price, which mortgage was afterward discharged J>y the money of both the purchasers, so that a resulting trust was created against the one taking the deed. The other took possession of his part, and made lasting and valuable improvements on the same, and continued in the undisputed possession for more than twenty years, during -which time he paid his share of the taxes, and for some years leased his part to his co-purchaser, in whose name the title rested, who paid rent. It was held, on bill filed by the one so occupying his land to compel the other to convey to him, that the Statute of Limitations was no bar to the equitable relief sought.</p>

<p>1. Taxation—of Illinois Central railroad lands which have been sold by the company, and contract forfeited for non-payment—refunding taxes paid on land not subject to taxation. Where the contract of the Illinois Central Railroad Company for the sale of land given it by the State has been forfeited for non-payment of any part of the deferred payments, and rightfully canceled by that company, such land thereafter in the hands of the company is not subject to taxation, and a person purchasing such land at tax sale after such forfeiture, and paying subsequent taxes thereon, will be entitled to have the payments so made refunded to him, as provided in section 268, chapter 120, of the Revised Statutes, and may recover the same of the county in which the land is situate.</p> <p>2. Jurisdiction—when party estopped from questioning. Where a party appealed from an order of the county board in refusing to refund to him taxes paid on land not subject to taxation, and judgment was rendered in his favor by the circuit court, and that judgment, on appeal by the county, was reversed for error and the cause remanded, whereupon a second recovery is had against the county: Held, that on a second appeal this court would not listen to the objection that the circuit court had no jurisdiction of the subject matter.</p>

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

<p>Writ of Error to the County Court of Effingham county; the Hon. Joseph B. Jones, Judge, presiding.</p>

<p>Appeal from the County Court of Madison county; the Hon. Michael G-. Dale, Judge, presiding.</p>

<p>1. Stock sunning at large—of elections in respect thereto—by counties, and by towns, or other legal subdivisions. A county, after the adoption of township organization, although a number of the towns of the county have already adopted the Stock law, prohibiting stock from running at large, may vote upon the question of Stock law as a county.</p> <p>2. Towns that have adopted the Stock law as towns, can vote again on that question at a county election, within five years from the date of their having voted to restrain stock in such towns.</p> <p>3. The act known as the “ Stock law, ” expressly provides for two kinds of elections,—one to be held by counties, as such, and the other by certain legal subdivisions of the county, namely: precincts, townships, incorporated cities, villages and towns.</p> <p>4. Where an election is held under the act by the county, resulting in favor of restraining cattle from running at large, such vote is binding on the county, and every precinct, township or other integral part thereof, for a period of five years, without regard to whether such integral subdivision voted for or against the law. In such ease there is no power in the county, or in any subdivision thereof, to call or hold another election for the purpose of reconsidering the question until after the expiration of five years.</p> <p>5. But if, at such county election, a majority of the votes cast are in favor of stock running at large, the county may, from year to year, resubmit the question until a majority vote is obtained in favor of the prohibition. And the vote at such county election resulting in permitting stock to run at large will only be binding on such townships, precincts, etc., as vote that way, and the Stock law, prohibiting stock from running at large, will nevertheless be in full force and effect in such towns, precincts, etc., as vote for its adoption.</p> <p>6. Moreover, so long as the county votes against the law, or in favor of stock running at large, any township or precinct may, under section 5, call an election for the purpose of submitting the question again to the voters thereof, and this may be done without regard to how such town or precinct voted at the county election; and if a majority of the votes cast at such election is against adopting the law, the question may be again submitted to the voters of such town or precinct until the law is adopted, after which such town or precinct can not resubmit it again until after the expiration of five years.</p> <p>7. If, however, in the meantime a county election is legally called to vote on the question, such town or precinct adopting the law will have the same right to vote upon the question as every other town or precinct, notwithstanding five years may not have elapsed since such town or precinct election; and should its vote at such county election be again in favor of the law, its provisions will continue to be in force in such precinct or town, notwithstanding a majority of the county may have voted against it.</p>

<p>Appeal—in suit against a railroad company for unjust discrimination—to wliat court. An action of debt, brought by the State’s attorney in the circuit court, against a railroad company, for the recovery of penalties for alleged extortion and unjust discrimination, which is dismissed by the court, not being a criminal case above the grade of a misdemeanor, and not involving á franchise, or freehold, or the validity of a statute, or construction of the constitution, and not relating to the revenue, and the State not being interested in it, as a party or otherwise, when the only question involved is the right of the State’s attorney to bring the suit, no appeal lies directly to this court. In such case the appeal should be to the Appellate Court.</p>

Lyman Lacey, Judge, presiding. Amzi Mintonye, the appellee, brought to the November term, 1881, of the Mason circuit court, an action of ejectment, against'Johanna Meyer, the appellant, for the recovery of a tract of land in said county, consisting of about two hundred acres, being the same now in controversy. There was a recovery in the circuit court, and the appellant brings the case here for review.

<p>1. Appearance—defence on the merits, as a waiver of defects in process or service. In personal actions, if the defendant appears and pleads to the merits, it is wholly immaterial whether the service of the summons was defective, or whether any summons at all was ever issued and served upon him. A party can not appear and object that the service on him is defective, and at the same time defend as to the merits of the suit. Defending on the merits is a waiver of all objection to the service, or even to the entire want of any service.</p> <p>2. The same rule applies to applications for judgment against delinquent property for taxes. If the owner appears and defends as to the merits, it makes no difference whether the notice given by the advertisement is defective or not, or whether there was any advertisement at all.</p> <p>3. Taxation—application for judgment—of the notice—waiver by defence to the merits. On application of a collector for judgment against lands and lots for taxes, etc., due thereon, the advertisement of the application stands in the place of a summons in personal actions as to the question of jurisdiction, and the land owner may enter his appearance the same as in personal actions. It is sufficient if he has either actual or constructive notice of the proceeding against his property. He can not object to the sufficiency of the notice, and at the same time question the liability of his property to the taxes claimed.</p> <p>4. Same—recording delinquent list—date of filing the list need not be stated. Section 188 of the Revenue act of 1872, which requires the collector to file with the county clerk the delinquent list five days before the commencement of the term at which application is to be made for judgment, and making it the duty of such clerk to record the same in a book kept for that purpose, does not require that the date of filing such delinquent list shall be set forth in such book. It is enough if it appears by the bill of exceptions that such list was filed in time.</p> <p>5. Same—amending delinquent list—time to object to defects or errors in the list. Under section 191 of the Revenue law, if the delinquent list shows the total amount of taxes due on some of the property to be more than is stated in the advertisement, or if the list is erroneous, it may be corrected, and if the party defending against judgment fails to point out such discrepancy, or any other omission capable of being obviated by amendment, he waives his objection thereto, and can not urge the same as error.</p> <p>6. Same—city taxes—ordinance levying the same need not be published. Under the general law for the incorporation of cities and villages, it is not necessary to publish the ordinances levying the city taxes, but only the ordinances making appropriations of money. The ordinance for the levy of the necessary taxes presupposes antecedent appropriations, and merely makes a levy to raise money to pay the appropriations already made. The total amount of appropriations legally made is required to be ascertained prior to the passage of the ordinance, and it takes effect from its passage, without publication or posting.</p> <p>7. Same—of the necessary proceedings by the city authorities to constitute the levy a valid one. Where a city incorporated under the general law proceeds to levy taxes upon the assessment for State and county purposes, it is necessary that the amounts levied and to be raised shall be certified to the county clerk, in order that the taxes for the city may be extended and collected in the manner provided for in the general revenue laws of the State. Where this is done, it shows conclusively the election of the city authorities to proceed in the assessment, extending and collection of these taxes in conformity with article 8 of the general Incorporation law of 1872, and section 122 of the Revenue act. Section 254, page 255, of the Revised Statutes of 1874, has no application to such taxes.</p> <p>8. Same—special taxation for sidewalks—may be levied and collected before the walk, is built. Where a city proceeds to construct a sidewalk under the “Act to provide additional means for the construction of sidewalks,” approved April 15, 1875, and in force July 1, 1875, by special taxation, instead of by assessments, the tax so levied can not be defeated merely because the sidewalk has not been built before the tax is sought to be collected.</p>

<p>1. Statute of Frauds—promise to pay the debt of another. A promise to pay the debt of another, after the debt has been already incurred, is void, unless such promise is made in writing.</p> <p>2. Commission merchant—purchasing for future delivery—on margins—notice to the customer before sale. Where a commission merchant purchases pork and lard on the board of trade for a customer, for future delivery, the customer having advanced the required margin, and no agreement is made as to notice in case the commission merchant is compelled to secure himself against loss by a sale of the property, the transaction will be governed by the rules of the board of trade; and if its rules require notice, the merchant must give it before he can place his customer in default. If there is no contract in regard to such notice, or any rule of the board of trade, the common law requires a reasonable notice to the customer, and opportunity to make the margins good before a sale.</p> <p>3. Same—liability in case of a wrongful sale. If a purchaser through a commission merchant, on the board of trade, has sufficient margins in the hands of the latter, the commission merchant will have no right to sell the property without authority from the purchaser he represents; and if he does so sell, and loss results, he will be bound to make good the purchaser’s loss, and such purchaser may, in such case, recover of him the full amount deposited as margins.</p> <p>4. Instruction—mere obscurity not fatal. The mere obscurity of an instruction is no ground for a reversal. The instruction must mislead, or be calculated to mislead, to the injury of the party against whom it is given, to justify a reversal.</p>

George Gardner, Judge, presiding. In the month of April, 1876, the Commercial Hotel Company was organized as a corporation, under the laws of the State of Iowa, to transact the business of keeping hotels at any places or place in the States of Iowa and Illinois, or either of them, with a capital stock of $160,000, divided into 1600 shares, of $100 each. Pulling subscribed for 1597 shares, Cronkhite for one share, Plainer for one, and White for one.

<p>1. Action—splitting of entire cause of action-^bar to second suit. A party can not split an entire cause of action, and bring two or more suits to recover different portions of the same debt. If he sues for and recovers a part of an entire demand or debt, the judgment is a bar to a second suit for the balance.</p> <p>2. Same—when two or more actions may be brought on same contract, as for separate demands. Where a lease provides for the payment of a given sum annually, separate actions may be brought upon the lease for each year’s rent, and if, when suit is brought for one year’s rent, the rent on the following year is then due, a judgment for the first is no bar to a second action for the rent of the subsequent year.</p> <p>3. The statute requiring parties in suits before justices of the peace to consolidate all their respective demands, or be barred from a further action, and the decisions thereon, have no bearing or application to suits brought in courts of record.</p> <p>4. Pleading—assigning further breaches in suit on penal bond. In an action on a penal bond conditioned for the payment of a specified sum annually, as rent of premises, where the only breach assigned is the failure to pay the rent of the year ending in 1880, the plaintiff may afterward assign as a further breach the non-payment of the rent of the year ending in 1881, although the suit was brought after the rent of both years was due.</p> <p>5. Any breach of the condition of a penal bond for which damages have not already been assessed, forms the proper subject matter of a new assignment. And the statute applies to other bonds for the performance of covenants besides official bonds.</p>

William H. Babnum, Judge, presiding. This was a bill in chancery, in the Cook circuit court, by appellant against appellees, and as the bill was amended, the substantial allegations are as follows : That on May 23, 1878, appellant recovered a judgment in the Supreme Court of New York for $38,314.22 against William C. Hickox and Joel M. Hickox, upon which execution was issued immediately, and returned nulla bona; that the judgment has never been paid, and that both said…

<p>Appeal from the Circuit Court of Kane county; the Hon. Chaeles Kellum, Judge, presiding.</p>

<p>1. Witness—competency—defendant in chancery against an executor seeking a foreclosure. On bill by an executor to foreclose a mortgage given to his intestate, a defendant, if a necessary party to the bill, is incompetent to testify as a witness to payments made by the mortgagor, his co-defendant, to the testator.</p> <p>2. Parties—on bill to foreclose. On bill to foreclose a mortgage, all persons interested in the mortgaged premises should be made parties. A tenant in possession under the mortgagor is a necessary party defendant. If not made a party, his interest will not be cut off by the decree.</p> <p>3. Writ of possession—on failure to redeem from sale on foreclosure—and against whom. Where no redemption is had from a foreclosure sale, the purchaser, after taking out a deed, is entitled to a writ of possession, but it can only be issued against the defendants in the bill, and those claiming under them, after the suit was commenced.</p> <p>4. Evidence—credit indorsed on note may be explained. An indorsement on the back of a note, of money received, is but a receipt for money, and open to explanation, the same as any other receipt. If a credit is indorsed for more money than was actually paid, the holder of the note may show that fact, and the true amount will be allowed, and no more.</p> <p>5. Gift—proposed and intended gift not binding. Where a man made an indorsement upon a mortgage due him from a third person, “I hereby agree to allow M. K., wife of A. B., a niece of mine, $1200 in my will, and if her equal share should not amount to that sum, to take the amount out of the whole pile,” but died without making such provision in his will: Held, that this showed a clear intent to make a gift in the future by will, but so long as it was unexecuted, and based upon no consideration, it could not be binding on the party or his executor.</p> <p>6. Chancery— decree making no disposition as to one defendant. If one of the defendants in a bill to foreclose a mortgage has no interest in the subject matter of the litigation, the better practice is to dismiss him out of the case on the final hearing; but if this is not done, and no decree is rendered against him, he will be in no position to complain, as he is not injured by the irregularity.</p>

<p>Specific performance—when it will he decreed. This casé turns upon the question whether the evidence is sufficient to establish the alleged contract sought to be enforced.</p>

<p>1. Practice in the Supreme Court—as to rulings in chancery in the admission or rejection of evidence. In chancery cases, the practice is not to reverse for erroneous rulings in the admission or exclusion of evidence, unless it is seen, after an inspection of the entire record, that different rulings might have induced a different decree.</p> <p>2. Where the entire record is before this court, embracing not only the evidence admitted, but also that excluded, unless it can see on such record that there is error in the decree below it will be affirmed.</p> <p>3. Witness—competency—of husband and wife, for and against each other. Husband and wife are competent witnesses for and against each other only in the cases mentioned in the exceptions to section 5 of the act relating to evidence. The words, “except in cases where the wife would, if unmarried,- be plaintiff or defendant, ” do not have reference to cases where the wife is subsequently divorced, or where her husband has died, but simply to cases where the proposed witness has never been married,—where the controversy does not concern a right resulting from marriage.</p> <p>4. On bill by a husband and wife to set aside their contract of sale and conveyance of the husband’s interest as heir in his grandfather’s estate, both real and personal, on the ground of fraud, the wife is not a competent witness for her husband.</p> <p>5. Same—attorney at law—when competent to testify as to facts. An attorney who is merely employed to draw up the necessary papers to consummate a contract to which the parties had agreed, no legal advice being asked or required, is, not privileged, and may testify as to what comes to his knowledge in connection with the transaction.</p> <p>6. Rescission of contract—placing the party in statu quo—exceptions to the rule. It is incumbent on a party seeking the rescission of an executed contract, to return, or offer to return, what he has received. He must place the opposite party in statu quo. There are exceptions to this rule, as, when that received is entirely worthless, or when, by reason of peculiar circumstances not chargeable to the fault of the party seeking to rescind, restoration of that received is impossible.</p>

<p>1. Permanent survey oe land—setting aside surveyor’s report and appointing new commission, after verdict—trial de novo. Under tire act of March 29, 1869, “to provide for the permanent survey of lands,” when a trial is had by jury, on objection to the report of the surveyors, resulting in a verdict against the report, and in favor of the objector, and the court, though overruling a motion for a new trial, sets aside the report and the commission, and appoints a new one, this is, in effect, a setting aside of the verdict, and thereafter the proceeding is one de novo, and all things done under the first commission, including the verdict of the jury, falls through and comes to naught. This having been done, the verdict returned under the first commission could not be regarded as an adjudication upon the question at issue so as to conclude the parties.</p> <p>2. Same—evidence on second trial. Where a trial is had on objections to the report of a commission of surveys to establish corners and disputed lines, and a finding is given against the correctness of such report, which is set aside and a new commission appointed, and objections are filed to the second report, on the second trial it is error to admit in evidence the verdict of the jury and all the papers and proceedings in the first trial, even though both reports fix the corners and lines substantially the same.</p>

Lyman Lacey, Judge, presiding. At the March term, 1880, of the DeWitt circuit court, Emily A. Eastman obtained a decree for the foreclosure of a trust deed given by David M. Thornley and wife on the land which is the subject of controversy in this suit. The premises were sold under the decree on the 1st of May, 1880, to Clifton H. Moore, the appellee, who received a master’s deed therefor the 4th of August, 1881.

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

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

<p>1. Administration—executor not liable to account to legatees for proceeds of sale of land, where they avoid the sale. An executor, under decree of the county court, sold real estate of his testator, giving a deed warranting the regularity and validity of the proceedings to sell, and received the purchase money, with which he charged himself in his reports. Before the distribution of the money the legatees, repudiating the sale, brought ejectment, and recovered the land for want of jurisdiction in the county court to make the decree of sale, whereupon the executor refunded the price of the land to the purchaser, and refused to charge himself further with the same in his reports, and the legatees sought to charge him with this money, claiming he was estopped to deny it belonged to the estate by his former reports: Held,, the court properly refused to make him account for the money, and that there was no estoppel in the case.</p> <p>2. Covnty court—has equitable jurisdiction. The county court to the extent it has jurisdiction (and this extends to the settlement of estates of deceased persons) exercises equitable jurisdiction.</p> <p>3. Mistake—maybe corrected in equity. In equity, if a person by accident.or mistake, in making up his accounts with another, has charged himself with too much or too little, the real facts will govern, and the mistake will be corrected as the facts warrant, and he will be charged only with what he justly owes. And this rule obtains in the accounts of administrators, executors and guardians made to the county court, and their reports will not be held conclusive on them.</p> <p>4. Same—former decision. In the matter of Steele, Guardian, 65 Ill. 326, the guardian was held, upon the facts in that case, not to be concluded by his report as to moneys with which he was therein charged,—but the court added: “If a report was fair upon the face, without any apparent mistake, we do not wish to be understood as holding that parol evidence would then be admitted to contradict or explain it. ” It was considered this limitation was well enough on the facts before the court, but it is not to be taken as an implication that the court would, had the facts called for a decision, have decided that parol evidence was not admissible to show error, by reason of accident or mistake, in a report fair on its face. Directly the reverse is the law.</p> <p>5. Judicial sales—doctrine of caveat emptor is applied to protect those malting sales. The doctrine of caveat emptor-is applied to judicial sales for the protection of those conducting them, and not for the benefit of heirs and legatees repudiating them.</p> <p>6. Same—minor repudiating, required to refund what he has received from the sale. This court has repeatedly decided that when a minor dis-affirms a. judicial sale by bill in equity, he must return, or offer to return, what he has received, if it be in his power. Repudiating by action of ejectment is in effect the same as by bill in equity, and no court exercising equitable powers will allow a party to do this and also receive the proceeds of such sale not yet paid over to him.</p>

<p>1. Judgment—confirmation of assessment, whether final or-not. The confirmation of a special assessment, for some purposes is a final judgment, as an appeal or writ of error lies to review it; but upon application for judgment against the land upon which the assessment has been made, the previous judgment of confirmation must be regarded as but a part of one and the same proceeding, and the court never loses jurisdiction until the proceeding is for some cause discontinued, or culminates in a judgment against the land.</p> <p>2. Amendment—after the term, without notice. Where the affidavit of the commissioners making a special assessment showing a compliance with the law, required to be filed before judgment of confirmation, showing notice to the owners of property assessed, failed to show the term of court at which the assessment roll would be returned for confirmation, and the assessment was confirmed without discovery of the inadvertent omission to fill the blank as to the term, it was held, that the court, on application for judgment against the land at a succeeding term, might allow the affidavit to be amended without notice to the parties interested.</p>

Appeal' from the Appellate Court for the First District;— heard in that court on appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.

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

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the County Court of Cook county; the Hon. Mason B. Looms, Judge, presiding; and also writ of error to such County Court in same matter.</p>

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

<p>1. Usury-—commissions, when usurious. Where a party loans money through his son, as his agent, and the agent takes four per cent of the principal as commissions, taking a note for the entire sum, bearing ten per cent interest, payable in one year, and at the end of the year, on application for an extension of time of payment, the lender refers the debtor to the son, who extends the time one year, for $100, which is paid to him, and a second extension is made in the same way with another son, acting as the lender’s agent, it “was held, on bill to foreclose the deed of trust securing the loan, that the four per cent taken as commissions, and the several pajunents for the extensions, made the transaction usurious, and that they should be credited as payments on the note, after deducting expenses of advertising for sale under the trust deed.</p> <p>2. Pitead in g—contract to be stated according to its legal effect. The rule at law is, that the party pleading a contract is only obliged to state it according to its legal effect. If the contract is made through an authorized agent, the principal is equally a party thereto as if he had made it in person, and in pleading it is proper to charge that the principal entered into the contract.</p> <p>3. Pdeading and evidence—variance. The rule in respect to a variance between the allegations in a pleading and the proof is substantially the same both at law and in equity.</p> <p>i. -An allegation in an answer that the complainant in a bill to foreclose a mortgage made an usurious agreement at the time of the loan to deduct four per cent of the loan as commissions, and afterward extended the time of payment in consideration of payments over and above the legal rate of interest expressed in the note, is sustained by proof showing he did so through his agent transacting the business for him, and such evidence is admissible.</p>

<p>1. Evidence—on question of damages for not making amd delivering machines. The lessees of a machine shop and foundry agreed with the lessor to build for him as many “purifiers” as he might order, for which they were to be allowed twenty per cent profit on the cost of building and shipping, to be deducted from the rent, monthly, and the lessor ordered twelve of them, which the lessees refused - to deliver upon disagreement as to their price. The lessor sued in assumpsit on the contract for the lease for the rent due, and for damages for injury to the property, and for a failure to deliver the twelve machines. On the trial the court allowed the plaintiff to prove that he had sold a machine to a Mr. Fry, and on the first trip had sold nineteen, etc., which was objected to, as seeking to recover for loss of profits on the sales: Held, that as damages were not claimed for profits on these sales, the evidence was proper for the purpose of showing there was a demand for the machines, and that there was a market for the goods if they could have been obtained.</p> <p>2. Contract—to deliver machines, evidence on measure of damages. Where a defendant has agreed to make certain machines for the plaintiff at twenty per cent profit on the cost of making and shipping, which he fails to do, in order for the plaintiff to establish damages for the non-delivery of the machines ordered under the contract it is incumbent on the plaintiff to prove the amount he agreed to pay for them, and also what they were worth in the market at the time they were to be delivered.</p> <p>3. Pleading over—after demurrer—waiver. Where the defendant, after his demurrer to the declaration is overruled, pleads over, he will waive his right to move in arrest of judgment for the insufficiency of the declaration.</p>

Sidney Smith, Judge, presiding. This was an action brought in the Superior Court of Cook county by Elizabeth J. Norwood, against Carlos A. Cook, upon a promissory note executed by said Cook, as follows: “$2500. Chicago, March 31, 1881. “Ninety days after date I promise to pay to the order of Lawrence & Martin twenty-five hundred dollars, at 106 Dear-born street, Chicago. Value received.

Sidney Smith, Judge, presiding. Arthur T. Howe, James B. Ormsby, Mary A. Bovee, and Frederick A. Heath, partners under the firm name “Marble-head Lime Company, ” brought an action of assumpsit, in the Superior Court of Cook county, against E. G. Frazer, for certain quantities of lime which they had sold and delivered to him.

<p>1. Appeals—freehold involved. On a bill filed by certain devisees in a will against the executors, for a present division and distribution of the estate, both real and personal, and for a construction of the will as to the time of the distribution, a freehold is involved, and an appeal lies directly from the circuit court to this court.</p> <p>2. Same—of a second appeal—what matters involved. A second appeal in the same case, when the first decision covers the merits of the controversy in all its bearings, brings up only the subsequent proceedings had after the mandate of the court of last resort was sent down.</p> <p>3. Reversal with directions—practice in the court below. Where a decree has been reversed by this court on the merits, finding that there is no equity in the bill, and the complainant is entitled to no relief, and the cause is remanded for further proceedings in conformity with the opinion of this court, nothing remains to be done by the court below but to dismiss the bill. In such ease that court has no authority to allow any amendment to the bill.</p> <p>4. Same—effect of disregarding the mandate of this court. Although it may be the duty of the court below, in such case, to dismiss the bill upon motion, on the filing of the mandate of the Supreme Court, which it refuses to do, yet if it afterward, on the final hearing, does dismiss such bill, although an amended bill has been allowed to be filed, there is no cause of complaint.</p> <p>5. Former adjudication—in the Supreme Court—how far conclusive—and in what manner to be reviewed. A decision of a case on its merits by an appellate court is final as to the matters decided, and conclusive upon the parties upon a second appeal or writ of error in the same case. And a re-statement of his case by a complainant after the merits of the controversy have been determined against him by a court of last resort, although his amended bill may contain some new matter that would not have been impertinent in the original bill, will not give such party such a standing in court as to enable him to demand another adjudication of his cause on a second appeal.</p> <p>6. The Supreme Court has no power to review a previous decision in the same case, except on petition for rehearing, presented in conformity with its rules. After a rehearing has been had the court will not re-open the discussion of the same questions previously determined, on the application of the same parties, especially when no new or different questions are presented.</p> <p>7. Same—when binding on one not a party. While the rights of no one are to be barred or cut off by a decree until he has had his day in court, yet when a decision is made by this court in a case in which it has jurisdiction, ■touching the construction of a will, which is binding upon the parties before the court, it will be conclusive as to the same question of law when presented by another party interested in the same fund, under the- same will.</p> <p>8. Same—res judicata, how presented. On a second appeal in the same case to the Supreme Court, the record presenting the same questions decided in the first appeal, the question of res judicata may be presented and considered without any formal plea.</p> <p>9. Pasties—bill ashing advice as to administration of a public charity—the Attorney General as a proper or necessary party. In all bills asking the advice or direction of a court of equity as to the administration of a public charity, and especially where waste or mismanagement is apprehended, or where the decree will affect the interests of the cestuis que trust, the Attorney General, or other public officer whose duty it may be to have a care in such matters, is a proper party, either as complainant or defendant. Courts not infrequently hesitate to decree concerning a public charity, unless the general law officer representing the donees is a party in some way. Exceptional cases are, where the charity or bounty is in the hands of trustees charged by the donor specifically with its management for the cestuis que trust.</p> <p>10. A testator provided in his will that upon 'the happening of a certain contingency his entire estate should be divided into two equal portions by his executors, and one-half thereof devoted to a public library, and the other half given to certain relatives, as his devisees, and a bill was filed by certain of his heirs, claiming to be the donees of one-half of the estate, for a division and distribution of their shares, and for a construction of the will as to the right to an immediate distribution, but not asking any advice,of the court as to the management of the bounty to the public, and not intimating that the trustees who were specifically charged with its management were in any manner wasting or mismanaging the fund: Held,' that there was no necessity to have made the Attorney General a party to the bill.</p> <p>11. Had it appeared the trustees were misappropriating the trust fund, it would no doubt have been the duty of the Attorney General to interpose for its preservation. It is only where the trustees having charge of the fund unite in an abuse of their trust, and there is no one having a right to sue in his own name concerning it, as is the case with regard to a public charity, that the suit must of necessity be instituted by the Attorney General.</p> <p>12. There is a distinction where trustees of a charity are appointed by the donor, and where none are appointed, but there is a devise immediately to charitable uses. In the latter case there can be no decree unless the Attorney General be made a party, but otherwise where trustees are appointed by the donor.</p> <p>13. Cross-bill—when proper. One object to be attained by a cross-bill is to discover evidence to defend against that which is alleged against the defendant, and another is to secure affirmative relief, not obtainable on his answer, touching the matter in the original bill.</p> <p>. 14. Same—when not allowed. A defendant in chancery will not be permitted to file a cross-bill when he seeks no discovery, and no affirmative relief is sought different from that sought in the original bill. If it is filed in violation of such rule, it may properly be stricken from the files. The practice will not permit a defendant to file a cross-bill claiming the same thing may be done that is sought by the original bill. A demurrer would lie to such a cross-bill, or it might be dismissed on motion.</p>

<p>1. Abbest—power of officer to arrest without warromt. Where a criminal offence has been committed, as, shooting at a person, and an officer is informed of that fact, so that he has reasonable grounds for believing the person to be arrested has committed such offence, he is expressly authorized by the statute to arrest such person without a warrant, and so he has the right to arrest one without a warrant who commits an assault and battery in his presence.</p> <p>2. Same—right to break open doors to arrest. The law is well settled that an officer who has arrested a criminal, when he escapes may, if it becomes necessary, break open the doors of his house to re-arrest him.</p> <p>3. Crriminal law—when proof of prior assault is material. On the trial of one for murder, in shooting and killing an officer while breaking in the door of the defendant’s house to re-arrest him after his escape from arrest for a criminal offence, the proof showed that the defendant was informed and knew the persons asking and seeking admittance into the house were officers seeking to arrest him, and that he refused to open the door. The defendant offered to prove that on the night before the shooting a crowd was in the yard and stoned his house, and that a part of that crowd was there at the time of the attempted arrest, which the court refused to admit: Held, that there was no error in the ruling.</p> <p>4. Same—when prior assault will justify a resort to self-defence. Prior attacks upon a person or Ms house may create a reasonaMe apprehension of danger when he is again attacked by the same person or persons, when, if no prior attack had been made, the acts of the assailant would not tend to produce in the mind of a reasonable man apprehension he was in peril. In other words, the proof of prior assault or threats might justify a defendant in the right of self-defence, when, in the absence of this, the assault made would not confer upon the party assailed the right to resort to self-defence of person or property.</p> <p>5. Same—sufficiency of evidence to justify instruction as to officer's right to. wrest without warrant. On the trial of a party for killing an officer while attempting to arrest him without a warrant, the proof showed that the officer who first arrested him heard a pistol shot, and on going to learn the cause was immediately informed by a person that the defendant had shot at him, and that when the defendant was charged by the officer with the shooting he attempted to escape: Held, that the proof of these facts was ample to justify the officer, and upon which to base an instruction as to the officer’s right to arrest without a warrant.</p> <p>6. Criminal Court of Cook county—branch court authorised. The act of the legislature of April 21, 1881, that two or more of the judges of the Criminal Court of Cook county may each hold a different branch of said court at the same time, is authorized by section 26, article 6, of the constitution, declaring that the terms of such court shall be held by one or more of the judges of the circuit or Superior courts of Cook county, etc.</p>

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

<p>1. Evidence—declarations of vendor to impeach vendee's title. The rule is well settled that the declarations of a vendor after sale of land, are not admissible to impeach the title of his vendee, of either real or personal property.</p> <p>2. Same—declarations of person in possession as to ownership. Where a person is in the possession of land, claiming to own the same, the manner in which he used and treated the property, and his declarations in connection with acts, may be regarded as part of his acts in relation to the property, and these may be shown by one claiming title under him after his death.</p> <p>3. Where a deed is made to J. P. F., which was the name of a father as well as that of his minor son, and the father paid for the land, received and recorded the deed, took and kept possession until his death, and the son brought ejectment for the land against the father’s widow, it was held competent for the defendant to prove that the father, while in possession, offered to sell the same as his own property, as indicating ownership by the father.</p> <p>4. Deed —presumption as to grantee, when there are two of the same name. Where a deed is delivered to a father of the same name as his minor son, without any statement of the grantor that it was delivered to him for his son, the presumption will be that it was.delivered to the father for his own benefit, as the grantee.</p> <p>5. Where a deed is made and delivered to a father, without any statement at the time it was for his son having the same name, the title will pass to the father regardless of any secret unexpressed intention that the grantor may have entertained.</p>

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

<p>1. Bill of exceptions—when necessary—as to rulings upon motions. A motion to remove a cause from the State court to the Federal court, and the decision of the State court thereon, do not become a part of the record, unless made so by a bill of exceptions.</p> <p>2. Same—within what time to he signed. A bill of exceptions should be reduced to writing, and signed during the term at which the decision in respect to which the exception was taken, was rendered, except in cases where the counsel consent, or the judge, by an entry on the record, directs, that it may be prepared in vacation, and-signed nunc pro tunc; and in all cases it should appear on its face to have been taken and signed at the trial.</p> <p>3. So where a motion was made to transfer a suit to the United States Circuit Court, and the same was overruled, it was held, that a bill of exceptions in respect to the ruling of the court on such motion, presented and signed at a subsequent term, came too late, and the same was stricken out of the record.</p>

<p>1. Payment—by giving new security—so as to discharge a prior mortgage-. Where it clearly appears that the giving of new security is intended as an absolute payment of a mortgage indebtedness, it will have that effect, but not otherwise. The presumption is always the other way. The general rule is, that no change of the evidence of the mortgage indebtedness will operate as a discharge of the mortgage.</p> <p>2. In this case a wife purchased premises, subject to a mortgage thereon, to secure an indebtedness bearing nine per cent interest, which she assumed to pay. On the maturity of the debt her husband applied for and obtained an extension of the time of payment by giving his own note for the sum due, bearing ten per cent interest. The wife then filed a bill to remove the mortgage as a cloud on her title, which was dismissed: Held, that there was no error in the order dismissing the bill, as the giving and acceptance of the new note did not operate as a payment and discharge of the mortgage indebtedness.</p>

<p>1. Appeal—reviewing controverted questions of fact. In an action on a note given by a defaulting school treasurer, and others, to secure the deficit in his accounts, it is purely a question of fact whether the others executed the note as sureties for its payment, or in discharge of their supposed liability as sureties on his official bond, and when the jury find such others liable as sureties on the note, and the judgment of the court on the verdict is affirmed by the Appellate Court, such finding of fact is conclusive on this court, and the evidence can only be looked into to see if the trial court erred in giving or refusing instructions.</p> <p>2. Surety—whether that relation exists. Where a late school treasurer was found to be in default, and the trustees of schools were willing to take notes, with security, for the sum due the school fund, and notes were accordingly drawn and executed by the treasurer, who took them to the sureties on his bond, and they signed the same, there being no fraud practiced on them to induce them to execute the notes, it was held, that their relation to the principal was that of sureties, and nothing else.</p> <p>3. Instructions—need not be repeated. There is no error in refusing instructions, every principle of law in which, applicable to the issues, are contained in others given for the same party. Nor will a judgment evidently just and proper be disturbed for slight errors in the instructions given.</p>

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