Volume 107 — Illinois Reports

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

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

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

Geo. Gardner, Judge, presiding. William H. Williams filed his hill in equity, in the office of the clerk of the Superior Court of Cook county, against Hugh McFarlane, on the 29th day of July, 1881, wherein it was, in substance, alleged, that about the loth of May, 1880, the Charter Oak Life Insurance Company, of Hartford, Connecticut, was the owner of lots 1 to 5, and lots 10 to IT, inclusive, in Dobbins’ subdivision of block 55, of school section addition to Chicago; that…

Clair county; the Hon. George W. Wall, Judge, presiding. • On the 21st day of February, 1880, Charles Castaine, since deceased, was in the employ of the Missouri Furnace Company, as engine-driver on the switch locomotive used by the company for moving cars in and about its yards. While thus employed on that day, he in some way fell from the locomotive, and was run over by it and killed.

J. W. Wilkin, Judge, presiding. This is a suit in chancery, brought in the circuit court of Coles county, in 1877, by Thomas E. Burton, against Elias and Narcissa Burton, to correct and foreclose his mortgage, making Anderson Walton a party thereto.

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

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

<p>1. Mandamus—to compel city to levy tax to pay judgment—of ike prior demand. A written demand by a creditor for the payment of a judgment against a city, and a neglect to pay, is sufficient to authorize a mandamus requiring the city council to levy a tax for the payment of the judgment. It is not necessary that the creditor should first demand the levy of such tax. The demand of payment is held to include a demand to do any particular thing necessary to such payment.</p> <p>2. Same—for payment of judgment after its affirmance. Where a judgment against a city has been affirmed, on error or appeal, it is not necessary that a copy of the order of affirmance be filed with the circuit clerk before filing a petition for a mandamus to compel the city council to levy a tax to pay such judgment. Section 82 of the Practice act has respect, alone, to proceedings in the lower court for carrying into execution the judgment, and has no application to independent proceedings upon the judgment elsewhere.</p> <p>3. An order in a judgment against a city for a certified copy thereof to be delivered to the city council, is a provision the performance of which is not at all essential to the validity of the judgment, nor'to the taking of any proceedings for its enforcement.</p>

<p>1. Lien foe taxes—upon other lands. The statute does not make the taxes due on one tract of land a lien upon another tract.</p> <p>2. Same—purchaser under judgment which includes taxes not a lien on the land sold—prior incumbrance. Where a tract of land is sold on execution issued upon a judgment which includes taxes on other lands besides the tract sold, the sale will be regarded as having been made Under an ordinary judgment, where personal service was had, and the purchaser will take the same subject to a mortgage lien thereon made before the judgment became a lien.</p> <p>3. Fobeclosuee—as to taxes paid before principal is due. Where the interest on a mortgage debt is payable annually, the mortgagee, in foreclosing for unpaid interest due, may have included in the decree taxes paid .by him to preserve his security, and is not bound to wait until the principal debt is due.</p> <p>4. Party—to bill to foreclose. On bill to foreclose a mortgage, a purchaser of the land, on sale under a judgment against the mortgagor which is not a prior lien, is not only a proper but a necessary party defendant, as the holder of the equity of redemption.</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 Mason county; the Hon. Lyman Lacey, Judge, presiding.

Writ op Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Marshall county; the Hon. N. M. Laws, Judge, presiding.

Elliott Anthony, Judge, presiding. This was a proceeding instituted in the circuit court of Cook county, by appellants, for the apportionment of an assessment for improving Michigan avenue, in the city of Chicago.

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

Writ of Error to the Circuit- Court of St. Clair county; the Hon. Amos Watts, Judge, presiding. This was an indictment against John B. Duffin, alias Hamlet S. Felton, for forgery. After a verdict of conviction the defendant entered his motion for a'new trial, and in support of some of the grounds of his application presented an affidavit alleging certain misconduct on the part of one of his counsel during the trial in the court below.

Murray F. Tuley, Judge, presiding. Leopold Mayer and Henry Steiner owned the real estate in question as tenants in common, each owning in fee simple one undivided half thereof. On December 22, 1879, Henry Steiner died, leaving a will, which was. duly proven and admitted to probate, and letters testamentary issued to his executors. By his will the testator charged his property with various legacies, and the residuum of his estate he devised as follows: “Item 13.

<p>Decebe—not void for error. A husband and wife brought a suit for the assignment of dower and partition of land in which the wife was interested as an heir, making the other heirs parties. A partition was made, reported and confirmed, but the wife’s name was wholly omitted in the decree and subsequent proceedings, and her portion was set off and assigned to the husband. This decree was never reversed or set aside, and subsequently the land was sold on execution against the husband, and on bill filed by the wife’s only heir to set aside the sale as a cloud on her title, it was held, that the decree of partition, although erroneous, was not void, and passed the title to the husband, and that the land was subject to sale on the execution.</p>

<p>1. Judgment lien—how created, after failure to sue out execution within a yew. A judgment ceases to be a lien on real estate if execution is' not issued tbereon within one year from its date, in which case the execution may be sued out within seven years from the date of the judgment, and it then becomes a lien on the real estate of the debtor from its delivery to the sheriff or other proper officer; but if he has conveyed the same, and his deed is recorded before.such execution is placed in the hands of the officer, no lien will attach, and no title will pass by a levy and sale.</p> <p>2. Notice by possession—possession by a grantor, as notice of his equitable rights. Where A, the owner of land, conveyed the same to B, without any consideration, to be held in trust, and B conveyed the same in like manner to C, merely to enable him to sell for the benefit of A, who remained all the time in the actual possession of the premises, it was held, that the possession of A was notice to a judgment creditor of C of A’s equitable title, and that such creditor having such notice acquired no title by a levy and sale of the premises on execution against C, he not being an innocent purchaser entitled to the protection of the law.</p>

<p>1. Evidence in explanation of contract—prior conversations, etc.,— as, in case of an alleged gambling contract. In an action to recover the price of wheat bought by the plaintiff, as factor, for the defendant, for future delivery, where the defence was that the transaction was a gambling contract, no delivery being intended, but only an adjustment of differences in price, it was held, error to refuse to let the defendant testify as to conversations had by him with the plaintiff before the orders for the purchases were actually given, as throwing light upon the nature of the contract, it not being the last words spoken that in all cases give character to the transaction.</p> <p>2. A verbal contract may be explained by facts, circumstances or conversations which shed light upon the meaning of its words. In such case it is proper to ascertain such extrinsic facts as the parties may have had in view at the time the contract was made, in order to obtain the true meaning of its words.</p> <p>3. So where a defendant in such case had given his broker an order to buy for him a lot of grain for future delivery, to be purchased on the board of trade, the transaction being alleged to be a gambling contract, it was held, to be error to refuse to let the defendant, when sued on his alleged purchase, answer the question as to what was said at the time the order was given about how the deal was to be settled.</p> <p>4. Principad and agent—liability of the former to the latter on purchases made—as, in case of a commission merchant buying grain for another. Where an agent or commission merchant purchases grain for his principal on his order to do so, he can only recover of the latter his commissions, unless he has actually paid for the grain, or the loss legally sustained by the seller, in which event he may also recover what he has thus been required to pay. It is not sufficient that the agent purchasing may be legally liable, but he must have sustained damage by actual payment.</p> <p>5. Pdeading and evidence—recovery under the common counts. No recovery can be had upon an executory contract under the common counts. Where goods sold have not been delivered and accepted, no recovery can be had for the price, even under the count for goods bargained and sold, unless it appears there has been a complete sale, and the property in the goods had been vested in the defendant by the sale, and an actual acceptance by him.</p> <p>6. It is only when the contract has been fully performed, and nothing remains to be done but the payment of the money, that the common counts are applicable. If the purchaser refuses to accept the goods when tendered, or offered to be delivered, the contract must be specially set out in the declaration.</p>

<p>Pabtnebship—contract construed as to rights of parties on dissolution. A and B entered into a eo-partnership, the former to furnish $1000, and the latter, as his capital, his patent for the manufacture and sale of “incased glass vessels, ” the articles of co-partnership providing that the profits of the business, and the proceeds arising from either the sale or leasing of any territory, should be equally divided between them, either one of the partners having the right to sell or lease, and that the partnership might be dissolved by either, on giving notice thereof, at any time. The contract also provided that a division of the assets should be had in case of a dissolution “without a sale of the business, ” in which event each partner was to take back what he put into the business. Prior to the dissolution of the firm and notice .thereof, B, the patentee, granted to 0 the exclusive right to manufacture and sell wares under the patent, and all re-issues of the same, for the entire term it might run, reserving a .certain royalty or license fee on all wares manufactured and sold by 0: Held, that as the transfer of the exclusive right under the patent to 0 was the same as a sale, and was made prior to the dissolution, A was entitled to one-half of the royalty or license fees thereafter to be paid by 0 to B, and that if it was a mere leasing to 0 the same result would follow.</p>

<p>1. Appeal—its effect on the judgment—as to the lien. An appeal from a judgment of the circuit court to the Supreme Court does not vacate the judgment, or destroy its lien on real estate, or its capacity to become a lien on land acquired pending the appeal. Its only effect is to operate as a stay of proceedings to enforce the judgment.</p> <p>2. Judicial sale—execution issued pending an appeal—irregular, but not void. An execution issued upon a judgment of the circuit court pending an appeal to the Supreme Court, is irregular, but not void, and a sale of land thereunder might be set aside on motion by the defendant therein; but if the levy and sale are not set aside in proper time, title to the land sold will pass by the sheriff’s deed.</p> <p>3. Same—irregularities—where to be corrected—and by whom, to be questioned. Irregularities in the sale of land on execution can only be corrected in the court from which the process has issued. If the defendant in execution tates no steps to have the sale set aside for an irregularity, however gross, it can not be questioned by any one else, especially in a collateral proceeding.</p> <p>4. So where an execution was improperly sued.out on a judgment of the circuit court, and levied upon the defendant’s land, and sale thereof made pending an appeal from the judgment, it was held that the proceedings were irregular, and might have been quashed, on motion of the defendant, in the circuit court, but that not having been done, the sale was valid, and passed the defendant’s title to the land to the grantee in the sheriff’s deed, and that the sale could not be questioned by a third person claiming title under the defendant in the execution.</p>

<p>1. New trial—excessive damages—in proceeding to condemn right of way—presumption. On an assessment of damages for right of way, where the jury, at the request of both parties, view the premises, and no other evidence is offered, every presumption will be indulged in favor of the correctness of the verdict. In such case it can not be known the damages assessed are excessive, as it can not be known what the jury saw.</p> <p>2. Instructions—in proceeding to condemn right of way—as being without evidence in their support. Where the jury view the premises over which a right of way is sought to be established, and no other evidence is given, the instructions given can only be considered as- abstract propositions of law. But were this not so, there being no evidence preserved in the record, this court can not say whether' any of the instructions given were calculated to mislead the jury on the facts of the case.</p> <p>3. Practice—remarles of judge in hearing of the jury. The remarks of the judge presiding at the trial of a cause, addressed to counsel in stating an objection to an instruction asked, and giving the reason for modifying the same, which it is not shown the jury heard, and not of much consequence either way, will not be a ground for reversing a judgment which must be presumed to be warranted by the facts of the case.</p>

<p>Writ of Error to the Circuit Court of La Salle county; the Hon. E. Goodspeed, Judge, presiding.</p>

John A. Jameson, Judge, presiding. Appellants exhibited their bill in chancery against appellees, in the Superior Court of Cook county, on the 25th day of October, 1881, wherein they alleged that on the 25th day of November, 1865, they entered into an agreement, the substance of which is set out, and 'which is made an exhibit to the bill, as follows: “This indenture, made and entered into this 25th day of November, A. D. 1865, between Alvaro B. Graham, in the county of Lake,…

<p>Writ of Error to the Circuit Court of Woodford county; the Hon. David McCulloch, Judge, presiding.</p>

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

<p>1. Taxes—collection—when enjoined. It is the doctrine of this court that equity will not enjoin the collection of taxes that are levied on property subject to taxation, and which are due and unpaid, if the same are legally imposed. A court of equity will never enjoin the collection of taxes unless they are void, or levied without authority on the part of the officers executing the revenue laws.</p> <p>2. As long as such officers are acting under the law in imposing and collecting taxes, the courts will not interfere. They will do so only when such officers transcend their powers, and act without legal warrant. Nor will they interfere for the reason that the assessment is not strictly according to the letter of the law; and when there is no ground for enjoining the collection of a tax, the collector can not be enjoined from making a tax deed to the holder of the certificate of purchase, unless good cause is shown for matters which have transpired since the sale.</p> <p>3. Same—terms upon which sale will be set aside. If the owner of land lies by and permits judgment to go against his land for taxes, and the same to be sold and paid for, it is the settled law of this court that before he can have the sale set aside as a cloud on his title, he must tender or offer to pay the holder of the certificate the purchase money, and all taxes he has paid, with interest thereon. A hill seeking to enjoin the making of a tax deed on the ground of mere irregularities, is subject to demurrer if it fails to offer to refund the money paid by the holder of the certificate.</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. R. S. Williamson, Judge, presiding.</p>

N. J. Pillsbury, Judge, presiding. This was an action on the case, brought by appellee, against the appellant, in the McLean circuit court, where a trial was had resulting in a verdict and judgment in favor of the plaintiff, for $3500, and costs. On the trial the defendant sought to show that the plaintiff was intoxicated at the time he was injured, which the plaintiff denied.

<p>Redemption from sale on execution—after expiration of time—where fraud was practiced. Land was sold on execution, at a grossly inadequate price, and bid in by one who was the family physician of the debtor, and regarded as an intimate friend and adviser, the debtor being an aged, illiterate person, almost wholly ignorant of his legal rights. The purchaser promised to give the debtor all the time he wanted to redeem, telling him he had fifteen months in which to redeem, and by artifice and misrepresentation lulled him into a sense of security until the time of redemption had passed, with the knowledge and participation of the assignee of the certificate of purchase, to whom a sheriff’s deed was made. It was held, that the debtor, under these circumstances, was entitled, on bill in equity, to redeem from the sale, and have the sheriff’s deed set aside as a cloud on his title.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. S. P. Shope, Judge, presiding.</p>

Whit of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.

<p>• Writ op Error to the Probate Court of Cook county; the Hon. J. C. Knickerbocker, Judge, presiding.</p>

<p>1. Dedication—what essential thereto. To make a good dedication, either under the statute or at common law, there should be a definite and certain description of that which is proposed to be dedicated, and an acceptance by the public before the withdrawal or abandonment of the offer to dedicate.</p> <p>2. Same—plats of towns and milages—of the requisite certainty in description. The statute in force in' 1858 relating to plats of towns and villages, required that such plat or map should particularly describe and set forth all the streets, alley's, commons or public grounds, etc., giving the names, width, corners, boundaries and extent of all such streets and alley's; and the plat thus made out, acknowledged and recorded, as required, had the force of a conveyance, vesting the fee simple of the streets, etc., in the town or city'.</p> <p>3. A plat of a village recorded in 1858 contained lines indicating blocks, with spaces between them, probably' intended for .streets, but no streets were named, and no length or width of the spaces between the blocks, or any scale, was given by which the streets could be ascertained and located: Held, that where the owner of adjoining blocks had fenced the same, including the unknown space between, and such inclosure had been maintained for over twenty' y'ears without complaint, the village authorities were property enjoined from opening the supposed street through such inclosure, as no surveyor could, from the plat, find the limits of the street.</p> <p>4. Same—presumed to the extent used. Where the public have taken' possession of a street, and improved and used it to a particular width, a dedication, (the other requisites thereto existing,) it seems, will be presumed coextensive with the improvement and use.</p> <p>5. Same—abandonment. Where a village was laid out, iu 1855, into blocks and streets, but the plat failing to give the length or width of the streets, and the owner of two adjacent blocks, in 1861, fenced them, including the space designed for a street between them, and the public authorities acquiesced in such inclosure of the street for twenty years, built sidewalks, and dug a ditch across the street near where it was inclosed, the court was inclined to the belief that even if the plat had been free from objection, there was such an abandonment by the public as would preclude the opening of the street. f</p>

John A. Jameson, Judge, presiding. This was a suit in chancery, instituted by Ryan, the appellee, against the appellant, for an accounting and adjustment of damages claimed by complainant, alleged to have arisen from the non-performance, on the part of appellant, of' a contract for the sale and delivery of a quantity of coal to appellee.

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. E. S. Williamson, Judge, presiding.

George Gardner, Judge, presiding. On October 26, 1871, the firm of Bliss, Moore & Co., composed of Samuel Bliss, Alexander P. Moore and William B. Topliff, executed its three promissory notes of that date, two for $1650 each, and one for $1700, payable to the order of William B. Topliff, falling due five years after the date, and bearing interest at the rate of ten per cent per annum.

<p>1. Partition—when presumed, from acts of the parties. A and B acquired title to a quarter section of land, in 1835, by an assignment of a certificate of purchase from the United States, and the patent was issued to them in 1839. On July 7,1836, B signed a contract for the sale of the undivided half of the quarter to 0, and on September 8, 1836, conveyed to 0, in New York City, the east half of the quarter. Before the date of this deed A gave to B a power of attorney to sell the west half of the tract, which power of attorney B took with him to New York. On November 29, 1839, A went to New York, where he made a warranty deed to D for the west half of the tract, which he left with B until proper securities should be given. These deeds were all recorded in the proper county. A afterward learning that the securities were worthless, in 1838 filed his bill in the New York court seeking a rescission of his contract of sale, asserting his ownership of the west half of the quarter, and asking to be reinvested with the title. C, and those claiming the east half of the quarter under him, paid all the taxes thereon, A paying no part thereof, though residing in the same county, making no claim to such east half: Held, that from these and other facts, in view of the acquiescence of A for so many years, a partition of the land between A and B in 1836, by deed, would be presumed, if necessary, and that A was not entitled to a partition of the east half of the quarter.</p> <p>2. In such case, the purohase from B of the east half of the tract after partition could not be affected by any fraud, actual or supposed, by B, in delivering A’s deed for the west half upon worthless security.</p> <p>3. Tenants in common—of their rights as to a specific part of an entire tract. A patent to two persons as tenants in common of a quarter section of land, clothes each with title to the undivided half of the entire quarter. It does not give to either an undivided half of any specific part of the entire quarter, nor the right to have partition of any specific part, except in case of a sale of the residue by both tenants, or by some act of the parties, or by proceedings at law.</p> <p>4. Same—purchaser from one of the co-tenants—of his rights as against the other. A conveyance by one co-tenant gives the grantee no greater rights than those held by the grantor. An undivided interest in a specific part of a single tract of land held by co-tenants as an integer, acquired by them through one deed, can not be granted by the mere deed of one co-tenant, so as to entitle the grantee, as against the other co-tenant, to have that'specific part of the entire tract partitioned between them.</p> <p>5. Becording oe deeds—constructive notice—as to conveyances by tenants in common. Where each of two tenants in common has made a warranty deed, one for the east half of the tract owned by them, and the other for the west half, which deeds are recorded,“the record will afford constructive notice to a person subsequently purchasing of either an interest in the part conveyed by the other, sufficient to put him on inquiry as to the fact that a partition had been made by the tenants in common before their several conveyances.</p>

<p>1. Administration of estates—set-off—as against a claim due to an estate. In an action to recover a demand accruing to an executor or administrator after the death of the testator or intestate, the defendant can not set off a debt due from the testator or intestate in his lifetime.</p> <p>2. Same—set-off, as against purchase price of land bought at administrator’s sale. A purchaser of land at an administrator’s sale bought up a claim allowed against the estate, which he offered to set off against the demand for the purchase money. Prom the numerous suits and protracted litigation growing out of the settlement of the estate and the adjustment of claims, the costs and expenses of administration were greatly enhanced, and it was unknown, by reason of pending litigation, what portion of the proceeds of the sale of the land would go to the payment of other claims, so that it was impossible for the administrator or the court to know what amount of the purchase money could, consistently with the rights of other claimants .then not determined, be allowed in favor of the claim so held by the purchaser. In this state of the case the administrator applied to the court which had ordered the sale, for an order to compel the purchaser to complete his purchase, and the purchaser entered a motion to require the administrator to convej’ to him in payment of his claim, which last motion was denied, and the purchaser ordered to pay the purchase money within thirty days, and in default thereof that the administrator sell the property again. Without appealing from these orders the purchaser filed his bill against the administrator and others to enjoin a re-sale, and seeking to compel a conveyance to him in payment of his claim, which bill the court, on a hearing, dismissed:. Held, that the bill was properly dismissed, there being no such special circumstances as to justify a set-off.</p> <p>3. Same— administration of estates—in chancery. It is well settled that a court of chancery will not, except in extraordinary cases, supersede the probate court in the administration of an estate.</p> <p>4. A purchaser of land at an administrator’s sale, after his purchase bought a claim which had been allowed against the estate, which was due from the testator in .his lifetime, and refused to pay his bid, offering to set off this claim against it. The administrator refused to allow the set-off, in view' of the complicated and unsettled condition of the estate, and the purchaser applied to the circuit court which ordered the sale to compel the administrator to do so, which court decided against him. He then applied to the probate court, and that court decided the same way. Without appealing from either of these orders he filed his bill-in chancery, by which he sought to take the administration of this estate from the probate court and relitigate the matters so passed upon by those courts: Held, that the case was not one of equitable cognizance, as all the purchaser’s rights might have been fully protected in the probate court, and if that court failed to apply the proper principles of law, his remedy was by appeal.</p>

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

<p>1. Trust—attempt to defeat it by fraud—as to the manner of granting relief. Land was conveyed to a person, in trust, to receive tbe rents, issues and profits, and apply them to the use of another during his natural life, and upon the death of the latter to convey the premises to a son of the grantor, in fee. The remainder-man, by fraudulent devices, induced the holder of the life interest to join the trustee in a conveyance of the property to himself, to enable him, as he represented, to sell a portion of the same in order to pay certain taxes and assessments which had accumulated against it, promising that he would then make a declaration of trust for a life interest in the residue, as it originally existed, but which he refused to do. It was held, on bill filed by the cestui que trust, that he was entitled to be restored to his rights in respect to the life interest in the portion of the land which had not been sold.</p> <p>2. In such case there is no error in decreeing that the fraudulent grantee conve3’ directly to the cestui que trust the life estate in the premises, instead of vesting the title again in a trustee. He could not complain of such disposition of the life estate, as his estate in remainder could in nowise be affected thereby. The original trust was practically a dry trust.</p> <p>3. Fraud—effect of subsequent action as a waiver of party’s rights. A person who is induced by fraudulent and false statements to convey his interest in property, will not be precluded from rescinding by afterward dealing with the subject matter of the contract, if at the time of such dealing he was ignorant of the fraud practiced.</p> <p>4. So where a person having a life estate in real property is induced to conver- it to the remainder-man for a certain purpose, under the promise of the grantee to make a declaration of trust of a life estate in favor of the grantor, and afterward makes a conditional agreement that if a certain other thing is done it will be accepted in lieu of tbo former obligation, the latter agreement, without performance, amounts to nothing, and can not be set up to defeat the grantor’s rights under the original promise.</p>

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Coot county; the Hon. E. S. Williams, Judge, presiding.

<p>1. Eraud—negligence of the other party, as affecting the character of the fraudulent conduct. A party guilty of fraudulent conduct, whereby he induces another to execute a written contract, will not be allowed to imputo negligence to the latter as against his own deliberate fraud. Even where parties are dealing at arms’ length, if one of them makes to the other a positive statement upon which the latter acts, with the knowledge of the party making such statement, in confidence of its truth, and such statement is known to be false by the party making it, such conduct is fraudulent, and from it the guilty party can take no benefit.</p> <p>2. While the law requires of all persons the exercise of reasonable pru-dence in the business of life, and does not permit one to rest indifferent in reliance upon the interested representations of an adverse party, still there is a certain limit to this rule; and as between the original parties, when it appears that one has been guilty of an intentional and deliberate fraud, by which, to his knowledge, the other has been misled and influenced in his action, he can not escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable care and diligence.</p> <p>3. Same—change in contract--whether material. Where a party agreed to a contract which bound him to manufacture and sell 2500 dozen pinchers per year, and to pay thereon, quarterly, to the patentee, a royalty of $1.44 per gross, and the other party presented for execution what he claimed to be copies, which bound him to pay a royalty on 2500 dozen pinchers per annum, at the rate of $1.44 per gross: Held, that the variance or difference in such respect was not so material as to import fraud, or lead to the conclusion that had the latter been fully read the party executing the same would have refused to sign it.</p> <p>4. Same—affirming contract after notice of the fraud. Where a contract, before signing, has been changed as to the character of the obligation imposed, and the same is afterwards signed by the person to be bound, without knowledge of such difference, he can not avoid the contract as executed if he ratifies and acquiesces in it after his attention has been called to the change.</p>

Murray F. Tuley, Judge, presiding. This was a hill in chancery, brought by Frank Grundies, the appellant, in the circuit court of Cook county, against the appellees, on the 11th day of November, 1880, in which the complainant alleged that he was the owner in fee simple of lot 19, in block 55, in canal trustees’ subdivision of section 7, township 39 north, of range 14 east, of the third principal meridian, situated in the city of Chicago, and sought to have an alleged claim…

<p>1. Practice—motion for new trial before a judge other them the one who tried the case. After the entry of judgment in a cause, but during the trial term, the unsuccessful party entered bis motion for a new trial, before a judge other than the one who presided at the trial of the case. No application was made for a continuance of the motion. It was held, the judge before whom the motion for a new trial was thus pending, although he had not presided on the trial of the cause, had rightful authority to deny the motion, and it was not error to do so.</p> <p>2. In such case, the party seeking the new trial, by making an application for a continuance of his motion, supported by a proper affidavit showing sufficient cause, might have had the mbtion for a new trial postponed to some day when it could be heard by the judge who tried the case. But a motion of this kind ought not to be postponed beyond the trial term, except for good cause shown.</p> <p>3. Bill oe exceptions— by whom to be signed, -where a motion for a new trial has been overruled by a judge other than the one who tried the case. Where a motion for a new trial is denied by a judge of the court other than the one who presided at the trial, and an appeal is granted, with leave to file bond and bill of exceptions within thirty days, the judge who tried the cause will be authorized to sign the bill of exceptions, and if none is tendered to him, it is the appellant’s own fault that he could not obtain the judgment of the Appellate Court'as to the sufficiency of the evidence to support the verdict.</p> <p>4. The proper practice would seem to be, where two judges preside at different times during the trial, or other disposition of a cause, that each should give a bill of exceptions -concerning the matters which transpired before him.</p> <p>5. Same—when necessary—presumption in favor of judgment. In the absence of a bill of exceptions showing the evidence on the trial, it will be presumed that a motion for a new trial was properly overruled, and an affirmance of the judgment by the Appellate Court is proper.</p>

Joseph E. Gaby, Judge, presiding. This was an action of debt, in the Superior Court of Cook county, by appellees, for the use of William C. Minard, against appellant and Abraham Moses, on a bond, of which the following is a copy: “Know all men by these presents, that we, Abraham Moses and Noah Barnes, of the county of Cook, and State of Illinois, are held and firmly hound unto John B. Brookman and T. M. Bradley, of the same county and State aforesaid, in the sum of $1200, to…

<p>1. Practice—trial by the court—degree of evidence required, to support a proposition of law. In the ease of a trial by the court without a jury, if there is evidence in the record tending to establish the hypothetical case made by a proposition of law based thereon, the court should give the same, if otherwise unobjectionable. It is not necessary there should t>e a preponderance of evidence to warrant the making of such proposition.</p> <p>2. Building contract—reference to plans and specifications—how far controlling the rights of the parties. A city had, prior to letting contracts for furnishing materials and doing work on a proposed city hall, through its architect and draughtsman, prepared a general plan of the building, consisting of numerous drawings and specifications, showing, in distinct views or subordinate plans, the different parts of the building, and the different kinds of work and material required, and the manner in which the same was to be done, and also, with a view of facilitating bidding on the different parts of the work, and for the purpose of furnishing each contractor after the work was let with a distinct plan relating mainly to his own work, caused a number of copies or duplicates of the subordinate plans of the work to be prepared, some of them showing the stone work, and others the iron work, and so on, and advertised for bids for the several parts of the work. From the copies or duplicates shown him on file, a contractor bid on the iron work, which bid was accepted, and a formal contract was entered into between him and the city, in which the city reserved the right to forfeit the contract, or any part of it, for any breach or default on the part of the contractor in its performance, and furnished him the same plans and specifications to be used by him in doing the work: Held, in an action by the contractor to recover upon a quantum meruit, that the reference in the contract to the plans and specifications was to be understood as meaning those upon which the plaintiff made his estimate and which were so furnished to him, and that the city had no right to declare his contract forfeited for his refusal to do work not shown on such plans and specifications, or furnish materials different from those therein shown, although the architect of the city may have omitted to copy therein some changes made in the originals, and that the plaintiff was entitled to recover.</p> <p>3. If there are differences in the several sets of plans furnished by the owner as a guide for the estimates of work proposed to be let, and a bidder uses the set furnished him by the agents of the owner for making his estimates and bid, and a difference between him and the owner arises as to the amount and quality of the work let, he having made his bid on the plans submitted to him, which was accepted, and was' made the basis of the contract, the words “plans,” “diagrams” and “drawings” in the contract entered into upon such bid will be held to refer to the plans, etc., so furnished to him by the owner, and if such plans, etc., differ from the originals, it will be the fault of the owner or his agent, and advantage of such difference can not be taken, to the prejudice of the contractor.</p> <p>4. Same—deficiency in specifications—how far it will exonerate the contractor from doing certain portions of the work. Where a contract to furnish the materials for the iron work of a building, and do the work necessary, refers to plans and specifications which show only openings for sky-lights, giving no sizes, weights or data to guide in their construction, so that the contractor can not make them without additional plans and specifications, the construction of such sky-lights can not be held to have been included in the letting and contract, and the contractor may well refuse to make the same.</p> <p>5. Action—right to recover on quantum meruit. In such case, whether the party letting the work is estopped from denying the correctness of the plans so furnished, and therefore had no right to declare a forfeiture of the contract, or whether, by reason of the mutual mistake caused by the negligence in not furnishing correct copies of the plans, etc., no contract was created, is unimportant to decide, as in either case the contractor is entitled to recover on a quantum meruit for the materials furnished and his labor. The contractor has a right to acquiesce in the forfeiture and recover the value of his services and materials.</p>

<p>1. Master and servant—respondeat superior. A master is liable for injury to others caused by negligence of his servant while in the performance of acts within the line of his duty.</p> <p>2. Same—exception to the rule, as to liability of a city for negligent acts of members of its fire department. But cities are not liable for the negligent acts of the officers or men employed in their fire departments while in the discharge of their duty, thus creating an exception in this class of cases to the general rule of respondeat superior.</p> <p>3. This exemption from liability is placed by some of the authorities upon the ground that the service is performed by the corporation in obedience to an act of the legislature, and that the members of the fire department, although appointed and paid by the city, are to be regarded rather as officers of the city charged with a public service, than as servants of the city for whose conduct it is liable. But it is not essential, to the doctrine of exemption that the service should be performed in obedience to a positive requirement of the law. The exception to the rule obtains even where there is a merely voluntary exercise of a power given by statute, and may well rest upon the ground of public policy, which would forbid the existence of such liability.</p>

Kirk Hawes, Judge, presiding. This was an action on the case, brought by the appellee, against the appellant, on March 15, 1877, to recover damages for the loss of a portion of his right foot, in November, 1876, while in the employ of the appellant as a laborer about a certain blast furnace. A trial was had at the February term, 1879, resulting in a verdict and judgment for $4000, which was reversed on appeal to the Appellate Court, and the cause remanded.

<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. E. S. Williamson, Judge, presiding.</p>

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

<p>1. Abbitbation—settlement of partnership through aid of another is not an arbitration and award. Where partners sought and obtained the aid of an accountant in adjusting their accounts, for the purpose of a settlement, and he prepared a paper showing what he considered a fair settlement between them, which they adopted: Held, that this was no arbitration, and the paper prepared by the accountant was no award, it merely constituting a settlement, liable to be opened for mistake.</p> <p>2. Settlement—opened for correction of mistakes. Where it is clearly shown that one partner has made advances for the use of the firm of considerable sums, which were not taken into consideration at a settlement had between the partners, on bill filed by one of the partners for an account, it was held, the cause should have been referred to the master to state anew the accounts, so far as concerned the omitted items.</p>

Elliott Anthony, Judge, presiding. This was a suit brought in the Superior Court of Cook county, to recover for legal services rendered. The nature of the case appears sufficiently from the following question, which was propounded to witnesses on the trial: Question—“This is a suit by George Payson, Esq., a member of the bar of this city, against Jacob Haish, of De Kalb, to recover fees for professional services.

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

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

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding.

<p>1. Btjbnt Recobds act—petitioner need not be in possession. Under what is known as the “Burnt Records act, ” the petition to establish title need not show that the petitioner is in possession of the land, or that it is vacant and unoccupied, as is required on bill to quiet title. Section 16 of that act expressly authorizes the petitioner to make all persons in possession, or claiming an interest in the land, parties defendant, thus creating a clear and marked distinction between a case under that act and a bill to quiet title.</p> <p>2. Same—act not unconstitutional. The Burnt Records act is not unconstitutional, as depriving the parties of a trial by jury, but is a valid law.</p> <p>3. Evidence—sufficiency—to establish the execution of a deed. In a proceeding under the Burnt Records act to establish title to land under a deed destroyed by fire, the petitioner proved by a clerk of an abstract firm, whose business it was daily to make abstracts of all deeds filed for record in the county, that a warranty deed from the defendants, husband and wife, to the party under whom petitioner claimed title, No. 113,008, was filed for record September 16, 1871, consideration $500, giving a description of the land conveyed; that the deed was dated September 14, 1871, but that there was an error in the year, being 1801, and that the deed was properly acknowl-, edged. He testified from the minutes he made the next day after the deed was filed. A partner of the grantee also testified that the husband obtained a loan of the grantee, and gave this deed as security for the money, and that he thought the wife also executed it in his office and in his presence, and that the deed was then taken to an officer to be acknowledged. Petitioner also put in evidence an abstract of title made for the defendants in due course of business, and which was in their possession. This showed the deed dated September 14, 1801, recorded September 16, 1871, from the defenclants to the same grantee: Held, that this evidence was sufficient to establish the execution of the deed, though the defendants positively denied that they ever executed and acknowledged the same.</p> <p>i. Same—to overcome certificate of acknowledgment of deed. In the absence of proof of fraud and collusion on the part of the officer taking and certifying the acknowledgment of a deed, the officer’s certificate of the acknowledgment, in proper form, must prevail over the unsupported testimony of the party grantor that the same is false and forged.</p> <p>5. Limitation—under act of1835. The Limitation law of 1835 requires an actual residence on the land for the period of seven years before suit is brought, to be a bar.</p> <p>6. Samp.—under act of 1839. Possession and payment of taxes for seven successive years, under the act of 1839, without color of title, creates no bar; and where a party having a deed which is both title and color of title, makes a conveyance, he parts with his color of title, and stands as if he had never had any, and possession and payment of taxes thereafter for seven years, will .not avail him, for want of color of title.</p>

Writ of Error to the Appellate Court for the Second District;—heard in.that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.

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

Writ oe Error to the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding. This was an indictment against the plaintiff in error, for embezzlement.

<p>1. Sunday—contract made on Sunday is valid. A contract entered into on a Sunday is not void by reason of having been made on that day, either at the common law, or under the 261st section of the Criminal Code, forbidding the disturbance of the peace and good order of society by labor, etc., on Sunday. The statute was not intended to prohibit the transaction of business merely, as distinguished from labor, on Sunday. Decisions of other courts, holding a different rule, were made under statutes essentially different from our own.</p> <p>2. Statute—language construed in its ordinary sense. The courts must, in the absence of all qualifying circumstances, presume that in the enactment of laws the language used was used in its ordinary sense. Hence, the word “labor, ” in section 261 of the Criminal Code, does not include mere business.</p>

<p>1. New tbiai<—in ejectment, under the statute—motion for must be within one year, and all costs paid. A plaintiff in ejectment recovered judgment on April 12,1882, and on May 1,1882, the defendants paid all costs up to that time. On March 9, 1883, the plaintiff sued out a writ of possession, making thereby one dollar additional costs, of which the defendants» had notice. On April 13, 1883, the defendants for the first time entered a motion to vacate the judgment, and for a new trial, under the statute, without having paid these additional costs. The court overruled the motion: Held, that the motion was properly overruled, for two reasons,—the failure to pay all costs, and to make the application within one year after the judgment.</p> <p>2. Time—mode of computing. The proper mode of computing time, where an act is to be performed within a particular period from or after a specified day, is to exclude the day named and include the day on which the act is to be done.</p>

Wbit oe Ebeoe to the Circuit Court of Sangamou couuty; the Hon. Chables S. Zane, Judge, presiding. This was an action of ejectment, brought by Georgietta L. Hamlin and others, against the United States Express Company, for the recovery of certain parts of lots 1 and 2, in block 21, -in the old town (now city) of Springfield.

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

<p>1. Evidence—of statutes of another State. A book, the title page of ■which reads, “ Statutes of Ohio—By authority of the General Assembly—In force August 1st, 1854—Published in pursuance of the act of the General Assembly of April 18th, 1854,” is admissible in evidence, under our law, to prove a particular statute of the State of Ohio.</p> <p>2. Deed — of proof of its execution in conformity with the law of another State. A deed executed and acknowledged, or proved, in another State, conveying land in this State, may be shown to have been executed and acknowledged, or proved, in conformity with the laws of such other State, by any legal mode of proving that fact. The foreign statute being proved, the certificates of acknowledgment will show for themselves whether they conform to it, and nothing more is needed, if such conformity is thereby shown.</p> <p>3. Same—will pass husbandis title, if his wife does not join in its execution. In an action of ejectment a deed was offered in evidence purporting to convey the land of a man, in which a woman joined in its execution. ' It was objected that it was not properly shown that the woman was the wife of the grantor: Held, that the objection was trivial, as the deed would pass the legal title of the husband, though his wife did not join in its execution.</p> <p>■ 4. Tax title—what objections may be made without proof of the payment of all taxes. Where a tax title is set up in defence to an action of ejectment, the plaintiff may Object to the want of a sufficient judgment, precept or deed, without first showing that all taxes due upon the land have been paid.</p> <p>5. Same—must be based on a valid judgment and precept. A tax deed, when relied upon as title, is void, and not admissible in evidence, unless it is supported by a valid judgment and precept. The precept, though not technically process within the constitutional provision requiring all process to run in the name of the People, performs the office of an execution, and is the authority under which the officer sells.</p> <p>6. Same—sufficiency of precept. A precept for the sale of lands for taxes, issued in 1837, under a judgment for the taxes of 1836, under which land was sold, was not signed or sealed by the county clerk, and had no certificate of his attached thereto at the time of the sale: Held, that the precept was void, and that no title passed by the sale and subsequent deed, and that an amendment of the precept afterwards did not cute the defect, and render the sale valid.</p> <p>7. Same—amending precept. A precept for the sale of land for taxes, though not technically process, but answering the place and performing the office of an execution, should, in respect of amendments, be governed by the same rule applicable to the amendments of executions. Its amendment should not be allowed without notice to the owner whose land was sold, and it seems this should not be allowed at all after the time of redemption has expired. If absolutely void for want of the signature of the clerk and the seal of the court, it is not amendable.</p> <p>8. Where a preoept is a nullity, for any cause, the collector has no authority to sell land under it. His act of selling is a nullity, and a purchaser can base no right thereon; and if no right passes at such sale, no subsequent amendment of the precept can relate back and cause something then to pass, or of itself divest one man of his title and invest it in another. .</p>

<p>1. Partition—decree as to a part of the owners no bar to a second bill. It is a fundamental doctrine of the law of partition that all co-tenants must be made parties to the proceeding, otherwise the decree will be no bar to a second partition, at the suit of the omitted parties.</p> <p>2. Same—may be had, subject to life estate. The fact that a widow may have a life estate in premises left by her husband as an estate of homestead or dower, is no bar to proceedings for partition of such premises between the heirs. Like any other intervening life, estate, it could only postpone the possession of the reversion until its termination.</p> <p>3. Seizin in fee—what constitutes—heir is seized, though subject to dower in land. A bill for partition charged that upon the death of a person his children, eight in number, became seized in fee simple, as tenants in common of certain real estate, of an undivided one-eighth share each, while the proof showed the estate of the children was subject to the widow’s dower and homestead: Held, that there was no variance, as the heirs, in technical language, were severally seized in fee of their respective shares.</p> <p>4. Homestead—as against heirs. Where an owner of real estate died, in 1865, leaving a widow and children, it was held that the widow, under the law then in force, had no homestead in the premises as against the heirs.</p> <p>5. Practice—when to take an objection—as to variance. If a party desires to raise the question, in this court, of variance between an allegation in a bill in chancery and the proof offered, he should make the same specifically in the court below, so as to afford an opportunity to obviate the same by amendment.</p> <p>6. Sajie—when specific objection necessary. A general objection to the evidence offered is not sufficient to raise the question of variance, but is regarded as going to the competency of the evidence. Equity always looks to the real substance of matters put in evidence, and will disregard mere technical objections that do not affect the merits of the controversy, and which might readily be removed if the attention of the opposite party or of the court had been called to them.</p> <p>7. Allegations and proofs—variance—when immaterial. A bill seeking the partition of real estate by a purchaser under execution of the interest of two out of eight heirs, alleged that the sheriff levied upon the lands above described, while the levy was only upon the undivided two-eighths thereof: Held, that the variance was clearly immaterial.</p> <p>8. A party claiming as a purchaser under a judgment and execution sale and sheriff’s deed, as against two of eight co-tenants, in his bill for partition alleged that he recovered judgment against such two tenants in common for $121, and costs of suit, whereas the proof showed the judgment was for $121.35. There was no proof showing the existence of any other judgment against the same parties in favor of the complainant: Held, that in a court of equity, where the substance and real merits are looked to more than to literal accuracy, the variance was not such as to defeat a partition.</p> <p>9. Judicial sale—and title thebeundeb—defective return on execution. The title of a purchaser at an execution sale can not be defeated by the failure of the sheriff to make a proper return of the execution, or, indeed, by a failure to make any return whatever. The purchaser’s title depends on a valid judgment, execution, levy, and a sheriff’s deed appearing on its face to have been made by virtue of a sale under such judgment and execution.</p> <p>10. Same—variance between certificate of purchase and sheriff’s deed. A certificate of purchase showed that a purchaser bid for certain lots, and not for two-eighths interest in them, which alone was levied on, but it showed that the sheriff offered for sale the undivided two-eighths of the lots. The sheriff’s deed recited that the sheriff levied on the lands thereinafter described, and the same were struck off to the grantee, and then proceeded to convey to him two of the lots, described by their numbers, and the undivided two-eighths of the other two lots: Held, that these discrepancies, both in the certificate of purchase and sheriff’s deed, were not fatal to the title of the purchaser.</p> <p>11. Shebiee’s deed—statute requiring amount of judgment to be stated, construed. The statutory provision which prescribes the form of a sheriff’s deed, so far as it requires the amount of the judgment to be inserted in the deed, is merely directory. It is sufficient if it clearly appears that the deed is made by the officer in his official capacity, and in consummation of the legal proceedings upon which it is founded, with such references to the proceedings themselves as that they may be readily found and identified.</p> <p>12. A sheriff’s deed to H. of land, recited that H., at the August term of the circuit court of Macon county, recovered a judgment against A B and 0 D, for the sum of “one hundred and twenty-one-and costs of suit,” upon which judgment an execution was issued, dated September 21, 1866, directed to the sheriff of Macon county to execute: Held, that in the absence of proof that H. had any other judgment in that court against the same parties, there was no doubt as to the judgment referred to, and that the deed was not invalid on account of the omission of the word “dollars,” in the blank.</p>

Writ op Error to the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding. Held: in the one case, that the bill was not properly framed as a bill of review, and in the other, that the evidence not being preserved in the record, it could not be known that the court erred in denying the prayer of the petition,—for aught that appeared no evidence had been offered in support of it.

<p>Practice—who has the opening and conclusion,' in proceeding to condemn land. In a proceeding to condemn land for public use, and for the ascertainment of the compensation to be made and the damages to he assessed, the petitioner holds the affirmative of the issue to be tried, and consequently is entitled to the opening and conclusion, both in the matter of introduction of evidence, and upon the argument to the jury.</p>

This was an original application for a peremptory writ of mandamus, exhibited in this court. The facts of the case are stated in the opinion of the court.

<p>1. Municipal subscription—properly authorized in special railroad charters, under constitution of 1818. Counties, cities, towns and townships might, under the constitution of 1848, be empowered by general law, by their charters, or the charters of railroad companies, to subscribe for stock in such companies, or even to make donations to aid in constructing railroads.</p> <p>2. Constitutional law—private law, as containing more than one subject. Where a charter to construct and operate a railroad confers power on counties, cities, etc., to subscribe to the capital stock of the company, and issue bonds for the same, such provision is germane to such charter, and does not constitute a different subject from that of power to construct the road, it being but a means adapted to that end. Such a private law is not in violation of the constitutional provision in section 23, article 3, of the constitution of 1848, prohibiting any local or private law from containing more than one subject, and requiring that to be expressed in its title.</p> <p>3. Appeal—direct to this court—as involving constitutional question. To give this court jurisdiction of an appeal directly from the trial court, on the alleged ground that a constitutional question is involved, a constitutional question must really exist and be presented in the ease, and not have been settled by this court. Parties can not confer jurisdiction in such eases by merely assigning an error that a law is unconstitutional, or by presenting such a question in argument, when such question has already been definitely settled.</p>

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

' Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.

<p>Appeal from the Circuit Court of Wayne county; the Hon. Chauncey S. Conger, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. This is an action of ejectment, brought by appellee, against appellant, claiming title in fee to lot 45, block 37, in school section addition to Chicago, and for the possession thereof. The plea is not guilty.

<p>1. Grantee—assuming to pay preexisting mortgage—rights and obligations of the parties. Where a grantee accepts a conveyance of land, with a clause or condition therein that he assumes and agrees to pay an existingincumbrance on the premises as a part of the consideration, with a knowledge of its contents, he will become personally liable to the holder of the incumbrance to pay the indebtedness, without his signing and sealing the deed.</p> <p>2. Where a deed for land imposes the obligation upon the grantee to pay and discharge an existing incumbrance upon the land, the grantee’s liability to the holder of the incumbrance rests upon the doctrine that when one person makes a promise to another for the benefit of a third person, the latter may maintain an action upon it. In such ease it is not necessary that there should be any consideration passing from the third person.</p> <p>3. Where the owner of real estate sells and conveys the same, incumbered by a mortgage which he had assumed to pay, to one who, as a part of the consideration of his purchase, assumes and expressly agrees to pay and discharge the mortgage, the contract will be for the benefit of the holder of the mortgage, and when he ratifies it and claims its benefit, the law operating on the act of the parties establishes a privity of contract between the grantee and the holder of the mortgage, and creates an obligation on the part of the former to pay the mortgage, and the mortgagee may, by an action in the name of the grantor, for his use, maintain a personal action against the grantee for the sum due upon the mortgage.</p>

<p>Appeal—in replevin—as to amount involved. An appeal lies from tbe Appellate Court to this court in an action of replevin, where the value of the property replevied exceeds $1000, without regard to the extent of the interest of the contesting parties thereto. If the evidence shows the property to exceed this sum in value, this court will have jurisdiction.</p>

Franklin Robb, Judge, presiding. On January 8, 1876, bonds, purporting to he the bonds of the town of Honey Creek, in Crawford county, Illinois, were issued to the Paris and Danville Railroad Company, to the amount of $15,000, payable, on their face, at a future day, with interest from October 11, 1875, at the rate of ten per cent per annum, payable annually on January 1 of each year, with interest coupons attached.

<p>Criminal law—whether murder, or only manslaughter. On tlie trial of a person upon tbe charge of murder, and of which he was convicted, it appeared the person who was killed had entered upon the premises of the prisoner in a menacing manner, and during the quarrel which ensued, and which he commenced, he was killed. The circumstances attending the difficulty and the result, as detailed in the opinion of the court, were held not to justify a conviction for murder, but, at most, would make a case of manslaughter.</p>

<p>1. Baileoad—liability for injury to animals caused by fright. Under the act in relation to fencing and operating railroads, in force July 1, 1874, as amended by the act of 1879, where a party’s horse gets on the railroad track for want of such a fence as the law requires the company to erect and maintain to inclose its track and right of way, and while on the track is frightened either by the approaching train, or the sound of the bell or whistle, or all of them combined, and in its flight is injured, either by jumping a cattle guard, or by coming in contact with a wire fence, or both, and no negligence or willful misconduct is chargeable to the agents of the company in charge of the train at the time, and where no injury is done to the horse by any actual collision or contact with the engine or cars of the train, the railroad company will not be liable to the owner of the horse for such injury.</p> <p>2. Same—statute relative to fencing, construed. The true meaning of section 1 of “An act in relation to fencing and operating railroads,” as amended in 1879, is, that the injury to stock must be caused by actual collision,—that is, it must be done by the “agents, engines or cars” of the company, or the willful misconduct of the train men, to make the company liable.</p> <p>3. Consequential damages resulting from fright to animals, not caused by actual collision, or any negligence or willful misconduct on the part of the servants of the company, are not embraced in the statute.</p>

Hon. J. R. Cunningham, Judge, presiding. Joseph E. Goar, county collector for the year 1881, of Coles county, reported on May 9, 1882, a list of lands and town lots as delinquent for taxes and special assessments, interest, and costs due thereon, with a petition for judgment and order of sale against said lands and town lots,, among which were some assessed in the name of E. 0. Beat.

C. W. Upton, Judge, presiding. May 1, 1874, John Althen made to Richard L. Divine his promissory note for $2500, for money borrowed, payable three years after date, with ten per cent interest, and secured the same by mortgage, made by himself and wife, of a store and lot in Sycamore, Illinois.

<p>Appeal from the Circuit Court of Cook county; the Hon. W. W. Paewell, Judge, presiding.</p>

<p>1. Chanceby—when it will enjoin public authorities from vacating a street. A bill to enjoin tbe closing up and obstructing of a public street, under an order of the city council vacating the same, which fails to allege that the vacation wiil impose the slightest additional burthen or tax on the complainant, or that he will be in any other wise injured or suffer the slightest inconvenience or loss, is fatally defective, and obnoxious to a demurrer. ,</p> <p>2. Unless a party is liable to sustain some special injury different from that of all other tax-payers, or others in the vicinity, by the vacation of a public street, he can not maintain a bill to enjoin the vacation.</p> <p>3. Munioipaii cobpobations—enjoined from abuse of taxing power and misapplication of public funds. The courts of this State will restrain the abuse of the taxing power by municipalities, when exercised without charter power, or for purposes not warranted, or the expenditure of corporate funds for purposes not authorized; and it may be the courts would interfere where the corporation is endeavoring to squander corporate funds in violation of its charter powers, where it will unnecessarily increase the burthens of taxation.</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. E. S. Williamson, Judge, presiding.</p>

<p>1. Noticie—by possession. "Where an attachment is levied upon, and becomes a lien on land before its conveyance by the owner, and a purchaser takes actual possession of the premises before judgment in the attachment suit, which is continued, and the property is purchased by the plaintiff in the attachment, who assigns his certificate of purchase to one who again assigns the same to another, who takes out a sheriff’s deed, there will be involved no rights of innocent purchasers, and the parties so acquiring the certificate of purchase by assignment having notice of the equities of the party in possession, will have the same, but no greater, rights than the original purchaser at the sheriff’s sale.</p> <p>2. Judicial sale—what is inadequacy of price. Where lots worth $8000 are sold for $65.38, the amount of the sale is grossly inadequate.</p> <p>3. Same—when set aside for inadequacy of price. Judicial sales will not be set aside for mere inadequacy of price, unless it is so gross as to amount to a fraud.</p> <p>4. Same—sale en masse for inadequate price. Where two separate lots, of the value of $8000, are sold on execution for $65, en masse, without first offering them separately, a court of equity will interpose, if invoked in a reasonable time, and set the sale aside.</p> <p>5. Laches—excuse for delay in filing bill to set aside a sale. Where a purchaser of lots was aware of an attachment against them at the time of his purchase, but was assured by the agent of his grantor that he would take care of the matter, and he was afterwards, and within the time of redemption, shown an abstract containing a memorandum that the judgment was fully satisfied by the return of execution, from which he was led to believe that the judgment had been satisfied by payment, instead of by sale of the lots, which belief was strengthened by the conduct of the purchaser at the sheriff’s sale, and those claiming under him, in not taking out and recording a sheriff's deed for several years, it was held, that a delay of five years in filing a bill to set aside the sale was not a bar to equitable relief.</p> <p>6. Execution—must be delivered to officer in-its lifetime. A sheriff has no right to proceed under an execution unless it comes to his hands within ninety days from the time it was issued.</p>

<p>1. Alimony—power of court to declare its termination. Under the statute the circuit court is invested with ample power to declare the termination of all alimony decreed to a wife on divorce, upon the occurrence of facts reasonably justifying such declaration, such as the death of the husband.</p> <p>2. So where, after a decree of divorce, the husband (the defendant) was required to pay his wife $400 per annum, payable semi-annually, as alimony, “until the further order” of the court, and after his death his widow filed her bill for the assignment of dower in his lands, and for partition, he leaving no children, and the administratrix of his estate also filed a cross-bill making the widow, and the intestate’s heirs at law, and the claimants of liens on the real estate, defendants, praying for an account of the debts against the estate, etc., that dower be assigned to the widow, that her decree for alimony be modified or cancelled,-and for partition, the court, on the hearing, entered a decree giving the widow dower, and declaring that her alimony ceased at the death of her husband; and ordered partition among the heirs: Held, that under the reservation in the decree giving alimony, as well as under the statute, the court was authorized to declare the alimony terminated, and that there was no error in so ordering.</p> <p>3. Same—terminates on death of husband. In the absence of language in a decree giving a wife alimony, showing, unequivocally, an intention to bind the heir of the husband after his death, the allowance of alimony will terminate with the life of the defendant. It can not be presumed that the payment of alimony is made a charge upon the heir; but that fact, if it exists, must affirmatively appear.</p> <p>4. Dover—in property leased—from what time rents set off. On bill for the assignment of dower, the court, in decreeing the dower, ordered that the proper proportion of the rents be set off to the dowress from the date of the decree: Held, error, as she should have such rents from the filing of her bill; but as this could be corrected in the court below in finally adjusting the accounts of the parties, the decree was not reversed for this error.</p>

<p>Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.</p>

<p>Appeal from the County Court of Livingston county; the Hon. Robert R. Wallace, Judge, presiding.</p>

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

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

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

Joseph E. Gary, Judge, presiding. Appellees were dealers in furs. They had a business house in New York City and one in Chicago, and were in the habit of shipping furs by express from Chicago to New York. There were in Chicago three express companies,—the United States, the American, and the Adams,—each of which, as a common carrier, was in the habit of carrying furs from Chicago to New York, and appellees shipped furs by each of these lines.