Volume 108 — Illinois Reports

Writ of Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding. This was a bill in chancery, filed by the railway company in the Superior Court of Cook county, to enjoin the collection of a personal property tax. A demurrer was sustained to the bill, and the bill dismissed. The case is brought here by writ of error.

<p>1. Mortgage—whether an absolute deed with agreement for repurchase, or a mortgage. Where a debtor whose indebtedness is secured by deeds of trust, and to avoid a threatened foreclosure, conveyed the mortgaged premises to his creditor by a quitclaim deed, containing a proviso that if he should pay a certain sum (being the amount due from him, with interest and back taxes,) within one year, with interest thereon, the grantee should reeonvey the premises to him, and the grantee also executed to the grantor a lease of the premises for one year, at a rental equal to the interest on the debt, payable monthly, which monthly rental, it was recited, was to be deemed and applied as interest, under the conditions of the quitclaim deed, it was held, that the transaction was but a mortgage for the payment of the indebtedness of the grantor, and was not an absolute sale and extinguishment of, the prior indebtedness.</p> <p>2. Whether a deed for land is an absolute sale and conveyance, with an agreement for a repurchase by the grantor, or a mortgage to secure the payment of money, is a.question of fact, depending upon the intention of the' parties to it at the time of its execution.</p> <p>3. Same—when deed absolute in form is given as a further security, creditor may still enforce his prior securities. Where a deed absolute in form, with a clause for repurchase, is given in consideration of an existing mortgage indebtedness, the court is more inclined to treat it as a mortgage than where given upon an original advance, and when so treated the new mortgage will not be regarded as a substitute for the former security, unless the intention to that effect is manifest; and in such cases the original mortgage may be foreclosed, notwithstanding the giving of the new one.</p> <p>4. If the new instrument operates as a satisfaction or extinguishment of the mortgage indebtedness, it will be regarded as a sale and conveyance of the equity of redemption, with an agreement for a repurchase; but if it does not so operate, such new instrument will be treated as an additional security for the debt,—or, in other words, as an additional mortgage,—and the creditor may enforce either one.</p> <p>5. Same—deed—when a mortgage, continues so. Parties can not make a conveyance of land, absolute in form, a security for the payment of money by a given day, and if payment is not then made, have it treated as an absolute sale and conveyance. Every deed takes effect from delivery, and its character thereby becomes at once fixed. If a mortgage when delivered, it continues so until the right of redemption is barred by some of the modes recognized by law. The parties can not, even by express stipulation in a mortgage, cut off the right of redemption.</p> <p>6. Evidence—extrinsic, to show intention of parties by their written contracts. In arriving at the intention of the parties in executing a written contract, the instrument itself must first be looked to, for, as a general rule, where there is nothing equivocal or ambiguous in its terms it should be given effect according to the plain and obvious import of the language used, unless to do so will lead to unreasonable or absurd consequences.</p> <p>7. Same—exception to rule excluding parol evidence to explain. There is a well established exception to the general rule by which parol evidence is not admitted to vary or explain a written contract, which permits the showing of a deed plain and unambiguous in its terms, and absolute on its face, to be a mortgage, or mere security for the payment of money, or the performance of some other act or duty. So an instrument substantially in the form of a mortgage may, in like manner, be explained, with a view of arriving at the real intention of the parties.</p> <p>8. Contbact—construction, when several writings must be construed together. In construing whether’ a conveyance is an absolute deed, or a mortgage, or security for the payment of money, it must be considered in connection with a lease accompanying it, from the grantee to the grantor, when both are parts of the same transaction. In such case they will be construed as though they were different parts of the same instrument.</p> <p>9. Error—in admission of evidence, afterwards cured. If the admission of a deed of trust in evidence, without any explanation as to an erasure and interlineation, except a memorandum of the officer taking the acknowledgment that “all erasures and interlineations” were made before signing, is error, it will be cured by the subsequent admission of evidence giving the explanation desired, and for the want of which the deed was objected'to.</p> <p>10. Estoppel—by deed, from denying validity of prior deed. Where a deed of trust showed on its face that the name of the original trustee was erased, and that of another inserted, and the grantors afterwards gave a new deed to their creditor, in which 'is expressly recognized the validity of the trust deed, the grantors therein will be estopped from raising any question as to the authenticity or binding force of the trust deed.</p>

M. F. Tuley, Judge, presiding. On the 11th of June, 1872, Eben E. Bunyan made and delivered to John M. Bullock his promissory note for $6000, payable five years after date, with interest thereon at ten per cent per annum, payable semi-annually, and at the same date Bunyan and wife executed and delivered to Bullock a deed of trust conveying the east half of section 28, and the east half of the north-east quarter of section 33, town 36 north, range 12 east, third principal…

M. F. Tuley, Judge, presiding. This was a bill in equity, brought by John A. Hamlin, against William J. Davis, seeking to have the latter declared to be a trustee for the former of a certain lease of the Grand Opera House in Chicago, which Davis had obtained for himself from William Borden. Upon the hearing the circuit court decreed the relief prayed for. The decree was affirmed by the Appellate Court for the First District, and the defendant appealed to this court.

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

<p>1. Trust deed—notice of sale under several trust deeds, one notice sufficient. Where a party gave three deeds of trust, each on a different tract of land, to secure three notes, and the trustee, on default, advertises that he -will sell under each trust deed the land described therein, in one notice, the notice will be good, and the sales made separately will not be set aside for want of separate notices.</p> <p>2. Same—form of trustee’s deed when grantor has parted with his equity of redemption. Where a party, after executing a trust deed to secure the payment of money, conveys his equity of redemption, and the trustee sells the premises, it is not essential that the deed made by the trustee shall purport to convey the interest of the assigns of the grantor. A recital that the trustee conveys “all the estate, right, title, interest, property, claim and demand whatsoever, both in law and in equity, of the said A B,” the grantor, is sufficient to pass all the title and cut off the equity of redemption.</p> <p>3. Same—sale under, not set aside for uswry. If the maker of a deed of trust, and his subsequent incumbrancer, permit a sale of the premises to be made by the trustee for the principal, and usury included, they will be estopped from afterward insisting on usury to defeat the sale. By permitting the sale they will be regarded as assenting to it and the payment of the usury.</p>

<p>1. Injunction—when a threatened trespass will be enjoined. It is the general rule that before a court of equity will lend its aid to enjoin a mere trespass, facts and circumstances must be alleged in the bill from which it may be seen that irreparable mischief will be the result of the act complained of, and that the law can afford no adequate remedy.</p> <p>2. The temporary interruption of the business of a city horse railway company, for only three or four days, by moving a large house along the street lengthwise with the company’s track, even granting that the company has the exclusive right of way in the street for its cars, is not a case of irreparable damage, or such an injury but that an adequate remedy exists at law. And the further fact that the defendant proposes to move other houses over the same and other streets, when employed to do so, in view of the fact that such removals are of rare occurrence, and not likely to occur on the same street again for many years, and because it would be but a temporary interruption of the company’s franchise, was held not to furnish sufficient equitable ground for decreeing a perpetual injunction.</p>

<p>1. Judicial notice—of incorporation of city under general law. Where a city in this State is incorporated under the act in relation to cities, villages and towns, (chap. 24, sec. 3,) this court will take judicial notice of that fact.</p> <p>2. Special assessments—in cities, etc., under the general Incorporation act, governed by that act. Special assessments in cities, towns and villages organized under the general Incorporation act, in respect to the mode of giving notice, or making demand of payment thereof, and the time at which judgment must be applied for, are governed by the provisions in such Incorporation act relating thereto; and the provisions in the Revenue act, in so far as they differ from the same, have no relation to such cases. The provisions in the two statutes being inconsistent with each other, can not be construed in pari materia, but each applies to the class-of special assessments to which it relates.</p> <p>3. Either two distinct classes of municipalities are provided for, and the provisions of the general Incorporation law are applicable to the one class, and those in the Revenue act relating to special assessments to the other class, or the provisions in the general Incorporation act, being the last expression of the legislative will, must be held a repeal of those in the other act to the extent of their repugnance.</p> <p>4. Same—city council may fix term of court to apply for judgment. The city council of a city organized under the general Incorporation law has the power to apx>oint the term of the court at which axiplication for judgment shall be made against property for delinquent sxiecial assessments, which term may be a different one from that at which ap>X)lication is required to be made for judgment for State and county taxes.</p> <p>5. Constitutional law—whether statute embraces more than one subject expressed in title. The general act in relation to cities and villages is not roxiugnant to the constitutional objection as embracing more than one subject as expressed in the title. The pqwer of ox>ening, improving and repairing streets is strictly germane and incidental to the general object of municipal incorporation.</p> <p>6. Same—what fills the purpose of prohibition as to bill having more than one subject. The general purpose of section 13, article 4, of the constitution, that no act “shall embrace more than one subject,” to “be expressed in the title,” is acconrplished when the .title is eomxirehensive enough to reasonably include as falling within that general subject, and as subordinate branches thereof, the several objects which the statute assumes to effect.</p> <p>7. Same—whether act is a local or special one. The act in relation to cities and villages is a general law, and not local or special, although there may be municipal corporations to which it is not applicable, namely, those in existence under special charters at the time of the adoption of the constitution, which have not since sought to have their charters changed or amended.</p>

<p>1. Judgment—lien-—on after acquired land. Where an execution is issued upon a judgment in a court of record within one year from the time it is rendered, the judgment will become a lien upon any real estate the defendant in the judgment may acquire subsequent to its rendition, and within seven years; but if no execution is issued thereon within a year, no lien will exist.</p> <p>2. Where it is made to appear from the evidence that an execution was issued upon a judgment witkin'one year after its rendition, and placed in the hands of the sheriff, the lien of the judgment will attach, although such execution becomes lost, and is never returned to the clerk’s office.</p>

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

<p>1. Peaotioe—when Appellate Court reverses, hut fails to find facts—■ preswmption. Where the Appellate Court reverses the judgment of a circuit court, but fails to recite in its final order the facts as found by it, it will be presumed that the Appellate Court found the facts the same way as did the trial court, and reversed for some error of law in the proceedings; and in such case, if the record of the trial court fails to show any error as to the law, the judgment of the Appellate Court must be reversed.</p> <p>2. Amendment—change of parties is not a change of the action. It was evidently the intention of the legislature in adopting the provision in section 24 of the Practice act, that no amendment after the commencement of the suit and before final judgment, resulting merely in a change or substitution of parties to the action, or in a change of the form of the action, should be deemed a change of the action itself. The identity of the cause of the action, in such case, is still preserved.</p> <p>3. Same—right of defendant to plead limitation after amendment. Where, after the time limited by contract for bringing an action on a policy of insurance, an amendment is allowed, not changing the original cause of action or ground on which a recovery is sought, but merely changing the parties plaintiff by substituting another person as plaintiff, a plea setting up the limitation presents no defence, the suit having originally been commenced within the time limited.</p> <p>4. But where some new cause of .action has been introduced into a suit by amendment, against which the Statute of Limitations had run before making such amendment, the defendant will be entitled to present the bar of the statute as to such new claim or cause of action. '</p> <p>5. iNStraANOE—breach of warranty a defence, without showing an increase of rislc. Where an application for insurance provided that the answers to the questions therein propounded should form a part of the contract of insurance, and a warranty on the part of the applicant, and the policy provided that for any misrepresentation or concealment touching the risk it should be void, the company may avail itself of the applicant’s breach of warranty in the description of the property insured, and the survey thereof, without showing, or its otherwise appearing, that the risk was thereby materially affected. If the description was false, it is unimportant whether this was material to the risk or not.</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. N. M. Laws, Judge, presiding.</p>

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

- Appeal from the Appellate Court for the First District;—5 heard in that court on appeal from the Circuit Court of Cook county; the Hon. Mubeay F. Tuley, Judge, presiding.

<p>Appeal from,the Circuit Court of DeKalb county; the Hon. Isaac G-. Wilson, Judge, presiding.</p>

<p>1. Cebtiobaei—at common law—when it lies. The common law writ of certiorari may be awarded to all inferior tribunals and jurisdictions when it appears that they have exceeded the limits of their jurisdiction, or in eases where they have proceeded illegally, and no appeal is allowed, or no other mode is provided for reviewing their proceedings.</p> <p>2. Same—trial on record alone. The court awarding a writ of certiorari where the record is sent up, tries the case on the record alone. The trial is had by an inspection of the record,—not on any issue of fact, but of law, rather, as on a writ of error.</p> <p>3. Same—duty of inferior court on service of the writ. Where the writ is issued and served, it becomes the duty of the inferior court or body to whom it is directed to transmit a full and complete transcript of the record of the proceedings of which complaint is made, properly certified, to the court awarding the writ.</p> <p>i. Same—to test legality of laying out a highway. The commissioners of highways refused to grant the prayer of a petition for the laying out of a highway, and their order was filed in the town clerk’s office, whereupon a. party interested appealed from the decision of the commissioners, by filing, as he claimed, the necessary papers before a justice of the peace. The latter selected and summoned three supervisors to hear the appeal, who made a preliminary order granting the prayer of the petition, and then filed with the justice a certificate, under section 78 of the Boad act of 1879, asking for a jury to assess damages. The justice issued a venire for a jury, and fixed a day for the trial, when a common law writ of eertiorari was served upon him: Held, that the writ could bring nothing before the court except the petition for the appeal, the appeal bond, and the certificate asking for a jury, these being the only papers required to be filed before the justice, and that as no court could decide, from these alone, the legality of the proceedings, the writ was properly dismissed. The writ should not have been sued out until the proceedings were completed, and the papers filed with the town clerk.</p>

<p>1. Mortgage—assignment—conveyance in fee by mortgagor to mortgagee-effect as to prior assignee of the debt secured—whether there is a merger. A conveyance of real estate by a mortgagor to the mortgagee after the assignment of the notes secured and the mortgage to another, taking the same in good faith and for value, without the knowledge or assent of such assignee, will not, as to him, operate as a merger of the mortgage, or affect his rights; and after the recording of the assignment of the mortgage, a purchaser from the mortgagee after the mortgagor’s release of his equity of redemption will take subject to the equitable rights of the assignee.</p> <p>2. A mortgagee, after the release to him of the mortgagor’s equity of redemption, may keep the mortgage alive in favor of one to whom he had pledged the mortgage debt before the release of the equity of redemption, and he may also obtain future advances on such assignment, which will be evidence of an intention to keep the mortgage alive for the protection of his assignee; and in such case no merger will take place.</p> <p>3. A conveyance of a mortgagor’s equity of redemption to the mortgagee, after the latter has parted with the mortgage and notes thereby secured, by assignment to a bona fide purchaser or creditor as a security, can not, in equity, be. treated as a merger of the mortgage estate in the fee, for the reason that the original mortgagee, in equity, at the time of such conveyance had ceased to be such mortgagee, so that the two titles could not unite in the same person. If such conveyance should be made to the assignee of the mortgage, there would be greater plausibility in claiming a merger; but even then, if equity had required it, to promote justice, it would not have been treated as a merger.</p> <p>4. Chancery—affirmative relief on answer—what so regarded. On bill to enjoin the sale of real estate on execution issued on a judgment in a proceeding by scire facias to foreclose a mortgage, the court, on hearing on bill, answer and replication, entered a decree, allowing the defendant to proceed and sell under his execution, and directing the sale to be made in the same way the law required, independent of the decree: Held, that the decree was not subject to the objection of giving affirmative relief without a cross-bill.</p>

<p>1. BuHjDING contract—when it ceases to govern, by material departures in its execution. A contract for furnishing all materials, and constructing a foundation for a court house according to certain plans and specifications, upon which bids were based, provided that any work, changes, additions or alterations ordered should not invalidate the contract, but that they should be paid for as extra work, or deducted from the original amount, as the case might be, such extras or deductions to be subject to the valuation of the architect, whose decision was to be final: Held, that if the work, etc., ordered, was materially variant from the plans and specifications, it would be a different work not within the contemplation of the parties when the contract was made, and that where more than mere changes, additions and alterations were required, the contractor was not bound to accept such compensation for his labor, etc., as the architect might fix.</p> <p>. 2. Same—provision for changes, etc., in work, construed. Where a contract for the construction of a building provides that “changes, additions and alterations” in the work may be ordered and paid for as extra work, or deducted, as the case may be, on the architect’s estimate, it will be held to mean only such “changes, additions and alterations” as may be incidental to the complete execution of the work as described in the plans and specifications, and therefore of only minor and trifling importance. Any material departure from such plans and specifications, resulting in a- new and substantially different undertaking, can not be regarded as within the meaning of such a provision, and the contractor, in case of such material and substantial change, is not limited or governed by the original contract as to his compensation for the work.</p> <p>3. Same—estoppel of party, by Ms conduct, from availing of an abandonment of a special contract. In case of the abandonment of a special contract for labor, work and material by one party thereto, there is no presumption of estoppel against the right of the other party to avail of it, and hence the law of estoppel is not an indispensable element in the doctrine of abandonment. It may, or it may not, apply in such cases, and if relied on it is matter of special defence.</p> <p>4. Same—when architect’s decision is not final, though so expressed in contract. Where a building contract provides that in case changes, additions or alterations are required in the work, and made, the price to be paid extra or deducted therefore shall be “subject to the valuation of the architect, ” whose decision shall be final, it is the architect’s judgment, and not his arbitrary will, that is made conclusive, and if he acts fraudulently his decision will not conclude the party whom he attempts to wrong.</p> <p>5. Under such a provision in a contract, if it be shown that the architect, in making his decision, has disregarded important, clearly established or obvious facts, of which there is some evidence in the record, the prima facie presumption will be that he did so willfully.</p> <p>6. Where a building contract makes the estimate and valuation of an architect final on the parties as to extra work, caused by changes, additions or alterations ordered, the architect can only exercise the right of determining the value of such extra work and material in the manner provided in the contract.</p> <p>7. Instruction—whether submitting a question of law. Where, after a contract for making the foundation of a court house, etc., had been entered into, based upon certain plans and specifications, new plans were adopted to which the contractor was required to conform, and in a suit by him against the county the court instructed the jury that if they believed, from the evidence, that the new plans “were so different from the old plans as to provide for a new and materially different job or piece of work and foundation, and not a mere change, addition or alteration of the foundation provided for by the old plan,” (which were authorized to be made by the contract,) and that such adoption of the new plans was without the consent of the plaintiff, then the original contract was not binding on him, etc.: Held, that the instruction was not subject to the objection that it submitted a question of law to the jury. The jury by it are told v'hat does not mean changes, etc.</p> <p>8. Same—when should be qualified in itself. A proposition in an instruction which, in and of itself, is not accurate without modification or qualification, should be accompanied with the requisite modification or qualification.</p> <p>9. Same—need not anticipate hypotheses of the opposite party. It is not required that an instruction shall anticipate the existence of hypotheses contrary to that upon the theory of which it is framed. It is sufficient if it rests upon a hypothesis sustained by evidence, and states accurately and fully the law upon that hypothesis. If the evidence also fairly presents hypotheses sustaining modifying or repugnant legal propositions, those desiring to avail of such propositions may have them presented in separate instructions.</p> <p>10. So where an instruction presents a prima facie case entitling the plaintiff to recover for the value of materials furnished and labor performed by him, upon the ground that the original contract had been abandoned by the defendant, if the defendant relies upon the fact that the plaintiff is by his conduct estopped to say that the contract has been abandoned, he should ask an instruction in his own behalf presenting the law upon that phase of the case.</p> <p>11. Same—must be based on evidence—need not be supported by the weight of. An instruction may properly be given based upon a hypothesis of which there is some evidence tending to prove, without regard to the weight or preponderance of the samé.</p> <p>12. Same—as assuming facts. It is not objectionable in an instruction to assume as true a pertinent matter about which there is no dispute. Nor does an instruction submit a legal proposition which tells the jury that although they may believe, etc., then the law is so and so.</p> <p>13. Estoppel—of county, by acts of its agents. A county may be estopped and concluded by the acts and declarations of its agents appointed to superintend and supervise work being done for it under a contract, made in relation to the matter of their agency.</p>

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

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by A. N. Young and George Bullen, against L. J. Kadish and Charles Fleischman. A trial was had, resulting in a verdict and judgment of $20,000 damages against the defendants.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.

<p>1. Specific pereobmance—contracts for sale of personally. To authorize a court of e'quity to specifically enforce agreements respecting goods, chattels, stocks, choses in action, and other things of a merely personal nature, it must appear or be shown that the remedy at law is inadequate. A court of equity will not exercise jurisdiction when there is a complete and satisfactory remedy at law for damages.</p> <p>2. The fact that a purchaser of stock in a corporation is an employee of such corporation, and interested in its success, affords no ground for a specific performance of the contract of sale by a court of equity</p>

John J. Glenn, Judge, presiding. This was a suit in chancery, brought by S. F. Rice, William H. Parker, (administrator of the estate of George W. Parker, deceased,) Eliza A. Anderson, and Hans Anderson, her husband, against Amos Rice, and Lucinda Rice, his wife, Caroline Rice, and Fannie Rice, (now Tucker,) and others, to reach a trust fund in the hands of Amos Rice, as guardian of Caroline Rice and others.

David McCulloch, Judge, presiding. This was an action on the ease, by Phebe Castner, against Harmon Phenix, for verbal slander, in the Stark circuit court. There was a trial at- the March term, 1883, of the court, resulting in a verdict for the plaintiff, assessing her damages at $1500. Motion for new trial was made by the defendant, but the court overruled the motion, and gave judgment upon the verdict.

<p>1. CbeDitok’s bill—jurisdiction—no judgment at law, etc. A creditor’s bill will not lie in any case upon a purely legal demand, where tlie creditor has not first exhausted his remedy at law by obtaining a judgment and execution, which prove unavailing by reason of fraudulent conveyances or want of property subject to execution at law. The creditor can not proceed in equity in the first instance, unless his claim has some equitable element, such as a trust, or the like.</p> <p>2. ■ Where an execution has been returned nulla bona upon a judgment at law, and the creditor can show that'the debtor has equitable assets whiqh can not be reached by execution, or that he, or others acting in concert with him, have fraudulently placed obstructions in the way of collecting the demand by execution,,a case will then arise for the interposition of a court of equity. This is a part of the ancillary jurisdiction of a court of equity.</p>

<p>1. Insurance—waiver of condition upon notice of breach in condition. A policy of insurance upon a dwelling house against loss by fire contained a condition that “if the assured shall allow the building herein insured to become vacant or unoccupied, and so remain, * * * unless the consent of this company be indorsed hereon, this policy shall become void. ” The assured transferred the property' and left th e premises unoccupied. On application of the assignee the company indorsed its consent to the transfer of the policy, “subject, nevertheless, to all the terms and conditions” therein mentioned. It was shown that before such indorsement was made the agent of the company had notice that the building was then vacant and unoccupied, but there was no proof of an express consent that the house might remain unoccupied. It did so remain- about twenty months, when it was destroyed by fire: Held, that the company w'as not liable on the policy' for the loss.</p> <p>2. Same—effect of breach of condition by allowing the property to become unocmpied. A policy' of insurance having such a condition does not become absolutely void by reason of the premises becoming vacant or unoccupied. Nor is the insurance company', in case of the breach of such a condition, bound, at its peril, upon notice of such breach, to declare the policy forfeited for that reason, even if it had such power. But if it does not exercise this power while the assured is in default, and the premises are again occupied, its right to do so ceases, and its liability on the policy again attaches.</p> <p>3. 'Same—effect of consent to transfer of policy. The effect of aeon-sent to a transfer of a policy of insurance by the company, subject “to all the terms and conditions therein mentioned, ” is nothing more than to place the assignee in the same position with respect to all rights and liabilities under it that the assured occupied before the transfer. It amounts only to a substitution of the assignee as a party to the policy for the assured. In other words, it is the same as a re-issue of the policy to another party upon precisely the same terms and conditions as in the original.</p> <p>4. Same—condition in policy construed. Under a condition in a policy of insurance that “if the assured shall allow the building” insured “to become vacant and unoccupied, and so remain,” etc., the policy shall become void, it is not sufficient, to avoid the policy, that the assured shall allow the premises to become vacant or unoccupied, but he must allow them to “remain so. ” Under-such a provision,' if the premises are suddenly vacated the assured is bound to procure, without unreasonable delay, another tenant or occupant. If he does not, the company would have the right to declare the policy forfeited altogether, but it is not bound to do so in order to avail itself of such condition.</p> <p>5. Same—construction of words in notice. "Where an agent of a purchaser of insured premises applied to the agent of the insurance company to procure its consent to a transfer of the policy, and informed the latter that the premises were vacant, and such agent of the company informed him that he would have to produce the policy, and at the time of the transfer told him that “if the house was vacant he had better attend to that part of the business, because it would not amount to anything if the house was destroyed:” Held, that the expression, “that part of the business,” had no reference to the transfer of the policy, but to the vacancy of the premises.</p>

<p>1. Set-off—in equity—rents and profits against dower—insolvency. Dower was allowed a widow in the homestead premises at $350 a year, payable quarterly, on her petition for dower in these and other lands, the decree not preserving her homestead estate. The homestead property was, under a decree of court, sold and conveyed by the administrator of the estate of her deceased husband to a purchaser, subject only to such lien thereon for dower, and the widow refused the possession of the homestead to the purchaser, its rental value being at least double the yearly dower assessed to her, which rents she received, but suffered the taxes to accumulate on the property, and it to go to sale. The widow was insolvent: Held, on bill by the purchaser at the administrator’s sale for possession and for an equitable set-off, that a decree charging the widow with the value of the use of the premises from the date of the administrator’s deed until surrendered to the purchaser, and for taxes paid out by the purchaser, except those which were a lien on the land at the administrator’s sale, and providing that if not paid within a certain time the value of the use of the premises and the taxes paid should be set off against the dower due the widow on the same premises, discharging them from the lien for its payment as far as the amount found against the widow might go, was equitable and proper.</p> <p>2S Same—equitable. Where there is anything peculiar in a case, so as to render it impossible for exact justice to be done by a court of law under the statute, a court of chancery will afford relief through the medium of an equitable set-off. The insolvency of the defendant holding an incumbrance for a yearly allowance in lieu of dower on property bought by the complainant, who is wrongfully kept out of possession by the defendant, affords jurisdiction to a court of equity to apply complainant’s damages in discharge of the incumbrance pro tanto.</p> <p>3. Dower—power of court to decide widow’s right to occupy homestead until dower is assigned in all the lands.. Where a widow files her bill or petition for the assignment of her dower in all the lands left by her husband, the court is thereby invested with jurisdiction to pass upon whatever rights she may have in the homestead property, including the right to occupy it until her dower is assigned in all the lands.</p> <p>4. Same—effect of decree on toidow’s future right to occupy the homestead. A decree on the bill of a widow giving her dower in the home place and in some other tracts, without providing for her future occupancy of the home property until dower is assigned in all the lands of which her husband died seized, is conclusive against her, and she can not be heard to insist upon any rights with respect to the property not secured by the decree itself.</p> <p>5. Same—severance by reversal of decree as io pari of lands. Where a decree entered in a cause giving a widow dower in each of several tracts of land is, on appeal, reversed as to one tract and affirmed as to the other lands, this will amount to such a severance that the part of the decree which is affirmed, and the dower allotted thereby, will no longer depend upon or be affected by the decree to be rendered as to the other tracts.</p> <p>6. Evidence—records of court—parly not bound to introduce anymore than relates to the issue. A party, for the purpose of proving the contents of a petition, decree, etc., in a proceeding by a widow for dower, instead of producing a certified copy of the entire record produced the originals, one at a time, and offered them in evidence, to which objection was made, and overruled: Held, that the evidence was properly admitted, it being unnecessary to introduce any more of the record than affected the question at issue. The other party might, in such case, offer any part important to his or her interest.</p> <p>7. Same—relevancy—facts not affecting parlies’ interests or rights. The reversal of the part of a decree affecting one piece of property and the affirmance of the part affecting another tract- which is the principal subject of the litigation, creates such a severance of the former unity of the decree and proceedings as that thereafter those relying on the one part will not be chargeable with the consequences resulting from the other part, and therefore in a contest-between the dowress and a purchaser at administrator’s sale of the tract as to which the decree of dower was affirmed, proof that such purchaser is in possession of the other tract is irrelevant and immaterial.</p> <p>8. Bes judicata—matters decided on first appeal conclusive on second appeal.' A second appeal in the same case, where the decision of reversal and remandment on the first appeal covers the merits of the controversy in all its bearings, brings before this court only the subsequent proceedings had after the mandate of this court has been sent down.</p> <p>9. Administrator’s sale—subject io proceeding for dower. During the pendency of a widow’s petition for dower in various jueces of land,- the administrator of her deceased husband’s estate applied for an order to sell one of the tracts or lots to pay debts, making the widow a jmrty. She answered, setting up no defence or claim except that which she was seeking to enforce through her petition for dower, and tlie administrator’s sale was made subject to her right of dower: Held, that the purchaser at the administrator’s sale became simply bound to abide by the decree giving her dower, whatever it might be.</p> <p>10. Appeal—only suspends judgment or decree—does not vacate. An appeal from a decree does not vacate the same or destroy its lien, but merely suspends its operation or execution, and where the decree is’ affirmed it stands for all purposes just as if no appeal had been taken.</p> <p>11. Homestead—when assignment of dower is a release of. If dower is allotted out of other lands beside the homestead, the acceptance of such allotment is a waiver and release of the estate of homestead of the person entitled to dower, and his or her children, unless it be otherwise ordered by the court. Dower assigned on a party’s own petition must be regarded as accepted.</p>

David McCulloch, Judge, presiding. This was an action of ejectment, commenced February 21, 1883, and brought by Thomas C. Eagleston, against James Quinn and John Gustafson, to recover possession of a strip of land about one rod in width, across the north end of the west half of the north-west quarter of section 14, town 13 north, range 7 east, in Stark county, in this State, lying north of the line of a hedge running across said tract of land, containing about one-half acre.

<p>•1. Pbactice—remedy of party aggrieved by a decree in vacation. Where a cause is taken under advisement by the court-, and a decree, order or judgment therein entered of reeord in vacation, under sec. 30, chap. 37, Eev. Stat. 1874, the party objecting thereto should, on or before the second day of the next succeeding term of the court, enter a motion, on notice to the opposite party, to set aside or modify the same, and if not so set aside or modified it becomes final. This statute, by having prescribed a mode of practice in such a case, must be treated as excluding any other. Therefore, a motion made to the judge in vacation to set aside a decree so entered is not allowed.</p> <p>2. Same—entering decree as of the term the cause is submitted. Sec. 31, chap. 37, Eev. Stat. 1874, requires the consent of the parties appealing of record to authorize a decree rendered in vacation to be entered as of the term at which the cause is submitted, and where the record shows no such consent, the party objecting will not be deprived of his right to apply to the court by the second day of the next term for a new hearing, under section 30, chapter 37.</p> <p>3. Evidence—secondary—certified copies of depositions on destruction of originals. Where depositions taken in a cause were destroyed by fire, and in a second suit, in which the parties and subject matter are identical with the first, an agreement was made to admit the transcript of the record of the first suit filed in the Supreme Court, as evidence, which, on application, was not allowed to be withdrawn, it was held, that copies of depositions of a party in the former suit, duly certified by the clerk of the Supreme Court, were competent evidence on the hearing of the second suit, and proper to be considered.</p> <p>4. EaixjTJBE op consideeation—sale of patent—evidence must establish defence. Where a defence is interposed to the foreclosure of a mortgage given to secure notes given for the sale of a patent for a wagon brake, that the patent is worthless, the defendant must prove that fact, and where he has had ample time to make and test the quality of such brakes at a slight expense, and does not, and produces no witness that ever saw such brake practically tested, but relies solely on the opinions of witnesses not shown to be experts, his defence will not be established.</p> <p>5. Same—must have its foundation in the pleadings, or must be pertinent to an issue. The allegations in an answer to a bill in chancery, and proofs, must agree, to render a defence available. So where an answer to a bill to foreclose a mortgage to secure notes given on the purchase of a patent contains no allegation that certain representations were made, which were false, to induce the purchase, proof of such fact will not avail as a defence.</p> <p>6. Fraud—in representations .usual in commendation of thing sold. Bepresentations, such as are usual in commending an article sold, can not be relied on as fraud to defeat a suit to recover the price agreed to be paid for the same.</p> <p>7. Bescission for fraud—party seeking must place vendor in statu quo. A party purchasing a patent for the manufacture of a brahe to wagons, before he can rescind the contract of sale on the ground of fraudulent representations must first restore or offer to restore the patent to the vendor. He can not hold'that and escape paying for the same according to his cpntract.</p>

Clair county; the Hon. Amos Watts, Judge, presiding. This was a bill in chancery for an injunction, by the East St. Louis Connecting Eailway Company, against the East St. Louis Union Eailway Company. The hill was filed in the City Court of East St. Louis, and a temporary injunction was thereupon granted. Subsequently, the venue was changed to the circuit court of St. Clair county, and on a final hearing that court dissolved the temporary injunction and dismissed the bill.

Writ of Error to the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding. This was a hill in chancery, brought by Abijah Taylor, against David B. Haworth, to have set aside a certain deed from MaryE. Taylor, the former wife of Taylor, to-Haworth, and also a sheriff’s sale and deed of land claimed as belonging to Taylor, or for leave to redeem from such sheriff’s sale.

<p>1. Negligence—causing death—•evidence as to support of family, proper. In an action by an administrator against a railway corporation, to recover damages for negligently and wrongfully causing tlie death of the intestate, evidence that the deceased in his lifetime supported the plaintiff (his widow) and her children, is not only admissible, but highly proper, if not indispensably necessary.</p> <p>2. Ebbok—m some instructions, when, as a whole, are most favorable to the objector. Where the instructions, taken as a series, taking those on both sides, state the law of the case more favorably to the defendant than the plaintiff, and more favorably to the defendant than the law warrants, a reversal will not be had on the appeal of the defendant, even if one or more of the plaintiff’s instructions, considered alone, are probably subject to criticism.</p> <p>3. Masteb and sekyant—who is a fellow-servant of a common master. One servant of a corporation, to whom is delegated the power of hiring and discharging other servants, and in whom the corporation vests the sole control and direction of such other servants in and about the work which they may be ordinarily required to do, is, as to such servants whom he so hires, discharges and controls, the representative of the master when exercising such power or control, and is not a fellow-servant, nor is he in the same line of employment as the servants he so controls.</p> <p>4. Same—liability for negligence of one servant injuring another. The mere fact that one of a number of servants who are in the habit of working together in the same line of employment for a common master, has power to control and direct the actions of the others with respect to such employment, will not of itself render the master liable for the negligence of the governing servant, resulting in an injury to one of the others, without regard to other circumstances. Each case must depend upon its own circumstances.</p> <p>5. If the negligence complained of consists of some act done or omitted by the servant having such authority, which relates to his duty as a co-laborer with those under his control, and which might as readily happen with one of them having no such authority, the common master will not be liable.</p> <p>6. But where the negligent act arises out of and is the direct result of the exercise of the authority conferred upon him by the master over his co-laborers, the master will be liable. In such case the governing servant is not the fellow-servant of those under his charge with respect to the exercise of such powers.</p> <p>7. Same—when command of servant is that of his master. Where a corporation confers authority upon one of its employees to take charge and control of a gang of men in carrying on some particular branch of its business, such employee, in governing and directing the movements of the men •under his charge with respect to that branch of the business, is the direct representative of the corporation itself, and all commands given by him within the scope of his authority are in law the commands of the corporation; and the fact that he may have an immediate superior between him and the company makes no difference in this respect.</p>

<p>Railroad—liability for double value of fence built by owner—statute construed. To entitle an owner of land over which a railroad is operated,' to recover of the railroad company double the value of any fence built by him upon its neglect to do so on proper notice, the statute must be strictly followed, and the fence must be such as the statute requires, and be built in the mode the statute contemplates. The fence must be built on the sides of the railroad. If built two feet inside of the right of way this penalty can not be recovered. It is not held, however, that the fence may not be built entirely on the company’s right of way, but in doing so it must be on the sides of the road.</p>

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

<p>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>This was an attachment suit, brought by the Chicago, Milwaukee and St. Paul Railway Company, against the Keokuk Northern Line Packet Company, in the circuit court of Adams county, in this State. The writ of attachment was, on the 21st day of April, 1881, levied npon the barge “G-. W. Duncan, ” lying at Quincy, in said county, as the property of the defendant. Samuel C. Clubb, under the provision of section 29 of our Attachment act, “that any person other than the defendant claiming the property attached may interplead, ” etc., interpleaded in the case, claiming the property so attached, under an appointment as receiver of the property and effects of said packet company, by the circuit court of St. Louis, in the State of Missouri, in a certain cause in said court wherein said packet company was defendant. There was judgment in favor of the interpleader, Clubb, which, on appeal, was affirmed by the Appellate Court for the Third District, and the railway company appealed to this court.</p> <p>The plaintiff in .the attachment suit had first filed a replication to the pleas of the interpleader, traversing the same, but afterward, on its motion granted by the court, it withdrew the replication, as having been filed by mistake, and then moved the court to file its plea in abatement, which had been intended to be filed instead of the replication, denying the right to interplead as receiver under the appointment of a foreign court, which motion the court overruled, whereupon said plaintiff company filed the plea in abatement, which plea the court, on motion of said Clubb, ordered to be stricken from the files. The plaintiff company then refiled its said replication, upon which issue was joined and the trial had. The interpleader’s first plea alleges the barge was his own property at the time of the attachment of it; the second, that it was his property as receiver; the third, that at such time it was in his possession as receiver.</p> <p>The facts of the case shown by the evidence are, that at the October term, 1880, of the circuit court of the city of St. Louis, in the State of Missouri, Samuql C. Clubb was duly appointed receiver of the Keokuk Northern Line Packet Company, an insolvent corporation of that State, with power and authority to take possession of all the business and property of the corporation, and to manage the affairs thereof, under the orders of the court, the receiver giving bond in the sum of $200,000 for the faithful discharge of his duties. At the time of such appointment the barge “G-. W. Duncan,” in question, was lying at the landing at St. Louis, within the State of Missouri, and within the jurisdiction of said court. The receiver immediately took possession of the barge, and afterward, on the 6th day of November, 1880, he chartered the barge to the steamer “E. W. Cole,” for a trip up the Mississippi river and return. The barge was taken, under the charter, up the river as far as Quincy, Illinois, where it was detained by the ice, and remained until, the levy of the-writ of attachment in this case upon it on the 21st day of April, 1881. At the request of the captain of the steamer “E. W. Cole, ” the receiver released him from the charter, and took possession of the barge at Quincy, and ever since, until the levy of the attachment, retained such possession, having a watchman over and guarding the barge against danger. The receiver made an effort to have the barge removed to St. Louis as soon as the river was clear of ice, having made a contract with a steamboat line for the purpose, but did not succeed in having the removal made before the attachment. The court which appointed the receiver, at its April term, 1881, made an order authorizing the receiver to intervene in the attachment suit, and take the necessary steps to secure possession of the barge.</p>

<p>Writ op Error to the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.</p> <p>This was a bill in chancery, by J. S. Morgan, S. E. Peabody and J. C. Rogers, against Peter Saup, collector of the county of Alexander, Robert Wilson, James H. Carter, George E. Beerwith, W. J. Coppinger, Benjamin E. Logan, William M. Lewis, John T. Bnrketh, and George Michels, collectors, respectively, of the counties of Pulaski, Johnson, Saline, Williamson, White, Lawrence, Wahash and Edwards.</p>

<p>1. Homestead—exemption from sale under judgment for taxes. Beal estate occupied as a homestead is exempt from levy and sale under execution issued upon a judgment in personam against the debtor, notwithstanding such judgment may be for taxes on the same property due the State or county by the defendant therein. That part of section 3 of the act relating to exemptions, which provides that no property shall be exempt from sale for nonpayment of taxes, etc., has application only to proceedings in rem against the property in which two years’ redemption is allowed, and not to sales under a judgment in personam, except where it is based on a debt or liability for the purchase money or improvements.</p> <p>2. Taxes—lien of, not enforcible in ordinary action. The lien given by law upon land for taxes due thereon, whatever its force and scope may be, can not be enforced in an ordinary action at law by the county or State against the tax debtor. That can only be done by bill in chancery, under the statute.</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. Reeves, Judge, presiding.</p>

<p>1. Rees and sararíes—sheriff's fees in criminal cases in case of acquittal—liability of county. Section 19, chapter 53, of the Revised Statutes, entitled “Rees and Salaries,” requiring counties to pay sheriffs their fees in criminal cases where the defendants-are acquitted, etc., and to make up any deficiency in their salaries, is in all respects consistent with the constitution, and a valid enactment.</p> <p>2. A county board can not refuse to pay a sheriff his fees in criminal cases, where the defendants are not liable for costs, if such fees are necessary to make up the officer’s salary; but where his salary has been collected and received in full, the county is not required to allow him such fees to be applied upon arrearages in his deputy hire and other expenses. The words, “actually collected,” in section 10, article 10, of the constitution, are intended to prevent, the legislature from empowering the county to take fees due as so much revenue, and compensating the officers by appropriation out of the general revenues of the county actually in the treasury.</p> <p>3. A sheriff’s salary, was fixed at $1000 per annum, and he was by a separate order allowed $800 per annum for deputy hire, expenses, etc. He collected for the two years he was sheriff, from fees earned by him, $2560.28, before applying to the county board for an allowance for fees earned in criminal cases; Held, that the county board properly refused the allowance. The sheriff can collect of the county only in case of a deficiency in his “salary,” which is his personal compensation.</p> <p>i. Police begulations—by whom to be enforced. Whether'the burden of enforcing police regulations, in the absence of express constitutional restrictions, shall be borne by the State at large or be devolved upon the local municipalities, is a mere question of public policy, upon which the determination of the General Assembly is conclusive.</p> <p>5. Ootjnty—legislative control over. A county is a public corporation, which exists only for public purposes connected with the administration of the State government, and it and its revenues are alike, where no express constitutional restriction is found to the contrary, subject to legislative control.</p>

<p>1. Return of service—sufficiency. A return to a chancery summons was as follows: “I have duly served the within by reading the same, and delivering a true copy thereof to the within named C D, as I am therein commanded. April 18, 1878”: Held,, as showing a valid service, and that the return sufficiently showed that a copy of the writ was delivered, and that the date referred to the time of service, and not to the date of the return.</p> <p>2. Summons—description of court. A summons in chancery, the caption of which was, “State of Illinois, Alexander county, ss.,” commanded the defendant to appear “before the circuit court of said Alexander,” omitting the word “county.” The subsequent words were, “at the next term thereof, to be holden in the city of Cairo, in said Alexander county, on,” etc.: Held, that the omission of the word "county” was a mere clerical omission, and of no consequence.</p> <p>3. Ebbob—party can not urge error as to one not objecting. On a bill to enjoin the collection of faxes against a railroad company whose property was in the hands of a receiver, a decree was made enjoining the collection of the taxes, and also the receiver from paying the same: Held, that the collector enjoined could not assign for error the decree against the receiver.</p> <p>4. Beceiveb—conflict of jurisdiction. After the appointment of a receiver of an insolvent railway company by the United States Circuit Court, at the suit of certain bondholders, and possession taken by such receiver, the bondholders of the company secured by deed of trust on the real estate of the company filed a bill in the circuit court of the State to enjoin the collection of the personal property tax of the corporation by the sale of the mortgaged property, and to enjoin the receiver from paying the same out of assets in his hands: Held, that the fact that the property sought to be made liable for the taxes was in the possession of the United States court, by the receiver, could not affect the jurisdiction of the State court as to the subject matter, and that permission to sue the receiver in the State court might be presumed from the fact of no objection being made.</p> <p>5. Chancebt—when party may sue in his own behalf and that of others. The holder of a portion of bonds secured by deed of trust given by a railway company, in order to protect the mortgaged property or fund securing his and others’ bonds, may file a bill in his own behalf and in behalf of all other holders of such bonds, his interest and that of the others being identical and inseparable.</p> <p>6. Pbactice—default—presumption in favor of ruling below. On the same day a rule was entered requiring the defendants to answer a bill by a future day, it appeared by entry of record the defendants were defaulted, the decree, however, finding that “the defendants having each failed to answer complainants’ bill, as by the rule of the court they were required to do, ” etc.: Held, that as every presumption is in favor of the regularity of the proceedings of a court, it would be taken that the- decree asserted the fact, and the inconsistency in dates be regarded as a clerical error.</p> <p>7. Lien bob taxes—personal property tax as a lien on real property. A tax on personal property, as, on the capital stock Of a corporation, does not become a lien on real estate until the collector shall select for that- purpose some particular tract or lots of real property, and charge the tax against the same in his application for judgment.</p> <p>8. Injunction—to prevent seizure of property not liable to tax. A person who obtains a lien on property prior in time to that of a tax assessed against the owner, is entitled to have enjoined the seizure of such property for the tax.</p>

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

<p>Appeal from the Circuit Court of Lawrence county; the Hon. William C. Jones, Judge, presiding.</p>

<p>1. Administbatob’s SAmi—limitatioT^-laches. It is the settled doctrine of this court that a delay, when not satisfactorily explained, for seven years- after the grant of letters of administration, in presenting a petition by the administrator for an order to sell real estate to pay debts, is such laches as will bar any relief under it.</p> <p>2. The fact that one of the lots sought to be sold had been assigned to the widow as a part of her dower, and had been and was continuously occupied by her as a homestead, and is still so occupied, is no satisfactory excuse for a delay of nearly thirteen years in making such application.</p> <p>3. Same—where there is already a decree for the sale. A petition of an administrator for leave to sell real estate to pay debts, filed nearly thirteen years after grant of letters, alleged as an excuse for the delay that the real estate belonged to the decedent and two others, as partners, and that about three years after the grant of letters a decree was rendered in favor of the two surviving partners, against the widow and heirs of the deceased, finding that the firm was indebted beyond its personal property, choses in action, etc., and directing such partners to sell and convey such real estate, and apply the proceeds first to the payment of the balance due on the partnership debts, and the remainder, if any, to the administrator of the estate, and that three attempts were made to sell the property, all of which proved abortive. It was held, it not appearing that the partnership debts had yet been paid, there was no occasion for another decree to sell the land, since all the administrator could reach would be the amount remaining after satisfying the partnership indebtedness.</p> <p>4. Decbee—finding of fads contrary to evidence-preserved. Where the evidence in a petition by an administrator for leave to sell real estate to pay debts, is- preserved in the record by a bill of exceptions or certificate, and it does not sustain a recital in the decree of the facts found, the recital goes for naught.</p> <p>5. Tabtnebship—duty of surviving partner in settling up. It is the duty of surviving partners to settle up the business of the partnership without delay, and it is also the duty of the administrator of the estate of the deceased partner to see that they do so.</p> <p>6. If a surviving partner fails to use proper diligence to settle and close the partnership matters, and does not settle within a reasonable time, he may be coerced thereto by the county court, or on application to a court of chancery he may be removed from his trust and a receiver appointed.</p>

<p>Appeal—-final judgment in Appellate Court—what so regarded—and in what manner to be shown. Where the Appellate Court reverses the judgment of the circuit court, and remands the cause without any specific directions, but generally for such other proceedings as to law and justice shall appertain, no appeal or writ of error lies from such judgment of the Appellate Court, it not being a final One.' This court can not look into the opinion of the Appellate Court to see what it may have directed to be done. This must appear from the judgment or final order of that court.</p>

<p>1. Taxation—when a personal tax. Taxes assessed on the capital stock of a corporation are a personal property tax.</p> <p>2. Same—when personal tax becomes a lien. A tax on personal property does not become a lien on any personal property until the tax books are delivered into the hands of the collector, and it does not become a lien on real estate until the collector, on failure to collect the tax from personal property, charges the same on such real estate in his application for judgment for delinquent taxes.</p> <p>3. Same—priority of lien of trust deed. A corporation being liable for taxes on its capital stock, gave a deed of trust upon all its property, real and personal, which was duly recorded, after which recording its personal property tax was sought to be charged by the collector against the real estate embraced in the trust deed: Held, that any lien in respect to such taxes was subsequent to that of the deed of trust, and was to be held subordinate thereto.</p> <p>4. Trust deed—construed as to payment of taxes. A deed of trust given by a corporation provided that on default in any of its terms the trustees were authorized to enter upon the premises and property conveyed, operate the same, and collect all income, rents and profits, and after deducting “all payments for taxes, assessments, charges and liens upon the premises,” etc., to apply the same to the debt secured: Held, that such provision constituted no such an agreement on the part of the trustees to pay the taxes on the mortgaged property as a county could enforce as a promise in its favor. By such provision the trustees were authorized to pay taxes and reimburse themselves out of the property, but it imposed on them no obligation to make such payment.</p>

<p>Writ of Error to the Appellate Court for the Fourth District ;—heard in that court’on writ of error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>1. Highway—as to the width of a public road—by whom to be determined, and how ascertained. Under the laws in force in 1853, the county court, upon the return to it of the viewers’ report, with a plat showing courses and distances, was required to fix the width of a public road in the order establishing the same, and enter the same of record. The statute did not of itself fix the width of the road. It was simply directory, that the court should determine that matter. But a failure to fix the width of a road by that court did not render the order establishing the road a nullity. It might still he sustained as a road of the width that it was actually traveled and worked under such order.</p> <p>2. Under authority in the county court to relocate a public road, there is no power to establish the road on the same identical route, and define its width; and the court can not, after the rights of the public have been fixed as to the width of a road, make a new order increasing its width, without first taking the necessary steps to condemn the additional ground sought to be taken.</p> <p>3. Section 64, article 17, of the Township Organization law of 1861, though it might have legalized a road laid out by the county court, by making the order laying it out evidence of the regularity of all the proceedings in its establishment, did not determine the width of such road, but left that as it was before its passage.</p> <p>4. Where the county court, in its order establishing a public road, failed to fix the width of such road, and it appeared it was opened, traveled and worked upon only to the width ef forty feet for many years, when the commissioners of highways threatened and were preparing to open the road through complainant’s premises four rods wide: Held, that the opening of such road beyond the width of forty feet was properly enjoined on bill in equity.</p>

<p>1. Administration of estates—administrator de bonis non—of his powers, generally. It is a rule of tbe common law that the powers and the duties of an administrator de bonis non are limited to the administration of such property belonging to the decedent’s estate as has not already been administered upon by the former executor or administrator.</p> <p>2. Same—u'hat is an administering on property. The conversion of the property of an estate into money by the executor or administrator, is an administering upon such property, within the meaning of the foregoing rule.</p> <p>3. Same—when administrator de bonis non may sue his predecessor. An administrator de bonis non, appointed to fill a vacancy caused by the removal of an executor or administrator, may maintain any appropriate action or proceeding against such removed executor or administrator for any waste, mismanagement or breach of duty in respect to the estate during the administration of the latter, but not so where the vacancy was caused by death. In such case the heirs, devisees or creditors alone can maintain the action.</p> <p>4. Same—revocation of letters—power of the county court—and of the proper citation for that purpose. Under section 30, chapter 3, of the Revised Statutes, relating to the administration of estates, the county court has no power or jurisdiction to revoke the letters of an executor or administrator until he is first cited to appear and show cause0 why they should not be revoked.</p> <p>5. On a citation to an executor, requiring him to appear on the first day of the next term of the county court “and present his account of said estate for settlement, ” in which there is no intimation that he is charged with waste or mismanagement, etc., the county court has no jurisdiction to revoke his letters testamentary.</p> <p>6. On a citation, under section 113, of chapter 3, of the Revised Statutes, to an executor, to appear and settle his accounts, the county court has no power to remove him in any case. The power of removal is not incident to the proceeding under such a citation. On refusal to make settlement the next step is an attachment for a contempt of court, and when brought before the court for contempt, if he still refuses, then only is the court authorized to remove him under that section.</p> <p>7. The record of an attempted removal of an executor by the county court, after entitling the case, was as follows: “And now, on the first Monday of the term, it appearing to the court that J. S., the executor, was duly cited to appear this day in court and present his accounts of said estate for settlement, as said executor, and it further appearing to the court that said executor has failed to file an inventory and appraisement of said estate, and has failed to file settlements” and to account for moneys that came into his hands, and “has failed to appear this day and make settlement of his accounts, ” for the causes aforesaid he is hereby removed, etc: Held, that the court, from such recital, the citation being lost, had no jurisdiction of either the person or of the subject matter, for the purpose of revoking the letters testamentary, and that the order was a nullity.</p>

<p>1. Municipal corporation—fire limits—removal of wooden buildings—powers of municipal authorities. Under the general Incorporation law, conferring power-upon municipal authorities to prescribe fire limits, within which wooden buildings shall not be erected or placed or'repaired without permission, and to direct that all and any buildings within such limits, when damaged by fire to the extent of fifty per cent of the value, shall be torn down and removed, the authorities are not permitted, in the first instance, to tear down and remove such a building, or cause the same to be done, but they are empowered only to direct the tearing down and removal of such building, and the person to be so directed is the owner. This must first be done before the corporate authorities may take such stringent measures.</p> <p>2. Rule oe construction—as to powers of municipal corporations. A clause in a charter of a municipal corporation giving power to prescribe fire limits, and direct the removal of all buildings therein which may be damaged to a certain extent, should receive a strict construction in favor of the owners of such buildings.</p>

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

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

Writ oe Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.

<p>Appeal from the County Court of St. Clan county; the Hon. Frederick H. Pieter, Judge, presiding.</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. William H. Snyder, Judge, presiding.</p>

<p>Writ op Error to the County Court of St. Clair county ; the Hon. Frederick H. Pieper, Judge, presiding.</p>

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

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

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

<p>1. Amendment—of record, to obviate error assigned. The clerk, in entering a judgment by default in an action of ejectment, omitted to enter the finding of the court of the plaintiff’s title to the premises. After error assigned in this court for this defect, the plaintiff, on due notice to the defendant, had the record so amended that the judgment found that the plaintiff had a fee simple title to the land, and filed a transcript of the amended record in this court: Held, that the amendment below cured the error.</p> <p>2. Default—admits plaintiff’s title, in ejectment. A default in an action of ejectment admits all the material allegations in the plaintiff’s declaration, including that of the plaintiff’s ownership’ of the land, and no proof of title in such case is necessary.</p> <p>3. Ejectment—damages after judgment by default. On a suggestion of damages on a default in an action of ejectment, the proper practice is to have issued a writ of inquiry to assess the damages. Such writ is required before the damages can be assessed.</p> <p>á. Same—practice—reference to master. On default in an action of ejectment, a reference to the master in chancery to take and report evidence is wholly unnecessary, and amounts to nothing.</p>

<p>1. Dedication—of street—travel and work on vacant land. Tbe public traveled over certain premises as they would over a public street, in a city, from 1850, or earlier, until in 1S66 or 1867, when tbe owner of tbe land closed tbe travel by fencing up tbe street, during wbicb time there was a line showing tbe travel, and tbe lines of tbe gutters were or bad been marked by plowing furrows and scraping tbe earth to tbe middle of tbe street, some of wbicb work was done by tbe municipal authorities, it appearing that at tbe time of such travel tbe premises were vacant and unoccupied, and there were but few bouses or other improvements in tbe vicinity: Held, that tbe facts would not justify an inference of a public street by dedication, or estop tbe owner from denying a dedication.</p> <p>2. Instructions—law may he given on either side. It matters not at whose instance instructions are given, so that if all that is proper in refused instructions is contained in those given at tbe request of tbe other side, there is no error.</p>

Jesse J. Phillips, Judge, presiding. On April 25, 1863, Edward A. D’Arey died, leaving a will, executed in 1860, which was duly proved and established in the county court of the county of Jersey soon after his death.

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

<p>1. Fraudulent conveyance—voluntary settlement good as to subsequent creditors. A voluntary settlement of property by a husband upon his wife can be assailed only by his existing creditors. A party out of debt can make a settlement of his property on whom he pleases, if done in good faith, and any one dealing with him after such settlement is made a matter of record, will have no right to assail it, or say it was fraudulent as to him.</p> <p>2. Where a husband conveyed land to bis wife as a voluntary settlement for her future maintenance, retaining at the time personal property amply sufficient to discharge all his liabilities, without any intention thereby to defraud any existing or subsequent creditors, the same will be good as against such subsequent creditors.</p> <p>3. Evidence'—declarations of grantor to defeat grant. As a general rule a grantor, after he has made and delivered his deed, will not be permitted to disparage his grantee’s title by subsequent declarations made in the absence of the grantee.</p> <p>4. Deed—takes no effect jintil delivered. Where a party took a deed made by her to her son, and a deed from the son to his father, as soon as prepared and acknowledged, neither of which was ever delivered to either her son or husband, but were retained by her with the express understanding that they were not to be delivered unless she died before her husband, and the husband died before the wife, it was held, that the deeds never took eifect so as to vest the title in the grantees, or either of them.</p>

Joseph E. Gaey, Judge, presiding. This is an action of debt for a penalty, brought against the defendant by the city of Chicago, and he was summoned to answer a charge of “keeping carriages and other vehicles for 'hire without a license for the same, in violation of section 1146 of the revised ordinances of the city of Chicago.” The police justice found the defendant guilty as charged, and entered a fine against him of $50, which, on an appeal to the Criminal Court of Cook…

. Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Ogle county; the Hon. John Y. Eustace, Judge, presiding.

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Murray E. 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. Rollin S. Williamson Judge, presiding.</p>

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

Charles Kellum, Judge, presiding. This action was commenced by the village of Genoa against William P. VanAlstine, before a justice of the peace, to recover penalties for the sales of spirituous liquors by defendant contrary to the provisions of the village ordinance. On the trial before the justice of the peace the village recovered a judgment against defendant in the sum of $60, and costs of suit.

<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. Eire Hawes, Judge, presiding.</p>

<p>1. Exeoutob—must qualify, in order to execute power of sale. Executors who fail or refuse to qualify and take out letters testamentary, can not execute a power given them by the will to sell real estate of the testator, and thereby bind the heirs or devisees.</p> <p>2. Statute oe Ebauds—sale of land by an agent. To make a sale of land by an agent of the owner valid under the Statute of Erauds, the contract must be in writing, signed by the agent, under a written authority from the owner, signed by such owner.</p> <p>3. Same—authority to agent by telegraph. Where an owner of land, on being notified of an offer to purchase, and learning all the facts, sends a telegram to his agent to accept the offer and make the sale, he will be bound by a contract of sale made by his agent, as directed.</p> <p>1. Vend olí and eubchaseb—purchaser from agent of one of several owners—of his rights. Where one- purchases the entire title of a tract of land from an agent, who has authority to sell from only one of its several owners, he can not be compelled to receive a part of the title, but he may elect and compel a conveyance for the undivided part which the agent was authorized to sell.</p> <p>5. Same—right of purchaser to possession—and herein, of purchase from agent of one of several owners. The mere purchase of land does not authorize the purchaser to enter into possession without license from the seller. Such license may be express, or implied from circumstances. An agreement or covenant to convey the title of land at some future day, gives the purchaser no right to possession.</p> <p>6. A tract of land belonging to ten heirs was sold by an agent having authority only from one of the heirs, and the purchaser entered into possession. On ejectment against him by a subsequent grantee of all the heirs, he contended that being lawfully in possession, no recovery could be had: Held, that his possession was not rightful, and that a recovery of the possession by the plaintiff was right.</p> <p>7. Same—when an equitable title accrues to the purchaser. A mere contract or obligation to convey land at a future time, on the purchaser performing certain acts, does not create an equitable title in such purchaser. It is only when he performs all acts necessary to entitle him to a deed, that he has an equitable title, which is one that a court of equity will enforce.</p> <p>8. Agency—of the good faith required of an agent—the case of a sale of land. A party being desirous of purchasing a tract of land, made an offer to tbe agents of tbe owner, wbicb was reported to the principal, but before any bargain was made a higher price was offered to the agent, which he reported by telegram. On learning this fact, the first party insisted on telegraphing the owner and learning immediately whether he would accept the first offer. In the meantime the owner had telegraphed to his agent to make no sale without his authority. Knowing these facts, the first party finally induced the agent to give him a written contract of sale, under which he took possession: Held, that the owner was not bound by the sale, because of the bad faith of his agent, which was known to and participated in by the purchaser.</p> <p>9. All agents aré required to act in the utmost good faith with their principals, and it is the duty of an'Sgent to sell property to procure the best price in the market, or at least to make all reasonable efforts to do so.</p>

Joseph M. Bailey, Judge, presiding. This is the second time this case has come before this court. It was first before it at its September term, 1879, and a judgment was then rendered reversing that of the circuit court, and remanding the cause for a new trial. The second trial in the circuit court resulted, as the first, in a judgment for the plaintiff.

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

<p>1. Limitation—act of 1839—payment of taxes by one of several tenants in common. One seeking as tenant in common to avail himself of the possession and payment of taxes by his co-tenant, under the Limitation act of 1839, is not required to first show tjie conveyance or conveyances under which they claim, passed the absolute title. The transfer of the paramount title is not essential to a co-tenancy or tenancy in common.</p> <p>2. Where a tenant in common, holding an undivided half of the title or color of title, pays all the taxes assessed and levied upon the entire interest, it will be presumed such payment was made for the other co-tenant as well as for the one so paj’ing. All acts done by a co-tenant relating to or affecting the common property, will be presumed to have been done for the common benefit of all.</p> <p>3. Same—of the proof of the payment of taxes. Where it is positively sworn by a person that he paid all taxes on a tract of land for seven successive years, and that at the time he had no claim to any other land in the locality, it can make no difference that some of the tax receipts given in evidence do not accurately describe the land.</p> <p>4. Tenancy in common—pa/ramonnt title not essential. Where a conveyance of land is made to two or more persons, and possession is taken under it, the grantees in the deed become tenants in common, although the grantor may have had no title to the premises to convey. In such case an inchoate right is created in the grantees, which, by possession and payment of taxes for the requisite period, will ripen into a perfect title, thereby defeating the former paramount title.</p> <p>5. Same—acts of one tenant inure to all. One tenant in common can not strengthen his own position, or obtain an advantage over his co-tenants; by purchasing an adverse outstanding title in his own name. So the payment of taxes by one inures to the benefit of all. '</p> <p>6. Tenancy by entirety—and tenancy in common, as to the same tract of land. In 1855 a conveyance of land was made to H. J., N. J., his wife, and M. A. J., his daughter, under which H. J., as the head of the family, took possession: Held, that the husband and his wife became seized of an undivided half thereof, as tenants by the entirety, and the daughter of the other half as a tenant in common, and that upon the death of the husband the wife continued to hold the same interest which the two, as one person, had held before.</p> <p>7. Ejectment—parties plaintiee—tenants in common. Under our statute tenants in common, although having unequal interests, may join as XDlaintiffs in an action of ejectment.</p> <p>8. Same—o/ the judgment. In such case it is not error to render a joint judgment in their favor in case of a recovery. Upon such recovery the parties plaintiff will hold by several titles, as they did before, according to their respective interests. The possession, only, is joint, and that is always the case with tenants in common.</p> <p>9. Champerty—conveyance of part interest in land to attorney as his fee for its recovery. A party claiming the undivided half of a tract of land in the adverse possession of another, employed counsel to examine into the facts and bring and conduct a suit for his interest, and in payment of them for such services, and perhaps others, conveyed to them a part interest in the land. The attorneys did not undertake to pay any of the costs or expenses in the maintenance of the suit: Held, that the conveyance to the attorneys was not a champertous contract.</p> <p>10.' To make a case of champerty it is not sufficient to show that a part of the thing recovered was paid, or agreed to be paid, as an attorney’s fee. It must also be shown that the costs and expenses of the suit, or some part of them, are paid, or agreed to be paid, by the champertee.</p>

David McCulloch, Judge, presiding. This was an action of assumpsit, brought by Sabin D. Puterbaugh, against Robert C. Grier, upon an instrument in writing, of which the following is a copy: “Peoria, III., June IS, 1882. “Whereas, an effort is being made by S. D. Puterbaugh to procure the location of the public building of the United States on the comer of Main and Monroe streets, in Peoria, known as the present ‘Post-office Corner;’ and whereas, said Puterbaugh will be put…

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

<p>Dower—effect of a partition. A husband being seized of an interest in land, with his wife, conveyed an undivided half thereof by a deed which failed to release the wife’s dower. Afterward they conveyed the other half interest by a deed in which the wife’s dower was duly released. The proprietors laid the land out into city lots, after which a partition was made between the several owners under a decree of court, to which neither the husband nor his wife was made a party: H'eld, that on the husband’s death the wife was entitled to dower as to the undivided half interest conveyed by her husband in his first deed, and that she was not concluded by the decree of partition, so as to be compelled to seek her dower in the lots set off to the party claiming under her deed which failed to release dower.</p>

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

Arthur A. Smith, Judge, presiding. On November 4, 1876, the bank held the note of Davidson and Davis for the sum of $8000, given six months before that day, and payable on that day, with interest after due at the rate of ten per cent per annum. The debt was really the debt of Davidson, and as between the makers, Davis was merely bound as security for Davidson’s debt.

<p>1. Evidence—identity of party m different suits. In an action of ejectment, the plaintiff sought to support bis claim of title by a decree rendered in a proceeding under the Burnt Records act, against tbe same defendants. A question arose as to tbe identity of tbe plaintiff in tbe two suits, there being a difference in tbe spelling of tbe surname. In tbe ejectment suit, throughout tbe whole proceedings, tbe plaintiff’s name was spelled “Lubukee, ” while in tbe proceedings in tbe other case it was, with one exception, written “Lubeke.” In entitling tbe copy of tbe decree in that case, as tbe same was set out in tbe record in tbe ejectment suit, tbe name was spelled “Lubuke." In tbe two suits tbe names of tbe defendants, tbe Christian name of tbe plaintiff, tbe court in which tbe suits were brought, the appeals in both cases to tbe Supreme Court, and the proceedings therein, all corresponded with literal accuracy. There was no evidence, aside from the diversity in spelling the name, that Lubeke and Lubukee were different persons, or that there'was ever but one proceeding brought against the same defendants under the Burnt Becords act, involving the title to the land in controversy, and in an application for a continuance in the ejectment suit in the trial court, the defendant expressly stated that the plaintiff in that suit was plaintiff in the former suit: Held, in the absence of countervailing evidence, these facts sufficiently established the identity of the plaintiff in the two suits.</p> <p>2. Same—as to variance arising collaterally. Where the question of variance arises collaterally, a much more liberal rule prevails than in cases of variances in instruments sued on from the description in the declaration.</p> <p>3. -Practice—waiver of jury—parties held to waiver at a succeeding term. At the October term of the trial court the record of a suit showed a waiver of a jury, and an agreement to try the cause then at issue before the court alone. The cause, for some reason, was not tried at this term, but was called for trial, on the same issues, at the May term following, when the defendant, after failing to obtain a continuance, demanded a trial by jury, which the court refused, and tried the cause without a jury: Seld, that the court did not err in denying the defendant a jury trial.</p>

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

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

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