Volume 109 — Illinois Reports

<p>1. Payment—what constitutes—accepting promissory note in the distribution of an estate. A person, on the purchase of a lot, signed his father’s name to the notes given to his wife’s father for the money to pay for the same, and had the lot conveyed to his father, and afterward, in the settlement of his wife’s father’s estate, these notes were taken by such person and his wife as a part of her distributive share: Held, that this was a payment of the notes by the son and his wife.</p> <p>2. Witness—competency—one heir against another. On petition for the partition of land by one heir against his two brothers, co-heirs, where one defendant, by his answer and cross-bill, claims the entire title, on the ground that the ancestor held the legal title in trust for him, and the other defendant disclaims any interest, the latter will be a competent witness for his co-defendant, and against the petitioner, both at common law and under the statute.</p> <p>3. Resulting trust—how it arises. A resulting trust arises where one person’s money pays for land, and it is conveyed to another.</p>

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

Rollin S. Williamson, Judge, presiding. This is an appeal from the judgment of the Appellate Court affirming a judgment against appellant for the sum of $3500, rendered in the circuit court in favor of appellee.

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

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

<p>Insolvent debtor—discharge from imprisonment—where malice is the gist of the action. Malice being the gist of an action of trespass for an assault ancl battery, the defendant in a judgment rendered against him in such an action, held in custody under a capias ad satisfaciendum, is not entitled to a discharge from imprisonment under the provisions of the “Insolvent Debtors’ ” act.</p>

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

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

Joseph E. Gaby, Judge, presiding. On the 22d of June, 1861, George E. Cook, being the owner in fee of section 17, town 36 north, range 14 east, in Cook county, subject to the right of way of the Illinois Central Railroad Company, whose line of road passed through and over a part thereof, including the south third of said section, by deed of that date conveyed the same, except so much as was occupied by the railroad, to Robert Innes, who died intestate prior to August 1,…

• Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moban, Judge, presiding. This was a bill for divorce, filed by Helen Firman on March 25, 1880, against Leroy B. Firman, on the ground of extreme and repeated cruelty, and for the custody of the' children of the marriage, and for 'alimony. The defendant answered, denying the alleged acts of cruelty and other ill-usage.

Apeeal 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.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Henderson county; the Hon. John J. Glenn, Judge, presiding. The bill in this case is the ordinary creditor’s bill, and was brought by Mary J. Eads, against Harvey Garrett, Eleanor Garrett, Thomas Garrett, William P. Thompson, Robert M. Thompson, and Calvin R. Thompson.

<p>1. Bill fob an accounting—at what stage of the suit an account may be taken. On bill by one partner against another for an account of the partnership matters, the first thing to be determined is, whether the parties are, in equity, required to account. When this is so found, the case should be referred to the master to hear the evidence and state an account. Until the case comes before the master there is no necessity to take evidence as to the state of the accounts.</p> <p>2. Settlement—receipt as evidence thereof. Where property of one person is sold by another, and a receipt given for a certain sum, even though for a less sum than the amount of the sale, the giving of such 'receipt will authorize the presumption of a settlement of such transaction.</p> <p>3. Partnership—presumption as to equality of interest. Where the fact of the existence of a partnership is established, in the absence of proof to the contrary it will be presumed that the interest of each partner is equal.</p> <p>4. Same—what business embraced in the partnership arrangement— evidence thereof. It was contended by one party to a bill for a partnership account, that there was a partnership between him and the other party in the sawing of lumber, and also in a lumber yard in Chicago, to which the lumber, when sawed, was shipped, while the latter contended that the partnership did not embrace the businéss in Chicago, and as evidence to corroborate his statement showed that he had made annual accounts, in which he credited the firm with the lumber he received at wholesale prices, to which accounts no objection was made: Held, that this was not evidence proving there was no partnership in the business at Chicago. If there was such a partnership, it mattered not what price was credited for the lumber. It could only amount to a memorandum of the amount received, and for which the party receiving should account.</p> <p>5. Same—dissolution—what so regarded. After the formation of a partnership, by which one of the partners was to manufacture lumber and ship the same to the other in Chicago, to be there sold by the latter, each to share equally in the net profits, and the business was carried on for several years, the partner in Chicago refused to furnish any supplies for the manufacture of lumber, and the other refused to ship any more lumber to him, nothing being done by either, after this, recognizing the partnership as existing: Held, that this was as effectual a dissolution as -if the parties had formally and specifically agreed that the partnership should then terminate.</p> <p>6. Where both partners refuse to perform their part of the partnership agreement, there is no rule of law requiring or recognizing a continuance of the partnership. Even if one partner refuses to act under the partnership agreement, the other may elect to consider it as terminated.</p> <p>7. Same—use of partnership property by one party, after dissolution— liability. Where a partner, after a dissolution of the partnership, remains in possession of the partnership property, as saw-mills, manufacturing and selling lumber to others on his own account, he will be required to account to the firm for a reasonable rent of the property, after deducting repairs, taxes paid, and necessary expenses in its preservation; and if he ^appropriates firm property to his own use, he must account for it at a fair cash value.</p> <p>8. Same—excess in capital advanced by one partner—adjustment in respect thereto, on an accounting. Where one partner furnishes more than one-half of the capital employed in a firm, when the partner’s interests in the business and net profits are equal, his co-partner, in adjusting the partnership account, should be charged with six per cent interest per annum on one-half of the excess of the capital so furnished,—or, what amounts to the same thing, the firm should be charged with that rate of interest upon all capital furnished by the one partner more than the other, treating such excess as a loan to the firm.</p> <p>9. Same—adjustment on an accounting and final settlement—in the particular case. On the settlement of a partnership between A and B, in the manufacture and sale of lumber, in which A was to furnish, and did furnish, all the supplies for the manufacture of the lumber, which was shipped to him in Chicago, to be there sold by him as partnership property, A should be charged with all the lumber shipped to him, with the profits derived from its sale, and credited with all expenses of the yard in Chicago, and all supplies furnished by him to B to enable him to operate the mills in making the lumber, and for all firm money he may have appropriated to his own use he should be charged with interest from the time of such appropriation. A should also be charged with all supplies furnished to him by B, and credited with all funds paid out by him for logs, etc., in operating the mill, and if he still retains any of the firm money, or has used any of its property after the dissolution, he should be charged with it, and interest from the time of such appropriation to his own use; and each of them will be entitled to a credit for any means advanced by him in reconstructing or repairing the mill, or for its improvement.</p> <p>10. Same—partner’s right to charge for services. In the absence of any agreement to the contrary, partners will not be entitled to charge the firm for their services, time or skill in conducting its business. The presumption is that each partner is required to use his skill, time and labor for the promotion of the interests of the firm.</p>

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

<p>1. Criminal law—a detective participating in a criminal act—want of felonious intent. On an indictment for burglary, for breaking and entering a dwelling house with intent to rob or steal, the intent with which the defendant enters the house is the gist of the charge, and if the proof does not show the felonious intent charged, no conviction can rightfully be had.</p> <p>2. On the trial of several persons for burglary, where one claims that although he accompanied the others, and with them entered the house, he was acting merely as a detective, to fasten guilt on his associates, if the evidence tending to prove this fact is sufficiently strong to raise a clearly well founded doubt of his guilt, he ought to be acquitted.</p> <p>3. Same—evidence admissible to show the intent. One of several persons being tried on a charge of burglary, claiming that he was acting as a detective as to the others, testified to being approached by one of his co-defendants and requested to take a part in the proposed burglary and robbery. He was then asked whether or not he advised with one B., a justice of the peace, in reference to going with the parties intending to rob, which question the court refused to allow to be answered: Held, that the exclusion of the proposed evidence asked for was clearly erroneous. The giving of notice to a peace officer of an intended burglary or robbery, by one seemingly acting with others, tends strongly to negative any criminal intent on his part in afterward accompanying the real burglars.</p> <p>4. Same—sufficiency of evidence as to the absence of a felonious intent. Three persons were indicted for burglary, and convicted. It appeared in evidence that one of them, before the burglarious act was committed, gave information of the intended crime to a justice of the peace, and on the day the crime was in fact committed, informed a constable and others of the same, giving the names of all the persons concerned, and of the time and place of the proposed crime, and requested the constable to take steps to have the other defendants arrested, and that he accompanied his co-defendants to the place assigned and seemingly participated with them in their acts, and that on the following morning he gave such full information of the affair as led to the arrest of the parties. The jury found all the defendants guilty: Held, that under the facts of the case the conviction of the party giving such information, and who claimed to have acted as a detective, could not be sustained.</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. Ninian M. Laws, Judge, presiding.</p>

John Burns, Judge, presiding. This action was brought by the Chicago, Bock Island and Pacific Railway Company, against the Peoria and Pekin Union Railway Company, to recover the value of a freight car destroyed by fire.

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

<p>Writ of Error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

<p>1. Insurance—construction of policy—most favorably to assured. A policy of insurance will be construed most favorably for the insured in case of uncertainty in its terms, as the language used therein is that of the insurer.</p> <p>2. Same—warranty against incumbrances—effect of giving a subsequent mortgage. A policy of insurance issued on personal property on December 17, 1878, contained a clause that a special survey and application made to a different company, dated February 2, 1878, should form a part thereof, and a warranty on the part of the assured of the conditions, situation or occupancy of the property, and making the policy void for any omission to make known every fact material to the risk, etc. On July 11, 1878, the insured had executed a chattel mortgage on the property: Held, that the representation and warranty had reference to the facts and the condition of the property at the date of the application, and not that of the issue of the policy in December, 1878, and hence there was no breach of the warranty against incumbrances.</p> <p>3. Same—agreed state of facts—omission to state the value of the property insured. A stipulation of facts for the Appellate Court in an action on a policy of insurance failed to state the value of the property destroyed, but gave a description of the same.-^as, a two-story frame building, with additions, and an engine and boiler house adjoining, used as a planing mill and sash, door and blind factory, and an engine and boiler, and connections, and fixed and movable machinery, shafting, belting, gearing, pulleys and tools, and stock consisting chiefly of lumber and sash, doors and blinds, situated in the town, etc.: Held, that in determining whether the court below erred in finding for the defendant, this court would take judicial notice that there was a value to such property. An appellate court not being called on to assess the damages, it was not necessary the agreed state of facts should state the value of the property.</p> <p>4. Same—omission to state the time to be covered by the policy. A policy of insurance on property against loss by fire, in the sum of $500, was silent as to the time the insurance was to cover. Fourteen days after its date the property was destroyed by fire: Held, that proof of the issue of the policy and the loss, made out a prima facie right of action in favor of the assured, and that the insurance would be regarded as being for a reasonable length of time after the issue of the policy.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the circuit court of Kane county; the Hon. C. W. Upton, Judge, presiding.

<p>1. Criminal law—drunkenness, or insanity produced by intoxication, as a defence. Temporary insanity produced immediately by intoxication, furnishes no excuse for the commission of a homicide or other crime, but a fixed insanity does. Whether a party committing a crime is under the influence of a fixed insanity, or a temporary one induced immediately by intoxication, is a question of fact for the jury, and their verdict mil not be disturbed unless it is clearly against the evidence.</p> <p>2. While it is true there must be a joint union of act and intention, or criminal negligence, to constitute a criminal offence, yet when without intoxication the law will impute to the act a criminal intent,—as, in the case of a wanton killing of another without provocation, voluntary drunkenness is not available to disprove such intent, so as to reduce the crime from murder to manslaughter.</p> <p>3. Voluntary intoxication furnishes no excuse for crime committed under its influence, even if the intoxication is so extreme as to make the author of the crime unconscious of what he is doing, or to create a temporary insanity.</p> <p>4. Same—evidence of defendant’s previous habits of intoxication. On the trial of a defendant for murder, when insanity is set up in defence, and he is shown to have been intoxicated at the time of the homicide, evidence of his previous intoxication will be properly received from the prosecution, as bearing upon the question of intoxication at the time of the killing, and of the conduct of the defendant while in that state.</p> <p>5. Same—restraining violence of a prisoner pending motion for a new trial. After the trial and conviction of a prisoner, upon a charge of murder, upon the hearing of a motion for a new trial, which had been continued to a subsequent term, the prisoner broke out into manifestations of rage and violence towards the officers, and attempted to break away. Thereupon handcuffs were placed upon his wrists to restrain him. It was held, there was no error in thus preserving order and protecting the sheriff and his bailiffs from violence, and that it could not affect the justness of the verdict at the preceding term, nor the sentence following the overruling of the motion for a new trial.</p> <p>6. Instructions—slating abstract proposition of law. The giving of an instruction stating an abstract principle of law not applicable in a criminal case, is not error unless the principle stated is erroneous.</p> <p>7. Same—construed, as excluding defence of insanity. On the trial of one for murder, insanity being relied on as an' excuse, the court instructed the jury that if the killing had been shown by the evidence, beyond a reasonable doubt, to have been the act of the defendant, the law presumes it murder, provided they further believe, from the evidence, that no circumstances existed excusing or justifying the act, or mitigating it so as to make it manslaughter: Held, that the instruction was not liable to the objection of excluding the defence or excuse of insanity, but on the contrary, it recognized the fact there might be an excuse for the act.</p> <p>8. And in the same case, an instruction contained a proviso that if the jury further believed, from the evidence, beyond a reasonable doubt, that the blows were struck with malice aforethought, either express or implied, to find the defendant guilty: Held, that the instruction did' not exclude the defence of insanity, which, if it existed, would show an absence of malice aforethought.</p> <p>9. Evidence—in rebuttal—time of admission. The time of receiving evidence is so much a matter of discretion with the court trying a case, that it will not be a ground for reversing a judgment that evidence is allowed in rebuttal which in strictness is not properly so receivable.</p> <p>10. Same—opinions of persons not experts, as to sanity. On the trial of one for crime, the opinions of neighbors and acquaintances of the defendant, who are not experts, may be given as to his sanity or insanity, founded on their actual observations.</p>

<p>1. Error will not always reverse—admission of improper testimony. The admission of evidence having no bearing on the final decision of a case being tried by the court without a jury, and which it can be seen worked no injury to either party, and had no influence on the court in its judgment, will afford no ground for a reversal of the judgment.</p> <p>2. Contract—vendor and purchaser—right of the latter to rescind—as to the time fixed by the contract. A purchaser of land supposed to be coal land, made his first payment, and was to pay the balance in three installments, the first of the deferred payments on the first day of March following, the contract giving him the option to rescind at any time before such first deferred payment should become due, forfeiting his first payment. Prior to that time the vendor extended the time of payment to the first day of April following, to enable further tests to be made to find coal: Held, that the purchaser had the right, after such extension, to rescind at any time before the first day of April,—the time the deferred payment, under the extension, would become due.</p> <p>3. Same—indorsing a release as a condition to the right to rescind. Where the contract gave to the purchaser the option to rescind his purchase at any time before the second payment should become due, by delivering back to the vendor the contract, with an indorsement thereon releasing him from all obligation thereunder, the vendor in such case to retain the amount already paid, the purchaser may rescind the purchase by surrendering the contract to the vendor, and notifying him of his intention to rescind, before the second payment becomes due. In such case the indorsement of his release of the vendor upon the contract is not essential to the right to rescind, as the surrender itself would operate as a release.</p> <p>4. Consideration—for extension of time of payment. A money consideration is not necessary to a contract extending the time of a payment. One promise is a sufficient consideration to sustain another. So where one person does an act beneficial to another, or agrees to do so, that forms a sufficient consideration to support an agreement.</p> <p>5. Where a party had contracted for the purchase of coal land, which he was testing by boring for coal, and before his second payment matured he procured the written promise of his vendor to extend the time of such payment one month, to enable him to further develop its resources, which he agreed to do, so that he might find a purchaser at a price above ordinary farm land, instead of surrendering his contract, as he had the right to do, it was held, that the agreement to make the said tests and to endeavor to find purchasers, so as to enable the vendor to realize the contract price, was a sufficient consideration for the promise to extend the time of payment.</p>

<p>1. Chancery—absence of evidence in support of the findings. Where the chancellor specifically finds all the material allegations of the bill to be true, if the evidence in the cause, upon which the findings of the chancellor may be supposed to be based, is not preserved in the record, so that this court will be unable to say that such findings were not warranted by the proofs, the intendment will be in support of the decree which is based upon the findings.</p> <p>2. Evidence—judicial notice—of the necessity of proofs to establish that of which the court is supposed to have knowledge. Proof is never required of a fact of which the court is bound to take judicial notice.</p> <p>3. A motion was made in a chancery suit that a paper purporting to be a certificate of evidence in the cause, be stricken from the files, upon the following among other grounds: that the paper had never been presented to or signed by the judge who heard and decided the cause, although his name appeared to be signed to the same; that it did not contain all the evidence. The chancellor allowed the motion without having heard any formal proofs in its support. It was held, no proofs were necessary in support of the motion, because the matters alleged as the grounds of the motion were within the personal knowledge of the judge to whom it was addressed.</p>

Joseph E. Gary, Judge, presiding. A petition for mandamus was filed in the Superior Court of Cook county, on the 22d of September, A. D. 1882, in the words following, omitting the caption: “The petition of Philiskey E. Stanley, of Cook county, State of Illinois, complains that on the 10th day of October, A. D. 1879, at a tax sale then being held in said Cook county, by Samuel H. McCrea, county treasurer and ex officio collector of revenue of said county, the petitioner bid…

George Gardner, Judge, presiding. The original bill in this case was filed by Michael Finucan, November 29, 1881, in the Superior Court of Cook county, against John A. Kendig, Murray F. Tuley, Joseph N. Barker, and the children of the complainant, praying that a certain voluntary deed of trust made by the complainant may be canceled, or that it may be reformed.

W. H. Barnum, Judge, presiding. Mrs. Stamposki (the appellant) in 1879 was the owner and occupant, and for many years had been, of a parcel of land in Chicago, consisting of a strip of land two feet wide, adjoining Wabash avenue on the west side of the street, (described as “west half, except street, of lot 7, in Brown’s subdivision, ” etc.,) and of lot 8, in the same subdivision, which adjoined lot 7 on the west thereof.

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. William Brown, Judge, presiding.

Wm. H. Baentjm, Judge, presiding. Ernestine Weaver, widow of Daniel Weaver, lately of Chicago, deceased, on the 3d day of November, 1881, filed in the probate court of Cook county a petition, praying that her award as widow be set off and assigned to her out of his estate.

Richard Prendergast, Judge, presiding. This was a petition by the South Chicago Railroad Company, under the Statute of Eminent Domain, for the condemnation of a strip of ground thirty feet in width, extending north from Seventy-first street, in Hyde Park, through blocks 12, 7 and 4, crossing Seventieth and Sixty-ninth streets, to a lot of land, part of block 4, occupied by the water-works of the village of Hyde Park and town of Lake,—a distance of 1651 feet.

<p>1. Practice—petition for change of venue in chancery case must be preserved in record. A petition for a change of venue is a mere motion made in a case, and, like other motions, does not become a part of the record in a suit in chancery unless embodied into a bill of exceptions, on certificate properly signed by the presiding judge. The rule in equity, in this respect, is the same as at law.</p> <p>2. Same—what is part of record in chancery suit. The pleadings in a chancery case, and exhibits, and depositions in writing, are a part of the record, and no certificate of evidence is required to make them such; but the testimony of witnesses called to testify on the hearing and motions made in the case do not become a part of the record unless preserved by bill of exceptions or certificate of the judge. A petition for a change of venue is not a pleading.</p> <p>3. Burnt Records act—sufficiency of petition. A petition to establish and confirm title under the Burnt 'Records act, which gave a description of the land, and averred that the petitioner had an estate in fee simple therein, giving the chain of title under which he claimed, also the names of the persons in possession and those claiming title in opposition, is good under the statute, and such statute is a valid law.</p> <p>4. Same—petition construed, as showing defendants in possession claiming the fee. A petition to confirm title under the Burnt Records act, in attempting to state the parties claiming title adversely, stated “that the following persons own or claim, as your orator is informed and believes, an estate in fee or some interest in said lands, or some part thereof, as is hereinafter stated, as follows,” giving their names, and stating there were no others claiming the same': Held, that while the language used did not perhaps express the meaning of the pleader as clearly as might have been done, still, in substance the averment was sufficient, amounting to an averment that the parties named were in possession of the premises, claiming the fee.</p> <p>5. Jury—right to trial by, does not extend to equity cases. The present constitution of the State preserves the right of trial by jury in all cases where that right had existed before its adoption. The right to such trial does not extend to cases in equity, but is confined to cases at law. The act known as the Burnt Records act is not, therefore, unconstitutional, in depriving a party of a trial by jury.</p> <p>6. Same—waiver of right by not ashing one.' A party who abides his demurrer to a petition filed under the Burnt Records act, is not in a position to raise the question of the constitutionality of the act, as not giving a right to trial by jury. The defendant in such petition, by not demanding a trial by jury, waives that right, even if entitled to it under the constitution.</p> <p>7. Chancery—no evidence of facts admitted by demurrer is necessary. It is a fundamental rule, applicable alike to proceedings in equity as well as at law, that no proof is required of any fact which is admitted by the record to be true. So when a party admits the truth of a petition under the Burnt Records act, by demurring to the same, and abides his demurrer when overruled, he can not object that no evidence is given in support of the allegations of such petition.</p> <p>8. Same—when evidence is necessary under the Burnt Records act. Under the Burnt Records act, in only two classes of cases is proof required in support of the petition. All other cases are governed by the general rules of chancery practice. When the defendant fails to answer or demur, and a decree is entered against him by default, or when the facts set forth in the petition are put in issue by an answer, the plaintiff is bound to support his petition by evidence, and in either case the evidence must be set forth in the decree.</p> <p>9. The statute requiring the evidence to be set forth in all decrees against married women, etc., was intended to mean all cases where the statute or general rules of chancery practice require evidence to be heard,—or, in other words, where the decree is founded on evidence, and not on the admissions of the parties. It does not require evidence to be set forth when a party interposes a demurrer which is overruled, and he abides the same.</p>

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

Joseph E. Gary, Judge, presiding. This was an action of ejectment, brought by George G. Wilcox, to recover a certain tract of land in Cook county, which it is claimed Julia Gamell (formerly Martin) obtained from the government under an act of Congress approved July 17, 1854, entitled “An act to authorize the President of the United States to cause to be surveyed the tract of land in the territory of Minnesota belonging to the half-breeds or mixed bloods of the Dakotah or…

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding. This was a bill by Herman Englebach, against John M. Daub and wife, Joshua Sprague, and Thomas Mosely, to foreclose a mortgage given by one Conrad Daub to Herman Englebach.

<p>1. Criminal law—sufficiency of evidence to sustain conviction for manslaughter. In this case the defendant was tried upon an indictment for the alleged murder of his wife, the trial resulting in a verdict for manslaughter. Upon a review of the evidence it was considered sufficient to warrant the conviction.</p> <p>2. Practice—time to object to improper evidence. If no objection is made to the admission of testimony on the trial of one for crime, which is alleged to be improper, it can not be urged as error by the defendant on writ of error. The objection can not be considered in this court when made here for the first time.</p> <p>3. Instructions—singling out parts of the facts proved. Instructions asked in a criminal case are properly refused if they direct the attention of the jury to a partial view of the evidence, and direct an acquittal if they believe the facts stated to be true. Much less is there error in refusing such instructions if all that is proper in them is given in others.</p> <p>4. Error will not always reverse—inaccuracy in instruction. A judgment of conviction in a criminal prosecution will not be reversed for a slight inaccuracy in the wording of an instruction for the People, which could have done the accused no possible harm.</p>

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

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

<p>. 1. Jurisdiction—of county court in citation to guardian, and passing upon his accoumt. Where a person has been appointed guardian of three minor children under a single order of the county court, and he has neglected to discharge his duties and failed to render any account, and two of the wards have died without issue, and a curator has been appointed by the proper court in another State, of the surviving ward, such other State being at the time his residence, such curator will have the right to cause a citation to issue against the guardian, and the county court will be invested with jurisdiction to require an investigation of the entire account, and find the whole sum for which he is chargeable, and such finding and judgment being affirmed, by consent, on appeal to the circuit court, is conclusive in any action afterward brought on the guardian’s bond.</p> <p>2. Administration—when not necessary, to collect money due decedent. Where two wards died in 1869, while mere infants, leaving no issue, and being incapable in law of contracting any debts, and leaving their mother and a brother their- only heirs at law, and the mother died April 4, 1873, so that the brother succeeded to any estate they had, it was held, that the brother, or his curator, was authorized by law to collect from their guardian any moneys of his wards in his hands, and that it was not necessary to have an administrator of the estates appointed to collect and receive such money due them.</p> <p>3. Foreign guardian—right to take steps to collect money due his ward. A foreign curator or guardian of an infant may cause a citation to issue against a guardian appointed in this State, and require him to make a settlement of his guardianship, and thereby ascertain the money in his hands belonging to the ward, without first obtaining an order of court allowing such foreign curator to sue for or collect the same, that proceeding not being strictly an action to collect the money. It is sufficient if he obtains such order before he seeks to collect the money.</p> <p>4. Practice—holding on propositions of law on trial by the court. There is no error in refusing certain propositions as law where they do not contain clear and distinct propositions of law, especially one which is a mere argument.</p>

<p>1. Butter and cheese factories—constitutionality of the act of 1883. The act of June 18, 1883, requiring the operators of butter and cheese factories on the cooperative plan to give bonds, etc., is not in contravention of section 6, article 2, of the Bill of Bights, which declares that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall be inviolate.” Such act is but a proper exercise of the police power of the State for the protection of persons intrusting their property to the manufacturer, from fraud and wrong.</p> <p>2. Constitutional law—legislative power—generally. The State, through the General Assembly, has supreme legislative power, except so far as it is limited by its constitution, or such as has been delegated to the general government, or its exercise has been limited by the Federal constitution.</p> <p>3. Same—police power of the State. The police power of the State, when exercised by the legislature in the passage of laws for the protection of life, liberty and property, or laws for the general welfare, has no limitations or restrictions, except such as are found in the constitution.</p> <p>4. Same—laws regulating and in restraint of trade. The fact that a law regulates trade or any business, or in some degree operates as a restraint on the same, does not render it obnoxious to any constitutional provision. The legislature, for the safety, .security and welfare of society, may control the acts of the governed even as to the time and manner of performing labor, and in the manner in which persons shall use their property, to prevent injury to others.</p> <p>5. Same—presumption in favor of validity of laws. Where a law is found upon the statute books, the presumption is that it conforms to the constitution, and that it is a valid enactment, and the courts will not hold it unconstitutional in case of doubt. To authorize the court to hold a law unconstitutional, its repugnance to the organic law must clearly appear.</p> <p>6. Same—conferring judicial power upon ministerial officers—as, authorising clerics to approve bonds. A statute conferring power on the circuit clerk or recorder of deeds to determine the sufficiency of bonds required to be given, is not unconstitutional, as conferring judicial powers on such officers. Such power has been recognized as ministerial.</p> <p>7. Same—special legislation—as applying to a class of persons. A statute is not obnoxious to the constitutional objection that it is not a general law because it applies to a class of persons. It is a general law if it applies to all persons in the State similarly engaged. A law is general, not because it embraces all of the governed, but that it may, when they occupy the same position of those who are embraced in its terms.</p> <p>8. Same—whether subject of act is expressed in its title. The act of June 18, 1883, entitled “An act to require of butter and cheese factories on the cooperative plan to give bonds, and to prescribe penalties for the violation thereof, ” is not obnoxious to the objection that the subject is not embraced in the title.</p>

<p>1. Instruction—construed, as whether assuming a fact or singling out certain facts. In an action on the ease against a railway company, to recover for a personal injury by its employee, based on alleged negligence in using a car the couplings of which were out of repair, the court instructed the jury that if they believed, from the evidence, that the car so used was the property of a company other than the defendant, and that such car was at the time of the alleged injury, and for several months next prior thereto had been, and was, regularly and daily running into and out of defendant’s yard by the permission of the. defendant, and that at the time of the alleged injury, and for several months next prior thereto, the said car was regularly and daily controlled and handled in the defendant’s yard by the defendant, with its own engine and employees, then it was the duty of the defendant to use ordinary diligence to keep said car in a reasonably safe condition for handling, or else require and see to it (if by the use of ordinary diligence the defendant could do so) that such car was kept by its owners in such reasonably safe condition: Held, that the objection to the instruction that it assumed as a fact that the car being out of repair, and being permitted to come into the yard in an impaired condition, was the cause of the injury to plaintiff, was not well founded. Nor was it subject to the objection of singling out and giving undue prominence to a part of the facts in the case, and in omitting reference to any care as required of the plaintiff.</p> <p>2. Where the purpose of an instruction is simply to define the duty of the defendant arising out of facts supposed, and it does not purport to contain a complete hypothesis on which a plaintiff suing for an injury caused by alleged negligence can recover, it is not necessary in such instruction to refer to the duty or supposed negligence of the plaintiff.</p> <p>3. Same—confining the charge to the negligence alleged. In a suit for injury arising from negligence, when there is no proof of any other negligence than that alleged in the declaration, an instruction stating what is negligence is not erroneous, in not confining the right of recovery to the negligence alleged in the declaration.</p> <p>4. Same—modification expressing same idea more fully. An instruction to the effect that a master is not responsible for an injury to an employee for defects in the cars used, caused by wear and tear, until notified of such defects, or has had time and opportunity to learn of such defects, and to have the same repaired, was modified by adding the words, “or such defects shall have existed for such a length of time as to give the proper authorities opportunity to learn of such defect in the due discharge of their duties:” Held, that there was no error in the modification, it being but the expression of the idea in the instruction, as drawn, in a more wordy form.</p> <p>5. Master and servant—what hazard the servant takes. The negligence of fellow-servants is one of the ordinary perils of the service which one takes the hazard of in entering into any employment. But the master’s own duty to the servant is always to be performed. The neglect of that duty is not a peril which the servant assumes.</p> <p>6. Care in supplying safe instrumentalities in the doing of the work undertaken by the servant is a duty the master owes to the servant, and when the performance of that duty is devolved upon a fellow-servant, the master’s responsibility in respect of that duty still remains. In such case the negligence of the fellow-servant is the master’s neglect of duty.</p> <p>7. Same—railway corporation using cars of other companies must see that they are safe, in respect to its employees. A railway corporation, with respect to the cars of other companies which it allows to come into its yard, and which, while there, are to be moved and handled by its employees, is bound to use due diligence and care in seeing that the cars are safe to be so handled by its servants, and such railway corporation can not divest itself of this duty to its servants for their safety and protection, by a contract with such other companies whose cars are used that the latter shall keep them in repair. The general rule is, that the employer is bound to use due diligence in providing and maintaining safe machinery and instrumentalities to be handled and used by his employees, without regard to the ownership of the same.</p> <p>8. Negligence—instruction as to contributory, held bad. In an action to recover damages growing out of negligence of a railway company in the use of a freight car defective in the coupling apparatus, the court was asked to instruct the jury that although they believed, from the evidence, that the plaintiff (an employee to couple cars) had no actual knowledge of the defect in the coupling apparatus of the car, still he was not thereby excused or exempted from ordinary care and diligence; and if they believed, from the evidence, that the plaintiff so far contributed by his own negligence or want of care and caution, as, but for such negligence, the injury would not have happened, they should find for the defendant: Held, that the instruction was faulty in seeming to import that any negligence, even if slight, on the part of the plaintiff, contributing to the injury, might defeat a recovery, and ought to have been qualified by the word “ordinary,” so as to read that the plaintiff “so far contributed to the injury by his own negligence or want of ordinary care and caution.”</p>

<p>1. Chancery—master’s report—of Us sufficiency as to the subject matter of the finding. On bill by the heirs of a deceased partner against the survivor, for an account, and partition of lands held in trust by the survivor, a finding by the master in chancery, to whom the cause was referred to report his conclusions both of law and fact, that the real estate of the firm was divided on a certain day, is equivalent to a finding that all the lands of the firm were divided, and that none others were held in trust for the late firm.</p> <p>2. Same—as to the basis of the master's report—whether it sufficiently appears. Where a master’s report of a partnership account did not state how he made up his statement of the account so as to arrive at the balance due, but showed that two expert accountants had made a very careful examination of the books, and that the conclusion they reached differed widely from his own, and the court sustained an exception to his report, it was held, no error in sustaining the exception, as the record failed to show that the calculation of the accountants was on an erroneous basis, or whether the court heard other evidence, or did not examine the books.</p> <p>3. Same—;finding the facts in the decree—presumption—and what is matter of record. In a chancery case it will be presumed that the finding of the facts by the court, recited in the decree, were warranted, unless the testimony found in the record shows to the contrary. A party dissatisfied with the finding of facts upon which the decree is based, must bring the testimony before this court that will show that such facts were erroneously found, otherwise it will be presumed the findings were warranted.</p> <p>4. All depositions on file in a chancery case, and the master’s report of evidence, become a part of the record without any certificate of the court. But -when the court, in its decree, finds the facts, from the evidence and the depositions and master’s report, and the evidence found in the record does not sustain the finding, it will be presumed other evidence was heard, where there is no certificate of either the master or the court that the record contains all the evidence.</p> <p>5. Same—hooks of account—how to he preserved in the record. It being impracticable to make the books of accounts of a firm a part of the record, so that this court may consider them, only abstracts of their contents should properly be incorporated in a certificate of evidence. When the account embraces many items running for many years, it seems the court may hear the evidence of expert accountants, and receive abstracts made by them from a careful examination of the books, in stating an account.</p> <p>6. Settlement—of partnership accounts—what will amount to a settlement. It is not absolutely necessary that a balance should be struck of partnership accounts before a final settlement can be made by the parties in interest. A satisfactory conclusion on which to base a final settlement may be reached otherwise, and if such a settlement is had, there being no fraud, concealment or overreaching, in which the parties acquiesce for many years, it may be regarded as final, and a bar to a bill for an accounting.</p> <p>7. A partnership was dissolved in 1859, and one of the partners died in April, 1860, and afterward, in December, 1869, the heirs of the deceased partner, then all of age, had a settlement with the survivor, of all the partnership assets and effects, fairly made, without any fraudulent concealment, and a partition was made of the lands belonging to the firm, the heirs taking possession of their share, which settlement was acquiesced in by the heirs without any expression of dissatisfaction, until in 1875, when some of them thought they had been overreached, whereupon it was agreed the books should be submitted to two accountants, mutually selected for their skill in such matters, who, after much labor and time spent, reached a conclusion showing the settlement in 1869 was not far from right, but not being satisfactory to the heirs, they filed a bill for an account in February, 1876: Held, that these facts justified a decree finding a final settlement of the partnership matters had been made in 1869, and dismissing the bill.</p> <p>8. Stale claim—in equity. A mercantile partnership was formed between A and B in 1841, which was continued actively until 1859, when their stock of merchandise was sold, and by mutual consent their business as general partners ceased. On April 19, 1860, A died, leaving heirs, the youngest of whom became of age in 1864. On February 24,1876, the heirs of A filed a bill against B, the surviving partner, for a settlement and statement of the partnership accounts, to which an answer was filed setting up the five years’ Statute of Limitations, and also laches: Held, that aside from the Statute of Limitations, a court of equity would treat the relief sought as barred, from the staleness of the demand.</p>

John H. Williams, Judge, presiding. William Cope brought to the February term of the McDonough circuit court an action of debt upon an arbitration bond, against Francis T. Emery and S. S. Stearns, the latter being a surety thereon.

<p>1. Sale under trust deed—of the notice—after promise to make demand before sale. Where the agent of the legal holder of a note secured by deed of trust containing a power of sale, and also agent of the trustee, promised the owner of the land, upon whom rested the duty to pay the note, after its maturity, that it need not then be paid until demand thereafter was made, and that such owner should have personal notice when payment should be required, and the trustee, without any personal notice or demand of payment, at the request of the holder of the note, advertised the property for sale in a newspaper published in a remote part of the county, having but a limited circulation outside of the township where it was published, and a sale was made by the trustee of the land to a son of the legal holder of the note,' and a brother of the trustee, it was held, that the sale was invalid, and was properly set aside at the costs of the defendants.</p> <p>2. In such a case, after having lulled the party who was to pay the note into security, the holder of the note could not, in violation of his promise, proceed to have the mortgaged property sold without personal notice; and the pretended notice by publication was a sheer mockery, and was in fact no notice, the publication being so made as to avoid giving notice.</p> <p>3. Same—setting aside sale on terms—whether redemption will be required. On bill filed to set aside a trustee’s sale of land under a power in a trust deed, on the ground of its having been fraudulently made, in violation of an express promise, and for want of proper notice, there is no error in not requiring the complainant to pay the money necessary to redeem from the trust deed, where no cross-bill is filed by the creditor.</p> <p>4. Notice—by possession of land. The possession of mortgaged premises is notice of the occupant’s equities to a person purchasing the same at a trustee’s sale under a power of sale, and such purchaser takes subject to whatever equitable rights the party in possession may have to avoid the sale.</p>

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

Writ of Error to the Circuit Court of Edgar county; the Hon. J. W. Wilkin, Judge, presiding. The original bill in this case was brought by Edward B. Munsell, to foreclose a mortgage made by John Morton and Asher Morton, to secure their indebtedness to complainant. To the bill to foreclose, the mortgagors and George W. Handly were made defendants.

<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>1. Evidence—on question of damage from a nuisance. On the trial oí an action on the case, brought by the owner of a brewery, against the defendant, the owner of a starch factory, located near the brewery, to recover damages for polluting the waters of a stream that ran through a part of the plaintiff's premises, by the flow of slops into the same, and for befouling the air with unhealthy and unsavory odors, arising from the using and operating the starch factory, the court allowed the plaintiff to be asked, when testifying as a witness, the difference in the sales of his beer before and after the construction of the starch factory: Held, that the question was properly allowed, the other proof showing that the flow of the slops from the sewer affected the atmosphere at the brewery, and the plaintiff’s theory being that the atmosphere so polluted affected the beer, and rendered it unsalable. Such theory was, however, not conclusive, but was open to proof that other causes, and what, affected the sales of the beer.</p> <p>2. Instruction—omitting to refer to the preponderance of the evidence. It was objected to instructions for a plaintiff, that they failed to inform the jury that they must believe the propositions of law therein laid down, from a preponderance of the evidence. The jury were instructed, on the part of the defendant, that as to each and every alleged ground of action it was incumbent on the plaintiff to make proof by a clear preponderance of evidence: Held, that the defendant had no just ground of complaint.</p> <p>3. Same—as to measure of recovery, construed. It was objected to one of plaintiff’s instructions, given in an action to recover damages for befouling and polluting the water of a stream across plaintiff’s premises, and polluting the air with unhealthy odors, from the discharge of slops near plaintiff’s premises, that it allowed the jury to assess damages for “such amount as they might find from the evidence, ” instead of limiting them to such an amount as would compensate for the injury sustained. The gist of the instruction was, that if the defendant injured the plaintiff by the acts named, he was liable for such injury, whether he knew it was being done or not: Held, that the instruction could only be reasonably understood as announcing a right of recovery for, and to the extent of the loss sustained by, the wrongful act, and was not erroneous.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.

<p>1. Impeachment of witness—as to the mode. The proper mode of inquiring into the general reputation of a person who has given testimony in a cause, for truthfulness, is to ask the impeaching witness whether he knows such person’s general reputation among his neighbors for truth and veracity, and what that reputation is. In the English courts the course is, further, to inquire whether from such knowledge the impeaching witness would believe that person under oath. While this court has adopted the English rule as correct, it has never held, and such is not the law, that it is compulsory that the opinion of the witness shall be asked or stated.</p> <p>2. The general practice in the circuit courts of this State has been, to leave it optional with the party calling the impeaching witness, to ask the opinion of the witness, or not, as he may think proper; and this practice is correct, and in harmony with the current of authority upon the question.</p> <p>3. Attorney and client—of dealings between them. The law does not prohibit an attorney from purchasing property from his client when the transaction is fair and honest, and in no manner tainted with fraud, undue influence or corruption.</p> <p>4. Attachment—whether the debtor has such an interest as will be subject to attachment. A mere stockholder in a corporation procured his attorney to purchase the indebtedness of the corporation, which was secured by a deed of trust on the property of the corporation, the attorney advancing his own money for that purpose, and the corporation being unable to pay the debt, he caused a sale of the property to be made, at which the client became the purchaser, but paid nothing, agreeing to pay the attorney within sixty days or convey the property to him, and the trustee’s deed, though executed, was never delivered to the purchaser, but left with the attorney to whom the purchase money was coming, and the purchaser being unable to pay the amount of his bid, conveyed the property to the attorney according to his prior agreement, which conveyances were recorded before the levy of an attachment issued against such purchaser. It was held, that such purchaser had no title, legal or equitable, subject to the attachment, his only interest being his bid, and his deed being a transfer of that.</p> <p>5. Sale under trust deed—inadequacy of price. The fact that a person acquires property, through a sale under a power in a deed of trust, at less than its real value, when the sale was at public vendue, where all wishing might bid, and it was conducted legally, will not impair the validity of the sale.</p>

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

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

<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. C. W. Upton, Judge, presiding.</p> <p>This action was commenced by Margaret Dumser, before a justice of the peace, against the Chicago, Milwaukee and St. Paul Railroad Company, to recover the value of a cow killed by the cars or engine on defendant’s road. On the trial before the justice of the peace plaintiff recovered a judgment against defendant. On the appeal of defendant a trial de novo was had in the circuit court, where plaintiff again recovered a judgment. This latter judgment was affirmed in the Appellate Court for the Second District. A majority of the judges of the Appellate Court having certified that in their opinion the case involves questions of law of such importance, on account of principal and collateral interests, as that it should be passed upon by the Supreme Court, defendant brings the ease to this court on its further appeal. The judges of the Appellate Court also certify the ground of granting the appeal, which is, the “great importance of having a decision of the Supreme Court upon the question as to whether, under the existing laws of Illinois, a railway corporation is obliged to fence the depot grounds and switch limits at all stations, except at the crossings of public roads and highways, and whether such portions of cities and incorporated towns and villages as are or may be laid out and platted into lots and blocks, etc., as appear, only required by section No. 1 of the act in relation to fencing and operating railroads, approved March 31, 1874.”</p>

<p>1. Contracts—rule of construction—as to meaning of words. Words in a contract are to be construed according to their strict and primary acceptation, unless from the context, and the intention of the parties to be collected from it, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect.</p> <p>2. Same—in case of doubt, in whose favor to be solved. If from a contract for a conveyance of a right of way upon a certain condition, it is doubtful what is intended by the words as to the condition, the doubt must be solved in favor of the grantee.</p> <p>3. Same—a contract construed as to location of right of way and railroad. The owner of lands gave a bond to a railway company proposing to construct a railroad, obligating himself to make a deed for a strip of land fifty feet wide on each side of the center line of the road, as the same might be located upon and over his lands, which were described, provided said railroad should be built west and north of his dwelling house then occupied by him “on said premises,” when the road was completed, etc., which also provided that unless the road was constructed so that cars might run over the same by a day named, it should become void. Under this, the company entered upon a part of the premises, without objection by the owner, and constructed its road in the time named, west and north of the dwelling house, but that part of the road north of the house was not built on such party’s land. It appeared that his house was situate only two hundred feet south of his north line: Held, that the condition of the bond was complied with if the road was built west and north of the house, without regard to the ownership of the land on which it was built, and that the words, “on said premises,” qualified the word “house,” or should be regarded as merely redundant.</p> <p>4. Ejectment—plaintiff must recover on the strength of his own title— bond for a deed as a defence. The owner of land gave a railway company a bond for a deed for a strip of land over his premises, to be given on the performance of certain conditions, which were performed, and a different company operating the road was sued by him in ejectment. It was objected that the defendant had not shown either a lease or a deed for the right of way from the original company: Held, that the rights of the defendant could not concern the plaintiff, who must recover, if at all, on the strength of his own title, and that the bond was a good defence to the action.</p>

Francis Goodspeed, Judge, presiding. In 1844, William Whipple took possession of and broke eighty acres of canal land, situated in Grundy county. In 1845 he built a house upon it. In June, 1846, he moved his family into the house, and continued to reside there until 1882, with the exception of the years 1873 and 1874, during which he rented the place and received the rents therefor. During all this time he held undisputed possession, claiming as owner.

Murray F. Tuley, Judge, presiding. On the 25th of April, 1878, Stephen Hoyt, late of Salem, Essex county, Massachusetts, died testate, and on the 20th of the following month his will was duly proved and admitted to probate in the probate court of said Essex county.

<p>1. Continuance—absence of witnesses—materiality of the proposed testimony. Preliminary to the trial of two defendants on a charge of murder, alleged to have been committed on the night of the 10th of July, by compelling the deceased to jump from a railroad car while in rapid motion, the court refused a continuance on behalf of the accused, asked on the ground of the absence of two witnesses residing in Indiana, by whom the defendants expected to prove that such witnesses saw the defendants at the town of Godfrey, in Madison county, Illinois, on the evening of July 9, a place distant some twenty-five or thirty miles from where the offence was charged to have been committed: Held, no error, as the affidavit failed to show any incompatibility between the fact alleged, as expected to be proved, and the commission of the offence by the defendants. The absent testimony was immaterial.</p> <p>2. Criminal law—what constitutes murder—of the intent. Intent to kill does not enter into the definition of murder. It is enough if the unlawful killing be done with malice aforethought, either express or implied.</p> <p>3. If a party of men board a railway car, and while the train is running draw deadly weapons on a passenger, and make him hold up his hands while they rob his person, and then by threats and intimidation cause him to jump from the ear door, they commanding him to do so, and he is thereby killed, they will be guilty of murder. In such case it is not essential that death should be the probable and reasonable result of the act the deceased is forced to do. It is sufficient that death or great bodily harm was the natural result. Forcing a person to do an act which causes his death, renders the death the guilty deed of him who compelled the deceased to do the act.</p> <p>4. Malice may be inferred when an act unlawful in itself is done deliberately, and with intention of mischief or great bodily harm to those on whom it may chance to light, if death is occasioned by it. By the statute, if an involuntary killing shall happen in the commission of an unlawful act which in its consequences naturally tends to destroy the life of a human being, or the act is committed in the execution of a felonious intent, the offence is declared murder.</p> <p>5. Same—of the evidence against one charged with murder. On the trial of two persons on a charge of murder committed on July 10, 1883, by compelling a passenger to jump from a railway train while it was in motion, two witnesses for the People were allowed to testify, over an objection, that they saw the defendants, and two others, with whom the defendants were indicted for the murder, together on the railroad track on July 8, 1883, and that one of them had a revolver: Held, that there was no legal objection to this testimony.</p> <p>6. In the same case, the State’s attorney, in the examination of one of these witnesses, produced a watch chain, and the witness said it was his chain, and that he had it on when he met the defendants and the two others who were indicted, on the evening of July 8, 1883,—which was objected to: Held, that while the evidence as to the watch chain might properly enough have been excluded as irrelevant, yet it was not sufficiently harmful to the defendants to make its admission material error. It would not justify an inference that the witness had been robbed by the four men.</p> <p>7. -So, too, one of these witnesses," in answer to the inquiry whether there was anything unusual to cause him to remember the time of seeing one of the defendants on the morning of July 8, 1883, said a man was found dead that morning,—a stock man, who had fallen from a train: Held, that the concluding part of this evidence repelled any inference that this man, too, had been thrown from the train by the same men, and its admission was not error.</p> <p>8. Same—of a reasonable doubt. On the trial of one for murder, an instruction for the defence that the law in regard to reasonable doubt applies with greater force to circumstantial than to other classes of evidence, is erroneous, and properly refused.</p> <p>9. It is error in an instruction for the defence to say, that if the circumstances are capable of being explained on a theory consistent with the innocence of the accused, the jury should acquit. A theory might be assumed that the testimony as to his guilt was false, and on such a theory there could be an explanation of the circumstances consistent with his innocence.</p> <p>10. Same—and herein, of the policy that many guilty men should escape rather than one innocent person should suffer. On the trial of two persons upon a charge of murder, the defendants asked the court to instruct the jury that the policy of the law is, that it is better that ninety and nine, or any number of guilty persons, should escape, than that one innocent man should be convicted, and that it is not sufficient to authorize a conviction that the greater weight or preponderance of evidence supports the allegations of the indictment,—which the court refused to give: Held, that the instruction was properly refused, there being no policy of the law on the subject, or for the consideration of the jury; that it is not within the purpose of the law that any guilty person should escape or any innocent one be convicted; and that if the greater weight or preponderance of the evidence be such as to satisfy the jury, beyond a reasonable doubt, of the defendants’ guilt, then it would be sufficient to authorize a conviction.</p>

C. B. Smith, Judge, presiding. This was an action of ejectment, brought by Jairus C. Sheldon, against Charles H. VanVleck and Frank VanVleck, in the circuit court of Champaign county, to recover a tract of land consisting of forty acres. The court, to which the cause was submitted for trial, without the intervention of a jury, found the issues for defendants, and rendered final judgment against plaintiff.

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

<p>1. Evidence—defence at law—not availing on creditor’s hilt—to impeach the judgment sought to be enforced. On creditor’s bill to set aside certain conveyances of land made by the debtor as in fraud of creditors, evidence tending to show that the debtor had been overreached in the transaction out of which the indebtedness was created, and induced to contract the debts upon which the judgments were recovered, by false representations made by some of the complainants, is not admissible. Whatever defence, if any, existed, should have been made in the actions at law.</p> <p>2. Same—burden. On creditor’s bill to set aside certain conveyances of the debtor, and from his grantees, as made in fraud of creditors, the burden of proving that the conveyances are fraudulent, and were made with intent to hinder and delay the creditors of the grantor, rests upon the complainants.</p> <p>3. Same—calling adverse party to testify—his entire testimony, favorable or unfavorable, to be considered. Complainants, in a creditor’s bill seeking to set aside certain conveyances of their debtor as fraudulent, called the defendants, who all testified that the sales were in good faith, for a valuable consideration, which was fully paid, but their answers as to where they obtained the money with which to make the purchases were very unsatisfactory. Aside from their testimony there was no evidence tending to impeach the conveyances in any considerable degree, and it was insisted they ought not to be believed: Held, that if their testimony should be received, that which made for them as well as that which was against them must be considered, and that the complainants were not entitled to the relief sought.</p>

<p>Writ of Error to the Circuit Court of Franklin county; the Hon. Daniel M. Browning, Judge, presiding.</p> <p>The bill in this case charges, in substance, that William Pry, the father of John W. Pry, the complainant, on the 13th of August, 1862, enlisted as a soldier in the service of the United States, for three years; that about the 1st of May, 1864, the former, being then with the army in the State of Georgia, wrote to John Pry, Sr., the father of the said William, and grandfather of complainant, at Frankfort, Franklin county, this State, directing him to sell and convert into money certain personal property then in his possession, and belonging to the said William, and to invest the proceeds thereof, together with about $50 then in his hands belonging to the said William, in the south-east quarter of section 19, town 7 south, range 3 east, of land in said county, belonging to one Bailey Martin, being, of the value of $200, and also directing him to have the deed for the land made jointly to complainant and Hamilton Pry, a minor son of the said John Pry, Sr.; that in pursuance of these directions the said John Pry, on the 5th of August, 1864, purchased of the said Bailey Martin the above mentioned quarter section of land, at the said sum of $200, and paid for the same with the proceeds of said property and the money then in his hands belonging to the said William, as above stated; that the said Bailey Martin and wife, by a good and sufficient deed of that date, conveyed the land in question to complainant and the said Hamilton, in conformity with the directions of 'the said William, and that upon its execution and acknowledgment it was handed by the grantors to the said John Pry, Sr., to be kept by him for the use of the grantees therein, complainant- being then an infant about three years of age, and the said Hamilton, his uncle, near seventeen; that the said Hamilton Pry, in the month of September, 1864, died intestate, without any children or descendants of children; that shortly after Hamilton’s death, and before the deed from Martin to him and complainant had been put on record, the said John Pry fraudulently erased the “W” in complainant’s name, and the name of Hamilton Pry altogether, from said deed, thereby making it in form a deed to himself, instead of to complainant and the said Hamilton, as originally written; that afterwards, to-wit, on the 22d of August, 1871, with a like fraudulent purpose, he caused the same, in its altered form, to be recorded as a deed from Martin and wife to himself; that after the said William’s return from the army, and before said fraudulent deed was recorded, to-wit, on the 2d of March, 1865, the said John Pry, Sr., by quitclaim deed of that date, fraudulently conveyed to the said William the west half of said quarter section of land, and again on the 20th of September, 1871, by a like deed, conveyed to him another portion of the land in controversy; that on the 7th day of February, 1872, the said John conveyed, by quitclaim deed to John Pry, Jr., a son of the said John Pry, Sr., a portion of the east half of said quarter section. The bill also shows that various other parties were in possession of different parts of said tract of land, all of whom claim title, mediately or immediately, from said John Pry, Sr., through deeds executed since the said 5th day of August, 1864, when the same was conveyed by the said Martin and wife to complainant and the said Hamilton Pry, as heretofore stated, all of whom are made parties to the bill. The bill prays to have the original deed from Martin and wife, and the record thereof, corrected, and that the title to said lands be confirmed in complainant; that said deed in its altered form, and all subsequent deeds from the said John Pry to said land, or from those claiming through him, be declared null and void, and set aside as clouds on complainant’s title, and that the defendants be required to account for the rents and profits.</p> <p>The defendants filed a joint and several answer to the.bill, denying the alteration and forgery therein charged, and the defendants other than John Pry, Sr., who disclaimed all interest in the land, set up the defence they were purchasers for a valuable consideration, without notice of complainant’s rights. To this answer a general replication was filed, and the cause was heard upon bill, answer, replication and proofs, resulting in a decree finding that the land in question was conveyed by Martin and wife, on the 5th of August, 1864, to complainant and Hamilton Pry, and that John Pry, Sr., subsequently altered and changed the deed in manner and with the intent charged in the bill; but further found that all the defendants other than John Pry, Jr., were purchasers for a valuable consideration, without notice of complainant’s rights, and for that reason dismissed the bill as to them. As to John Pry, Jr., the decree was in conformity with the prayer of the bill, the court having found that he purchased with knowledge of the alteration of Martin’s deed. The complainant prosecutes this writ of error to reverse the decree of the circuit court in dismissing the bill as to part of the defendants, and in subordinating his rights to theirs on the ground they were,innocent purchasers.</p>

<p>1. Banking—right of application of depositor’s funds by the bank. A banker has no right to apply money on deposit in his bank to the payment of a note of the depositor payable at the bank, without the order of the depositor.</p> <p>2. Bank check—what so regarded. An instrument drawn by a depositor on a bank, in the following form, after giving the date and the name of the bank: “Pay to A and B, for account of C. & Co., ten hundred and eighteen 23-100 dollars,” and signed by the depositor, is a valid bank check, and will operate to transfer to the payees an amount of the drawers’ funds on deposit, equal to the sum named on its face. The words, “for account of C. & Co.," do not change its character as a check. A bill or note, without at .all affecting its character as such, may state the transaction out of which it arose, or the consideration for which it was given.</p> <p>3. Parties—who may sue on bank check made payable to attorneys. A bank check, payable to attorneys on account of a debt due from the drawers to the clients of the attorneys, vests the legal title in the payees named, as trustees for the clients, and a suit thereon against the bank is properly brought in the names of the payees.</p> <p>4. Actions—pursuing several remedies at the same time. A debtor gave his check on a bank for the amount of his indebtedness, payable to the attorneys of the creditor, which the bank refused to pay, alleging an agreement of the debtor to apply his deposits on other indebtedness. It was held, that the bringing of an action by the creditor against his debtor did not estop him from bringing an action on the check in the name of his attorneys, the payees, against the bank. Although the law will not allow a party to have more than one satisfaction for his debt, yet in many cases it permits him to carry on several remedies at the same time.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.</p>

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

<p>1. Intoxicating liquors—permit to druggists—what so regarded. Where a village ordinance prohibits the sale or giving away of intoxicating liquors within the limits of the village, concluding with a proviso that druggists may sell such liquors for purely medicinal, chemical and sacramental purposes, and fails to provide for the issue of any written permit, this will, within the meaning of the statute, be of itself a permit to all druggists in the village to sell such liquors for the purposes named.</p> <p>2. Same—bond not required—under such permit. A druggist having a permit to sell intoxicating liquors for medicinal, chemical and. sacramental purposes, from city or village authorities, is not required to give the bond of $3000 required by section 5 of the Dram-shop act, of persons taking out licenses to retail such liquors, and he may sell such liquors for the purposes above stated without giving such bond.</p> <p>. 3. Same—former decision. The questions involved in this case did not arise in Wright v. The People, 101 Ill. 136, and any general expressions to be found in the reasoning in that case, which may seem not to be in entire harmony with the conclusion here reached, must be limited in their effect by the case then before the court.</p>

<p>1. Statute—as embracing more than one subject—liberal construction. The prohibition in section 13, article 4, of the constitution of 1870, that no act thereafter passed shall embrace more than one subject, is the same as that in the constitution of 1848 in respect to private or local legislation, and it has uniformly been construed liberally in favor of the validity of enactments. The fact that many things of a diverse nature are authorized or required to be done, is unimportant, provided the doing of- them may fairly be regarded as in furtherance of the-general subject of the enactment.</p> <p>2. Curative legislation—how far allowable. If an act omitted to be done, creating a defect in a proceeding, be such that the legislature might have dispensed with its performance by a prior statute, then a subsequent statute dispensing with it retrospectively must be held valid, especially when the proceeding is not complete before the defect is so cured.</p> <p>3. Drainage law—validity of act of 1879, as embracing but one subject. The act entitled “An act to provide for the construction, reparation and protection of drains, ditches and levees across lands of others, for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts,” approved and in force May 29, 1879, is not liable to the constitutional objection that it embraces more than one subject. The subject of the enactment was the protection of land against surplus water,— or, in other words, directing the flow of water for the protection of lands; and this is equally accomplished by drains and ditches, or by levees. The fact that the title to the act unnecessarily specifies the motives or purposes in aid of which it is enacted, and to some extent the means by which the flow of water is to he directed, is not objectionable. At most it is but unnecessary particularity.</p> <p>4. Same—of the amendatory act of 1883, in the same regard. The act of May 24, 1883, being an act to amend the Drainage law of 1879, is not subject to the objection that it contains more than one subject. Its object is the same as that of the act of 1879,—the protection of lands against surplus water,—and but supplements omitted détails essential to the efficacy of that act.</p> <p>5. Same—power under constitution—as to the mode of creating drainage districts—and the agencies to be employed and conditions prescribed in respect thereto. The words in the amendment to section 31, article 4, of the constitution, “provide for the organization of drainage districts,” etc., are to be referred to the General Assembly, and not to the owners of lands,— in other words, the General Assembly may “provide for the organization of drainage districts, and vest the corporate authorities thereof with power, ” etc.; and there is not any limitation or restriction upon the legislature as to the agencies to be used in the creation of such corporations, and it may make the finding of certain facts by the county court authorize the formation of such a district and corporation.</p> <p>6. A statute requiring a petition for the formation of a drainage district to be presented to the county court, on notice, and the finding of certain prerequisite facts necessary to its creation as a corporation, is not invalid. It is the statute itself which brings into being such corporation, and not the court. In such case the statute becomes operative when the prescribed facts are found, and the finding is entered of record.</p> <p>7. Same—of facts preliminary to organization—finding conclusive in collateral proceeding—remedy to question authority of commissioners. Where the county court has found, by its judgment entered of record, that the requisite petitions had been presented to it for the formation of a drainage district, upon proper notice, and shows the appointment of commissioners, under section 5 of the Drainage act, after the finding of the necessary facts, and the confirmation of the report of the commissioners after due notice of the time of hearing the same, such commissioners, even though proper notices were not given, will become a corporation de facto, and its existence can not be questioned collaterally, as in an attempt to defeat an application for judgment upon unpaid special assessments made by the corporate authorities; and their authority to act can only be questioned by quo warranto.</p> <p>8. Same—special assessments—of the notice of time and place to hear objections. Under section 19 of the Drainage act, the jury, after the completion of their assessment, shall fix a time and place when and where they will meet for the correction of the assessment, and they or the commissioners are required to give at least ten days’ notice of such time, and place, and the object of such meeting, by posting and publishing notices, as required in section 3 of the same act, prior to the time so fixed; and section 3 requires the posting of notices in at least five of the most public places in the district, and the publishing a copy thereof in some newspaper or newspapers published in each county from which any part of the district has been formed. The time of the notice to be given being fixed by section 19, must control.</p> <p>9. Same—waiver of objections to'assessment, if not made before confirmation. All objections which might have been made at the time of the confirmation of the assessment roll, and which were not then urged, are waived, and can not be urged for the first time on application for an order for the sale of lands for a delinquent assessment. In this respect there is no difference between cases of special assessments for the opening, repairing, etc., of streets, and assessments under the drainage acts.</p> <p>10. Same—power as to works constructed under prior invalid act. The fact that the act of April 24,1871, was held unconstitutional, in part, as to the power to construct levees, does not render a levee constructed by them under that act, one not constructed under any law of this State. The objection, if valid, should have been made before the confirmation of the assessment roll. But because the act of 1871 was repugnant in some of its provisions to the constitution, before its amendment in 1878, as in favor of particular rights, it does not follow it was no law for any purpose. That act was valid as to all persons except those not assenting to the formation of the district, and those against whose property it was proposed to assess the costs.</p> <p>11. The amendment to section 31, article 4, of the constitution, adopted in 1878, giving power to provide for the organization of drainage districts, and to vest the corporate authorities thereof with power, not only to construct levees, but also to keep in repair all levees before constructed under the laws of the State, by special assessments, etc., refers to and embraces levees constructed under the act of 1871, as none' others could have been intended.</p> <p>12. Same—transfer of assessment on tax-books—where to be placed. It is no objection to the collection of an assessment under the Drainage act of 1879, made for keeping a levee in repair, that the county collector, on the return of the list to him, shall transfer the amount of such assessment to a separate column in his tax-books. The statute does not so require, but it is simply that it shall be transferred to a proper column opposite the land upon which it has been made.</p> <p>13. Taxes—what is included in the term. The word “tax,” or “taxes,” in the Revenue law, is defined by that law to mean any tax, special assessment, or costs, interest or penalty.</p>

<p>1. Partition by parol—confirmation in chancery. Where two persons having bought a tract of land, each having an equal interest, make a verbal partition, dividing the premises equally, each taking possession of and using his part of the same, and no unfairness is shown, a decree confirming such partition after the death of one of the parties, is proper.</p> <p>2. Trust—whether it exists. Where a person buys land in his own name, and after his death his son sets up in defence of a partition between himself and another heir, that the legal title was held by the father in trust for him under a parol agreement, if the proof of the trust be such that the alleged trust could not have been enforced against the father in his life, it can not be as between the heirs. To enforce such an alleged trust against the other heir, it must be upon the clearest and most satisfactory evidence.</p> <p>3. Cross-bill—whether necessary. Where a person dies holding the legal title to a tract of land, on bill for partition between his heirs at law, consisting of a son and daughter, the question whether the father acquired and held the legal title in trust for the son alone, can only be tried on cross-bill filed by the son, and it is error to give him the entire tract merely upon his answer claiming to be the sole owner of the equitable title. That is affirmative relief in the strictest sense, and can not be granted except on cross-bill.</p>

J. W. Wilkin, Judge, presiding. This was a claim filed by the appellee in the county court of Piatt county, at the October term, 1882, against the estate of Christopher Casner, deceased, founded on a note, a copy of which is given in the opinion of the court. The administrator denied the execution of the note, under oath, and pleaded the general issue, and that the note was without consideration.

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

George W. Herdman, Judge, presiding. On the 14th day of August, 1874, Sarah J. Brittenham, the appellee, filed in the circuit court of DeWitt county the original bill in this cause, against Columbus… Held: affect the merits of the case as made by the bill, Smith then sued out a writ of error from the Appellate Court for the Third District to the circuit court, which brought before that court for review a complete record of the cause.

Kirk Hawes, Judge, presiding. This was an action of debt, brought by Charles Kern, sheriff, for the use of Emanuel Klein, upon a replevin bond executed by Joseph Metzler, as principal, and Bernhard Cradle, as surety. The replevin suit was dismissed for want of prosecution. By reason of the case not having been disposed of on the merits, the surety, who alone was served, was permitted to plead Metzler’s title to the goods replevied, in bar of all except nominal damages.

<p>1. Chiminal law—local jurisdiction of offences—exception to the rule. Under the constitution and laws of this State, as at common law, the local jurisdiction of, all offences is in the county where the offence is committed. The crime of larceny is made an exception, and the offender may be tried in any county to which he carries the stolen property, or where it may be found, as well as in the county in which the property was first taken. This rule has no application, however, to any crime other than larceny. The offence of receiving stolen property, or aiding in its concealment, knowing it to have been stolen, is not embraced in section 393 of the Criminal Code, and the person must be tried in the county where the offence was committed.</p> <p>2. SAME—former acquittal—whether a bar to a second prosecution—• jurisdiction essential—former acquittal in another county. The trial and acquittal, in one county, of one charged with receiving stolen goods, knowing them to have been stolen, is no bar to an indictment for the same offence in a different county, unless it shall appear that the offence was committed in the county in which the acquittal was had, so as to give the circuit court of that county jurisdiction. An acquittal of a crime by a court having no jurisdiction is no bar to a prosecution for the same offence in a court having jurisdiction.</p> <p>3. The general rule at common law is, that an acquittal in one county can only be pleaded in the same county, for the reason that all indictments are local; and if the first is laid in the wrong county, the defendant can not be found guilty, and could not have been in legal jeopardy. To this rule there are a few exceptions, as, in larceny, and in case of a change of venue, as in this State.</p> <p>4. Same—former acquittal, to be a bar, must have been in respect to the same identical offence—and the plea must so show. To make a plea of a former acquittal or conviction a bar to a second indictment, proof of the facts alleged in the second must be sufficient in law to have warranted a conviction upon the first indictment of the same offence charged in the second one, and not of a different offence; and the plea must show that the offence charged in both cases is the same in law and in fact, and the question must be determined by the facts appearing from the record, without the aid of extrinsic circumstances.</p> <p>5. Same—of a plea of former acquittal—its requisites. A plea of an acquittal of the same offence in a different county is defective, in substance, if it fails to show that the court of such other county had in some legal way acquired jurisdiction of the subject matter, and how such jurisdiction was acquired, as, by a change of venue, or, in case of larceny, by the defendant having taken the stolen property into such county.</p> <p>6. Same—a plea must answer all it professes. A special plea (as, a former acquittal,) to an indictment containing several counts, if it fails to answer any one count, is bad on demurrer.</p> <p>7. Same—concealing stolen property. A party knowing property to have been stolen, has no right to conceal the same, even with the intention to save himself from loss; and a clause in an instruction, on the part of the defendant, announcing a different rule, will vitiate the entire instruction, m</p> <p>8. Same— general verdict on several counts. On an indictment for receiving stolen property, and also for aiding in its concealment, charged in two separate counts, both of.which relate to but one and the same transaction, the punishment for each offence, even if distinct ones, being the same, a general verdict of guilty is good, and will sustain a judgment inflicting a single punishment.</p> <p>9. Practice—improper remarks of State’s attorney—waiver by failing to object. A party on trial upon a criminal charge will not be permitted to remain quiet without calling the attention of the court to it, and permit the State’s attorney to indulge in improper language, and afterward assign the same for error. He must object at the outset, or his objection will be deemed to have been waived. But the fact defendant’s counsel may "have traveled outside of the record, and made statements not warranted by the evidence, affords no justification for the State’s attorney to do the same thing.</p> <p>10. Instruction—giving undue prominence to particular facts, and giving improper construction to a letter. On the trial of one for receiving, and also for aiding in concealing, stolen property, an instruction directing the attention of the jury to a particular part of the evidence, and giving it undue, importance, and which also gives a construction to a letter of the defendant not warranted by any correct reading, is properly refused.</p> <p>11. Same—should be applicable to the case. Although an instruction contains a correct principle of law, yet if it has not the slightest application to the facts of the case, its refusal is proper.</p>

William H. Snyder, Judge, presiding. This was a hill by James T. Tartt, and John A., Julius L. and Harris E. Prickett, the three last being partners, against Philip H. Clayton and Lucy A. Clayton, seeking to set aside a deed of certain lands, made October 7, 1881, to Lucy A. Clayton, by Philip H. Clayton, as mortgagee, under a power of sale in a mortgage given by Thomas M. Tartt, and Jennie C. Tartt, his wife, to said Philip H. Clayton.

<p>Appeal from the Circuit Court of Randolph county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>1. Intoxicating Liquors—act of 1883, concerning the licensing of dram-shops—constitutionality—subject embraced in its title. The act of the General Assembly entitled “An act to restrict the power of counties, cities, towns and villages in licensing dram-shops, for providing a license to retail malt liquors separately, and for punishing persons holding such separate licenses for unlawful sale and gifts," approved June 15, 1883, is a valid and constitutional law, and the subject matter of each of its three sections is embraced the title.</p> <p>2. Same—application of the constitutional rule as to mode of amending a statute—License law of 1883. The act of June 15, 1883, concerning the licensing of dram-shops, is not in violation of that clause of the constitution which declares that “no law shall be revived or amended by reference to its title only, but the law revived, or section amended, shall be inserted at length,” as such act does not profess to be amendatory of any other act. Again, section 2 of the act, aside from the change in the amount of the license fee, contains all that is contained in section 3 of the Dram-shop act, with the further provision, “that in all cases where a license is granted for the sale of malt liquors only, such board may grant the same upon payment into the county treasury of a sum not less than $150 per annum for each license, ” which is a full compliance with the constitutional provision that the section amended shall be inserted at length in the new act. It is not necessary to declare in the new act that the section, as amended, is inserted at length.</p> <p>3. Same—rule of uniformity in taxation, as applied to liquor dealers. Under section 1, article 9, of the constitution, which provides that “the General Assembly shall have power to tax peddlers, * * * liquor dealers,” etc., in such manner as it shall, from time to time, direct by general law, uniform as to the class upon which it operates, the term “liquor dealers,” is used in a generic sense, and it is competent for the legislature to classify the different kinds of liquor dealers, and impose differential taxes upon such classes; and the rule of uniformity will not be violated so long as the tax imposed is the same upon all the members of the particular class.</p> <p>4. Same—extent of the power to regulate the liquor traffic. In the exercise of the police power the legislature may prohibit altogether the sale of intoxicating liquors, and consequently may attach such conditions to the allowance of their sale as it sees fit to prescribe.</p> <p>5. Statutes—as to the subject being embraced in the title. It is a sufficient compliance with the requirement of section 13, article 4, of the constitution, if the subject of the enactment is expressed in its title. It is not necessary to state in the title the effect of the subject matter, as, its amending or repealing some prior law.</p> <p>6. The repeal of a statute on a given subject is properly connected with the subject matter of a new statute on the same subject; and therefore a repealing section in a new statute is valid, notwithstanding the title is silent on that subject.</p> <p>7. Same—as to the mode of amendment, under the constitution. The mischief intended to be remedied by the constitution, which provides that in amending a statute the law or section amended shall be inserted at length, was that of the amendment of statutes by reference to their titles only, where the amendment in many cases could not be understood without looking into the section amended.</p> <p>8. Where a new act on a subject is complete in itself, and entirely intelligible, showing of itself just what it is, and its enactment, without reference to any prior law, it will not contravene the constitutional provision. An act complete in itself is not within the mischief designed to be remedied by such provision.</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. Murray F. Tuley, Judge, presiding.

<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. C. W. Upton, Judge, presiding.</p> <p>This was a bill in chancery, filed in the Kane circuit court by James Herrington, against Eli Peck and Sackett Booth, seeking a perpetual injunction restraining the defendants from draining certain sloughs, or small ponds, situate nearly a mile from complainant’s lands, into the natural watercourse or channel on their own lands, whereby it is claimed it will flow over his lands and into Mill creek. On a hearing, the circuit court dismissed the bill for want of equity, and dissolved the injunction. From this decree the complainant brought the case, by appeal, to the Appellate Court for the Second District", where the decree of the circuit court was reversed, and the cause remanded, with directions to the latter court to render a decree in accordance with the opinion of the Appellate Court. From this order the original defendants appealed to this court. The facts are sufficiently stated in the opinion.</p> <p>The following is the diagram or map referred to in the opinion":</p> <p>[[Image here]]</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p> <p>This is an appeal from a judgment of the Superior Court of the county of Cook, purporting to oust appellants from the exercise of “the franchise, privilege and license of selling intoxicating liquors at retail, in less quantities than one gallon, ” and imposing a fine upon them for usurping “the franchise, privilege and license described in the information, ” which was “the franchise and privilege of keeping a dram-shop and liquor saloon, and of selling intoxicating liquors at retail, in less quantity than one gallon. ” This judgment is founded upon an information by the Attorney General, in the nature of a quo warranto, to test the validity of the license of appellants, purporting to have been issued to them on June 29, 1883, by the mayor of the city of Chicago, under the corporate seal of the city, and signed by the mayor and clerk, and purporting to license appellants “to keep a saloon or grocery at 385 and 387 N. Clark street, ” in Chicago, and “to sell, barter, ” etc., “wines and other liquors, whether malt, vinous, ardent or fermented, in quantities less than one gallon, from the date thereof until the first Monday of April, 1884.” The plea of appellants justified the keeping of a dram-shop under this license, and in response to a suggestion in the information, the plea claims that the act of June 15, 1883, (commonly known as the “Harper High License law,”) is unconstitutional and void. Various objections to the license were raised by the replications.</p> <p>By ordinances in force in Chicago at the time of the passage of the act in question, (June 15, 1883,) all saloon licenses expired on the last day of June next after the date of their issue, (sec. 1852, Revised Ordinances,) and by statute no such license could lawfully extend beyond the municipal year in which it was granted, (sec. 46, chap. 24,) and the current municipal year in Chicago never having been fixed by ordinance, would, unless changed by ordinance, terminate on the 1st day of April, 1884. (See sec. 88, chap. 24, and sec. 48, as amended March 9, 1877.) The act approved June 15, 1883, in force July 1, 1883, provides, “that hereafter it shall not be lawful for the corporate authorities of any city to grant a license for keeping a dram-shop, except on payment, in advance, into the treasury of the -city granting the license, such sum as may be determined by the authorities of such city, not less than at the rate of $500 per annum, ” etc. On June 18, 1883, an ordinance was passed by the city of Chicago, providing that “every such license hereafter granted, unless sooner revoked, shall expire on the first Monday of April next thereafter. Bor every such license issued hereafter, and prior to July 1, 1883, there shall be paid the sum of $103.” It will be-observed that the first Monday of April, 1884, occurs on the 7th day of that month, while the current municipal year, as then defined, would end on the first Tuesday of April, which, in 1884, occurs on the 1st day of that month, and thus the ordinance of June 18, 1883, provided for the expiration of such licenses on a day beyond the period of the then municipal year. On June 28, 1883, another ordinance was passed, fixing the Monday after the first Tuesday of April for the beginning and ending of the municipal year, and extending the current municipal year to the 7th day of April, 1884, which is the first Monday after the first Tuesday.</p> <p>On June 15, 1883, appellants were keeping a dram-shop in the city of Chicago, under a license issued to them by the city before that time, which, under the ordinances and laws then in force, and on its face, would expire on June 30,1883. On June 29, 1883, after the current municipal year had been extended to the first Monday of April, 1884, by the ordinance of June 28, swpra, and after the price of such license had been fixed, as above stated, at $103, and one day before their then license would expire, and»two days before the act of June 15 came into force, appellants, without any application made therefor in writing, and without any petition signed by a majority of the voters of the town, election precinct or district in which their dram-shop is located, received a license from the city on payment of $103, and giving the bond required by law, under the signatures of the mayor and city clerk, and under the seal of the city, authorizing them to keep a dram-shop at the place named, in the city, from that date until the first Monday of April, 1884. The signatures of the mayor and city clerk were not written by them with a pen, but were stamped on the license by some other person. The objections presented to the validity of this license were, that the license was granted by the mayor, and not by the city council; that there was no previous application therefor made in writing; that the signatures were not signed to the same by the mayor and city clerk, but were stamped thereon by some other person; that a prior license was outstanding when it was issued; that the same was not issued in compliance with the High License law of June 15, 1883; that the ordinances of June 18 and June 28, and the issue of this license, constitute a fraud upon that statute, and that all these things were done for the fraudulent purpose of defeating the object of that statute, and the ordinance of June 18 extended the period of the license beyond the then municipal year.</p>

<p>1. Change of venue—in criminal case—on the ground of prejudice on the part of the people of the county. A petition for a change of venue in a criminal case was based on the alleged prejudice in the minds of the people of the county, caused by the publication in certain newspapers of prejudicial accounts of the alleged offence, such newspapers having a standing and large circulation in the county. The State’s attorney filed a denial of the statements in the petition, supported by counter affidavits, going to show that such prejudice did not exist from the publication of the articles, among which affidavits was that of the sheriff, to the effect that he talked about criminal cases with people from all parts of the county, and had found there was but comparatively little interest taken in the case, and that from his knowledge of the temper of the people of the county he had no hesitation in saying that the defendant could have his case tried as fairly and impartially in that county as in any one in the State. It was held, that this court was not prepared to say the circuit court, in denying the petition, had decided contrary to the right of the case.</p> <p>2. Continuance—absence of witnesses. One ground for a continuance in a criminal case was the absence of witnesses; but it did not appear from the affidavit but that the same facts might be proved by other witnesses: Held, that this ground was not sufficient.</p> <p>3. Same—want of time for attorney to prepare the defence. An offence was alleged to have been committed on March 31, and the defendant was arrested on the same day, so that both he and his counsel were then informed of the nature and character of the offence with which the defendant was charged, and the indictment was not found until forty-seven days thereafter, and the trial was had twenty days later. It was apparent from the nature and character of the case, as shown by the record, that the defendant had ample time to prepare for trial. It was held, no error to refuse a continuance on the ground that defendant’s counsel had been so occupied with other cases in the circuit and Appellate courts that he had not sufficient time and opportunity to prepare the case for trial.</p> <p>4. Criminal law—insanity as a defence—as to the test of responsibility. Where reason and judgment are not overcome, but the person charged with crime at the time retains the power to choose between right and wrong as to the particular act done, he can not escape responsibility for his acts under the plea of insanity.</p> <p>5. So, if at the time a deadly assault is made, the person making the assault knew that it was wrong to commit such an act, and had the power of mind to choose either to do or not to do, and of controlling his conduct in accordance with such choice, he will be held amenable to the law, although he was not entirely and perfectly sane.</p> <p>6. Same—reasonable doubt—defined. A reasonable doubt, as used in instructions in criminal trials, is one arising from a candid and impartial investigation of all the evidence, and such as in the graver transactions of life would cause a reasonable and prudent man to hesitate and pause.</p> <p>7. Same—of an instruction attempting to define a reasonable doubt. On a trial of one for an assault with intent to murder, the court instructed the jury: “That the guilt of the defendant must be proved beyond a reasonable doubt, as used in the instructions in this case, means not a possible doubt, not a conjectural doubt, not an imaginary doubt, not a doubt of the absolute certainty of the guilt of the accused, because everything relating to human affairs and depending upon moral evidence is open to conjectural or imaginary doubt, and because absolute certainty is not required by law. A reasonable doubt exists in that state of the case which, after considering and comparing all the evidence in the case, leaves the minds of the jury in that condition that they can not say that they feel an abiding conviction of the truth of the charge; but when the evidence in the case establishes the truth of the charge to a reasonable and moral certainty, that convinces the understanding and satisfies the reason and judgment of the jury of the truth of the charge, then, in law, there exists no reasonable doubt:” Held, that the instruction was more like an argument than a proposition of law; and was erroneous.</p> <p>8. Instruction—as to form of verdict in criminal case—as ignoring the right to find for a lesser offence—duty of defence to ash a counter instruction. An instruction given for the People, on the trial of one for an assault with intent to murder, directing the jury as to the form of their verdict in case of conviction, was objected to as error, inasmuch as the direction to fix the term the defendant should serve in the penitentiary if found guilty, ignored the right of the jury to find him guilty of a lesser offence: Held, that while not concurring in such view, if it were correct it was the duty of counsel for the defendant to have asked an instruction that the jury might find a verdict for an assault with a deadly weapon, etc., and not having done so, they were in no position to complain.</p> <p>9. Same—too many instructions. On a trial upon an indictment for an assault with intent to murder, the court, for the defence, gave eleven instructions as asked, and twelve others after modifying them, and refused twenty-three. It was held, that the rules of law applicable to the case were simple and plain, and that the practice of incumbering the record with so many instructions was a vicious one, and it ought not to be encouraged.</p> <p>10. Same—in the language of the statute. On a criminal trial, an instruction following the language of the statute, which declares that drunken"ness is no excuse for crime, is not erroneous.</p> <p>11. New trial—verdict against the evidence—in criminal case. Where one was convicted of an assault on his wife with intent to kill and murder her, and the proof was clear that the accused did shoot his wife, it was held, that the question whether the shooting was an accident, or was intentional, was a question of fact for the jury; and that when they have settled that fact adversely to the defendant, without passion or prejudice, in accordance with the evidence, it was not the province of this court to disturb the verdict.</p> <p>12. Evidence—weight of defendant’s testimony in criminal case, when testifying in his own behalf. On the trial of one for an assault with intent to murder, the court instructed the jury that the credibility and weight to be given to the testimony of the defendant testifying in his own behalf, was a matter with the jury, and that in weighing the defendant’s evidence they had a right to take into consideration his manner of testifying, the reasonableness of his account of the transaction, and his interest in the result: Held, that there was no error in giving the instruction.</p>

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

<p>1. Dower—as to the release thereof—of the mode—prior to the act of 1869. Before the passage of the act of 1869, a married woman could not dispose of or bar her right to any interest she might have in land, including the right of dower, whether inchoate or otherwise, by merely joining with her husband in a deed, unless the deed was duly acknowledged by her before a proper officer, as shown by the officer’s certificate, in the form prescribed by the statute.</p> <p>2. Same—since the act of 1869. Under the act of 1869 relating to conveyances by married women, a married woman above the age of eighteen years, by joining in a deed with her husband; would be concluded as to any interest she might have in the land conveyed, including that of dower, without any acknowledgment of the deed on her part.</p> <p>3. Same—section 17 of the Conveyance act construed. Section 17 of the act of 1874, relating to conveyances, provides two distinct modes by which the right of dower may be relinquished or barred. By the first division or clause thereof a married woman is enabled to relinquish her dower in any case, whether the fee is in the husband or a third party, by the husband joining with her in the deed; by the second clause she is empowered, in all cases where she has dower or other interest in land in which the husband has no interest, by reason of the same having been divested, by legal process or otherwise, to release or convey such dower or other interest as though she were sole and unmarried, without her husband joining in the deed.</p> <p>4. In a case falling within the first clause, by joining with her husband in a deed, conveyance, etc., the wife may relinquish her dower in the real estate of the husband, or in any real estate, whether the deed, conveyance, etc., is acknowledged or not; but in cases under the latter clause, her deed must be duly acknowledged and properly certified, as required by the statute, otherwise it will be inoperative.</p> <p>5. Same—as to effect of sections 18 and 19 of the Conveyance act. While the language of section 18 of the Conveyance act of 1874 is broad enough to include the right of dower, whether inchoate or otherwise, it is thought it was intended to apply specially to lands or tenements belonging to the wife. Whether in such cases it is indispensable that the wife’s deed should be acknowledged before some officer, where the husband does not join in the deed, may be regarded as doubtful, but no decided opinion is given on the question.</p> <p>6. Section 19 is in the nature of a supplement to the two preceding sections, by which the acknowledgment or proof of the deed of a married woman relating to her dower or other interest in land, is put upon the same footing with-deeds made by a feme sole.</p> <p>7. Same—section 17 construed, with reference to section 16 of the Dower act. The object of the legislature in adopting section 16 of the Dower act of 1874, was not to prescribe the mode of relinquishing dower, that having been fully done by section 17 of the Conveyance act, which was adopted "for that express purpose. Therefore, if there is any apparent conflict in the two sections, the latter must control.</p> <p>8. The object of section 16 of the Dower act is simply to prevent either the husband or wife from making any conveyance, or doing any act whatever, whereby the dower interest of the other might be prejudiced or defeated, without the sanction or assent of the one whose interest is to be affected, which is manifested by one joining in a conveyance with the other. In such case the joinder in the deed is all the acknowledgment the law requires to “evince” such assent.</p> <p>9. Same—under the revision of 1874. Under the Revised Statutes of 1874, a married woman above the age of eighteen years, having an inchoate right of dower in land belonging to her husband, may bar or extinguish such right by voluntarily joining him in a mortgage, or other conveyance of the same, sufficiently formal to pass his interest, even though there be no certificate of acknowledgment on her part attached thereto.</p>

<p>1. Bill of exceptions—when necessary—presumption in favor of the judgment below. A land owner appealed from an assessment of benefits against Ms land to three supervisors, who reduced the same, and the commissioners appealed from this order to the county court, where they entered a motion to dismiss the appeal to the supervisors and all proceedings had on such appeal, for the reason that the land owner did not appear before the commissioners and object to the confirmation of the assessment, which motion was overruled. The hill of exceptions contained no part of the evidence heard on the motion: Held, that in the absence of such evidence in the record, it would be presumed it authorized 'the judgment of the county court overruling the motion.</p> <p>2. Practice—time to object that there is no right of appeal—in case of special assessment. Where it .is sought to question the right of a land owner to take an appeal from an assessment of benefits to his land by the drainage commissioners, by reason of his failure to appear before the commissioners and object to their confirming the assessment, the commissioners must take the objection by motion before the supervisors to whom the appeal is taken, and failing to do so will be a waiver of the right.</p> <p>3. Practice in the Supreme Court—cross-errors must be assigned on the record. Cross-errors argued in the briefs of counsel for the defendants in error, but not assigned upon the record, will not be considered by this court.</p> <p>4. Evidence—special assessments under Drainage law—evidence on appeal. On the trial of an appeal from a special assessment by commissioners under the Drainage law, to three supervisors, the commissioners have the right to introduce evidence tending to prove that the assessments do not exceed the benefits, and are no greater than the land’s just proportion of the cost of the work, and the land owner will have the right to introduce any competent evidence tending to prove the reverse; and on appeal by the commissioners from the order of the supervisors, to the county court, each party will have the same rights as before the supervisors.</p> <p>5. Costs—in proceedings under Drainage law. Under the last part of section 21 of the Drainage act, costs improperly made in the county court on an appeal from an order of the supervisors reducing the amount of special assessments of benefits against lands, may be ordered by the court to be paid by the party making the same.</p>

Elliott Anthony, Judge, presiding. This was an action of ejectment, by appellee, against appellant, for the south 38 feet of the north 45 feet of lots 41, 42, 43, and the east 15-^ feet of lot 44, of the subdivision of blocks 9, 10, 12, 13, 14, and parts of blocks 11, 15 and 16, in Castle’s subdivision of the east fifteen acres of the east half of the south-east quarter of section 11, township 39, range 13, east of the third principal meridian, lying south of Lake street, in…