Volume 110 — Illinois Reports

<p>1. Witnesses—credibility—the jury to determine. It is the peculiar province of the jury to determine whether any particular witness or witnesses are not worthy of belief, even though they are accomplices; and in passing upon a motion for a new trial, the court will not substitute its own opinion as to the credibility of witnesses for that of the jury.</p> <p>2. Same—how to determine as to the weight or credibility to be given to testimony. In determining the weight or credibility to be given to any statement of fact made by a witness in the course of his testimony, it is the duty of the jury to take into consideration all the evidence, whether circumstantial or otherwise, tending to disprove such statement of fact, and which would also include contradictory statements made by other witnesses.</p> <p>3. Same—as to credibility of a defendant in a criminal prosecution, testifying in his own behalf—how to be determined. On the trial of three defendants for larceny, the court instructed the jury “that in this State the accused is permitted to testify in his own behalf; that when he does so testify he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness; and in determining the degree of credibility that shall be accorded to his testimony, the jury have the right to take into consideration the fact that he is interested in the result of his prosecution, as well as his demeanor and conduct upon the witness stand and during the trial; and the jury are also to take into consideration the fact, if such is the fact, that he has been contradicted by other witnesses. And the court further instructs the jury, that if, after considering all the evidence in this case, they find that the accused has willfully testified falsely to any fact material to the issue in this case, they have the right to entirely disregard his testimony, excepting in so far as his testimony is corroborated by other credible evidence:” Held, that there was no substantial objection to the instruction.</p> <p>4. Accomplice—conviction on his uncorroborated testimony. Whatever may be the rule in other States with respect to the right of a jury to convict upon the uncorroborated testimony of an accomplice, it is well settled that the right exists here, and convictions on such testimony will not be disturbed by this court on that ground alone.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p>

<p>1. Appeals — reviewing controverted questions of fact. In trespass against a sheriff for levying upon and carrying away goods under an execution, it is a question of fact depending upon evidence whether a sale of the goods by the defendant in the execution, to the plaintiff, was made in good faith and for a valuable consideration, or was made with intent to hinder and delay the vendor’s creditors; and so as to the value of the goods, and whether the damages are excessive. The finding of the Appellate Court the same as in the trial court is conclusive, and this court can not consider whether the verdict is contrary to the evidence, or the damages are excessive.</p> <p>2. Ebrob will not always reverse—of instructions that could have worked no injury. In trespass against a sheriff for levying upon goods claimed to be the property of the plaintiff, under an execution against the person from whom the plaintiff had bought the goods, the sheriff claiming the transfer to have been fraudulent, it appeared the levy was also made upon property which the plaintiff had purchased of persons other than the defendant in execution. The court instructed the jury that the plaintiff was entitled to recover for this last mentioned property, irrespective of the ownership of the goods bought of the defendant in execution, unless plaintiff, before the levy, by denying that any of the property levied on was his, induced the sheriff to so believe and to levy on the whole. The jury found that all the goods levied on were the property of the plaintiff: Held, that the error in such instruction, if there was any, could have done the defendant no harm.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.

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

<p>1. Jury service confined to the county. There is no authority in any statute for the selection of grand and petit jurors in one county to serve in another county.</p> <p>2. Criminal law—as to right of trial by jury—and, in what county a person charged with crime must be tried. The right of trial by jury, guaranteed by the constitution to one accused of crime, includes the right of being tried by jurors selected from the county in which the oifence is alleged to have been committed.</p> <p>3. Section 5, division 10, of the Criminal Code, in so far as it authorizes a party to be tried for an offence committed entirely within one county, but one hundred rods from the county line, in the adjoining county, is unconstitutional and void.</p> <p>4. There is a class of offences that may he committed by a party being in one county, upon a person or thing being at the same time in another county, when the offence may not inaptly be defined as having been committed in either county; and offences committed on the county line, or so near thereto as that the distance therefrom is inappreciable, may with propriety be regarded as having been committed in either county, and by doing so no one is deprived of any constitutional right.</p> <p>5. But where the entire offence is committed within one county, and at an appreciable distance from the county line, as in this case, at a distance of seventy rods, the party accused can not be indicted and tried in another county for that offence.</p>

<p>1. Mortgage—whether a deed absolute, or a mortgage. The owner of city real estate, after making default of interest on a loan secured by trust deed on the same, turned over the possession of such property to his creditor, who, from that time, received the rents on the same; and after the advertisement of the premises for sale by the trustee, it was agreed that the creditor should bid in the same, and hold it in trust for the debtor until an accounting could be had, when, if the debtor was still owing the creditor anything, a new loan was to be made upon the property. The property was so purchased by the creditor, who shortly afterward caused a judgment by confession to be entered against the debtor for an alleged deficiency between the sum due on the loan and the amount of the bid, upon which an execution was issued, and levied upon other property of the debtor, which was also sold, and bought by such creditor: Held, that the trustee’s deed to the creditor was in equity a mortgage, and that the debtor had the right to redeem.</p> <p>2. Agency—extent of agent’s authority—of facts from which it may be inferred. A debtor applied to an agent of his creditor for an extension of the time of payment or a renewal of the loan, the creditor being a non-resident corporation, and the agent a resident of the State, acting generally for the creditor as to loans in this State. At the first interview the agent stated to the debtor that he would communicate with the home office in regard to the proposition made, and afterward such agent, in another interview, said he was ready to enter into the arrangement that was thereupon made: Held, that from these facts the debtor might properly infer that the agent received the principal’s sanction for entering into the arrangement he made, and that the debtor was justified in his reliance upon the agent’s authority to make it.</p> <p>3. Interest—the rate not changed by a change in form of the security. A mere change in the form of the security for a debt for money loaned will not operate to change the rate of interest to be paid from that reserved in the original contract. As, where the creditor bids off the property at a sale under a deed of trust which secures the debt, and agrees with the debtor to hold the title under the trustee’s deed as a security until an accounting can be had as to rents received by the creditor and a new loan is made, which is not done, on a bill for an accounting and for redemption from the trust deed and the trustee’s deed, the decree should require the complainant to pay the stipulated rate of interest provided for in the notes, up to the time of the redemption; and it is error to require the payment of six per cent only from the date of the trustee’s deed, when a higher rate had been reserved in the original contract.</p> <p>4. Allegations and decree—relief confined to that sought by the frame of the bill. On a bill filed to redeem property from a deed of trust, and a trustee’s sale and deed 'thereof, by the payment of the sum found to be due the creditor on an accounting, the specific enforcement of an agreement to reduce the rate of interest can not be granted, that not being within the scope of the bill.</p>

Writ of Error to the Criminal Court of Cook county; the Hon. Sidney Smith, Judge, presiding. On an indictment preferred against him for robbery, John Mullins was tried in the Criminal Court of Cook county, and on conviction was sentenced to the penitentiary for a period of five years.

<p>Appeal from 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.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.

<p>1. Corporation—right to acquire and hold title to real estate—limit of the right. By section 81, of chapter 32, of the Revised Statutes of 1874, corporations, associations and societies, not for pecuniary profit, formed under that act, are made- capable, in their corporate names, of taking, purchasing, holding and disposing of real and personal property, for the purposes of their organization.</p> <p>2. Same—who may object that a corporation is holding real estate in excess of its right. Where a corporation, by the law of its creation, is authorized in some cases, or for some purposes, or to a certain extent, to take and hold the title to real estate, it can not be made a question by any party, except the State, whether its real estate has been acquired for the authorized uses or not, or is in excess of the capacity of the corporation to take and hold. The State alone must assert her policy in that regard.</p> <p>3. So the right of an association, assuming it to be a corporation under a law authorizing the creation of corporations of the class to which it claims to belong, and which has exercised powers as a corporation, to hold property, can not be questioned by an individual citizen in a suit to set aside a contract he has made with the association in its corporate name and character.</p> <p>4. Chancery—;jurisdiction—injunction as to right in another State. A court of equity in this State has jurisdiction of a bill, the object of which is to obtain an injunction to prevent the defendant from interfering with a right of way claimed by the complainant over lands situate in another State, where the defendants are personally served. The jurisdiction in equity by way of injunction is strictly in personam.</p> <p>5. Lease—construed, as to period of duration—as affected by the mode of organization of the lessee corporation. The owners of land leased to a club all their ground in a certain section, used for a canal and right of way, “for and during the existence of said club,” with this clause: “Whenever said club shall cease to exist as now organized, this lease, etc., shall be determined and cease. ” On the day before the execution of this lease the club had passed a resolution to become incorporated, and the lessors were members of the club: Held, that the grant of the right of way, or canal and its appurtenances, did not cease upon the club becoming incorporated under the statute, assuming all the debts of the same and taking all its property; and that the words, “as now organized,” referred to the purpose of organization,— not the mode of organization.</p> <p>6. Same—as to what passes by lease of a canal—the foot-way as an incident. Where a hunting and fishing club constructed a canal across a tract of land, so as to connect its club-house with a river and its marsh grounds, through which to transfer boats, and which was used in connection with a foot-way along its side, over which the hunters walked, and the owners of the land, knowing the use made of the canal and foot-way, leased to the club all the ground then used for the canal, it was held, that the lease passed the foot-way, as an actual, constant incident to the use of the canal, especially when the lessors, by their subsequent acts, showed an acquiescence in the continued use of the foot-way in connection with the canal.</p> <p>7. Construction or contract—acts of the parties. The acts of parties under a contract which they have entered into, and their acquiescence in its provisions, which seem to evince their understanding of its meaning, and to be a construction of the contract by the parties themselves, are entitled to regard in considering what was their intention in the making of it.</p> <p>8. Grant—as to an easement passing with the principal thing. It is the rule that whenever a thing is granted, all and every easement necessary to its beneficial enjoyment will pass.</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. John G. Rogers, Judge, presiding.

<p>1. Error wmi not aiavays reverse—as to giving and refusing instructions. The refusal of a proper instruction relating to a collateral issue, which, if given, would not probably have induced a different verdict, affords no ground of reversal, as such error works no prejudice.</p> <p>2. This court will not reverse, in every case of conflict in the evidence, because of some slight error in giving or refusing an instruction. When the evidence clearly sustains the verdict, this court never reverses for error in instructions.</p>

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

<p>1. Eminent domain—loss of profits in business on the premises—as an element of damages. On an application to condemn for a right of way for a railroad, a part of four lots, held by the defendant .under a lease, which leasehold lots were occupied by the defendant in connection with adjacent lots, of which he was the absolute owner, and which were used in carrying on an extensive hot-bed system of flower-gardening, the court instructed the jury that there could be no recovery for loss of business or loss of profits: Held, that the instruction was correct.</p> <p>2. Same—of the proper basis for damages, where a part of the premises are held under lease, and the residue in fee. A person occupied fourteen lots in a certain block in carrying on the business of flower-gardening, as one tract, or as an entirety, holding four of them under a lease for two years, and owning the other teti, and a railway company sought to take a portion of the leasehold property for a right of way. It was held, if by so doing the market value of the whole tract was lessened during the two years the lease had to run, the owner and occupant ought to be allowed damages to the extent that the market value of the entire property was thereby depreciated.</p>

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

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

<p>1. Setting aside tax sale—upon terms. On bill in chancery to set aside a tax sale of land, the complainant must do equity; and if the purchaser at a tax sale, by his purchase, has discharged the lien of taxes upon the complainant’s land, the court will require the money paid to discharge such lien," to be refunded, with interest, as a condition to granting the relief sought.</p> <p>2. Same—as to evidence of amount of taxes due. A judgment of the county court, in 1878, against certain lots for taxes due thereon, in which judgment are included city taxes on the premises for the years 1873 and 1874, is sufficient evidence, on a bill to set aside a sale of the lots made under a subsequent judgment, that such taxes were due, and of their amount.</p> <p>3. Preserving the evidence—in chancery—certificate of evidence—• findings in the decree. A decree setting aside a tax sale of lots for taxes, and requiring the complainant to refund the taxes paid by the purchaser, found the amount of city taxes for the years 1873 and 1874. The certificate of evidence stated that it contained all the evidence heard, but did not embrace these taxes. It also showed that certified copies of the judgment and sale for the city taxes of those years, etc., were given in evidence, and yet neither of these copies was preserved in the certificate: Held, that as the certificate, taken as a whole, showed it did not contain all the evidence, this court could not say the findings in the decree were not sustained by the proofs.</p>

John G. Rogers, Judge, presiding. This was assumpsit, on a policy of insurance on the life of George W. Miller, for $1000,—annual premium $56.24, payable oh or before the 30th of November in each year, for ten years. The amount secured by the policy, in the event of the death of the assured, was payable to his wife, the appellant.

<p>1. Settlement—as operating to cut off defences hnoion prior thereto. Where notes are given on a settlement for a balance found to be due the payee, after all the causes of set-off and other claims of damage by delay have arisen, which are fully known to the maker when he gives the notes, he will be precluded from urging such matters of set-off or recoupment in defence to a suit upon the notes.</p> <p>2. Measure op damages—delay in the manufacture of boohs. On a failure to complete the work on books, and deliver the same within the time agreed upon, it is not admissible to prove, on the question of .damages, from the delay, that there may have been a demand for the books had they been ready at the proper time. If the party for whom the books were manufactured had made sales of books, and suffered a loss of profits thereon in consequence of the delay in completing the work, evidence of such facts would be competent on the question of damages.</p> <p>3. Error will not. always reverse—exclusion of evidence. Slight error in the exclusion of evidence, as, when its admission could not have changed the result, is no ground of reversal.</p> <p>4. ■ Instructions — given by the court instead of those asked by the parties. Where the court refuses all the instructions asked on both sides, and on its own motion gives others, containing all the law involved in the case, there will be no error in refusing the instructions asked, even though they contained correct propositions of law, as no injury could result in such case.</p>

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

<p>1. Negligence—contributory and comparative—of the degree of care required, under different circumstances. Although a railway company may omit the statutory duty of ringing a bell or sounding a whistle at a public road crossing, still a party claiming to recover for an injury in consequence of such omission of duty, must have used due care and caution. The negligence of the company does not absolve him from all care. The plaintiff in such case, to recover, is required to exercise such care as might be expected of prudent men generally, under like circumstances.</p> <p>2. Where it is well known to the servants of a railway company and a person injured at a road crossing, that such place is unusually hazardous, it is the duty of both parties to use more care than at ordinary crossings where the danger is not so great. In such case the servants of the company should ring the bell and sound the whistle to the full extent of the statutory requirement.</p> <p>3. If a plaintiff who is injured at a highway crossing by a railway train does omit some slight precaution for his safety, and the railway company omits all care on its part, the plaintiff will not be without remedy. If the plaintiff’s negligence is slight, and that of the company, when compared with that of the plaintiff, is gross, a recovery may be had.</p> <p>4. What is prudence and proper care under some circumstances may be negligence in others; and so, negligence in danger under some circumstances might be regarded as prudence under others. Each case must depend largely on its own facts.</p> <p>5. Same—former decision—omission of railway company to give signals at highway crossings. The rule laid down in Chicago and Alton R. R. Co. v. Elmore, 67 Ill. 178, in regard to the liability of a railway company for a personal injury caused by a neglect of the statutory duty of sounding a whistle or ringing a bell at public road crossings, has not been followed, but has been disregarded in subsequent cases, and that case is overruled.</p>

<p>1. Evidence—to prove a deed a forgery—clear proof required. An allegation in a bill filed to set aside a certain deed as a forgery,—that the grantor executed and acknowledged the deed, and after its execution and delivery the defendant erased the name of the complainant, the grantee therein, and inserted his own name in its place,—is one that the complainant is bound to establish affirmatively by clear and convincing proof.</p> <p>2. In this case it was alleged that the defendant took a deed of land, made to his son, to have the same recorded, and fraudulently erased his son’s name and inserted 'his own as grantee, and then had the same recorded, after which it was lost. The court reviews the evidence, and holds that it fails to sustain the allegation as to the alteration or forgery.</p>

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

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

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

Josiah McRoberts, Judge, presiding. On the 25th day of May, 1882, Samuel H. Yocum filed his hill in chancery in this case, alleging, in substance, that in the spring of 1875 complainant resided in Grand Eidge, in the county of LaSalle, in this State, and was then intending to remove with his family to the State of Missouri or Kansas; that John Yocum, father of complainant, knowing of such intention, and being then the owner in fee of the south-west quarter of section 22,…

Writ op Error to 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 Wilhelmina Fisher exhibited her bill in chancery in the Superior Court of Cook county, .against John H. Weaver, wherein, among other things, she alleged that on the 1st of September, 1880, she and said Weaver entered into an agreement, whereby she hired him to assist her in conducting the milling…

<p>1. Agricultural society—reorganization—upon the joint stock plan —effect upon property rights, and the rights of creditors. The constitution of an agricultural society declared that the object of the society should be “to improve the condition of agriculture, horticulture, and the mechanic and household arts," and provided for holding annual fairs. On a reorganization as a joint stock company, the new constitution then adopted declared the object of the society should be “to improve the condition of agriculture, horticulture, floriculture, mechanic and household arts,” and also provided for holding annual fairs and exhibitions. The name was changed by substituting the word “board" in place of the word “society." The board, as reorganized, took possession of all the property of the old society: Held, that there was no essential change in the object of the society resulting from its reorganization, and that the new board was not a separate and independent society from the old one, but the same, under a slight change in name.</p> <p>2. Upon the reorganization of a county fair society, under section 9, chapter 5, of the Revised Statutes of 1874, the corporation, as reorganized, will succeed to all the rights and liabilities of the society as they existed at the time of the change, and the old creditors of the same will have the same right to sue the company under its new name and organization that they had to sue the company as originally organized.</p> <p>3. Creditors of an agricultural society, whether their claims accrued before or after the reorganization of the institution, stand upon the same footing, and the only way by which- one may gain an advantage over another is by the exercise of superior diligence in prosecuting his claim to judgment, and thereby obtaining a judgment or execution lien upon the company’s property.</p> <p>4. The reorganization of an agricultural society under the statute mentioned, on the stock plan, does not render the corporation one for private gain or profit, or change the public character of the institution. Its property still can only be applied to the payment of its debts, and to the promotion of the general objects of the association, as expressed in its constitution.</p>

<p>1. Guaranty—tender of other security—effect wpon liability of guarantor. The maker of a promissory note upon which there was a guaranty by a third person, procured another note, which he delivered to the holder of the former note, with a request that he declare his election whether he would accept the new note in satisfaction of the one upon which there was a guaranty. The holder retained the new note for several years, without, however, indicating his acceptance of it in satisfaction of the prior note. In an action upon the guaranty, subsequently brought, it was held, the facts mentioned did not operate to discharge the guarantor.</p> <p>2. Same—release of other security with guarantor’s consent. If a guarantor of a note consents to the release of a trust deed also securing such note, which is done without the knowledge of the holder of the note, the guarantor will not thereby be released from his liability. Where a party consents to the doing of an act which would not have been done but for his assent thereto, the person so assenting will not be permitted to make the doing of it a matter of personal advantage to himself.</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. Statute—as embracing more than one subject—of the Criminal Code, in providing various remedies for the suppression of gambling. The latter part of section 132 of the Criminal Code, which is entitled “An act to revise the law in relation to criminal jurisprudence, ” and which authorizes the party losing money by playing at cards, or other games, to recover back the money or thing lost, and on default of bringing suit for such recovery within a time limited by the statute, giving a right of action to any person to sue for and recover treble the value of the money, goods, chattels or other things lost at gaming, by special action on the case against the winner, one-half to the use of the county and the other to the person suing, is not in contravention of the constitutional provision that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title,” etc.</p> <p>2. This constitutional provision has always received a liberal construction, and the courts hold, substantially, that there may be included in an act any means which are reasonably adapted to secure the object indicated by the title, without infringing such provision.</p> <p>3. For the purpose of suppressing and punishing crime, the legislature may constitutionally provide punishments other than by indictment, a public prosecution, and fine on conviction. It may, in addition, provide for a civil action in favor of the party injured, or give a penal action at the suit of any one who will prosecute for the same, in which the guilty party may be subjected to fine, penalty, forfeiture or damages. It matters not by what mode the recovery is had,—whether by a criminal or civil procedure,—nor what is the name given to the means adopted.</p> <p>4. The fact that a statute confessedly constitutional is incorporated into a section of the Criminal Code, giving a right of action against the winner of money or other property at cards or other game, and inflicting a forfeiture or penalty, which for many years before had constituted a separate and independent act, will not authorize the courts to hold the same unconstitutional because arranged under the head of the Criminal Code, where its effect and tendency is the suppression of the crime of gambling. Such change indicates rather that such civil remedy is regarded as in the nature of a punishment, by the law-making power.</p>

This is an original proceeding in this court for a mandamus.

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

<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. John J. Glenn, Judge, presiding.</p>

<p>1. Conflict of jurisdiction— between State and Federal courts— abuse of process. A bill will not lie in the State courts to set aside a sale of land on execution issued upon a judgment in the Circuit Court of the United States, and have the marshal’s certificate of purchase declared void, and a cloud upon the complainant’s title, and to have the same delivered up for cancellation. The remedy in such a case is in the Federal court, to avoid any conflict of jurisdiction.</p> <p>2. The Federal courts are the proper tribunals to apply to for redress when there has been an abuse of their process. This is the better rule, certainly, so long as anything remains to be done by those courts, or any of their officers, to carry into effect the object and purposes of the litigation commenced in them.</p>

<p>1. Parties—recovery by one member of a law firm—for services not embraced in the business of the partnership. Where the firm business of attorneys at law only extends to their county, and one of such-firm is individually retained in cases out of such county, and not the firm, then, on the death of the attorney so employed, an action to recover for his services will be properly brought in the name of his administrator; and when an attorney is retained before forming a partnership, and his partner has no connection with or interest in the management of the litigation, there will be no right of action on such retainer to the firm.</p> <p>2. Estoppel—by party’s own admissions or statements, when acted upon. After the death of an attorney who had been attending to legal business for a party, the latter refused to recognize the attorney’s partner as having any interest in the claim for services, insisting that he employed the partner who had died, alone, and thereby induced the administrators of the deceased attorney to sue in their names for the fees due for such services: Held, that in such suit the defendant was precluded from insisting that he retained the firm. Parties are precluded from contradicting their solemn admissions or statements, deliberately made, when acted on by others.</p> <p>3. Evidence—entry in party’s oivn books. On the trial of a suit to recover for the services of an attorney at law, brought by his personal representatives, the defendant proved by a witness that he, the witness, paid the attorney his fee in a certain suit, brought in the name of the defendant. The plaintiffs then introduced in evidence an entry in the deceased attorney’s books, in his handwriting, showing that such fee was paid by the defendant: Held, that there was no error in the admission of such entry, as it tended to contradict the witness’ statement that he paid the fee.</p>

Writ of Error to the Circuit Court of Stark county; the Hon. N. M. Laws, Judge, presiding. On the 2d day of September, 1855, one Peter Ferbrache died intestate, seized of the land in controversy in this case,— a certain described sixty acres of land in Stark county,— leaving surviving him his widow, Elizabeth Ferbrache, and several children, his heirs at law.

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

<p>1. Will—devise as violating the rule against perpetuities—and in what cases .that rule applies. A devise of land to certain tenants for life, remainder over to another, which prohibits the sale of the property for twenty-five years after the death of the last tenant for life, would seem to fall within the rule against perpetuities, if the devise is not to charitable uses.</p> <p>2. Charitable uses—perpetuities—exception under the rule—the statute of 43d Fliz. The statute of 43d Eliz., chapter 4, is in force in this State, and, operates to exclude conveyances and devises for charitable uses from the operation of the rule against perpetuities.</p> <p>3. That statute embraces schools or institutions of learning, and not only free schools, but other schools, without their instruction being gratuitous; and a devise for the purpose of establishing a school of learning at a certain place, is sufficiently public in its character to be sustained as a public charity.</p> <p>4. Same—what regarded as a public charity—of a devise to a religious society, for church and educational purposes. A devise of land to a church of a certain city, to sustain the preaching of the gospel in such city by such church, and to advance the educational interests of the church, and authorizing the use of the income of the property to pay any balance of salary due the minister or pastor of such church, and the surplus to be applied to educational purposes in connection with the church, is not void as being local, and not a public charity, and the object of the devise is sufficiently specific and certain.</p> <p>5. A devise of a block of land to the Presbyterian church of a certain place, after the expiration of prior life estates, (created by the will in trust for the following uses and purposes: First, to sustain and maintain Presbyterian preaching in such place; and second, to advance and promote, as far as practicable, the educational interests of said church,) authorized the improvement of the block, and prohibited its sale for twenty-five years from the death of the last tenant for life, and empowered the session of the church to use the income, first to pay any balance or part of salary due the minister or pastor of said church, and to apply the surplus to such educational purposes in connection with said church, as they might deem advisable. After fifty years the will authorized the whole, principal and accumulations, to be used in establishing an educational institution, under the control and patronage of said church: Held, that the purposes of the devise were within the exception to the rule against perpetuities, and that the uses to which the property was devoted were charitable, and that the devise was valid and binding.</p> <p>6. Same—devise to a charily—whether sufficiently certain. A testator devised a block of land to a Presbyterian church of a certain place, the land to be improved and kept for a certain number of years, when the proceeds and accumulations might be applied in establishing an institution of learning, and provided that until the period fixed for establishing the institution of learning, the income should be used to pay the minister or pastor of such church any unpaid balance on his salary, and the surplus to be applied, under the directions of the session of the church, to such educational purposes, in connection with the church, as the session might deem advisable: Held, that the devise was not too vague and indefinite as to the purpose of the devise, or as to who are the beneficiaries, to be valid, and was capable of being enforced.</p> <p>7. Religious society—limit of capacity to tahe and hold real estate. The statute authorizes a church or religious body to acquire and hold not exceeding ten acres of land, without any limit as to value or income. Such bodies are limited as to the quantity of real estate they may hold, but not as to its value.</p> <p>8. Same—as to the vesting of title, in case of a devise to a trustee. On the incorporation of a church all property held by a trustee for its use, is by the statute vested in the corporate body, to be held and used according to the intention of the grantor or donor.</p> <p>9. So where" a testator devised land to the Presbyterian church of the city of Chester, for charitable uses, expressed and directed the manner of the election of a trustee, in whom the title should vest, it was held, that on the death of the testator the title to the land vested in the church as a corporate body, and that the trustee afterward elected could not become invested with the title. He toolc only a power (given by the will) to manage, control, sell and convey under the session of the church. Although the fee vested in the corporation, it was subject to the control and power conferred on the trustee by the will.</p>

<p>1. Usury—commissions to loan broker, or to the borrower’s own agent. The payment of an amount to a loan broker as commissions, by the borrower of money, which, added to the current interest upon the note, largely exceeds legal interest, does not show usury in the loan, without proof that the broker acted as the agent of the lender. It does not concern the lender what the borrower pays to his own agent.</p> <p>2. Same—taking interest in advance. It is the well settled law of this State that it is not usurious to exact the payment of interest in advance.</p> <p>3. A person obtained a loan of $4500 when the statute authorized ten per cent interest on money loaned, and the agent effecting the loan retained $225 of that sum. The borrower gave his note for $4500, payable five years after the date thereof, with nine per cent interest. It was held,, that there could be no usury, as the $225 was the interest on the whole sum for five years, at one per cent. In such case the borrower did not pay more than ten per cent, (the legal rate,) so there was no usury, even if the agent acted for the lender.</p> <p>4. Practice in the Supreme Court—whether question arises as to legality of master’s fee. Until the trial court has adjudicated upon the master’s fee charged or entered in his report, this court will not inquire whether the amount charged is legal or illegal. By approving the master’s report the court below will not be presumed to have passed upon the master’s charge and statement of costs appended below his signature, where such charges were not within the reference.</p> <p>5. Corporation—corporate existence—effect of dealing with a body as a corporation, as an admission of its corporate existence. The execution of a note, mortgage, etc., to a corporation, as such, is sufficient prima facie evidence of the existence of the corporation, and no further proof thereof is necessary until such proof is rebutted. This is a rule of evidence, rather than the application of the doctrine of a strict estoppel.</p> <p>6. Same—plea of ultra vires—whether allowable by a borrower of money from a corporation. There is nothing in the character of a corporation for the loaning of money, contrary to public policy in this State; and where a party has borrowed money of such corporation, and given his note for the same, secured by mortgage, to allow the plea of ultra vires would work a wrong and injustice, which is not admissible.</p> <p>7. Chancery practice—objections to answer—how to be taken—and when availing. No question can be raised by demurrer to an answer in chancery. Under the chancery practice, if an answer is defective it must be excepted to, a demurrer not being allowed. And when the answer is not under oath, exceptions will not lie, because such answer is not evidence for the party making it.</p>

<p>1. Description—rejecting one of two descriptions of land in the same instrument. Where there are two descriptions of the same premises in a deed or other writing, one of which is complete and the other has something added which is subordinate and incorrect, the incorrect or subordinate part may be regarded as surplusage.</p> <p>2. A decree on a bill for the assignment of dower and partition of lands found that the ancestor of the heirs, and husband of the widow, died seized of the north-west quarter of the south-west quarter of section 1, and the north half of the south-west quarter of the south-west quarter of section 1, in town 14 south, range 2 east, and other lands described, and appointed commissioners to set apart the widow’s dower in such lands, and divide the residue thereof between the heirs, if partition could be made without prejudice to the owners. The commissioners reported that they had examined “the said real estate,” and set apart and allotted to the widow, “as her dower in full in and to said real estate,” the north-west quarter of the south-west quarter, and the north half of the south-west quarter of the south-west quarter of section 2, town 14 south, range 2 east. It further appeared that the deceased ancestor never owned any such land in section 2: Held, that from the whole decree it was apparent the commissioners never intended to set off to the widow the land described as being in section 2, but on the contrary it was plain that the figure “2” was used when “1” was intended, and that the description of the land as being in section 2 might be rejected as surplusage.</p> <p>3. Evidence—admissions amounting to proof of life tenant’s death. The heirs of a deceased person can not recover in ejectment the lands of their ancestor set off to the widow as dower, during her lifetime; but when it is admitted on the trial that plaintiffs are prima facie entitled to recover the lands in controversy by reason of being the heirs of F. M., deceased, who died, etc., seized in fee of the lands, proof of the widow’s death may be regarded as waived or her death as conceded.</p>

<p>1. Witness—credibility—how questioned. The prosecutrix in a prosecution for rape, or for an assault with intent to commit a rape, may be contradicted by showing that she has made statements, not under oath, inconsistent with her evidence, leaving her credibility a question for the jury.</p> <p>2. Continuance—application by defendant in prosecution for rape— sufficiency of grounds—absence of witness. An affidavit by the defendant for a continuance of a case of indictment for a rape, against him, showed that the prosecutrix was'the principal witness for the People; that she would testify on the trial that the defendant committed a rape upon her upon two different occasions, giving the time and place; that such evidence would be false; that defendant was not guilty as charged, and the prosecution by the prosecutrix was purely for blackmail. It also showed diligence in endeavoring to procure the attendance of a witness of the county, whose name was given, and that defendant could prove by such witness that at a time named, subsequent to that when the last rape was alleged to have been committed, in a conversation which he then had with the prosecutrix, she told him, voluntarily, “that the defendant never used any force or violence on the occasions the said prosecuting witness will testify as having been raped and assaulted by the defendant, and that the defendant never committed the crime of rape upon her, as charged, ” but his only offence was soliciting her to commit adultery, which she refused to do. The affidavit also showed the absence of the witness beyond the limits of the State without defendant’s procurement or consent, his inability to procure the attendance of the absent witness at that term of the court, and his ability to procure his attendance at the next term, and concluded by stating that defendant knew of no other witness by whom this proof could be made, and that the affidavit was not made for delay. The court denied the application: Held, that the court erred in refusing a continuance, and that it was not necessary to state that the prosecutrix would deny that she made such a statement to the absent witness. The party making such an affidavit is not required to state what he can not know, or his belief based solely on facts previously stated.</p> <p>3. Same—duty to cross-examine prosecuting witness as to matters proposed to be proven by absent witness. A party indicted for rape made application for a continuance, to enable him to procure the attendance of a witness, by whom to prove that the prosecutrix stated to him that the defendant used no force on her, and did not assault or rape her, etc., which was overruled. On the trial the prosecutrix testified to the rape, and defendant did not ask her in regard to what she had said to the absent witness, and from this omission it was claimed that the defendant was not prejudiced by the refusal of a continuance: Held, that the defendant was under no obligation to cross-examine the witness in this respect, his witness being absent, and that he waived nothing by declining to do so.</p> <p>4. Same—attachment of absent witness—of the questions presented on answer to the attachment. Where a motion for a continuance, based on an affidavit showing the absence of a material witness without the party’s consent, is overruled, and after the trial the absent witness is attached for absenting himself, and he, in answer to interrogatories, states that he went away by the consent of the party and his attorney, such statement of the witness can not be used to the prejudice of the party applying for the continuance, he being no party to the attachment.</p> <p>5. Rape—omitting to resist or make outcry. If a woman, when raped, is paralyzed by fear, she will not be expected to make resistance or outcry; and if the superiority of the defendant’s strength over hers is very great, she might not be able to make effectual resistance. If so remote from all human help that an outcry would prove unavailing, none need be made, as the law does not require the doing of impossible or useless acts.</p> <p>6. In a prosecution for a rape, where the defendant asked the court to instruct the jury as to the legal presumption arising from the conduct of the prosecutrix, such as failing to resist or make an outcry, the court modified the instruction by adding the words, “unless there was good excuse, ” etc.: Held, that the modification was erroneous. Instead of the words “good excuse, ” the court should have added what, in law, in the particular instance, constituted a “legal excuse, ” leaving the jury to find if the requisite facts constituting such legal excuse were proved.</p>

<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. Owen T. Reeves, Judge, presiding.</p> <p>It appears from the original and amended bills exhibited in the circuit court of Livingston county by Solomon E. King and Hugh M. Hamilton, against Isaac Defenbaugh, Franklin D. Sweetser, the National Bank of Pontiac, and the widow and heirs of Allen Walters, deceased, that on the first day of August, 1870, Franklin D. Sweetser and Henry Stanchfield were seized in fee simple of the quarter section of land about which this litigation is had, with some other land described in the bill; that on that day they made and delivered to Emma F. Hapgood their note for $3700, to become due in six years, with interest at ten per cent per annum, and to secure the same they executed and delivered to Charles Hap-good a mortgage or trust deed on all the lands described in the bill; that on the same day Sweetser and Stanchfield made and delivered to Emma F. Hapgood their other note for $1150, to become due in five years, with interest at ten per cent per annum, and als,o on the same day made and delivered to Lydia F. Hapgood their other note for $1150, to become due in five years, with ten per cent interest per annum, and to secure the payment of these last named notes they made another trust deed or mortgage on the same land described in the first mentioned mortgage, to Charles Hapgood. Both trust deeds or mortgages were recorded shortly after the making of the same, in the proper office in the county where the lands are situated.</p> <p>It further appears that afterwards, on the 2d day of October, 1871, Sweetser and Stanchfield sold and conveyed the quarter section, which is the real subject of this litigation, to Isaac Defenbaugh, for $6400, subject to the two Hapgood mortgages, both of which were on record, and on the same day they sold and conveyed the other two tracts described in the bill, to Adam Defenbaugh, for $4600, subject, also, to the two Hapgood mortgages. As a part of the purchase money for the tract of land sold to Isaac Defenbaugh, he assumed and agreed to pay on the Hapgood note, $3428.80, and for the balance ($2971.20) he gave to Sweetser his four notes, each for $650, to become due in seven, eight, nine and ten years, and one other note for $371.20, to become due in seven years, all bearing interest at the rate of ten per cent per annum, and secured the same by mortgage made to Sweetser, on the lands sold to him. In the same way Adam Defenbaugh agreed to pay a portion of the purchase money for the tracts of land sold to him, on the Hapgood notes, and gave his notes for the balance of the purchase money, running for a long series of years, secured by mortgage on the land sold to him. Isaac and Adam Defenbaugh went into the actual possession of the lands respectively purchased by them, but never paid any part of the purchase price. Failing to pay any part of the purchase money, or the taxes accruing thereon, an arrangement was afterwards, on the 14th day of October, 1875, made, by which Isaac Defenbaugh reconveyed the quarter section conveyed to him, back to Sweetser, in satisfaction of the note and mortgages executed by him to Sweetser, and also in satisfaction of the amount agreed to be paid by him on the Hapgood note, and for no other consideration. It was expressly agreed this latter conveyance was made subject to the Hapgood mortgages, and Sweetser released of record the mortgage made to him by Isaac Defenbaugh. In the meantime, (that is, on the 10th day of August, 1875,) the National Bank of Pontiac recovered a judgment in the circuit court against Isaac Defenbaugh and others, for $1700, which became a lien on the equity of redemption which the judgment debtor had in this quarter section of land. Afterwards, perhaps on the 19th day of June, 1876, a plañes execution, issued on the judgment in favor of the bank, was levied on this quarter section, and it was sold to the bank, to which the usual certificate of purchase was issued. No redemption from that sale having-been made, the sheriff made the bank a deed for the land. It is alleged, and it is no doubt true, that Sweetser had no actual knowledge of the judgment in favor of the bank when he released the Isaac Defenbaugh mortgage.- Defenbaugh did not disclose that fact.</p> <p>It further appears, that on the 21st day of October, 1875, Sweetser sold and conveyed the same quarter section that Isaac Defenbaugh had just reconveyed to him, to Allen Walters, for the sum of $6400, and to secure a part of the purchase money Walters gave to Sweetser his four notes, each for $1100, to become due March 1, 1881, 1882, 1883 and 1884, respectively, with ten per cent interest per annum, and secured the same by mortgage on the land, and also secured the balance of the purchase money ($2000) on another tract of land. These notes of Walters were assigned soon after, and delivered to King & Hamilton, complainants. At the time of the conveyance of this quarter section to Walters, the Hapgood trust deeds or mortgages were known to be an incumbrance on the land, and complainants, King & Hamilton, who were interested in the matter, covenanted with Walters, in writing, to take care of the Hapgood mortgages, so that when Walters paid for the land he would have it discharged from those prior mortgages. Afterwards the Hapgood notes came into the possession of complainants, and were held by them when their original bill herein was filed.</p> <p>It is alleged in the amended bill, that at the time of filing the original bill in this cause, complainants were, and had been for a long time, the legal and equitable owners of all the notes described as having been secured on this land, having derived their title thereto by regular assignments from the payees. It is also charged in the bill, that at the time the bank recovered its judgment against Isaac Defenbaugh and others, both the Hapgood mortgages and the mortgage given by Isaac Defenbaugh to Sweetser, were prior and valid liens on the land, and are still such liens thereon, and that the bank is fraudulently seeking to acquire the title to this quarter section, under the circumstances stated, against the rights and equities of complainants. It is also alleged that taxes had accrued on the land, and had been paid by the holders of the securities, which were also a prior lien on the land. Allen Walters died December 28, 1878, and his widow and heirs are made defendants to the bill, with the National Bank of Pontiac, Franklin B. Sweetser, Isaac Defenbaugh, and others. The National bank answered the bill, and set up and insisted on its title acquired under its judgment against Isaac Defenbaugh, and denied the ownership of the notes by complainants, as set forth in the bill. Franklin D. Sweetser also answered the bill, admitting all the material allegations, and then filed a cross-bill reciting the fact, and asked to have the Isaac Defenbaugh mortgage foreclosed in his favor, notwithstanding the release of the same on record, alleging the release was procured by fraud, when he had no knowledge of the judgment of the bank against the mortgagor. To the cross-bill, it seems, the circuit court sustained a demurrer, and dismissed it. The minor heirs of Allen Walters answered by guardian ad litem, and the cause being at issue, it was heard by the court on the bill and proofs introduced at the hearing.</p> <p>The court found the facts substantially as they are alleged in the original and amended bills, and decreed that unless the defendant the National Bank of Pontiac pay to complainants the sum of $7983.29, (which sum includes the amount due on the mortgage from Isaac Defenbaugh to Sweetser, and also the amount Isaac Defenbaugh agreed to pay on the Hapgood notes and mortgages,) and the taxes that have accrued on the land, within ninety days from the date of the decree, it shall thenceforth stand absolutely debarred and foreclosed of and from all rights, title and interest, and equity of redemption, in the quarter section of land. It was also further ordered, that if this money was not paid by the bank to complainants, they should have leave to file a supplemental bill in this cause, foreclosing the mortgage made by Allen Walters, since deceased, to Sweetser, it having been found by the decree that complainants were the holders of the Walters notes and mortgages, as assignees of Sweetser. This decree was affirmed in the Appellate Court for the Second District, where the bank assigned errors, and where Sweetser also assigned for error that the circuit court erred in dismissing his cross-bill. The bank brings the case to this court on appeal, but Sweetser has not assigned any errors in this court, and that branch of the case in which he is particularly interested on his cross-bill, is not considered in the opinion of the court. "</p>

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

<p>1. Boundaries—settled by parol agreement. The owners of adjoining tracts of land may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line thus agreed upon, is binding and conclusive, not only upon them, but also upon their grantees.</p> <p>2. Limitation—adverse possession—how it may be shown. Adverse possession of land under the Limitation law may be shown by inference, from circumstantial evidence. In respect to a disputed boundary line, the fact that the defendant placed his fence twenty feet beyond or outside of what was generally regarded, and he was told was, the true line, and that he built his house and planted his orchard on the disputed land, are circumstances from which a jury may infer his possession was adverse, and that he claimed to own the land,—and this, too, in the absence of any declarations of such claim of adverse possession. It is not true that adverse possession can be proved only by clear and positive evidence. It may be proved by any legitimate testimony, and by a mere preponderance, like any other issue in a civil suit.</p> <p>3. Same—what regarded as adverse possession. If'the owner of a tract of land, in inclosing the same, builds his fence on one side in doubt as to whether it is on his own land, and declares that if it is not on the true line, when established he will conform to it, the possession outside of the true line, and up to the fence, will not be adverse; but if such party believed his fence was within the true boundary line, and he took possession and occupied it under that belief, his possession would be adverse. Nor would it matter that he made a statement that if it should be established that the fence was not upon the true line before the bar of the statute had run, he would submit and regard the true line under his possession subservient to the true owner.</p> <p>4. Instbuction—calling attention to an issue not in the case. In ejectment to recover a strip of land which had been occupied by the defendant for twenty years, under a claim that it was within the boundaries of his quarter section, in which the twenty years’ Limitation law was set up as a defence, the court instructed the jury, for the plaintiff, that if the defendant, by his declarations and acts, admitted that his fence was not a fixed and settled boundary line between the lands in dispute, they should find the Statute of Limitations was no bar. There was no pretense that the defendant ever claimed the fence as the boundary line, but he did claim that the centre of the road along and twenty feet south of his fence was the line between the two tracts: Held, that the instruction was erroneous and misleading, as calling the attention of the jury from the real to a fictitious issue.</p> <p>5. Same—assuming facts to be true which are controverted. An instruction which assumes as true certain statements and admissions of the opposite party which are controverted facts for the jury, and that they were absolute and unconditional, while the evidence clearly tends to prove that if made they were conditional, is highly calculated to mislead the jury, and is erroneous.</p> <p>6. Same—construed, as being contradictory. In a contest over a strip of land, between adjoining owners, growing out of a dispute as to the true line dividing the two tracts, in which the defendant relied upon the Statute of Limitations, the court, at the instance of the plaintiff, instructed the jury that if the defendant occupied the land up to his fence because he believed it to be the true line, without intending to claim to the fence if it should not be the line, then an element of adverse possession was wanting: Held, that the instruction was not accurate, and should not have been given, its language being self-contradictory.</p>

Murray F. Tuley, Judge, presiding. Jane Dawson filed her bill in chancery, praying for a divorce from her husband, John Dawson, in the circuit court of Cook county, on the second day of December, 1881, alleging therein, among other things, her marriage with John Dawson, the birth of two children, the issue of such marriage, the ownership of certain ” property by John, and that he had been guilty of habitual drunkenness for more than two years last past.

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

<p>1. Negligence—due care on the part of the plaintiff. In an action on the case against a city and the owner of premises in the city, to recover for an injury received from a neglect to keep the sidewalk in front of the premises in repair, the court instructed the jury that “when a city is vested, under the provisions of its charter, with the charge of its streets, roads, alleys and sidewalks, said city is bound to see that the same are kept in a reasonably safe state of repair; and such city is liable to parties injured by its negligence in so doing:” Held, that the instruction lacked the essential qualification that the plaintiff was, at the time of the injury, observing that due care and caution for his personal safety a reasonable person would do under the same circumstances.</p> <p>2. Same — of joint and several liability — distinction in this regard between a trespass and a neglect of duty. For separate acts of trespass separately done, or for positive acts negligently done, although a single injury is inflicted, the parties can not be jointly held liable to the party injured. If there is no concert of action, or no common intent, there is no joint liability. But a different principle applies when the injury is the result of a neglect to perform a common duty resting on two or more persons, although there may be no concert of action between them. In such cases the injured party may have his election to sue all parties owing the common duty, or each separately, treating the liability as joint or separate.</p> <p>3. Same—in the case sidewalks are out of repair—liability of the city and of the private owner of adjacent premises. Where a duty rests upon both a city and the owner of premises within the city to keep the sidewalk in repair fronting the premises, and over an excavation, a failure to do so is a common neglect of duty, and both will be liable, either jointly or severally, to one injured in consequence of such neglect, who has himself exercised due care.</p> <p>4. Same—in the case of leased premises—liability as between landlord and tenant. The tenant in possession, and not the landlord, is responsible to third persons for injuries occasioned by a failure to keep the demised premises in repair, unless the owner has agreed to keep them in repair, or when the premises were let with the alleged nuisance upon them, in which case the owner, and not the tenant, is responsible for injuries caused by the nuisance.</p> <p>5. Instruction—correcting an error in one by stating the true rule in another. The practice of giving an instruction which, standing alone, does not correctly state the law of the case upon the facts, and then giving a separate instruction which, if read with the other, would announce the true rule, is not to be commended, if it is not an error. It is better that each instruction should be as nearly accurate as it can be made, in itself.</p> <p>6. Same—directing the jury as to extent of finding of damages. In an action to recover damages for a personal injury alleged to have been occasioned by the negligence of the defendant, the court instructed the jury, for the plaintiff, that if they found, from the evidence, the plaintiff had established his case, and was entitled to a verdict for damages, then it became their “duty to fix such damages at the full sum that upon the whole evidence” should “prove to be just and reasonable:” Held, that the instruction was calculated to create in the minds of the jury the belief that it was their duty, in case they found for the plaintiff, to fix his damages at the highest possible amount the evidence would justify, and that it was error to tell the jury, as a matter of law, that such was their duty.</p> <p>7. Same—suggesting what influences ought not to control as to extent of damages. In an action on the case against a city and another party, the court, in an instruction, told the jury that in forming an estimate of the damages sustained by the plaintiff, they had no right and should not permit themselves to be influenced by any consideration of what effect their verdict might have upon taxation in the case of the city, or upon his financial condition in the case of the other defendant: Held, that this was in no sense submitting a proposition of law to the jury, applicable to the facts, but a mere suggestion to them, which the court had no right to make.</p>

Elbert H. Gary, Judge, presiding. • This was a proceeding to contest an election for the office of town clerk of the town of South Chicago, commenced in the county court of Cook county, and taken thence, by change of venue, to the county court of Du Page county. That court found that the contestant, Henry Malzacher, was duly elected to the office, and decreed accordingly, and this appeal is prosecuted to reverse that decree. .

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

<p>1. Stockholder's individual liability—set-off of debt to him from corporation. In an action by a creditor of a corporation against a stockholder to enforce his individual liability to creditors for an amount equal to his stock in the corporation, the stockholder will not be allowed to set off against his liability an indebtedness of the corporation to him.</p> <p>2. Same—preference to creditors who are most diligent. The creditor of the corporation first suing a stockholder in respect to his individual liability acquires by his suit a preference over other creditors, which neither they nor the stockholder can defeat, unless possibly by bringing a bill for a general closing up of the affairs of the corporation. Such action is in the nature of an equitable attachment of the stockholder’s liability to the extent of the plaintiff creditor’s claim. The stockholder, after notice of such a suit against him, can not defeat the action by paying other creditors to the extent of his liability.</p> <p>3. Same—limit, when reached, discharge of stock from further liability —rights and liability of purchaser. Where a judgment is recovered'against a stockholder by a creditor of the corporation, under a statute making the former liable personally to creditors for an amount equal to the stock held by him, which he pays, his stock thereafter will be free from liability, and he may sell and transfer the same, and his assignee will take such stock without any liability on his part in consequence of his ownership of the same.</p> <p>4. There can be but one amount for which there is liability on account of the same share of stock, where that liability equals or exceeds the amount of such share, and for that amount both the assignor and assignee may be liable,—the former in case the debt was incurred by the corporation within three months after the date of the assignment of the stock, where that is the limit of time during which the liability of the assignor shall continue, and the assignee in case it was incurred after he became the holder of the stock; but there can be but one satisfaction. If the assignor is compelled to pay on account of debts of the corporation made within three months after his transfer of stock, he may have his action against the person owning such stock when the debt was created, and recover the sum so paid by him.</p>

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

<p>Writ of Error to the Circuit Court of Williamson county; the Hon. D. M. Browning, Judge, presiding.</p>

<p>1. Pbactice—excluding all the plaintiff’a evidence—directing a verdict for the defendant. Although there may be some evidence tending to support the plaintiff’s case, yet where the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so far insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.</p> <p>2. Negligence—as between master and servant—want of proper care on the part of the latter. While there is an implied contract betwéen employer and employe that the former shall provide suitable means, appliances and instrumentalities with which to perform the labors required of the latter, and also that the latter shall be advised by the former of all dangers incident to the service of which the latter is not cognizant, yet the failure of the employer in this regard furnishes no excuse for the conduct of an employe who voluntarily incurs a known danger.</p> <p>3. If a servant, knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he can not maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.</p> <p>4. In this case, an employe of a railroad company was killed by the falling of a bank of earth which he was engaged in excavating. His administrator brought suit for damages, against the company, on the alleged ground of a want of proper care on the part of the agents of the company in charge of the work, in directing the manner in which it should be done. The facts, as shown by the testimony, were substantially these: A number of laborers were engaged in excavating a’hill, under the direction of a foreman. The bank, at the point where the accident occurred, was sixteen to twenty feet high, and composed of clay commonly called “joint clay. ” The deceased was twenty-eight years of age, an old miner in the neighborhood, and accustomed to work in that kind of earth. The manner of doing the work, and as directed by the foreman, was undermining the bank by digging under from two to three feet, and prying the bank off from the top. That was not the proper and safe way to take down the bank. The foreman had control of the men, and could discharge them for disobedience of orders. On the morning of the accident, the foreman, as he was about to go elsewhere, cautioned the men about the danger. Two days previously the superintendent of the road told the men that the way they were doing the work was dangerous,—that they must not cave it off that way, and that they must not dig under so far. In the forenoon of the accident several of the men, the deceased himself included, were speaking of the bank getting dangerous. One man left the place on that account, and another went to work somewhere else. This the deceased could have done if he had desired, as he was not required to work at that particular place, but chose it for himself; and continuing to work there, the bank fell • upon him and killed him. The court below, on this state of case, excluded all the plaintiff’s evidence from the jury, and directed a verdict for the defendant. This was proper. There was no sufficient ground of recovery, the deceased having voluntarily continued in the place of danger with full knowledge of the peril he was in.</p>

<p>1. Conflict of laws—insolvency laws of another State. The courts of this State will not enforce the insolvent laws of another State by giving effect to a statutory assignment of the effects of a debtor residing in such other State, even as against an attaching creditor of the same State of the debtor.</p> <p>2. Neither the law of another State or country, nor the adjudication of the courts thereof, by which trustees are appointed to take the property and effects of an insolvent debtor and distribute the proceeds, can have any extraterritorial effect. They are strictly local, and affect nothing more than they can reach. An assignment in mrotum, by virtue of or under a foreign law, does not operate upon a debt or right of action as against a person in this State or suing here.</p> <p>■3. Same—assignment under Insolvent Debtor's act—how far subject to equities. Assignees or trustees of an" insolvent debtor appointed by the courts under the provisions of a statute, take under the assignment, subject to every equity belonging to foreign creditors, and subject to the remedies provided by the laws of the foreign country where the debt is due.</p> <p>4. Under a domestic attachment in a court in the State of Pennsylvania, trustees of the estate of the debtor were appointed by such court in accordance with a statute of that State, which statute vested them with all the estate of the debtor, including all debts and things in action from the date of such attachment. Creditors of such debtor, residents of the State of Pennsylvania, brought an action by attachment against him in this State, and garnisheed persons residents of this State, who were indebted to such non-resident debtor; and thereupon the trustees appointed in the State of Pennsylvania sought to defeat the attachment here by interpleading and claiming the debts garnisheed, by virtue of their appointment and the laws of that State: Held, that such trustees took subject to the remedies provided by the laws of this State, where the fund had its existence, and that the creditors suing here obtained the right to have such fund applied on their judgment.</p>

<p>1. Obiminal law—encouraging commission of unlawful act, resulting in homicide—liability for consequences. Several persons of a party passing along a highway got out of the wagon in which they were traveling and went into an orchard without permission. The owner ordered them to leave, which they refused to do, when others from the wagon entered the orchard, armed with clods of dirt, and assaulted the owner, using very offensive language to him, and one of the party struck the owner, with a clod, upon the back part of the neck, felling him to the ground, from which blow death ensued in a few minutes. It appeared that one of the intruders, who was tried separately, took a part in the affray, and tried to kick the deceased while lying prostrate from the blow. It was held, that it was not necessary to show that he threw the missile which caused the death, in order to sustain his conviction for manslaughter. It was sufficient that he was present, encouraging the perpetration of the offence, to make him equally guilty with the party who struck the fatal blow.</p> <p>2. Evidence—exclamation of one of several persons who had committed an unlawful act. Several persons, including one who was put upon trial for murder, while traveling along the road entered an orchard by the road side, when, without justification, in a difficulty with the owner, who had ordered them to go out of his orchard, some one of the party, by a blow with a clod, killed the owner, and they all then got into the wagon and started toward their homes. A party in pursuit of them, seeking to have them arrested, passed the wagon, when some one of them called out, “Hello, good-looking fellow!” or something like that, but such witness so addressed could not say the defendant was in the wagon at that time. It appeared, however, from the defendant’s own testimony, that he did not get out of the wagon until after they reached the next point where they stopped: Held, that the court properly refused to strike out of the testimony the words so spoken to the witness.</p> <p>3. Same—cross-examination—latitude allowed. Great latitude should always be allowed in cross-examination, especially in a capital case, and the court should never interpose except where there is a manifest abuse of the right.</p> <p>4. Where a witness, on a second examination as to a particular transaction, states an important fact omitted in his previous account of the matter, his attention, on cross-examination, may properly be called to the fact, and he be required to explain why the omission was made in his first statement.</p> <p>5. So, on the trial of one for murder, the death having been caused by a blow with a clod from the hand of some one of several trespassers, a witness who was present at the time of the killing, stated, on his examination in chief, that the defendant then being tried, during the transaction called the 'deceased “a son of a bitch,”—on cross-examination the witness was asked if in his former examination he had made any such statement as that. On objection, the court below held that the inquiry should be limited to the questions actually asked and the answers given in the former examination, and that the question was improper: field, that the rule laid down by the court was rather stringent. The inquiry might well be made, with the view to ascertain the motive of the witness in omitting the statement on his examination in chief, in case it should turn out he had done so.</p> <p>6. Error will not always reverse—exclusion of evidence. Although the court, on the trial of a cause, may err in the exclusion of evidence, or in refusing to allow certain questions to be put on cross-examination, yet if this court is fully satisfied, under the facts of the case, that the error could not have affected the result, the error will afford no ground of reversal.</p> <p>7. Instructions—whether sufficient as a whole. It being impracticable to require absolute, literal accuracy in instructions, it is therefore sufficient if the instructions, considered as a whole, substantially present the law of the case fairly to the jury.</p>

<p>1. Parties—suit for use of another—death of nominal plaintiff—substitution of his administrator. The nominal plaintiff in an action of assumpsit, which appeared from the face of the declaration to have been brought for the use of another, having died pending the suit, the name of his administrator was substituted as plaintiff. Before judgment the declaration was amended, and the name of the person for whose use the suit appeared to have been brought was stricken out, and so far as appeared he had no interest in the cause of action. Upon objection that the name of the administrator was improperly substituted as plaintiff, because the declaration as originally filed alleged that the suit was brought for the use of the person named, it was held, there was no error in that regard.</p> <p>■ 2. Surety—remedies to reimburse himself for money paid for his principal. "Where a surety has paid the amount of a judgment rendered against himself and his principal, he may, in order to his reimbursement, either keep the judgment alive, for his benefit, by procuring it to be formally assigned to some third person, or he may treat the judgment as satisfied and discharged, and resort to his action against his principal; and in the event of his choosing to pursue the latter course, it will not matter that there is an existing formal assignment of the judgment, which he had procured to be made. Notwithstanding such assignment, the surety may still treat the judgment as discharged, and resort to his action.</p> <p>3. Bankruptcy—nets promise. A discharge in bankruptcy will not avail as a defence against a creditor of the bankrupt, if the latter, after his discharge, makes an unconditional promise to his creditor to pay him. But the promise to pay must be express and direct,-—the mere expression of an intention to pay will not avail.</p>

Amos Watts, Judge, presiding. This was a hill in equity, filed by appellees, to enjoin appellant from removing the fence on the opposite sides of a field, where it is claimed a road enters and passes through the field.

<p>1. Master and servant—negligence of fellow-servant—respondeat superior—and herein, who are fellow-servants. Where one servant is injured by the negligence of his fellow-servant, the duties of both being such as to bring them into habitual consociation, so that they might exercise an influence upon each other promotive of proper caution, and the master is guilty of no negligence in the employment of the servant causing the injury, the master will not be held liable for the injury.</p> <p>2. Where it was to some extent the duty of a servant of a railway company, as night watcher, to note and report upon the conduct of the foreman of a night crew, whose duty it was to make up trains, etc., to his superior, and the night watcher could in no event perform his duty without constantly watching the engine and ears of the night crew while at or upon a crossing of a public street, it was held, that the night watcher and the foreman of the night crew were fellow-servants, within the legal meaning of that term, and that the common master was not liable to the night watcher for an injury received in consequence of the negligence of the foreman of the night crew in the discharge of his duties in switching cars on one of the tracks over the crossing.</p> <p>3. Same—when servant assumes rislcs by remaining in service. Where an employe, after having an opportunity to become acquainted with the risks of his situation, accepts the same, he can not complain if subsequently injured by such exposure. A party may, if he chooses, contract to take the risks of a known danger. Presumptively, in such a case he charges in proportion to the risk, or rather for the risk.</p> <p>4. Burden of proof—in showing negligence. In an action by an employe of a railway company to recover for a personal injury from being run over by a car while it was being switched, if the negligence of the company in the employment of the foreman or conductor engaged in moving the car, or in furnishing proper appliances, etc., is relied on, the burden of proving such negligence by a preponderance of evidence rests upon the plaintiff.</p>

<p>1. Usury—interest in advance. The taking of the legal rate of interest in advance is not regarded as usurious.</p> <p>2. Same—of commissions to loan agents. Brokers negotiating loans of other people’s money may charge the borrower commissions, without thereby making a loan at the full rate of legal interest usurious, where there is no arrangement with the lender that commissions shall be charged by the agent.</p> <p>3. Sale under trust deed—notice thereof—sufficiency, as showing amoumt dme. A notice of sale under a deed of trust contained this clause: “Default has been made in the payment of part of the interest note due November 22, 1876, and the whole of the interest note due May 22, 1877; and whereas, the legal holder of said note and unpaid interest coupons (the Pawtucket Institution for Savings) has thereupon exercised its option of declaring the whole principal sum, and the interest thereon, due and payable; and whereas, default has been made in the payment of the principal and interest so become due and payable, ” etc.: Held, that the notice showed, with reasonable certainty, that the amount claimed to be due was the principal sum, the interest note due May 22, 1877, and part of the interest note due November 22, 1876, and stated substantially the amount due. As to the part due on the latter note the notice was indefinite, but, considering the amounts involved, (the principal being $5000, and the interest notes $250,) and the smallness of the sum due on such interest note, the notice was held substantially good.</p> <p>4. Same—inadequacy of price—whether so regarded. In August, 1877, real estate was sold under a deed of trust for $5250, which the witnesses placed in value at $15,000 at that time, which it appeared was much more than the property could then have been sold for, there being no market for' the property at the latter price, and no demand for such property; and it appeared that in August, 1881, when the prices had advanced, it was sold for only $12,000, and that at the time of the sale there was some $2000 of unpaid taxes against the land: Held, that there was no such gross inadequacy of price as should lend much additional strength to any alleged irregularity in the sale.</p> <p>5. Laches—as a bar to bill to set aside a sale under a trust deed. A delay of four years in filing a bill by the former owner to set aside a sale of his real estate under a deed of trust, on the ground of alleged irregularities and inadequacy of price, when he knew of such sale shortly after it was made, and neglected to redeem the property by paying the sum due from him, such privilege having been offered him by the purchaser, and he allowed the taxes to accumulate against the property to a large amount, was held such laches as to bar the relief sought. A party, to avoid a sale of his land for mere irregularities, must act with promptness, and not wait to speculate upon the chances of a rise in the value of the property.</p>

<p>1. Ordinance—without a penalty—effect upon prosecution under another ordinance for the same offence. A section of a city ordinance which declares certain acts within the city to be a public nuisance, but provides no penalty for an infraction of its provisions, is no evidence in a prosecution for the same acts made punishable by another section or ordinance complete in itself.</p> <p>2. Same—and ordinance to suppress a nuisance, and providing a penalty—validity. An ordinance of the city of Chicago that “the owner or owners of any boat or locomotive engine, and the person or persons employed, as engineer or otherwise, in the working of the engine or engines in said boat, or in operating such locomotive, and the proprietor, lessee and occupant of any building, who shall permit or allow dense smoke to issue or be emitted from the smoke-stack of any such boat or locomotive, or the chimney of any building, within the corporate limits, shall be deemed and held guilty of creating a nuisance, and shall, for every such offence, be fined in a sum not less than five nor more than fifty dollars:” Held, to be valid and enforcible.</p> <p>3. Nuisance.—smolte in a city—whether a nuisance—and whether a nuisance must be so declared. If the effect of dense smoke emitted from a smoke-stack or chimney is detrimental to certain classes of property and business within the limits of a city, and is a personal annoyance to the public at large within the city, it is a public nuisance, whether so declared by ordinance or not. Unless such in fact, the act of so declaring it will not make it a public nuisance.</p> <p>4. Conflict of laws—smoke from tug-boats in Chicago river—prohibition by a city ordinance—whether a regulation of commerce. An ordinance of the city of Chicago, making the owners, etc., of tug-boats, engines, etc., liable for allowing the emission of dense smoke from their smoke-stacks, is not in violation of section 8, article 1, of the Federal constitution, which declares that “ Congress shall have power to regulate commerce, ” etc. Such a regulation by the city does not impose any restraint on the use of such vessels, although engaged in general commerce, other than is consistent with law. Controlling the use of tug-boats in towing in and out vessels from the harbor, is in no sense in conflict with the power existing in Congress to regulate commerce with foreign nations and among the several States.</p> <p>5. Same—as to State and, Federal jurisdiction. Where a conflict may arise between a State and the general government as to legislation committed to Congress, Federal authority must always prevail, for the reason that legislation in pursuance of the Constitution of the United States is the supreme law of the land. In some instances the State and general government may exercise concurrent jurisdiction in certain matters, and until the general government sees proper to act, State legislation is warranted, and the power of the State over such subjects is plenary.</p> <p>6. The existence of a power in Congress to control harbors, and the towing in and out merchant vessels engaged in commerce with foreign nations and with the several States, does not of itself prevent local legislation for the security of property, and the health, comfort and convenience of the people in a municipality. It is only repugnant and interfering State legislation that must give way to the paramount laws of Congress constitutionally enacted.</p> <p>7. Police poweb of the State—to what it extends—and to whom it may be delegated. A State has all power necessary for the protection of the property, health and comfort of the public, and it may delegate this power to local municipalities in such measure as may be deemed desirable for the best interests of the public; and the State may resume it again when deemed, expedient.</p> <p>8. Judicial notice—as to organization of city of Chicago—location of Chicago river—and denseness of population. This court will take judicial notice of the fact that the city of Chicago is organized under the general “Act to provide for the incorporation of cities and villages,” in force July 1, 1882; and also that the Chicago river is situated in the midst of the city, where a dense population exists, and near which much of the business of the city is transacted.</p>

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

Elliott Anthony, Judge, presiding. This is an action of ejectment, brought by Sherman, appellee, against Bolden and Stevens, appellants, to recover a strip of land six feet wide in its front on State street, and running eastward 144 feet to an alley, the north line of said strip being 927 feet south of the north line of fractional quarter-section 22,—otherwise described as six feet in width, from front to rear, of the north side of lot 8, in block 10, in assessor’s division…

<p>1. Agency—general agent—what constitutes. A general agent is one authorized to transact all the business of his principal, or all his business of some particular kind.</p> <p>2. Same—proof of usage, in ascertaining the powers of an agent. In the ease of a general agent the law permits usage to enter into and enlarge the liability of the principal,, in respect to contracts made by the agent; and it has been held that the usages of a particular trade or business are admissible for the purpose of interpreting the powers given to an agent or factor.</p> <p>3. Same—extent of the powers of an agent in the particular case. A corporation engaged in the manufacture of pig iron, adopted, through its directory, a resolution, as follows: “¡Resolved, that A B, of Chicago, be and is hereby appointed and employed by this company as its sole agent for the consignment and sale of its entire product, he to receive a commission, ” etc. This agent assumed to authorize another to make contracts in respect to the subject matter of the agency, and the latter did contract, on behalf of the corporation, with another manufacturing company, to supply the latter with all the pig iron they should need, use or consume in their business during the then ensuing season of such business. It was shown to have been the custom in Chicago for iron brokers to employ salesmen to make contracts with manufacturers of like kind for the year’s supply of iron, to be delivered as ordered. On the question as to the authority of the agent, it was held, that under the resolution appointing him, in connection with the usage of trade in Chicago among this class of dealers, he had authority, as the general agent of his principal, to contract, through the instrumentality employed, for the sale of iron thereafter to be produced, and to be delivered in the future as ordered. His authority was not limited merely to the sale of the iron when it was ready for the market.</p> <p>4. And aside from any usage or custom among dealers, the resolution of appointment itself was broad enough in its terms to constitute the person appointed the general agent of the principal, in respect to the business to which it related, and authorized him to contract for the future delivery of iron, as was done.</p> <p>5. Contract—mutuality. A contract between a manufacturer of pig iron and another who is engaged in a business requiring the use of that article, that the former will supply to the latter, and that the latter will purchase from him, all the pig iron which he should need, use or consume in his business during the then ensuing season of such business,'—fixing the limit of time,—such amount supposed by the parties about a certain named quantity, is not wanting in the element of mutuality. The buyer is as much bound to procure from the seller all the pig iron he should need in his business during the stipulated time, as the seller is to furnish it.</p>

Owen T. Reeves, Judge, presiding. This is an appeal from the judgment of the Appellate Court, affirming the judgment of the circuit court of McLean county, in an action on the case, brought by Pennell, against the railroad company, in May, 1875, seeking to recover the value of a hotel and its furniture, which was destroyed by fire on February 14, 1872, upon allegations that such loss was caused by the fault of the railroad company.

John G. Rogers, Judge, presiding. This suit was brought by Jesse Holdom, against John M. Ayer. The declaration is in case, and contains two counts.

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding. Sanders recovered judgment March 12, 1879, against Simpson W. Miller and Matilda Miller, for $3160, and costs, and on the next day sued out an execution, which was returned unsatisfied.

C. S. Conger, Judge, presiding. This is an appeal from a decree of the circuit court .of Wayne county, rendered at its October term, 1881, in a proceeding in chancery wherein Preston R. King is complainant and Walter B. Scates is defendant, setting aside certain conveyances as a cloud upon the title of the complainant to three tracts of land, being a part of what is known as the “swamp and overfloAved” lands of Wayne county.

<p>1. Receiver—what title passes to a receiver. Where a land company, prior to the appointment of a receiver of its lands, had conveyed the same by deed of trust, to secure holders of its guaranteed and preferred stock, and the company’s equity of redemption in the same lands had, before the filing of the bill in -which the receiver was appointed, been sold on execution, and the time of redemption passed, it was held, that the receiver took nothing by the decree under which he was appointed, or by a conveyance from the company itself, and hence could pass no title by a sale made by him of such lands in pursuance of the directions of the decree.</p> <p>2. Judioiaii sake — redemption—purchaser at judicial sale—talcing subject to right of redemption. A purchaser at a judicial sale of land buys subject to the statutory right of redemption by the defendant, his heirs, administrators or assigns, or any person interested in the property through or under the defendant, within twelve months, and by any decree or judgment creditor, his executors, administrators or assigns, after twelve and within fifteen months.</p> <p>3. Same—effect of a decree, as depriving a person of the statutory right of redemption. The right given by statute to a decree or judgment creditor to redeem, is not affected by a failure of the court to provide in its decree for the sale of real estate, for the privilege of redemption. That right is given by the statute, and not by the decree of the court. In a case where the statute authorizes a redemption from the sale, a clause in a decree declaring that the sale shall be made absolute, will not bar that right. That part of the decree will be regarded as inoperative, and a redemption allowed as in other cases. And it makes no difference whether the sale is made by an officer of the law, or by one appointed by the court to perform that duty.</p> <p>4. Same—purchaser of equity of redemption at execution sale—necessity of redeeming from the superior lien. A sale and sheriff’s deed under a judgment which is a junior lien on the land of the debtor to that of a deed of trust, pass only the debtor’s interest therein,—the equity of redemption; and such purchaser taking no rights superior to those of his debtor, must redeem from a subsequent sale made under a decree of foreclosure of the trust deed, within twelve months from the date of that sale, or he will, under the statute, be barred, and his title as the holder of the equity of redemption will be defeated.</p> <p>5. After the execution, and recording of deeds of trust by a debtor to secure payment of certain obligations, a judgment was recovered against him, upon which an execution was issued and levied upon the same lands embraced in the trust deeds, and a sale of them made to the plaintiff in the judgment. On bill filed by the person secured by the trust deed, to foreclose, in which the judgment’ creditor was made a party, a decree was rendered finding that his equities in the premises were subordinate to the equities and rights of the complainants, and ordering the trustee to sell the lands. A sale was made under the decree, and no redemption having been made from the sheriff’s sale, a deed was made to the assignee of the certificate of purchase, the date of the assignment thereof not appearing, no redemption having been made from the trustee’s sale under the decree: Held, that the grantee in the sheriff’s deed had no title to convey, it being cut off and defeated by his failure to redeem from the trustee’s sale.</p> <p>6. Same—redemption by judgment creditor—when the right exists. Where, before a foreclosure sale, the equity of redemption of the mortgagor has been sold on execution against him, and the period of redemption by him passed, so that he has no interest remaining, a creditor having a judgment or decree against him may redeem from the foreclosure sale.</p> <p>7. After sale on execution in favor of a bank, of the debtor’s equity of redemption in land, a bill was filed by other creditors to enforce and foreclose two deeds of trust on the same real estate, which were prior liens, making the purchaser under the execution, but not the assignee.of the certificate of purchase, a party, in which a decree was rendered holding the trust deeds the prior lien, and ordering a sale. The sale was made, and the assignee failing to redeem from the same, a judgment creditor redeemed from the sale under the decree: Held, that the failure to make the assignee a party to the bill could not affect the right of the judgment creditor to make his redemption from the sale under the decree, if any was allowable in such case.</p> <p>8. Same—who is a judgment creditor that may redeem. The decree or judgment creditor having the right to redeem, under the statute, from a judicial sale, is a decree or judgment creditor of the mortgagor or judgment debtor whose property has been sold and is the subject of' contention among his creditors. The statute does not embrace a judgment creditor of every person who may have been made a defendant to a foreclosure, as having some interest in the mortgaged premises.</p> <p>9. Same—who may object to a redemption by a judgment creditor. After the right of the holder of the equity of redemption in land is cut off by a foreclosure sale, he can not be heard to dispute the right of another judgment creditor to redeem from the foreclosure sale, as he has no interest to be affected. The only person who can object, if any one can, to a redemption by a junior decree or judgment creditor, is the purchaser at the sale redeemed from, or his assignee.</p> <p>10. Same—redemption from sales under trust deeds prior to the recent statute—effect of sale under decree of foreclosure. Under a deed of trust containing a power of sale given before the recent law on the subject took effect, a sale made by a trustee appointed by the court to execute the trust, is not subject to redemption, either by the mortgagor or a judgment creditor.</p> <p>11. But where the party secured files a bill to foreclose the same, and a decree is entered having all the elements and features of a common decree of foreclosure, as, when it finds the rights of the parties, and specifically directs the party who is to make the sale as to the notice to be given, the manner of the sale, and how to distribute the proceeds of the sale, and requires him to report his acts to the court for its approval, relieving the trustees from acting, except the one so appointed to carry the decree into execution, a sale made under such circumstances will not be regarded as made under the power in the deed, but as under a decree for the payment of money, and the right to redeem from such sale will exist the same as in the case of the foreclosure of an ordinary mortgage having no power of sale, and in such case it is not material that the person appointed to sell is named trustee or “active trustee. ”</p> <p>12. Mortgages—what amounts to a mortgage. Any conveyance of an estate to secure a debt or the performance of some act, such as the payment of money or the furnishing of indemnity, subject to be defeated by the performance of the act agreed to be done, is a mortgage.</p> <p>13. Deeds of trust by a corporation upon its lands, to trustees, to secure the performance of an undertaking of the company to pay dividends, or interest, on guaranteed and preferred stock issued and sold, and ultimately to pay for the stock itself, are in the strictest sense mortgages.</p>

Kirk Hawes, Judge, presiding. The two instructions, numbered one and nine, asked in behalf of the defendant below, and refused by the trial court, are as follows: “1. The court instructs the jury, that upon all the evidence in this case, and under the law that fixes the rights and prescribes the duties of the parties thereto, the plaintiff has no right to recover, and it is the duty of the jury to find the defendant not guilty. ” “9.

George Gardner, Judge, presiding. Charles D. Colson obtained a judgment, before one of the justices of the peace of Cook county, against John B. Leitch and Bernard Kelly. The summons issued by the justice of the peace was returned by the constable indorsed as having been properly served, thus professedly giving the justice of the peace jurisdiction of the persons of the defendants.

<p>1. Mandamus—whether it will lie—as to matters which are discretionary. Where a statute does not impose an absolute obligation upon a county board to perform a certain act, but clothes it with an ultimate discretion in the matter, or where the statute is merely directory as to the act, and not mandatory, creating an absolute duty, mandamus will not lie to compel the board to perform the act.</p> <p>2. Bridges—duty of county to aid towns in their construction. - By section 110 of the act of 1879, entitled “Roads and Bridges,” an absolute duty is imposed upon counties to aid in the building of bridges by the town authorities, whenever a case is clearly brought within its provisions. This section differs from the law in the act of 1872, in giving the county boards no discretion in the matter of aid, and making the duty imperative.</p> <p>3. Same—constitutionality of act of 1879. The provisions of section 110 of the Road and Bridge act of 1879, making counties liable to contribute one-half of the expense of town bridges upon certain contingencies, is not in contravention of sections 9 and 10, of article 9, of the constitution, as to what corporate authorities may be invested with the power of taxation.</p> <p>4. Municipal taxation—whether for a local corporate purpose. The raising of money by taxation in towns or counties, in pursuance of a general law of the State, for the purpose of building bridges, maintaining public highways, and for other objects of a similar character, in which the people of the State at large are directly interested, is not the levying of a tax for a strictly local corporate purpose, within the meaning of the constitution. (Art. 9, secs. 9 and 10.)</p> <p>5. Municipal authorities, in levying taxes for such purposes, are in a large sense mere agencies of the State in carrying into effept general laws which have been enacted for the common good. When thus acting they are but parts of the general machinery of the State and county governments. The rule is different as to the mere private concerns of a municipality in which the people at large have no interest.</p> <p>6. Same—as to the agency of highway commissioners. While it is true commissioners of highways are corporate bodies, whose powers and jurisdiction are limited, territorially, to their respective towns, yet they are a part of the machinery of the county and State governments, and, as such, under certain contingencies are required to act in concert with the county authorities proper, in the building and maintaining of bridges within their respective jurisdictions.</p> <p>7. The commissioners of highways, in a case where the county is required to contribute one-half of the expense of building a bridge, do not levy a tax upon the property of the tax-payers of the county, but they simply determine, in pursuance of the statute, when the contingencies have arisen requiring the county to contribute to the building of a bridge, and ascertain and report to the county board the cost of the structure, one-half of which the law requires them to pay; and in such case it is their duty to levy a tax to raise the required amount.</p>

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

Writ of Error to the Circuit Court of Christian county; the Hon. William R. Welch, Judge, presiding. This was an indictment found by the grand jury of Christian county, at the November term, 1881, of the circuit court, against Charles Green, John Brennan and Charles Doyle.

<p>Appeal from the Circuit Court of Lee county; the Hon. William Brown, Judge, presiding.</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. On October 21, 1870, Edward S. Wilcox and wife sold and conveyed to Ichabod S. Bartlett ten acres of land in the city of Elgin, for $3600.

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

Charles Kellum, Judge, presiding. This was a bill in the nature of a bill of review, filed in the circuit court of Lake county, on March 22, 1878, by the appellant, Quincy W. Wellington, against John Heermans, since deceased, and the other appellees, seeking to review a decree of said circuit court rendered at the March term, 1876, in a case of a bill filed by said Heermans to foreclose a certain mortgage, and asking that appellant be decreed to be the owner of said…

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

<p>1. Homestead—as to the measure of its extent, as to the lot or tract. of land. Where a debtor’s dwelling house, garden, orchard, and all the homestead improvements, are upon a forty-acre tract of a farm consisting of six hundred and forty acres, and such forty-acre tract exceeds in value $1000, the homestead exemption or estate will be confined to such forty-acre tract, and any of the remaining portion of the' farm may be sold on execution against ■ the debtor, free from any claim of homestead.</p> <p>2. If several tracts of land constituting a single, entire farm, occupied as a homestead, do not exceed in value $1000, the estate of homestead will include the farm; but if one lot of land occupied as a homestead exceeds in value $1000, the estate of homestead must be limited by the boundaries of that lot, although it may have been used as a part of a larger farm.</p> <p>3. Where the lot of land in which there is an estate of homestead, exceeds in value $1000, the excess is subject to the lien of a judgment against the owner, or of a mortgage.</p> <p>4. Same—as to the character of interest in which the right may exist. The owner of land can not have two distinct estates of homestead in the same property. Thus, if he mortgage his land, releasing the homestead right, he has no estate of homestead in the equity of redemption. Nor is this rule affected by the act of 1872, giving an estate of homestead as contra-distinguished from a mere exemption given by the former statute.</p> <p>5. Judicial sale—application of surplus money arising therefrom. A, being the owner of a farm of six hundred and forty acres, gave a deed of trust on two forty-acre tracts of the same to B, in which the homestead was properly released. It appeared that the homestead, buildings and improvements were all on the north forty-acre tract, and that it was worth more than $1000. Subsequently, D obtained judgments against A, under which the south forty-acre tract in the deed of trust was levied upon and sold to G, still leaving a balance due on D’s executions. The trustee afterward sold the entire eighty-acre tract to satisfy the indebtedness secured, selling the north forty acres first, which not bringing enough, the south forty was sold, D becoming the purchaser of both forties. The sale realized $408 more than enough to satisfy the trust deed: Held, that D, and not A, was entitled to such overplus left in the hands of the trustee.</p>

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

Writ of Error to the Circuit Court of Clay county; the Hon. William C. Jones, Judge, presiding.

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

<p>1. Possession—of part, under color of title of whole tract. The visible and exclusive appropriation and use of a part of a tract of land, claiming the whole under color of title, is in law an actual possession of the entire tract, except so far as there may be adverse possession.</p> <p>2. This rule only applies, however, where the deed purports to convey the whole. The possession does not extend beyond the color of title, and hence where a deed only purports to convey a particular interest in land, it is not evidence of possession beyond that interest.</p> <p>3. Where it is impossible to say what interest, if any, passes by a deed, the grantee or holder can not make it available to extend his possession of a part of the premises over the whole.</p> <p>4. Same—to show title to land. Where possession alone is relied on as evidence of title to a tract of land, it must be an actual, not a merely constructive, possession. Possession per se is evidence only of the mere fact of present occupancy by right, and the facts and collateral circumstances may be looked to as affording evidence whether or not the possessor claimed a fee. Abandoning possession, ceasing to pay any taxes, and allowing others to enter and occupy, will repel any presumption of a claim of title in fee, and raise a presumption that the claim pf the former occupant was less than' a fee, and had terminated.</p> <p>5. Conveyance—sufficiency of description. A deed described the land as “sixty-seven acres, part of claim 1096, survey 117.” Survey 117 contained one hundred and thirty-four and a fraction acres: Held, that the description was fatally defective, it failing to describe definitely any specific tract; held, also, that it could not convey an undivided half of survey 117, for the reason that an undivided half of the north-west half of the undivided half of a tract of land describes nothing tangible, either in quantity or interest.</p>

Sidney Smith, Judge, presiding. The evidence for the defence tends to show that on March 14, 1878, Loomis was liable as guarantor for the accommodation of Babcock & Ten Broeke, for $3000, and upon an accommodation note made by him for the accommodation of S. D. Cozzens, for $3500, and as accommodation guarantor for another debt of Babcock, guaranteed by Ten Broeke, of $1000,—in all amounting to about $7500.

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Decree—bill to review and impeach. A decree of a court can not be impeached or reviewed except for fraud or error.</p> <p>2. Administration—sale of land to pay debts—subject to incumbrance. The county court has the jurisdiction and power to order the sale of real estate of a decedent, when necessary, to pay debts of the estate, notwithstanding the same may be incumbered by a mortgage; and there is no error in directing the sale to be made subject to the mortgage. So an estate in remainder may be sold subject to the prior life estate.</p> <p>3. Same—sale of real estate subject to dower. On application by an administrator for a decree to sell real estate to pay debts, the county court has jurisdiction to order the assignment of dower and homestead to the widow of the intestate, and may properly direct the sale of the portion set off as dower, subject to the widow’s life estate.</p> <p>4. Same—sale to widow in payment of her specific allowance, not fraudulent. The sale of land assigned to the widow of an intestate by an administrator, to her, subject to the dower and homestead estate, she being the highest bidder, can not be impeached for fraud merely from the fact that she paid no cash, but gave her receipt to the administrator for the amount of her bid, against her specific allowance. Her receipt operated to release the estate of so much indebtedness.</p> <p>5. Same—fraudulent combination. At an administrator’s sale of lands an eighty-acre tract was struck off to a bidder for $250, subject to a mortgage and taxes, amounting to $350, the land not being worth more than from $600 to $800. The purchaser failing to take the land, the husband of the widow of the intestate agreed to take the land at the bid, when the administrator conveyed to the bidder, and he quitclaimed to the other party, who paid the bid and discharged the incumbrances: Held, that these facts did not even tend to show a fraudulent combination to obtain the property at a sacrifice.</p> <p>6. Same—remedy to impeach sale of land en masse. If two separate and distinct tracts of land are sold by an administrator as a whole, without first offering them separately, such fact affords a ground of exception to the report of sale, but not for impeaching the sale years afterwards by a bill in chancery. The remedy in such case is by motion to set aside the sale before its confirmation.</p> <p>7. Homestead—of a reassignment on change of value. The administrator of an estate filed his petition in the county court for an assignment to the widow of the intestate, of dower and homestead in the lands of the estate, and for an order of sale of the residue for the payment of debts. A decree was entered accordingly. Subsequently the heirs exhibited their bill in chancery to impeach that decree, or rather the sale made by the administrator under it, for fraud, and among other things prayed for a reassignment of the homestead. It was considered there was no case made for such reassignment, even if that might be done. If, because the land assigned for homestead has increased in value, a new assignment may be had to reduce the quantity, it would seem that when it has depreciated in value, for the same reason a new assignment might be had to increase the quantity.</p>

David J. Baker, Judge, presiding. This was an action of ejectment, brought by the Metropolis and New Columbia Gravel Road Company, against Hamilton Shirk and Albert P. Oakes, for the north half of block 120, in the city of Metropolis, in Massac county.

<p>1. Practice—time in which to procure a return to a writ of error. The statute has prescribed no time within which a return to a writ of error shall be made by the clerk of the court to whom it is directed. The practice in that regard is regulated alone by the rules or practice of the court from which the writ issues.</p> <p>2. Same—effect of neglect to have record sént up. Under a rule of the Appellate Court requiring a plaintiff in error or appellant to file abstracts and briefs on or before the second day of the term unless the time is extended, and that on failure to do so the judgment or decree of the court below shall be affirmed, on a writ of error to the circuit court, when no return to the writ had been returned by the clerk by sending up the record at the second term of the Appellate Court, though service had been made on the defendant in error before the first term, an order of continuance at the second term of the Appellate Court was set aside and the decree below affirmed, without any rule having first been taken to bring up the record: Held, no error in affirming the decree complained of.</p> <p>3. Error—presumption in favor of action of lower court. Where the Appellate Court affirms a decree sought to be reversed on writ of error, on the ground of a neglect of the plaintiff in error to have a transcript of the record sent up at the second term after service of the scire facias, unless it is made to appear to this court that the Appellate Court has thereby violated some rule of practice, it will be presumed that court has acted properly, and its judgment will be affirmed.</p> <p>4. Appellate Court—power to prescribe rules of practice. By section 10 of the act creating the Appellate Courts, that court is required to conform to the practice of this court so far as regulated by the statute, so far as it is applicable to that court; but in other respects that court may prescribe and construe its own rules and regulate its own practice.</p> <p>5. Same—rule of practice held good. The twenty-sixth rule of the Appellate Court for the Fourth District provides that the plaintiff in error or appellee must file abstracts and briefs on or before the second day of the term unless the time shall be extended, and that on failure to do so the judgment or decree of the court below shall be affirmed: Held, that there being no statute governing in this respect, that court had the power to prescribe such rule, and might affirm for a failure to have a transcript of the record filed before the second term after the writ of error was issued.</p>