Volume 111 — Illinois Reports

William H. Snyder, Judge, presiding. This was an action of assumpsit, brought by John A. Bruner, in the Madison circuit court, May 29, 1883, against the county of Madison.

Writ of Error to the Appellate Court for the Third District ; — heard in that court on appeal from the Circuit Court of Jersey county; the Hon. Lyman Lacey, Judge, presiding.

Writ of Error to the Appellate Court for the Third District ; — heard in that court on appeal from the County Court of Coles county; the Hon. Charles Bennett, Judge, presiding.

<p>1. Judgment and TmasssE, — jurisdiction—not void for error alone. If a court has jurisdiction of the parties and subject matter of the controversy, and the party against whom the judgment or decree is rendered has had either actual or constructive notice of the pendency of the suit, no mere error can lender the judgment void; but where jurisdiction is wanting, either as to the subject matter or the parties, the judgment is a nullity.</p> <p>2. Same — when void, no rights can be based on it. A judgment or deoree in a case where the court fails to acquire jurisdiction of the party against whom it is rendered, or of the subject matter, being absolutely void, all acts performed under it are void, and no right can be divested or acquired under the same.</p> <p>3. Same — not assailable, collaterally, for errors. Where the court rendering a judgment or decree has jurisdiction both of the subject matter and of the persons of the parties, a mere error or irregularity can not be taken advantage of collaterally.</p> <p>4. Same —jurisdiction over defendant corporation — void service. On a bill filed to dissolve an insolvent corporation, and for the appointment of a receiver, the summons against the corporation was served by leaving a copy thereof with one of the complainants, a director of the defendant corporation: Held, that the service was void, and gave the court no jurisdiction over the corporation, and its decree authorizing the receiver to sell the property of the defendant corporation was a nullity, and might be attacked collaterally.</p> <p>5. Receives — of corporation — may be appointed before court acquires jurisdiction over corporation. The court may, on a proper showing, appoint a receiver to take charge of the assets of an insolvent corporation, to save the same from destruction or waste, before acquiring jurisdiction to adjudicate upon the rights of such corporation. In such case the receiver may be authorized to hold the property until the rights of the parties are determined. Placing property in the hands of a receiver is in the nature of an equitable attachment, whereby the court, through its officer, acquires the custody of such property.</p> <p>6. Same — corporation may sue, by leave of court, after the appointment of receiver. After a valid decree appointing a receiver for a private corporation, actions may be brought in its name, by leave of the court making such appointment, against any one except the receiver, to try the legal title to property claimed by such corporation.</p> <p>7. Same — legal title — how vested in. In the absence of any statutory-provision on the subject, real estate can not be vested in the receiver except by a conveyance to him.</p> <p>8. Decree — acts done under void decree not validated by a subsequent decree. The sale of the property of an insolvent corporation under a decree in a suit in equity without service on the defendant corporation, is void, and fails to divest it of its property; and a subsequent decree, rendered after a reversal of the former one, can not relate back and render the void sale valid. The latter decree-can only sustain a sale made after its rendition and upon its authority.</p> <p>9. Corporation — may sue after decree dissolving it. A private corporation, after a decree of dissolution, remains in being for the purpose of settling up its affairs and having its property applied in the payment of its debts. The statute continues its corporate existence for two years after its powers have expired, by limitation or otherwise, for this purpose.</p> <p>10. Pleading — nul tiel corporation — when proper.. After a decree dissolving a private corporation and appointing a receiver, leave of court was given it to bring an action of ejectment to try the title to real estate claimed and held adversely. The defendant pleaded nul tiel corporation: Held, that the plea was inapplicable to such a ease, and that under it the defendant could not take advantage of the decree dissolving the corporation.</p>

Writ ok Error to the Appellate Court for the Third District ; — heard in that court on writ of error to the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.

<p>1. Evidence — declarations of a third person in hearing of defendant. On the trial of a policeman for an assault and battery, it appeared that the defendant had arrested a boy, without warrant, for jumping upon a passing freight train of cars, and that the boy’s brother having heard of the arrest, with a third person came up at a rapid gait to the officer, when an altercation between the three ensued, the third person acting in concert with the older brother, during which the officer struck the latter with a “billy,” which was the battery complained of. A witness who was present at the time of the difficulty, was asked, “What, if anything, did such other person say to the older brother in the presence and hearing of the officer, at that time?” which the court refused to allow the witness to answer: Held, that the court erred in not allowing the witness to answer the question.</p> <p>2. Ebbor wide not always bevebse — as to excluding evidence, and in instructions. A refusal to allow a witness present at an assault and battery, to testify what a person acting in concert with the party assaulted said to the latter in the hearing of the defendant before the assault, although an error, is no ground for reversing a judgment of conviction, when it appears that the defendant was allowed to testify fully as to what was said and done by such person, and that his statements could not have changed the result. Nor is error in instructions a ground of reversal, if it appears that the result of the trial would have been the same if the instructions had been free from error.</p>

C. B. Smith, Judge, presiding. This was a bill in chancery, brought by Joseph J. Bentley and Benjamin Bentley, on February 20,1883, against William O’Bryan and David Bice, to have their two certain deeds of conveyance of certain lands to William O’Bryan, dated December 7,1878, declared a mortgage, and for leave to redeem from the same.

<p>1. Municipal corporations — passage of annual appropriation ordinance. Although a city council is made to consist of a mayor and aldermen, the requirement, under the general law for the incorporation of cities and villages, that the city council shall, within the first quarter of the fiscal year, pass an ordinance to be termed the “annual appropriation bill,” does not mean that there shall be passed a complete ordinance, having the sanction both of the city council and mayor, within that time. City council and mayor are distinguished from each other in this respect.</p> <p>2. Same — of the mayor's veto of appropriation bill. The city council is given the last moment of the period named to pass the appropriation bill, after which the mayor has at least five days in which to give or withhold his approval, either in whole or in part.</p> <p>3. Same — what is a passage of appropriation ordinance within the first qua/rter. Upon the return by the mayor of an appropriation ordinance with a veto as to any item thereof, it is made the duty of the city council to reconsider the vote by which it passed, and if upon such reconsideration after the expiration of the first quarter of the fiscal year, vetoed items of an appropriation bill passed within such quarter be passed by the council over the veto, the appropriations are to be taken, within the meaning of the law, as having been passed within the first fiscal quarter.</p> <p>4. So where the mayor of a city returns an appropriation ordinance with his veto as to one item thereof, for the reason that it is too large, the same having been passed on the last day of the first quarter of the fiscal year, but returned at the next meeting of the council thereafter, and the city council then passes the same, at a reduced sum, over the veto, this will be regarded as an adherence to the appropriation first made, in part, and the same will be legal, as having been passed in proper time. The right to pass the whole over a veto includes the power to pass the same in part, and adhering in part to the item of appropriation is not a further appropriation.</p>

<p>1. Limitation — of twenty years1 adverse possession. Where the party under whom a plaintiff in ejectment claimed land occupied by a railway company, made a conveyance of the same to a railway company, moved his fence, and gave it possession of the land more than twenty years before suit brought, and such company, together with the defendant corporation, as its successor, had occupied the same ever since under such release, it was held, that the plaintiff could not recover.</p> <p>2. Railroad — right to acquire more than one hundred feet. A charter giving a railroad company a right to acquire a strip of land not exceeding one hundred feet in width, has reference to right of way for a single or double track, and does not prohibit it from acquiring more land for depot grounds and side-tracks at stations.</p>

<p>1. Pleading and evidence — variance in description of land. In an action upon the covenants of warranty in a deed for land, the declaration described the land as “twelve hundred and eighty acres of land in Wichita, on the waters of Gilbert creek, and described as follows: beginning at a stake in the south-west corner of survey No. 1, made for the B. B. B. & C. B. B. Co., and 950 vers east from the north-west corner of a survey made in the name of L. Well's, ” etc., giving the metes and bounds. The deed gave the same description, except after the words “ Gilbert creek, ” are the following additional words: “Patented to W. W. Purinton on the 7th day of November, 1873 — Patent No. 404, volume No. 8:” Held, that these words afforded no ground for excluding the deed as for a variance.</p> <p>2. Pleading — particularity of description required. It is not required by the rules of good pleading that the pleader shall, in every case, when describing an instrument or object, specify all the means by which it may be properly identified. In such case it will suffice if the marks or means of identification specified distinguish such instrument or object with reasonable certainty.</p> <p>3. Same — covenant for breach of warranty — description of the land. In an action for the breach of the covenants in a warranty deed, it is a matter of no consequence whether the land to which the covenants relate is as fully described as it might be, or even as in the defendant’s deed, provided the declaration shows, with reasonable certainty, it is the same land to which the covenants relate.</p> <p>4. Jurisdiction — when defendant must plead — waiver. If a local action is brought against one in the wrong county, and the court in which the action is brought has a general jurisdiction in that class of cases, the defendant must plead to the jurisdiction, or otherwise take advantage of the irregularity in the court in which the action is brought, and failing to do so he can not question collaterally the validity of the judgment which may be rendered in that suit.</p> <p>5. The constitution of Texas expressly gives the District Court of that State jurisdiction in all suits for the trial of title to land, but there is a statute of that State requiring suits for the recovery of land to be brought in the county where the land lies. An action of ejectment for land in such State was brought in the District Court, but not in the county where'the land was situate, and no objection being made to the jurisdiction, that court rendered judgment for the plaintiff: Held, that as that court had a general jurisdiction over the subject matter, its judgment could not be treated as void in a collateral action in this State, and that such judgment was admissible in evidence to show an eviction of the defendant in ejectment.</p> <p>6. Foreign judgment — validity tested by laws of State where it is rendered. In determining the validity, force and effect of a judgment of a sister State, our courts' must look to the laws of such other State, and be governed by the construction its courts have given the laws of such State.</p>

<p>1. Condition precedent — necessity of showing performance. A release of a person’s interest in land inherited, to a certain other person, to become effective upon a condition precedent to be performed by the releasee, without proof of the performance of the condition, is inadmissible in evidence to show a transfer of the releasor’s title, in an action of ejectment.</p> <p>2. Description of land in will or deed — of the particularity required. In ejectment, the will of a person not shown to have had any title to the land in dispute, devising all his real estate generally, without any description, to his sons, equally, is not admissible in evidence to show title, or for color of title, under the Limitation law of 1839. Neither are deeds from persons in whom no title is shown, which show- no intention to convey the land in dispute.</p> <p>3. Limitation — color of title. A deed made by an administratrix of an estate, though ineffectual to convey title for want of any in the intestate, which properly describes the land in dispute, and purports to convey the same, is admissible in evidence as color of title, under the Limitation law of 1839, and in the absence of evidence of bad faith it will be presumed it was made and accepted in good faith.</p> <p>4. Same — receipts as evidence of payment of taxes. In ejectment, to recover fifty acres in a survey of four hundred and thirty-two acres, in which the seven years’ Limitation law is set up as a defence, tax receipts for the taxes on a part of the survey, without showing what part, are not sufficient of themselves, unexplained, to prove the payment of taxes; but when coupled with the tax books, showing what land was assessed to the person so paying, and his testimony showing his payment of all the taxes, they are sufficient.</p> <p>5. Same — parol evidence as to payment of taxes. It is competent to prove by parol on what land taxes have been in fact paid, and thus supplement or contradict the evidence of the written receipts for taxes.</p> <p>6. Same — evidence to disprove payment of taxes. To rebut the proof of the payment of taxes for seven successive years upon a particular part of a tract of over four hundred acres, which is described, the court allowed the other party to prove payment of taxes about the same time on one hundred and twenty acres of the whole tract, and admitted in evidence, over objection, the record of a judgment for taxes against one hundred and twenty acres of land assessed as the property of another person: Held, that the court erred in admitting the evidence, as it did not show it was the same land.</p> <p>7. Evidence — parol partition — admissions of parties ininterest. Where a parol partition óf a tract of land is relied on as having been made many years ago, and the boundary between the several parts is brought into dispute, the declarations of one of the parties to the division, while still an owner of his part, as to the boundary line of his claim, being in disparagement of his title, is competent evidence. So is evidence of the family reputation as to deaths and residences of the members of such family.</p>

<p>1. Insolvent debtor- — arrest on ca. sa. — refusal of county cowrt to discharge — how far conclusive. The judgment of the county court, on the application of a debtor to be discharged from imprisonment for debt, holding that the case was not one in which he was entitled to a discharge on schedule and assignment of his property, is final and conclusive upon all other courts until reversed or otherwise annulled.</p> <p>2. Same — retaining custody of debtor — return of writ, or its expiration. Where the sheriff arrests one under a ca. sa., it is his duty to retain the custody of the defendant until the judgment is satisfied, or the defendant is otherwise legally discharged, without reference to what becomes of the writ, or even whether it remains in force, or has expired by lapse of time. It is not necessary to renew the writ to make the continued imprisonment legal.</p> <p>3. A writ of ca. sa., like other executions, is made returnable by law within ninety days after its date, yet the imprisonment of the debtor does not end with its return or expiration.</p> <p>4. Same — giving bond for appearance at a further day — waiver as to time of continuance. The provision in section 8 of the act relating to insolvents, that the county court, on an application for a discharge, may continue the hearing from time to time, “not exceeding thirty days,” being for the benefit of the debtor may be waived by him, and is waived by his consent, express or implied, to a continuance for a longer time; and such court will not thereby lose jurisdiction, and his bond for his appearance on the day set for hearing will not be rendered invalid.</p> <p>5. Same — enlargement of debtor on giving bond, whether an escape. Where an insolvent debtor is by the county court admitted to bail pending an application for a discharge, as authorized by the statute, his enlargement under his bond does not amount to an escape, voluntaiy or negligent, so as to prevent him from being again imprisoned for the same debt.</p> <p>6. So where an insolvent debtor voluntarily enters into bond for his appearance before the county court at the time appointed for the hearing of his application to be discharged, even though the hearing is continued more than thirty days, by his consent, he will be in the custody of the law and under the control of the court on his appearance on the day set for the hearing, and that the court, on denying his application, may legally order him to be again taken into custody by the sheriff, and his imprisonment under such order will be as legal as his first arrest.</p> <p>7. Same — voluntary escape — whether a discha/rge from imprisonment. The ancient rule that a debtor in execution, by a voluntary escape became discharged both from imprisonment and the debt, leaving the creditor to look to the sheriff alone for his debt, is no longer in force, and upon such escape he may be lawfully re-arrested and imprisoned.</p> <p>8. Same — remanding to custody of officer without process. Where a debtor has been legally arrested by a sheriff under a ca. sa. running in the name of the People, and is enlarged on bond for his appearance on the day set for the hearing of his application for a discharge, the court, on refusing a discharge, may order him back into the officer’s custody without process in the name of the People, and this may be verbally done.</p>

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

<p>Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.</p> <p>The cow of appellee, running at large, strayed upon the railroad track of appellant in the night time, and was injured by a passing locomotive and train. The railroad track was duly fenced on both sides, except at a station called Marblehead. Here there was a fence all along one side of the track. On the other side was a railroad depot and passenger house, and about twelve feet north of the depot was a coal house. Between the depot and the coal house there was no fence, otherwise that side of the track was fenced fully. The space between the depot and coal house was occupied by a platform of timbers, which furnished the only way for passengers and freight to reach the platform adjoining the track and extending along the front of the depot and coal house. Through this open space between the coal house and the depot the cow strayed upon the track and was injured. The only negligence charged against the railroad company is its omission to have its railroad track fenced at this point. This depot was within about one hundred and fifty yards of a public highway, and there was an open space leading from the public highway to the depot, which was the only mode of approach or egress for freight or passengers going to or from this depot. The depot was near to but not in any village, city or incorporated town, and the depot was not at the crossing of any public road or highway.</p> <p>At the close of the evidence the defendant below (appellant) asked the court, among other things, to charge the jury that “the defendant is not bound to fence its- depot grounds, and is not liable for failing to do so, and defendant is not required at all times to employ watchmen or guards to prevent stock from straying upon its track at its depot grounds. ” The court refused to so instruct the jury, but charged if the defendant company “had failed to keep and maintain suitable and sufficient fences to prevent cattle from getting on said railroad track, and because of such failure plaintiff’s cow got upon said railroad and was struck and injured, etc., then the jury should find the defendant guilty,” etc.</p> <p>By the statute “every railroad corporation” is required to “erect and maintain fences on both sides of its road, or so much of it as is open for use, suitable and sufficient to prevent cattle * * * from getting on such railroad, except at the crossings of public roads and highways, and within such portion of cities and incorporated towns and villages as are or may hereafter be laid out and platted into lots and blocks, * * * and to construct and maintain at all road crossings * * * cattle-guards, * * * and when such fences and cattle-guards are not made, * * * such railroad corporations” are made liable “for all damages which may be done by the agents, engines or cars of such corporation to such cattle * * * thereon, ” etc.</p>

Writ of Error to the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding. This ivas an indictment against the plaintiff in error for robbery, tried at the February term, 1882, of the circuit court of Kane county. The trial resulted in the conviction and sentence of the defendant to six years’ imprisonment in the penitentiary. The first point made is, that the evidence was not sufficient to justify the verdict.

<p>Appeal from the Circuit Court of Effingham county; the Hon. Thomas S. Casey, Judge, presiding.</p>

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

Writ of Error to the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding. The bill in this case was brought by Matthew Marvin and Mary Brown, against John Ledwith, Delia Biehl and Mary Franey, and was for the partition of the lands of which Robert Franey died seized. The facts all appear by admission on demurrer to the bill.

Rollin S. Williamson, Judge, presiding. This was an action of assumpsit, brought by George H. Strong and John Young, against Charles M. Linington, to recover the second and third years’ royalty, under a contract dated April 1, 1876. The declaration contained three special and the common counts.

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

<p>1. Dedication — how made to appear. A dedication of land to the public for any public use may be shown by grant, by user, or by the acts and declarations of the owner, coupled with evidence of acceptance by the public. But to be availing, there must be evidence of an intent to dedicate. No particular form or ceremony is necessary. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the person claimed to have made the dedication.</p> <p>2. Same — dedication of ground for burial purposes — whether established. Where the owner of a quarter section of land as early as 1844 buried a child in a" corner thereof, since which time the same has always been used • by the people of the neighborhood as a public burying place, and the declarations of such owner showed an intent to devote the land to such use, and the subsequent owners of the quarter section of land made no objection to such use, but recognized the same as a public burial place, it was held, that these' facts were sufficient to show a dedication of the land so used, to the public, for a place for the interment of the dead.</p> <p>3. Injunction — to prevent defacing and meddling with graves. A court of equity will enjoin the owner of land from defacing and meddling with graves on land dedicated to the public for burial purposes, at the suit of any parties having deceased relatives or friends buried therein.</p> <p>4. Parties — on bill to protect burying ground. Two persons, residents in the neighborhood of a public burying ground, having friends buried there, filed a bill to enjoin the party owning the tract of land on which it was located from defacing the graves, and to preserve the ground for the public use for burial purposes: Held, that they could maintain -the bill .in .their names, for the benefit of themselves, as well as if all others directly interested had joined.</p>

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

Thomas A. Moran, Judge, presiding. On July 11, 1874, Elizabeth Haas filed her original bill in the circuit court of Cook county, against the Chicago Building Society and one Luther L. Greenleaf, seeking to enjoin the sale of her two certain lots under two deeds of trust given by her and her husband to Greenleaf. The bill charged fraud and usury in the several loans and in the notes and deeds of trust.

Murray F. Tuley, Judge, presiding. Frederick Lehmann died intestate July 12, 1872, leaving Marie Lehmann, his widow, Ida Cudell, Alfred A., Oscar, Edmund, Emma, Frederick and Justine Lehmann, his only children and heirs at law, — the last two being children by a former wife. The estate of Lehmann, real and personal, amounted to near a half a million of dollars. All the children except Frederick and Justine were minors at the time of Lehmann’s decease.

Writ of Error to the Appellate Court for the Fourth District ; — heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.

Wb.it of Error to the Appellate Court for the Third District ; — heard in that court on writ of error to the Circuit Court of Pike county; the Hon. S. P. Shore, Judge, presiding. This action was forcible detainer, commenced by Andrew J. Lovell, against Francis M. Yocum, before a justice of the pe.ace, to recover possession of a half section of land, described by its numbers.

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

Motion in this court to amend the record so as to give effect to the judgment as of a prior term. On the 15th day of July, 1881, George W. Danforth filed his hill in the circuit court of Iroquois county, against Anna Danforth,' his wife, to obtain a divorce, on the ground of extreme and repeated cruelty.

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

<p>1. County judge — when his duty to certify case to circuit court. Where a county judge is interested, as an attorney for heirs of an intestate, in resisting the widow’s award, he is incompetent to act as judge upon the question of allowing the sum awarded her by the appraisers, and it is made his duty by the statute to certify the question to the circuit court, for its action in the premises.</p> <p>2. Same — mandamus to compel him to certify question to circuit court. Where a county judge is interested in an estate of a deceased person, he has no discretion to exercise as to whether he will transfer the matter in dispute to the circuit court for adjudication, and his power is limited to’the simple ministerial duty to cause the record and papers to be certified to that court in conformity with the statute, and mandamus lies to compel him to do so if he refuses.</p> <p>3. Same — interchange of judges — statute construed. The provision of section 1 of the act approved May 31, 1878, for the interchange of county judges of different counties, makes such interchange purely voluntary, and it may be made without any reference to the fact of the interest of the judge whose place is to be taken by the other judge. Such provision does not repeal or modify section 69 of chapter 3, and sections 179 and 180 of chapter 37, of the Revised Statutes.</p> <p>4. Where a county judge was interested, as an attorney, only in a single question arising on exception to the estimate of the widow’s award, it is made his duty by the statute to certify to the circuit court only the question in which he has such interest. In other respects the settlement of the estate may proceed before him.</p> <p>5. Costs — Supreme Court — reversal in part. Where this court affirmed in part a judgment in a mandamus suit, and reversed the same in part, this court directed that each party pay the costs of this court incurred by him.</p>

George Gardner, Judge, presiding. This was a creditor’s bill, filed in the Superior Court of Cook county, on October 27, 1882, by George W. Bittinger, against Fredericka Basten, Carl Basten, Herman A. Haster, G. H. Thomas and Otto Wasmansdorff, to subject certain real estate vested in Fredericka Basten ‘to the payment of a judgment in favor of the complainant, against her husband, Carl Basten.

Writ of Error to the Appellate Court for the Third District ; — heard in that court on writ of error to the Circuit Court of Vermilion county; the Hon. J. W, Wilkin, Judge, presiding.

C. B. Gabnsey, Judge, presiding. This was a proceeding instituted by the Chicago and Alton Bailroad Company, October 12, 1882, in the county court of Will county, against Hiram Goodwin, William Goodwin, and Sarah Althouse, guardian of Philip Goodwin, to condemn a strip of land for a right of way.

Writ of Error to the Appellate Court for the Third District ; — heard in that court on writ of error to the Circuit Court of Coles county; the Hon. J. W. Wilkin, Jddge, presiding. This was-a suit brought by Amanda A. Curd, against the Supreme Council of Boyal Templars of Temperance, to recover upon a certificate, in the nature of a policy of life insurance, issued by that order to the plaintiff’s husband, and in which she was named as the beneficiary.

Sidney Smith, Judge, presiding. This was a prosecution by the city of Chicago, against David Launder, for a violation of section 1713 of the municipal code or ordinances of the city, originally brought before a justice of the peace, and taken by appeal of the city to the Criminal Court of Cook county, where a trial was had resulting in a judgment in favor of the city, inflicting a fine of $10 and costs.

<p>1. Purchaser — protected against secret trust or equities of a former owner. The owner of a leasehold estate conveyed the same to a party as trustee, but the conveyances in every other respect were absolute deeds in form, yet in fact they were mortgages to secure the payment of money borrowed. The grantee negotiated a sale of the property, and the grantor, when called on by the trustee and purchaser, disclaimed any interest in the property, and agreed to make a quitclaim deed. The purchaser transferred his purchase to another, and the trustee made him a warranty deed for the premises, and the former owner then made the trustee a quitclaim deed, and this latter purchaser sold and conveyed the property to another, who had no notice of any equities in favor of the original owner: Held, that the last grantee took the title unaffected by any equities the original owner might have had, or the party of whom he borrowed the money, and for whose benefit the first deeds were made.</p> <p>2. A person taking a conveyance of a leasehold estate from one having a perfect title of record, without notice, and for a full consideration, will be protected from any secret equities in favor of a former owner and those claiming under him, and will not be held responsible for acts of bad faith on the part of those from whom he acquires the title.</p>

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

<p>1. Contradicting sheriff’s return — by a plea in abatement. A defendant corporation may plead in abatement to the service of process, by contradicting the sheriff’s return; and where it tenders a material issue, and is properly verified, it is error to strike the plea from the files.</p> <p>2. Same — svfficieney of plea. A plea in abatement by a corporation to the jurisdiction over its person, showing its organization under the laws of this State, and its representation by its president, naming him; that at the time of the issuing and service of the summons the president was a resident of the county, and not absent from the same, and that the service was not made upon him, presents an immaterial issue, and is obnoxious to demurrer, in not putting in issue the return that the sheriff was unable to find the president in the county.</p> <p>3. Service of process — on corporation — sufficiency of return. A return to a summons against a private corporation was as follows: “Served this writ on the within named defendant, O. S. E. U. Go., by delivering a copy thereof to E. N. K., director and treasurer of said company, the president of said company not found in my county, the 23d day of November, 1883:” Held, that the return was good, filling the requirements of the statute.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.</p>

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

<p>1. Usury — who may avail of the defence. A party not injuriously affected by an usurious transaction, is not allowed to complain or take advantage of the usury. So if a party sells land subject to a mortgage thereon, which is given to secure a debt, with usury reserved, and the purchaser assumes the payment of the debt as a part of the purchase money, such purchaser or those claiming under him can not interpose the defence of usury to a bill to foreclose the mortgage.</p> <p>2. Parties — on bill to foreclose — wife of the debtor, after sale by the mortgagor. On bill to foreclose a mortgage given by a husband and wife to secure the note of the former, after they have sold and conveyed the mortgaged premises, the purchaser having assumed payment of the mortgage debt as a part of the purchase price, the wife of the mortgagor, having no interest in the matter, is not a necessary party, and no decree could be had against her if made a party.</p> <p>3. Same — as to administrator of a remote grantee of the mortgagor— liability of such grantee in respect to incumbrance assumed by his grantor. A mortgagor conveyed the mortgaged premises to one who assumed payment of the mortgage debt as a part of the purchase price, and he conveyed the same to another, who, out of the purchase money, paid the amount due on the mortgage, to the trustee named in the instrument, who had no right to receive the same, and wrongfully entered satisfaction of the trust deed on the record. It was held, on bill by the holder of the note secured to foreclose the trust deed, that the administrator of the last grantee was not a necessary party, for the reason that the estate he represented was under no liability for the payment of the mortgage debt.</p> <p>4. Administration of estates — payment of prior incumbrance on land purchased by the intestate. Where a person acquires land subject to an incumbrance for the debt of a prior owner, and dies, his administrator is not authorized by law to pay such debt or incur expense on account of it.</p> <p>5. Mortgage — deed of trust — assignment of the debt — rights of the assignee as respects the security. In equity a deed of trust is but an incident to the debt it secures, and will pass with an assignment of the debt to the holder.</p> <p>6. Same — unauthorised entry of satisfaction by trustee — of its effect upon the rights of parties and purchasers. An entry of satisfaction of a deed of trust by the trustee when the indebtedness secured by it has not been paid, and the act is not authorized by the holder of the indebtedness, will have no effect upon the deed of trust as between the original parties, or as to subsequent-purchasers with notice.</p> <p>7. Same — foreclosure without setting aside an entry of satisfaction wrongfully entered. AVhere a trustee in a deed of trust, without.the authority of the holder of the note thereby secured, accepts payment, and enters satisfaction on the record, it will not be necessary, on bill to foreclose the trust deed, for a formal order setting aside the entry of satisfaction before a decree of- foreclosure. If such entry ought to be set aside, it may in equity be treated as if never having been made, although at law the rule may be different.</p> <p>8. Same — notice to purchaser of the want of authority in the trustee to accept payment of the debt. Where a trustee enters satisfaction of a trust deed duly recorded, in consequence of a negotiation for the purchase of the land, and for the purpose of consummating the sale, and accepts payment of the amount of the debt secured from such purchaser without producing and cancelling the note, and without authority from the holder thereof, the purchaser can not be said to have purchased without notice of the rights of the holder of the note.</p> <p>9. Same — inference as to trustee’s authority to receive payment of a note. No authority in a trustee in a trust deed to collect the principal debt secured, and to enter satisfaction on the record of the trust deed, can be inferred merely from the fact that the money was borrow'ed of the holder of the note through a firm of brokers of which the trustee was a member, and that payments of interest on the note had been made to him before.</p> <p>10. Same — production of the note secured — as evidence of non-payment. The production of a promissory note secured by a trust deed, on the hearing of a bill to foreclose, raises a prima facie presumption that it has not been paid, and is still lawfully belonging to the complainant.</p> <p>11. Payment to an agent — burden of proof to show agent’s authority. Where an agent has the possession of a promissory note after due, it may be inferred that he has authority to receive payment of it; but the burden is on the debtor who makes payment to the agent relying upon such inference, to show that the note was in his possession when the payment was made, and the fact that the note is neither surrendered nor offered to be surrendered, affords evidence the agent did not have it.</p> <p>12. Purchases — of his right to remove a prior incumbrance — and of other resulting rights — subrogation. " The purchaser of land subject to a prior incumbrance has the right to pay off the debt and thus relieve his land, and to receive the note evidencing the debt, for his own protection; and if such payment is not made under a previous contract with the party owing the same, the party so paying is entitled to be subrogated to all the rights of the holder of the indebtedness.</p> <p>13. If payment of a note is made by one, of the note of another, pursuant to a contract that he shall pay the same, the party paying may be regarded as the agent of the debtor, and as such is entitled to receive and hold the note as an evidence of his having made payment, as well as for his own protection.</p> <p>14. Laches — effect of delay in giving notice of mortgagee’s right, to a pun-chaser. The failure of the holder of a note secured by deed of trust, to give prompt notice to a subsequent purchaser of the land, making payment to the trustee and procuring his release of the trust deed, of the want of authority' in the trustee to receive payment and make the release, will not bar the holder’s right to a foreclosure, when it does not appear that the delay in giving the notice has worked an injury to the purchaser so paying the trustee.</p> <p>15. Same — in equity — within the statutory period of limitation. A court of equity applies the doctrine of laches in denial of relief sought, when the statutory period of limitation has not expired, only when, from all the circumstances in evidence, to grant the relief to which the complainant would otherwise be entitled will presumptively be inequitable and unjust to the defendants because of the delay.</p> <p>16. Same — in the particular ease. A purchaser of land mortgaged by a former owner was unwilling to conclude the purchase without a satisfaction or release of the incumbrance, when the trustee, without having the note secured or authority from the holder, accepted payment of the debt, and made an entry of satisfaction upon the record of the trust deed, and converted the money paid, to' his own use, and failed. In 1876 the holder of the note learned of the fact of such satisfaction, when he placed his note in the hands of attorneys for collection, giving no notice to the purchaser. Suit was not brought until in 1880, during which time the purchaser had died, giving by will the land to his wife for life, and directing that at her death it be sold, and of the proceeds $1500 be paid to a grand-son, and the residue be equally divided among his sons and daughters. On the hearing, the court decreed a foreclosure against all the defendants except the widow and grandson, whose interests were protected, by reason of the delay in filing the bill. On appeal by some of the residuary legatees, the decree was affirmed, as it did not appear that they were injuriously affected by the delay.</p> <p>17. Witness — competency of parly against legatees and devisees. On a bill to foreclose a mortgage on land of a deceased subsequent purchaser from the mortgagor, against Ms legatees and devisees, the complainant is not a competent witness in his own behalf against those defending as legatees or devisees.</p>

William Lane, Judge, presiding. This is an action of debt, brought by the drainage commissioners of Montmorency township, Whiteside county, against William M. Kilgour, upon an appeal bond given by him on an appeal to three supervisors from an assessment of benefits upon his land for a drain, under the township drainage statute of this State, in force July 1, 1879.

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. George W. Herdman, 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>This was an action on the case, brought by Oliver N. Smith, against the Chicago, Bock Island and Paeiñc Bailway Company, to recover for damages from the operation of its railroad. The declaration avers that the plaintiff is the owner in fee of lot 10, of Tillotson’s subdivision of that part of lot 11 lying west of the Chicago and Bock Island railroad; that the premises were of the value of $5000, and used by plaintiff as a residence; that the defendant’s railroad tracks whose operation is complained of, were constructed January 1, 1879, for use as a switching point, and have been so used since; that in the operation of the same, the defendant has unlawfully, unjustly and injuriously caused and permitted to be thrown and deposited upon the plaintiff’s property, divers large quantities of smoke, cinders, soot, ashes, sparks of fire, and other noxious and injurious substances; that the soil is shaken, and that the walls of his dwelling are cracked. The plaintiff further avers, that said railroad tracks and switches have been constructed, maintained and operated in such close proximity to plaintiff’s property, that necessarily, by reason of such operation in the ordinary and usual way of operating a steam railway for the purposes for which it was constructed and maintained and operated, there has been cast upon his property the substances complained of.</p> <p>Except upon the question of damages, the facts as stated below appear by stipulation of the parties.</p> <p>The Bock Island and LaSalle railroad was incorporated by the General Assembly, February 27, 1847. Its charter authorized the company to construct, and during its continuance to maintain and continue, a railroad, with single or double track, and with such appendages as might be deemed necessary for the convenient use of the same. February 7, 1851, the act of incorporation was amended, and the Chicago and Rock Island railroad created, with the same powers and privileges. August 20, 1866, the Chicago and Rock Island railroad became, by consolidation with the Chicago, Rock</p> <p>Island and Pacific railroad of Iowa, merged into the consolidated corporation- known as the Chicago, Bock Island and Pacific Bailroad Company, which latter corporation, on June 2, 1880, became, by consolidation with various other corporations, the Chicago, Bock Island and Pacific Bailway Company,-and vested with all the corporate and other franchises, rights and privileges of each of its constituents. The Chicago and Bock Island railroad acquired title to its right of way whose use is complained of, in 1851, by deed from F. Burcky and wife, to said company, which deed was recorded November 3, 1851. Burcky, the then owner of the whole of lot 11, “being désirous for the construction of said railroad, ” and in consideration of the premises and $60, granted, “for the purpose of constructing a railroad, and for all purposes connected with the construction and use of said railroad, ” the right of way for the same, one hundred feet wide, through lot 11, and other property in Cook county, “to have, hold and enjoy the land described, with the appurtenances, unto the said grantee and its assigns, forever, for all uses and purposes, or in any way connected with the construction, preservation, occupation and enjoyment of said railroad,” with a' provision that if the grantee or its assigns should “cease permanently to use said railroad so to be constructed, and the same should be abandoned, so as not to be continued over said premises, ” the land granted should revert to the grantor. Subsequently, that portion of lot 11 lying west of the railroad was subdivided into lots. October 1, 1813, the plaintiff went into possession of one of these lots (10) under a deed from the Tillotsons, who made the subdivision. The railroad was there when he bought. He thinks that there were at that time two main tracks and one side-track. The company’s first main track was laid upon this right of way in the summer of 1852, and has existed since. Other tracks have been built upon the right of way, but at what time, except as to the two westerly side-tracks, does not appear. These two were built within five years next before the commencement of this action. All the tracks are within the limits of the right of way conveyed by said deed, and are owned, operated and controlled by the defendant.</p> <p>The defendant filed a plea of the general issue, and of the five, and twenty years statutes of limitation.</p> <p>The plaintiff upon the trial claimed for damages from the increased traffic upon the two main tracks, and from the operation of the railway upon the two westerly side-tracks.</p> <p>As to damages, he testified that cinders, ashes and smoke are deposited upon the property, and go into the house when the doors and windows are open; that there is a vibration or a jarring when a train passes; that the end of the house next the railroad track has been plastered over twice; that when the mason put on the second coat, he told him to put in plenty of hair, “so that it would not fall off again, which he did; ” that within the last three or four years they have had to dry clothes in the house.</p> <p>There was a trial by the court without a jury; a finding for $350 damages; motions for new trial and in arrest of judgment made and overruled, and exceptions taken. Judgment ivas entered, which was affirmed by the Appellate Court for the First District, and the defendant took this appeal to this court, the required 'certificate having been made.</p>

<p>■*" ^’BA1J:D — w^° may Question a fraudulent transaction. Only the person against whom a fraud is committed, or a person who is injured by it, can maintain a bill to have the fraudulent transaction impeached.</p> <p>2. Limitation — as to bill of review, or a bill to impeach a former decree for fraud. A bill of review is barred in the same time as a writ of error, which is five years, unless there are disabilities. The rule applies to a cross-bill which seeks to have a former decree impeached for fraud.</p> <p>3. Same — when availing on demurrer. In equity the Statute of Limitations may be availed of, on demurrer to a bill, where the bar appears on the face of the bill, unless an equitable excuse is alleged in the bill to avoid the bar.</p> <p>4. Tax title — prerequisites—judgment and precept. In order to sustain a tax deed as a muniment of title, a valid judgment and attested record or precept must be shown. This is indispensable to the validity of the deed.</p> <p>5. Same — requisites to a valid precept. The ¡Revenue law requires the county clerk, after the judgment for taxes is entered in the judgment book, to make another record of the lands, which is a transcript of the judgment record, embracing the convening order, notice, and list of the lands against which judgment is rendered, and certify that it is correct; and this attested record is the process under and by the authority of which the collector and clerk are empowered to make the sale. Without this attested copy of the judgment record there is no authority to sell.</p> <p>6. Cloud upon title — tax deed — terms on setting it aside. Where a tax deed is invalid for want of a proper precept or attested record, a court of equity has jurisdiction to declare it void, as a cloud upon the owner’s title, and require the latter to refund the money paid at the tax sale, and all taxes paid by the purchaser or his assignee, with legal interest.</p>

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

<p>Writ of Error to the Circuit Court qf Lake county; the Hon. Clark W. Upton, Judge, presiding.</p>

Writ of Error to the Criminal Court of Cook county; the Hon. George Gardner, Judge, presiding. At the January term, 1884, of' the Criminal Court of Cook county, Mary Clark was indicted, with Mary Anderson and Bertha Kleinsmith, for the crime of larceny, and on the trial was found guilty, with her co-defendants, of stealing a lot of ostrich plumes, and sentenced to the penitentiary for a period of two years.

Bollin S. Williamson, Judge, presiding. This is an action of trespass on the case, wherein appellant, as plaintiff, alleges in his declaration that on the 11th day of December, A. D. 1881, the defendant (the appellee) was the possessor and occupier of a certain messuage and premises, situated on the north-west corner of Washington and Clark streets, in the city of Chicago, in the county of Cook, adjoining the public highway or side'walk about said premises, in which there…

<p>1. Eminent domain — of the pleadings — cross-petition—whether allowable. On a petition to condemn land by a railroad company, the defendant has a right to file a cross-petition when his interests are not accurately or fully stated in the petition, and thereby recover compensation for damages to other adjacent property not sought to be taken, and it is error to strike such cross-petition from the files. If it be defective, or the property damaged is insufficiently described, or-the cross-petition does not show how the property will be damaged, the proper course is to demur to it, so as to afford an opportunity to amend the same.</p> <p>2. Same — as to plea or answer to petition. Under the Eminent Domain act an answer or plea to the petition is not allowable, and if a special plea is filed, there is no error in striking it from the files.</p> <p>3. Sam:e — petition filed in vacation — trial in term time. A petition under the Eminent Domain act, though filed in vacation, may be tried in term time, and a motion to dismiss, and a challenge to the array of jurors, based on the ground that the petition was filed in vacation, are properly disallowed.</p> <p>4. Same — measure of damages — special value of property proposed to be tahen. On a proceeding to condemn lots for depot and other railroad uses, the defendant offered to prove that the property had a special value beyond its general market value, and also that certain prices had been offered for the property, within a few months of the time of the trial, above the general market value, — all of which was excluded, on objection: Held, that the court erred in excluding the evidence.</p> <p>5. If property has a special value from any cause, that special value belongs to the owner, and he is entitled to be paid it by the party seeking condemnation.</p> <p>6. Evidence — opinions of witnesses as to value of property sought to be condemned. Persons familiar with land sought to be condemned, who have opinions of its value, though not shown to be experts, are competent witnesses to express those opinions. But the weight of such evidence presents a different question. On that point, when there is equal credibility, superior opportunity and intelligence are entitled to the greater weight.</p> <p>7. Such opinions of witnesses as to the value of the land are not, however, to be passively received and blindly followed, but should be weighed by the jury, and judged of in view of all the evidence in the case and the jury’s own general knowledge of affairs, and have only such consideration given to them as the jury may believe them entitled to receive.</p> <p>8. Chanceby — dismissal of hill on motion — on what grounds. A bill in equity will not be dismissed, on motion, unless it be for want of equity apparent on the face of the bill, and when it is manifest no amendment can help it, or for want of jurisdiction.</p> <p>9. Pleading and practice — how to dispose of defective pleas. At law, if a plea is insufficient in form or substance, the only mode of taking advantage of the defect is by demurrer. It is improper in such case to strike the plea from the files.</p> <p>10. Bill of exceptions — when necessary. This court can not review the ruling of the trial court in excluding written evidence, such as deeds and ordinances, unless they are preserved in a bill of exceptions or certificate of evidence.</p>

<p>1. Contract — by letter or telegraph — when completed. A contract by letter is completed the instant the letter accepting the offer is mailed, and is valid and binding whether the letter of acceptance is received or not.</p> <p>2. But where anything else is left to be settled in respect to an offer by mail or telegraph, the acceptance of the offer by telegraphing will not complete the contract where the dispatch does not reach its destination.</p> <p>3. A and B contemplated making a large purchase of cattle in the West, and it was agreed that A should go to see the cattle, and telegraph back to B the price per head if a purchase was made, when B was to reply by telegraph, without delay, saying “yes,” if he was willing to take a third interest in the purchase, and then A was to telegraph back to B the estimated amount required to pay a third interest, which B was to place to the credit of A and his brother, in a Chicago bank, so that the latter might draw on the same, and cause the bank to telegraph that fact to A. A bought the cattle for $03,001), and telegraphed B the price q>er head, and he answered “yes, ” which dispatch never reached A. Later, B sent another dispatch to A, saying if the cattle wore good there was no danger in buying them, which was received on the same day that A and another had concluded the purchase by paying the necessary advance. On the next day B arrived, and offered to pay his share of the price, which was declined: Held, that under the circumstances the sending of the first dispatch accepting a share in the purchase, which never reached its destination, did not complete the contract and make A and B partners in the purchase, there being something else to be done besides a mere acceptance, to carry out the contract, and also that B’s offer to pay on the day after the purchase, and payment of the price, was too.late.</p>

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

Wbit of Ebbob 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. Elliott Anthony, Judge, presiding.

Owen T. Beeves, Judge, presiding. . This was an action on the case, in the McLean circuit court, brought by the appellant, against the appellee, to recover the value of a quantity of sand of the plaintiff taken and converted by the defendant to its use, and also to recover for damages done by the defendant to lands described in the declaration, in which lands the plaintiff had an estate in vested remainder.

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

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

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p> <p>A bill in chancery was filed February 17, 1875, in the Cook county circuit court, by the International Bank, against Samuel J. Walker and other persons, to foreclose and sell certain collateral securities which had been pledged by Walker to the bank to secure the payment of principal notes of various dates made by Walker to the bank, some twenty-two of which were still held by it, and about ten others transferred to the other parties to the suit. The prayer of the bill was, that a decree might be entered fixing and establishing the amount of indebtedness due the bank from Walker, and for a sale of the collaterals so pledged, and the application of the proceeds to the payment of such indebtedness. Walker answered, alleging that a large amount of usurious interest entered into and formed a part of the alleged indebtedness, and insisting'tliat an account be taken between the parties, and that such usurious interest be applied toward the satisfaction of such indebtedness, and that the collaterals be surrendered. Walker also filed a cross-bill making the same allegations, and praying for an account, and the application of such usurious interest, and for a surrender of the collaterals.</p> <p>July 6, 1877, the circuit court made an interlocutory decree in the cause, which denied the right to interpose the defence of usury, and directed an account- to be taken of what was due on the principal notes held by the bank, excluding the defence of usury and of usurious payments of interest. .In pursuance of an account taken as thus directed, dated January 15, 1878, a final decree was entered on April 25, 1878, finding the amount due the bank from Walker on the notes held by it to be, on January 15, 1878, $172,474, and directing a Sale of the collaterals held by the bank to satisfy it. April 26, 1878, Walker went into bankruptcy, and July 31, 1878, Jenkins, the appellant, received the deed as his assignee in bankruptcy. The decree of April 25, 1878, was by this court, at its March term, 1881, in Jenkins v. International Bank et al. 97 Ill. 568, reversed, on the ground that the direction to the master, in the order of reference, not to consider the question of usurious payments of interest upon any of the notes, was erroneous. The collaterals so sought to be sold had been specifically pledged by Walker to the bank,— each to secure a particular note. The bank also held an agreement from Walker that each of the collaterals, though specifically pledged as security for a specific principal note, should also, after the satisfaction of such principal note, be held as security for Walker’s entire indebtedness to the bank, if any surplus remained which could be so applied after the satisfaction of such particular note.</p> <p>On March 11, 1874, George Wilshire and others filed their bill of complaint against the International Bank, David Frey, Samuel J. Walker, and others, alleging that they had purchased of Walker certain premises, and setting out that Frey claimed to own a certain mortgage upon the same, executed by Walker prior to their purchase, which Frey obtained from the bank, but that there was nothing due upon it, and praying that the same might be surrendered and cancelled. Frey filed a cross-bill, setting up his principal note and the collateral note and security so executed by Walker to the bank, alleging that he had bought said principal note of the bank for full value, and praying for the foreclosure of the mortgage and sale of the premises. The bank also filed its cross-bill against Wilshire, Frey, Walker, and others, setting up its general collateral agreement above referred to, alleging its right, by virtue thereof, to any surplus that might remain after the satisfaction of the indebtedness so due to Frey on said principal note which had been sold by it to Frey, not exceeding the amount due on the collateral note. The said general collateral agreement provided that the bank should have the benefit of said surplus, though it had sold such principal note to a third party. The bank, in its cross-bill, set up its entire indebtedness so due to it from Walker in the same way and with the same particularity that it had set up the same in the bill in this cause now under consideration, alleging that the notes were due and payable, and asking that it might have any surplus applied to the payment of such indebtedness after the satisfaction of the amount due to Frey. Walker answered that cross-bill in the same way, and alleging the same facts that he had alleged in answer to the bill in this cause. He also filed a cross-bill therein, setting up the same facts that he had set up in the cross-bill filed in this cause, and prayed for an account between himself and the bank, and for the application of all usurious interest in satisfaction of his indebtedness to the bank, and for a return of the bank’s collaterals, just as he had done in this case by his cross-bill.</p> <p>On February 28, 1878, a decree was entered in the Wilshire suit, finding the amount due from Walker to the bank to be the sum of $172,474. That decree stands in full force and effect, and over five years have elapsed since the entry of the same. The case at bar having been redocketed in the circuit court after the reversal of the first decree, on November 26, 1883, by leave of court the complainant, the International Bank, filed a supplemental bill, setting up the said proceedings, pleadings and decree in the Wilshire suit as a former adjudication, and in bar to any further proceedings by Jenkins, assignee, for an account under his cross-bill herein, and as a conclusive adjudication of the amount due the bank upon the evidence of indebtedness set out in its original bill herein. The circuit court held the said former adjudication in the Wilshire suit a bar to any further account as to what was then due, and found the amount due upon the principal notes set out in the bill and offered in evidence, to be the sum of $172,474 on January 15,1878, as determined by the decree in the Wilshire suit. After the allowance of subsequent collections, the court found the amount due at the time of the decree to be $143,630.22, and rendered a decree for a sale of the collateral securities to satisfy said sum. This decree was affirmed by the Appellate Court for the First District, and the assignee appeals to this court.</p>

<p>Appeal from the Circuit Court of Peoria county; the Ron. David McCulloch, Judge, presiding.</p>

<p>Appéal from the Appellate Court for the First District;— heard in that court on writ of error to the Circuit Court of Cook county; the Hon, M, F, Fully, Judge, presiding.</p> <p>This was an action on the case, brought on the 6th day of October, 1876, by Daniel B. Brant, against Benjamin E. Gallup and Francis B. Peabody. The declaration substantially avers that Gallup & Peabody were loan agents, and on April 1, 1869, negotiated a loan from one Bourne, to Brant, of $45,000, payable in five years, and for security to Bourne took Brant’s mortgage on certain property and the Dearborn theatre, in Chicago; that Brant, in consideration of taking the loan and executing the mortgage, and $2500 commissions paid to Gallup & Peabody, employed them, and they agreed with him, to procure to be insured, and to keep insured during the life of the mortgage, the said theatre building, against loss or damage by fire, in good and responsible' insurance companies, to the amount of its fair insurable value, — the plaintiff, on notification and request, to pay the premiums; that the fair insurable value of the theatre was $150,000 ; that the defendants failed and neglected to perform their duties in the above named respects, and that during the life of the mortgage, and on October 9,1871, the Dearborn theatre was destroyed by fire, and by reason of the premises the plaintiff lost the fair insurable value of the building.</p> <p>There were three trials in the case, the first resulting in a verdict for plaintiff for $73,666.66, the second and third in verdicts for the defendants. The judgment on the last verdict was, on error, affirmed by the Appellate Court for the First District, and the plaintiff appealed to this court. A motion was made to dismiss the appeal for want of jurisdiction of this court to hear the appeal.</p>

<p>Appeal from the County Court of Jo Daviess county; the Hon. William B. Bowley, Judge, presiding.</p>

George Gardner, Judge, presiding. Some time in the year 1874, Adelia Eyan loaned to Sjur Ammondson $2000, secured by trust deed to Patrick W. Snowhook, on property in Chicago. No interest was ever paid on the loan, and in 1876 Ammondson wanting more money, the accumulated interest was added to the principal, and he, in addition, received $700 from Mrs. Eyan, making the total amount of his indebtedness to her $3000.

<p>1. Arbitration and award — submission to two arbitrators, and disagreement — necessity of a new hearing on selection of a third arbitrator. Where a controversy is submitted to two arbitrators, under an agreement for the selection of a third one in case the two are unable to agree, and after a hearing and disagreement the two first appointed select a third man, an award made by two of them without giving the party against whom it is rendered an opportunity of being heard, is void, and no recovery can be had upon it.</p> <p>2. Same — waiver of right to hearing — presumption. Where an umpire or third party is, by agreement, called by two arbitrators upon their being unable to agree, in the absence of evidence to the contrary it will not be presumed that the parties have waived the right of being heard and giving evidence before any award is made. The proof of a waiver of such right must be-distinct and unequivocal.</p> <p>3. Same — defence in suit on award that the award was made without an opportunity to he heard,. Where matters in dispute were submitted to two arbitrators, under a written agreement that they might call in a third party if they failed to agree, and they did call in a third party, and two of the three made an award, in an action of assumpsit upon the award the defendant pleaded that after the third party was called in to participate in the decision, they, or either of them, never appointed any time for hearing the defendant or his witnesses, or proofs touching the matters referred to them, nor did they afford the defendant any opportunity to be heard, and that the third man so selected signed the award without hearing the defendant or hearing any evidence:. Held, no error in overruling a demurrer to the same.</p> <p>4. Practice — directing the jury as to character of their verdict. Where there is no evidence tending to prove a material issue of fact on the part of the plaintiif the proof of which is essential to his right to recover, the court may so instruct the jury, and direct a finding for the defendant.</p>

<p>1. Chancery — closing the taking of testimony. Until an order of court or agreement fixing the time to close the taking of evidence in a chancery suit, the parties will have the right to continue to take evidence at any time until the trial; and even such an order does not preclude the parties from introducing oral evidence on the hearing, unless otherwise agreed to by the parties. The making up of certain 'issues of fact for a jury to try, and an agreement that the jury would have found those issues for the complainant, does not operate to close the taking of further testimony.</p> <p>2. Same — submitting issues to jury — when proper. It is only where the evidence is conflicting as to the issues of fact in a chancery suit, that it is proper to submit such issues to a jury.</p> <p>3. Same — effect of stipulation as to what would have been the finding of a jury. Where it is stipulated in a chancery suit that a jury would have found certain issues of fact for the plaintiff, this will be an admission that there was evidence tending to justify such a finding, and, on error, such issues will be treated as having been so found; and such supposed finding will not be disturbed when not clearly against the weight .of the evidence.</p> <p>4. Notice by possession — as to occupant’s rights to real estate. It has been held that the actual, open and visible possession of a lot by one, even though his entry therein was as a tenant of another, or under him, is notice to the world of his rights and equities, whatever they are, and is sufficient to put a subsequent purchaser or incumbrancer of the former owner upon inquiry as to the occupant’s rights acquired while so in possession.</p> <p>^ 5. A carpenter, employed by the owner of several lots to erect buildings on the same, was let into possession of one of the lots, and a building thereon used by him as a shop, and while so in the open and actual possession of the lot he bought the same of the owner in payment of what the latter owed him, and continued such possession afterward, during which time the owner gave a deed of trust upon it and other property. It was held, that his possession at the time was notice to the incumbrancer, of his purchase, the same as though his contract or deed were recorded.</p> <p>6. Estoppee — omission of one in possession of land to disclose his rights — want of knowledge on his part as to the purpose of statements made to him. A carpenter having purchased a lot from the owner in part payment of a debt owing him for his services in erecting buildings for his vendor, and having taken possession of the same, agents of a party negotiating a loan to the former owner informed such purchaser that they were about making such a loan, and that they wanted to save back enough of the loan to pay the mechanics off, so that there would be no liens, making no reference, however, to a trust deed, or saying anything from which it could be implied that if one was to be given it should embrace his lot, and he replied that his vendor was an honest man, etc., and did not disclose his purchase, and the trust deed was given embracing his lot: Held, that such purchaser was not estopped from the assertion of his rights as against the party taking the trust deed.</p> <p>7. An admission, to estop a party from asserting his purchase of the lot from a former owner, must be made with a full knowledge of the facts, or for the purpose of fraud; and such admission must be shown not by evidence which is loose, indefinite, inconclusive and unsatisfactory.</p>

This is an original application in this court on a petition for a writ of mandamus, filed by the commissioners of highways of the towns of Ottawa and South Ottawa, against the board of supervisors of La Salle county, to compel the county to contribute one-half of the expense of building a bridge over Fox river.. ...

George Gardner, Judge, presiding. This was an action by the city of Chicago, against Thomas O’Brien, for a violation of the ordinance hereinafter set out. The judgment of the circuit court of Cook county was in favor of O’Brien, and that judgment was affirmed in the Appellate Court for the First District.

heard in that court on appeal from the Criminal Court of Cook county; the Hon. George Gardner,. Judge, presiding. This action was brought by the city of Chicago, against W. W. Crosby, before a justice of the peace, to recover a penalty, under a city ordinance, for a failure to repair a sidewalk in front of premises owned by him, and which was a part of the public street.

D. M. Browning, Judge, presiding. This was a petition filed by Napoleon B. Gill, against the Grand Tower Mining, Manufacturing and Transportation Company and others, on July 22, 1873, for the partition of the following lands in Jackson county, Illinois, viz.: fractional section 23, containing 40TLt- acres, and the north-west quarter of section 24, all in township 10, south, range 4, west, the latter tract containing 164-i2I)0g- acres.

Lawrence W. James, Judge, presiding. This was an application by the collector of Peoria county for judgment against certain lands and lots, for delinquent taxes. The collector filed his delinquent list, proof of notice, etc., and thereupon moved for judgment.

<p>1. Dediveby of deed — necessity of delivery, generally — and of the distinction between a deed and a will. A testamentary disposition of property is ambulatory until the death of the testator, when it takes effect; but a deed for an interest in land must take effect upon its execution, or not at all. A party can not make a deed for land and retain its custody, and have it operate as a conveyance only after his death. It takes effect at once or not at all.</p> <p>2. Same — in case of a voluntary settlement. A conveyance of land or a deed may be good as a voluntary settlement, however, though it be retained by the grantor in his possession until his death, when the circumstances, aside from the retention of the deed, do not show the grantor did not intend it to operate immediately.</p> <p>3. The law makes stronger presumptions in favor of the delivery of deeds in case of voluntary settlements of a parent upon a child, than in ordinary cases of bargain and sale.</p> <p>4. Same — in the particular case. A father having previously made gifts of property to all of his children except a daughter, went before a justice of the peace and executed a deed of conveyance of a tract of land to her, and acknowledged the same, stating that it would make all his children equal; but he retained the deed in his possession, with no present intention it should take immediate effect, but to be operative only at his death, or on the daughter moving upon and occupying the property, which she never did. It was held, after his death, that the deed never took effect, and that the land therein described passed to his heirs, generally.</p> <p>5. Advancement — of evidence in respect thereto. The owner of a tract of land made and delivered a deed for the same to his daughter, and thereupon she gave to him a receipt, expressing that she had received from him the sum of $1000 in land. After the death of" the grantor, on an application for partition of the lands of his estate, the other heirs contended that the grant mentioned was an advancement to the daughter, while the latter insisted it was not. The evidence showed the intestate had made various gifts of land and money to his children during his lifetime, and had endeavored to treat them equally in this respect. There was evidence of his repeated declarations that he had given all his children equal amounts of property, and that he had made them equal. The evidence on this branch of the case, which wüs objected to by those of the heirs who claimed the gift was an advancement, was regarded as properly received.</p>

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

<p>Writ of Error to the Circuit Court of Kendall county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Kankakee county; the Hon. Owen T. Beeves, Judge, presiding.</p>

John A. Jameson, Judge, presiding. This was a suit in chancery instituted by Isaac N. Hardin and others, against Henry F. Fames and Jesse Spaulding, to redeem certain premises under a transaction claimed to be a loan and mortgage.

<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. Joseph E. Gaby, Judge, presiding.</p>

<p>. 1. Evidence — proof as to value of lot of ground — of the mode — in suit to recover for damage to the lot. In a suit to recover damages claimed to have resulted to a city lot from the erection of a viaduct in a street adjacent thereto, on the question of the value of the lot, it having no market value, the price at which similar property had been sold shortly before, in the same vicinity, may be shown by witnesses.</p> <p>2. Same — proof of value of lot by inspection of the jury. In assessing the damages a lot is claimed to have sustained in consequence of the constraction of a viaduct in a street adjacent thereto, where the jury, by consent of parties, view the premises themselves, they may act upon the knowledge thus acquired by inspection.</p> <p>3. Actions — damage to adjacent property owners from public improvement in a street — liability therefor, upon whom it rests. The mere contributing of material aid by a private individual to a city, to enable the latter to execute a public work not unlawful in itself, is not necessarily attended with liability on the part of him who extends such aid, for injury that may thereby result to private rights.</p> <p>4. So where a railway company entered into a contract with a city, by which the former agreed to pay a given sum on the cost of a viaduct proposed to be constructed in a street, there being no illegal motive in tendering such aid to the city, it was held, that the railway company could not be held jointly liable with the city in tort for a private injury to adjoining property caused by the viaduct. _</p> <p>5. A city, alone, has authority to construct a viaduct in a street, and when one is so constructed by the city, even when done under the joint superintendence of a public official of the city and a chief engineer of a railroad company, and the company paid a part of the price of the improvement, it was held, that the viaduct was still public property, belonging to the city alone. The aid furnished by the railway, in such case may be treated as a mere private donation.</p>

<p>1. Partnership — duties and compensation of partners. On the formation of a partnership, all the members of the firm are required to devote their time, skill and efforts to the accomplishment of the objects for which it is formed, unless there be an agreement to the contrary; and in the absence of any agreement, neither partner has the legal right to charge the firm or other partners for services rendered in carrying on its affairs.</p> <p>2. Same — right of one partner to rescind contract. If partners, in the buying of land, and its sale in lots, agree among themselves that the partner making the sales shall receive a certain commission or per cent upon all such sales, neither one will afterward have the right to rescind such agreement without the assent of all. One of two partners can not terminate such a contract by notice to the other. The fact that no claim is made for such per cent during the continuance of the firm, will not preclude him from receiving the same on a settlement of the partnership account.</p> <p>3. Same — compensation of active partner not lost by a failure to make claim on settlement. Where it is agreed that a partner making sales of partnership lots shall receive a commission of five per cent on the amount of all sales he makes, the fact that he makes no claim for such commissions during the continuance of the firm, and a settlement is made of all other prior transactions, without including his claim for compensation, will not preclude the partner entitled to compensation under the contract, on a final settlement, from claiming it.</p> <p>4. Limitation — when the statute begins to run as between partners. The Statute of Limitations does not begin to run as to matters of account between partners, until after the partnership has ceased to exist. The Statute of Limitations does not begin to run until a right of action has accrued.</p> <p>5. Same — former decision. The case of Quayle v. Guild, 91 Ill. 378, is not to be understood as holding a different rule. There, one of the partners had died, and the partnership was thereby dissolved, and it was held the statute began to run from that time.</p> <p>6. Costs — in chancery — discretion. The matter of costs in a chancery suit, except on dismissal of the bill, is discretionary with the trial court, and will not be reviewed by this court.</p>