Volume 112 — Illinois Reports

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

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

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

<p>Appeal from the Superior Court of Cook county; the Hon. Henby M. Shephabd, Judge, presiding.</p> <p>This was a petition for a mandamus, which sets out the charter and amendment thereto of the town of Lake, in Cook county, and the provisions therein requiring the annual election for town officers to be held on the second Tuesday of April. The petition alleges that no election was held on said day, in 1884, whereby a vacancy was occasioned; that the appellees are acting as the board of trustees and town clerk of said town; that a demand was made on them that they call an election, but that they have refused so to do, and asks that a writ of mandamus may be issued to compel such action. The answer of the appellants admits all the material averments of the petition, but alleges that the charter provision requiring the annual election to be held on the second Tuesday of April has been changed by the constitution of 1870 and the general laws of the State, so that such election should now be held on the first Tuesday of April; alleges that a legal election was held on the first Tuesday of April, 1884; that such election was legal and regular in every respect; that at such election the appellees were duly elected to the respective town offices which they now severally hold; that they have duly qualified, and entered upon the duties of their respective offices, and are in the full possession and enjoyment thereof; that such election was free from all fraud; that it was notoriously and publicly canvassed and contested; that more than 6000 ballots were east thereat, and the respondents elected by an average majority of more than 800 votes. To this answer the petitioner interposed a general demurrer, which, on hearing, was overruled by the court, and the petition dismissed.</p> <p>The main question in this case is, whether the election held in the town of Lake on the first Tuesday of April, 1884, for a supervisor, assessor, collector, town clerk and trustee, was a legal and valid election, or not.</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. Franklin Blades, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.

George Gardner, Judge, presiding. On the 22d of June, 1882, Frank G. Braley, the appelee, exhibited his bill in the Superior Court of Cook county, against Frederick Kirchoff, Henry Schaller, and Henry L. Schmidt, praying that a certain deed absolute in form, executed by himself and wife on the 24th day of January, 1879, to Kirchoff and Schaller, for a certain'lot and premises in the city of Chicago, be declared a mortgage, and that complainant be permitted to redeem…

<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>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 H. Barnum, Judge, presiding.</p>

<p>1. Will—subsequently acquired estate—whether it will pass by will— a will construed in that regard. In this State, property acquired by a testator subsequent to the making of his will, may pass thereby without a re-publication of the will. It is only a question of intention whether subsequently acquired real estate shall pass, or not.</p> <p>2. A testatrix, by her will, requested her administrator to pay her grandson out of her means not more than $300, and if at the end of three years he had not made a good use of it, to let him have no more, and bequeathed to her niece $1000, after which she expressed a desire to have a sale made of her personal effects, and her debts first paid out of the proceeds and other personal effects. The will then provided: “I do not want my administrator to pay H. H. W. [the grandson] only six hundred dollars in all, if he does do well with it; and I want the balance of my means to go to the relief of the Affican Kansas Breed Men’s Association, with the exception of what it may cost to procure a grave stone for, ” etc.: Held, that the real estate acquired by the testatrix after making her will did not pass under the general words, “the balance of my means,” and that such real estate descended as intestate property to her heir at law.</p>

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

Feancis Goodspeed, Judge, presiding. This suit was brought by J. H. Wade, in the circuit court of Bureau county, against the town of La Moille, to recover on ten bonds, and also the interest coupons thereto attached, issued by defendant on the first day of December, 1870, which bonds became due on the first day of. December, 1880. The declaration contains one special count on the bonds and coupons, and also the consolidated common counts.

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

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

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

Writ of Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.

Thomas J. Russell, Judge, presiding. This was an application, made at the May term, 1888, of the county court of Brown county, by the county collector of that county, for judgment against certain town lots and lands of appellee, lying within the incorporated town of Mound Station, for certain delinquent municipal taxes of that town for the year 1882.

Murray F. Tuley, Judge, presiding. Julia Bosa Newberry died testate on April 4,1876, unmarried and without issue, leaving her surviving, her mother, Julia Butler Newberry, who is the widow of Walter L. New-berry, deceased. Julia Butler Newberry is the sole heir at law and next of kin of said Julia Bosa. The last will of Julia Bosa was admitted to probate in Cook county, Illinois, on April 16, 1876, and letters testamentary issued to E. W. Blatchford.

Writ op 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. Sidney Smith, Judge, presiding.

<p>Appeal from the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.</p>

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

Clark W. Upton, Judge, presiding. On the 14th of May, 1879, Emily J. Dyer, Franklin E. Dyer, her husband, William Pollock, Caroline Knight, and Carrie E. Dyer, filed their hill in chancery in the office of the clerk of the circuit court of Kendall county, against John A. Knight, Thomas Atherton, Myron Hopkins, and William H. Hopkins, executors, etc., and on the 16th of December, 1880, they filed, in the same office, their amendment to said bill.

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

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

Murray F. Tuley, Judge, presiding. Frances A. Gross, suing in her own right, and as executrix of the estate of William H. Gross, deceased, exhibited her bill in chancery in the court below, against Frederick Fischbeck, for the purpose of having a trust declared in her favor in respect of certain premises for which the defendant held the legal title. Upon the hearing, the court decreed in favor of the complainant. The defendant appealed;

C. W. Upton, Judge, presiding. The bill in this ease was brought by Robert S. Tickner and John L. Tickner, against Ithiel C. Towner and S. P. Richards, in the City Court of Elgin. Afterwards, the venue was changed to the circuit court, of Kane county, where the cause was tried, and a decree rendered against defendants, to reverse which they have brought the ease to this court on their appeal. The facts of the case sufficiently appear in the opinion of the court.

John V. Eustace, Judge, presiding. This was a bill in equity, in the Whiteside circuit court, by Marcus Sands, against Candace Sands, praying that she be decreed to reexecute a deed for a certain forty-acre tract of land, and for general relief.

<p>Appeal from the Circuit Court of DeKalb county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Greene county; the Hon. Cyrus Epler, Judge, presiding.</p>

L. W. James, Judge, presiding. This was a motion by William A. Herron, for a rule on Samuel L. Gill, late sheriff of Peoria county, to pay appellant the sum due him for rent from Marvin A. Breed, out of the proceeds of assets of said Breed in his (Gill’s) hands, as sheriff, for distribution to execution creditors of Breed.

<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. Elliott Anthony, 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. John G. Rogers, Judge, presiding.</p>

George Gardner, Judge, presiding. This is a bill in equity, originally brought by George Rose, against Asahel Gage, to set aside a sale for taxes of lots 1 to 23, in block 1, and lots 1 to 43, in block 2, of Nichols’ subdivision of - block 6, of Lee’s subdivision of the south-west quarter of section 12, town 39, range 13, in Cook county, and enjoin said Gage from taking a tax deed to said lots on such sale.

Writ of Error to the Circuit Court of Christian county; the Hon. Jesse J. Phillips, Judge, presiding. This was an action of debt, for the recovery of delinquent taxes. The declaration contains two counts, which are as follows: : “The People of the State of Illinois, by John B. Jones, their attorney, and John Gr.

<p>1. Partnership—accounting between partners—overdraft by one partner—how adjusted. On bill for an accounting between partners, it is not proper to render a personal decree against one partner for the excess of his receipts over his disbursements, until his interest in the firm assets has first been exhausted, to make good the deficiency.</p> <p>2. A partner had overdrawn his private bank account for a considerable sum, the checks having been applied to the benefit of the firm, for which he received credit on the firm’s cash book. The firm then drew a draft on him for such amount in favor of the bank, which he accepted, and the amount was credited on his bank account. He afterward paid a portion of the amount of the draft out of his own money, and the note of the firm was given for the balance: Held, that he was not entitled to have the part of the draft paid by him credited in his favor in the partnership account, as he had already received credits for the same on the firm books.</p> <p>3. Same—in case of a new partner—adjustment as to amount due Mm from the firm. Where a person acquired an interest in a partnership and its property prior to the dissolution of the firm, and was recognized as a partner, it was held, that he was a proper party to a bill for an adjustment of the partnership and for the statement of an account, and there was no error in decreeing that the defendant partner pay him a sum found to be due him, even though the defendant had not consented to his becoming a partner.</p> <p>4. Same—sale by one partner—what passes thereby. The sale by one of three partners of all his interest in the partnership property, including debts due the firm, will pass only his share of what would remain after the payment of all the debts of the firm, including a debt due from the firm to another partner for advances. A purchaser of a partner’s interest in the partnership property acquires only such interest as the vendor had, and that is, his share of the residue after the affairs of the partnership are wound up and the debts paid, including the balance due one partner from the others on the partnership account.</p> <p>5. Same—contract of sale of one partner’s interest—construed, as to the extent of the interest sold. A contract for the sale of a partner’s interest in all the assets of a firm, including the real and personal property and the notes and accounts due the firm, the purchaser to assume the vendor’s pro rata share of the indebtedness of the firm, contained a clause that the purchaser should acquire no right in any claim the vendor might have against his former partners, and was to assume no liability for any claims or unsettled accounts of the vendor to his former partners. It was held, this would not affect any accounts due to or from the firm by or to the vendor; but such individual accounts of the partners would be left to be settled between themselves.</p> <p>6. Same—new partner—acquiescence by the other partners. Where a person purchased an interest in a partnership and its property and effects, from two of three partners, and the name of the firm was changed accordingly, and the business carried on in the name of the new firm without objection, until the other partner, several months. afterwards, sold his interest, it was held, that an acquiescence might be inferred in the purchaser becoming a member of the firm, without any direct evidence of consent.</p> <p>7. Parties—to bill for an accounting between partners. After the sale by one of three partners of all his interest in the firm property and assets, a bill was filed by the other two partners against him, for an account, and he was charged with one-third of an advance made by one of the other partners, to which an exception was taken and disallowed: Held, that the purchasers in such case were necessary parties to protect their rights, the court, however, expressing an opinion that the exception should have been allowed.</p> <p>8. Record in Supreme Court—whether certain matters copied into the transcript are a part of the record. In a chancery suit, there was no certificate preserving any evidence, all the testimony being in depositions taken by the master, and returned with his report. One witness testified, in his deposition, to the making of an invoice of partnership property and debts due the firm. An invoice and account were copied into the transcript of the record, which were not referred to in any deposition further than above stated: Held, that the invoice and account could not be considered as a part of the record.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Criminal Court of Cook county; the Hon. William H. Barnum, Judge, presiding. This was a prosecution under the Bastardy act, commenced by Augusta Wilmers, against Charles Volksdorf, to compel him to contribute to the support of a bastard child, on the alleged ground of his being its father.

<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. Gary, Judge, presiding.</p>

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

M. F. Tuley, Judge, presiding. This was a bill in chancery, filed by the Chicago, Burlington and Quincy Bailroad Company, against Andrew Crawford and the First National Bank of Geheseo, and others, for the purpose of removing an alleged cloud upon the title of complainant to certain real estate derived under the foreclosure of a trust deed.

Arthur A. Smith, Judge, presiding. On September 6, 1882, Eliza P. Allen, Truman D. Allen, Ambrose S. Allen and Mary J. Reece, with J. N. Reece, her husband, being the widow and heirs at law of Edwin W. Allen, deceased, filed their petition for partition of the real estate of which the latter died seized, in the circuit court of Warren county, asking the court to give to Eliza P. Allen, the widow, a homestead, and to make division of the residue between her, Truman D. Allen,…

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

<p>1. Appeal—from Appellate Court—when further proceedings are to be had in the trial court. No appeal lies from an order of the Appellate Court reversing a decree in part and. affirming in part, unless the judgment of that court is such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court.</p> <p>2. So where a decree in a suit for dower, finding the yearly value of the dower interest, and fixing the damages to be paid for the failure to give dower, from the time of the commencement of the suit, was affirmed as to the first part and reversed as to' the damages, and remanded to the court below, with directions to have the damages assessed by a jury, it was held, that no appeal would lie from such judgment of the Appellate Court, as a new trial was to be had in the court below in respect to the damages for a refusal to assign dower.</p>

Writ op Error to the County Court of Edgar county; the Hon. Andrew J. Trogden, Judge, presiding. This was a proceeding commenced in the county court of Edgar county, under section 2 of the Drainage act of May 29, 1879, known as the “Levee act, ” for the formation of a drainage district, and the assessment of benefits upon the lands embraced therein, above damages.

<p>Appeal 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. T. A. Moran, Judge, presiding.</p>

<p>Appeal from 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>

<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. Arthur A. Smith, Judge, presiding.</p>

<p>1. Parol evidence—to identify what is supposed to pass by will. For the purpose of determining the subject of disposition by will, or the quantity of land intended to be given, the court may inquire into every material fact relating to the property which is claimed as the subject of disposition, to enable it to identify the thing intended to be devised by the testator, or the quantity of interest he has given by his will.</p> <p>2. So where the owner of a half section of land had conveyed forty acres of the south quarter, and he devised twenty acres more of the same, and then gave the north quarter to a daughter, subject to a life estate in his widow, and one hundred acres (being the residue unsold and not devised, of the south quarter,) to another daughter, it was held, error to exclude evidence showing that the testator had adopted a line between the two quarters as the true one, whether correct or not, as tending to show that the devise was made in accordance with such adopted line.</p> <p>3. Devise—description—presumption as to quantity of land devised. Where a testator clevises a quarter section of land, except sixty acres thereof, the devise will prima facie embrace all the land in such quarter section included in the government survey, except the sixty acres; but such presumption is not conclusive. It may be shown that prior to the devise the. testator had adopted a corner between this and an adjoining tract, in which event the devise will be limited to the number of acres in the tract according to such adopted boundary line.</p>

John V. Eustace, Judge, presiding. This was a bill in chancery, by Thomas A. Galt, against Michael Moriarty, and Thomas S. Beach, sheriff of Whiteside county, in which it is alleged that in 1855 William Mooney purchased lot 1, block 44, west of Broadway, in the city of Sterling, Whiteside county, and from thence hitherto has occupied the same as his homestead, he being the head of a family, and residing with them during all that time; that in 1858 Michael Moriarty recovered…

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

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.</p> <p>The bill of complaint exhibited in this case by the St. Louis National Stock Yards, in the circuit court of St. Clair county, on February 10, 1882, sets out that the complainant, being th§ owner of United States survey No. 627, containing four hundred acres of land adjacent to Bast St. Louis, upon which tract its stock yards were situated, was desirous of having a connecting railway track as near as might be to the Bast St. Louis stations of divers railroads; that the Wiggins Ferry Company, being the owner of land between said survey 627 and said railroads, on or about May, 1875, offered to give complainant, for the purpose of a right of way for said contemplated connecting track, a strip of land sixty feet wide, (part of said ferry company’s land,) extending from complainant’s survey 627 to the main track of the Wabash railway, on the condition that complainant would locate and construct the track upon the ferry company’s land north of Stock Yard avenue, an improved highway leading from the stock yards to Front street, on the Mississippi river, at East St. Louis, and so as to enable the ferry company to lay out the land between Stock Yard avenue and the proposed track, into lots, of sufficient depth for manufacturing purposes, and to permit holders of lots abutting the track to connect therewith; that complainant accepted the proposal so made, and thereupon, in pursuance of the agreement, laid out a sixty feet right of way upon and across the ferry company’s land, in July, 1875, and within sixty days thereafter, with the knowledge and consent of such company, constructed said projected connecting track on said right of way; that the entire length of the connecting track was three thousand one hundred and fifty feet, permanently built, at a cost to complainant of $12,000,—one thousand seven hundred and fifty feet of it being upon this right of way, the other one thousand four hundred feet being upon complainant’s survey 627, and including a permanent bridge built across Cahokia creek; that the part of the track upon survey 627, including the bridge, cost $7000 out of the total of $12,000, and would not have been built, and was and is of no use to complainant without the other one thousand seven hundred and fifty feet, each being a necessary part of the entire connecting track; that ever since the completion of the track, in the fall of 1875, it was, with the knowledge and acquiescence of the ferry company, maintained and operated by complainant, for more than five consecutive years; that in 1876 complainant applied to the ferry company for a deed of said right of way, and the latter promised to make it as soon as it could have a survey made of the sixty feet wide strip, and thereafter, on a subsequent application, refused to make a deed; that oh April 17, 1881, the ferry company commenced suit in án action of forcible detainer, against complainant, to recover possession of the middle twenty feet of said sixty feet wide right of way, one thousand seven hundred and fifty feet in length, containing said connecting track, and on June 1, 1881, the ferry company made a lease for ten years for said middle twenty feet, for §250 per annum, to the East St. Louis Connecting Bailway Company; that thereafter the ferry company recovered judgment in the forcible detainer suit, which judgment was affirmed by the Appellate and Supreme courts, whereupon,, on January 30,1882, a writ of restitution was issued. The bill prays that the ferry company may be enjoined in the premises, that it be required to make a conveyance of the right of way to complainant, and that the lease to the connecting railway company be cancelled. The circuit court, on the hearing, denied the relief prayed for, and ordered the bill to be dismissed. On appeal to the Appellate Court for the Fourth District, the decree was affirmed, and complainant appealed to this court.</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. Joseph E. Gary, Judge, presiding.</p> <p>This was an action brought by Albert Prana, against the Pennsylvania Company, to recover for a personal injury received by the plaintiff while attempting to cross the railroad track of the defendant with a wagon and team, attributing the accident to the alleged negligence of the defendant’s servants in the management of its train. A judgment in favor of the plaintiff in the trial court was affirmed in the Appellate Court, and the defendant brings the cause to this court on his further appeal.</p>

<p>Appeal 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. B. S. Williams, Judge, presiding.</p> <p>David A. Gage, being the owner of one thousand or eleven hundred acres of land, now constituting a part of Riverside, some time in June or July, 1868, with the aid of his friend, Obadiah, Jackson, sold the same to Emery B. Childs, for $300,000, of which $20,000 was paid down, reserving one-tenth of the profits of the proposed scheme to Gage, and a like share for Jackson. Subsequent payments were made with money borrowed with Gage’s knowledge. The next purchase was the “Prescott tract,” of four hundred and three acres, for $40,000, one-fourth of which was paid in cash, and a deed of trust given to David H. Hills, to secure the balance. These lands, together with the “White tract, ” in all about sixteen hundred acres, compose the Riverside property. A series of costly improvements was commenced, principally on the Gage tract, on an extravagant scale, so that by October, 1871, a debt of nearly $2,000,000 was incurred, including purchase money owing and unpaid. Through Gage charters were obtained, under which the “Riverside Improvement Company,” and the “Riverside Water and Gas Works Company,” were organized early in 1869, the former with power to issue $600,000 in bonds, and the latter $1,000,000 of its bonds. William T. Allen, Alpheus C. Badger, Benjamin Y. Page and Seneca D. Kimbark having become interested in the enterprise, became liable in large sums of money on account of the improvement company, and a large amount of their paper, as well as that of David S. Duncomb and J. L. Brownell, was in the hands of banks, in Chicago and elsewhere, to be provided for by the improvement company, then holding the Riverside lots and lands.</p> <p>The first attempt to fund a portion of the Riverside debt was by the issue of six series of what are known as the “Page & Kimbark bonds, ” numbering twenty-five bonds each,—in all one hundred and fifty bonds, payable to bearer, three years after date, secured by six trust deeds, all dated in August, 1870, in which Benjamin Y. Page and Seneca D. Kimbark were grantees. Each deed of trust purported to convey about eighteen whole and thirteen half lots. These bonds were sent to David S. Duncomb, in New York, who guaranteed their payment, sold them, and accounted for their proceeds. A part of them were guaranteed by Childs. Edwin M. Hukill acquired of these bonds, before maturity and for value, fifty; Horace C. Davis, through Hukill, twenty; Charles A. Cooper, ten; Nathaniel S. McFetridge, two; J. L, Brownell held twenty-eight, and the balance by Temple and others.</p> <p>The second attempt at funding was made by means of what are called the “Church bonds, ” secured, or to have been secured, by a trust deed to Thomas Church, dated November 5, 1870. There were to have been two hundred of these bonds, for $1000 each, payable in three years, with ten per cent interest. Some of. these were.sent to David S. Duncomb, in New York, and were by him put afloat. Church died, and the trust deed, if ever executed, was never recorded, and seems to have been destroyed. Calvin W. G-ilfillan and Foster W. Mitchell claimed to hold, the one five and the other ten of these bonds, and to enforce the same, with accumulated interest, filed their bill, September 11, 1873, in the United States Circuit Court for the Northern District of Illinois.</p> <p>The third attempt to fund the Riverside debts was by an attempted issue of $1,600,000 “Greenebaum bonds,” as they are called,—$600,000 made by the improvement company, and secured by its deed of trust on three-eighths of the Riverside property, and $1,000,000- made by the water and gas works company, and secured by its deed on five-eighths of the Riverside property. It was agreed that Gage should convey to the improvement company the land he had sold to Childs, who had assigned the contract of purchase to that company, and Gage was to be paid therefor in Greenebaum bonds. To enable the water and gas works company to secure the $1,000,000 of its bonds, the improvement company conveyed five-eighths of all the Riverside property to it.</p> <p>With these bonds it was expected that all the debts would be paid, leaving a balance in the treasury. This involved the paying of the Prescott and the Sapieha deeds of trust, and the one hundred and twenty Gallup & Peabody bonds, all on the Prescott tract. Jackson, Gage’s attorney, was selected to act as a clearing house, and an attempt was made to procure releases of the prior trust deeds so far as they related to the Gage property. The great fire here intervened, and the sale of these bonds failed, though the Greenebaum trust deeds were recorded. After the fire these bonds were, from time to time, used as collaterals by Childs to meet pressing calls upon the improvement company, and he renewed his efforts to negotiate them in a body, and in view of these circumstances Gage consented to deliver the deed he had made, dated July 1, 1871, and the same was recorded March 12, 1872. Childs, in the meantime, had procured releases of Page & Kimbark trust deeds to be left with Jackson, to be recorded on some contingency, which should protect or take up all the Page & Kimbark bonds. These releases, it is claimed, were recorded by mistake on the same day, March 12, 1872, without performance of the conditions.</p> <p>Gage at this time claimed a balance of $450,000 against the improvement company, for purchase money, and for indorsed paper taken up by him, and when he conveyed to the company he took seven hundred and fifty-nine Greenebaum bonds, secured on a part of the Gage property, as a security for the gross debt. Failing to negotiate these bonds, and the funding of the debts having fallen through, the smaller creditors pressing for payment, and Sapieha having obtained a decree of foreclosure, under which a sale was advertised, in this emergency, Childs, president of the Riverside Improvement Company and of the Riverside Water and Gas Works Company, Leverett W. Murray, secretary thereof, Henry E. Seelye, treasurer of the first named company, (subsequently a receiver thereof,) Austin Stevens, David S. Duncomb, and some others, conceived the idea of organizing a corporation for the purpose of building a railroad from Chicago, via Riverside and Western Springs, to the Mississippi river. Accordingly a charter was obtained, and a corporation organized, under the name of the Chicago and Great Western Railroad Company. Another corporation was organized by Childs and his friends, called the Chicago and Great Western Railroad Construction Company, he and his friends composing its officers. A third corporation was organized, called the Chicago and Great Western Railroad Land Company,—Emery E. Childs, president, Leverett W. Murray, secretary, etc. The Riverside Improvement Company, and the Riverside Water and Gas Works Company, conveyed their-lands to the Chicago and Great Western Railroad Land Company, on February 28, 1873. The Chicago and Great Western Railroad Company not owning any property aside from its franchise, issued $8,000,000 of bonds, secured by trust deed upon its (prospective) assets, to the Farmers’ Loan and Trust Company of New York. The provisions of this trust deed will be hereafter noticed. The railroad company’s bonds were to be further secured by a deed of trust from the land company to John N. Jewett, of all the lands conveyed to it by the Riverside companies.</p> <p>The various claims against the improvement company, and collaterals, were deposited with Jewett, who was made a clearing house, and new securities were to be given in exchange for them when the day of clearing arrived. He kept a book in which the old securities were entered and the stipulation for “hew ones in exchange, giving also his agreement in writing in each case, in conformity with the respective contracts oexchange, the whole being dependent upon his decision as to the clearing up of all liens, judgments, mortgages, trust deeds, and that the title was vested in him under .the deed of trust of the land company to him, dated March 1, 1873, except as to lots therein stated as under incumbrance. This trust deed was to secure the first $1,000,000 in bonds issued by the railroad company. By the arrangement made, parties, such as Gage, Smiths, Allen, Badger, Gregory, Gookins, and others, holding Greenebaum bonds, were to take in exchange therefor, some all railroad bonds, some railroad bonds and land company stock, and some railroad bonds, land company stock and construction company stock, as might have been agreed.</p> <p>In the preparation for the June clearing, it was discovered that the Page & Kimbark trust deeds had been released, leav-‘ ing the one hundred and fifty bonds therein secured, without any security. To provide for such of these bonds as were guaranteed by Duncomb, a deed absolute on its face, but really in trust to pay these bonds and to indemnify Duncomb on his guaranty, was made to Austin Stevens, and for no other purpose. The lots in this Stevens deed were one hundred and fifty-six in number. Gage, as well as Jewett, his attorney, had knowledge of this conveyance to Stevens. Samuel B. Gookins and Charles A. Gregory claimed to have a special arrangement with Jewett that they were to have first mortgage bonds, with the exception that enough bonds should be preferred to pay the Sapieha claim, amounting to $75,000. Alpheus C. Badger, who had a claim on one hundred and nineteen Gallup & Peabody bonds, secured on the Prescott tract, which were pledged as collateral in the Third National Bank of Chicago, also required that if he and the bank released these securities, he should be preferred with the Sapieha and Prescott claims.</p> <p>Before this time, Walter L. Peek, Ferdinand W. Peck, Clarence I. Peck, Thomas C. Hill and William R. Page, partners, under the title of East Hinsdale Company, afterwards the Western Springs Company, not being creditors of the improvement company, were induced to enter into an agreement to advance $80,000 to meet the Sapieha claim and save a sacrifice of property, for which they received $100,000 in railroad bonds, numbered from 1 to 100, inclusive, as collaterals to the notes of the land company for $80,000. Badger, for himself and the Third National Bank, got the second $100,000 in railroad bonds, the trust deed providing that said tw'O hundred bonds should be paid in the order of their numbers in ease of foreclosure under the power therein or by decree of court. There was no other provision for a preference of these two hundred, or any other of the first one thousand bonds, which were preferred over the remaining $7,000,000 of railroad bonds. The Jewett trust deed provided that it could be foreclosed only after a foreclosure and sale under the railroad trust deed was made, when, in case of a deficit, all the bonds should be deemed due, and the Jewett trust deed might be immediately foreclosed by the trustee to pay the deficiency. There was no provision therein for declaring the bonds due before the foreclosure of the railroad trust deed. The railroad trust deed to. the Farmers’ Loan and Trust Company provided that the trustee might, on request of ten or more bondholders of at least $1,000,000 in bonds, take possession of the road, etc., and operate, for default in payment of interest, using profits to pay interest; and that on default in payment of interest for six months, any ten or more bondholders having at least $1,000,000 in bonds, might elect and declare the principal of all bonds due and payable; or that a like election and declaration might, on request of the same number and amount of bondholders, be made by the trustee therein, who might thereafter foreclose for principal and unpaid interest, either under the power, or in chancery.</p> <p>In the early part of June, 1873, all the securities were exchanged and the clearings made, and all parties either then took the new securities, or Jewett was authorized to make, and did make, the exchanges, as is claimed,' and the parties then or afterwards' took their new securities under circumstances which is claimed to have been an acceptance, except Gookins, who held fourteen of the Greenebaum bonds, Sapieha, who took his money advanced by the Pecks, and Prescott. To pay off the Prescott claim, Stevens took thirty bonds to New York on which to raise money, but failed to do so. The Prescott claim ripened into a decree, July 7; 1873, for over $22,000. There was a clause in the Jewett trust deed by which bonds could be retired and the holders take lots. On a schedule -being made and approved, any party getting a deed of the land company’s equity of redemption, and paying Jewett, the trustee, the schedule price in bonds, was entitled to a release of the lots embraced in the land company’s deed. Such a schedule of prices was duly made and approved in triplicate, but Jewett afterwards refused to release lots under this clause.</p> <p>On the June, 1873, clearing, Jewett delivered railroad bonds as follows: To Pecks, Hill & Page, one hundred; to Badger, for the Third National Bank, one hundred; to Mead & Clark, (taken by Stevens to New York and returned to Jewett,) on which they were to advance money to pay the Prescott claim, thirty; H. W. Good, fifteen; H. F. Barnes, ten; Commercial National Bank, eleven; B. Edwards, eight; S. M. Nickerson, six; Mechanics’ National Bank, seventeen; B. M. Whipple, ten; Sleeper & Whiton, two; Charles A. Gregory, sixty-five ; S. B. Gookins, eleven; I. Holmes, four; Crane Manufacturing Company, six; Kelly & Bro., one; E. S. Hunt, one; S. Whittier, one; Hoyne, Horton & Hoyne, one; Harris & Co., one; David A. Gage, two hundred and fifty; F. Jaeger, four; C. M. Smith, twelve; National Loan and Trust Company, five; W. Yoorhies, eight; M. O’Brien, one; Wm. T. Allen, sixteen; H. Greenebaum, eight; same, five, (two to secure against the two missing Greenebaum bonds); George Krick, four; J. Davis & Co., one; H. K. Elkins, seven; Dr. Gibbs, four; John Adriance, twenty-five. John N. Jewett retained two hundred and fifty, which were to be used to release the incumbered lots. Gage had agreed to take three hundred railroad bonds of the first one thousand, and stocks in the railroad land company and construction company, in one or all, to settle his debt, lumped at $450,000. The bonds fell short, and Gage consented to the distribution and to take a less amount of bonds, as might afterwards be agreed.</p> <p>Page & Kimbark, on September 12, 1873, filed their bill against Austin Stevens and others, to set aside the releases of the six deeds of trust given by the improvement company to complainants, in August, 1870, as having been delivered and recorded contrary to the conditions on which they had been left with the depositary, and in case the releases were held valid, praying that the lots conveyed to Stevens might be subjected to the payment of the bonds originally secured by the trust deeds to Page & Kimbark.</p> <p>Edwin M. Hukill, on January 20, 1875, filed his cross-bill in the preceding case against Page & Kimbark, seeking a personal, decree against Page & Kimbark, for a violation of duty in releasing the trust deeds to them.</p> <p>Alpheus C. Badger, on July 22, 1874, filed his bill against the Chicago and Great Western Railroad Company, the land company, Childs, Murray and Jewett, seeking to enforce a claim in his own behalf and in behalf of the Third National Bank and others, to the second hundred of the two hundred preferred bonds, in case of a sale or foreclosure of the Jewett trust deed. Of these one hundred bonds, the Third National Bank held sixty, the other forty having been pledged,—twenty to two Wisconsin banks, and twenty to relatives of Badger. Badger’s claim to these one hundred railroad bonds was based upon the one hundred and nineteen Gallup & Peabody bonds which he had pledged, and they were delivered to him in exchange for the Gallup & Peabody bonds which were issued to raise money to pay the Sapieha claim. Badger had turned out these Gallup & Peabody bonds to the Third National Bank, to secure it for any balance of money his firm owed that bank.</p> <p>David A. Gage, on July 22, 1874, filed his original bill against the Riverside Improvement Company and others, seeking to set aside all of the conveyances of the improvement company and the water and gas works company to the land company, and have the Greenebaum trust deed reinstated as to the lien of his seven 'hundred and fifty-nine bonds, and to require Jewett to re-deliver the same, with the Duncomb and Brownell notes, to Gage, or, in case Childs held them, he be required to do the same, and that Stevens reconvey to the improvement company; that a receiver be appointed; that the hotel company property, and Childs’ and Murray’s residences, might be decreed to the improvement company, and that the Greenebaum trust deed be foreclosed, and the lands be subjected to the payment of what was due Gage. The bill, among other things, charged that the land company was unauthorized by its charter to take and hold real estate, and that the deeds to it by the improvement company and the water and gas works company were void, and that the land company had no power, either by the Jewett trust deed or by any of its numerous deeds to other parties. After the hearing, Gage dismissed his bill as to Gaytes, George C. Smith, Charles M. Smith,. Horace A. Hurl-hut, Henry E. Seelye and Joshua C. Sanders. A demurrer was filed by Gregory, which was overruled, and he abided his demurrer.</p> <p>Walter L. Peck, Ferdinand W. Peck, Clarence I. Peck, Thomas C. Hill and William R. Page, on October 9, 1874, filed their original bill against the Chicago and Great Western Railroad Land Company and others, (which is called the “Peek bill,”) seeking to reform the Jewett trust deed in certain respects, and to foreclose the same when corrected,- and to be subrogated to the rights of Sapieha and Prescott, growing out of their advance to pay the Sapieha claim, and the assignment of the Prescott decree. The complainants in this bill sold the bonds held by them as collaterals, for a default in the payment of interest, and became the purchasers, and this is ^claimed to be invalid for two reasons: First, that a person can not become a purchaser at his own sale; and second, the power of sale could be exercised only on the maturity of the notes they were given to secure, or in case -of a depreciation in their value. It was claimed in this bill that the first hundred of the bonds were to be a first lien in the Jewett trust deed; that on default in the payment of said bonds, or the coupons thereto attached, or any part thereof, the holder or holders of any ten of such bonds might declare the whole of said bonds, principal and interest, due, and the trustee might sell the mortgaged property; that on application of any one to exchange bonds for lots at their schedule prices, notice should be given to the complainants, and that they have the first privilege of such exchange; and that at the time they paid the $75,000 they were assured by Jewett, Childs, Murray and Allen that the deed of trust contained the foregoing provisions, whereas the trust deed preferred the first two hundred of said bonds, and omitted the clause as to the right to declare all bonds due by the holder or holders of ten bonds, and have a foreclosure, and had in lieu thereof a clause making a foreclosure of the railroad trust deed to the Farmers’ Loan and Trust Company a condition precedent to the foreclosure of the Jewett trust deed, and that the clause requiring notice to be given to the holders of the first one hundred bonds in case of a sale, was omitted. In these respects the Jewett deed was sought to be reformed, and then foreclosed. The bill further alleged that Stevens failed to pay off the Prescott mortgage, but converted to his own use the thirty bonds taken by him to New York with which to discharge such mortgage, and that to protect their interest complainants were obliged to purchase the Prescott mortgage, and paid therefor $24,000.</p> <p>Joshua C. Sanders, on January 2, 1875, filed in the Peck suit his cross-bill against Walter L. Peck and others, in which he sets up his purchase of one hundred and ninety-five bonds, secured by the Jewett trust deed, after .examining the conditions of such deed as to retiring bonds in payment for lots; that he bought of the land company the equity of redemption of three hundred lots, which were described,—took the land company’s deed therefor, and tendered the one hundred and ninety-five bonds, (enough to pay for the lots at schedule -prices,) and demanded releases of said lots, producing his deed from the land company, and that Jewett refused to release the lots. A decree was asked requiring Jewett to make the release of the three hundred lots.</p> <p>The cross-bill of the city of Chicago, filed February 11, 1876, against Walter L. Peck and others, alleged that on December 27, 1873, David A. Gage, being indebted to the city in more than half a million dollars, and unable to pay it, transferred to George Taylor, trustee, three hundred and fifty bonds of the railroad company, secured by the Jewett trust deed, and that Gage, in July, 1874, as a further security to the city, obtained by the land company the execution of five deeds, conveying lands at Riverside to Taylor, as trustee, etc., and prayed that Gage might be compelled to protect the interest of the city, and that the city might be subrogated to the rights of Gage, if he should be held to have rights, in lieu of the bonds transferred as above stated.</p> <p>The cross-bill of Samuel B. Gookins and Elizabeth S. Newton, filed in the Peck suit, on February 18, 1876, against Peck and others, alleged that on May 15, 1872, the Riverside Improvement Company made its two notes of that date, each for $5000, with interest, payable in eight and twelve months, to the order of Emery E. Childs; that Gookins, finding these notes in the market, with fourteen Biverside Water and Gas Works Company bonds as collateral security, purchased such notes before maturity, and the collaterals; that said notes and bonds were delivered to Jewett in escrow, and only to be delivered up upon the execution of the Jewett trust deed and the delivery to Gookins of eleven bonds of the Chicago and Great Western Bailroad Company, of $1000 each, dated March 1, 1873, to be secured by trust deed to the Farmers’ Loan and Trust Company, and the Jewett trust deed, such bonds to be within the class to be first paid out of the property mentioned in said trust deeds, saving only the $75,000 Peek claim, the priority of which was conceded, and upon. Jewett also receiving for Gookins one hundred and ten shares of the dividend warrants of„ the Great Western Construction Company; that Jewett, on the deposit of the notes and bonds with him, executed an agreement in writing, specifying the terms upon which he had received the same; that six months after the delivery and recording of the Jewett trust deed, Murray, the secretary of the land company, offered him eleven bonds with the first interest coupons cut off, and he refused to receive the same, which were then in the hands of Jewett. Gookins therefore claims that he holds the fourteen bonds of the water and gas works company as collateral to said notes, and that the same are still in full force; that if ■ Greenebaum has released the. trust deed, it is invalid as against him, (Gookins), or, if effectual, Greenebaum is liable for releasing said deed of trust, and that Jewett, having concurred in the same, is also liable. Gookins further states, that on April 8, 1874, he .obtained a judgment in the Superior Court of Cook county, against the Biverside Improvement Company, for $11,900, and costs, and that in June, 1872, he assigned to his co-complainant an equitable interest in the decree, and prays that complainants may be decreed to be the owners of the Biverside bonds; that the trust deed to Greenebaum, securing the same and other bonds, may stand as security for said fourteen bonds, and that the same may be foreclosed. On the other hand, it is claimed that Gookins made Jewett his agent, and is therefore bound by his acts.</p> <p>William T. Allen also filed his cross-bill in the Peck suit, in which he alleges that on November 12, 1872, he agreed, in writing, with Childs, to put all his claims ($40,000) against the Riverside Improvement Company in the hands of Jewett, with all collaterals, Childs to give him (Allen) sixteen bonds of the railroad company, of $1000 each, and $12,000 of stock of the construction company,—the sixteen bonds to be a first lien, and part of the first $1,000,000 of bonds; that he gave certain securities to Jewett, and took his receipt that they should be disposed of as provided in the written memorandum ; that Childs made certain .representations to him, and relying upon which, he called upon Jewett and obtained his bonds; that Childs conspired with Duncomb, Stevens, Badger and others, to deceive and defraud complainant of his rights, by giving a preference to two hundred bonds, and thus make complainant’s bonds a third lien, and omitted from the Jewett trust deed certain property which should have been included therein; denies the legal existence of both the railroad and the land corporation, and the conveyance of the property by the Riverside Improvement Company to said corporations, and prays that the exchange made by complainant of his securities with Childs may be declared void, and complainant remitted to his rights as the holder of the bonds delivered to Jewett, and that the Jewett trust deed be declared null and void.</p> <p>Horace A. Hurlbut filed his cross-bill in the Peck suit, in which he alleged the making of the Jewett trust deed to secure the railroad bonds; that he became the owner of eighteen of such bonds, and set up the provision in the trust deed for the sale of lots by the land company at schedule prices, and the release of said lots by Jewett, the trustee, upon receipt of bonds; that he bought thirty-five of said lots; taking a deed from the land company therefor, and that he tendered bonds to Jewett, and demanded a release of the lots, which Jewett refused, and prayed to have such lots released. Peck and his«co-complainants answered, denying that-Hurlbut became the owner, for value, of any of the bonds secured by the Jewett trust deed, and charging that he obtained the same by collusion, and averred that the terms and conditions of the Jewett trust deed, in regard to the sale and release of lots, were never complied with, and that no proper schedule was ever made of the prices of the lots.</p> <p>The cross-bill of Charles M. Smith set up a claim to sixteen lots bought, and sought to have the same released from the Jewett trust deed, as in the Hurlbut cross-bill. ■</p> <p>These cases,—four original bills and eight cross-bills,—by agreement of all parties, were heard together, with the understanding that the testimony taken at the hearing should, so far as applicable, be considered in and applied to each case. The court decreed substantially as follows:</p> <p>First—Dismissing the Peek bill as to Park, Eeynolds, George C. Smith, Green, Hall & Frost, Henning, Yoorhies and the Woodwards, Gaytes, Marks and "Osborn.</p> <p>Second—Giving a lien to Gage for $4300, and interest from October 16, 1873, and to Peck et al. for $20,000, and interest from August 11, 1872, at ten per cent, and the further sum of $2095.60, and interest from June 8, 1874, to be paid out of the proceeds of sale by Hills, trustee under the Prescott decree. If proceeds not sufficient, Gage to share pro rata with Peck et al.</p> <p>Third—Setting aside the Sanders deeds, and dismissing Sanders’ cross-bill, without prejudice as to any claim he may have, as a bona fide holder of railroad bonds, to share in the distribution of bonds numbered from 100 upwards.</p> <p>Fourth—Giving the city of Chicago the benefit of the three hundred and fifty bonds received of Gage, in Taylor’s hands, to share with the other holders of railroad bonds above No. 100, in. any distribution of proceeds of sale on foreclosure, and if more than Gage owed the city was realized, the surplus to go to Gage; and adjudging the city to be entitled to the equity of redemption of the lands conveyed in the five deeds of the land company to Taylor, trustee, and that the lots conveyed therein, except two lots, be sold last on the foreclosure sale.</p> <p>Fifth—Dismissing the Allen cross-bill, and providing for his bonds to share in the distribution of surplus of proceeds of sale, as for Sanders and the city of Chicago.</p> <p>Sixth—Setting aside deed of land company to Hurlbut, of his thirty-five lots, and dismissing his cross-bill, with costs, without providing for any distribution as to his bonds, even as to the three held by Smith, and tendered for his lots.</p> <p>Seventh—Setting aside the deeds of the three lots to Charles M. Smith, and providing, in the cancellation of Smith’s eight bonds, that Jewett release to Smith his sixteen other lots conveyed to him by the land company, but that they be held still subject to the lien of the Greenebaum trust deed.</p> <p>Eighth—That Gregory and Shaw enter satisfaction of the $13,091.21 judgment, and that the Jewett trust deed was a valid lien to secure lawfully issued railroad bonds on all lands therein described, except as. thereinafter excepted.</p> <p>Ninth—That the Peck bonds, numbered from 1 to 100, and none others, were entitled to a preference, and found it useless to require a foreclosure of the railroad deed of trust before that to Jewett, and providing for a sale for non-payment of sums found due, Peck et al. to be first paid, and the balance brought into court, and also establishing the order of sale under the Jewett trust deed.</p> <p>Tenth—In the Hukill et al. cross-bill, the four trust deeds securing the Page & Kimbark bonds were held valid and binding liens, and the releases thereof were set aside, and it was decreed that none of the other deeds should be a cloud upon the title to the lots in the Page & Embark trust deeds held by the complainants. There was found to be due from the improvement company to Hukill, $72,500; to Davis, $29,000; to Cooper, $21,750 ; and to McFetridge, $2900,— which sums were ordered to be paid within ten days, and in default of such payment, the lots in the Page & Embark trust deeds be sold in the inverse order of their alienation, and in case enough was not realized to pay said sums, with interest and costs, then enough of the Stevens lots be sold.</p> <p>Eleventh—As to the Gookins and Newton cross-bill, the decree found that the fourteen Greenebaum bonds were déposited with Jewett on the conditions stated in the bill, which were never complied with, and that the release'of the Greenebaum trust deed was fraudulent as against said bonds, and that Mrs. Newton was entitled to said bonds, uncancelled, as collateral to the judgment on the notes'for $14,208.54, and set aside the release as to such bonds, and ordered a foreclosure of said trust deed, and a sale of lots in default of payment in the time fixed.</p> <p>This decree directed, first, that certain lots, (named,) then an undivided five-eighths of certain land subject to the lien of the Prescott decree, then an undivided five-eighths of certain other premises subject to the Prescott lien, and then other lots subject to the superior right of Hukill and others, as declared in the decrees in their cross-bills, and then certain lots, be sold, subject to the superior rights and equities of the complainants in the Peek bill, and to any equity arising under incumbrances mentioned in the Jewett trust deed; and then, if the lands so sold are insufficient to pay the GookinsNewton decree, it prescribed to be next sold other lands, on which the decree states that thé complainants in the Peck bill have rights inferior and subject to those of Gookins and Newton. The decree required any surplus to be brought into court, subject to its further order.</p> <p>On June 30, 1882, a writ of error was sued out of the Appellate Court for the First District, to review the proceedings of the circuit court of Cook county, by the Chicago and Great Western Railroad Land Company, Alpheus C. Badger, Henry E. Seelye, the Third National Bank of Chicago, Charles A. Gregory, Theodore A. Shaw, Charles M. Smith, Horace A. Hurlbut, George C. Smith and William T. Allen.- At the October term of the Appellate Court, Joshua C. Sanders appeared, and asked leave to assign errors upon the record, which was afterwards granted, and he assigned errors accordingly. The other defendants in error moved to dismiss the writ of error because a question of freehold was involved, which motion-was reserved until the final hearing, when it was denied by an affirmance of the decree below. On May 2, 1883, David A. Gage moved to quash the writ of error as to the Gage suit, because it was sued out in several different suits, and for a misjoinder of parties in such suit. On May 4,1883, George C. Smith, one of the plaintiffs in error, moved to dismiss the writ of error as to himself. Upon the argument, defendants in error moved to strike from the files the errors assigned by Sanders, because not assigned within five years. The court took these motions under advisement, and afterwards affirmed the decree of the circuit court, generally, without otherwise deciding any of the motions taken under advisement. The Chicago and Great Western Railroad Land Company, Alpheus C. Badger, Henry E, Seelye, the Third National Bank of Chicago, Charles A. Gregory, Theodore A. Shaw, Charles M. Smith, Horace A. Hurlbut, William T. Allen and Joshua C. Sanders bring the ease to the Supreme Court, by appeal, and assign for error the affirmance of the decree, and George C. Smith assigns for error that the court did not allow his motion to dismiss the writ of error as to himself, and the appellees assign for error that the Appellate Court erred in not dismissing the writ of error for want of jurisdiction.</p>

<p>1. Champerty—of the essential elements to constitute champerty. There are two essential elements in every champertous agreement,—that is, first, there must be an undertaking by one person to defray the expenses, in whole or in part, of another’s suit; and second, an agreement or promise on the part of the latter to divide with the former the proceeds of the litigation in the event it proves successful.</p> <p>2. Same —the particular case. In a case of an absolute sale and transfer of an undivided interest which the grantor has or may afterward acquire in land in the adverse possession of others, the grantor having no suits pending to recover his interest or any part of it, under an agreement that the grantee shall institute legal proceedings in his own name and at his own expense, for the purpose of recovering and establishing the title of the, grantor so conveyed, no part of which is to be divided between them, but by which agreement the grantee is to pay a given price per acre of the land recovered, and nothing if the litigation proves unsuccessful, it was held, that both the essential elements to a champertous agreement were wanting, and that the transaction was not void for champerty.</p> <p>3. A party owning an interest in land held and claimed adversely, may sell the same for a consideration to be paid upon a contingency, as, upon a recovery of the land by the grantee. The owner may convey his interest in land even Without any compensation, present or prospective, and he may contract to receive nothing in case his interest can not be legally established so that the purchaser may recover the same.</p> <p>4. Same—when and between whom the question of champerty may arise. If a conveyance of an undivided interest in land in the adverse possession of others is made under a champertous agreement, the adverse claimants .can not avail of the champerty as a defence to a proceeding by the grantee for a partition. The question of champerty can not properly arise except in a controversy between the parties to the alleged champertous agreement, or their privies.</p> <p>5. Conveyances—construction of deed in connection with contemporaneous contract. Where a deed for land is given, and at the same time a written contract between the parties, grantor and grantee, is entered into relating to the same subject matter, and providing for the consideration to be paid, and upon what contingency, they will be treated, in arriving at the intentions of the parties, as but parts of the same transaction, and receive the same construction as if their several provisions were embodied in one and the same instrument.</p> <p>6. Same—deed construed—of its effect as to after acquired title. A quitclaim deed contained the following language, in substance: That the grantee “has remised, released, etc., and by these presents does remise, release, alien, confirm, convey and forever quitclaim, all title which said party of the first part has in and to the following described lot, etc., situate, etc., to-wit, in such manner as he may and to the extent that he has heretofore acquired title thereto, the north quarter of,” etc.: Held, that such deed passed only the grantor’s interest in the land at the time of its delivery, and not any further interest he might thereafter acquire. The words, “in such manner as he may,” had reference to the grantor’s power to convey, or his authority to convey, and did not indicate an intention that his deed should become operative and effective as to any additional interest in the land he might afterward acquire.</p> <p>7. Ratification of unauthorized acts of agent. The collection of a small portion of rents due from a tenant under a lease, after knowledge of the malting of an unauthorized contract by the lessor’s agent, is not a ratification of such contract for the sale of the lands; nor is the retention of the possession of the leased property obtained under such agent’s contract, where the lessor had the right to declare a forfeiture and take forcible possession of the demised premises.</p>

George Gardner, Judge, presiding. This is a bill for a specific performance, brought in the Superior Court of Cook county by Horace A. Hurlhut, against Frederick M. Kantzler, Daniel F. Crilly, Charles H. Blair, and the Board of Education of the City of Chicago.

<p>1. Appeae—from Appellate Court—within what time it must be prayed. An appeal from the Appellate Court to the Supreme Court must be prayed for within twenty days from the rendition of the judgment sought to be reviewed,—and this whether it is prayed for in term time or in vacation. The proviso in section 90 of the Practice act, “that such appeal may be prayed for at any time within twenty days after the rendition of such judgment,” is to' be understood as mandatory as regards the time, not merely directory.</p> <p>2. Same—waiver of irregularity in that regard. After the Appellate Court has granted an appeal from its judgment, to the Supreme Court, twenty-two days after the judgment was rendered, the fact that appellee’s counsel were present in the first named court when the appeal bond was filed, and made objection to its wording, can not be regarded as a waiver of the right to have the appeal dismissed as not having been prayed for in proper time. A motion in that court to dismiss the appeal could not have been entertained after allowing the appeal.</p> <p>3. Dismissal of appeal—damages. In a proceeding by attachment, judgment was rendered against garnishees, who paid the amount of the judgment into court. On appeal to the Appellate Court, the judgment of the trial court was affirmed. An assignee of the attachment debtor, who had interpleaded in the trial court, against whom there was no money judgment, appealed to this court. On dismissal of the appeal upon the ground it was not prayed in proper time, statutory damages were asked, but as the appeal did not appear tb be frivolous, it was not considered a case for damages.</p> <p>4. Construction of statutes — when “may" means “shall." The word “may,” in a statute, means “shall” whenever the rights of the public or third -persons depend upon the exercise- of the power, or the performance ¡of the duty to which it refers. The word has such meaning in the proviso of section 90 of the Practice act.</p>

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

George Gardner, Judge, presiding. This was a petition for leave to file an information in the nature of a quo warranto, against the Chicago and Evanston Eailroad Company, in the circuit court of Cook county.

<p>Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.</p> <p>This was a proceeding as for a contempt of court, against the plaintiff in error, in refusing to answer a question propounded to him as a witness, during the trial of an action brought by John Finneran, against Henry Henson, for an assault and battery.</p> <p>The plaintiff in error, being upon the stand as a witness, testified: “My name is John Wright. I reside in Clinton, DeWitt county, Illinois. I am a physician and surgeon,— a graduate of Chicago Medical College,—and have been engaged in the active practice of medicine and surgery for twenty years last past. I was called professionally, on the 8th of November last, to visit the plaintiff, John Finneran. I found no bruises or signs of violence about him at that time. He complained of dizziness, and buzzing in his head and ears, and was laboring under the hallucination that certain parties were in pursuit of him, and were seeking to harm him. He .seemed to be afflicted with mental aberration.” Witness was_ here shown an instrument or device, commonly known as a policeman’s “billy,” composed of strong leather, sewed together in such manner as to form a handle or handhold at one end, and enlarging into a bulb at the other, and filled with leaden shot. Plaintiff, by his counsel, then asked witness the following question: “If one person should strike another a heavy blow on the head, at or near the temple, with that ‘billy,’ would it, or would it not, be likely to produce upon the person receiving such blow, a condition alike or similar to that in which you found John Finneran?”</p> <p>Witness: “I regard that as calling for a professional opinion, and if so, I claim that I am privileged from answering the question until my fee of ten dollars is paid or secured to me; and I would ask the court if that question does not call solely for a professional opinion.</p> <p>The "court: “It does.</p> <p>Witness: “Then I refuse to answer it, except upon the conditions I have stated.”</p> <p>The court then asked plaintiff if he was willing to pay or secure said fee of ten dollars, to which, plaintiff replied he was not, although admitting the fee to be a reasonable charge for such opinion, but insisting that witness was not entitled to charge any fee other than the statutory witness fee, and that he was compellable to answer the question.</p> <p>The court, to witness: “The court holds that you can not legally claim such fee, and refuse to answer because the same is not paid or secured to you; and the court orders and directs you to answer, to the best of your ability.</p> <p>Witness: “Believing the court has no right to direct or order me to answer the question without my fee being paid or secured, I still refuse to answer. ”</p> <p>The above was all the evidence in said cause, and all the facts and occurrences upon which the action of the court was based. Thereupon the court informed the witness that his refusal to so answer said question was in contempt of .said court, and that he stood arraigned before said court for such contempt; and being again asked by said court to answer said question, and the witness still refusing, the court adjudged him guilty of a contempt of said court for such refusal to answer, and sentenced him to pay. a fine of five dollars, and costs of the proceeding, for such contempt,—to all which the defendant herein then and there excepted.</p>

<p>1. Descbiption—boundary—of its sufficiency, generally—oral evidence to explain ambiguity. Any description of land in a deed of conveyance by which the identity of the premises intended tó be conveyed can be established, is sufficient; and for the purpose of sustaining a grant, extrinsic evidence may be used tb identify and establish the objects and calls in the deed. Oral evidence may be introduced to explain an ambiguity in a deed, but not to enlarge or vary its terms.</p> <p>2. Same—rejecting a senseless or ummeaming portion of a description. In attempting to describe a tract of land in a deed, by metes and bounds, giving courses and distances, three of the four lines necessary to the description—the south, east and north lines,—were plainly given, leaving no uncertainty. Then in producing the west line, it was described as running from the west end of the south line “north 60° 30' west,” etc., giving the distance, “to a stake.” The course thus given would make this fourth line -run, not north to the west end of the north line, but nearly west, and would, in connection with the other three lines, inclose no land at all. So the words, “60° 30' west,” being unmeaning, were rejected as surplusage, leaving the line to read, “thence north,” etc., “to a stake.” In that way the description of the land was made certain.</p> <p>3. Same—quantity controlled by courses and distances. In the same deed, the first part of the description designated the land intended to be conveyed, as “34 69-100 acres off of the south side of the south-east quarter of section 14. ” But no importance was attached to that part of the description, as it was controlled by what immediately followed, giving the corners and boundaries of the land.</p> <p>4. Limitations—as between tenants in common. One tenant in common can not set up the bar of the Statute of Limitations to defeat an action brought by his co-tenants, for the reason that his possession is not adverse. Possession of land, however long continued, unless adverse, will not defeat a recovery on behalf of the owner.</p> <p>5. Same—whether possession is adverse. The owner of land, while in its occupancy as a homestead, conveyed the same,in fee, reserving in the deed, however, his homestead right. It was held, the continued possession of the premises by the grantor, after his conveyance, was not adverse to his grantee, because such possession was consistent with the deed.</p> <p>6. Tenants in common—who considered as holding that relation. An owner of land conveyed the same to his five children. One of the grantees afterwards reconveyed to the original grantor, but by deed purporting to convey, not the undivided one-fifth interest which he held, but the entire tract. It was considered, however, that the legal effect of the reconveyance was, under the circumstances, the same as if it had purported to convey only the interest which the grantor therein held—an undivided one-fifth part. So the original grantor, having thus acquired an undivided one-fifth interest in the land, became a tenant in common with the other four owners to whom he had previously conveyed, and his possession in that relation, was not adverse to them.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding. On the 16th of March, 1871, Thomas S, Dobbins recovered a judgment in the circuit court of Peoria county, against Henry T. Baldwin, and others. An execution was issued upon this judgment within the year, and returned no property found.

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

Lyman Lacey, Judge, presiding. This was a bill filed by William Fogarty, to compel payment by appellants, Lochenmeyer, George Stoll and John Cutlip, and Ezekiel French, executor of the estate of Jacob Hammon, deceased, of the amount that Fogarty was compelled to pay as surety upon the guardian bond of Edward Lynch, to Joseph Beam, his successor as such guardian, and also to compel French to account for money received by him, which, it was alleged, belonged to the ward.

Sidney Smith, Judge, presiding. On the 7th of July, 1883, the Chicago and Evanston Bail-road Company filed in the Superior Court of Cook county a petition to condemn, for railroad purposes, a triangular piece of land lying on the west side of the north branch of the Chicago river, and on the north side of Kinzie street, in the city of Chicago, having an eastern front on the river of one hundred and three feet, and a southern front on Kinzie street of seventy-two and…

Henry M. Shephard, Judge, presiding. This was an information in chancery, filed by the Attorney General of the State of Illinois and the State’s attorney of Cook county, in behalf of the People of the State, to enjoin the Chicago and Evanston Railroad Company, and the Chicago and Lake Superior Railroad Company, from building a railroad bridge over the north branch of the Chicago river, north of Kinzie street, and from constructing and operating certain railroad tracks, under…

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Pulaski county; the Hon. Oliver A. Barker, Judge, presiding.</p>