Volume 113 — Illinois Reports

Writ of Error to the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding. This was a bill in equity, by the heirs of Catharine Agnes Germain, to set aside the will of the latter, on the ground the testatrix was of unsound mind, and undue influence, and also on the ground that a devise of land to a religious corporation, of more than ten acres, is void. The circuit court refused to set aside the will or the devise in trust.

<p>1. Criminal law—indictment for assault to murder—its requisites. It is not necessary that an indictment for a felonious assault with intent to murder should set out the manner of the assault with any degree of particularity, the gist of the offence being the assault with a felonious intent.</p> <p>2. Same—the act of one as the act of all engaged in the same unlawful transaction. Where three persons entered the premises of another with intent to steal, and on being detected by the owner, assaulted him, and during the difficulty ensuing, one of them struck the owner and another shot at him with a pistol, it was held, that whatever act was done by any one of the defendants so entering the premises, was in law the act of all, and that all were guilty of an assault with intent to murder.</p> <p>3. Same—assault to murder—pleadings and proofs as to deadly character of weapons used. An indictment for an assault with intent to commit murder, charged that the defendants assaulted the prosecutor with a loaded pistol and a hoe, without alleging the hoe and the pistol were deadly weapons, and there was no direct proof that they were deadly weapons: Held, that the indictment was sufficient, and that if it was necessary to show the weapons used were deadly ones, that was shown by proof of an assault with the pistol and hoe, and that a hoe, in legal signification, is a deadly weapon, as much so as a loaded pistol or an ax, and that proof of their deadly character was not necessary.</p> <p>4. Evidence—as to matters generally known. Such things as all per- ■ sons of ordinary intelligence are presumed to know, are not required to be proved. It is not, therefore, necessary, on the trial of parties for an assault with a loaded pistol and a hoe, with intent to murder, to prove that they were deadly weapons.</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. John A. Jameson, Judge, presiding.</p>

<p>1. By section 3Y of the Attachment act, all judgments’in attachment against the same defendant returnable at the same term, and all judgments against such defendant recovered at the same term or at the term where judgment in the first attachment is rendered, shall share pro rata in the proceeds of the property attached, either in the hands of the garnishee or otherwise. Under this section there is no difference between property attached and funds, in the hands of a garnishee. It is the whole fund or property attached, and not any specific part or portion, that is held until it shall be ascertained who or what creditors are entitled to share in the proceeds.</p> <p>2. Same—rights of an assignee of a debt intervening two attachments. After a debtor to a defendant in attachment had been garnisheed by a creditor of the defendant, the latter transferred and assigned his claim or demand to another creditor, and notice of the transfer was given to the debtor, when a second creditor in attachment against the same defendant garnisheed the same debtor, and both suits proceeded to judgment at the same term. The funds in the hands of the garnishee were not sufficient to satisfy the two judgments, and the court ordered the same to be apportioned between the two judgment creditors to the exclusion of the assignee of the debt owing by the garnishee: Held, that the court decided in accordance with the law.</p> <p>3. Assignment—of chose in action—extent of assignee’s rights. A chose in action is not assignable, either at common law or under our statute, so as to vest the legal title in the assignee. Such assignee will take the same subject to all defences that existed against the assignor. He stands in the shoes of his assignor, and can claim no greater rights in the demand assigned than could his assignor.</p>

<p>1. Former adjudication—as to the conelusiveness of prohale of will. The judgment of the circuit court, on appeal, admitting a will to probate, and ordering a description which had been altered to be restored to the original number, until reversed or otherwise impeached, or set aside in a direct proceeding, is conclusive on all persons and in'all courts. Such probate is conclusive of the validity of the will, and of any question of fraud, until reversed or otherwise legally vacated. So if the testatrix married after publishing her will, its probate after her death is conclusive that the marriage did not revoke the same.</p> <p>. 2. Description of land in a will or deed—rejecting contradictory or useless words. Where, from the entire description of land in a deed or will, there is ambiguity and doubt as to the identity of the property, the courts hold that any contradictory or useless portion of the description may be disregarded, so as to render the description certain and complete.</p> <p>3. Same—when a general description will prevail over a more specific one. If the property devised in a will he described as the testator’s house and lot in the town of P., Illinois, it will be sufficient upon showing that the testator in fact had a house and lot in such town; but when the will goes further, and gives a more specific description, as, “known and described as follows: the north two-thirds part of lot No. 19, block No. 10,. railroad addition to the town of P., Illinois, ” if the testator had a house and lot on block 19 it will pass, and the more specific description must control. If, however, it is shown that the testator never owned any house, or part of lot, on lot 19, but did own the north two-thirds of lot 12, in the same block, upon which there was a house, and owned no other house and lot in the town, then the general description will prevail, and the more specific one will be rejected. But in the absence of proof that the testator, at the time of making the will, had no title to any part of lot 19, it could not be inferred he had none, so as to allow the devise to operate upon lot 12. A stipulation that the north two-thirds of lot 12, etc., was all the real estate the testator ojvned in the town of P. at his death, is not sufficient to show that he may not have owned the north two-thirds of lot 19 when he made his will.</p> <p>4. Parol evidence—to explain or vary a will—or to identify the subject of the devise. Extrinsic evidence can not be heard to alter, detract from, or add anything to the provisions of a will. But in case of a latent ambiguity, parol evidence is admissible for the purpose of identifying the property intended to be devised.</p>

Clair county; the Hon. William J. Underwood, Judge, presiding. This was a proceeding commenced in the county court of St. Clair county, by Edward Pausch, the appellee, to contest the election of Henry Blanck, the appellant, to the office of town clerk of the town of Lebanon, in said county.

<p>1. Local improvements in cities and villages—as to the various modes of assessment—the general Incorporation law construed. The object of the legislature, by sections 116 and 132, chapter 24, article 9, relating to cities and villages, was to provide two modes for making local improvements,—one by special assessments, and the other by special taxation of contiguous property,—and to authorize the corporate authorities of cities and villages to determine by ordinance which mode should be adopted.</p> <p>2. Section 132, of article 9, chapter 24, of the Bevised Statutes of 1874, when considered in connection with the constitution, on the same subject, and the other sections of the same article, is not to receive a literal construction. These various provisions, when so considered, show that two distinct systems of local improvements are provided for, and section 132 is to be understood as requiring only such portions of the statute in regard to special assessments to be.followed as may be consistent with special taxation.</p> <p>3. Section 139 of the same article, which provides for ascertaining benefits in special assessment proceedings, has no bearing whatever in a proceeding by special taxation.</p> <p>4. Same—special taxation—in proportion to frontage. In case the council adopts special taxation as the mode in which a street improvement shall be made, it has the power to require that the cost of the same shall be assessed upon the lots abutting upon the streets in proportion to the frontage of the lots upon the same.</p> <p>5. Same—curbing—as part of a street pavement. It is no valid objection to an ordinance for the paving of a street by special taxation, that it provides also for a curb-stone on each side of the street to be included in the estimate of the expense of the improvement ordered, as such curbing may be regarded as a part of the pavement.</p> <p>6. Same—publication of ordinance for street improvements. An ordinance of a city for the paving and curbing of a public street, and for levying special taxes on contiguous property to pay the cost of the improvement, is not required to be published. It is only ordinances appropriating money that are required to be published.</p> <p>7. Same—of the costs—as part of the assessment. The costs of making and levying the assessment of contiguous property by special taxation for the curbing and paving of a street by a city, may properly, under the law, be taxed against the lots and lands abutting upon such street and included in the special tax.</p> <p>8. Same—practice—demurring to objections to confirmation. There is no rule of practice which authorizes a demurrer to be filed to objections to the confirmation of an assessment for special taxation upon contiguous property for a local improvement, and if one is filed it can not be- treated as an admission of the truth of each objection. It is incumbent on the party filing sucli objections to-prove them.</p>

<p>1. Partition—allowance for board and care of the common ancestor, as against the other heirs. The owner of a lot of ground conveyed the same, in 1854, by his deed, directly to his wife, and died in the same year. His heirs never questioned the conveyance during their mother’s lifetime. She died in 1881. Prior to her death one of her daughters and her husband occupied the residence on the premises, and continued such occupancy until after the mother’s death. A bill for partition by the other heirs against such daughter sought to have her interest charged with the rents of the premises, and she filed a cross-bill asking for compensation for boarding, nursing and taking care of her mother, and that it be made a charge on the lot as against the other heirs. The proof showed that the rent of the dwelling house was a fair compensation for the board and care of the mother, and the court, in addition to the rent of the premises, allowed the daughter $100 for extra care of the mother in her sickness: Held, that the decree was reasonable and fair.</p> <p>2. Same—as to rents received by one holding under the owner of equitable title. Where a husband, in 1854, shortly before his death conveyed certain lots directly to his wife, which conveyance, although void at law, was never assailed or sought to be set aside by any of the heirs, and the widow, in 1865, let one of the heirs (her son) into possession of one of the lots, who continued to hold such possession and collect and receive the rents until in 1879, when he acquired the entire interest in the same, it was held, on bill for the partition of another lot after the death of the widow, in 1881, that the widow was entitled to the rents of the first named lot, and might give them to whom she pleased, and that the son so receiving such rents was not legally chargeable with them in the partition suit as to the other lot. ¡</p> <p>3. Conveyance from husband to wife—ripening into an equitable title by acquiescence. Although a déed of land made by a husband in 1854, just before his death, to his wife, is void at law, yet if all the heirs acquiesce in such conveyance during the grantee’s lifetime, and take no steps to have it set aside, it may be regarded and allowed to stand as an equitable disposition of the property, and the widow will be entitled to receive the rents and profits, and dispose of them as she chooses.</p>

<p>1. Appeal—as to amount involved—whether applicable to suit for an injunction. A bill for an injunction only, not being a suit to recover money or chattels, is not affected by the statute limiting appeals and writs of error in certain cases to $1000, and an appeal lies from the final judgment of the Appellate Court, in such case, to this court, without regard to the magnitude of the interests involved.</p> <p>2. Bailroad—farm crossings—duty in respect thereto—securing the public safety. The word “necessary,” in the statute requiring railroad corporations to construct farm crossings “when and where the same may become necessary for the use of the proprietors of the lands adjoining such railroad,” was used in its more popular sense, and is equivalent to the words, “reasonably convenient. ”</p> <p>3. "Where the erection and maintenance of a proposed farm crossing over a railroad track will directly affect the operation of the road as a means of public transportation, by seriously tending to increase the danger of collisions, this will be a sufficient reason why such crossing should not be made, and if attempted to be made by the land owner, he may be restrained from doing so, by injunction.</p> <p>4. Eminent domain—measure of damages—farm crossings. In the condemnation of land for a right of way for a railroad across a farm, the necessities and conveniences of location for farm crossings should be taken into consideration, and after the condemnation they will be presumed to have been considered, and that damages were estimated upon the hypothesis that a farm crossing would not be constructed and maintained at any particular point where it would directly and seriously affect the safe and efficient operation of the road.</p>

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

<p>Writ op Error to the Circuit Court of Johnson county; the Hon. D. M. Browning; 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. Glair county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Practice—time to object—for variance between allegations and proofs. This court will not consider a question of variance in the allegations and proofs, when no motion has been made in the trial court to exclude the evidence on the ground of variance, or for an instruction to the jury in respect of the same.</p> <p>2. Appeal—reviewing facts. Where this court can not say the evidence heard on the trial of an action for negligence does not tend to sustain the judgment, the action of the Appellate Court in affirming the judgment of the trial court is conclusive on the disputed questions of fact.</p> <p>3. Allegations and proofs — on the question of negligence. The object of written pleadings is to apprise the defendant of the ground of action relied on by the plaintiff, and thereby afford him an opportunity to meet the specific ground of complaint, and it is not admissible that one ground of negligence be alleged and a recovery be had upon another and distinct ground. It is error to instruct the jury that they may find the defendant liable for any acts of negligence different from those alleged in the declaration.</p> <p>4. So in an action against a railway company to recover for damages for a personal injury, at a public crossing of a street, the court instructed the jury, for the plaintiff, that railroad companies, in operating their trains and engines, must be held, in crossing public highways and thoroughfares, so to regulate the speed of their trains, and to give such signals to persons crossing, that all may be apprised of the danger of crossing the railroad track, and that they should keep a lookout, so as to see, and as far as possible prevent injury to others exercising their legal rights, and that for an injury resulting from a failure of any such duties they are liable, provided the person injured has used all reasonable precaution to avoid injury. The failure to give signals of danger to persons crossing the track, or to keep a lookout to avoid injury as far as possible, were not charged in the declaration: Held, that it was error to give the instruction.</p>

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

<p>Evidence—d/ying declarations. Upon the trial of a person on the charge of murder, it appeared that the deceased, some days before his death from the wound he had received, made a statement to the effect that the defendant shot him. The preliminary proof to the court showed that at the time of making the statement the deceased had not been informed by his physician or any one else that his wound was mortal, though he said at the time he would not live three days. It further appeared that he made no preparation of any kind in view of death, often used profane language, and spoke about being able to resume business and of getting married in a few days: Held, that the statement of the deceased was not admissible as a dying declaration, it not appearing it was made in view of impending death, and under the sanction of a moral sense of certain and just retribution.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of. Union county; the Hon. Daniel M. Browning, 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 Coles county; the Hon. C. B. Smith, Judge, presiding.

N. J. Pillsbury, Judge, presiding. Snell, Taylor & Co. contracted with the Lafayette, Bloomington and Mississippi Railroad Company to construct its railroad from Bloomington to the State line of Indiana, at a specific price per mile. By the contract the right or power was given to them to locate the depots on the road east of the county of McLean.

This was a petition for a common law writ of certiorari, to review a judgment of the Appellate Court in the case of Highway Commissioners v. Hamilton et al., brought to that court on appeal from the circuit court of Champaign county.

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

Kirk Hawes, Judge, presiding. This was an action of assumpsit, by appellants, against appellee and Trefer & Ullman. The declaration contained two special counts, to which appellee pleaded, first, the general issue; and second, the Statute of Limitations,—that the suit was not brought within five years after the cause of action accrued. Eeplication was filed, taking issue upon the plea of the statute.

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Wayne county; the Hon. Chauncey S. Conger, Judge, presiding.</p>

<p>1. Specific pebformance—whether matter of right. The specific performance of a contract in equity is not a matter of right in the party seeking it, but a matter of sound discretion in the court, which may grant or deny relief, as may appear equitable under all the facts and circumstances of the case.</p> <p>2. Same—as to certainty and fairness—and of the consideration. A contract which is not certain, or which is not fair and just in all its provisions, will not be specifically enforced in a court of equity.</p> <p>3. The only significance of a contract to adopt one as an heir, or to give him a child’s part, being to secure a right to property, it is too uncertain as to the amount of property to be reached by it to be specifically enforced, in equity, against the heirs of the party making the same.</p> <p>i. A contract by one having at the time an estate of the value of $20,000, and a wife living, but no children, to take, maintain and educate an orphan girl, eleven years old, and for her services until she should attain the age of eighteen years to leave and give to her, at his death, a child’s part of his estate, is not based upon a sufficiently adequate consideration, and can not be regarded as so fair and just and certain as to be specifically enforced.</p> <p>5. Same—of the evidence to prove contract. Where an attempt is made to effect a distribution of property of an estate different from that provided by law, under a contract resting in parol, or to be established by parol evidence, as, where the contract is lost or destroyed, the evidence relied upon should be looked upon with jealousy, and weighed in the most scrupulous manner.</p>

William H. Barnum, Judge, presiding. These two causes arise from one decree of the circuit court of Cook county. This decree was brought before the Appellate Court as two causes,—one on the appeal of the Commercial National Bank, and one on error, by the Chicago, Burlington and Quincy Bailroad Company. These causes seem to have been considered together in the Appellate Court, where the .decree was affirmed.

Thomas A. Moran, Judge, presiding. This suit was brought in trover by Ira Foote, in the circuit court of Cook county, against J. Irving Pearce, to recover the value of a promissory note for the sum of $5000, made by the trustees of the estate of Ira Couch, deceased, and payable to the order of Ira Foote, which note was assigned, by the payee to S. G. Hooker & Co., and by indorsement thereon the payee guaranteed the payment of the note at maturity.

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

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

<p>1. Municipal taxation—prerequisites to its validity. The power given to city councils, and boards of trustees in villages, by the general Incorporation act, to levy taxes, is subject to the restriction that such councils or boards shall ascertain the total amount of appropriations legally made, and that they shall, by ordinance, levy and assess such amount so ascertained. The act requires the annual appropriations to be first made, by ordinance, within the first quarter of the fiscal year, duly published, and their amount to be ascertained, and then that the levy and assessment shall be made, by ordinance, for the amount. These requirements being for the protection of the citizen, are not directory, merely, but mandatory. The power of the taxing authority is limited by the manner and conditions prescribed for its exercise.</p> <p>2. The prerequisite of an appropriation ordinance is a limitation upon the power of a city council to levy a corporate tax, and a failure to pass such an ordinance is not a merely formal defect, and so is not cured by section 191 of the Revenue law, but renders the whole tax illegal. A strict compliance with this requirement is necessary to guard against the abuse of the taxing power conferred.</p> <p>3. Tax title—in case apart of the tax is illegal and the residue was legally assessed—effect upon the validity of a sale for sueh taxes. Where a part of a tax for which a sale of real estate is made, is illegal, the sale will be void. This is so when judgment is rendered by default, and the owner of the land does not appear and resist judgment. So when the city taxes for certain years against lots are illegal, for want of an appropriation ordinance before their levy, and they are included in the judgment with other legal taxes, no title will pass by the sale under such judgment.</p> <p>4. Hazte—judgment by default for taxes—upon what questions conclusive. A judgment against land by default for delinquent taxes, is not conclusive against the owner as to the legality of all the taxes included in the judgment, and he may show that a part of the tax is illegal, and thus defeat the sale in a collateral proceeding, as, in ejectment to recover under the tax deed. Such a judgment is to be distinguished from a judgment confirming special assessments, which is conclusive upon the land owner.</p>

<p>1. ' Assigning cross-errors— limitation. Where the record of a partition proceeding is brought before this court, and the plaintiff in error has assigned errors on that part of the decree that affects him injuriously, the defendant in error, under the statute, may assign cross-errors on the same record as to matters that affect him, even though such matters may have occurred more than five years before suing out the writ of error.</p> <p>2. Evidence—parol evidence as to proceedings in courts in a foreign jurisdiction—character of evidence admissible concerning disposition of will in court of another State. It is not competent to prove by oral testimony what proceedings may have been had in a court in any foreign jurisdiction. Such testimony that there was a contest as to a will in another State in its courts, is inadmissible, and can not be considered.</p> <p>3. To prove that a will had been offered for probate in the probate court in the State of Vermont, where the testator formerly resided, and was rejected, some oral testimony was introduced, to the effect there was some contest concerning it, in such State, together with the following marks and entries on the will: “Filed March 27, 1855.—Z. Cooley, Clerk.” “Bee. at the probate office, district of Georgia, Vermont, April 14, A. D. 1855.—J. Davis, Judge of Probate.” “ Cont’d to 17th of J uly, 1855." “Cont’d to July 31,1855.” “ Cont’d to Sept. 15, 1855, when it was adjudged, on trial, that said instrument was not the last will and testament of the said M. B., the attestation not being according to the laws of Vermont.—James Davis, Judge.” It was held, that the evidence was incompetent, and wholly insufficient to show there ever was any adjudication as to the will in any court in the State of Vermont.</p> <p>4. Only record evidence is competent to prove an adjudication touching a will in the probate court of another State having jurisdiction of such matters. Memoranda of the clerk or judge of such court, on the back of the will, can not be taken as a record of any judicial determination, and.foreign records must be exemplified and properly attested before they can be admitted in evidence.</p>

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

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Jesse J. Phillips, Judge, presiding.</p>

<p>1. Drainage act—of 1879—constitutionality—as to legislative appointment to office. Section 43 of the act entitled “An act to provide for the construction, maintenance and repair of drains and ditches by special assessments on property benefited thereby,” approved May 29, 1879, does not violate section 10 of article 10 of the State constitution, which prohibits the legislature from appointing or electing any person to an office. The act creates no new office to be filled, but simply imposes additional duties upon officers already elected by the people.</p> <p>2. Same—drainage commissioners as “corporate authorities"—as to the mode of their appointment—whether within the constitution. The drainage commissioners provided for in the act of May 29,1879, being the county commissioners, are not an illegal municipal corporation because not elected by the legal voters of the drainage district, or appointed in some mode to which they have given their assent.</p> <p>3. The only debt the general Drainage act authorizes the corporate authorities to create, must be paid upon property specially benefited by the proposed improvement. Such assessment is not a personal charge, but is only against the property. It is the ownership in the real estate assessed, and not the public, merely, as such, that may be injuriously affected; and this is a sufficient reason why the corporate authorities need not be required to be elected by the voters of the district.</p> <p>4. The statute requires, as a condition precedent to the formation of a drainage district, that a majority in number of the adult owners of lands lying in the proposed district, and who shall be owners, in the aggregate, of more than one-third of the lands in such district, to unite in the petition to organize such district, and allows all other land owners in the district to contest the formation of the district. In this way an assent to the formation of the district is shown, and the land owners’ rights may be protected.</p> <p>5. The constitutional amendment adopted in 1878, imposes no limitations or restrictions upon the legislature as to the agencies to be used in the creation of a drainage district, and under such amendment the legislature has the power to declare who shall constitute the corporate authorities of such districts; and it is such corporate authorities,—not those elected by the voters, only,—that are to be vested with power to make the improvements by special assessments.</p> <p>6. Same—constitutionality—os depriving one of property without due process of law. Where a party whose land has been specially assessed for benefits under the general Drainage law, is afforded ample opportunity of being heard upon every question of fact and of law, and he fails to urge any just ground of defence, and suffers judgment to go against his land, and it is to be sold, he can not be said to have been deprived of his property without due process of law.</p> <p>7. Same—constitutionality—as conferring judicial powers on non-judicial officers. Section 46 of the Drainage act of 1879, which gives an appeal from the drainage commissioners’ orders confirming special assessments, to the county surve3ror, county treasurer and sheriff, who are constituted an appeal board to hear and decide all appeals, and giving a further appeal from that board to the county court, is not unconstitutional, as conferring judicial powers on a non-judicial body. The board of appeals does not exercise judicial powers, within the meaning of those words in article 3 of the constitution. It construes no law, and no legal rights are submitted to and adjudicated by it.</p> <p>8. Same—powers of hoard of appeal. The board of appeal provided for in the Drainage act of 1879, is limited to inquiring into, passing upon and reporting on questions of fact,—namely, the amount of benefits which will accrue to each tract of land, (and where the tract is both damaged and benefited, whether the one exceeds the other, and how much,) and whether the assessment made by the commissioners is correct.</p> <p>9. Same—powers of county court on appeal from assessment. An appeal from the board of appeals to the county court can only bring up for review that which was considered and acted upon by the board from which the appeal was taken. Whether the appeal is by one party or the other, the question before the county court will be substantially the same.</p> <p>10. Same —judgment on appeal—whether conclusive on legal questions. The decision of the board of review, and of the county court, on appeal, can only be res judicata as to the questions of fact brought up by the appeal. Legal questions as to the regularity of the proceedings may be raised on the application for judgment for the non-payment of the assessment.</p> <p>11. Same—local or special legislation in respect to drainage—constitutionality. There is nothing in the constitution which prohibits local or special legislation in respect to drainage. Article 11 of that instrument, entitled “Corporations,” relates to private corporations alone, and not to local municipal corporations. “Drainage” is not named in the direct prohibition of special or local legislation, in section 22, article 4.</p> <p>12. General legislation, as distinguished from that which is special —who may determine as to its applicability. The general clause in the section last referred to, that when a general law can be made applicable no special law shall be enacted, addresses itself to the General Assembly alone. When that body has concluded a special law is necessary, except in the cases ex- . pressly prohibited, its conclusion is not subject to judicial review.</p> <p>13. Municipal corporations—legislative control over. The General Assembly, when not expressly restricted by constitutional provision, has the power to define and prescribe what shall be the corporate authorities of local municipalities, and even to dispose of their revenues.</p> <p>14. Judicial power— defined. Judicial power is the power which adjudicates upon and protects the rights and interests of individual citizens, and, to that end, construes and applies the laws. The term has nevér been applied to those eases where judgment is to be exercised as incident to the execution of a ministerial power.</p>

<p>Appeal from the Circuit Court of Jersey county; the Hon. G-eobge W. Hebdman, Judge, presiding.</p>

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

<p>1. Taxation—of the remedy by injunction for improper assessment. A court of equity will not enjoin the collection of a tax unless the tax itself is unauthorized by law, or is levied upon property not subject to taxation, or the property upon which it is assessed is fraudulently valued at too high a rate; but in those cases the collection of the tax will be enjoined.</p> <p>2. So a person owning real estate which is exempt from taxation is not required to take notice of its illegal assessment, nor to appear before the local tribunals to protect his property from taxation; and when it is illegally assessed he may resort to a court of equtiy for an injunction.</p> <p>3. Same—cumulative remedy by statute, when exempt property assessed. Section 97 of the Revenue law empowers the board of supervisors in counties under township organization, to hear and determine the application of any person who is assessed on property exempt from taxation, and the question may be taken thence by appeal to the Auditor, and be by him brought before the Supreme Court for final review. This remedy, however, is merely cumulative to that in equity to enjoin.</p> <p>4. Same—former decision. It was said in Preston et al. v. Johnson, 104 Ill. 625, in speaking of the jurisdiction of the county board to give relief as to property exempt from taxation, “the remedy through the county board of review and by appeal we regard as adequate and exclusive.” . While this was true in that particular case, it is not universally true, and is therefore calculated to mislead. The statutory remedy becomes exclusive only when it is selected and a decisibn under it invoked.</p> <p>5. Same—remedy in case of over-valuation. Where the complaint is that the local assessor has over-valued property, the owner must resort to the tribunals provided by the statute for review in such cases. A court of equity is not empowered to value property for taxation.</p>

Writ of Error to the Circuit Court of Jackson county; the Hon. Daniel M. Browning, Judge, presiding. Reuben R. Rees died testate, in Jackson county, Illinois, on December 7, 1880. At his death he left him surviving a widow, Sarah L. Rees, who was named in his will as executrix, and who has since married, and is now named Sarah L. Bradley. The testator, at his death, left him surviving twelve children.

<p>1. Evidence—secondary evidence—generally. Where the existence of a deed or other writing is directly involved, whether as proof of the precise question in issue or of some subordinate matter that tends to establish the ultimate fact or facts upon which a case turns, such deed or other writing itself must be produced, or its absence accounted for, before secondary evidence of its contents is admissible.</p> <p>2. Same—reference by witness to deeds or other writings without producing them—as mere inducement to the material facts. A witness may, when testifying, for the purpose of making his statements intelligible and giving coherence to such of them as are clearly admissible, properly speak of the execution of deeds, the giving of receipts, the writing of a letter, and the like, without producing the writing referred to. Beferences to such writings as mere inducement to the material parts of the witness’ testimony may be allowed.</p> <p>3. So where a father was sued upon a note given to a bank by his son, the father being surety, and he denied the execution of the note under oath, the real issue being the execution of the note, his son, whose deposition was taken, was asked whether the note sued on was a renewal note, and this was objected to by the defendant unless the old note was produced. He produced the same', and read from it the credits, and testified: “Paid, July 25, 1879, $275 and interest on note to date. Paid, August 5, 1879, $1782.75 and interest on note to date. That .$1782.75 my father owed,—that is, he gave me a deed to one hundred acres of land in 1866; told me to go to work on it, and improve it, and suit myself, but had never given me a deed, and after he received notice from the bank in 1879, he goes to J. and deeds this one hundred acres of land away from me, with the exception of forty acres where the house and barn stand, and said to me and told me to give him a mortgage for $3000, and he would enable me to get a loan of $2000 on it, to pay upon this note. He did that. I had to give him a mortgage for §3000, while I never owed him a dollar in the world. He did that to fix the bank so they couldn’t get anything off of me, and he was going to put Ms property out of Ms hands, to avoid this note.” On objection, the court struck out the words in italics, and permitted the rest to be read: Held, no error in allowing the balance of the answer to be read, the reference to the deeds being mere inducement to the other testimony.</p> <p>4. Same—irrelevancy. In an action against only one of several makers of a promissory note, who denied its execution on Ms part by plea properly verified, there is no error in refusing to allow the defendant to show that the signature of another one of the makers is not in his handwriting, there being no issue as to the execution of the note by the latter.</p>

<p>1. Springfield water works—assessments on account of hydrants— •whether to be made annually. Section 15 of the act of February 21, 1861, to incorporate the Springfield Water Works Company, which imposes a duty to construct hydrants, and then declares that the commissioners “shall assess the houses and other buildings in the vicinity of said hydrants in the proportion in which they shall deem the same, respectively, benefited, ” does not authorize the annual assessment of the houses and buildings in the vicinity for supposed benefits. The intention was, that the entire benefit should be assessed at once.</p> <p>2. Under that section the commissioners are not authorized to go on, from year to year, and assess the property for supposed benefits conferred, for the purpose of keeping up repairs. The power to make annual assessments of a tax for the extension and maintenance of water works is given in the act of April 27, 1871. (Rev. Stat. 1874, chap. 24, sec. 248.)</p> <p>3. Same—mode of collecting assessments. If the power to “assess the houses and other buildings” in the vicinity of hydrants, means to give authority to fix the amount to be paid by the owners, such sums can only be collected by suit, the same as any other indebtedness; but if it means to confer upon the board the power to make special assessments as known in the statute, they can only proceed in the manner provided by the general law for the collection of special assessments, whereby the owner, on proper notice, can be heard before a judicial tribunal before his rights can be determined.</p> <p>4. Sections 12 and 15, of the act of February 21, 1861, relating to the Springfield Water Works Company, in so far as they authorize the collection of an assessment in a summary manner, by levy and sale, under a warrant of the commissioners, has been repealed or changed by the constitution of 1870 and the general laws passed in pursuance of that instrument on the subject, which general law must be followed in such cases.</p>

<p>Appeal from the County Court of Vermilion county; the Hon. David D. Evans, Judge, presiding.</p>

<p>1. Agency—deposit of money of principal by the agent—depositary delivering the money to the principal—-whether liable to the agent making the deposit. A sub-contractor received money of the general contractor in excess of what was due him, as the agent of the general contractor, to pay debts due to laborers and material-men, whereby to protect the principal from liability from the enforcement of liens, but instead of paying out the money deposited it with another for safe keeping, under a promise of the latter to pay the same only to the depositor, or upon his written order. The depositary, on the demand of the principal to whom the money belonged, delivered the same to him. It was held, the depositary was not liable to the agent for a breach of his contract, the principal having the right to revoke the agency of the sub-contractor at any time before he paid out the money as directed. In such case the delivery of the money to the true owner will relieve the depositary of liability to the agent from whom he received it.</p> <p>2. Mechanic’s men—of laborers, etc., on railroad, under sub-contractor. The stipulations in a general contractor’s contract for the construction of a railroad were required to be performed in such manner as not to relieve him from the immediate charge and responsibility of the work, and were such that the company might forfeit the same for a neglect to put on sufficient force to complete the work in the time stipulated, or require him to make up balances due to laborers or persons furnishing materials or supplies, monthly. It was held, that the relations of the sub-contractor to the general contractor were such that the work done and materials furnished under sub-contracts could be regarded as materials furnished or labor done -under his contract, so as to enable those furnishing the same to enforce a lien against the railroad under the statute.</p> <p>3. Sub-contractor—a contract construed as to the relative rights and powers of the general contractor and the sub-contractor. Where a general contractor for building a railroad is held liable to the railway company to protect it against liens of laborers and material-men, in a contract sub-letting a part of the work, reserved the option to retain in his own hands the amount of estimates, or such part thereof as he might deem necessary, and pay the laborers and other creditors of the sub-contractor, and charge the amount thereof as so much money paid to him, the general contractor may keep back estimates due the sub-contractor, and pay it out on debts incurred by him in attempting to perform his sub-contract, and in so doing the general contractor can not be charged with meddling in his affairs; and such general contractor may make such payments through the sub-contractor, as his agent, or by any other agent.</p> <p>4. And where such general contractor has advanced money to a-sub-contractor to pay debts, for which each is separately liable, he may, at any time before it is paid out, revoke the agency of the sub-contractor, and pay out the same through another agent, and charge the same to the sub-contractor, and deduct the same from the sum due him, in the next monthly estimates; and such sub-contractor whose debts are thus paid can have no cause of complaint.</p>

Writ of Error to the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding. This was an action of ejectment, brought by George H. Taylor, in the Ford circuit court, against Calvin H. Frew, to recover the possession of ten acres of ground. The defendant set up and relied on a tax title which was passed upon when the case was before this court at a former term, and reported in 106 Ill. 159.

<p>1. Chancery jurisdiction—when defence is not available at law. "Where the payee of a note is dead, and suit is brought on it at law by the executors of his will, the principal in the note is not a competent witness in the action at law, to prove an agreement between him and the payee for the extension of the time of payment, and this fact will give a court of equity jurisdiction of a bill by the surety to enjoin the prosecution of the action at law, in which his defence can not be shown for the want of any other evidence of the fact of the agreement to extend the time of payment.</p> <p>2. Witness—competency of principal maker of note in favor of his surety, in law and in equity. In an action at law by the executor or administrator of á deceased payee of a note, against both the principal and surety in the note, the principal is pot a competent witness for the surety to show the discharge of the latter by a valid agreement of the payee to extend the payment of the note to a definite time after its maturity. The rule is otherwise in a court of equity—there he is a competent witness in behalf of the surety.</p> <p>. 3. Consideration—for an agreement to extend the time of payment. The agreement of the principal maker of a note given for a loan, to keep the money for another year after it is due and pay the same interest thereon as before, is a good and sufficient consideration to sustain the agreement of the legal holder of the note to extend the time for the payment of the same for another year, and the agreement for such extension will release the surety not assenting thereto.</p> <p>i. Surety— discharge by an agreement to extend time of payment. If a creditor, by a valid and binding agreement, without the assent of the surety, gives further time for payment to the principal debtor, the surety will thereby be discharged.</p> <p>5. Same—contract construed strictly. The contract of a surety is one that is to be strictly construed, and in no case can he be held liable beyond the terms and conditions of the contract to which he gives his assent.</p>

<p>1. Landlord and tenant—lease from tenant for life—rights and liability of lessee upon the death of the lessor during the term. At common law, where a tenant for life gives a lease for a term of years on a yearly rent, and dies in the course of the year before the day for the payment of the rent, the rent can not be apportioned, and the tenant may quit the premises on such death without liability to pay any rent to any one after the last day appointed for payment. This rule of the common law remains unchanged in this State.</p> <p>2. But if the tenant continues to occupy the premises after tire determination of his lease by the death of his lessor, and the owner of the reversion acquiesces in such holding, there is no rule of law to prevent the owner from recovering of the tenant the reasonable value for the use and occupation of the premises, from the time of the determination of the lease by the death of the lessor.</p> <p>3. So in an action to recover for the use and occupation of land, the defendant pleaded that the sole cause of action was the rent of the land, which had been leased by the defendant from the widow of the deceased owner for one year, from March 1, 1881, to March 1, 1882, and not from the plaintiffs, the heirs of the deceased owner, or either of them; that such land was held by the widow as and for her life estate or dower interest in the lands of her late husband; that the rents for the premises did not fall due until the expiration of the lease; that on November 1, 1881, and after such leasing, and before the rent fell due, the widow departed this life, and that plaintiffs claimed to recover the rents of and from the defendant as heirs at law of the deceased husband, and not otherwise: Held, that the plea was bad, in failing to allege that the defendant quit the premises on the termination of the lease by the death of the lessor.</p> <p>4. Same—administrator of dowress—power to release rights of heirs. The administrator of a dowress can not release any rights the heirs of the deceased husband may have against an occupying tenant holding over after the termination of his lease by the death of the dowress.</p>

<p>Writ of Error to the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.</p>

<p>Usury—commissions paid to agent by the borrower. The fact that an agent, without the authority, consent or knowledge of his principal, upon loaning the money of the latter exacts from the borrower a sum in excess of lawful interest, does not make the loan usurious.</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 Coles county; the Hon. C. B. Smith, Judge, presiding.

Cyrus Epler, Judge, presiding. This is an appeal from the Appellate Court for the Third District, affirming an order .of the circuit court of Morgan county, allowing a claim of $188.90 against the estate of M. Rapp, deceased, in favor of the Phœnix Insurance Company. The executors of Rapp bring the case here, on a certificate of the judges of the Appellate Court that it involves important questions of law which should be passed upon by this court.

<p>1. Evidence—admissibility as part of the res gestee—want of materiality, in the light of other evidence. On the trial of an action for an assault and battery committed at a particular saloon, the proof showed that the difficulty originated at another saloon, in which the son of the defendant was shot in the leg by a brother of the plaintiff, who fled and was pursued. A number of witnesses testified that the defendant was present at the saloon when the assault was made by him, while several witnesses testified in behalf of the defendant that he was not present at that place, and that the injury was inflicted by others. The defendant offered to prove that he tried to dissuade his son from pursuing the person -who shot him, which the court refused to allow: Held, that while the proffered evidence was properly admissible as part of the res gestee, on the theory of the defence, yet as there was proof that the defendant did inflict the injury, the error in its rejection was not so material as to justify a reversal.</p> <p>2. Same—statement of a parly’s apprehension of trouble. On the trial of an action for an assault and battery of the plaintiff, the court excluded a question to one of defendant’s witnesses as to statements previously made by the plaintiff touching his apprehension of trouble at the place where the difficulty afterward happened, and what he expected to occur. The plaintiff, on cross-examination, had already stated that he thought there would be some trouble that night: Held, that there was no error in excluding the question.</p> <p>3. Same—cross-examination—of the latitude allowed. Great latitude is allowable on the cross-examination of a witness, and this court will not reverse on account of liberal rulings in that regard unless it can see that the discretion of the trial court has been abused, and injury has resulted to the party complaining.</p> <p>. 4. So on the cross-examination of a defendant in an action of trespass.for an assault and battery upon the plaintiff, tkerg is no error in showing his affidavit, previously made, for a continuance of an indictment against him for the same transaction, and examining in relation thereto and reading the same, the statements in the affidavit being contradictory of the whole theory of the defence. Such affidavit is admissible on cross-examination, as affecting his credibility as a witness.</p> <p>5. Witness — impeachment—recalling witness therefor—violating an order for separation of witnesses. Although an order has been made for the separation of witnesses pending the talcing of testimony in a cause, the trial court may properly allow the recalling of a witness to impeach another witness on the part of the plaintiff, where the witness so recalled has remained present in court a part of the time the plaintiff’s witnesses were being examined; but unless there is an abuse of such discretion, the refusal to allow him to testify will be no error.</p> <p>6. While the court may properly allow a witness to be recalled, and cross-examined as to declarations made by him to others, and thus lay the foun dation for impeaching him by such other witnesses, yet a refusal to allow the same is not such a material error as to justify a reversal, it appearing the same facts were shown by six or seven other eye-witnesses of the same transaction.</p> <p>7. Practice—mode of saving an objection and exception. As a jury were about to retire to consider of their verdict, counsel for the plaintiff" handed to the jury an affidavit of the defendant which had been admitted in evidence to impeach the testimony of the defendant, whereupon defendant’s counsel remarked to the court, “The court understands we are not consenting,” and the affidavit was taken by the jury: Held, that this was not equivalent to a ruling of the court that the affidavit might be taken by the jury, and to an exception taken to such ruling, so the objection did not avail.</p>

Lyman Lacey, Judge, presiding. The bill in this ease was brought by Ira B. Hall, to foreclose a mortgage made by Thomas H. Harris, since deceased, and was brought to the - January term, 1879, of the circuit court of Logan county. The mortgagor having departed this life before the bill was filed, his widow and his hems, together with the administrators of his' estate, were made defendants.

Owen T. Reeves, Judge, presiding. On the 1st of January, 1877, Elisha B. Steere, the appellant, and William J. Brownell, the appellee, entered into a co-partnership in the boot and- shoe business, at Bloomington, this State, under the firm name of W. J. Brownell & Co. The partnership continued until on or about the 31st of January, 1883, when certain differences arose between them in respect to business transactions, some of which related to the partnership, and others did…

Franklin Blades, Judge, presiding. This was an action of ejectment, brought by John W. Kid-well, an idiot, as plaintiff, by J. M. Crigles, his conservator, against Mary A. and Clara E. Burnham, and their tenant, for one-half of the premises in dispute. On a trial by the court, without a jury, the plaintiff obtained judgment for the recovery of the premises, and the defendants perfected .this appeal.

<p>Writ of Error to the Circuit Court of Shelby county; the Hon. Jesse J. Phillips, Judge, presiding.</p>

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

<p>1. Appeal—reviewing facts—and for what purpose. In an action to recover damages arising from negligence, this court is precluded from investigating controverted questions of fact from the evidence. It can look into the evidence only for the purpose of enabling it to pass upon the propriety of the instructions given, refused or modified.</p> <p>2. Error will not always reverse—refusing instructions. Where this court is able to see that substantial justice has been done, and that an error in the giving or refusing of an instruction could not have changed the result, such error will not require a reversal, especially when it is apparent that the same result would follow on a new trial.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.

<p>1. Appeal—when freehold was involved, but not brought in question-on the appeal—as to the portion of a decree not involving the freehold. Although a freehold may have been involved in a litigation, and decree rendered therein, yet when no objection is made to the decree so far as it settles the freehold, an appeal from another part of the same decree, having no relation to the question of the freehold, but merely settling a matter of account, will not lie from the circuit court to this court, but must be taken to the Appellate Court.</p>

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

<p>Appeal from the Appellate Court for the Second District;— heard in that court on 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 Mason county; the Hon. George W. Herman, Judge, presiding.</p>

<p>1. Construction of contract—two instruments construed together. "Where two written instruments are executed as the evidence of one transaction, they will be read and construed together as one instrument, in arriving at the intention of the parties.</p> <p>2. Same—in the case of a deed and lease—as to the use of the leased premises in connection with the premises conveyed. The owner of a hotel sold a strip of land in the rear of the hotel, on which to erect a building for a dram-shop, and at the same time leased to the purchaser two rooms in the basement of the hotel for five years, to be used for billiard rooms in connection with the saloon. The deed for the strip of ground contained a clause that the grantee should have the right to use the south wall of the hotel building to join the roof of the building he might erect, and should also have the privilege to cut a door through from such building into the basement rooms of the hotel. It was held, that the clause in the deed and the written agreement for the lease should be construed together, and when so construed gave the grantee no right to maintain the door from his saloon into the basement of the hotel after the expiration of his lease of the basement rooms.</p> <p>3. Same—parol evidence in explanation of a contract in writing. In some cases parol evidence "is admissible to show the purposes and circumstances under which a written contract was entered into by the parties, but never to vary, alter or contradict its terms. The parties are not allowed to testify to their intention and understanding of a written agreement, but it must speak for itself. .</p> <p>4. Chancery practice — dismissal of bill on dissolving injunction. There is no error in dismissing a bill in chancery on the hearing of a motion to dissolve an injunction granted thereon, where the bill, on its face, shows no right to equitable relief.</p> <p>5. Same—election to treat an order as a dismissal of bill. An order of a court in a suit for an injunction, etc., was, that the temporary injunction be dissolved; and further, that if the complainant desired to take an appeal, the bill be dismissed: Held, that by appealing from the order, the complainant elected to have his bill dismissed, and could not urge the dismissal as error.</p>

George Gardner, Judge, presiding. This was a creditor’s bill, filed in the Superior Court of Cook county on July 23, 1880, by A. D. Smith, D. M. Smith, H. D. Smith, Benjamin T. Jennings, R. S. Sutton and Thomas Sutton, composing the firm of Smith, Sutton & Co., of Pittsburg, Pennsylvania, against the Chicago Plow Manufacturing Company, Nathaniel S. Bouton, Christopher B. Bouton, Edward G. Shumway, George H. Hull, as vice-president and treasurer, and George H. Hull…

<p>1. Justice of the peace—as to the form or mode of pleading, in respect to various defences. No written pleadings are required in ordinary actions before justices of the peace. All the allegations of the parties are presumed to be oro tenus, and their rights are to be determined from what is proved, rather than upon what is alleged or pleaded.</p> <p>2. If a village sues in its corporate name before a justice of the peace, a prior judgment of ouster in a quo warranto proceeding against it may be set up and relied on in abatement of the action, if the defence is set up in apt time before the justice; but no formal written plea is necessary.</p> <p>3. A dilatory defence in suits before justices of the peace must be made at the earliest opportunity, as is required in courts of record, by a formal plea, though it need not be in writing. Such a defence can not be taken advantage of for the first time on an appeal.</p> <p>4. By éxpress statute, no party to a suit before a justice of the peace is allowed to deny the execution or indorsement of any written instrument sued on, or offered as a set-off, unless such denial is made by affidavit. But in such case no plea is required other than the affidavit itself.</p> <p>5. Same — on appeal—trial and jurisdiction. On an appeal from a justice of the peace to the circuit court, the case must be tried de novo, upon the proofs offered, without written pleadings; and the court trying the same will have no more extensive power or jurisdiction than the justice of the peace.</p> <p>6. Municipal cobpobation—effect of a judgment of ouster on quo warranto. The effect of a judgment of ouster on an information in the nature of a quo warranto, against a village and its board of trustees, is to immediately dissolve the corporation, whether it existed de jure or de facto, and work its dissolution, and take away all its rights, liberties, privileges and franchises.</p> <p>7. Same—effect of a dissolution on the power of its officers. The dissolution of a municipal corporation by the judgment of the court on quo warranto, as in the death of a natural person, operates as an absolute revocation of all power and authority on the part of others to act in its name or in its behalf. After such civil death, its late treasurer has no power to demand or receive corporate taxes in the hands of the collector, in behalf of the corporation.</p> <p>8. Tax ooizlectob’s bond — liability thereon—when action will lie. The sureties upon a collector’s bond are not liable on the same, except upon certain specified conditions, as, a failure to discharge his duties. There can be no recovery upon any official bond without showing a breach of one of its conditions. The safe keeping of tax money levied by a defunct village corporation until some one has a right to demand and receive the same, is no breach of the bond.</p> <p>9. Money collected as village taxes, in the hands of a county collector, is not recoverable in an action upon his oficial bond, brought in the name of the People of the State, without any demand, except by the village treasurer, made after the dissolution of the village corporation, and where such collector has not been guilty of any breach of his bond.</p>

<p>1. Parties—in bill to foreclose. In a bill to foreclose a mortgage, all persons interested in the premises, who claim under the mortgagor subsequent and subject to the mortgage, are necessary parties; and if they are not brought in, their rights will not be cut off by the decree.</p> <p>2. Judicial sale—when necessary to sell in parcels. Where a mortgage, and decree of sale on foreclosure, describe a quarter section of land mortgaged, as a single tract, it is not the duty of the master to divide the land into parcels in making a sale. If several distinct tracts are ordered sold, then it is the duty of the master to sell each parcel separately.</p> <p>3. Bill to redeem—by whom. The assignee of notes secured by a second mortgage on land, although he was not made a party to a bill to foreclose the prior mortgage, but whose assignment is merely colorable, can not maintain a bill to redeem from such prior mortgage and sale thereunder.</p>

Charles Bennett, Judge, presiding. At the May term, 1883, of the county court of Coles county, the collector of said county made application for judgment against lots 1, 16, 17 and 18, in block 1, original town of Charleston, for the delinquent taxes for the years 1871 to 1881, inclusive, the current taxes for the year 1882 having been paid, which application was allowed.

Writ of Error to the Criminal Court of Cook county; the Hon. Elliott Anthony, Judge, presiding. This was an indictment found at the March term, 1884, of the Criminal Court of Cook county, against Edward F. Thomas and William G-.

<p>1. Trial by jury—constitutional right—as to cases in chancery—in partition. The provision in the constitution preserving the right to trial by jury, has no reference to cases in which courts of equity have jurisdiction. The right to such trial is confined to cases at law.</p> <p>2. A court of equity having jurisdiction, both at the common law and by statute, of suits for the partition of land, a defendant in such a suit is not entitled, as a matter of right, to demand a trial of the issues by a jury, even if there is a dispute as to the title.</p> <p>3. Limitation—twenty years’ possession of land. The actual and open occupancy of a tract of land for a period of twenty years, under a claim of ownership, whether under a paper title or not, is in this State sufficient to bar an action brought by the party holding the true title, when he is under no disability.</p> <p>4. But an adverse possession of land for twenty years, in order to defeat an action by the true owner of land, must have been hostile in its inception, and so continued without interruption for the full period of twenty years; and the possession must have been actual, visible and exclusive, and acquired and retained under claim of title inconsistent with that of the true owner. The title, however, need not be a rightful claim, nor the possession taken and continued under color of title.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the County Court of Iroquois county; the Hon. S. G. Bovie, Judge, presiding. This was an information filed by the State’s attorney against Alexander B. Carrow, for selling liquor without having a legal license so to do.

<p>1. Trusts—acceptance of a trust—evidence thereof. Where a trust deed contains a provision that the trustee thereby accepts the trust, and covenants faithfully bo execute the same, and the deed is signed by the trustee, and various acts of the trustee under and in recognition of the trust are shown, this will afford evidence of his acceptance of the trust, and the trust deed will take effect by such acceptance.</p> <p>2. Same—non-acceptance or abandonment of a trust as to the beneficiaries—of acts having such tendency. The failure to record a deed conveying property in trust for the benefit of the grantors and their father, for six or seven years, when a good reason appears therefor, is not evidence of any importance to show an abandonment of the trust by the parties in interest. And giving the principal management of the property to the life beneficiary, representing two-fifths of the property owned by others, not parties to the deed, is not inconsistent with the continued existence of the trust, especially where the trustee consults with and participates to some extent with the active manager in looking after the interests represented by him.</p> <p>3. The owners of three-fifths of a city lot conveyed the same to a trustee upon a certain trust, among which was the erection of a costly building upon the premises, and he was not willing to incur personal obligations in that behalf, but was induced to accept the trust under an arrangement that the trust deed should not be recorded, so as to enable the real parties in interest to obtain loans upon the property, for the furtherance of the contemplated improvement, which they did, giving their own notes, secured by their deeds of'trust on the property. It was held, that such acts were not inconsistent with the existence of the trust, and did not prove its non-acceptance or abandonment.</p> <p>4. Same—of a new agreement varying the provisions in a trust deed-effect upon the existence of the trust. The owners of a three-fifths interest in certain real estate, conveyed the same in trust, for the sole benefit of their father during his life, and after his death for their own use. Subsequently, they, in conjunction with an owner of another one-fifth interest, and the trustee, entered into a written agreement giving the father the control and management of the property, for which he was to receive $300 per month out of the income, which was all he was to receive from the property: Held, that while such agreement varied somewhat the provisions of the trust deed, it was not inconsistent with the prior existence of the trust, or with the trusteeship after its date.</p> <p>5. Same—of the reasonableness of a provision—as affecting the validity of a trust. A conveyance by three daughters, aged twenty, twenty-two and twenty-seven years, respectively, of their interest in certain real property, to a trustee, for the sole use and benefit of their father, then of the age of seventy-one years, and in embarrassed financial circumstances, made of their own volition, without the solicitation of the father, will not be set aside as being an unreasonable provision for the father.</p> <p>6. Same—powers of trustee—discretionary powers by implication. A discretionary power may be conferred on trustees, either by express terms of the trust, or by implication, from the nature of the duty imposed on them.</p> <p>7. Same—powers construed—as to the management of property. Three daughters, being the owners of three-fifths of an unimproved city lot, conveyed the same to a trustee, for the use of their father for life, and remainder for their use. The deed conveyed “with full power and authority in the said B. (trustee) to sell and convey said real estate in fee simple, or to mortgage or convey the same by trust deed, or to lease the same, and out of the moneys arising therefrom,” to reimburse himself, to discharge liens, and invest the remainder, or to pay the rents to the parties; and it also provided: “Said real estate being now unimproved and unoccupied, full power and authority is hereby given the said trustee, in his discretion," to borrow money upon said property, and to rebuild the same in such manner as to him shall seem best. In case he shall advance money himself for the purpose of rebuilding said property, then he shall have a lien thereon for the full amount of such advances:” Held, that the trustee was not confined to leasing the property after building upon the same, but his power extended to the making of any reasonable changes in the building which would be of benefit for the leasing of it, especially where the trustee had to act in conjunction with the other-two joint owners.</p> <p>8. Same—words construed,—as expressing ihe extent of the interest in the beneficiary. A trust deed made for the benefit of the grantor’s father, after the granting part and habendum clause “in trust,” contained these words: “The said H. L. S. (the father) has only a life interest in said estate, the remainder belonging in fee to his said daughters:” Held, that such clause was but an expression of the interest the father took under the deed, and not of what his interest was prior to the making of the same.</p> <p>9. BeyebsiONEB—whether entitled to an accounting — as against a tenant for life or. trustee. A person having only a reversionary interest in real property, and not entitled to the income from the same during the existence of the prior life estate, has no right to call upon the trustee holding the legal title, and the life tenant, for an account of the income of the property, but is entitled to an accounting only so far as it bears upon the allowance of debts claimed to be a charge against the property, and which may affect his reversionary interest in the same.</p> <p>10. Taxes—liability of life tenant. Where property is conveyed to a trustee in trust, for the use and benefit of A. during his life, with remainder in trust for the 'grantors, and the buildings thereon are destroyed by fire, so that for several years it yields no income, the life tenant will not be bound to pay the taxes on the same during the years it remains unproductive, and the trustee paying the same may properly have them charged upon the property.</p> <p>11. Guardian and ward—how far the latter bound by the action of the former. On a bill for an accounting, in respect to the income of real property and charges and disbursements, filed by a minor, by his guardian and next friend, the cause was referred to the master to take evidence and state the account. On the hearing, before the master, the minor was represented by his guardian in person, as well as by his solicitor, and the parties then filed a written statement of certain items in the accounts presented which they desired to dispute, and the evidence taken was in support or denial of these items: Held, that the minor was bound by the action of his guardian and solicitor in making up the issues on the accounts.</p> <p>12. Estopped—by recitals in deed. The grantee in a deed poll, with covenants of warranty, is not estopped to deny his grantor’s title.</p> <p>13. So where real estate had been conveyed to a party on certain trusts to be executed by him, the grantor conveyed the same property to another by trust deed, to secure a note in favor of his first grantee or trustee, it was held, that the latter was not estopped by the recitals and covenants in the second deed from claiming to act as trustee for the beneficiaries in the trust deed to him.</p> <p>14. Voluntary oonyeyanoe—want of power of revocation, as affecting the validity of the deed. The absence of a power of revocation is not of itself ground for setting aside a voluntary conveyance.' It is no more than a circumstance to be considered upon that question, in connection with all the other facts appearing in the case.</p> <p>15. Chancery — accounting — requiring written statement of disputed items. Where a cause is referred to a master to state an account between the parties in interest, of the income and rentals of property, and of the taxes, interest paid, and other disbursements, and the accounts of the parties are filed before him, the settled practice will warrant the master in having a written statement made of any disputed items of the accounts, and making them the basis of the evidence taken before him.</p> <p>16. Same—time for making o bjection or disputing items. Where parties appear before the master, to whom a cause is referred to state an account, and there file objections to such items in the accounts presented, as they desire, and the master hears evidence as to such disputed items and prepares his report, they can not, on objection to the draft of the report, dispute for the first time other items in the account.</p>

<p>1. Mines and mining—provisions for safety of miners—providing a brake for the drum—the statute construed. The manifest object of section 6, chapter 93, of the Revised Statutes, in requiring that “every drum shall be provided with a sufficient brake to prevent accident in case of the giving out or breaking of the machinery, ” was to provide such brake as a protection to the life of the miner, in the cage ascending or descending, where, at any time or for any cause, the machinery used in raising or lowering the cage should refuse to perform any of its proper functions. The brake is required to stop the cage whenever there may be danger, whether it arises from the giving out or breaking of machinery, or for some other cause. A failure of the machinery to perform its proper office may be regarded as a “giving out, ” within the meaning of the statute.</p> <p>2. Same—death of miner from negligence of the proprietor—of the right of action therefor—the statute construed. That part of section 14, chapter 93, relating to “Miners,” which provides that in case of loss of life by reason of any willful violations of the act, or willful failure to comply with any of its provisions, “a right of action shall accrue to the widow of the person killed, his lineal heirs or adopted children, or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, ” authorizes but one action and but one recovery for the entire loss.</p> <p>3. Under that act, if the deceased miner leaves a widow surviving, she is entitled to sue and recover for the loss, whatever it may be; but if there is no widow, a right of action is conferred upon his lineal heirs or adopted children, if any, and if there is no widow or lineal heirs or adopted children, then any person may maintain the action who before the death was dependent for support on the person killed.</p> <p>4. Measure oe damages—death of miner—elements to be considered. In an action on the case, by the widow of a miner, against the proprietors of a mine, to recover for the death of her husband, under section 14, chapter 93, of the Revised Statutes, the court instructed, that in assessing damages “the jury may allow all such pecuniary damages sustained by the plaintiff as are the direct result of the death of her husband; and in making their estimate of the damages, the jury may take into consideration whether or not said deceased left surviving him, in addition to said widow, any children:” Meld, that the instruction was not erroneous.</p> <p>5. Error will not always reverse—as to the giving of instructions. Where the proprietors of a coal mine had provided no brake of any kind to a drum connected with the hoisting machinery of a coal shaft, in consequence of which the plaintiff’s husband was killed, it was held, in an action to recover damages for the death, that an error in an instruction containing a requirement as to the character and quality of the appliances for a brake, somewhat stronger than the statute required, could not have prejudiced the defendant, as no question was presented as to the quality or sufficiency of a brake.</p>

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Menard county; the Hon. Lyman Lacey, 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 Or. Rogers, Judge, presiding. '</p>

<p>1. Corporation—plea of mil tiel corporation—evidence required. In a suit by a corporation upon an agreement in writing to pay it a sum of money, a plea of nul tiel corporation will not impose upon the plaintiff the burden of proving that it is in all respects a perfectly legal corporation. The plaintiff will be entitled to recover on the issue presented by such plea, by making proof that it has a de facto existence.</p> <p>2. Same—proof of de facto existence of corporation—admissibility of evidence—in the case of a foreign corporation. In a suit in this State in the name of an alleged corporation claimed to have been organized under the laws of Indiana, a special act of the General Assembly of that State purporting to legalize its incorporation, even though the act be invalid, as falling under the provision of the constitution of that State prohibiting the passage of special laws, is properly admissible in our courts as evidence of the recognition by that State pf the fact that the plaintiff assumes to exist and act as a corporation, and has a de facto existence.</p> <p>3. Upon the question of the de facto corporate existence of a corporation of the State of Indiana, in a suit by it in this State, in which nul tiel corporation is pleaded, a decision of the Supreme Court of the State of Indiana not pertinent to the issue being tried, is properly excluded as evidence to the jury.</p> <p>4. Same—what'will show the defacto existence of a corporation. In a suit by a corporation upon a promissory note or written obligation made by the defendant for the payment of money, the execution of such note or obligation will afford sufficient prima facie evidence of the de facto corporate existence of the plaintiff, and no further proof thereof is necessary until such proof is rebutted.</p> <p>5. An association may be regarded as a de facto corporation when there is a law authorizing the creation of a corporation of its class and powers, and when there is an attempt, in good faith, to comply with the law; and the only error is in filing a certified copy of the articles of association with the proper depositary, instead of a duplicate of such articles, and when there is also an exercise of corporate functions by the association.</p> <p>6. Same—corporate existence—when strict proof required—distinction in the application of the rule. Where a corporation brings suit to recover for a subscription to its capital stock, the existence of the corporation and its capacity to lawfully issue stock are conditions precedent to its right of recovery. If the stock can not be lawfully issued, the subscriber can not get what he has contracted for, and there is an entire failure of consideration. In such a case it is necessary to give strict proof of incorporation,—in other words, that the plaintiff is a corporation de jure.</p> <p>7. But this rule has no application to the case of a subscription to a corporation for which the subscriber is to receive no stock in consideration of his undertaking. The real consideration in such case upon which the plaintiff is entitled to recover, is that it has expended money, furnished materials or bestowed labor upon the faith of the subscription, and not any special benefit derived, or to be derived, by the promisor from the corporation.</p> <p>8. Same—who may question validity of a foreign corporation. The authority to inquire by quo warranto whether a corporation de facto, organized and acting under the laws of another State, is in all respects a legal and valid corporation, belongs to such State, and to it alone. If such' State fails to institute proceedings to divest it of its assumed franchises, no one else can do so.</p> <p>9. Foreign statutes—statutes of Indiana—conditions to their taking effect—as to time, etc. The constitution of Indiana provided that no act should take effect until the same was published, and circulated in the several counties by authority, except in case of emergency, which should be declared in the preamble or body of the act. In 1855, an act was passed which declared an emergency existed, and that it should be in force from and after its passage, and publication in the “Indiana State Sentinel” and “Journal:” Held, that the publication in the papers named was a condition, only, of the law taking effect before it otherwise would, and that a failure to have the same so published did not prevent its becoming a law upon the publication and distribution of the body of the laws passed at that session.</p> <p>10. Same—authentication. An act of the legislature of the State of Indiana authenticated by the Secretary of State of that State, by having the seal of State affixed thereto, in conformity with section 905 of the United States Revised Statutes, is a sufficient authentication, without the attestation of any officer or any other proof; and it is no objection that it does not appear upon the face of the act that it was signed by the Governor.</p>

<p>Writ of Error to the County Court of Whiteside county; the Hon. William J. McCoy, Judge, presiding.</p>

<p>1. Will—a devise construed as giving only a life interest, and that confined to the income of the estate. A testator directed, by his will, first, that all his debts be paid, and then devised all the residue of his property to his executors, to be held by them for the following uses, to-wit: to pay out of the income, $250 per annum to his sister during her life, and $500 to the Methodist Episcopal Church of Evanston; third, that his executors should hold and use the residue of the estate, improve the same, and produce an income, and that his widow should have as much of the income as she might desire for her use and support, and the balance thereof be divided, as equally as possible, between his two children, with the exception of the homestead of his daughter, which his executors were to complete paying for, and then convey the same to her; and fourthly, upon the decease of the widow said property was to be held for the use and benefit of his two children, or their heirs, share and share alike, and stating that it was his desire that each one of his two children should have one-half of the income therefrom, and that upon their decease, their children to have and receive one-half part thereof, etc.: Held, that his two children, after the death of the sister and his widow, and the payment of the bequest to the church, took but a life interest as tenants in common, and that their interest was in the income only.</p> <p>2. Same—devise construed as to the character of estate which should go to the ultimate takers—and as to the time of distribution. The same will further provided: “That upon the decease of my wife, said property be held for the use and benefit of my said children (being a son and a daughter,) or their heirs, share and share alike, it being my desire that each one of them, or their heirs, shall have and receive one-half of the income therefrom, and that upon their decease their children to have and receive one-half part or portion thereof, or in case they, or either of them, leave no children, or descendants of a deceased child or children, then that the whole go to the children or descendants of a deceased child or children of my other child:” Held, that the word “thereof,” in the clause, “upon their decease their children to have and receive one-half part or portion thereof,” referred to the property, and not to the income, and that upon the decease of either one of his children, his or her children should take one-half of the property immediately, without waiting for the death of the testator’s other son or daughter.</p> <p>3. A devise or gift to A and B, as tenants in common, for their lives, and then at their death, or at their deaths, or at the death of A and B, to their children, goes, upon the death of each tenant for life, to his children. In such case the court will not construe the will as postponing the distribution of every part until the death of the surviving tenant for life, unless an intention to do so is clearly indicated.</p> <p>4. Same—rule of construction, so as to give effect to a will. Such a construction of a will should be adopted, if it consistent!;' may be, as will uphold it, and not cause it to be rendered of no effect. A devise will not be construed as attempting to create a perpetual trust, and thus render it inoperative, if the words used may be reasonably construed otherwise.</p>

<p>Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kankakee county.</p>

<p>1. SpeCIAH assessment for street improvement—-requisites of the ordinance as descriptive of the character and locality of the work to be done. H an ordinance for the improvement of a street by special assessment does not contain a description of the nature, character and locality of the proposed improvement, the court will have no authority to confirm the assessment. Without a definite description of the nature and character of the improveraeni no intelligent estimate of its cost can be made.</p> <p>2. An ordinance of the city of Chicago ordered and required a certain part of a street to be “filled” and graded to within eleven inches of the grade of the pavement, and paved, describing the paving minutely. The proof showed that the word “filling, ” as used in the ordinance, had a settled and well known meaning in that city among engineers and street contractors, and meant to raise the surface of the street by using clay, earth, sand, or other suitable material free from animal or vegetable substances, etc.: Held, that with such proof the ordinance was not void for uncertainty and indefiniteness, in respect to the character of the work proposed to be done. 1</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>

■ 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>Contract for services of an attorney—when performed, wider a provision to remove an incumbrance upon property. The owner of certain lots gave to an attorney a contract, wherein it was recited there was claimed to be an incumbrance upon the property, and that it was agreed the attorney should undertake, to the best of his ability, by suit or otherwise, at his own expense, to remove the incumbrance and release the lots from the pretended lien or claim of the same, in consideration of which the maker of the contract was to give the attorney full charge and management of the proceedings, and as compensation for his services and expenses pay him $4000 in cash or transfer to him one-half of the lots, at the option of the maker, “when, and not until, the undertaking of the said B. (the attorney) in the premises” should be fully performed: Held, that the attorney was not entitled to any compensation unless he should first remove the incumbrance from the lots, or some part thereof, and that he could not recover merely because he had succeeded in reducing the amount claimed against the property. His undertaking was to remove the incumbrance, and until that was done he was not entitled to anything for his services.</p>

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