Volume 114 — Illinois Reports

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

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

<p>1. Escrow—effect of delivery to the grantee. There can not be a delivery of a deed to the grantee in escrow. Such delivery makes the deed an absolute one to the grantee.</p> <p>2. Statute op Frauds'—reserving a verbal trust by a grantor. An express trust between the grantor and grantee of land, that the grantee is to hold the land in trust for the grantor, or is to reconvey to him in a certain contingency, is invalid, under the Statute of Frauds, unless evidenced.by some writing signed by the grantee.</p> <p>3. Resulting trust—when it arises. Where there is an express trust, there can not be a resulting or implied trust.; and in case of a voluntary conveyance, no resulting trust can arise in favor of the grantor.</p>

M. F. Tuley, Judge, presiding. This was a bill in equity, filed by the complainant, as a citizen and tax-payer of the municipality, to restrain the defendants, as trustees of the town of Lake, from making-payment to one of their number, Thomas Gahan, the supervisor of the town of Lake, pursuant to the following resolution : “Resolved, that the treasurer of the town of Lake be and he is hereby allowed two per cent on all moneys coming into his hands during the fiscal year…

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.</p>

<p>1. Contract—right to rescind for refusal to comply with terms except upon new conditions. Where a purchaser of a lot of corn to be delivered to him at a future time, agrees, as a part of the contract of sale, to make such advances from time to time as the seller may require, if the purchaser refuses to make an advance when demanded, except upon condition that the vendor shall give his note for the amount, the seller may rescind the contract, and refuse to deliver the corn.</p> <p>2. Same—custom, usage—how far admissible to explain or vary terms of contract. Where a commercial contract is in any respect ambiguous, a particular custom or usage of trade known to the parties, or which, under the circumstances, they are presumed to know, or any previous course of dealing between them that will have a tendency to disclose the real intention of the parties, and to aid the court in arriving at the true construction of the contract, is admissible in evidence.</p> <p>3. Evidence of a particular custom or usage of trade is also admissible, for the purpose of engrafting, as it were, new terms into a contract, subject, however, to the qualification that such terms are not expressly or impliedly excluded by the express agreement. To have this effect the custom or usage must he reasonable, and not in conflict with any general rule of law.</p> <p>4. But it is not admissible to prove a custom or usage the effect of which will be to add to an express agreement a condition or limitation which is repugnant to or inconsistent with the agreement itself. Such evidence is never admitted -to vary or contradict, either expressly or by implication, the terms of an agreement, written or verbal.</p> <p>5. In February a person agreed to sell to another a quantity of corn at a stipulated price per bushel, to be delivered in the months of August and September following, and the purchaser, as a part of the same agreement, promised to make advances on the contract to the seller of what money he might, from time to time, require. It was held, in a suit upon the contract brought by the purchaser for non-delivery of the corn, that evidence that a custom or usage prevailed requiring the vendor to give to the vendee his note upon receii'ing any such advances, was not admissible in behalf of the plaintiff, as it was inconsistent with the express contract.</p>

<p>1. Quo WARRANTO—by Auditor against insurance company—nature of the proceeding, as a private or public prosecution. The Auditor of Public Accounts is given, by statute, supervision over life as well as other insurance companies; and when companies assume to insure without having sufficient legal authority, it is within the line of his duty to cause them to be prosecuted, and to be deprived of their assumed franchises. An information in the nature of a quo wm'ranto, filed by the Attorney General on the relation of the Auditor, against a private corporation assuming to insure, is not a prii vate but a public prosecution. In this regard, such a case is not analogous to that of The People ex rel. v. North Chicago Ry. Co. 88 Ill. 538. There the application was by a private party to file an information, while here it is by the Attorney General, at the instance of the Auditor of Public Accounts, in the performance of his duties as a public officer.</p> <p>2. Same—leave to file information without a rule nisi. Under the present statute the court, or judge thereof in vacation, may act upon the petition of the relator for leave to file an information in the nature of a quo warranto, without first laying a rule upon the respondents to show cause against granting the leave, and, if satisfied that there are probable grounds for the filing of the petition, allow it to be filed.</p> <p>3. Same—proceedings after leave granted—power of the court to vacate the order granting leave—upon what groimds. Where a circuit court, in term time, allows an information in the nature of a quo warranto to be filed, and orders a summons to be issued, the discretionary powers of the court are exhausted, and the issues of fact or of law presented by the pleadings must then be tried. If the information is insufficient, the respondents should demur, otherwise they should, by plea, set up any defence they may have.</p> <p>4. If leave to file the information is granted, and an order made by the court for the issue of summons, upon a misapprehension of some fact material to be known before making such order, but for the supposed existence of which it would not have been made, it is competent for the court to vacate the order at any time during the term at which it is made.</p> <p>5. Where the court has, on a proper affidavit showing probable cause, granted leave for the filing of an information by the Attorney General, it will be error to vacate the order granting leave for reasons or grounds which should be interposed as a defence on the final hearing.</p> <p>6. Life insueance—when in the nature of a wager. It would seem that a policy or certificate for the payment of a premium to one who may hold a number next to that held by the one who dies, and solely because he does die, makes the transaction in the nature of a wager upon the life of one in whom the party thus benefited has no interest, and is therefore illegal.</p> <p>7. PoWEBS OF judge in vacation. A judge of a circuit court in vacation can make orders only to the extent the statute authorizes him to do. The statute is the measure of his authority in vacation. He can enter no general orders, and can render no judgment in vacation, merely by virtue of his general powers as judge.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on writ of error to the County Court of Iroquois county; the Hon. Stephen Ct. Bovie, Judge, presiding.</p>

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

<p>1. Negligence—master and servant—duty of the former to use proper precautions for the safety of the latter—as, in the unloading of cars, to avoid collisions, etc. In an action to recover for personal injuries resulting from alleged negligence, it appeared the defendant company put the plaintiff and others of its servants to work unloading a railroad freight car standing on a spur of a side-track having connection with other tracks only at one end, and being a track not used for passing trains, and there being nothing to lead the laborers to believe the car they were unloading would be disturbed, and while so engaged the loaded car was violently struck by other cars which became detached from an engine used in switching cars in the yard, whereby the plaintiff was injured.” It was held, that it was the duty of the defendant not to have brought on this peril without timely notice to the laborers so engaged; that either the cars ought not to have been brought into the position they were, without notice, or it should have been first ascertained that no danger to the laborers could result therefrom, and that the failure to do so was gross negligence.</p> <p>2. The attempt to bring a train of cars on the switch to a point where the defendant’s servants were engaged in unloading a car, where the grade was a descending one, without notice to them, or any signal by the bell or whistle of the engine of the approach on such track, and.without having the moving cars under control by proper and sufficient couplings and brakes attached, the yard-master knowing that men were engaged all around the car they were unloading, was gross negligence on the part of the defendant.</p> <p>3. Same—as to whose duty it was to see that the appliances for controlling the moving ears were in proper order, etc. In such an action, where the injury resulted from the uncoupling of certain cars in a train being switched in the defendant’s yard, so that they could not be controlled by the engine, and from a defective brake on one of the detached cars which struck the car on which the plaintiff was engaged at work, it was held to be wholly immaterial whose duty it was to inspect the couplings of the cars, brakes, etc., or how on that occasion the engineer handled his train, and that proffered evidence in such respect was properly excluded.</p> <p>4. Same—as to what is negligence—evidence in respect thereto—custom at other places as to the mode of handling railroad cars. Where the charge of negligence of a defendant is the sudden starting of a detached car upon which the plaintiff was engaged in unloading brick, without previous notice or warning, by the collision of other cars being pushed back, evidence tending to show that the pushing of the cars instead of pulling them was not negligence, is inadmissible. The custom in other yards as to pushing or drawing cars in such a case is wholly immaterial.</p> <p>5. Same—proof of custom as to watchfulness of railroad laborers in loading and unloading cars. In an action by a laborer employed by defendant, to recover for an injury caused by the collision of other cars being switched, with the one on which he was unloading brick, without any signal or warning, the court sustained an objection to this question asked by the defendant of a witness, who was a switchman: “What, if anything, was the rule or custom as to laborers unloading and loading cars, and switchmen, with reference to the laborers looking out for the movement of their car while being loaded or unloaded?” Held, that the ruling was correct, as it was not shown there was any rule or custom in this respect. If the men were enjoined to keep a lookout constantly for the approach of trains while at work, that fact was susceptible of proof.</p> <p>6. Fellow-servants—who regarded as holding that relation, within the rule exempting master from liability for injury to one by negligence of the other. Servants of the same master, to be co-employes or fellow-servants, so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, must be such as are directly cooperating with each other in a particular business,—that is, the same line of employment,—or such that their usual duties shall bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution.</p> <p>7. The relations of the servants must be such that each, as to the other, by the exercise of ordinary caution can either prevent or remedy the negligent acts of the other, or protect himself against its consequences. Where there is no right or no opportunity of supervision, or where there is no independent will, and no right or opportunity to take measures to avoid the negligent acts of another without disobedience to the orders of an immediate superior, the doctrine exempting the master can have no application.</p>

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

<p>1. Negligence—to whom a want of care may be imputed—as, in the case of a boy under age. Where there is no evidence of the want of capacity or discretion in a minor plaintiff suing a railway company for a personal injury from negligence, and he is present at the trial, and it appears that he was of such age and ability to care for himself as to be trusted by his parents to attend school in a large city, a considerable distance from home, and to go and return by himself, it was held error to instruct the jury that if they believed, from the evidence, that the plaintiff, at the time and place of the injury, was of such tender years, and was so immature, that the requisite capacity to exercise proper care was wanting, then the law would not impute negligence to him. While the same degree of care might not have been required of him as from a person of mature years, it can not be said that no negligence could be attributed to him.</p> <p>2. Same—duty of railway to keep a flagman at a street crossing—as to persons not crossing the railroad, but walking along the track. In a suit by a plaintiff, against a railway company, to recover for an injury received from a passing train at a public street crossing,—not in attempting to cross the track along the street, but while unlawfully walking along the track as a footway,—it was held error to instruct the jury that if the injury happened because of there being no flagman at the railroad crossing to give warning to those about to cross the street and railroad track of the approach of a train at the crossing, contrary to a city ordinance, then the plaintiff was entitled to recover.</p> <p>3. A requirement of a railway company to keep a flagman at a public street crossing in a large city, to give warning of the approach of trains, is intended for the protection of persons crossing the railroad tracks at such crossing, and not for the benefit"of persons walking along the railroad track, employing it as a foot-path. To the latter the company does not owe the duty in respect to a flagman.</p> <p>4. Same—attempting to board a train while in motion. In an action against a railway company to recover damages for a personal injury, on the ground of negligence, alleged to consist in not ringing a bell or sounding a whistle, in not having a flagman at the street crossing, and in running the train at a greater speed than six miles an hour, the company asked an instruction, based on evidence, as follows: “The jury are instructed, as a matter of law, that if, from the evidence, they believe that the injury to the plaintiff was caused hy his attempting to climb upon the train in question while the same was in motion, then he is not entitled to recover. ” The court refused to give the instruction as asked, but modified it by inserting after the word “motion,” the words, “and that he was injured in consequence of his own negligence, ” and gave it as modified: Held, that the court erred in refusing to give the instruction as asked, and' in modifying the same.</p> <p>5. Evidence—excluding part of a conversation. In a suit against a railway company to recover for an injury by a passing train at a street crossing,- the court admitted in evidence what a witness at the time said to the defendant’s flagman in giving him, as the witness said, “quite a little talking to,” and then excluded the flagman’s reply that “the boy was hitching,” it being contended that he was injured in attempting unlawfully to climb upon one of the cars while in motion: Held, that after admitting what the witness said to the flagman, it was error to exclude his reply.</p>

<p>1. Cbiminal law—in cáse of homicide—proof of character of deceased as a peaceable man, and the contrary. Where a defendant on trial for the murder of his brother proved that the deceased was regarded as a “good man in a fight, ” and many other things that tended to show his character as a quick-tempered, violent and rash man, it was held, that there was no error in allowing the. prosecution, in rebuttal, to prove the character of the deceased as a peaceable man.</p> <p>2. Same—treatment of deceased by defendant. In the same case it was held that evidence of the manner in which the defendant had previously treated the deceased, being wholly immaterial, was properly excluded.</p> <p>3. Same—defining the various grades of the offence—instructions. On the trial of one for murder, where the evidence clearly showed the homicide was either murder or voluntary manslaughter, an instruction defining voluntary manslaughter need not also define involuntary manslaughter. To do so would be to call the attention of the jury to a principle of law not applicable to the facts, and would tend to confuse rather than enlighten them as to the real issue.</p> <p>4. An instruction in such case, telling the jury that they must believe, from the evidence, that the killing “was done in sudden heat of passion apparently sufficient to make the passion irresistible, ” to make it manslaughter, is not subject to the objection that it requires the defendant to show the existence of a passion absolutely irresistible, to reduce the killing to manslaughter; and it is not faulty in failing to state the law of self-defence, when that is stated in other instructions.</p> <p>5. Same—reasonable doubt. The law does not require that the jury shall believe that every fact in a criminal case has been proved beyond a reasonable doubt, before they can find the accused guilty. The reasonable doubt the jury is permitted to entertain must be as to the guilt of the accused on the whole evidence, and not as to any particular fact in the case.</p> <p>6. IrrsTBUCTioNS — degree of accuracy required. The correctness of instructions is to be tested by the evidence and facts in each particular case. They will be sufficient if they state the law with reasonable accuracy, in view of the evidence in the case. To require absolute technical accuracy in all cases, would be, under the administration of the criminal law, so difficult, as to make it almost impracticable to secure a conviction.</p> <p>7. Same—assuming a fact not disputed. Even if an instruction given on the trial of one for murder should assume the fact that the killing was shown by the evidence, where the fact of the killing is not a disputed fact, but is conceded, that would afford no ground of error.</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. W. H. Barnum, Judge, presiding.</p>

Henry M. Shepard, Judge, presiding. Mr. Lewis L. Coburn, pro se, contended that the certificate of the acknowledgment of the deed of Nathan P. Herrington, and Almira, his wife, was substantially good under the law of 1853, which declared that no deed, etc., should be held invalid, defective or insufficient by reason of any informality or omission in setting forth the particulars of the acknowledgment,—citing and reviewing the following cases: Lindley v. Smith, 46 Ill. 523;…

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

<p>1. Chancery—dismissal for want of equity—or for want of prosecution—which is proper. A bill in chancery was filed April 21, 1880, on which a summons issued, which was returned not found, and on June 10,' following, all the defendants except one answered. Replication was filed on June 28. No further steps were taken in the cause until December 3, 1880, when the following order was entered: “This cause being this day called for hearing, come the defendants, by their solicitors, and the complainant comes not, nor does any one for her, and on motion of defendants it is ordered that this cause be and is hereby dismissed at complainant’s costs, for want of equity:” Held, that the dismissal for want of equity was erroneous. The proper order would have been a dismissal for want of prosecution.</p> <p>2. Same—practice—where a case is improperly placed on trial docket. If 9 chancery cause is through inadvertence set upon the trial docket- before it is ready for hearing, it is the duty of the complainant to have the order placing the case on such docket, set aside; and if he does not, he. can not complain that the cause is dismissed for want of prosecution when reached, in his absence, on the call of the docket.</p> <p>3. Practice—how far parties chargeable with notice of all steps in a cause. Parties are bound, at their peril, to take notice of all orders regularly made in the progress of a cause. So if the cause is placed upon the trial docket, it is the duty of the parties to be present when it is reached on the call for final disposition; and if they are not, in the absence of a reasonable excuse, they must suffer the consequences.</p>

<p>1. Fraudulent conveyance—sale on secret trust for benefit of the grantor—to hinder and delay creditors. A person being in debt, conveyed his real and personal property to his son, under an agreement made for the purpose, on the part of both, to defeat, hinder and delay a creditor in the collection of his debt, no consideration being paid therefor, and with a secret understanding the son should hold the property for the use and benefit of the father, and reconvey it to him when requested, and if the father did not require a reconveyance, the son to take care of him and provide him with necessaries during his life, and have the property at his death. It was held, the sale and conveyance were fraudulent and void as to creditors of the father.</p> <p>2. Even where the grantee pay's a valuable consideration, if a part of the consideration is an undertaking and promise by the grantee to support and take dare of the grantor, such an agreement renders the transfer void as to then existing creditors of the grantor.</p> <p>3. Same—distinction as to rights of prior and subsequent creditors. If the fraudulent grantor reserves no future use or benefit in the property, then the transfer can be attacked only' by preexisting creditors; but where the conveyance is merely colorable, and a secret trust exists for the benefit of the grantor, then the sale is void, both as to precedent and subsequent creditors.</p> <p>4. Same—inadequacy of consideration. The sale and transfer by a father to his son, of real estate of the cash value of $2500, and personal property of the value of $250, for the price of $500 paid, will be fraudulent as to existing creditors of the father, on account oí the gross inadequacy of consideration..</p> <p>5. Waiver op demurrer—by pleading over. A defendant, by answering a bill m chancery after the overruling of his demurrer thereto, waives his demurrer, except so far as he may have the same advantage on final hearing; and he can not assign for error the ruling upon the demurrer.</p> <p>6. Statute op Frauds—should be specially pleaded. The Statute of Frauds can not be relied on as a defence, in any case, unless insisted upon by plea or answer. Without it is thus interposed, a trust resting in parol will be enforced the,same as if it was in writing.</p> <p>7. Amendment—in chancery—how far matter of discretion. The granting of leave to amend the pleadings in chancery cases rests in the discretion of the court; and unless there is an abuse of discretion, the action of the court will not be the subject of review.</p> <p>8. Same—amendment of bill—to avoid, a variance—at what time. An amendment of a bill in chancery is properly allowed on the hearing, in furtherance of justice, to avoid the effect of a variance from the proofs. It is not material when amendments are permitted to be made, except as to the terms the court may impose as a condition thereto.</p> <p>9. Same—in case bill is unnecessarily sworn to. Where a bill is not required by law to be verified by the oath of the complainant, the fact that it is unnecessarily so verified affords no ground for refusing leave to amend the same.</p> <p>10. Evidence—on creditor's bill—acts of debtor. On the hearing of a bill to subject property conveyed by a judgment debtor to his son, to the satisfaction of the judgment, there is no error in refusing evidence offered by the son to show acts of the debtor done in furtherance of the rights of the creditor, and to aid him in the suit.</p> <p>11. Same—in chancery—receiving evidence subject to objections. As a general rule, the better practice in chancery cases is to receive evidence subject to such objections as may be taken to it, to be considered on the final hearing, when the court will disregard it, if incompetent, or if competent, give it such weight as it may be entitled to. In such case it will be presumed that the court considered only competent and relevant evidence.</p> <p>12. Witness—competency—wife for her husband. On bill to set aside a conveyance made by a judgment debtor as being fraudulent as to creditors, the wife of the grantee defendant is not a competent witness for him, to sustain the alleged bona fldes of the conveyance.</p> <p>13. Same—impeachment—by proof of inconsistent statements. " Declarations and statements of a witness inconsistent with his testimony, are not admissible in evidence to impeach him, unless where his testimony relates to matters material to the issues, nor then unless his attention has been called to the time, place and persons when, where and to whom he had made his supposed declarations.</p> <p>14. Same—time for offering impeaching evidence—discretion. Where plaintiff’s witness is asked certain questions on cross-examination, for the purpose of laying a foundation to impeach him, and he is again called by the plaintiff in rebuttal, after the defendant has closed his testimony, and asked as to other matters merely in rebuttal, it is a matter of discretion with the court at that stage of the case to allow the defendant to introduce evidence to impeach the witness.</p> <p>15. Error is obviated by evidence rejected being afterward received. Error can not be predicated on the refusal to allow a question to be answered by a witness when the witness afterward testifies to the same fact sought to be established by the question.</p>

<p>1. Allegations and proofs—in chancery. The rule in equity is, that the proofs must correspond with the allegations of the bill,- and be responsive thereto. But a variance not substantial will not be fatal.</p> <p>2. So where a party, to secure a loan of $2500, conveyed to the lender eighty acres of land as a security, taking back a written agreement for a reconveyance on payment of the principal, and $270 for each year of the credit given, but it was alleged in the bill to foreclose that the mortgagor was to pay $250 a year as rent for the land, and the taxes thereon, and it appeared that $20 of the yearly payment was for the payment of the taxes, and $250 for interest, it was held, that there was no substantial variance.</p> <p>3. Parol evidence—to change terms of written agreement. The general rule that parol evidence is not admissible to change the terms of a written contract, has its exceptions, as, in respect to the consideration expressed in notes and conveyances. Such evidence is also admissible where usury is pleaded, regardless of the form the transaction may have in the writings executed by the parties.</p> <p>4. Usury—agreement to pay taxes on land mortgaged, in addition to interest. A person borrowed $2500 on several years’ time, and to secure its payment, with interest, conveyed to the lender eighty acres of land, taking back a written contract for a reconveyance on payment of the principal and ten per cent interest annually, that rate being the highest then allowed by law to be contracted for, with $20 yearly for taxes on the land, making $270 annually, and the proof showed that only $250 was in fact paid as interest, and that on payment of that sum, and producing a receipt for the taxes of such year, he was credited with $270. It was held, the transaction was not usurious, and that the $20 was but a guaranty for the payment of the taxes, which were chargeable against the mortgagee by reason of the legal title being in him.</p>

<p>1. Water works in cities and villages—powers in respect to their construction, etc.—act of 1873, in its application to cities acting under special charters. The act entitled “An act authorizing cities, incorporated towns and villages to construct and maintain water works, ” approved and in force April 15, 1873;i applies to all cities, whether incorporated under special charters or under the general law, except in cities, towns or villages in which water works were at its passage managed and controlled by a board of public works.</p> <p>2. The first section of that act, in giving cities, towns, etc., power to provide for a supply of water by the erection, construction and maintenance of a system of water works, leaves the municipal authorities unrestricted as to the character and cost or the means whereby the supply of water shall be provided, and authorizes them to borrow money to the extent needed to make the contemplated improvement, and to this extent operates as a repeal of all limitations in their charters on their power of contracting indebtedness and borrowing money on bonds to be issued by them.</p> <p>3. Implied municipal powers—in aid of express powers. An express grant of power to a municipal corporation, or other person, to do a given thing, carries with it, by implication, authority to use the necessary means by which it can be done. So the' power to borrow money for a proposed public improvement by an incorporated city, gives, as a necessary incident, the power to issue its bonds for the money.</p> <p>4. Municipal indebtedness—limitations as to power of contracting. A limitation in a special city charter as to the rate of taxation is binding only upon the municipal authorities, and not upon the General Assembly; but section 12, of article 9, of the constitution, which prohibits the incurring of corporate debts exceeding five per cent on the value of the taxable property of the municipality, is equally binding on the legislature.</p> <p>5. Repeal oe statutes—by implication. Where the provisions of a former and a later statute are inconsistent and repugnant in respect to the same subject matter, the later statute is a repeal of the former to the extent of the inconsistency or repugnancy.</p> <p>6. So where a city, by its special charter, is limited in borrowing money to a sum not exceeding $5000 in any one year, for which it may issue its bonds, but a subsequent general law gives all incorporated cities, etc., power to construct water works, without limit -as to the cost, and to borrow money for such purpose on its bonds, the general law will operate to repeal the provisions in the charter only in respect to indebtedness and borrowing of money for constructing and maintaining a system of water works, leaving the limitations in the charter in force as to the contracting of indebtedness for other purposes.</p> <p>7. Construction of statutes—the naming of particular things as excluding all others. The introduction of an exception as to the operation of a general statute is necessarily exclusive of all other independent extrinsic exceptions.</p>

<p>Res judicata—in the Supreme Court—reviewing the same matters on-a second appeal. Where this court passes upon the equities of a ease, reverses the decree therein, and remands the cause with special directions, the-parties can not, by the introduction of additional evidence or by filing a. cross-bill, have this court review and reconsider its former judgment. That ■ can be done only by petition for a rehearing, in the manner prescribed by the rules of this court.</p>

Thomas A. Moran, Judge, presiding. This cause comes before this court on an appeal from a judgment of affirmance by the Appellate Court for the First District, of an order of commitment made by the circuit court of Cook county for a contempt in refusing to assign to a receiver certain property in controversy in a suit.

heard in the court on appeal from the Circuit Court of Cook county; the Hon. John G. Roobbs, Judge, presiding. This was an action brought by the appellant, in the circuit court of Cook county, against the appellee, as a stockholder of the late German Savings Bank of Chicago, to recover a balance of $2624.88 due him as a depositor of said bank.

<p>1. Appeal—reviewing facts—ichen found by the Appellate Court. The ■statute makes it the duty of the Appellate Court, where its judgment is the result of its finding the facts differently from that of the trial court, to state, in its final judgment or decree, the facts as found by it; and when that court does so recite its finding, its decision as to the facts found is conclusive, and ■can not be reviewed by this court.</p> <p>2. Gift—revocable until executed—and when considered as executed. A gift is always revocable until it is executed, and a promissory note, intended purely as a gift, is but a promise to make a gift in the future. In such case the gift is not executed until the note is paid.</p> <p>3. Consideration of a promissory note intended as a gift. A promissory note, executed without any other consideration than that of natural affection, or one without any valuable consideration, intended as a mere gift, can not form the ground of a recovery in an action at law.</p>

Writ of Error to 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>1. Contract with a county—of the mode—by whom—delegation of authority by county board—as to work done outside of contract—ratification by payment. The county board of Cook county, in July, 1877, passed this resolution: “Resolved, that the contractor on the new court house, P. J. Sexton, be and he is hereby instructed to build as much of the foundation of the dome, under the supervision of the architect, as is necessary to inclose the building, subject to the architect’s valuation of the same:” Held, that, this resolution, when accepted by Sexton, constituted a contract for the building of a portion of the foundation of the dome.</p> <p>2. The county board alone has power by law to bind a county by contract. There is no such power in an architect, or a committee appointed by the' board, unless it has been bestowed by the county board. But the authorized body of a municipal corporation may, by a resolution or vote, clothe its officers, or agents, or committees, with power to act for it.</p> <p>3. Where a county board, by resolution, directed a party to build so much, of the dome of a court house being erected as was necessary to inclose the building, under the architect’s supervision, and subject to his valuation of the same, it was held, that the architect, under such resolution, had authority only to supervise the work directed to be done, and make a schedule of prices for the same, and that any order of the architect for work outside of the terms of the resolution was not binding on the county.</p> <p>4. A county board, by resolution, employed a contractor to build so much of the foundation of a dome for a court house as was necessary to inclose the building, the foundation being regarded the part below the ground, and the joint committee, and architect employed to supervise, afterward ordered the contractor to fill in the wall up to the main water-table or level of the first story floor, which was done, and the work paid for, and the architect and committee then directed him to complete the work as far as the roof line of the building, a part of which was done, when further work was ordered by the board to be stopped, and payment was made for all the work which had been done under such orders: Held, that the payment for the work done under the orders of the committee and architect, outside of that required in the resolution, was not such a ratification of the subsequent orders made by them as to bind the county, and that the county was not liable to the person doing the work for the profits he might have made if he had not been ordered to discontinue it.</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 La Salle county; the Hon. Josiah McRoberts, Judge, presiding.

Writ or Error to 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>1. Allegations and decree should correspond. It is error to render a decree against the wife of the defendant, granting a perpetual injunction against her and her husband, where there is no allegation- in the bill upon which to base any decree against her.</p> <p>2. Chancery—;jurisdiction to try legal titles. Where the defendant is in the possession of land, a court of equity will not take jurisdiction of a bill to try the legal title of the complainant to the same. A court of law is the proper forum for the trial of legal titles to land.</p> <p>3. Where the main object of a bill in chancery is the recovery of possession from a judgment debtor, of lots which had been sold upon execution against him, and to have it found that title to the property was acquired under the execution sale, a court of equity will not be invested with jurisdiction to pass upon the legal title, merely from the fact that the bill also seeks to obtain an injunction to prevent the commission of waste or irreparable injury to the property. In such case the court should only stay, temporarily, the doing of any irreparable injury, until the further order of the court and a trial of the question of title in a court of law.</p>

<p>1. Appeal—reviewing facts—generally. Where a judgment in favor of a plaintiff in an action of assumpsit is affirmed by the Appellate Court, and there is evidence in the record tending to establish the plaintiff’s theory of the case, no assignment of error can be permitted which calls in question the finding of the facts by the trial and Appellate courts.</p> <p>2. On the trial of a case by the court without a jury, the court decided to admit in evidence any letters, telegrams or communications from the defendant to his agent, provided they were shown to the plaintiff or the contents in any way communicated to him by the agent; but as to what letters or telegrams were shown the plaintiff, or their contents made known to him, the evidence was conflicting: Held, that the finding of the trial court as to what communications had been shown or made known to the plaintiff, was review! able only by the Appellate’ Court, and that it would be presumed the trial court observed the rule of evidence it adopted.</p> <p>3. Same—reviewing facts—on question of excessive damages. Whether the amount of damages recovered by a plaintiff in an ordinary action ex contractu is excessive or not, is a question of fact, which this court can not consider on appeal from the judgment of the Appellate Court, affirming the judgment of the trial court.</p> <p>4. Evidence—relevancy—in the particular case—as to communications between parties prior to the transaction in controversy. In a suit against a commission man, to recover back margins put up from time to time on a purchase for future delivery, on the ground that the defendant closed out the deal' contrary to the contract, there being no complaint that plaintiff had failed to advance the requisite margins prior to the day the deal was closed out, it was held, that proof of telegrams from the defendant to his agent prior</p> <p>.to that day, and communicated to the plaintiff, was irrelevant, and that there ivas no error in refusing to admit the same.</p> <p>5. Where a plaintiff’s right of action depends upon the fact whether, on a particular day, he had failed to make a further advance to one who had made a purchase for him on the board of trade, on notice on that day, there being no claim of any default prior to such time, evidence consisting of communications from the defendant to his agent, by letters and telegrams, long prior thereto, is immaterial, and properly rejected. ,</p> <p>6. Same—as to proof of conceded facts. There is no error in refusing to admit evidence to prove any fact which is not disputed, but is conceded on the trial; nor is there any error in refusing to admit evidence which does hot tend to prove the fact sought to be established by it.</p> <p>7. Agency —forfeiture of the agent's commissions and lien. An agent employed to make a contract in his own name, for the purchase of grain, to be delivered at a future day, for his principal, and to whom his principal has advanced the required margins to protect him from loss, and who, after receiving all the margins required, close's out the deal and thereby sells at á ■loss, in violation of his contract, will lose his lien on the margins in his hands, and his commissions; and the principal may, under the common counts in assumpsit, recover of him all the margins so advanced by him to the agent.</p>

<p>1. Exceptions and bilis op exceptions—necessity of talcing and preserving exceptions. The rule in this State is inflexible that in order to take advantage of any improper ruling of the court, pending the trial of a cause, which does not delate to the pleadings or appear on the face of the judgment itself, the bill of exceptions must show an exception was taken to the same. It is not sufficient that the clerk recites in the record that exception was taken. Joinder in error and submitting the cause are not a waiver of defect in this respect.</p> <p>2. Where a cause is tried by the court without a jury, and no exception is taken to the finding of the court or to the rendering of judgment, and preserved in a bill of exceptions, and no motion is made for a new trial, the finding and judgment can not be assigned for error.</p>

<p>1. Cemetery companies—corporate powers—to make by-laws, rules •and regulations—uniformity of application required. Where the charter incorporating a cemetery company provides for a board of managers, who are authorized to lay off the grounds into lots, sell the same, make by-laws, and such rules and regulations for the government of lot owners and visitors as they may deem necessary, they may make such rules and regulations; but they must be reasonable, equa^ in their operation, and uniform in their application to all owners of lots in the cemetery. The managers will have no right to make a rule which will confer a right upon one owner in regard to the improvement of his lot, and deny the same right to another lot owner.</p> <p>2. Such a company being a quasi public corporation, and possessed of the right to condemn property, and invested with other important powers, is bound to exercise its rights and privileges fairly and impartially; and if, through its officers, it attempts to act arbitrarily, or to transcend its powers to the injury of a lot owner, such action may be reviewed and controlled by the courts.</p> <p>3. Same—erecting a uault upon a cemetery lot—rights of the owner— of rules in restriction thereof. If the board of managers of a public cemetery company incorporated by law, have authority, under their charter, to prevent a lot owner from erecting a vault upon his lot, that power can only be exercised by the adoption of a general rule on the subject applicable to every one.</p> <p>4. A rule adopted by the board of managers of an incorporated cemetery company, that “no vault shall be built entirely or partially above ground without permission of the company,” taken in connection with another that no vault shall be constructed in the cemetery until- the designs and specifications of the same, with a diagram of location, shall have been submitted and approved by the board, can not be regarded as prohibiting the erection of a vault; and in the absence of a rule prohibiting such erection as to all persons, the board of managers have no power to establish a rule governing a particular case.</p> <p>5. In this case the company had no rule prohibiting the erection of vaults within the cemetery, but was acting under a rule requiring designs, specifications and a diagram to be submitted. This was fully complied with by the owner, who proposed to erect a vault upon his lot, and no objection was made as to the design and specifications, and the question of granting leave to erect the vault was left to the decision of the landscape gardener, who decided to-grant the permission, and the owner then made a contract for the building of the vault, and the contractor proceeded with the work until prevented by the officers and agents of the company. It also appeared that many vaults-had been allowed to be built in the cemetery: Held, that the court properly granted a decree, at the instance of the lot owner, enjoining the company from interfering with the work or preventing the erection of the vault.</p>

<p>1. Special taxation for local improvements—whether the matter of benefits to be considered. The power of special taxation of contiguous property for the making of local improvements by a city, does not depend upon the fact of an equivalent benefit to the property taxed. The power is given unqualifiedly, with no restriction as to the benefiting of contiguous property.</p> <p>2. Same—special taxation as distinguished from special assessment. An ordinance was passed for the construction of a sewer in a street, the cost thereof to be paid, one-half by general tax, and one-half by special taxation, to be levied on the property contiguous to the improvement in proportion to the benefits accruing to the respective parcels of land or lots along the line of the sewer by the making thereof, to be levied and collected as provided by article 9 of the act of the legislature entitled “An act to provide for the incorporation of cities and villages,” approved April 10, 1872, and a committee was appointed, who reported the estimated cost of the proposed improvement: Held, that this was a case of proceeding by special taxation, and not by special assessment.</p> <p>3. Same — committee to ascertain the cost of improvement—at what stage of the proceeding to be appointed. It is no valid objection to a proceeding to construct a sewer, one-half of- the cost thereof to be paid by general tax and the other half by special taxation of contiguous property, that the committee to estimate the cost of the improvement may have been appointed after the passage of the ordinance and before its approval by the mayor. It is sufficient if the ordinance is signed before the petition is filed in the county court to have the tax levied for half the estimated cost upon contiguous property.</p>

<p>1. Cities and villages—injury from defective sidewalks—duty and liability in respect thereto. On principles of common law, an action lies-against a municipal corporation, for damages resulting from its negligence in keeping public streets and sidewalks in repair, where the duty to make the repairs is fully declared, and adequate means are furnished the city to perform the duty.</p> <p>2. A city incorporated under the general Incorporation law owes the duty of keeping its streets, sidewalks, etc., in repair, and is clothed with adequate-powers and means for that purpose.</p> <p>3. Same—as to the character of use of a street or sidewalk allowable, in view of the liability of the municipality. The statute does not impose-the duty upon incorporated cities to keep their streets and sidewalks in proper-repair for travelers only, but for all persons lawfully using the same, without regard to the motives and objects of those passing over them. Persons using-them for recreation or amusement not unlawful, or from mere idle curiosity, are as much within the protection of the law as those in the pursuit of their legitimate and necessary business.</p> <p>4. So a city incorporated under the general law is liable in damages to-the next of kin of a child, who, while rolling a hoop along a sidewalk out of repair, is injured in consequence of the defective state of the sidewalk, and who dies from such injury, when such child, at the time of the accident, was not guilty of negligence in failing to use the care for its safety required of one of its age, and when the city had notice of the unsafe condition of the-walk before that time, or might have known its condition by ordinary care- and diligence. And it makes no difference that such child was rolling a hoop-at the time of the injury, when there is no ordinance prohibiting or regulating: the rolling of hoops upon the sidewalks.</p> <p>5. Same—of imputing negligence to a minor in the use of a sidewalk. In determining whether a boy, a little over ten years of age, was or was not-guilty of negligence in rolling a hoop over a defective sidewalk, where he is-injured, all the circumstances in evidence, including his age, should be considered. If he exercised such care for his safety, as, under the circumstances, might be expected from one of his age and intelligence, it will be sufficient,</p> <p>6. Same—negligence as a question of fact. Whether a child ten and a. half years' old, who is injured while rolling a hoop along a sidewalk in consequence of its unsafe condition, was guilty of negligence on its part or not, is a question, of fact, to be determined by the jury from all the evidence in the case, and not one of law, to be determined by the court. The law neither infers negligence, nor its absence, from the fact of the child rolling a hoop..</p> <p>7. Action for death of a minor—from negligence, etc.—by whom if may be maintained. Where a minor loses his life through the negligence, default or wrongful act of another, the statute giving an action to his personal representative does not limit the right of recovery to his father, or for his. benefit, merely because he may have been entitled to his services and earnings. The jury should not, by instruction, be confined in their assessment of damages to the pecuniary loss of the father and mother of the deceased, excluding that of his surviving brothers and sisters.</p> <p>8. Same—measure of damages. The question of the compensation to be-awarded to the next of kin of a deceased person, under the statute, (chap. 70, sec. 2,) for their pecuniary loss from his death, is not in its nature capable of exact determination. Therefore the jury should calculate the damages in reference to a reasonable expectation of benefit, as of right, or as of grace or favor, from the continuance of the life.</p> <p>9. Instbuction—on court’s own motion—whether imperative. While-a court may very properly give an instruction on its own motion, in a case, yet its failure to do so can not be urged as error. By failing to ask for a, particular instruction, or one on a particular branch of the case, the party complaining must be regarded as waiving any right to the same.</p>

<p>1. City attorney—Ms power in respect to an appeal. A city attorney elected by the people, whose duty it is to look after and protect the interests of the city in all legal controversies? will have power, on behalf of the city, to pray for an appeal from a judgment against the city, and prepare the necessary steps for taking the same. All his acts within the scope of his authority will be binding on the city.</p> <p>2. Same—duty in respect to suits, and presumption in respect thereto. After having taken the necessary steps for an appeal from a judgment against the city, it is the duty of the city attornej'.to report the condition of the case to the city council, together with his views in respect to the propriety of taking the appeal; and in the absence of proof to the contrary, it will be presumed he has discharged his duty in such respect.</p> <p>3. Same—validity of agreement to submit to arbitration, made by him, when not disaffirmed, or is ratified by city. Where a city attorney, after praying for an appeal from a judgment against the city, agreed with counsel for the plaintiff to submit the question of the liability of the city to the arbitrament and decision of an arbitrator, if the city council, after the lapse of several months, made no objection to the agreement to arbitrate, and afterward availed of the decision of the referee by bringing suit to have his decision carried into effect, it was held, that the other party could not avoid the effect of the award on the ground of want of authority on the part of the city attorney to bind the city by his agreement.</p> <p>4. Ratification—of acts of agent. Where a contract entered into on behalf of a named principal, is one which the principal himself might lawfully make, it may be ratified by the principal, and thus given effect. Such ratification may be shown by circumstances, or it may be inferred by acquiescence after notice.</p>

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

<p>1. Fellow-servants—injury to one from, the negligence of another— liability of the common master. Where one servant is injured by the negligence of a fellow-servant, the duties of both being such as to bring them into habitual association, so that they may exercise an influence upon each other promotive of proper caution, and the master is guilty of no negligence in the employment of the servant causing the injury, the master will not be liable for the injury.</p> <p>2. Same—burden of proof—negligence of master. In a suit by a servant against his employer to recover damages for a personal injury from negligence of a fellow-servant, if it is claimed that the master was guilty of negligence in selecting or retaining incompetent servants, the burden is on the plaintiff to prove it.</p> <p>3. Master and servant—injury to the latter from alleged negligence of the former—liability, when servant takes the hazard of his employment. If a person lcnowing the hazards of his employment as the business is conducted, voluntarily continues therein, without any promise of the master to do any act to render the same less hazardous, the master will not be liable for any injury he may sustain therein, unless it may be caused by the willful act of the master.</p> <p>4. Practice in Supreme Court—vacating a judgment made under misapprehension of fact. Where a judgment of this court is entered in vacation, reversing the judgment of the Appellate Court inadvertently, and upon a misapprehension of the facts shown by the record, it will, on its own motion, vacate such judgment and cause the proper one to be entered.</p>

Writ of Error to the Appellate Court for the Fourth District ;■—-heard in that court on writ of error to the Circuit Court of Franklin county; the Hon. David J. Baker, Judge, presiding. This was an action of assumpsit upon a promissory note, brought against the makers thereof, Thomas K. Means, Henry Hudson, William T. Stacy, Thomas F. Tinsley, Isaac J. Clayton, A. D. Scaggs, Thomas M. Renfro, C. F. Mulkey, John T. Blake and William J. Moyers, the other makers having died.

Writ oe Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court-of Cook county; the Hon. B. S. Williamson, Judge, presiding.

Writ of Error to the Circuit Court of Union county; the Hon. D. M. Browning, Judge, presiding. This was a bill in chancery, by Julia Ann McDowell, against William McDowell and James W. Coleman, seeking to enjoin the execution of a judgment in a forcible detainer case obtained by Coleman against complainant.

<p>1. Commissioners oe highways—power to contract indebtedness. The commissioners of highways have no authority of law to contract an indebtedness in respect to roads and bridges, when the money to pay the same is not in their treasury to be expended, or has not already been actually levied.</p> <p>2. But where a tax has been levied by them, though the proceeds of such levy may have been intended by the commissioners to be applied in a way distinct from the making of a culvert, a party who builds a culvert for them under a contract, who has no notice that the levy was not made to pay for the same, and where there is nothing to afford notice of the purpose of the levy, may recover of the contract price a sum equal to such levy, and no more; and the fact that he was compelled to accept an order for the sum due, if such was not the agreement before the work was done, will not prevent a recovery upon an order not exceeding the tax levied for that year.</p> <p>3. Same—power to contract to pay interest. Where commissioners of highways contract for services and work in anticipation of taxes already levied, and give an order for payment, upon their treasurer, payable at a future day, they will have no power to agree to pay interest on the same; and if such order provides for interest, that part thereof may be treated as void, and only the principal can be recovered on such order.</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. Henry M. Shepard, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Effingham county; the Hon. William C. Jones, Judge, presiding.</p>

<p>1. Park commissioners—power to levy special assessments. The West Chicago Park Commissioners are a quasi public corporation for park purposes, and as such have the power to take steps to cause property benefited by the establishment of a boulevard, to be specially assessed for the cost of the same.</p> <p>2. Same—effect of the act of 1873, as granting new powers, and of the mode of procedure under the several acts on the subject. Section 12 of" the act entitled “An act in regard to the completion, improvement and management of public parks and boulevards, and to provide a more efficient remedy for the collection of delinquent assessments,” approved May 2,1873, relates to a new and entirely different subject matter not provided in the original act relating to the West Chicago Park Commissioners, and invests them with powers they did not before have.</p> <p>3. The language of that section, to the effect that the cost and expense of acquiring title to land for a connecting boulevard or pleasure way “shall be levied upon, and collected by special assessment upon, the property deemed specially benefited by the location of such boulevard or pleasure way, in the same manner as the cost of other lands for parks and boulevards is assessed,</p> <p>under the several acts creating such boards, ” means that the same shall be done by and through the same agencies or instrumentalities as were provided in such former acts. Section 4 of the act of May 2, 1873, does not compel action in pursuance of its terms in a proceeding under section 12, and does not repeal section 13 of the act of February 27, 18G9.</p> <p>4. Fobmeb adjudication—as to judgment of confirmation of special assessment. Where a court has jurisdiction of the subject matter and the persons whose property is assessed, and power to adjudicate upon an application to confirm a special assessment, its judgment of confirmation will be conclusive upon all questions and objections that might have been interposed before judgment, and such questions can not be raised by a bill in chancery seeking to enjoin the collection of the assessment.</p> <p>5. Pleading in chancery—allegation of want of notice of application for confirmation in a proceeding for special assessment. An allegation in a bill seeking to enjoin proceedings for the collection of special assessments for park purposes, that “ complainants are advised and believe, and therefore charge the fact to be, that no sufficient notice of the application for confirmation of said assessment was given, ” is but the statement of a conclusion of law. If a notice was given, the legality of which is denied, it should be specifically set out, that it may be seen whether it conforms with the requirement of the law.</p>

<p>1. Appeal—whether a freehold is involved. A bill to enjoin a defendant from rebuilding a mill-dam, and thereby prevent the overflowing of the complainant’s land, etc., does not involve a freehold, so as to justify an appeal directly to this court from the trial court. A claim of an easement in the lands of another does not constitute a freehold in such lands.</p> <p>2. Same—whether appeal will lie from order dissolving a temporary injunction. The mere dissolution of a temporary injunction in vacation is not an order from which an appeal will lie in any case, as the injunction may be made perpetual on the final hearing.</p>

<p>1. Judgment men—os to property in the hands of a receiver. The recovery of a judgment against partners after the appointment of a receiver to take charge of the firm assets for the benefit of the firm creditors generally, creates no lien against any property or funds of the firm in the hands of the receiver. Such property or funds can not be levied on by an execution, or reached by garnishment, for the reason of its being in the custody of the law.</p> <p>2. Receiver—how far assets in the hands of a receiver are beyond the control of the parties, or of creditors—and herein, of creditors obtaining priority over each other. The possession of a receiver, as an officer of the court, is the custody of the law, and he holds the property or funds for the benefit of the party or parties whom the court shall find entitled thereto; and the law will not permit the receiver’s possession to be disturbed, without the consent of the court that first obtained jurisdiction to appoint him.</p> <p>3. Where a receiver has been appointed on a bill filed by one partner against his co-partner, merely to hold the property or funds pending the litigation between the parties, creditors of the firm are not bound to wait till the equities between the parties may be adjusted, as that might never be done. In such case the assets are treated as still belonging to the firm, and creditors may proceed in any lawful way to acquire a lien entitling them to priority over less diligent creditors.</p> <p>4. A receiver was appointed on bill filed by one partner against the other for the settlement and adjustment of the partnership accounts and the payment of creditors of the firm, which was insolvent, and the court had ordered notice to he given to all creditors to come in and prove their debts before the master. It was held, that one of the creditors, by the recovery of a judgment against the firm during the pendency of said bill, and the filing of a creditor’s bill on the same day that notice to creditors was ordered, did not acquire any lien upon the assets in the hands of the receiver, or right to be preferred over other creditors,—and this more especially when such creditor proved his claim before the master, and shared in the distribution of the funds in his hands.</p> <p>5. And where, in such case, the defendant partner appeared, and consented to the appointment of a receiver, who took possession of all the effects of the-firm, it was held, that this was equivalent to placing the assets of the firm, by the voluntary act of the parties, under the control of the court for the benefit of their creditors, generally, and that after the court had assumed jurisdiction the parties would not have been allowed to dismiss the suit.</p> <p>6. Same—estoppel of creditor to claim priority, inconsistently with former acts. Where a creditor of a firm obtained judgment after the appointment of a receiver, on a bill between the partners, and proved his judgment before the master in pursuance of an order of the court authorizing the same, and filed his petition to prevent the partners from dismissing their suit and discharging the receiver, and contested other claims presented before the master, and received his pro rata share of a dividend ordered to be paid by the receiver, it was held, that these acts estopped such judgment creditor from claiming priority over other creditors in the final distribution of the assets.</p>

Owen T. Reeves, Judge, presiding. This was a bill for partition of a certain two hundred acres of land, described in the bill filed October 21, 1881, by Daniel Irwin, and Narcissa Irwin, his wife, setting out that Daniel Irwin was the owner in fee of the undivided half of the land, and that Lewis M. Dyke and said Narcissa Irwin, the only children and heirs at law of Benjamin Dyke, deceased, were the owners in fee of the other undivided half of the land, and praying partition…

<p>Accretions —as to lands bordering upon a river—rule of adjustment as between adjacent riparian owners. A tract of land bordering upon the Mississippi river was divided into parcels, some of which subdivisions or lots extended to the river bank, as it then was. These lots became the property of various persons. Subsequently there were accretions along the river front, and in adjusting the matter of such accretions among the several adjacent riparian owners, it was held, the proper mode was, to measure the entire river front as it was found to be when the lots were laid out, and note the aggregate number of feet frontage, as well as that of each lot; then measure a line drawn as nearly as may be with the middle thread of so much of the stream as lies opposite the shore line so measured; then divide the thread line into as many equal parts as there are lineal feet in the shore line, giving to each proprietor as many of these parts as his property measures feet on the shore line; and then complete the division by drawing lines between the points, designating the lot or parcel belonging to each proprietor both upon the shore and river lines.</p>

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

<p>Larceny—failure of constable to pay over money collected on execution. A constable who collects money on an execution, and falls to pay the same to the party entitled thereto, is not liable to indictment and conviction for larceny under section 74 of the Criminal Code, but he may be fined under section 79.</p>

<p>1. Negligence—two corporations acting together—when the servants of one to be regarded as also the servants of the other. In an action to recover for the death of the plaintiff’s intestate, occasioned, as was alleged, by the wrongful act of the servants of the defendant company, a railway and transit company engaged in transferring, with its own motive power, trains of cars over the St. Louis bridge across the Mississippi liver, it appeared this service was performed under a_ private arrangement between the defendant company and another corporation—the bridge company—for a compensation paid by the latter company, the two companies thus acting together in the transportation of passengers over the bridge, and in that regard there was concert of action between them. The collector of fares for the bridge company was on the trains crossing the bridge, by the consent, and certainly with the knowledge, of the defendant company, and it permitted that servant of the bridge company to control the movements of its trains. On the occasion in question, the plaintiff’s intestate was a passenger on one of defendant’s trains, and while the train was passing over one of the approaches to the bridge it was stopped in obedience to a signal given by the collector of fares for the bridge company, and by his direction the passenger was put off the train upon a trestle, from which he fell and was killed. It was held, as affecting the question of the liability of the defendant, that the collector of fares for the bridge company, while he was the servant of that company, was to be considered, for the time being, at least, and while so engaged on the train, as the servant of the defendant also.</p> <p>2. Instruction—amendment by erasure, leaving words still legible. It was objected that in erasing a sentence from an instruction, the words were still legible. The matter intended to be stricken out was of no importance whatever, and it mattered little whether the jury could still read it or not. The words so crossed out were still legible, but not plainly so, and it was not likely any jury would consider them after they had been erased in that manner. There was nothing in the objection.</p>

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

N. M. Laws, Judge, presiding. This suit was brought in the circuit court of Peoria county, by Warren B. Buckley and Thomas J. Pursley, composing the firm of Buckley, Pursley & Co., against the Peoria and Pekin Union Railway Company. The declaration is in the usual form in trover, to which the plea of not guilty was filed.

<p>1. Probate op will—loithin what time allowed. There is no statute 'Or law in this State limiting the time of probating a will to any given number -of years. In this case, a will was admitted to probate thirteen years after the death of the testator, and letters of administration which had been previously issued on his estate were revoked.</p> <p>2. Revocation of letters of administration on finding a will—as to -acts prior to the revocation. Where a will of a deceased person is found and probated after the grant of letters of administration on his estate, such letters will be revoked; but all rights acquired under the letters will be protected.</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. T. A. Moran, Judge, presiding.</p>

Thomas A. Moran, Judge, presiding. On the 24th of December, 1880, Stephen L. Inslee filed his bill in chancery in the circuit court of Cook county, wherein, among other things, he alleged that on August 28, 1878, Walter L. Pease was the owner of lot 28, in block 9, in Fort Dearborn addition to Chicago, subject to a mortgage to the United States Mortgage Comjiany, dated July 12, 1877, to-secure $18,000, etc., and subject also to judgments hereinafter mentioned; that on the…

0. A. Harker, Judge, presiding. This case originated in an action by attachment, brought by Mary C. Zimmerman, against Elijah A. Willard and Gr. W. Patterson, as partners. Prior to this suit Willard had made an assignment of all his real and personal estate to certain persons, for the benefit of his creditors. They having failed to qualify and serve, the county court of Union county appointed Philip Y. N. Davis and William C. Rich in their place.

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

<p>1. Dowee—where deed becomes inoperative to pass principal estate— effect upon the release of dower. Where a deed from a husband and wife becomes inoperative as to the husband’s estate by reason of a sale under a. prior judgment lien, or for other cause, it will also become inoperative as to-a release of dower therein by the wife, and she may assert the right after the death of her husband.</p> <p>2. Same—duty of dowress as to the payment of taxes—effect of nonpayment as working a forfeiture, as for waste. While the party holding the title to land in which a widow' is entitled to dower, is in possession, 01-receiving the income from the estate, the dowress is under no obligation or duty to pay the taxes on the same.</p> <p>3. So dower will not be forfeited by the failure of the dowress to pay the-taxes on the premises, and allowing them to be sold therefor, before they are-in fact assigned to her and she is put in possession.</p> <p>4. If back taxes on land out of which dower is sought, are taken into-consideration and adjudicated in the proceeding for the assignment of dower, in fixing the damages the damandant is entitled to for the detention of her dower, the reversioner, having had the benefit in that -way of all the taxes paid.by her, can not be heard to insist that the non-payment of such taxes at. the proper time worked such waste as to bar her dowér under the statute.</p> <p>5. Same—laches—limitation—as a bar to dower right. Where a widow has brought suit for the assignment of her dower in proper time, and has persistently been seeking such assignment for about twenty years, and has been delayed by appeals and the contesting of her right, she will not be-barred of the same on the ground of laches.</p> <p>6. No period short of seven years’ adverse possession under claim and. color of title and the payment of the taxes, will work a bar to the claim of dower; and the same strictness of proof as in actions of ejectment will be-required to sustain the bar.</p>

<p>1. Specific performance — where penalty for non-performance is provided. The mere fact that a contract stipulates for the payment of liquidated damages in case of failure to perform, does not prevent a court of equity from decreeing a specific performance. »</p> <p>2. It is only where the contract stipulates for one of two things in the alternative,—the performance of certain acts, or the payment of a certain amount of money in lieu thereof,—that equity will not decree a specific performance of the first alternative.</p> <p>3. Dedication—by plat of a town. A plat of a town laid out under the law of 1833 not having been acknowledged as required by that law, which shows a block marked “public square, ” was held not to have passed or conveyed any title to the public.</p> <p>. 4. Canal lands—belonged to State. The legal title to the canal lands granted by Congress to this State was not originally held by the canal trustees, but by the State itself, and such title was passed only by patents issued by the State and signed by the Governor.</p> <p>5. Same—donations to and sales by counties. Under the act of 1831 . the canal commissioners were authorized to give lots in any county town laid out by them, not exceeding ten acres, to aid in the erection of public buildings, and the Governor was required-to issue patents therefor; and in case of any such donation, the county commissioners of Cook' and La Salle counties were authorized to sell such lots so donated to them, respectively, when they might think best, and apply the proceeds to the erection of a court house and jail in each county seat.</p> <p>6. In this case the canal commissioners, in 1837, laid out and platted the town of Ottawa, in La Salle county, but the plat was not acknowledged, as required by the law then and since in force. Upon the plat, block 11 was divided into eight lots, and across the block were written the words, “public square.” The State issued its patent to LaSalle county for lots 1 to 8, inclusive, of block 11, after which the county commissioners sold and conveyed lots 1 and 2 of the block to private persons, which sales were, in 1841, ratified by the State legislature: Held, that the legal title, by these several acts, was vested in the grantee of the county, and the public had no longer any right or title to such lots.</p> <p>7. Constitutional law—power of legislature to sell public property. In the absence of constitutional restriction the legislature may authorize pub-lie property, or property held by the State, to be sold and conveyed to private individuals, where no trust in favor of private individuals stands in the way.</p> <p>8. Same—when private rights prevent sale of public property. Where a private individual conveys property to the public for a specified use, or where the public authorities plat and lay off grounds as dedicated to a public use, and sell other adjacent property on the faith of such public use remaining, and in consideration of its benefits to the property sold, it seems that such property so dedicated to the public can not afterwards be sold to private persons, to the detriment of those who purchased in consideration of the donation. But a person buying a lot around a public square after the sale of one or more lots therein, can not be heard to complain, nor can any one else, after the lapse of fifty years.</p> <p>9. Although it may have been once doubtful as to the right of county commissioners to sell a portion of the lots in a block marked “public square," yet if such a sale is acquiesced in by the public authorities and private persons interested, for the period of fifty years, all persons will be estopped to question the validity of such sales as against the private rights of those claiming under the purchase.</p> <p>10. Conveyance—as showing equitable outstanding title. In 1851 the vendor of land made a conveyance of the same to an assignee of his three vendees, A, B and C, in which the making of the contract of sale to A, B and 0, and its assignment to the grantee, were recited. It was objected, that as the assignment by one was by an attorney in fact, it was bad, because the power was not acknowledged, and because a wife of one of the vendees had an equity that did not pass by the assignment: Held, that as the legal title passed alone by the original vendor’s deed, no acknowledgment to the power of attorney was necessary to the assignment of the contract, and as the property had been held for thirty years, the deed must be held as sufficient to pass the title.</p> <p>11. Same—from a firm—presumption as to whether by all its members. About forty years ago the owner of two lots conveyed them to a firm, (Cushman, Eaton & Co.) and the next deed in the chain of title was executed by W. H. Cushman and wife, Seth Eaton and wife, James M. Leonard and wife, and Benjamin Thompson and wife, to one H., but the deed did not recite that these persons constituted the firm named: Held, that such recital was not necessary; and it appearing Thompson was one of the firm, and no adverse claim ever having been interposed, it was also held that the proof was sufficient to show a conveyance from the firm, after the lapse of so great a time.</p> <p>12. Dowee—unreleased—no objection to title after dowress’ death. It was objected to a vendor’s title to land, that the wives of two former owners failed to relinquish their dower; but it was held, that proof of their death prior to the sale obviated such objection; and so proof of the death of the husband of another dowress thirty years before, vras held sufficient to show her dower was barred, and hence no incumbrance.</p> <p>13. Mortgage—satisfaction by one of two mortgagees, good. Where a mortgage is given by a debtor to two persons, to secure the payment of a sum of money to them jointly, either one of them, on payment to him, may enter satisfaction of the mortgage upon the record thereof, and if he is dead, proof of his signature and that of the attesting witness will be sufficient to show-satisfaction.</p> <p>14. Same—extinguishment—deed to mortgagee. Where the mortgagor conveys the mortgaged premises to the mortgagee and another, and the mortgagee afterwards conveys to that other, this will extinguish the mortgage.</p> <p>15. Payment—to one of two payees. Payment to one of two joint payees extinguishes the debt.</p> <p>16. Judgment—satisfaction by attorneys. A father conveyed land to his daughter on March 29, 1878, and on June 6, 1878, a judgment was recovered against him and another, upon which an execution was issued, and returned “no property found.” On June 9, 1879, the father compromised with the plaintiff in the judgment, and on that day the attorney of record for the plaintiff gave a receipt in full, and entered satisfaction upon the margin of the record. On June 29,1879, the daughter reconveyed to her father, and the title passed from him to one who sold the land, and his title was objected to as being subject to the lien of the judgment: Held, that the purchaser could not refuse to complete the purchase on this ground, and that the judgment never was a lien on the land.</p> <p>17. Variance—decree without amending bill. A bill by a vendor of land for a specific performance of the contract, alleged that the complainant was seized in fee of the premises which he agreed to convey, subject to the payment of a mortgage indebtedness in the agreement mentioned, and the taxes, and that they -were free of all other incumbrances. The agreement described the indebtedness as “a certain mortgage in favor of G-. K. and A. K., given to secure the sum of $4000,” etc., and the deed tendered described the mortgage in the same way. The evidence showed the existence of a mortgage to A. K., to secure $2500, due in four years, and $1500, due in three years. The decree found the mortgage debt correctly: Held, that the complainant technically should have amended his bill, averring the mistake in the description of the mortgage assumed; but as the correct amount of the incumbrance appeared both in the pleadings and proof, the error was not of such importance as to justify a reversal of the decree.</p> <p>18. Tender—of deed, when rendered unnecessary. Where the purchaser of land announces his intention to the vendor not to comply with his contract before bill filed against him for a specific performance, no tender of a deed to him will be necessary; and it will be no defence that before suit the vendor tendered him one which failed to describe the premises with sufficient accuracy.</p> <p>19. Description in deed—by reference to prior deed. A contract for the sale of real estate, after attempting to describe a part of the lot, contained the following clause: “Also a strip of ground ten feet wide, extending along the east end of said strip of ground, being the same piece of ground described in the deed to the party of the first part,” which described the land properly: Held, that in so far as the contract referred to the deed to the ■vendor, and in effect adopted the description therein, no rectification of the contract was necessary.</p> <p>20. Same—of land—evidence for purpose of rectifying a contract for mistake. Where a mistake occurs in the description of land in a written contract of sale, a prior instrument written in pencil, evidencing the contract, is competent evidence to show the mistake in the more full and formal agreement afterwards entered into.</p> <p>21. Same—controlling words. An agreement in pencil, for the sale and exchange of real estate, described the land that one party was to convey to the other, as the “N. -£ of the N. ¿ of lot No. 2, in block 11, * * * and a piece of ground 10 by 40 in rear thereof, on following terms, (namely, known as the Cook & Glover block:)” Held, that the words, “Cook & Glover block,” were the controlling descriptive words, that the block was a fixed and permanent monument, and that any words repugnant to such description were to be rejected.</p> <p>22. Pabod evidence—to explain latent ambiguities, and identify premises conveyed. There is no doubt but that latent ambiguities in the descrip-</p> <p>■ tion of premises in deeds, etc., may be explained by parol evidence, and that such evidence may be resorted to for the purpose of identifying the premises and applying the calls of the deed, in suits for the rectification and specific performance, and in other proceedings affecting title.</p> <p>23. Specific pebfobmance—to/tero party estopped from taking advantage of a want of strict performance. Where the vendee of land, before the time fixed for the vendor to make him a conveyance, repudiates the contract, and refuses to accept the deed tendered to him, not on account of any objection to its form or substance, he will be estopped, in equity, from setting up in defence to a bill for specific performance, that time was of the essence of the contract, and a failure to tender a sufficient deed within the required time.</p> <p>24. Evidence—of ability to assign insurance policies. On bill for the specific performance of a contract for the sale and exchange of city property, where the complainant was to have certain -policies of insurance on the buildings held by him assigned to the defendant, who repudiated the contract, the evidence showed that the insurance agent consented to the transfers: Held, that in the absence of proof to the contrary, it would be presumed the agent was willing to make the necessary indorsements of consent to their transfer.</p>

William H. Snydeb, Judge, presiding. This is a bill in equity, by the Drummond Tobacco Company, against Charles H. Randle, John N. Drummond, John E. Hayner, George B. O’Kell, and John J. Mitchell.

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Rich-land county; the Hon. William C. Jones, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Eourth District;—heard in that court on writ of error to the Circuit ■court of Randolph county; the Hon. Amos Watts, Judge, presiding.

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

<p>1. ' Life insurance—mutual benefit association—tender of annual and special assessments—-notice. The certificate of membership in a mutual benefit association required the holder to pay an annual assessment of three dollars on or before a certain day in each year, and in and by which the-member agreed to pay, on the death of every member, an assessment, never to exceed one dollar and twenty cents, and provided- further, that if the said annual and special assessments, etc., should not be received by the association within thirty days from date of the notice, the certificate should be null and void: Held, in the absence of a notice, no tender of the amount of such assessments was necessary in order to prevent a forfeiture of membership. Under such certificate, the holder of the certificate would be entitled to notice of the annual assessment before he could be in default for its non-payment.</p> <p>2. Same—proof of death before suit brought—waiver in respect thereto. In a suit upon a certificate of membership providing for the payment of a given sum to the widow and heirs of the member upon his death, the association issuing the same may waive proof of the death before suit brought.</p> <p>3. So where a by-law of a mutual benefit association provided that upon receipt of notice of the death of a member the secretary should immediately forward to the representatives of the deceased the proper blanks, and full instructions how to make proofs of death, and the association, upon notice of the death of a member, with a request to send the blanks and instructions as to the required proof, failed to send the same, on the claim that the deceased had forfeited his rights and his certificate had been cancelled, and refused payment of the sum named therein on that ground alone, it was held, that this was a waiver of the preliminary proof of death.</p> <p>4. Same—by-laws of the association, as entering into the contract of insurance. The by-laws of an association for mutual benefit, in the nature-of life insurance, are binding upon it and all its members, and its contract for the payment of money to the widow and heirs of a deceased member is to be considered and construed with reference to its powers and duties as fixed by its charter, and by-laws pursuant thereto; and such widow and heir-shave the right to rely on the performance of such by-laws.</p> <p>5. Evidence—when its admission no error. There is no error in permitting a party to prove a fact not disputed, or to prove the same fact twice, where it works the other party no injury.</p>

M. F-. Tuley, Judge, presiding. This was a bill in chancery, brought by Bernard A. Eckhart and others, against Agnes F. Irons and others, to enjoin her from erecting tenement buildings upon a strip of land along the lot, reserved and set apart as a court-yard, they claiming that such strip is an easement. The court, on the hearing, dismissed the bill, and complainants prosecuted an appeal directly to this court.

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding. This was an action on the case, commenced in the circuit court of Fayette county, by the firm of E. S. J affray & Co., against John Utter and George W. Utter. The damages laid in the orginal declaration were $3000. In the amended declaration they were laid at $1000.

<p>1. Pleading—of the declaration—in personal action to recover taxes. In an action of debt, to recover taxes due upon lands forfeited to the State, it is essential that the declaration allege the fact, not only that the defendant was the owner of the real estate against which the delinquent taxes are charged, but also the- further substantive fact that he was' such owner at the time such taxes became a charge against the real estate. A failure to allege these facts affords grounds for arresting the judgment.</p> <p>2. Amendments and jeofails—defects in pleading cured after verdict. If a declaration omits to allege any substantive fact which is essential to a right of action, and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect.</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>1. Gaenishment—form of judgment. A judgment against a garnishee should be rendered in favor of the attachment or judgment debtor, for the benefit of the attachment or judgment creditor, who is treated as the real plaintiff, against his own debtor. Such judgment must, in form at least, be for the whole amount due from the garnishee, and whatever surplus there may be after paying the creditors entitled under the statute to share in the distribution to be made, belongs to the debtor in whose name the suit is prosecuted.</p> <p>2. Same—surplus after paying creditors—adjustment as between the attachment debtor and garnishee. After the creditors entitled to share in the distribution of the property attached or funds garnisheed, have been paid, if equities exist between the garnishee and the attachment debtor as to the surplus, the court, no doubt, may adjust them, and thus avoid any hardships that may arise.</p> <p>3. Same—what creditors preferred, and in respect to what fund. Under section 37 of the Attachment act, property, real and personal, attached, and funds in the hands of a garnishee, are placed on the same footing, and are held, from the time of the levy and service of the writ, for the benefit of all the creditors of the attachment debtor who shall obtain judgments against him within the time and in the manner specified in the statute; and such fund can not be appropriated to the payment of any other creditors until those so entitled to share in the same have been ascertained and paid.</p> <p>4. Same—transfer of the fund by bank check d/rawn before and after service on the bank. Where a depositor in a bank, before the service of process upon the bank as garnishee, at the suit of a creditor of the depositor, drew a check in favor of another, which was forwarded to the bank, and was by it paid in due course of business after the service of the writ, and charged to the account of the depositor, it was held, that the bank, as garnishee, was entitled to credit for the amount of the check so paid.</p> <p>5. But if a bank pays checks drawn on it after it is served with garnishee process, it can not be allowed credit therefor as against the rights of creditors of the depositor entitled to share in the funds garnisheed.</p> <p>‘ 6. Same—applying the fund to payment of obligation of the depositor to the bank. Where a depositor indorsed a promissory note of a third person, made payable to his order, and discounted the same in a bank where he had funds to his credit, it was held, that a payment of the amount due on such note by the indorser, to the bank, out of his funds on deposit, after the service of garnishee process upon the bank at the suit of a creditor of such indorser, could not be allowed the bank as a set-off, the indorser’s liability to the bank being that, only, of a surety, and contingent.</p> <p>' 7. Bank check— as a transfer of money deposited, pro tanto. If a depositor draws a check upon his banker who has funds to an amount equal or greater, it operates to transfer the sum named in the check to the payee, who may sue for and recover the same in his own name.</p> <p>8. Same—check in favor of cashier, whether evidence of fraud. The fact that a check is drawn by a depositor of funds in a bank, in favor of the cashier of such bank, just previous to the service upon the bank of garnishee process, is not of itself evidence of fraud or want of good faith. It is as lawful for an attachment debtor to draw his check in favor of the garnishee as in favor of any one else, if done in good faith before the service of process, and the garnishee will be entitled to credit for the amount named in the check, in the absence of evidence impeaching the transaction for fraud.</p> <p>9. Same—by what law governed, when d/rawn in one State and payable m another. A check drawn by a depositor in the State of Indiana, on his banker, payable in this State, will be construed by the laws of this State, and operate to transfer the sum named therein in accordance with the laws of this State, notwithstanding a different rule obtains in the other State.</p>

<p>1. Evidence—relevancy—in suit to recover for services in the management of a business—mismanagement on the pari of the agent as a defence. In a suit to recover compensation for services as manager of a foundry and machine shop, in which the defence sought to recoup damages resulting from, the alleged neglect of duty and mismanagement of the business on the part of plaintiff, producing a failure in the business, the plaintiff, in his testimony, incidentally stated as his opinion that the business was terminated because of his refusal to work for $300 a year. On cross-examination he was asked, if the true reason of the closing of the business was not because the firm bad lost money from the beginning-to the end, which the court, on objection, refused to allow: Held, no error in refusing to allow the question to be answered, as the subject matter of the inquiry could not have had any legitimate bearing upon the real issue in the case.</p> <p>2. Same—as to the manner of showing mismanagement by the agent in. such case. On an issue as to the plaintiff’s right to recover for services as general manager of defendants’ business in the carrying on of a foundry and machine shop, in which damages are sought to be recouped for mismanagement and neglect of duty on the part of the plaintiff, the burden of proof to establish the defence is upon the defendants, and. the particular acts of misconduct or omissions of duty should be specifically pointed out, so as to-enable the plaintiff to meet the same by direct proof. Evidence of the reputation of the work done is not admissible to establish such defence, as it might arise from other causes not attributable to the plaintiff.</p> <p>3. Same—opinions of witnesses on that subject. On an issue as to the-improper or unskillful management of the business of a firm by an employe suing for his services, it is not proper to allow one of the defendants, as a witness, to give his opinion as to the effects of the plaintiff’s management upon the profits and losses of the firm during the time he controlled its affairs.</p> <p>i. Same—improper keeping of boohs of account—how to be shown. For the purpose of showing that a plaintiff suing for wages had improperly-kept defendants’ books, they produced an exhibit made by the plaintiff of the partnership accounts, and asked an accountant who had examined the books, this question: “Mr. S., I place in your hands a statement, and I will ask you how that statement corresponds with the result of your examination of the books as to the indebtedness, or the amount of money these partners of the ¿Etna Iron Works put in the business:’’ Held, that the question was improper, both in form and substance. The proper mode of proving an improper keeping of the books of a firm by its book-keeper, is to ask the witness whether, upon his examination of the same, he found any errors, 'and if so, to state what they were.</p> <p>5. Same—availing of statements that are favorable, and rejecting such as are not. A party may rely on admissions made by the other party, in his testimony, against his interest, without being concluded by other statements made in exoneration of his liability, or in his favor. The statements of a party made against his interest may be accepted and acted upon by the jury as true, while others made in his favor, though at the same time and as part of the same conversation, may be rejected.</p> <p>6. Same—cross-examination as to matter not germain to evidence in chief. In an action against a firm for services as manager and book-keeper, the plaintiff’s father, who was a member of the firm, in testifying on behalf of the plaintiff, stated that the latter spent most of his time in the employment of the firm. On cross-examination the witness was asked if he thought during the year 1877 his and his son’s profits in another business distinct from that of the defendant firm, or the witness’ share of the profits therein, amounted to $2000, the object being to show that the business of the witness, in which the plaintiff had an interest, was profitable, while that of the defendants was not,—leaving the jury to infer that the plaintiff fostered the business of himself and father to the neglect of that of the defendants: Held, that the question was not proper on cross-examination, and if allowable at all, was matter in chief.</p> <p>7. Agent—whether liable to his principal for errors of judgment in the management of the business of the latter. Where an agent or manager of another is clothed with a general discretion in the management of the business intrusted to him, he will not be held responsible for an honest mistake in its exercise, provided he acts with reasonable skill and ordinary diligence. In such case there is no implied guaranty of the success of the business on the part of the agent, and if losses occur, the principal must bear them.</p> <p>8. Limitation—when the statute begins to run—service by the year. Where services are performed by one for another by the year, without any agreement as to the time for their payment, the law will presume them as payable at the end of each year, and the Statute of Limitations will not run against the first year’s services until the end of that year.</p> <p>9. Same—admission of indebtedness as taking case out of the staUite. An admission of a party that he owes another for services rendered, within five years before action brought, will take the case out of the Statute of Limitations, although the amount to be paid for such services may not have been fixed.</p> <p>10. Instetjotions—of a proper reference to the evidence. An instruction based upon admitted facts or facts not disputed, is not erroneous merely from the fact it fails to contain the words, “if you believe, from the evidence, ” such facts. Such reference to the evidence is necessary only when the facts hypothetically stated are controverted.</p>

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

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.

<p>1. Bank officers—agency—evidence—question of authority of a cashier to bind the bank—custom of banks to borrow money. In a suit against a firm of private bankers, upon a note given by their clerk and cashier for money borrowed by him in the firm name and appropriated to his own use, in which the cashier’s authority to give the note is put in issue, evidence ■of the custom of bankers at the place in which the defendants’ bank was located, to borrow money on time, is proper, as tending to show that the borrowing of money was within the scope of the ordinary and customary business of the defendants.</p> <p>2. Same—a paper given to a third party containing the signatures of those authorized to bind the defendant bank—as evidence of their authority. In the same suit it was held, a paper, directed to another and distant bank, giving the signatures of persons authorized to sign for the defendants, one of which was in the hand-writing of the cashier and another that of one of the defendants, was proper evidence as an admission of the defendant signing the same, of the cashier’s authority to bind the defendants by the execution of a note in their firm name. And the fact that the paj^ee of the note did not act on the faith of such paper, though detracting from its weight, did not render it irrelevant and improper.</p> <p>3. Same—as to prior fraudulent acts of cashier with others. In a suit upon such a note, proof of other fraudulent drafts drawn by the cashier upon other banks is not admissible, without any attempt to show knowledge of such drafts by the payee before making the loan to the cashier.</p> <p>4. Same—giving of notes belonging to the bank as collateral for the cashier’s loan, whether notice of cashier’s want of authority in the particular transaction. The giving as collateral security, by a cashier of a private bank, notes of other persons, of over $5000, of his bank, to secure a note of that amount given by him in the name of his principals, with authority, on maturity of the latter note, to sell the collaterals at public or private sale, with or without notice, and apply the proceeds to the payment of the note given, is not of such a nature as to afford notice to the party making the loan and taking the notes, of the cashier’s want of authority to execute the note for the bank, or of fraud in giving it.</p> <p>5. Same—as to general operations of the bank, apd the cashier’s connection with them, as showing his authority—an instruction on that question. In a suit by A against 0 & D, private bankers, upon a note given by the cashier of the bank in the firm name of the defendants, in which the cashier’s authority was put in issue, the court instructed the jury, that if they believed, from the evidence, that the defendants were bankers at W., and that the person making the note was their cashier, and intrusted by" them with the general management of their bank and the power to carry on all their general banking operations, and that it was one of the usual operations of a bank at W. and its vicinity to borrow money on time and execute a note therefor, and that such person, while acting as cashier and manager for the defendants, borrowed in their name, of the plaintiff, $5000, and thereupon executed and delivered to the plaintiff the note sued on, they should find for the plaintiff: Held, that the instruction was properly given,, and that it was not faulty in not defining the meaning of “general manager,” or what constituted general management, or in ignoring the question of notice of the agent’s want of authority, when there was no sufficient evidence of such notice.</p> <p>6. Same—holding out agent as having authority to act. On an issue as to an agent’s authority to borrow money, and give a note therefor, in the name of his principal, the court modified an instruction of defendant, that when an agent acts beyond his authority the principal is not bound, unless he had held out to the party dealt with, the agent as having authority to do the act, by adding after the words “dealt with,” and before the words “the agent, ” the words, “or to the public generally:” Held, that there was no error in the modification.</p> <p>7. General agent—what constihltes. Power to act generally in a particular business, or a particular course of trade in a business, however limited, constitutes a general agency, if the agent is so held out to the world, however restricted his private instructions may be.</p> <p>8. Action—as to principal debt—effect of being secured by collaterals. The fact that payment of a promissory note is secured by collaterals, does not affect the right of recovery in an action on the note.</p> <p>9. Instruction—singling out a particular fact. In a suit upon a note given by an agent, the court was asked to instruct the jury that the fact that defendants authorized the agent to sign their firm name to notes, to a certain firm named, or to others, did not of itself authorize him to sign their name to the note sued on,—which was refused: Held, that the instruction was bad in singling out a particular fact, and telling the jury that such, alone, would not warrant a recovery.</p> <p>10. Error—when obviated by the answer to the question ruled out. The refusal of a proper question can not be assigned as error when the witness, notwithstanding the ruling of the court, substantially answers the same.</p> <p>11. Error will not always reverse—refusal of instruction. The' refusal of a proper instruction in respect to certain evidence will not be such material error as to require a reversal, when, from all the evidence, the finding must have been the same had it been given.</p>

<p>Appeal from the Circuit Court of Brown county; the Hon. Asa C. Matthews, Judge, presiding.</p>

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

This was a petition in this court for a writ of mandamus, against the judge of the probate court of Cook county. This is a petition for a mandamus, to the judge of the probate court of Cook county. An answer has been filed to the petition, to which the relatrix has interposed a demurrer.

<p>1. Besotting trust—when it arises—and in what proportion. Whera a party receives money of another, to be invested in the purchase of land, and pays out the same, with other money of his own, in a purchase, taking a deed in his own name, he will hold the land so acquired in trust for the person whose money he has so used, in the proportion it bears to the entire consideration paid.</p> <p>2. Laches—from what time to be computed—as against the establishment of a resulting trust. A party who takes a conveyance of land in his ■own name, partly paid for with the money of another placed in his hands, can. not set up as a defence to a bill to enforce a resulting trust, the laches •or delay of the complainant for the time he has admitted and recognized his equitable rights. Such defence will avail him only from the time he sets up •an adverse claim, and denies the complainant’s rights.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.</p>

<p>1. Special assessments for improvement of street—necessity for an ordinance—and requisites thereof. A valid ordinance is essential to proceedings by special assessment for the improvement of a street by a city. If the ordinance is invalid, a judgment confirming an assessment on property is not authorized.</p> <p>2. An ordinance for the improvement of a public street, the cost of which is to be assessed, in whole or in part, upon abutting property, must specify the nature, character, locality and description of the proposed improvement.</p> <p>3. An ordinance for paving a street partly by special assessment and the residue by general taxation, required the pavement to be what is known as the “Bloomington brick pavement,” and the foundation thereof to be laid of cinders, sand, gravel, or other materials equally suitable, at least six inches deep, etc. The estimate of its cost, approved by the city council, showed that cinders were to be used. It was held, the ordinance was not obnoxious to the objection of uncertainty as to the materials to be used for the brick to rest upon. In such case the words, “or other materials,” etc., may be treated as surplusage.</p> <p>4. An ordinance for the paving of a street is not void for uncertainty, because it requires the brick pavement to be laid upon a foundation of sand, gravel or cinders.</p> <p>5. Nor is such an ordinance rendered invalid by a provision requiring all the work done and materials used to be subject to the approval of the city engineer, and in accordan.ee with the plans and specifications to be furnished by the city council. Such provision does not give him the power to determine the kind of materials to be used, but only the right to see that the materials required are used, and the work done as directed by the ordinance.</p> <p>6. Municipal indebtedness—constitutional limitation—as affecting power to improve streets, etc. The fact that a city has already exhausted its constitutional power to incur a debt, can not be shown to defeat a proceeding by it to improve a street by special assessment in part, and partly by general taxation. That question can not arise until the city seeks to borrow money or incur an indebtedness in that regard.</p>

<p>1. Arbitration and award—attempt by one of the parties to improperly influence an arbitrator—ground for setting aside the award. It is sufficient to authorize a court of equity to enjoin a suit at law upon an award, and set aside the award, that one of the parties in interest made a statement to one of the arbitrators, in the absence of the adverse party, designed and having a tendency to improperly affect his decision as an arbitrator, without showing that such statement, in fact, produced any harmful result to such other party.</p> <p>2. A party to an arbitration who by overt acts attempts to corrupt or improperly influence the arbitrators, or any one of them, to make an award in his favor, will not be heard to say that he was impotent to accomplish what he sought, and to raise an issue.thereupon.</p> <p>3. Sworn answer in chancery—effect of testimony of the defendants in its support, as to the weight of evidence to overcome the answer. Where a defendant in a suit in equity answers under oath, as required, denying the allegations of the bill, his testimony as a witness in his own behalf can not add any weight to his sworn answer, as evidence, and it may be overcome by the testimony of two witnesses, or what is equivalent thereto.</p> <p>4. Where two defendants to a bill in chancery requiring sworn answers, each answers, and also testifies as to his own conduct and declarations, alone, and the proof shows that only one is a party in interest, neither the answer nor the testimony of the one will strengthen or aid the answer or evidence of the other, and the testimony of two witnesses, or what is equivalent thereto, will overcome the answer.</p>

John H. Williams, Judge, presiding. This was an action of assumpsit, brought by Moses Krohn and Leopold Feiss, partners, under the firm name of Krohn, Feiss & Co., against John Meyer and Moses Bachrach, together with Solomon Hoffheimer and Eva Hoffheimer, as partners, doing business at Galesburg, Illinois, under the firm-name of Hoffheimer & Co. The declaration contains six special counts on as many bills of exchange accepted by Hoffheimer & Co., and also the common counts.

Writ of Error to the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding. This was a bill for divorce, brought by the appellee, against the appellant, alleging extreme and repeated cruelty, and habitual drunkenness, for a period of over two years.

<p>1. Redemption prom tax sake—under the statute—wpon what terms —and within what time. The statute, except as to persons under disability, makes no provision for redemption after the expiration of two years from a sale of land for taxes. Where the redemption is made after that time by one under a disability, he is required to pay ten per cent on double the amount of the sale from and after the expiration of such two years.</p> <p>2. Same—in equity. Where a court of equity allows a redemption from a sale of land for taxes, on the ground that the amount of the sale includes illegal taxes, the party redeeming will be required to pay the redemption money allowed by the statute on the amount of the legal taxes and costs, and six per cent upon the redemption money from the expiration of the time for redemption fixed by the statute, and all taxes paid by the purchaser after the two years allowed for redemption, with six per cent thereon.</p> <p>3. Judgment roe taxes—how far conclusive as to legality of taxes. A judgment of the county court against lands for taxes, where there is no personal appearance of the owner, is not conclusive as to the legality of all the taxes included in it, but is open to attack collaterally.</p>

George W. Stipp, Judge, presiding. This was a hill, filed by the appellee, to enjoin the appellants from opening what was claimed a newly laid out highway, they being commissioners of highways. A- temporary injunction was granted, but on final hearing it was dissolved and the bill dismissed. Upon the appeal of the complainant in the bill, the decree of the circuit court was reversed, and the cause remanded, with directions to enter a decree making the injunction perpetual.

Geoege Gabdneb, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District, reversing a decree of the Superior Court of Cook county.

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Cass county; the Hon. Cyrus Eplee, Judge, presiding.

<p>1. Limitation—under act of 1839, as to vacant and unoccupied land— entry under color of title—evidence—presumption. Where a defendant in ejectment shows the payment of all taxes on the land, under color of title, for seven consecutive years while the land was vacant and unoccupied, and he is found or shown to be in possession when the action was brought, it will be presumed that his possession was under his color of title, especially when that fact was not disputed on the trial.</p> <p>2. And where a party, as a condition to his being let in as a defendant in an action of ejectment brought in 1866, was required to admit by his plea that he was in possession of the premises when the suit was brought, and it was admitted that the land was vacant until the year 1862, when the plaintiff, without objection, read in evidence the return on the declaration, which showed that the defendant, another party, was then in possession, and judgment was for the defendant, it was held, that the judgment should not be reversed on the ground of the slightness of the evidence showing the defendant’s actual possession under color of title before suit brought.</p>

<p>1. Elections—town elections—restriction as to number of precincts in a town. While under the general Election law, for other purposes, there may be several precincts in a township, yet for the purpose of a town election; merely, there can be but one precinct, which is co-extensive with the boundary of the town.</p> <p>2. Same—of several polling places for town purposes. While for annual town elections the whole town constitutes but one precinct, yet under certain circumstances there may be several polls or voting places where votes may be lawfully received in the same town. But they must all be regarded as constituting one precinct, and each polling place is open to all voters of the town alike, subject, only, to the limitation that no one shall vote at more than one place.</p> <p>3. Same—by whom the polling places may be established—prerequisites to the establishing of more than one in the same town—as to designating the places. The township authorities have no power to establish their polling places where more than one is required. That can only be done by the county board, and it can not establish more than one, except where it appears from the last preceding general election the number of voters in the township exceeded three hundred, and their order creating an additional polling place must designate the place where it is to be held.</p> <p>4. In this case a petition was presented to the county board, setting forth that there was but one election precinct in a town, and that a large number of the voters of the town resided and worked south and east of a certain river, who were not able to bear the expense of transportation across the river to the then existing precinct, and that the public interest required there should be two precincts in the town, and prayed for a new one to be established for all voters south and east of the river. This petition ivas referred to a committee, who reported recommending that the prayer thereof be granted, and the report, on motion, was adopted. No place for holding the polls was designated and no further action taken, and it did not appear that over three hundred votes had been cast in the town at the preceding general election. The town clerk, in giving notice of the succeeding annual town election, named a school house in district No. 9, as the place for holding the election in the territory south and east of the river: Held, that the school house named was not designated by the county board as a polling place, and that votes cast at such place could not be counted, they being cast at a place unauthorized by laiv.</p> <p>5. Same—establishing a new precinct—whether the precinct thereby becomes a town polling place. The county board has ample authority to make additional precincts in a town, for general election purposes, whenever it thinks the public convenience so demands, without regard to the number of the voters in the town. But the establishment of such new precinct will not make it an additional poll for receiving votes at town meetings unless the county board shall so designate it, and fix the place at which the polls shall be held.</p> <p>6. Same—canvassing votes—as to town elections, and elections under the general Election law. In the canvassing and returning of votes under the general Election law, each precinct is wholly independent of the others, and makes its own returns directly to the county clerk, while, in the case of mere polling places for town elections, after the close of the polls, the ballot boxes of the subordinate polls are taken to the chief polling place, where the town clerk officiates, and they are all then opened and canvassed, the same as if the ballots had all been deposited in one box.</p>

<p>1. Vendob and ptjbchaseb—fight of the latter to buy in, outstanding superior title. The purchaser of land, while in possession uhder his contract of purchase, is under no obligation to maintain his vendor’s title, and the law does not forbid him from buying an outstanding title to the premises, and asserting it against his vendor.</p> <p>2. So where the purchaser entered into possession under an agreement that the purchase money was not to be paid unless the vendor should, within three years, make him a warranty deed conveying a perfect title, and in case of failure to make him such conveyance the purchaser was to remain in possession of the premises for the period of three years, and pay a reasonable rent for the time he could hold peaceable possession, and before the expiration of the three years he acquired the title from other parties, it was held, that there was nothing in the relation of the parties, under the original contract or otherwise, that prevented the purchaser from yielding to the superior title and purchasing the same, and in that way secure his peace.</p> <p>3. Landdobd and tenant—whether the relation exists — as between vendor and purchaser. In such case the relation of landlord and tenant did not exist between the parties after the expiration of the three years. The purchaser was not bound to pay rent after that time, he having in the meantime acquired title to the premises from another source independent of his vendor, and the “reasonable rent" the purchaser was to pay on failure of his vendor to make a deed, was intended as compensation for the use of the land for such period as he might peaceably hold possession during the three years.</p> <p>4. Trust—sufficiency of evidence to show land was bought for another. Where a person, after taking possession of land under a contract of purchase, by which he is not required to pay the contract price unless his vendor shall acquire the title to the same within .three years, purchases from others the superior title, under which he claims the property as his own, in order to show that his subsequent purchase of, the title was for his original vendor under a verbal contract to that effect, it is incumbent on the party claiming the trust to establish the existence of such verbal contract by a clear preponderance of evidence.</p> <p>5. So after the lapse of many years, and after the death of the party so purchasing, the testimony to establish a verbal contract that the purchase was made for another, should be of the most satisfactory character, and evidence of the admissions and statements of the party, in casual conversations, shown after his death, are too unreliable to justify a decree divesting the title of his heirs long after his death.</p> <p>6. Laches—as against a claim of a trust in land. Where a person purchased in the outstanding titles to land in his own name, presumably for his own use, and for several years after and until his death held the land under such title as his own, and his widow and heir held the same for thirteen years after his death, and expended considerable sums in improvements upon the property before bill was filed by another claiming that the purchase was made for his benefit, it was held, that the laches was such as to prevent equitable relief.</p>

Sidney Smith, Judge, presiding. The declaration in this suit is in case, to which the general issue was pleaded. The action was brought by William Pigott, against Ernest W. Ladd, to recover for deceit and fraud practieed by defendant in the sale and exchange of property. On the trial in the Superior Court plaintiff recovered a judgment for $1250, against the defendant, which judgment was after-wards affirmed in the Appellate Court for the First District.

<p>1. New trial—absence of counsel—negligence. On account of the sickness of defendant’s counsel, the cause in which he was employed was set at the foot of the September calendar by consent, and after the death of the counsel so employed, the defendant employed other counsel in February following, who, supposing the cause was placed at the foot of the February calendar, in which case it would not be called for trial at that term, so informed the defendant, and directed him to wait for notice, and while such attorney was absent trying a cause in another county, the case was tried, and a verdict rendered against the defendant, and the court refused to set aside the verdict and allow a new trial: Held, that as the defendant was chargeable with some negligence, it could not be said the court abused its discretion in refusing to open the case and allow a new trial.</p> <p>2. Practice in the Superior Court of Cook county—hearing before different judges in the same case. A'cause being called for trial in the Superior Court of Cook county, the presiding judge transferred the same into the branch of that court held by another judge, where it was tried, and a motion made by the defendant to set aside the verdict and allow him to defend. The judge of the branch court refused to consider the motion in respect to the regularity of the call in the other court and of the transfer, and directed the parties to appear before the other judge in respect to that matter, who overruled the motion.in respect to the matters in his court, and on a further hearing the judge to whom the cause had been transferred, overruled the motion on the merits: Held, that there was no error in each judge passing upon so much of the proceeding as took place before him, and in the final overruling of the motion by the judge who tried the case.</p> <p>3. Practice—of a second trial while a former verdict is still standing. In 1881 a verdict was rendered in a cause in favor of the plaintiff, and afterward, in 1884, without its being set aside, another jury was called which rendered a verdict for the same amount in favor of the plaintiff, upon which judgment was rendered: Held, that as a mere verdict could do the defendant no harm, and as the court would render but one judgment, the irregularity worked no injury.</p> <p>4. Ebrob will not always reverse—as, where defence is availing under other issues. Where all matters set up in special pleas are available in defence under the general issue, an error in sustaining a demurrer to the special pleas will not require a reversal of the judgment.</p>

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