Volume 115 — Illinois Reports

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.</p>

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

Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.

<p>Appeal from the County Court of Peoria county; the Hon. L. W. James, Judge, presiding.</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. H. M. Shepard, Judge, presiding. The judgment, the payment of which was sought to be enforced by the creditor’s hill in this case, was obtained under the following circumstances: John and Johanna Anderson, on the 3d day of October, 1879, commenced a suit by attachment in the circuit court of Cook county, against Mary H. Hawhe.

Writ of Error to the Circuit Court of Warren county; the Hon. George W. Pleasants, Judge, presiding.

Writ oe Error to the Circuit Court of Sangamon county; the Hon. William L. Gross, Judge, presiding. This was a bill in equity, by the receivers of the Wabash, St. Louis and Pacific Railway Company, to enjoin the collection of a tax levied on a valuation of certain personal property of that company.

<p>1. Fencing eaiijBoads—building fence by land owner after notice to the company—who shall be liable to the owner. Where a railway company neglects or refuses to build a fence along its right of way, so as to prevent stock from getting upon its track, after notice by the owner of adjoining land, the owner or occupant of such adjoining land may build the fence, and bring his action to recover double the value thereof, against either the corporation owning the road, or any other party actually occupying or using such railroad, at his election.</p> <p>2. Same—effect of a receivership upon liability of the company. In an action against a railway company to recover double the value of a fence built by the owner or occupant of premises adjoining its right of way, after neglect or refusal of the company to build the same on notice, it is no defence, so far as the corporation is concerned, that its property, etc., is in the hands of a receiver, or is used by another party.</p> <p>3. Same—as a police regulation. The statute requiring a railway company within a certain time to fence its right of way, is a police regulation of the State, and it is not within the jurisdiction of any court, either State or Federal, to arrest its operation.</p> <p>4. Beceivebship—of corporation—continued existence and exercise of corporate franchises. The appointment of a receiver for a corporation gives the receiver only the temporary management of its affairs, under the direction of the court. The corporation still exists, and may nevertheless exercise any of its franchises, so it does not interfere with the rightful management pf its affairs by the receiver, so far as his duties are defined by the court appointing him.</p> <p>5. Injunction—extent of its restraining effect. On the appointment of a receiver for a railroad company, the court, by injunction, prohibited the company from interfering with the property, or disturbing the possession of the receiver; but this would not operate to prevent the company building a fence along its right of way, as required by the statute, and so would afford no defence to an action by an adjacent land owner to recover twice the value of a fence which he had built after due notice to the company.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.

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

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

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

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

Franklin Blades, Judge, presiding. A bill in chancery, in the name of the town of Kankakee as complainant, was filed in the office of the clerk of the circuit court of Kankakee county, against the Kankakee and Indiana Railroad Company and others.

<p>1. Judgment by confession—in vacation—proof of execution of power of attorney. A judgment by confession entered by the clerk of the court in vacation, without there being filed at the time any proof of the execution of the power of attorney, will be set aside on motion of the defendant, and the execution issued thereon quashed. Qucere, if such judgment is not yoid.</p> <p>2. Same—when allowed to stand until trial on merits. Where a judgment by confession, under a power of attorney, is sought to be vacated, or opened, on the ground of mere irregularities in the proceeding, as a general rule it should not be set aside absolutely for that reason, but should be allowed to stand as a security until the case can be heard on the merits,</p> <p>3. Same —papers constituting part of record. In the case of judgment by confession under a power of attorney in vacation, where wholly ex parte, the papers filed constitute a part of the record without being preserved in a bill of exceptions. In such case the record should show, unequivocally, that the power of attorney on file was executed by the defendant.</p>

<p>1. Eminent domain—measure of compensation for land taken—as to time of fixing value. In a proceeding to condemn land for public use, the compensation to be paid must be fixed by the value of the property at the date of the filing of the petition.</p> <p>2. Same—mode of ascertaining value—and herein, as to the special use to which property is adapted or applied. Where land sought to be taken under the Eminent Domain act has a market value, the correct measure of damages is its fair cash market value. But if the lands are devoted to some particular use, and in consequence of such use have an intrinsic value, the owner, in order to get just compensation, is entitled to receive whatever they are worth for the use or purpose to which they may be devoted.</p> <p>3. In order to determine the fair cash value of lands taken for public use, it is proper for the jury to consider the purposes for which they are used,— whether they are adapted to that particular use, whether they are profitable and valuable for that use; and in so far as the particular use to which they were or had been appropriated added to their market value, this may be considered by the jury.</p> <p>4. If the lands sought to be condemned are valuable as located, bordering on or near a river, for a saw-mill, planing-mill, or factory of any description, or for any other purpose, testimony tending to prove such -purpose is proper for the consideration of the jury in passing upon the fair market value of the property taken or damaged.</p> <p>5. Where the value of a mill on property sought to be condemned for railroad purposes is involved, ■ evidence that the mill was of an old pattern that had gone out of use, and on that account was less valuable, is proper on the assessment of the damages and compensation to be awarded the owner.</p> <p>6. Same—measure of damages as to land not taken, but damaged. Where other land of a party not sought to be condemned is damaged by the right of way, the measure of damages as to it is the difference between its value before and after the construction of the road.</p> <p>7. Instruction—directing the attention of the jury to the evidence and facts on one side of the case only. On the assessment of damages for property sought to be condemned for railroad purposes, it.appeared there was a mill on one of the lots sought to be taken, and the condition and value of the mill was in dispute, and much evidence on these p.oints was given on each side. The court, at the request of the petitioner, instructed the jury that they should only consider what the mill on the property was then worth, and tolc\ them that in estimating its value they should consider the age and present condition, as shown by the evidence and their own examination of the same; the condition and value of the roof, siding, floors and timbers, as to decay and rottenness; the old-fashioned and decayed condition of the machinery; the time it had been used, and its want of adaptability to manufacturing lumber in competition with modern mills, and every other condition of the mill and its machinery which the evidence and observation of the jury showed to decrease the present value thereof, and after considering all these things, give such compensation, etc.: Held, that the instruction was erroneous in directing the attention of the jury to every element detracting from the value of the mill, and in omitting everything tending to show the mill was valuable, and was misleading.</p>

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

Lawrence W. James, Judge, presiding. Day Bros. & Co. were merchants at Peoria, Illinois, and as such were assessed for taxes for the year 1884, in the sum of $1827. In September of that year they sold their stock of goods and other tangible personal property to Charles B. Day.

Wbit of Ebbob to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogebs, Judge, presiding.

<p>1. Practice—directing what the verdict shall be, on failure of proof by the plaintiff. If, when the plaintiff in a cause closes his case, there is no evidence tending to prove a material fact essential to a recovery, the court should, on request, instruct the jury that upon the evidence before them it is their duty to find for the defendant.</p> <p>2. So in an action by the personal representative of a person killed by passing cars of a railway company, if the proof shows the killing, only, and there is no evidence tending to show negligence on the part of the defendant or its servants, the court should, on request of defendant, instruct the jury to find for the defendant; but if there is any evidence from which such negligence may be inferred, no matter by which party introduced, the court should not take the case from the jury by instruction.</p> <p>3. Negligence—as to proof of use of due care. A person was killed in the night time by cars in motion. There was no eye-witness of the injury. The proof showed that about midnight the deceased left a store a few blocks distant from the place of the accident, and started on the sidewalk in the direction of his home, and was then duly sober, and that the place where he was killed was on his direct route home, and the accident must have happened very soon after he was last seen that night: Held, in an action to recover for his death, that the circumstances were such as might justify an inference whether or not the deceased used due care, and that direct proof on this point was not necessary.</p> <p>4. Allegations and proofs—in action to recover for death of a person, by next of kin, etc.—proof as to loss of support, under the pleadings. In an action by the administratrix of a deceased person to recover damages for negligently causing his death, the declaration averred that by the death of the deceased, (plaintiff’s husband,) the widow and minor children named were deprived of their support, and said minors of their means of education, to the damage, etc.: Held, that such averment was sufficient to admit evidence tending to show the ability of the deceased to earn money.</p>

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

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

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

<p>1. Agency—proof of agency—ratification. An agency can not be proven by the mere declarations of a party claiming to be an agent, where the fact of agency is in issue, and they are not made in the hearing of the principal, and the latter never has approved of them.</p> <p>2. An implied ratification of the acts and declarations of one assuming to act as the agent of another, must be based upon a full knowledge of all the facts.</p> <p>3. Tenancy at stjfeebance—when it exists. Where a person buys a lot of ground, and permits another to occupy the same under no particular agreement as to time, the latter will be a tenant at sufferance, even though he may put improvements upon the premises.</p> <p>4. Same—forfeiture. A conveyance of premises by one occupying them as a tenant at sufferance of the owner, will forfeit the tenancy and terminate his interest.'</p> <p>5. Mechanic’s eien—in respect to a building erected on land by one other than the owner. If labor and materials are furnished to a party in possession of a lot as a mere tenant at sufferance, with which to enable the occupant to build a house thereon, with knowledge that he is not the owner, and the material and labor and advances are charged-to such occupant alone, the owner of the property not directing or knowing of the improvement until after its completion, the latter will not be liable for the price, nor will his property be subject to any lien therefor.</p> <p>6. The fact that a person purchases a lot as the agent of another, does not give him implied power to contract in behalf of the latter for the erection of a building thereon; and if he is furnished with funds as agent, and instructed to build a house with such funds, he will have no implied power to build on credit, and his mere possession of the premises will confer no power on him to bind anybody’s interest but his own.</p>

<p>1. Drainage—special assessments, when due. Under section 27 of the original act relating to drainage, (Rev. Stat. 1874,) upon confirmation of the assessment for benefits by the county court the whole assessment becomes due and payable immediately, unless ordered to be paid in installments.</p> <p>2. Same—return of delinquent list—when to be made—effect on validity-of assessment when return not made at proper time. By section 178 of the Revenue act, return of delinquent or unpaid assessments is required to be made to the county collector on or before the tenth day of March next after the same shall have become payable,—not on the tenth day of March next after the day named in the notice required by section 33 of the Drainage act.</p> <p>3. In this case the drainage assessment was confirmed by the court and jury on March 9, 1885, and became payable on that day. On the next day the commissioners filed with the county collector the delinquent list, and on March 14, 1885, they published the notice required by section 27 of the Drainage act, requiring payment to them of such assessments on or before June 6, 18S5. On May 18, 1883, the county collector applied for judgment against the lands, and judgment was rendered on June 8, 1885: Held, that while it was irregular to make the return to the county collector before the notice of the assessment and before the day limited for payment in the notice, and ask for and obtain judgment for non-payment on the day before that named in the notice, yet, being an error or irregularity not affecting the substantial justice of the assessment, it was cured by section 191 of the Revenue act.</p> <p>4. In such case the substantial matter as affecting the tax-payer was, that he should have three weeks’ notice, by publication, of the assessment, so as to afford him an opportunity to pay the same before the sale of his land. And the mere time of returning the delinquent list to the collector, whether before or after the notice was published, affects only the formality of the proceeding, and not any substantial interest of the land owner.</p>

<p>Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p> <p>Bills were filed in these cases to enjoin the laying of railway tracks in Illinois street, in the city of Chicago. Answers were filed, not under oath, and the causes were referred to the master in chancery to take and report the evidence. The master reported the evidence, and the court thereupon enjoined the defendants, as prayed in the bills. Appeals were prosecuted from these decrees to the Appellate Court for the First District. That court affirmed the decrees, and the records are brought to this court on error.</p> <p>The substantial facts are: On the 9th day of June, 1879, the city'council of Chicago passed an ordinance by a majority of all the aldermen elected, authorizing the Chicago Dock and Canal Company to lay railway tracks on Illinois street, east of St. Clair street, and on the 15th day of November, 1880, the city council passed another ordinance, by the same vote, authorizing George Bullen & Co. to lay down railway tracks on Illinois street, from the east line of St. Clair street to Pine street, a distance of one block. The Chicago Dock and Canal Company, prior to the passage of either of these ordinances, had railway tracks laid on Illinois street, connecting with the tracks of the Chicago and Northwestern Railway Company, in North Water street, leaving the distance of about one block in Illinois street, east of St. Clair street, unoccupied by tracks. If the tracks were laid under these two ordinances, it would make a continuous line from Pine street, along Illinois street, to a point of connection with the tracks already laid, and enable persons to use such new tracks, and run cars on to the main track of the Northwestern Railway Company, in North Water street. The Chicago and Northwestern Railway Company was authorized, in writing, by the Chicago Dock and Canal Company and George Bullen & Co., to construct the tracks authorized by the ordinances, and was about to lay the same. Garrity, Dreyer and Heaney were the owners of lots on the north side of Illinois street, east of St. Clair. The Higginses were owners of lots on the north side of Illinois street, between St. Clair and Pine, and their lots, therefore, abutted upon the parts of Illinois street sought to, be used for railway tracks.</p> <p>The Chicago Dock and Canal Company was a corporation created by act of the legislature. (Private Laws 1857, page 499.) The company was authorized to construct on their own lands and on the shore of Lake Michigan, in the navigable waters, wharves, docks, piers,-etc., for the safety and accommodation of boats and vessels, and the advantageous use of their own property, wharves and docks. For that purpose they had authority to open canals, slips, etc., for the entrance of boats and vessels from the lake, and from the Chicago harbor and river. The company had power to buy and lease lands, and also to condemn under the Eminent Domain act. The corporation was empowered to vacate streets which passed through their own land, and to appropriate for their canals and other purposes so much of the east ends of the several streets passing through Kinzie’s addition, between the lake shore and St. Clair street. Neither the Chicago and Northwestern Railway Company nor the Chicago Dock and Canal Company claims any rights in the premises, save and except under and by virtue of the ordinance in question. George Bullen & Co. were the owners of a malt house and a warehouse of class “C, ” at the corner of Illinois and Pine streets. The ordinance for the use of Illinois street, between St. Clair and Pine, was intended to give access by rail and car, from the malt and warehouse, to the tracks of the Northwestern Railway Company. The city was the owner of the fee of Illinois street, over which it was proposed to lay the tracks. Garrity, Dreyer and Heaney filed a bill against the Chicago Dock and Canal Company, the Northwestern Railway Company, Bullen, and Young, to restrain them from laying tracks in Illinois street east of St. Clair, and from making any connection with railroad tracks west of St. Clair, on Illinois street. George W. Higgins and Thomas J. Higgins at the same time filed a bill against Bullen and Young, to prevent them from laying tracks on Illinois street east of St. Clair, and in front of the warehouse of George Bullen & Co.</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. Kirk Hawes, Judge, presiding.</p>

<p>1. Trespass quare clausum fregit—when the action will lie—and herein, of the right of the owner to make entry. The action of trespass quare clausum fregit never lies except for an injury to the possession of the plaintiff.</p> <p>2. Where the owner of land, having the right to the immediate possession, makes an entry thereon in a quiet and peaceable manner, or without actual force or violence, he is not liable in trespass to one who has neither the right of property nor a right to the possession. In such case the plea of liberum tenementum presents a complete answer to the action.</p> <p>3. The first section of the Forcible Entry and Detainer act, “that no person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter by force, but in a peaceable manner, ” is a recognition of the common law remedy given the paramount owner entitled to possession, to redress himself without legal process, but limits his entry to a peaceable one. The word “force” is to be construed actual force.</p> <p>4. Same—liberum tenementum.—whether it is a proper plea, and of its nature and effect. The plea of liberum tenementum is a proper plea in an action of trespass quare clausum fregit, and it is error to instruct the jury to disregard the same when pleaded. °</p> <p>5. The plea, as one of confession and avoidance, in legal effect admits such a possession in the plaintiff as would enable him to maintain the action against a wrongdoer, and asserts a freehold in the defendant, with a right to immediate possession as against the plaintiff.</p> <p>6. Same—replication to such a plea. To a plea in an action of trespass quare clausum fregit, that the locus in quo was the soil and freehold of the defendant, and that he and his servants peaceably entered the same for the purpose of building a partition wall, etc., the plaintiff may reply that at the time of the alleged trespass he was in the lawful possession of the premises as a tenant of the defendant.</p> <p>7. Practice—erroneous rulings upon the pleadings—power and duty of the trial court to correct them. The court has the power, and it is its duty, at any time before trial, when becoming satisfied that an erroneous ruling has been made with respect to the sufficiency of a .pleading or other similar matter, to promptly set aside the order and correct the error.</p> <p>8. Where the court, after overruling a demurrer to a plea and the filing of replication thereto, becomes satisfied that the plea was bad, as presenting no defence, it should withdraw the case, at least temporarily, from the jury, set aside the order overruling the demurrer, and enter one sustaining the demurrer. The defendant should then be permitted to stand by the plea, or plead over, as advised. This is much the same as awarding a repleader, and the fact that the order was made by another judge is a matter of no consequence.</p>

<p>1. Negligence—parents permitting child to be upon street—whether under proper protection—applicability of an instruction. In an action by the personal representative of a deceased child to recover damages for causing its death by negligently leaving water pipes in a public street in an unsafe condition, so that one of them rolled over the child and killed it, the defendant asked the court to instruct the jury that if they believed the parents of the child, or either of them, negligently and carelessly allowed a child of the age of three years and five months to go unprotected upon the public street, and without which negligence on their part the injury would not have happened, then they were guilty of such negligence as to defeat a recovery. The evidence showed the child was accompanied by a brother some four years older: Held, as applied to the facts, the instruction was properly refused.</p> <p>2. Same—measure of recovery, for causing the death of a child. In an action to recover damages arising from the death of a child of the age of three years and five months, caused by negligence of the defendant, the latter asked the court to instruct the jury that if they believed, from the evidence, that the father and mother of the child were not dependent on her for support, in whole or in part, they could find only nominal damages, which was refused: Held, properly refused. The law implies a pecuniary loss to a father from the death of his minor child for loss of its services, and he may recover compensation under the statute.</p>

M. F. Tuley, Judge, presiding. Charles C. P. Holden. and Thomas B. Armstrong, being the owners of adjoining lots in the city of Chicago, on the third day of July, 1872, executed a party-wall agreement, under their respective hands and seals, as follows: “This agreement, made this third (3d) day of July, A. D. 1872, between Charles C. P. Holden and Thomas B. Armstrong, of the city of Chicago, in Cook county, in the State of Illinois, witnesseth: That whereas, said Holden is…

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

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

Sidney Smith, Judge, presiding. This is assumpsit, by Patrick J. Sexton, against the city of Chicago, brought in the Superior Court of Cook county, for a balance claimed to be due for work done and materials furnished by him, and used and appropriated by the city in the construction of the iron work for the new city hall. The declaration contains the common counts only. The city pleaded non-assumpsit.

<p>1. Special assessments—exemption therefrom—power of the legislature in that regard, under constitution of 1848. The provision in section 3, article 9, of the constitution of 1848, that “the property of the State and counties, both real and personal, and such other property as the General Assembly may deem necessary for school, religious and charitable purposes, may be exempt from taxation, ” is a limitation upon the powers of the legislature to grant exemptions from taxation except as to those specifically authorized by it. That clause prohibits the legislature from granting any exemption to religious or charitable corporations, except from general taxation, and a clause in a charter exempting the property of the corporation from special assessments for local improvements is unconstitutional and void.</p> <p>2. Under the constitution of 1848, the principles of equality and uniformity enjoined by it apply to special assessments for local improvements, the same as to general taxation; and acts of the legislature, and ordinances of cities acting by its authority, attempting to create exemptions not specially authorized by that instrument, are void.</p> <p>3. Same—Baptist Theological Union—constitutionality of exemption in its favor. Section 7 of the charter of the Baptist Theological Union, granted in 1865, providing that “the property, real and personal, belonging to said corporation, at any and all times hereafter, shall be free and exempt from all taxation and assessments, special or general, for any and all purposes whatever, ” is held unconstitutional and void under the constitution of 1848, in so far as it attempts to exempt the property of that corporation from assessment of benefits for local improvements.</p>

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

<p>1. Fraudulent conveyance—facts in the particular case, as showing a fraudulent purpose. In this case the court state and discuss facts and circumstances in evidence, from which it holds that certain conveyances, and an assignment of a debtor’s interest in lands, and a sale of goods, were fraudulent as to creditors, reversing the decree of the trial court.</p> <p>2. Same—removal of prior incumbrance by fraudulent grantee—right of subrogation. A debtor in failing circumstances fraudulently conveyed his interest in lands, upon which were bona ficle incumbrances and liens, to his sons-in-law, who were cognizant of the intent to defraud creditors, some of whom, after such conveyances, having satisfied and discharged some of the incumbrances, in whole or in part: Held, that the court, in setting the conveyances aside, as having been made in fraud of creditors, should refer the cause to the master to state an account of the rents and profits, and ascertain what, if any, part of the incumbrances had been discharged since the making of the fraudulent transfer, and also the date and amount of all payments for such purpose, and the name or names of the persons making such payments, and report the same, and in the final decree subrogate the parties so paying to the rights of the parties holding such incumbrances paid.</p> <p>3. Same—rights of creditors of fraudulent assignor—declaration of forfeiture by vendor. A party holding a contract for the sale and conveyance of land, providing for certain payments in the future, fraudulently assigned the same to a son-in-law, to defraud creditors, the assignee paying nothing for the assignment. Shortly after such transfer, creditors of the assignor attached the land, when the vendor declared a forfeiture of the contract for non-payment of an installment of the purchase money, in violation of his agreement with the assignee to give further time: Held, that after the rights of the creditors had attached, the vendor could not declare a forfeiture without a reasonable notice to the attaching creditors.</p>

<p>1. Sheriff’s deed—held by assignee of certificate of purchase—prerequisites to an assertion of his rights under the deed. On bill by the holder of a sheriff’s deed, made to him as assignee of the certificate of purchase, to set aside certain deeds made by the defendant in the judgment under which the sheriff’s sale was made, as clouds upon the title, it is not essential to the relief sought, for the complainant to prove affirmatively that he paid value for the certificate of purchase assigned to him, and upon which his deed was made. Until his deed should be impeached, in some mode known to the law, it is prima facie sufficient as a basis to the relief sought by such a bill.</p> <p>2. A sheriff’s deed for land sold under execution against the owner of the land, is supported by the judgment under which the sale was made, which, in the absence of proof of fraud, is conclusive of the indebtedness of the defendant therein; and the sheriff’s return of the sale and the price paid by the creditor, is sufficient to show that the sale was for value then paid. In such case, the sheriff’s deed to an assignee will be good even though made on an assignment of the certificate of purchase -made by the assignor as a gift to the assignee.</p> <p>3. Ebeehold—whether involved—on bill to remove cloud upon title— as affecting the right of ■appeal. A bill by a holder of a sheriff’s deed for land sold under execution, against the holder of an adverse title, alleging the latter to be colorable, merely, and that although it bears date prior to the lien of the judgment under which the sheriff’s deed was made, yet that the date is false, and seeking to set such deed aside as a cloud on the complainant’s title, directly involves a question of freehold, and a writ of error lies directly from this court to the trial court, to review the decree in such case. This case is distinguished from Sawyer v. Moyer, 105 Ill. 192, and other like cases.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Charles Blanchard,' Judge, presiding.</p> <p>On the 28th of November, 1884, the State’s attorney filed in the circuit court of LaSalle county an information in the nature of a quo warranto, charging that on the 15th day of November, A. D; 1851, William H. W. Cushman, John Y. A. Hoes, Lorenzo Leland, George H. Norris, George E. Walker, William Hickling and A. H. Howland pretended to organize, and went through the forms of organizing, a joint stock company or association, under the law of the State of Illinois approved February 10, 1849, under the name of the Ottawa Hydraulic Company, specifying the business to be done by said company as “to lease, use and occupy, and to sub-let water-power, lots and land, to build mills and factories, and, generally, to carry on a manufacturing and mechanical business, ” in the city of Ottawa, in said county. And the court is further informed that said pretended shareholders never paid in any of the capital stock of said company, or, at most, not more than a merely nominal amount thereof. And the court is further informed that the statement in the articles of association filed by the pretended incorporators, that the purpose of the proposed corporation was “to build mills and factories, and to carry on a manufacturing and mechanical business, ” was false and fraudulent, and merely colorable, and for the purpose of giving said corporation the appearance of legality, and not with the bona fide intention of ever carrying on any business which it was lawful for it to carry on under the said statute; and that the said company has never built any mills or factories or carried on any manufacturing or mechanical business pursuant to said declared purpose, but that the sole object of said company or organization was to carry on the business of speculating in water-power in and about the city of Ottawa, by renting water-power at a low price or rental, and sub-letting it at a much higher rental to other parties, and dividing the profits thus accrued, which is the only business ever carried on by said pretended company from the date of its organization to the present time. And the court is further informed that one Douglas Hapeman, professing to act as president, and Lorenzo Leland, professing to act as secretary, of said pretended Ottawa Hydraulic Company, and sundry other people, are still carrying on the business of speculating in water-power, as aforesaid, under said pretended organization, and usurping the power and franchises of the State as aforesaid, ■ all of which actings and doings were fraudulent, and by reason of said fraud, both in law and in fact, the said pretended organization of the said Ottawa Hydraulic Company was wholly void and of non-effect, and the carrying on of said business of speculating in water-power and the lands adjoining thereto, and the dividing the profits which accrued from said business, and all other business carried on by said pretended Ottawa Hydraulic Company, was in the exercise of a power usurped from the People of the State of Illinois, and without any legal authority for the exercise of said usurped power, by means of which the said pretended acts of incorporation were of no effect, and the incorporation under the laws of the State did not take place, by reason of the false and insincere statement of the purposes of such incorporation. And the court is further informed that said corporation, if any such exists, has forfeited its charter and corporate existence by the prostitution of the power of the State, to the damage and prejudice of said people and against the peace and dignity of the same. Wherefore the said State’s attorney for the said people, and in the name and by the authority thereof, at the relation of the said John Dean Catón, prays the consideration of the court here in the premises, and due process at law against the said pretended organization and- the said Douglas Hapeman and Lorenzo Leland, to make them answer to the said people by what warrant they claim to hold and execute the franchises aforesaid, so usurped from the People of the State of Illinois, and that upon a final hearing hereof the said act of incorporation may be declared to have been null and void, and that the said Hapeman and Leland, and all others claiming to act under and by virtue of said organization, may be ousted of all power and authority to exercise any franchise or power under and by virtue of said pretended act of incorporation. The court sustained a demurrer to the information, and entered an order dismissing the same. From that order an appeal is prosecuted to this court.</p>

<p>1. Specific performance—of parol contract to assign interest in letters patent. Specific performance of a parol agreement for the transfer of a party’s interest in letters patent may be decreed when the rights of innocent bona fide purchasers have not intervened, and also as against a purchaser having notice that his vendor had made a verbal sale of his interest.</p> <p>2. Although it may be that a writing is necessary to pass the legal title to letters patent, yet an equitable title or interest in the same may be conferred by a parol agreement of the holder of the legal title, which, as between the parties thereto, where the rights of innocent purchasers do not arise, a court of equity will sustain and enforce. Section 4898 of the Revised Statutes of the United States has reference only to the legal title in letters patent.</p> <p>3. Notice to agent—whether notice to principal. If an agent has notice, at the time of his purchase for his principal, of the equitable rights of another, and of the claim of the latter to have previously purchased the subject matter of the sale, this will be notice to the principal.</p> <p>4. Interest—on the contract price of a sale of one partner's interest to the other. Where one partner sold his interest in the partnership for a certain sum, there being no agreement to pay interest, and it was understood that this sum was to be paid out of the moneys realized by sales of the partnership assets, and the partner selling failed to take any steps to have the firm assets converted into money or make any demand for the sum agreed to be paid him, it was .held, that the court, on bill by the purchaser for specific performance, properly refused to allow interest on the contract price.</p>

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. H. M. Shepard, Judge, presiding.

<p>Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>1. Negligence — a question of fact. In an action against a railway company to recover for a personal injury, on the ground of negligence, the question whether the plaintiff, at the time of receiving the injury, was using due care or was grossly negligent, is not one of law for the court to determine, but one of fact to be ascertained by the jury, under all the evidence. The same may be said in respect to comparative negligence of the parties.</p> <p>2. Appeal—reviewing the facts. Where the evidence in a cause tends to prove the existence of a given fact or state of facts, and they have been passed upon by a jury in a civil suit, their finding, unless set aside by the trial court or Appellate Court, is conclusive upon this court; and, in that regard, it is wholly immaterial whether this court thinks such finding is in accordance with the weight of evidence or not.</p> <p>3. Witness—credibility—how affected by his relations to the parties— as, employer and employe. In an action against a railway company for negligence, the jury, in determining what weight to give the testimony of a witness for the defendant, may take into consideration the fact that the relation of employer and employe exists between the company and the witness, and from this, and his manner of testifying, judge whether he is apparently influenced by such relation, and to what extent.</p> <p>4. In this case, the court was asked to instruct the jury, “that while they are the sole judges of the credibility of witnesses, they have no right to disregard the testimony of an unimpeached witness sworn on behalf of the defendant, simply because such witness is or was an employe of defendant, ”—to which the court added: “But the relation of any witness to a party to the suit, such as employe, is a matter proper for the consideration'of the jury, in the light of all the evidence, and if, after such consideration, it does not appear that the testimony of the witness has been influenced by such relation, then it should be disregarded. What influence, if any, such relation may have had on the testimony of any witness is to be estimated by the jury, in the light of all the evidence:” Held, that although the instruction as asked was proper, there was no error in the modification.</p> <p>5. Instruction—as ignoring the question of comparative negligence. The court can not be said to have ignored the question of comparative negligence in an action involving the same, when no instruction is asked by either side upon that question. There is no error in giving an instruction for the plaintiff, stating the law correctly,■ merely because it ignores the question of comparative negligence. The case of Chicago and Northwestern Railway Co. v. Dimich, 96 Ill. 42; does not hold that it is error to give such an instruction.</p> <p>6. Same—whether presented within the time prescribed by a rule of court—presumption as to the existence of the rule. Where the bill of exceptions shows that an instruction was refused because not presented within the time required by the rule of practice in such court,—that is, before the commencement of the closing address to the jury,—in the absence of any showing to the contrary in the bill of exceptions, it will be presumed there was such a rule of court, in writing, duly published and spread upon the records, and that the instruction was therefore properly refused.</p> <p>7. Bile of exceptions—what should be preserved therein—as, where cm instruction is refused because not presented in time, under a rule of court. If a rule of court requiring all instructions to be handed to the court before the commencement of the closing address to the jury, provides for any discretion in the court, and there is any reason why such discretion should have been exercised and an instruction given, though not presented in apt time, these reasons, as well as the rule itself, should be set out in the bill of exceptions, to enable this court to pass upon them.</p> <p>8. Buee of court—requisites to validity. To make a rule of court valid and obligatory upon suitors, it must be in writing, and spread upon the records of the court, and reasonable publicity should be given to it. When this is done, no discretion can be exercised as to its application, unless allowed by the rule itself. Courts have the power to make such, rules when they do not conflict with any statute.</p>

Writ of Error to the Criminal Court of Cook county; the Hon. T. A. Moran, Judge, presiding. This was an indictment against plaintiff in error, charging him with the crime of perjury. A trial was had, resulting in a verdict finding him guilty, and fixing his punishment at five years’ imprisonment in the penitentiary. A motion for a new trial was made and overruled, and judgment entered on the verdict, and exceptions taken in due form.

<p>1. Exemplary damages—in suit for malicious prosecution—as against one who did not aid in initiating the prosecution. A and B were partners^ carrying on business in this State, the former residing in another State, the business being principally conducted by C, the husband of B. C procured the arrest of a debtor of the firm, who had been inveigled into the State, under a writ of ne exeat. The bill in the ne exeat suit was dismissed, and C prosecuted an appeal from the order of dismissal. A knew nothing of the suit until after its dismissal and the appeal had been taken, and never ordered, advised or directed the arrest, but on learning the facts condemned the action of 0, and had the appeal dismissed: Held, that an instruction in an action for false imprisonment and malicious prosecution, brought by the debtor, authorizing the finding of exemplary damages, was erroneous as to A. And held, also, even if he had approved of the arrest upon learning what had been done, that he would have been liable only for the real damages sustained by the plaintiff, and not for vindictive damages. '</p> <p>2. Partnership—agency of each partner as respects the others. By entering into partnership, each partner reposes confidence in the other, and constitutes him his general agent as to all partnership concerns.</p> <p>3. Same—liability of one partner for tort of another. As a general rule one partner is not liable for the willful tort of a co-partner. So if one partner, without the knowledge or consent of the other, maliciously procures the arrest and imprisonment of a debtor of the firm, and such act fails to be of any benefit to the firm, the partner not participating in the unlawful act and deriving no benefit therefrom, will not be liable for the arrest and imprisonment.</p> <p>5. Malicious prosecution—evidence of plaintiff’s character or reputation. In an action for malicious prosecution, the defendant may prove the general bad reputation of the plaintiff at the place where he resided at the time of his arrest, for honesty and fair dealing in business, to rebut the proof of want of probable cause, and also in mitigation of damages.</p> <p>5. Instruction—not based on the evidence, calculated to mislead. An instruction which is not based on the evidence in the case is improper, and should not be given, as it is liable to mislead the jury. So where a resident partner had a debtor of his firm arrested on a writ of ne exeat, without the knowledge or approval of his co-partner residing abroad at the time, and the latter, on learning the facts, disapproved of the arrest and the further prosecution of the ne exeat suit, it was held, that an instruction as to the liability of the co-partner, based on the theory of his approval and ratification of the arrest, was erroneous and misleading.</p>

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

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

<p>Appeal from the- Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Union county; the Hon. D. M. Browning, Judge, presiding.</p>

<p>1. Negligence—right of recovery—on the basis of ordinary care on the part of the plaintiff, and negligence on the part of the defendant—of the rule as to contributory and comparative negligence. In an action to recover for the death of the plaintiff’s intestate, alleged to have been occasioned by the negligence of the defendant, the jury were instructed in behalf of the plaintiff, substantially, that if the plaintiff’s intestate was in the employ of the defendant company as fireman, and while in the discharge of his duty as such fireman, he, using ordinary care and prudence for his personal safety, was injured and killed by the explosion of a certain boiler in the possession and under the control of the defendant company, and the explosion of said boiler was caused by the negligence of the defendant company in'allowing the same to be and remain out of repair, then the plaintiff was entitled to recover.</p> <p>2. Objection was taken to this instruction by defendant, upon the ground that there was evidence in the record tending strongly to charge the intestate with contributory negligence,—yet the jury were told that if the intestate used ordinary care and prudence, the plaintiff could recover if the accident was due to the negligence of the company, instead of telling the jury that the plaintiff could recover only in the event that the negligence of the intestate was slight, and that of the defendant gross, in comparison with each other.</p> <p>3. Or, as differently -formulated by defendant’s counsel, his contention was:—“It is now the settled law of this court that a man may exercise ordinary care, and yet be guilty of slight negligence. Therefore, consistently with the hypothesis of ordinary care and prudence on the part of deceased, contained in this instruction, slight negligence might be imputed to him. If so, there could be no recovery, unless the negligence of the company was gross in comparison" with that of deceased, slight negligence not being inconsistent with ordinary care. To instruct the jury that if the deceased observed ordinary care, there might be a recovery if his death was due to the negligence of the company, is to say that if deceased was guilty of slight negligence, there might be a recovery if defendant was guilty of negligence. This, as will appear, is not the law. In such case there could be a recovery only if defendant was guilty of gross negligence. ”</p> <p>4. But the instruction as given was held not to be obnoxious to the objection made. The error in the contention formulated as above, is in the assumption that the comparative relation of the negligence of the person observing clue,—i. e., ordinary, ■—care for his personal safety, and of the negligence of the person causing him injury, is not that of slight and gross, within the rule announced in the Jacobs case, 20 Ill. 478, and followed in other cases.</p> <p>5. Within the contemplation of that rule, where one has observed ordinary care with reference to the particular circumstances involved, for his personal safety, he has, even if slightly negligent, observed all the care the law inquires of him; and where, having observed this care, he is injured by the negligence of another, that other has been guilty of the degree of negligence for which the law charges responsibility. The injured person could do no more to entitle himself to redress, and no higher degree of culpability is essential to the liability of the person causing the injury, and so the two degrees of negligence, if the person observing ordinary care has been at all negligent, when compared" with each other, fall within the opposite extremes of negligence, legally considered.</p> <p>6. The rule in this State is, that in order to recover for injuries from negligence it must be alleged and proved that the party injured was, at the time he was injured, observing due or ordinary care for his personal safety;—■ and that where a party, while observing due or ordinary care for his personal safety, is injured by the negligent acts of another, there may be a recovery on account of such negligent acts. Nor is it to be understood that the rule of comparative negligence changed or modified the general rule requiring that the injured party, in order to recover for the negligence causing his injury, must have observed due or ordinary care for his personal safety, and authorizing him to recover for such injuries where he has observed such care.</p> <p>7. Instbtjction—construed, as whether assuming there was negligence. On the trial of an action on the case, by the personal representative of a deceased person, to recover damages for his death, resulting from negligence of defendant, the court' instructed the jury, in substance, that if they believed, from the evidence, that plaintiff’s intestate, being in defendant’s employment as fireman, and while in the discharge of his duty as such, and while exercising ordinary care and prudence for his safety, was injured and killed by reason of the explosion of a boiler of defendant, as alleged in the declaration, and that the explosion of the boiler was caused by negligence of defendant in allowing one of the wheels which controlled one of the valves of such boiler to be and remain broken off, so that the valve could not be operated properly with safety, and allowing the same to be and remain in an unsafe and defective condition to be used and operated with safety, .(if the same was so defective,) and that defendant had knowledge of such defective condition, (if the jury believe, from the evidence, that it was so defective,) or would, by the exercise of reasonable care and caution, have discovered such defective condition, then their verdict should be for the plaintiff, if he left a widow and children surviving him, and the former took out letters, etc., as alleged; Held, that the instruction was not liable to the objection that it assumed negligence in failing to put a new wheel upon the valve.</p> <p>8. Same—unnecessary modification—but not materially changing its sense. Even if a modification of an instruction was not necessary, yet if the words inserted in the same by the modification do not materially change the obvious sense of the instruction as asked, and they but express what was before implied, there will be no error in making the modification.</p> <p>9. Same—direction as to limiting damages to ad damnum. On the trial of an action to -recover damages for negligence, causing the death of plaintiff’s intestate, the court instructed the jury, for the plaintiff, that in assessing the damages they should not assess the same above the amount claimed in the declaration: Held, that while such an instruction was faulty and censurable, it would not justify a reversal, as it did not appear to have affected the verdict.</p>

Bichard Prendergast, Judge, presiding. On the 29th of April, 1885, the Englewood Connecting Eailway Company filed in the county court of Cook county the following petition: “Tour petitioner, the Englewood Connecting Bailway Company, respectfully shows unto your honor that it is a corporation duly organized and existing under and by virtue of the law of the State of Illinois, and as such is authorized to construct and operate a line' of railroad from a point on the Chicago,…

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

John Cf. Rogers, Judge, presiding. This suit was brought in attachment by Silas N. Macey, surviving partner of Macey & Brown, for the use of Miss Eva Brown, against the St. Louis. Galvanizing Company. The affidavit for the writ stated the indebtedness to be “in the sum of at least $2500, ” upon a balance of an account for goods sold, etc. Judgment by default was rendered against that company for $2693.75.

<p>1. Cloud upon title—tax title—where there has teen an effort to redeem. A person whose land had been sold for taxes, in proper time attempted to redeem it from the sale, and paid the amount required of him by the officer entitled to receive redemption money, and received a certificate of redemption, and when notified of a trifling deficit, sought in good faith to ascertain the amount so as to pay the same. He was referred to the purchaser, who promised to make and deliver a statement of such deficiency, if any, which he failed to do, but took out a tax deed: Held, a court of equity would set aside such deed as a cloud on the title of the person seeking to make redemption, upon payment of the deficiency.</p> <p>2. Costs—in chancery—discretionary. Under the statute (Rev. Stat. chap. 33, see. 18,) the matter of costs, in most chancery cases, is within the discretion of the court. Where one wrongfully takes out a tax deed, it is proper, on bill to set the same aside as a cloud on title, to award costs against him.</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>

Writ of Error to the. Appellate Court for the Fourth Dis-; trict;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.

<p>1. Specific performance—necessity of performance to entitle one to relief. The owner of land, being old and infirm, made a contract with his daughter and son-in-law, that if they would come and reside with him, maintain and support him and his wife during their lives, and improve the land, he would, by his will, devise the same to them, upon condition the son-in-law should, within two years after the death of the father-in-law, or that of his-wife, in case she should survive him, pay each of his other children a certain sum, but instead thereof, the owner devised the land to his other children: Held, that the son-in-law was not entitled to a specific performance against'the devisees without paying the other children the sums so secured to them by the contract.</p> <p>2. So a contract for the sale or transfer of land by will, to a party, in consideration that such party would support the vendor or testator and his wife for and during their respective lives, will not be specifically enforced when such party refused to perform his undertaking to support the vendor and his ?vife. The party seeking specific performance of a contract for the conveyance of land must have performed his part of it. If he refuses or neglects to do so he can not compel specific performance of it.</p> <p>3. Witness—competency of party. A party agreed with his son-in-law and daughter to leave them his farm, by will, if they would improve the same and support the owner and his wife during their several lives. The daughter died, and,the son-in-law being desirous of taking another'wife, refused to keep the owner and his wife, who were old and infirm, and they left, and lived with their other children, and the owner devised his land to the latter. The son-in-law and the heirs of his deceased wife filed a bill against the devisees to enforce the specific performance of the contract: Held, that the defendants were competent witnesses as against the son-in-law, and it was error to wholly disregard their testimony in the case.</p>

Writ of Error to the Circuit Court of Jackson county; the Hon. Egbert W. McCartney, Judge, presiding. This was an indictment found December 13, 1883, against D. H. Baysinger, under section 216 of the Criminal Code. A trial was had, resulting in a conviction of the defendant.

<p>1. Payment—by check. Where a debtor gives Ms creditor a check on a bank, having no funds in bank to be drawn upon, under an arrangement that it is not to be paid, and gives a new note for the sum due at a less rate of interest, no money passing between the parties, such check is no payment of the original debt.</p> <p>2. The giving of a check, when the drawer has funds in the bank to meet the same, is not originally regarded as payment, but is treated as the means to procure the money. The holder in such a case becomes the agent of the drawer to collect the money.</p> <p>3. A party owing $800(1 on notes secured by mortgage, without having any funds in bank drew his check on the bank in favor of his creditor for that sum, and procured the cashier of the bank to say it was good, the intention being that it should not be presented for payment. The creditor then made a new loan of the same amount,-taking the' debtor’s note for the same sum bearing a less rate of interest, and surrendered the check, but retained the old notes, no money, in fact, having changed hands: Held, that as no money was to be paid on the cheek it was no payment of the old notes, and that their payment could be enforced, notwithstanding this transaction.</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 Perry county; the Hon. Amos Watts, Judge, presiding.

<p>Appeal from the County Court of Franklin county; the Hon. William H. Williams, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Washington county; the Hon. George W. Wall, Judge, presiding.</p>

<p>1. Negligence—fencing railroads—not on the right of way—duty and-liability of the railroad company. A railway company which erects a fence and- gate along its right of way, a few feet beyond the same and upon the land of the adjoining owner, and keeps the same in repair for some time, and then suffers it to get out of repair, whereby stock escapes through the same and strays upon the track and is killed, can not escape liability to the owner of the stock on the ground such fence and gate are not on its right of way, when it has given no prior notice that it will not keep up such repairs any longer.</p> <p>2. Same—estoppel of.railroad company to deny its liability to maintain a fence at a particular point, as, near its depot grounds. Where a railway company has erected, and for a number of years maintained, a fence along the side of and near its right of way, and near a station, but suffered it to become defective, whereby stock got upon its track and were killed, it can not exonerate itself from liability on the ground of its higher duty to the public of keeping its depot grounds open for the convenience of thpse having business with the road. So long as it permits such fence to stand and be relied on by others as a fence required by statute, it will be estopped from denying its duty to keep it in proper repair.</p> <p>3. 'Evidence—relevancy to issue. In an action against a railway company to recover for the killing of animals, based on a neglect of the company to keep a gate in a fence built by it in repair, through which stock escaped and got upon the track, where they' were killed, the defendant offered to prove that the erection of cattle-guards or a fence along its side-tracks would greatly endanger the lives of its employes, and inconvenience the public at large in loading and unloading cars from the side-tracks, and the cattle-guards would weaken the road bed, and'thereby endanger the lives of passengers: Held, that the evidence was properly excluded, as the neglect to make cattle-guards was not complained of as a ground of recovery'.</p> <p>i. Practice in the Supreme Court—in case of appeals allowed, by statute—and those only allowed upon certificate. Where an appeal is perfected to this court, whether in cases given by the statute or in cases where it is allowed only upon the certificate of at least two of the judges of the Appellate Court that it involves questions of such importance that it should be passed upon by this court, the practice in this court is the same, and the appellant may assign any errors presented by the record. It is not necessary to certify to this court questions of law.</p>

T. A. Moran, Judge, presiding. On the 13th of February, 1SS5, the Commercial National Bank of Chicago filed a bill in the circuit court of Cook county against Charles G. Barth and James N. Wetlierell, alleging that on September 24, 1875, one B. G. Caulfield was the owner in fee of blocks 1, 3 and 4, in Warder’s subdivision of block 32, in school trustees’ subdivision of the south half of the south-east quarter of the north-west quarter of section. 16, ■town 38 north, range…

<p>Appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zane, Judge, presiding.</p>

<p>1. Equitable title—of facts as showing whether it exists. A bill in chancery alleged that in the year 1847 one S. was in the possession of a lot, claiming equitable rights therein; that he lawfully entered upon the lot when wild land, and built large and extensive improvements upon it; that at the same time one K., then of the State of Connecticut, held the legal title to the lot, but acknowledged the equitable rights and interest of S. in the same; that on or about July 24, 1847, S. purchased from E. the interest of the hatter in the lot, and took from E. a contract of purchase at the price of $7000, and made valuable improvements on the same, but being unable to complete the payment, in pursuance of an agreement to that affect, S., in 1852, assigned to E. his contract-of purchase, and made him a quitclaim deed for the lot, clearing up all liens on his interest, and received back a new contract of purchase for $7277.50 on credit, making time of performance of the essence of the contract, and providing for forfeiture of all payments and rights for failure to make prompt payments, and also showed a declaration of forfeiture by the vendor for non-payment: Held, that the hill did not show any equitable title in S. at the time of the making of the quitclaim deed.</p> <p>2. Vendor and purchaser—or mortgagor and mortgagee—which relation exists. Where a purchaser of real estate, being in default of payment, by an arrangement with his vendor made a quitclaim deed of the property, and surrendered his contract of purchase, and another contract of purchase was executed providing for a conveyance on payment of the sum due under the former contract, in installments, it was held, that the relation of mortgagee and mortgagor was not thereby created, but that the true relation between the parties was still that of vendor and purchaser, and the latter failing to make his payments, could not, after a forfeiture under his contract, maintain a bill to redeem as a mortgagor.</p> <p>3. Pleading—admission by demurrer. A demurrer to a pleading admits the truth of the facts well pleaded, but not the conclusions sought to be drawn from them. An averment in a bill that a transaction set out was a mortgage, is but an inference of the pleader from the facts stated, and such inference is not admitted by a demurrer to the bill.</p> <p>4. Same—allegation contrary to written contract. Where it is disclosed in the bill that a contract of purchase had been assigned to the vendor, and a new contract of purchase voluntarily and knowingly entered into for a purchase on different terms and conditions, and there was no fraud or mistake claimed, this alone will be looked to as showing the intentions of the parties, and treated as the consummation of the agreement between them, and an allegation showing an agreement different from what the written one expresses will not prevail so as to be regarded as admitted by a demurrer to the bill.</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. BolliN’S. Williamson, Judge,.presiding.</p>

William Brown, Judge, presiding. This is a suit in debt, brought in the circuit court of Stephenson county, upon a judgment rendered in the circuit court of Rock county, in the State of Wisconsin. The declaration is in the usual form, the pleas are nul tiel record and release. The case was tried by the court and a jury, and resulted in a verdict and judgment against the appellant, defendant below, for $1577.54 debt, and $111.34, damages.

Joseph E. Gary, Judge, presiding. The contract declared upon in this case was as follows: “Agreement made and entered into this 23d day of August, A. D. 1875, by and between the Cromwell Mound Company, party of' the first part, and David Kreigh, D. N. Burnham, O. J. Hines, John Tyrell, A. M. Jones, Barrett, Todd & Cochrane, and W. D. and C. A. Kerfoot, party of the second part, witnesseth: That the said party of the first part, in consideration of the payment to be made by…

<p>1. Guardian’s deed—must, be based on decree. A guardian has no power to sell the ward’s land without an order of the proper court, for the purpose of raising funds for the ward’s support and education. Without any petition for leave to sell the ward’s land, and a decree granting leave, the guardian’s deed is absolutely void.</p> <p>2. Limitations—Milder the act of 1889—of the good faith required. Where a party, with full knowledge of the worthlessness of his deed, by misrepresentation as to the value of the land induces the mother of the infant owner to convey the same to him, neither he nor any one claiming through or under him, can claim under it as color of- title made in good faith.</p> <p>3. Same—concurrence of color of title, possession, and payment of taxes. To establish a bar under the seven years’ Limitation law, the possession and the payment of taxes must relate to the same land which is described in the instrument relied on as color of title, and the payment must be for seven successive years.</p> <p>4. Same—as between tenants in common. As a general rule, the Statute of Limitations does not run as between tenants in common, for the reason that the possession of one tenant, in legal contemplation, is the possession of the others; and this is especially so when all parties derive title from the same deed or conveyance. Under the statute, the possession must be adverse before it will begin to run in favor of one tenant in common against the others.</p> <p>5. Laches—excused by infancy and coverture. Where a guardian, without any authority, sold and conveyed his ward’s land in September, 1863, and the ward married before her majority, it was held, that such ward, in view of her infancy and coverture, was not guilty of laches in failing to file a bill until in 1875, to set aside such deed as a cloud upon her title.</p> <p>6. Partition—equalizing interests by money compensation—or owelty. Where an equal partition of land can not otherwise be made, courts of equity may order that a certain sum be paid by the party to whom the most valuable property ha's been assigned. The sum so directed to be paid is called owelty.</p> <p>7. Same—allowance for improvements—deduction of rents. One of several tenants in common out of actual possession will be charged, not with the price or cost of improvements put upon the land by another tenant, but only with his proportion of the amount, which, at the time of the partition, they add to the value of the premises; and from this amount he will be allowed to deduct any sum to which he may have a just claim for use and occupancy of his portion enjoyed by the tenant making the improvements.</p>

<p>1. Munich?ai oobpobation—granting use of streets for railway purposes—liability to abutting property owners for injury therefrom. An incorporated city or town may lawfully grant the right and privilege of constructing and operating a railroad in a public street, the fee of which is in the city or town, if it makes all proper and reasonable provisions to protect lot owners and the public in the free use of the same, and in so doing will incur no liability to owners of lots abutting on such street, who must look to the railway company for any damage thereby caused to their property.</p> <p>2. A railway company being authorized by law to construct and operate its road through an incorporated town which held the fee to its streets, the town authorities by ordinance granted the privilege of constructing the road along the center of a public street, upon condition the company should grade the street and plank its track with two-inch boards, so as to secure, as far as possible, to the public the free and uninterrupted use of the street, and the road was so constructed, whereby a lot owner, whose lot was on the street, was damaged in consequence of raising the grade of the street and by obstructing the view from his premises, etc.: Held, that the town having lawfully granted the right of way, and being guilty of no negligence or wrongful act, was not liable to the lot owner.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.</p>

Wbit of Ebbob to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Livingston county; the Hon. Fbanklin Blades, Judge, presiding.

<p>Ejectment—plaintiff must recover on the strength of his own title. A plaintiff in ejectment must recover on the strength of Ms own title, and not on the weakness of the defendant’s. The title in any one other than the plaintiff will defeat a recovery.</p>

<p>1. Becoupment—for breach of warranty■—in suit for the price of the thing sold. In a suit by the seller of a machine for the contract price, the purchaser may recoup, under the general issue, any damages he may have sustained by reason of a breach of the warranty as to the quality and capability of the machine.</p> <p>2. Action—against whom it will lie—for work and materials—set-off. If A agrees with B to manufacture a machine for him, and procures 0 to furnish the materials and do the work, the latter can not maintain an action against B for the value of the work and materials, but must sue A. But if he sues B, B can not set off or recoup any damages he may sustain in consequence of a breach of guaranty made by A.</p> <p>3. Parties—non-joinder of plaintiffs. If the inventor of a machine undertakes, jointly with a manufacturer, to construct a machine for another, the manufacturer can not maintain an action in his own name alone, to recover the price of the purchaser. The non-joinder of the inventor as a co-plaintiff will be fatal.</p> <p>4. Instruction—must be based on evidence. An instruction based upon the assumed existence of a fact of which there is no evidence, is objectionable, and is properly refused.</p>

<p>X. Mortgage—deed absolute inform—degree of proof to show it to be a mortgage. A deed absolute on its face will never be held to be a mortgage, unless the proof is clear and positive that it was so intended by the parties.</p> <p>2. Doweb—widow of devisee of land upon which there is an incumbrance. "Where an owner of land has made a conveyance,of the same, absolute in form, to secure the repayment of a loan to him, and afterward devises the same land to another, the widow of the latter will be entitled to dower therein.</p> <p>3. Will—charge on land devised. A testator devised his entire interest in certain lots to his brother, and directed that out of that interest the latter should pay to whomever should have the care and control of his nephew through his minority, $100 annually, and $1000 to the nephew upon his majority: Held, that the devisee took the lots subject to the lien of the person taking care of the nephew, of $100 a year, as well as the lien for the $1000, in favor of the nephew himself.</p> <p>4. Decree—to pay money to guardian where there is no guardian. A decree for the payment of money to the guardian of a minor will not be erroneous merely from the fact the minor has no guardian at the time. In such case the money can not be paid until a guardian shall be appointed and qualified.</p> <p>5. Guardian—decree directing payment to guardian of money intended for one who has charge of the person of the ward. Where a devisee of land takes it subject to a charge thereon that he pay $100 a year to the person who should have the cafe and support of a minor during minority, a decree that the devisee pay the sum then due to the guardian, instead of to the person entitled thereto, is not erroneous. The guardian in such case can pay it to the person or persons entitled to the same.</p> <p>6. Former adjudication—how far conclusive as to matters properly involved, but omitted to be presented. A minor who files his bill by his guardian and attorney, claiming title to certain lands, should present the grounds showing his rights, and if he does not, he will not be allowed in’ a second suit to take advantage of his omission. If the first bill is dismissed, the adjudication will estop him from again seeking to recover the same premises on other and different grounds not presented in the first suit.</p>

Joseph E. G-ary, Judge, presiding. On the 30th of November, 1875, in a' suit then pending in the Superior Court of Cook county, wherein the Mechanics’ National Bank of Chicago was plaintiff, and Charles W. Cole-hour and William H. Colehour were defendants, an order of court was entered of record reciting due personal service of summons in said cause upon .the defendants, more than ten days before the November term, 1875, of the court, entering their default, and referring…

<p>1. Evidence in criminal case—as to an offer to settle the matter with the prosecution. On the trial of two persons upon the charge of robbery, the prosecution asked the prosecutor if he had been approached by anybody in the interest of the defendants, and if he had taken any money to settle the case, to which he replied, “Yes, sir; X took $25 from-Mr. H., the uncle of G-. (one of the defendants,) in payment of my watch, as I supposed, ” etc.: Held, that the evidence was incompetent, and calculated to prejudice the defendants, and should have been excluded if it had been objected to.</p> <p>2. Practice—how to question the admissibility of evidence offered. If a party desires to raise the question in this court as to the admissibility of evidence offered in the trial court, he should at the time object to its admission, and thereby obtain a ruling of the trial court, and, if adverse, take an exception.</p> <p>3. Bill of exceptions—what it should contain—-in respect to a motion for a new trial. A party, in order to assign for error the overruling of his motion for a new trial, must, in his bill of exceptions, show such motion was made in the trial court, the ruling of the court thereon, and his exception thereto. It is not enough that the clerk’s record shows these facts.</p> <p>4. Hew triad—in a criminal case—on the evidence. It being the peculiar province of. the jury to weigh and consider the evidence, and judge, from the appearance of the witnesses on the stand, their apparent honesty, intelligence and candor, or the want of it, what weight should be given to their testimony, unless this court can see that their finding is so contrary to the evidence as to impress the court with the belief that the verdict is the result of passion or prejudice, it will not be disturbed.</p>

George W. Stipp, Judge, presiding. This was an action of ejectment, brought by William Adams against John W. Taylor. The plaintiff’s title was derived as follows: On the 25th day of March, 1862, the appellant, John W. Taylor, executed a mortgage upon the' premises in controversy to one Edmund Wilcox, to secure notes given by Taylor to Wilcox for the purchase money of the lots. These notes were assigned by Wilcox to one Clement, and by him to appellee.

<p>Wbit of Ebbob to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p>

<p>1. Appeals and appeal bonds—necessity of compliance with order granting the appeal—liability upon bond not so executed. An appeal from the trial court, to be effective, must be in conformity with the order allowing it. But it does not follow that an appeal bond, filed not in accordance with the order allowing the appeal, is not obligatory on the parties executing it.</p> <p>2. Where an appeal was allowed to two defendants upon their entering into bond, with security to be approved, and only one of 'them gave the bond, and the appeal was dismissed by this court, it was held, that the parties who did execute the bond were liable on the same, and that they were estopped by the recital therein from denying that an appeal was taken.</p>

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

<p>1. Tbusts and tbustees—conveyance in trust to pcuy debts, and for other purposes—whether a power of sale is given. No particular form of words is necessary to create a power of sale. Any words which show an intention to create such power, or any form of instrument which imposes duties upon a trustee that he can not perform without a sale, will necessarily create a power of sale in the trustee.</p> <p>2. An assignment or conveyance of land to trustees to pay all the just debts of the grantor, necessarily implies a power of sale in the trustees, though none be given in words.</p> <p>3. Where trustees are authorized to devote so much of the principal or income of the trust estate as may be necessary for the support of the grantor and his family, this will, when necessary, confer a power of sale.</p> <p>4. Where a deed conveying property in trust to trustees, directs that in certain contingencies the fund therein named “shall be paid over” by the trustees to the wife and children of the grantor, such direction imports and confers the power to sell.</p> <p>5. Purchaser from trustee—whether hound to see to the application of the purchase money. Where property is conveyed in trust to pay debts generally, and apply the balance- to the support of the grantor’s family, the purchaser from the trustee is released from the obligation to see to the application of the purchase money.</p> <p>6. In this case a person conveyed all his property, real and personal, to trustees in trust, first, to pay all his just debts and the expenses of the trust; second, to devote so much of the principal or income thereof as might be necessary for the support of the grantor and his family; third, in case of his death, upon the written request of his heirs the trust should determine and the fund be paid over to his wife and children, and in default of such request, to devote so much of the principal or income as might be necessary for the use and support of his wife and children; fourth, upon the death of his wife, she surviving him, and upon the death of each of his children surviving him, if the trust was not previously terminated, to pay over the -proportion of said fund the wife or child would have been entitled to in case of a division of said fund at the death of the wife or child, to such person or persons as his wife or child should by will appoint, etc., the wife joining in the deed and releasing her dower and homestead; Held, the trustees became thereby invested with the legal title to the land, and had the power to sell and convey the same to a purchaser, and that the purchaser was not bound to see to the proper application of the purchase money.</p>

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

<p>1. Decree—of its sufficiency as establishing the fee in land in certain heirs, and in determining who were the heirs entitled thereto. On bill to divest and pass the legal title of the heirs of a deceased testator, to enable a trustee to execute a trust created by the will in respect to the property, the decree found that the testator died seized of certain lands in this State, and that at his death the legal title thereto became and was vested in one of the complainants and the said defendants, naming them, as the only surviving heirs of the deceased: Held, that this finding was amply sufficient to establish the fact that the fee of the lands passed to the heirs named, and that they were the only heirs of the deceased.</p> <p>2. Same—appointing trustee without requiring bond—whether the decree void on that account. A decree appointing a trastee in place of one named in a will, to carry out the provisions of the will, he having also been appointed in another State, and given bond there, is not invalid if it fails also to require’ bond from the trustee here, and his acts in discharging the trust will not thereby be rendered void.</p> <p>3. Parties—to bill to appoint a new trustee. As a general rule, on a bill for the appointment of a new trustee to execute a trust, all persons beneficially interested should be made parties. But where a trustee has been appointed by the court of another State, and the main purpose of a bill is to compel the heirs of a deceased testator to convey lands of the testator in this State to the trustee, to enable him to carry out the provisions of the testator’s will, it will not be necessary to make the legatees named in the will parties, as their interests are not sought to be affected. In such case the heirs holding the legal title are the only necessary parties.</p> <p>4. A testator provided by his will that a trustee therein named, to whom he devised his estate, should pay the net income of certain real and personal estate to S. and H., and upon the death of either, then to the survivor for life, and upon his death the trustee pay certain legacies, and the will then provided that all the residue of the trust estate should go, one-fourth part to the heirs at law of S., etc. The trustee declined to act, and the court of the State where the testator’s will was probated, appointed a successor to the trustee named, who, with others, filed a bill- in this State to procure a conveyance from the testator’s heirs of his land situate here, in which S. and all the other heirs of the testator were made parties, and a decree against them was obtained vesting their title in a new trustee: Held, that it was not necessary to have made the unknown heirs of S. parties to the bill.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.</p>

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

<p>1. Tax deed—of its validity when made after redemption money deposited. Where land sold for taxes is redeemed within the time required by law, by depositing with the proper officer a sum double the amount bid at the tax sale, and sufficient also to cover all costs, expenses and fees required by law, any deed thereafter issued on such sale is absolutely void.</p> <p>2. Redemption ebom tax sale—deficiency in the amount deposited. Where the owner of land attempts in good faith to redeem the same from a tax sale before the time of redemption expires, but the sum deposited for that purpose, by an honest mistake, is insufficient, relief will be granted, and the tax deed set aside on equitable terms.</p> <p>3. Same—subsequent taxes paid, need not be deposited. Where the owner of land sold for taxes has paid all the subsequent taxes, it will not be necessary for him, in redeeming, to deposit with the county clerk money for such subsequent taxes.</p> <p>4. Same—fees for publication allowed to holder of certificate. The statute allows the holder of a certificate of purchase given on tax sale, a fee for publication of notice of the purchase, etc., not exceeding one dollar for each tract or lot, but does not necessarily require the payment of that sum. It may be less, but not more.</p> <p>5. Demubbeb to a pleading—what it admits. A demurrer to a bill in chancery admits all its allegations of fact. So where a bill to set aside a deed for land sold for taxes, alleges that no such notice as the statute requires was given before taking out the tax deed, either by the purchaser or his assignee, a demurrer to the same admits such allegation; and if the demurrer is overruled, and the defendant abides his demurrer, the tax deed will be set aside on equitable terms. *</p> <p>6. Costs—setting aside tax deed. Where a tax deed is wrongfully taken out, costs are properly awarded against the defendant in a decree setting it aside as a cloud on the title of the complainant.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.

<p>Instruction—in suit to recover for death from negligence—whether to he regarded as stating the law in respect to negligence, or only as fixing the measure of damages. In an action to recover damages for causing the death of the plaintiff’s intestate by negligence, the court, on behalf of the plaintiff, instructed the jury “that if they should find, from the evidence in the case, and under the instructions of the court, that the defendant is guilty of the wrongful act, neglect or default as charged in the plaintiff’s declaration, and that the same resulted in the death of P. D. (the intestate,) then the plaintiff is entitled to recover in this action, for the benefit of the widow and next of kin of such deceased, such damages as the jury may deem, from the evidence and proofs, a fair and just compensation thereof, having reference only to the pecuniary injuries resulting from such death to such widow and next of kin, not exceeding the amount claimed in the declaration.” It was objected that the instruction failed to state the law with regard to comparative negligence, and ignored the question of the care or negligence of the deceased: Held, that the instruction was not to be regarded as one stating the law in respect to negligence, but as relating to the measure of damages in case the plaintiff should recover, and that there was no error in giving the same.</p>

<p>1. Mortgage—whether the relation of mortgagor and mortgagee exists—what will operate to extinguish the mortgage debt. A debt or obligation of some kind is an essential element in a transaction to create the relation of mortgagor and mortgagee.</p> <p>2. The purchaser of real estate gave notes for the purchase money, secured by mortgage. He subsequently conveyed the mortgaged premises by deed containing a clause obligating the grantee to pay the mortgage debt. Afterward the latter conveyed the property to the holder of the unpaid notes, under a promise of the latter to give the party so conveying to him whatever could be made out of the property in the next three years, above 'the debt, interest, taxes, insurance and repairs: Held, that the mortgage debt was thereby extinguished, and the relation of mortgagor and mortgagee no longer existed.</p> <p>3. Trust—where a conveyance creates the grantee a special trustee. The holder of notes secured by mortgage on real estate, required of the owner thereof, who had assumed payment of the mortgage debt, an absolute conveyance of the property, and sent a letter to the debtor, inclosing the deed, in which letter he promised that if anything could be made out of the property during the next three years, more than the debt, interest, taxes, insurance and repairs, to give the debtor the benefit of it. The latter, relying on this promise, executed the deed and gave possession. In a short time after, the grantee sold the property for the amount of his debt and repairs made, after which the property advanced in value, so that if it had been held the three years there would have been a net profit to the debtor of $1768: Held, that construing the deed and letter together as showing the contract of the parties, the relation of trustee and cestui que trust was created, and that the grantee took the property, not as absolute owner, but as a trustee, clothed with duties in respect thereto that a court of equity would enforce, and that he was liable to the grantor for the sum he would have received if the contract had been performed.</p> <p>4. A special trust is where special and peculiar duties are pointed out to be performed by the trustee. In such case he is not a mere passive agent, but has active duties to perform, as, where an estate is conveyed to him, to sell, and from the proceeds pay the debts of the grantor.</p> <p>5. Contract—construing a letter and a deed as parts of a single transaction. The holder of a debt secured by a mortgage on property, sent a deed therefor to the debtor owner, for execution, with a letter of the same date, promising therein to give the debtor all that could be made out of the property within three years, more than what he paid therefor, with the interest, taxes, etc.: Held, that the letter and deed were but parts of the same transaction, and were to be considered together as one contract, showing the rights of the parties.</p>