Volume 116 — Illinois Reports

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

<p>Appeal—in chancery—suit to enjoin a hoard of education in respect to its management of schools and school fund. An appeal does not lie directly to this court from an order of the circuit court sustaining a demurrer to and dismissing a bill in chancery seeking to enjoin a board of education from paying out public money in support of a school, on the grounds, first, that the board have rented a building for such school, and propose to rent the same from year to year; second, that the school is kept at a place not authorized by a vote; and third, because the school is sectarian, and in the interest of a religious denomination.</p>

Writ oe Error to the-Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding. The defendants in error entered a motion in this court to dismiss the writ of error for want of jurisdiction.

<p>Appeal from the Circuit Court of Whiteside county; the Hon. William Brown, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p>

<p>1. Limitation—twenty years’ adverse possession. Twenty years’ adverse possession of land under a continuous assertion of ownership hostile to all others, constitutes a bar to any right of entry by one not within any saving clause of the statute, claiming paramount title, whether the claim of the party in possession is rightful or not, or even under a muniment of title.</p> <p>2. A daughter, under a parol gift of her father, entered into possession of a tract of laud in 1856, and continued to occupy the same ever since. Prior to the death of her husband, in 1862 or 1863, the taxes were paid in his name, and after that in her own name, during all which time her nephew, the only other heir, treated the land as belonging to her, and never claimed any interest therein, and when going into bankruptcy did not schedule any interest in the same: Held, that not only the nephew was estopped from claiming any interest in the land, but that a purchaser cf his assignee was equally concluded, and barred of any right of entry.</p> <p>3. Sedation of trust and confidence—of rights acquired thereunder. Equity will not permit a party to obtain an unconscionable advantage of another whom he has assumed to'serve, even though the services he proposes to render would be gratuitously bestowed. If he consents to act through mere friendship, he must do so in good faith, and he will not be allowed to take advantage Of or profit by his relation.</p> <p>4. Where one occupies the relation of a friend and confidential adviser of another, who reposes confidence in his fidelity, a court of equity will not permit the person bolding such relation to acquire rights antagonistic to the person he assumes to serve, in property about which he has undertaken to counsel and advise such person.</p> <p>5. So where the general agent and confidential adviser of a widow lady, who looked after her interests, acquired an adverse title to her land, professedly for her use and benefit, at a price greatly less than its real value, if valid, he will be decreed to convey the same to her on being reimbursed the sum paid by him for it. Before making such purchase he should have told her distinctly that if she did not wish to buy such title he wished to do so for himself. He then might have held the same adversely.</p> <p>6. Reference to master—whether necessary—in order to ascertain the cost of property on declaring a trust, and reimbursing the trustee. On bill to declare a trust and to require the trustee to convey a title acquired by him to his principal upon being repaid what it cost him, where there is no complication in the matter or difficulty in ascertaining the amount to be paid him, there is no necessity in referring the case to a master to ascertain the cost incurred by him. In such case the court may make the computation itself, if it chooses.</p>

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

Elliott Anthony, Judge, presiding. Wilhelmina Fisher filed a bill in the Superior Court of Cook county, against John H. Weaver, her former business manager, to compel him, among other things, to transfer and deliver to her a certificate of membership in the Chicago board of trade, which had been taken out by her in his name, to enable him to transact her business, and which on leaving her service he refused to transfer to her, in pursuance of an agreement to that effect.

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

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.</p>

O. T. Beeves, Judge, presiding. The appellant, Lake, on the 16th of July,- 1881, filed his bill in the circuit court of Kankakee county, against Milner Brown, one of the appellees, to redeem the premises therein mentioned, from a sale thereof, under a deed of trust given by Lake to John Magoun, as trustee, to secure to Brown one principal note of .$2000, payable in five years, and ten semiannual interest notes of $100 each, alleging as ground for redeeming, usury; that Burr,…

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

Joseph E. Gary, Judge, presiding. This action was brought in the Superior Court of Cook county, by Conrad Wilder, the appellee, against the United States Bolling Stock Company, the appellant, to recover damages for the loss of the plaintiff’s hand, which is alleged to have been occasioned by the negligence of the company in retaining in its employ an incompetent and unskillful engineer, after notice of such unskillfulness and incompetency.

Franklin Blades, Judge, presiding. On the 15th day of March, 1878, Thomas Beal claimed and represented to appellees that he was the owner of certain lots-in Castle’s addition to the village of Wyoming, Stark county, Illinois, and also of a stock of goods then in a store occupied by him. At that time the complainants (appellees) were the owners of certain real estate, although the legal title was in one Edward B. Hurlbut.

<p>Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook County; the Hon. M. F. Tuley, Judge, presiding.</p>

<p>1. Will—subsequent birth of child—effect thereof on the provisions in the will. Section 10 of the act in relation to descents, in which the rights of a child born to a testator after he has made a will, are prescribed, applies only to children for whom no, provision is made by the will, and as to whom it does not appear by the will that they were intentionally disinherited.</p> <p>2. Same — what■ will amount to malting provision for an after-born child. A married woman in 1873 made her will, by which she devised to her husband, and his heirs and assigns, all her estate, provided he should survive her, but in case he should not' survive her, and she should die leaving children, then to her child or children, etc.- In 1880 she died, leaving her husband surviving, and three children, all born after the date of the will: Held, that the testatrix, by the will, had made provision for her children, within the meaning of section 10 of the act relating to descents, although depending upon a contingency.</p> <p>3. As a testator may totally disinherit his after-born child or children by his will, it follows that he may limit his bounty to them to anything, no matter how insignificant it may he, and make its enjoyment depend upon any contingency, however remote.</p> <p>4. Same—whether a will shows an intention to disinherit after-born child. A testatrix, in 1873, by her will, devised all her estate to her husband, in case he should survive her, otherwise to any child or children she might leave. She died in 1880, leaving her surviving three children, born after the execution of the will, and her husband: Held, that the will showed a clear intention on the part of the testatrix to disinherit her after-born children, in case of her husband surviving her.</p> <p>5. Same—rule of construction—giving effect to the intention. It is elementary in 'the construction of wills, that the intention of the testator must he given effect to, and to ascertain this the whole instrument must be looked to and taken into consideration.</p>

George Gardner, Judge, presiding. This was a hill in equity, in the Superior Court of Cook county, by Thomas H. Ball, Herman Prenzlauer and Simon Florsheim, against Ferdinand Siegel, Henry Siegel, Emanuel Siegel and Gustav Schilling, to enjoin the use of appellants’ trade mark, adopted to designate corsets manufactured by them, and also to enjoin appellees from copying hand-bills, labels, advertisements, and circulars and bills.

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

<p>1. Aetebation—as to one of several makers of a promissory note, consenting to an alteration. Notes for the price of certain property purchased by the makers, were filled up and1 signed by the makers thereof, leaving a blank as to the place of payment, and providing for interest at the rate of six per cent, and given to one of the makers with which to complete the purchase. He took the same to the seller, who refused to receive them with the rate of interest provided, when the party having the notes consented to filling the blank and changing the rate of interest to seven per cent, and then delivered them and received the property: Held, that the maker who delivered the notes, knowing of the change, was bound by them, and could not take advantage of the alteration.</p> <p>2. Same—by filling blank as to place of payment. Where one of the makers of a note intrusted with it by the other for delivery, consents to the filling of a blank, thereby fixing the place of payment, and delivers the same so changed, the note will not be rendered void from such alteration.</p> <p>3. Same—ratification by failing to repudiate on notice. Two parties desirous of purchasing certain personal property, filled up two notes for the price, bearing six per cent interest, and prepared a bill of sale of the property, with a warranty showing the giving of the notes at six per cent interest. One of the makers took these instruments to the seller, who refused to take notes 'bearing that rate of interest, and it was then agreed -by such maker to change the rate of interest to seven per cent in both the notes and the bill of sale, which was done and the purchase concluded. The other maker of the notes afterward saw and read the the bill of sale, which showed the notes bore interest at seven per cent, and he failed to rescind the contract and return the property: Held, that if the miker last mentioned knew of the alteration of the notes, and did not in a reasonable time rescind the contract for that reason, by offering to return the property, he must be treated as having ratified the alteration, and was bound by it.</p> <p>4. Appeal—reviewing the facts. Where the Appellate Court affirms a judgment of the circuit court in a suit upon a note in which there is a conflict of evidence, it will be presumed that whatever the evidence tends to establish, was found in favor of the successful party by both the trial and Appellate courts, and the finding of the latter court upon the controverted questions of fact will be conclusive upon this court.</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>Appeal from the Circuit Court of Cook county; the Hon. John G-. Booers, Judge, presiding.</p>

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

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

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

<p>Appeal from the Circuit Court of Stark county; the Hon. IN. M. Laws, Judge, presiding.</p>

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

<p>Former judgment—judgment in forcible detainer adverse to a purchaser on foreclosure—as a bar to a writ of assistance in the same foreclosure suit. A decree of foreclosure of a mortgage required the parties in possession, in case of a sale, on the production of the master’s deed of conveyance and a certified copy of the order of the court confirming report of sale, to surrender possession to the purchaser. The purchaser, without producing such deed and certified copy of the order, brought forcible detainer against the party in possession, and judgment was rendered therein against ■the plaintiff: Held, that such judgment was no bar to an application by the purchaser to the court for a writ of assistance to put him in possession, after complying -with, the terms of the decree. Until the purchaser had produced the master’s deed and a certified copy of the order confirming the sale, his right to possession under the decree had not accrued, and so it' could not be barred by the judgment in the prior suit.</p>

<p>Writ of Error to the Circuit Court of Jefferson county; the Hon. Carroll C. Boggs, Judge, presiding.</p>

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

<p>Appeal from the County Court of Effingham county; the Hon. S. F. Gilmore, Judge, presiding.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Josiah McRoberts, 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. Kirk Hawes, Judge, presiding.</p>

James W. Gibson, Judge, presiding. This was an application for judgment for delinquent taxes-against the Peoria-, Decatur and Evansville Railway Company.

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

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. William L. Gross, Judge, presiding.</p>

Writ of Error to the Circuit Court of White county; the Hon. Thomas S. Casey, Judge, presiding. This was a bill in equity, brought by Martha A. Robinson and-Nora 0. Robinson/ widow and daughter of John E. Robinson, deceased, in the circuit court of White county, against George W. Robinson and others, to set aside certain deeds, and to compel a conveyance of the north-east quarter of the south-west quarter of section 3, town 5- south, range 8 east, in White county.

Wbit op Ebbob to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.

Writ op Error to the Circuit Court of Kankakee county; the Hon. 0. T. Reeves, Judge, presiding.

<p>Appeal from the Circuit Court of Franklin county; the Hon. D. M. Browning, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding.</p>

<p>i. Chancery—reference to master when necessary. Where a bill is filed to settle the affairs of a partnership of long standing, and the accounts consist of numerous items somewhat complicated, it is the duty of the court to refer the case to a master to state the account.</p> <p>2. ■ Same—of a second reference, after exceptions to report. In such a case, where exceptions to the master’s report are sustained, the court should settle, by decree, the matters involved, and again refer the cause to the master to state the account on the basis fixed by the court, so that it may appear what items of account are approved and what rejected by the court.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.</p>

William C. Jones, Judge, presiding. The bill in equity in this case, filed by John Wetherholt, against Secretus Gable and others, on February 20, 1883, represents that the complainant is the owner in fee of the east half of the south-west quarter of section 21, in township 9, north of range 9, east, in the county of Cumberland, in this State, except seventeen acres off of the south end and five acres off of the north end of the tract; that he and his grantors have had the…

This is an original proceeding in this court, on the relation of C. Henry Meyer, who claims to be town collector for the town of Quincy, for a mandamus against Willis Plazelwood, county clerk' of Adams county, commanding him to deliver to the relator the tax books for that town for the year A. D. 1885.

<p>Criminal law&emdash;record as showing return of indictment. A recital *n tlie «cord of a criminal case as follows: “And now, on this 6th day of March, A. D. 1884, and the fourth judicial day of the March term of the circuit court of Crawford county, Illinois, duly selected and sworn, and returned into open court the following true bills of indictment, all of which are indorsed by the foreman thereof as and for true bills, ”&emdash;is held to show from the context that the grand jury came into court and presented the indictments, and is sufficient.</p> <p>2. Same&emdash;self-defence. The law will not permit one to follow up his enemy, and if an encounter ensue, kill him, and justify the killing as being done in self-defence.</p> <p>3. Practice&emdash;sustaining objection to question when a like question had been answered. On the trial of one for murder, the defendant called a witness, who was permitted to and did state that he had heard the deceased make threats against the defendant. He was then asked to “state what they were,” an objection to which was overruled. The witness failing to answer, he was then asked, “Have you heard the deceased, J., make any threats against the defendant now on trial?” This question was objected to, and the objection sustained: Held, no error, as the witness had already answered the question.</p> <p>4. Exception—when necessary. If no exception is taken on the trial to a witness stating his opinion, an assignment of error as to the admission of the evidence can not be considered.</p> <p>5. New trial—opinion of juror before the trial. A verdict will not be set aside on the ground that a juror taken on the trial had, before being called, formed and expressed his opinion of the guilt of the accused, unless it is made to appear, from satisfactory evidence, the juror had previously “formed and expressed” an opinion hurtful to the defence.</p> <p>6. SAME--sic7iiiess of juror. The fact that a juror in a capital case was taken suddenly ill, which was not noticed until the trial was over and the jury had retired, after which he became unconscious for a few hours, during which no discussion of the case was had, is not a sufficient ground for a new trial on behalf of the defendant.</p> <p>7. Transcript op record—in Supreme Court—impeachment thereof. The attestation of the clerk of the circuit court to the transcript of the record sent up by him, imports absolute verity, and the transcript and his attestation can not be impeached by mere ex parte affidavits.</p>

John Burns, Judge, presiding. This was a bill in chancery, filed by appellee, against appellants, to set aside two deeds executed by appellee to appellant George F. Sturtevant.

William H. Snyder, Judge, presiding. This was an action of ejectment, brought by Sarah E. Gaffeney, against Charles S. Clarice and Mary W. Clarice, in the circuit court of Madison county, to the March term, 1885. The cause, by agreement, was tried by the court without a jury. The court found for the plaintiff, and rendered judgment accordingly.

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

George W. Pleasants, Judge, presiding. On the 15th day of January, 1872, Elisha Essley borrowed of John McKinney $2000, giving his note, payable in one year, with interest at ten per cent per annum, and, joined by his wife, executed a trust deed to Isaac N. Bassett, to secure the same.

<p>Appeal from the County Court of Moultrie countythe Hon. J. Meeker, Judge, presiding.</p>

<p>1. Taxation—municipal taxation—an ordinance for levying taxes, as distinct from an appropriation ordinance—and of its requisites. It is essential to the validity of municipal taxes levied by cities and villages incorporated under the general Incorporation act, that there shall first be passed and published an appropriation ordinance during the first quarter of the fiscal year, in which shall be specified the objects and purposes and amounts of the several appropriations, and after such ordinance has been published and become final, there shall be passed another ordinance levying the amount of all the legal appropriations upon the taxable property within the city or village. The appropriations can not be made and the taxes levied by the same ordinance.</p> <p>2. The statute requires- that a city ordinance for the levy of municipal taxes shall specify, in detail, the purposes for which the appropriations are made and the amount appropriated for each purpose; and when the limit of the taxing power is less than the aggregate of such appropriations, the levying ordinance must specify how the sum levied shall be apportioned toward the several objects of appropriation, and a failure to do so will invalidate the ordinance, and vitiate the proceeding to collect the taxes.</p> <p>3. Same—-toitem- appropriation ordinance takes effect, so as to be deemed “legally made.” An appropriation ordinance of a city or village, under the general law, does not take effect until ten days after the same is published or posted as required by section 64 of the Incorporation act, and until then the appropriations specified therein do not become “legal and valid, ” and can not be said to have been “legally made.”</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.</p> <p>This was a bill in equity, brought by John T. Handley, against Henry A. Neal, for the setting aside of a sheriff’s sale, and the cancellation of the deed made thereon.</p> <p>The following facts appear from the pleadings and proofs: On April 29, 1881, one John Hensley recovered a judgment against Handley for $760.94, and afterward, in a suit for divorce and alimony, against Hensley, brought by his wife, Anna Hensley, wherein Handley was made a party, Handley was, on April 26, 1882, ordered to pay to Anna Hensley, on her alimony, $200, to be credited on the said judgment of John Hensley against Handley, the order directing that she have execution against Handley if the $200 was not paid in twenty days. On August 21,1882, no execution having been issued up to that date, Handley went to the house of Anna Hensley, (then Anna Burnett,) in Douglas county, and made an arrangement with her in respect to her decree against him, which resulted in the giving of the following receipt, signed by herself and her then husband:</p> <p>“Beceived, Charleston, Illinois, August 21, 1882, of John T. Handley, the sum of $204, in full of amount awarded in my favor, and against John T. Handley, in case of Anna Hensley vs. John Hensley and John T. Handley.”</p> <p>—Which receipt was taken that day or the next to the clerk of the circuit court of Coles county, in which court the decree was rendered, and was by the clerk pasted in the judgment docket. Henry A. Neal acted as Mrs. Hensley’s solicitor in the foregoing proceedings in her favor against John Hensley and Handley. On seeing this receipt, Neal wrote to Mrs. Hensley, and in reply was informed by her that Handley had paid her $140, and was to pay all costs and fees due on the decree, and stand in her shoes, saying, “he must pay you according to our trade.” On September 5, 1882, Neal had execution issued on the decree of Anna Hensley against Handley, for $200, and $1.95 costs of the suit, and credited the execution with $140. On October 6,1882, the sheriff, under the execution, sold to Neal eighty acres of Handley’s land, described in the bill, for $75.48, one forty of which was worth $800, and the other forty $1600, and on January 18, 1884, the sheriff made a deed of the land to Neal. Neither Anna Hensley nor any other person had ever intimated to Handley that there was any dissatisfaction on the part of Mrs. Hensley, or any one else, on account of the settlement she had made with him, and the first knowledge he had that an execution had been issued, or that his land had been sold, was after the time of redemption had expired, and a short time before the deed was made. The execution was issued without the knowledge or authority of Mrs. Hensley, and she knew nothing of it until after the deed had been made to Neal. Before the bill was filed, Neal offered to quitclaim the land to Handley upon payment of the amount for which it was bid in, with accrued interest thereon, but Handley declined the offer. This was the sale and deed the bill asked to have set aside. The circuit court decreed the relief sought, and this appeal is prosecuted to reverse the decree.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. William L. Gross, Judge, presiding.</p>

<p>Appeal from the County Court of Logan county; the Hon. Stephen A. Foley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>' Appeal from the Circuit Court of Tazewell county; the Hon. N. W. Green, Judge, presiding.</p>

<p>Appeal from the County Court of Kankakee county; the Hon.- James N. Ore, Judge, presiding.</p> <p>The Chicago and Eastern Illinois Eailroad Company, appellant, filed its petition in the count}' court of Kankakee county, praying for condemnation of certain lands belonging to appellee. The petition, as amended, alleged the incorporation of appellant, with power to construct a railroad from Chicago, through the intervening counties, to the city of Danville, Illinois ; that it had located its line in accordance with its charter, and that such line passed over and across appellee’s land, describing the portion sought to be taken with particularity. The petition contained in other respects the statutory requirements, and it was alleged therein that the “petitioner desires to appropriate and use said property for the purpose of building and constructing its said line of road, and represents that said property is necessary for the right of way, sidetracks and appurtenances required by petitioner in constructing and operating said road, ” and praying that compensation to appellee might be ascertained, etc. On the return day a motion was made by appellee to dismiss the petition, which was overruled. A cross-petition was then filed by appellee, under the statute, and a jury sworn to fix .compensation, etc. After the petitioner had made its case, appellee renewed his motion to dismiss, which was again overruled, and at the conclusion of the hearing, and before the jury retired, the like motion was again made and overruled. The trial resulted in a verdict for $150 for land taken, and $1350 for damages to land not taken. Motion for a new trial overruled, and judgment on verdict in usual form in'proceedings for condemnation. Appellant appealed to this court, assigning numerous errors. Appellee assigns cross-errors on the record, and asks their consideration.</p> <p>On the trial appellant introduced evidence showing its incorporation under the general law of the State for the incorporation of railroad companies, and that appellant’s railroad was built between Chicago and Danville, Illinois, by the Chicago, Danville and Vincennes Eailroad Company, during the year A. D. 1872, under a private charter, passed by the legislature in A. D. 1865 ; that by conveyances under certain foreclosure proceedings, the title to said railroad was vested in the appellant company, which had been operating the railroad between Chicago and Danville for the past eight years. The point where the land was sought to be condemned was in the country, and it was conceded that appellant had thirty feet of land on its right of way, either side of its main track, level, and in every way suitable for a side-track, if one was needed at that place. It further appeared, that in 1884, about three-fourths- of a mile from the main line, a bed of clay, very valuable for the manufacture of red pressed brick,' had been discovered; that a company was formed for the manufacture of brick therefrom, and at the time of the trial over $100,000 had been expended in machinery, etc., for such manufacture; that a large number of brick were then on hand, ready for shipment, and that the machinery had a capacity of 40,000 brick per day; that the brick required careful handling, and it was impracticable to haul them in wagons, as the corners would get knocked off, and the value of the brick deteriorated or destroyed; that the principal market was Chicago, where they sold at $20 per thousand, and upwards; that the brick works were built as close to the track of appellant’s road as would be profitable in handling the clay, and that the brick works company had made an arrangement with appellant to furnish the money to build the track from the main line to the brick works, and were to be repaid by a rebate of twenty-five per cent of all freights hauled for them, until repaid; that to get this freight it was necessary to build this spur or side-track; that the trains of appellant would, by the arrangement, run once each way over this track each day. A map or plat was also introduced by appellant, showing the proposed track running substantially at right angles with appellant’s main line, and terminating at said brick works, and passing over appellee’s land for something over a half mile. The appellant’s general superintendent testified that the purpose of building 'this track was to maintain and -help out the business of the road; it was necessary to enable the company to get this freight,—the track might be used to shove cars on; that it was impracticable to get that freight without building this track, etc.</p>

<p>Writ of Error to the Circuit Court of Macon county; the Hon. James F. Hughes, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding. .</p> <p>On the 10th of March, 1868, appellee loaned appellant $600, and took his note for $601.50, the '$1.50 being the amount of revenue stamp then required by law. This note was subsequently taken up and a new one given. Appellant claims that the new note was dated February 12, 1874, and was for the sum of $944.06, while the appellee claims it was dated April 20, 1874, and was for the sum of $954.47. The declaration, as amended, contained a count upon each of the two supposed notes. The one dated April 20, 1874, was claimed to have been lost by appellee before the bringing of the suit. Appellant filed a plea denying the execution of the note for $954.47, dated April 20, 1874, verified by his affidavit, and a plea of payment of the note of $944.06, dated February 12, 1874. At the trial, proof of the making of the note of April 20 and of its loss was made. Appellant claimed, and his testimony tended to show, that he never had but the two notes of his brother, (appellant,),the one for $601.50, first given, and the renewal note of $954.47, and that appellee went to the house of appellant, in February, 1882, and had in his trunk the note for $954.47, and that it got out of his trunk some way, and was lost while he was at appellant’s house, at that time, and it was wholly unpaid, except $100 paid in 1875, and $100 paid in 1877. The appellant produced on the trial the note for $944.06, which he testified was the one given in renewal of the first note given by him to appellee, and further testified that he received a letter from Lewis Chamberlain, who was the father of appellant and appellee, inclosing to him this note now produced. On the back of this note was indorsed these words: “Freeman, I have paid this note in full to John, and send it to you.” On objection by appellee, this indorsement was excluded from the jury. Appellant also offered the letter of Lewis Chamberlain, which contained the note when sent to him. The court admitted the words:</p> <p>“Hebron, February 4, 1884.</p> <p>“Freeman—Now, Freeman, inclosed you find the John note. I send it to you. Lewis Chamberlain.”</p> <p>—But excluded the words in that letter, “I have paid it off. ” Appellant admitted the giving of the first note, and a renewal thereof, but claimed that the renewal note was the one produced by him. Appellant does not claim that he ever paid appellee anything on the note, except $100 in 1875, and $100 in 1877, both of which are admitted and credited on the note produced by appellant, but insists that their father paid appellee and took up the note for $944.06, and sent it to him by mail. The verdict was for appellee, in the sum of $1587.70. Motion for new trial was overruled, and judgment on the verdict. Appellant appealed to the Appellate Court, where the judgment of the circuit court was affirmed. He now brings the case to this court by appeal.</p>

<p>1. Trespass guare clausum fregit—as a possessory action—proof of title in the plaintiff. In trespass guare clausum fregit for damages in cutting down the plaintiff’s hedge, it is not necessary that he prove title to the land by a chain of conveyances from the government down to himself. It is enough for him to show possession of the premises alone, to entitle him to recover.</p> <p>2. Same—;justification — opening highway—cutting down a hedge not within the lines of the highway. Parties acting as commissioners of highways can not justify their entry upon the close of one and cutting down a hedge thereon, as having been done by them in opening a public highway laid out, where the proof shows that the greater part of the hedge cut down was not within the lines of the highway.</p> <p>3. Parties—in trespass for cutting down a hedge wholly on the land of one person. Where a hedge is not on the line between two tracts owned by different persons, but wholly on the land of one, the latter may maintain an action for its injury, in his own name. It is only when a hedge is on the line between different owners, that the question of co-tenancy as to it can arise.</p>

<p>Wbit of Ebbob to the Circuit Court of Shelby county; the Hon. Jesse J. Phillips, Judge, presiding.</p> <p>On proper application, leave was given by one of the judges of the fifth judicial circuit to file in the circuit court of that county an information in the nature of a quo warranto, on the relation of Robert Harper, against Joseph Ghesshire, William Barr and Isaac Smith, which information was then filed, and is as follows:</p> <p>“State of Illinois, ></p> <p>County of Shelby. ) SS"</p> <p>“In the circuit court, October term, A. D. 1883.</p> <p>“William G. Kelley, State’s attorney in and for said county of Shelby, who sues for the People of the said State of Illinois in this behalf, comes into the said court here, on this day, and for the said People, and in the name and by the authority of the said People of the 'State of Illinois, at the relation of Robert Harper, according to the form of the statute in such case made and provided, gives the court to understand and be informed that Joseph Ghesshire, William H. Barr and Isaac Smith, for the space of ninety days last past, and more, in the county aforesaid, have held and executed, and still do hold and execute, without any warrant, title or right whatsoever, the offices of school directors of district number 9, township number 12, north, range 2, east of the third principal meridian, in the county aforesaid, which said offices said Joseph Ghesshire, William H. Barr and Isaac Smith, during all the time aforesaid, in the county aforesaid, upon the People of the State of Illinois aforesaid, have usurped, and still do usurp, to the damage of said People, and against the peace and dignity of the same People of the State of Illinois, and contrary to the form of the statute in such case made and provided.</p> <p>“And said State’s attorney, for the People aforesaid, in the name and- by the authority of said People of the State of Illinois, at the relation aforesaid, according to the form of the statute aforesaid, further gives the court to understand and be informed that said relator, Robert Harper, is a resident of school district number 3, in township 12, north, range 2, east of the third principal meridian, in said county of Shelby, and the owner of real and personal estate therein, and a taxpayer of said district, and is also the owner of real estate and a tax-payer in school district number 9 aforesaid, in town 12, north, range 2, east, aforesaid, in said county of Shelby; and the said State’s attorney further gives the court to understand and be informed that the School law, in force July 1, A. D. 1881, authorized trustees of schools to make new school districts, but required that the territory formed into a new district should contain not less than ten families, and that when changes should be made in school districts, and no appeal be taken to the county superintendent, the clerk of the trustees of schools should make a complete copy of the record of the action of the trustees, which copy shall be certified by the president of said trustees of schools, and the clerk, who shall file the same, together with a map of the township showing the districts, and an accurate list of the taxpayers of the newly arranged districts, with the county clerk ; and that if an appeal be taken to the county superintendent, and he should affirm the action of the trustees, the county superintendent shall notify the clerk, by whom the papers were transmitted, of his action, ‘and the clerk shall thereupon make a record of the same, and shall, within ten days thereafter, make á copy of the same, and the map and list of tax-payers, and deliver them to the county clerk, for filing and record by him.’</p> <p>“And the said State’s attorney gives the court further to understand and be informed, that prior to the formation of said pretended district 9, said township 12, north, range 2, east, had for a number of years been laid off into eight school districts; that at the regular April meeting, A. D. 1883, of the trustees of schools of said township, a petition was presented to said trustees, asking that school district number 3 be divided, and that a new school district be made out of the territory described in said petition, and which petition averred that said territory contained not less than ten families, which petition is filed herewith, marked ‘Exhibit A,’ and made a part hereof; that said trustees, at said meeting, granted the prayer of said petition, and attempted to form two school districts' out of said district number 3, and numbered the new district 9, as will more fully appear from the order of said trustees and the map of the school districts of said township herewith filed, marked ‘Exhibits C and D,’ and made a part hereof.</p> <p>“And said State’s attorney gives the court further to understand and be informed, that at .the time of such action of said trustees, and now, said district 9 contained fifteen families, while said district 3 contained only eight families, and after such order of said trustees, the relator aforesaid, and other legal voters of said district 3 who had opposed said petition, appealed from said decision of said trustees to the county superintendent of said county, who, on the 12th day of May, A. D. 1883, affirmed the decision of said trustees, a copy of which order of .said superintendent is filed herewith, marked ‘Exhibit D,’ and made a part hereof.</p> <p>“And said State’s attorney further gives the court to understand and be informed, that the clerk of said trustees did not make a complete copy of the record of the action of said trustees, certified by the president of said trustees and clerk, and a list of the tax-payers in either said district 3 or 9, and file the same ivith the county clerk of said county, and that said clerk, though notified in writing of his action by said superintendent, did not make a copy of the record made by said superintendent and a list of tax-payers in either of said districts, and deliver the same to the county clerk of said county, as required by the statute.</p> <p>“And said State’s attorney further gives the court to understand and be informed, that said Joseph Chesshire, William H. Barr and Isaac Smith claim to be directors of school district number 9, in said town, and have made a certificate of levy, signed by two of them, and filed the same with the clerk of the county court of said county, on the 17th day of August, A. D. 1883, asking that the amount of $400 be levied as a special tax on the taxable property of said district number 9, for the year 1883, a copy whereof is herewith filed, marked ‘Exhibit E,’ and made a part hereof.</p> <p>“And said State’s attorney, for said People, at the relation aforesaid, and in the name and by the authority of the People aforesaid, therefore gives the court to understand and be •informed, that said school district number 9 was attempted to be formed by a division of said school district number 3, and that said school district number 3, after such attempted division, did not have the number of families required by the statute, and that said district number 9 was not legally formed, and was and is not a school district under and in accordance with the statute, and therefore said State’s attorney says that Joseph Chesshire, William H. Barr and Isaac Smith, for the ■space of ninety days last past, and more, in said county, have held and executed, and still do execute and hold, without any warrant, title or right whatsoever, the offices of school directors of said pretended school district number 9, in township 12, north, range 2, east, in said county, which said offices they, during all the time aforesaid, in the county aforesaid, upon said People of the State of Illinois, have usurped, and still do usurp, to the damage of said People, and against the peace and dignity of the same People of the State of Illinois, and contrary to the form of the statute in such ease made and provided.</p> <p>William C. Kelley, State’s Attorney</p> <p>in and for said Shelby county.”</p> <p>This was sworn- to by Eobert Harper. The exhibits referred to in the petition accompanied it, hut it is unnecessary to reproduce them here.</p> <p>The defendants appeared and filed a general demurrer to the information. The relator' joined issue on the demurrer, and the court overruled the demurrer; and thereupon, the defendants electing to stand by their demurrer, and refusing to answer over, judgment of ouster was rendered. The defendants sued out a writ of error from the Appellate Court for the Third District upon the judgment, and that court affirmed the judgment of the circuit court. The present writ of error brings before this court for review the record of the last named court, and errors are assigned appropriate to that end.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding.</p>

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

<p>1. Eminent domain—proceedings against several owners—right to a separate trial and a separate appeal. In proceedings under the Eminent Domain act, against several land owners, each separate owner may have his damages assessed before a separate jury, and is entitled to a separate appeal from the judgment rendered on the verdict.</p> <p>2. Same—mode of reaching defects in petition. The fact that a cross-petition, under the Eminent Domain act, avers only the evidence of title, and not any actual present title in the party filing it, and is uncertain in the description of his interest in the property, may afford ground of demurrer, but not any for dismissing the same.</p> <p>3. Same—right of way is properly, not a franchise. Aright of way for a railroad is not a corporate franchise, but is property acquired in the exercise of such franchise, and if it is sought to be condemned, the party in whom the same is vested in trust, will have the right to present his claim for compensation, and be heard in support thereof.</p> <p>4. Appeal—what is a final order from which appeal lies. Where a cross-petition filed by a defendant in a proceeding to condemn under the Eminent Domain act, brings before the court and states a claim of ownership or interest not stated in the original petition, is dismissed, the order of dismissal is final as to the rights claimed under it, and an appeal lies from the order of dismissal.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Josiah McRoberts, Judge, presiding.</p>

<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 Madison county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of McHenry county ; the Hon. Isaac Gf. Wilson, Judge, presiding.</p>

<p>Appeal from the Criminal Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.</p> <p>This was an information in the nature of a quo ivarrcmto, filed by Julius S. Gfrinnell, State’s attorney of Cook county^ against Francis A. Hoffman, Jr., Samuel B. Raymond and Daniel Corkery, in the Criminal Court of Cook county. The following is a copy of the information, except the formal parts, which was filed by leave of court:</p> <p>“The petitioner, Julius S. Grinnell, State’s attorney of Cook county, Illinois, respectfully represents to the said court that Francis A. Hoffman, Jr., Samuel B. Raymond and Daniel Corkery, have usurped and are now unlawfully exercising the office of election commissioners, and of a board of election commissioners in and for the city of Chicago, and ex-officio commissioners of election for the incorporated town of Lake, in said county, there not being any law authorizing or establishing any such office, and, claiming and pretending that they are such officers, have taken an oath that (among other things) they will faithfully and honestly discharge the duties of the office of election commissioners for said city, and have proceeded to elect one of their number chairman and one as secretary, and have demanded of the county clerk of said county, and have received from him, all registry books, poll books, tally sheets and ballot-boxes heretofore used, which were in the hands of said clerk, relating to elections and to the holding of elections within ■ said city of Chicago and incorporated town of Lake, in said county, and are proceeding to provide all necessary ballot-boxes, registry and poll books for the registry of voters and the conduct of elections in said city, and to make a general registration of voters for the next city, State, county and town elections, and to divide the said city of Chicago and town of Lake into election precincts, and appoint places of registry and polling places in each precinct, and also to select and choose three electors as judges of election for each of such precincts, confining their selection of such judges to the selection of one judge, at least, from each of the two leading political parties of the State,—that is to say, one from the Democratic and one from the Republican party,—and are insisting and claiming that they are the only persons and officers that can lawfully perform the said acts, and that they do hold the office aforesaid, and have the legal right to exercise the said power and all the powers set forth and specified in a certain act of the General Assembly, entitled “An act regulating the holding of elections, and declaring the result thereof, in cities, villages and incorporated towns in this State, ” approved J une 19, 1885, which said act was adopted by vote, as therein provided, by the electors of said city of Chicago and town of Lake, at an election held November 3, 1885, but which said act your petitioner alleges is null and void, the same being in violation of the provisions of the constitution of this State.</p> <p>“And your petitioner further represents that the said Francis A. Hoffman, Jr., Samuel B. Raymond and Daniel Corkery, claiming that they are such commissioners, are about to divide the said city of Chicago into election precincts, and select and choose judges of election therefor, and to cause registration to be made of the voters therein, and do each and all the acts mentioned in said act of the General Assembly at and concerning the election of aldermen to be held in said city, pursuant to the ‘Act to provide for the incorporation of cities and villages,’ under which said city is incorporated, which election is provided by law to be held on the 6th day of April, A. D. 1886, although the said election is not provided by law to be held for the election of any general officer of said city, but only for one alderman in each of the wards of said city.</p> <p>“And your petitioner further represents to the court, that by reason of the usurpation and unlawful exercise of said office, as aforesaid, and claim of right to do the acts and things above set forth by the said persons, great confusion, disorder and injury have resulted "and will result to the people of said city and town, and the peace and good order of the People of the State of Illinois will be disturbed unless the right and lawfulness of the said persons to fill and exercise said office is speedily determined:</p> <p>“Therefore your petitioner, as he is by law authorized to do, petitions and prays the court that it grant to him leave of the court to file herein an information in the nature of a quo nxxrranto, in tlie name of the People of the State of Illinois, to try the right of the said Francis A. Hoffman, Jr., Samuel B. Raymond and Daniel Corkery, to the office aforesaid, and to exercise the powers above set forth, and that process be issued, and such proceedings shall be had as provided by the statute in such eases, and as shall be requisite to determine the right of the said parties in the premises, and to oust them from the said office, and to enforce and maintain the peace and dignity of the People of the State of Illinois.”</p> <p>The defendants filed a plea in substance as follows, omitting the formal parts : That the General Assembly, in 1885, passed an act entitled “An act regulating the holding of elections, and declaring the result thereof, in cities, villages and incorporated towns in this State,” approved June, 1885, and that under the authority conferred by said act they are now performing and exercising the duties, franchises and obligations imposed on the board of election commissioners by said act; refers to the act; avers that on the 12th of August, 1885, over one thousand legal voters of the city of Chicago voting at the last preceding election, presented a petition to the judge of the county court of Cook county, in which the city is located, to submit to a vote of the electors the proposition whether said city and electors thereof should adopt the act; that on August 24, 1885, the county court submitted said proposition at an election held November 3, 1885; that the county judge gave at least sixty days’ notice of the election, by publication in one or more newspapers published in Chicago, for at least five times, and that the first publication was sixty days before the day of the election; that an election was held on November 3, 1885; that the votes were canvassed on the sixth day after the election, and the result declared as provided in the act, and thereupon the county court entered an order declaring the number of votes east for the proposition, 31,984, and against, 14,557; that in fact that number of votes was cast for and against the act; that the county court, by order, did, on November 9, 1885, declare the act adopted, and on the 12th of November, 1885, the county judge filed a copy of such order in the office of the Secretary of State; that on the 25th of November, 1885, the county court appointed defendants election commissioners, by order entered of record, and designated the term of Francis A. Hoffman, Jr., for one year, Samuel B. Baymond, two years, and Daniel Corkery, three years, in accordance with the requirements of the act, and that they were eligible to such offices; that on the 25th of November, 1885, each filed official bond in the sum of $10,000, with sureties approved by said judge, conditioned as required by the act, and took the oath of office, and afterwards met and organized as a hoard by electing Francis A. Hoffman, Jr., chairman, and Samuel B. Baymond, secretary; that by reason of the premises they have become duly qualified election commissioners, and to hold said office until their successors shall be duly appointed and qualified; that by virtue of the several proceedings, they and each of them became, and now are, invested with the office of election commissioners for said city of Chicago; averments of the adoption of the same act, at the same time and in the same way, in the town of Lake, and that they entered upon the discharge of the same duties for the town of Lake. This inducement is followed by a traverse of the usurpation charged in the information.</p> <p>The People filed a general demurrer to this plea, which the court overruled, and judgment was entered for the defendants. An appeal wras granted, by consent of the parties, to the Supreme Court for the Central Grand Division.</p>

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

<p>Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.</p>