Volume 117 — Illinois Reports

<p>Appeal from the County Court of Whiteside county; the Hon. William J. McCoy, Judge, presiding.</p>

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

<p>1. Taxation—bridge for railroad purposes, to be assessed as “railroad track’’—and by whom. A bridge across a navigable stream forming the boundary between this and another State, constructed and used exclusively by a railroad company as a part of its continuous line of railroad, for the purposes of taxation, comes within the denomination of “railroad track," and as such is to be assessed only by the State Board of Equalization. Its assessment by the local assessor is without warrant of law, and taxes extended thereon may be enjoined.</p> <p>2. Same—and herein, as to the meaning of the act of 1873 relating to the assessment of bridges. The act of 1873, providing that “all bridge structures across any navigable stream forming the boundary line between the State of Illinois and any other State, shall be assessed by the township or other assessor in the county where the same is located, as real estate, ” was not intended to change the method of taxing railroad property or the mode of assessing it, but to apply to bridges not constituting a railroad track exclusively, and to make such structures real estate, for the purpose of collecting taxes thereon.</p> <p>3. Same—whether railroad bridge built in excess of power not material. On the question of the proper authority to assess for taxation a bridge built by a railroad company, the question whether the company exceeded its chartered powers in building the bridge is wholly immaterial.</p> <p>4. Statutes—construction—looking beyond words to the intent. A thing which is within the letter of a statute is not within the statute, unless it be within the intention of its makers. In determining the meaning of a statute, the courts are not confined to its words, but will regard its purpose, and consider it, in connection with other statutes, in pari materia, and in view of the condition existing.</p>

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

<p>1. Cbiminal law—possession of stolen property, as evidence of guilt-explanation of such possession—degree of proof required. It is error for the court, on trial of one for larceny, to instruct the jury that the possession of the stolen property soon after the theft is sufficient to convict, unless such possession is satisfactorily explained, and. that an alibi must be clearly and satisfactorily proved before that defence can avail.</p> <p>2. The burden of proof is on the People to establish a defendant’s guilt of the crime charged; and when the defendant charged with larceny introduces evidence to explain his recent possession of the stolen property, and tending to establish an alibi, if the jury, after considering the evidence introduced by him as to either or both such questions, in connection with the other evidence, have a reasonable doubt of his guilt, they should acquit.</p> <p>3. Same — former decision. The ruling of this court in the case of Waters v. The People, 104 111. 544, is not at variance with the rule announced in this case. There the defendant was found in the possession of the property almost immediately after it was stolen, and no evidence was offered to explain his possession, so that the question of the extent to which he was required to make explanation of his possession to exonerate himself, was not before the court, and the instruction in that case, though irrelevant, could not possibly have been misleading.</p> <p>4. Same—larceny—horse stealing—finding the value. It is not essential to a conviction for the larceny of horses, that the jury in their verdict shall find their value. The distinction between grand and petit larceny as to the offence of horse stealing, is abolished in this State.</p> <p>5. Witnesses—competency of grand juror to prove what a witness tes-' tifled to before grand jury. It is competent to prove by members of a grand jury that a witness testified differently before that body from his testimony on the trial, where the proper foundation is first laid.</p> <p>6. Same—credibility—giving false testimony. An instruction to the jury, that if they believe, from the evidence, that a witness has testified falsely as to any material fact in the case, they may, and it is their duty to, disregard his entire evidence, except so far as he is corroborated by other credible evidence, or by facts and circumstances proved on the trial, is erroneous, in omitting the very material qualification that the false testimony shall have been willful, and in directing the jury to disregard this testimony of the witness. The jury may, but are not bound to, disregard the evidence.</p> <p>7. Same—impeachment—of the mode. To show an alibi in a criminal case, the defendant called- as a witness a former clerk of a hotel, and proved by him that he saw the defendant at the hotel on the morning after the larceny, between four and five o’clock. The People then introduced evidence to show that the witness was discharged as hotel clerk, a day or so before the time spoken of, for drunkenness. This was not done to contradict’the witness by showing his absence, it being conceded he was at the hotel at that time, but it was the evident purpose thereby to impeach him: Held, that the court erred in admitting the evidence, as the witness could not be impeached in this way. If his reputation for truth and veracity was 'bad, that fact should have been proved. Why his employer discharged him was immaterial.</p> <p>8. - In order to impeach a witness by showing he testified differently on his examination before the grand jury, his attention must first be called to his testimony before that tribunal, and he be allowed to state whether he did not testify as claimed. If he admits he did, he may explain why his present testimony is different; but if he denies that he testified differently, he may be contradicted.</p> <p>9. Instructions—directing attention to only a part of the evidence. An instruction which selects a part of the evidence on a particular question and calls the attention of the jury to it, and omits other evidence that is entitled to be considered, on the same question, is calculated to mislead, and is erroneous.</p> <p>10. Same—curing errors by other instructions. In order that objectionable instructions maybe cured by others, the latter must either directly refer to and explain and qualify the former, or be supplementary to the former, and supply what was omitted in them; but when the latter are supplementary to the former instructions, the former must be correct as far as they go, and be defective only in not going further, and including what is supplied by the supplementary ones.</p> <p>11. Where one. instruction declares that the- law is one thing with regard to a particular matter or state of circumstances, and another one states that the law is another and materially different thing with regard to precisely the same matter or state of circumstances, the instructions are repugnant, and no repetition of the correct ones can cure the error of those that are incorrect.</p> <p>12. Error—whether ground for reversing. Where this court can see, from the record, that the evidence is so overwhelmingly against a defendant tried for a criminal offence, that had the jury been instructed correctly they must still have found against him, it will not reverse a judgment of conviction for mere error of instruction. But where the evidence leaves the question of guilt doubtful, or is not clear and satisfactory, the defendant is entitled to have it passed upon by a jury instructed with substantial accuracy as to the law applicable to it.</p>

<p>1. Taxation—exemption. It may be regarded as a general rule that all-property is liable to taxation for State, county and municipal purposes, except 'such as the General Assembly has seen proper by general law to exempt. Section 3, article 9, of the State constitution, does not exempt any property from taxation. It only authorizes the legislature, by a general law, to exempt certain property.</p> <p>2. Same—exemption of church property. Church property, to be exempt, from taxation,must be actually and exclusively used for public worship, and' the land, of a reasonable size for the church building, must be owned by the congregation. If the congregation is not organized it can not own the property, and without such ownership the property is not made exempt.</p> <p>3. Same—proceeding to determine the question of exemption. In a proceeding by the Auditor of Public Accounts, in the Supreme Court, to procure a reversal of an order of the board of supervisors declaring certain real estate exempt from taxation, the question of the regularity of the assessment by the local assessor is not involved, the only question being whether the.property is subject to taxation.</p>

<p>Appeal from the Appellate Court for the Fourth District; —heard in that' court on appeal from the Circuit Court of St. Clair county; the Hon. Geo. W. Wall, Judge, presiding.</p>

<p>1. Practice in Supreme Court—when cause is prematurely taken. If a cause on docket is taken prematurely for decision before the appellees are required to join in error, there being nothing to show that they have all appeared and filed their briefs, and before an abstract of the record of the Appellate Court is filed as required, the order taking the case will be set aside and the cause continued.</p> <p>2. Appeal—during a term of this court. Where an appeal is taken from the Appellate Court to this court during a term of this court, the appellees are not bound to follow the case to that term.</p>

<p>This was a petition filed in this court on May 5, 1886, at Mt. Vernon, by John S. Smith, praying for a writ of habeas corpus. The facts of the case are stated in the opinion of the court.</p>

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

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

<p>1. Bigamy—sufficiency of indictment. An indictment charging the defendant with having married in this State one who then became his lawful wife, and afterward, in another State, unlawfully marrying another woman while yet the lawful husband of the first, never having been divorced from her, and she being then living, and that he afterward unlawfully cohabited with the last woman in this State, is sufficient to show a case of bigamy, under our statute.</p> <p>2. Same—proof of second marriage—admission of defendant. Where an indictment for bigajny charges the second marriage to have been made in a certain other State named, and subsequent cohabitation with the second wife in this State, the admission of the defendant that he had married her, is not sufficient proof of the marriage in such other State, which is necessary to be proved as charged; nor is such admission sufficient evidence of a marriage in this State.</p> <p>3. Same—certified copy of certificate'of marriage, to prove marriage. On the trial of one for bigamy, the prosecution, to prove the second marriage in another State, offered in evidence a certificate of a clerk of the district coart of such State that there was in his office a record of a marriage license and certificate of marriage, giving a copy thereof, to which was attached a certificate of the judge of the court that the clerk’s attestation was in due form, which the court admitted, over the defendant’s objection: Held, in the absence of proof that such entries were required to be kept by some law of the State from which the)7 came, the certificate and exemplification were not admissible in evidence.</p> <p>i. Evidence—registers of births and marriages. Registers of births and marriages made pursuant to the statutes of any of the United States, are competent evidence; but when not made under the sanction of law and official duty, they are not evidence.</p>

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

<p>1. Statute of Frauds—trust resting in parol. A party who conveys land by a deed absolute in form, can not show by parol evidence that the conveyance was in fact in trust for certain purposes, or for his benefit, when the Statute of Frauds is interposed.</p> <p>2. Trust—of the character of interest required. Before a party can have a deed set aside and a trust declared in his favor, he must, by proper evidence, show that he has an equitable interest in the land which a court of equity will recognize and enforce.</p>

Cook county; the Hon. John Gr. Rogers, Judge, presiding. This was assumpsit, in the circuit court of Cook county, by appellee, against appellant.

<p>1. Partnership rands—homestead—rights of partners as between themselves—and as to creditors. One partner can not acquire and hold a homestead estate iñ real estate of the firm, as against a partnership debt, and without the consent of his co-partners.</p> <p>2. The true and actual interest of each partner in the partnership stock, including its lands, is the balance found due to him after the payment of all partnership debts, and the adjustment of the partnership account between himself and his co-partners. In equity, partnership land stands on the same footing as personal property. Such lands are not subject to dower or homestead.</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. Arthur A. Smith, Judge, presiding.</p>

<p>1. . Contkact—conditional acceptance of an offer to sell. To constitute a contract of sale of land by the acceptance of an offer to sell, the acceptance must be unconditional. No contract will result from a letter in reply, that the party will accept the offer “provided the title is perfect.” At any time before an unconditional acceptance of an offer and compliance with its terms it may be withdrawn.</p> <p>2. Same—receipt of a deposit, whether a contract of sale. The agents for the owner or party having the power to sell a lot, gave to a party desirous of purchasing the same, a receipt as follows: “Received of J. H. W., attorney for T. R. 0., his check for $500, as deposit on account of proposed purchase of sub-lot- 2, etc., said sum of $500, when paid, to apply on said purchase of said lot at $8000 cash, or to be returned to him in case said sale can not be perfected, say within sixty days from this date, or in case the title should prove defective, it being understood that we are to forward-a deed to the owner of said lot and recommend its execution.—Lyman & G-iddings:” Held, not the evidence of a contract of sale, but only a proposed purchase and agreement of the agents to forward a deed and recommend its execution.</p>

<p>1. Tax title—notice by the purchaser—its requisites. "Where the affidavit of the service of notice of a tax purchase fails to state the particular facts relied on as showing a compliance with sections 216 and 217 of the Bevenue act, as amended by the act of 1879, the sale being in 1881, for the taxes of 1880, it will not authorize the making of a deed by the county clerk, and if made, it will be void.</p> <p>2. Escheats—of the proceedings to establish an escheat. Under the law of 1845, where the owner of real estate died intestate, without heirs capable of inheriting it, the title thereof devolved, by operation of law, upon the State. But to make the title available to the State, it had to be first established by a judicial proceeding in the nature of an inquest of office; and the record of it is the only competent evidence by which a title by escheat can be established.</p> <p>3. Although general power is confeired by statute upon the court to adjudicate in respect to escheats, yet it must be put into motion by the filing of an information conforming substantially to the requirements of the act governing such proceedings, otherwise jurisdiction as to the subject matter will not attach.</p> <p>4. The first step under the act of 1845 to establish an escheat, was the filing by the Attorney General or circuit attorney of an information in the circuit court of the county in which the land was situated, giving its description, the name of the person last lawfully seized, the names of the ierre tenants, and persons claiming such estate, if known, and the facts and circumstances in consequence of which such estate is claimed to have escheated, and alleging that by reason thereof the State hath right, by law, to such estate.</p> <p>5. Same—of the process—when it may properly issue—and its requisites. On the filing of such information it was made the duty of the court to award and issue a scire facias against such person or persons, bodies politic or corporate, as shall be alleged in the information to hold, possess or claim such estate, requiring them to appear and show cause why such estate should not be vested in the State.</p> <p>6. Where the information fails to give the name's of the ierre tenants, no scire facias can properly issue against them to make them parties; and the issue and service of such process on part, only, of such tenants not named in the information, will fail to give the court jurisdiction over the person of any one claiming adversely, and its judgment will be void.</p> <p>7. A scire facias issued in 1849 upon an information to adjudge a tract of land as escheated to the State, requiring the ierre tenants and claimants to appear and show cause why the land should not be vested in the State, is void if it does not run in the name of the People of the State, and being void, its service is a nullity.</p> <p>8. Same—of the notice to others interested. It is also made the duty of the court to make an order setting forth briefly the contents qf the information, and requiring all persons interested in the estate to appear and show cause, at the next term, why the land should not be vested in the State. This order was required to be published for six weeks successively, in some newspaper, the last insertion to be at least two weeks before the term to which they were required to appear.</p> <p>9. The court can only acquire jurisdiction, under the law of 1845, over persons interested, other than those named as tenants and claimants, by making an order setting forth the contents of the information, and requiring all persons interested in the estate to appear, and causing such order to be published six weeks successively, the last insertion to be at least two weeks before the next term. When it appears that the last insertion was less than two weeks, the court will acquire no jurisdiction.</p> <p>10. Same—effect of finding of due service. And if the record shows a certificate of the publication of notice not such as the law required to give jurisdiction, a recital in the orders and judgment that notice was properly given, will not avail to sustain the judgment.</p>

<p>1. Fraud and deceit—loan of money procured thereby—tender of securities back to the agent through whom the fraud ivas committed. An attorney procured a loan of money to be made to a person residing in another State, upon the false and fraudulent representation that such person was very wealthy, and ivas the owner of valuable real estate in this State, which he-offered to mortgage to secure the loan, the attorney knowing the falsity of' his representations. The attorney gave the lender the note of such person, with a mortgage upon property to which the mortgagor had no title. The-attorney testified that he was agent for the person giving the note and mortgage, and the lender tendered back the note and mortgage to the attorney, and brought his action against him to recover damages for the fraud and deceit practiced by him: Held, that the offer to surrender the note and mortgage to the defendant was sufficient to authorize the action, and that it was-not necessary for the plaintiff to seek the maker of the note and mortgage, or his personal representatives, he being dead, and surrender the same to them.</p> <p>2. Measure oe damages—money borrowed upon fraudulent security ■—distinguished from a fraudulent sale of land. Where a sale of land is-made by false and fraudulent representations as to its value, quality or condition, the measure of damages in an action by' the purchaser, is the difference between the actual value of the land and its value aspt was represented to be at the time of the sale. But this rule has no application to a loan of money made in reliance upon fraudulent and "false representations as to the title and value of the land given as a security for the repayment of the loan.</p> <p>3. So in an action on the case against a party procuring a loan of money through fraud and deceit, upon representations that the security offered was good, when, as a matter of fact, it was known by the defendant to be worthless, and this was not known to the plaintiff, it was held, the true measure of damages was the amount of money thus obtained, with interest thereon from the time it was received.</p> <p>4. Practice—time to object—for variance between the pleadings and the proof. In case of a variance between the averments of the declaration and the proofs, in an action on the case to recover for money obtained through fraud and deceit practiced by the defendant, it should he pointed out on the trial, to give an opportunity to obviate the same by amendment. It is too late to make the objection for the first time on appeal or error.</p> <p>5. Instbuction—referring to the evidence as the basis of belief. An instruction is defective in form, if it requires the jury to believe, without requiring the belief to be from the evidence, and its refusal will not be error, especially when its substance is embraced in one given.</p> <p>6. Same—singling out particular portions of the evidence. There is no-error in refusing an instruction which selects conversations testified to by the party asking it, and attempts to lay down certain conditions upon which, alone, such conversations can be regarded as proved by a preponderance of the evidence, especially when the duty of the other party to establish his case by a preponderance of evidence, is stated in another -instruction which was given.</p> <p>7. Same—at variance with the evidence. In an action against a party for fraud and deceit in obtaining a loan of money to one whom he fraudulently represented to be a -wealthy man, the defendant asked the court to instruct the jury to find for him, unless they found, from the evidence, that the person to whom the loan was made was insolvent at the time of the commencement of the suit, which was refused. The evidence clearly showed that such person had been dead some two years before the suit was brought: Held, no error in refusing the instruction.</p>

Writ of Error to the Appellate Court for the First District ;—heard -in the court on writ of error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.

<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>Appeal from the Circuit Court of DeKalb county; the Hon. Charles Kelluh, 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. Bollin S. Williamson, Judge, presiding.

<p>' 1. Guardian and ward—in case of several wards, and only one bond ■—several liability to the wards. Where one is appointed guardian for three wards and gives but one bond, he will be the separate guardian of each ward, and the death of one will not relieve the guardian from responsibility as guardian of the survivors; and an action may be maintained on his bond, in the name of the People, for the use of the surviving wards.</p> <p>2. Same—grounds of liability on guardian’s bond—whether a devastavit must first be established. An action lies upon a guardian’s bond, given prior to the act of 1874, without first establishing a devastavit. A declaration on,such a bond contained two breaches: First, that on April 17, 1877, the county court ordered the guardian to render a full account of his guardianship, and that he failed to do so; and second, that one of the wards was, on July 16, 1877, (the day she became of age,) entitled to receive a certain sum from the guardian, and that he converted such sum to his own use, and failed to pay it over to her: Held, sufficient, if proved, to authorize a judgment against the surety on the bond.</p> <p>3. It is no defence to an action on a.guardian’s bond to allege and show that “no adjustment was ever had of the accounts of the guardian by the probate court. ” It is not necessary that the liability of the principal be first established by obtaining judgment against him alone, before the surety can be held liable. Section 13, chapter 103, of the Eevised Statutes of 1874, dispensing with the necessity of establishing a devastavit, applies in the case of a suit upon a guardian’s bond executed before it took effect.</p> <p>4. Same—loaning money of the ward without approval of the court. A loan of money of the ward, by the guardian, upon real estate security without the approval of the county court, is made at the peril of the guardian, and if a loss occurs, the guardian can not exonerate himself by showing that he acted in good faith, or that the security was good when taken.</p> <p>5. Same—ratification by the. ward. The fact that a ward, after reaching her majority, lived with her father, in his house, upon property mortgaged by him to secure a loan from her guardian, is not sufficient^ to show that she ratified or approved of the act of the guardian in making such loan to her father.</p> <p>6. Same—interest—when recoverable in action on guardian’s bond. In an action on a guardian’s bond, the evidence showed that prior to the institution of the suit the guardian made a report to the county court, showing a certain sum in his hands on January 1, 1877, belonging to his ward, which he never paid; that he failed to make a full accounting when ordered to do so by the county 'court, and that he loaned Ms ward’s money on real estate securities without the approval of the county court: Held, that for these violations of duty he was clearly chargeable with -interest. It was not necessary to show a demand for the money before interest could be charged.</p> <p>7. Statute—affecting the remedy—retrospective operation. Where an act merely changes the remedy or the rule of procedure, all rights of action will be enforcible under the now procedure, without regard to whether they accrued before or after such change in the law.</p> <p>8. A statute providing that it shall not be necessary to a recovery upon an official bond, that a devastavit shall have been previously established against the principal, is one which has reference only to the mode of procedure. ■</p> <p>9. Bemittitur—to obviate error in excessive damages. If the plaintiff takes judgment for more damages than are alleged in the declaration, he may cure the error by a remittitur of.the excess, in the court of review.</p> <p>10. Error will not always reverse—receiving evidence not necessary. The fact that a court trying a cause without a jury may have received in evidence papers and proceedings more than were necessary or material to be shown, affords no ground for reversal:</p>

George W. Stiff,- Judge, presiding. This was a hill in equity, in the circuit court of LaSalle county, hy Thomas Herbert, in which he alleged that, being enfeebled by age, he was induced, by the persuasions of his son, Patrick Herbert, to execute and deliver to him a deed, of which the following is a copy: “This indenture, made this 21st„day of August, A. D. 1871, between Thomas Herbert, of the county of LaSalle, and State of Illinois, party of the first part, and Patrick…

<p>Appeal -from the County Court of LaSalle county; the Hon. C. B. G-arnsey, Judge, presiding.</p>

Henry M. Shepard, Judge, presiding. This was a hill in equity, by appellants, against Emanuel Kramer, Nathan Kramer and Samuel Loebstein, composing the firm of Kramer Bros. & Co., in which it is alleged that said firm of Kramer Bros. & Co. was formed on or about November 1, 1882, for the purpose of conducting a wholesale hat business, and was to continue for three years; that they started with an alleged capital of $76,000, of which Nathan Kramer put in $18,000, Samuel…

<p>Writ of Error to the Circuit Court of DuPage county; the Hon. Charles Kellum, 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 Hón. Elliott Anthony, Judge, presiding.</p>

<p>1. Criminal law—indorsing witness’ names on indictment. The statute requiring the foreman of the grand jury to note on the indictment the names of the witnesses upon whose testimony the same was fopnd, is mandatory; and a disregard of this requirement will authorize the court, on proper motion, to quash the indictment.</p> <p>2. The statute does not require'that the names of all witnesses who may names of those upon whose testimony the indictment may have been found. be called to testify on the trial shall be noted on the indictment, but only the</p> <p>3. Where the names of five witnesses were noted on an indictment by the foreman, after which were the words, “See, for other witnesses, Off. C. and it was held, that it would be presumed the foreman did his duty by noting the names of all the witnesses who testified before the grand jury, and that a motion to quash the indictment for want of an indorsement of other witnesses was properly overruled.</p> <p>4. Same—election of counts, when not required. A party was tried upon an indictment, one count being for larceny and the other for receiving stolen goods knowing them to have been stolen. The proof showed that the two offences charged formed parts of a single transaction. At the close of the evidence for the prosecution the defendant asked the court to require the prosecution to elect the count upon which a conviction was sought, which the court denied: Held, that the case was not one in which the court was required to compel an election.</p> <p>5. Same—conviction upon admissions of accused. Where the fact of the commission of a larceny is shown by other and direct evidence, the defendant may be convicted of the same by proof of his admissions or confessions, deliberately made.</p> <p>6. Where a crime has been committed, the admissions of a party charged therewith, deliberately made, are admissible for the purpose of showing his guilt; and the jury, who are the judges of the weight to be given to all evidence, may convict on such evidence, if they believe it sufficient.</p>

<p>Writ oe Error to the Circuit Court of Effingham county; the Hon. Thomas S. Casey, Judge, presiding.</p>

<p>1. Mental capacity—undue influence—in respect to the malting of a deed or will. To set aside a deed on the ground of mental weakness of the grantor, it is necessary to show such a degree of mental weakness as to render him incapable of understanding and protecting his own interests. The mere fact that his mental powers have been somewhat impaired by age or disease, is not sufficient, if the maker of the deed still retains a full comprehension of the meaning, design and effect of his acts, unless by reason of undue influence of the grantee he is unable to exercise his will in that respect.</p> <p>2. The fact that a party is physically unable to look after his property, or his mind is enfeebled by age or disease, if not to the point of lunacy or absolute imbecility, does not take from him the power to dispose of his property by deed or will, as he pleases.</p> <p>3. Weakness of mind from age and sickness, short of absolute incapacity, may be considered, in connection with undue influence, as making the grantor an easier victim to such influence; but weakness and opportunity for undue influence do not prove that undue influence has been exercised.</p> <p>á. The undue influence which will avoid a deed must be such as to destroy the freedom of the maker’s will. Mere advice or argument or persuasion will not vitiate it, if made freely and from conviction, though it may appear that the instrument would not have been made but for such advice or persuasion.</p> <p>5. Neither a deed nor a will can be impeached merely because of the injustice or impropriety of the provisions thereby made. If the maker is sane, he may, from caprice, causeless malice or foolish prejudice, cut off his children, and give his property to strangers. The moral injustice or caprice may be considered only as a circumstance on the question of insanity, but it is not a controlling one; and if, from other evidence, it be clear the party was sane, it is of no moment whatever.</p>

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

<p>1. Corporations—foreign and domestic—placed on the same footing. The purpose of section 26, chapter 32, of the Be vised Statutes of 1874, was to produce uniformity in the powers, liabilities, duties and restrictions of foreign and domestic corporations of like character, and bring them all under the influence of the same law. Therefore a foreign corporation doing business in this State possesses the same, but no greater, powers, than a corporation organized under our statute.</p> <p>2. Same—power to acquire real estate—extent of the power. Corporations for pecuniary profit, organized under chapter 32 of the Bevised Statutes of 1874, are invested with power and capacity to hold and own so much real estate as may be necessary for the transaction of their business. So a corporation organized under the laws of another State which confer upon it similar or greater capacity, may acquire title to real estate in this State, so far as the same may be necessary for the transaction of its business.</p> <p>3. Same—acquiring real estate for a purpose not authorized—who may complain. If a corporation, foreign or domestic, has the power to acquire and hold real estate for any purpose, a deed to it will divest the grantor of his title, whether, it is acquired for the purpose authorized, or not; and whether the corporation -has exceeded its powers in purchasing, as, a purchase for a purpose not authorized, is a question between it and the State, and does not concern the grantor or those claiming under him adversely to the corporation.</p>

Writ of Error, to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.

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

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

<p>Writ of Error to the Circuit Court of Jackson county; the Hon. Oliver A. Harker, Judge, presiding,</p>

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

<p>Appeal from the Circuit Court of Clay county; the Hon. Cabboll C. Boggs, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Madison county ; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Evidence—conclusion of witness instead of giving facts. In a suit by an attorney against a town to recover for legal services in defending a suit, he testified, over the objection of the defendant, that about a certain time he was employed in the suit, but that he could not recollect the particular mode of employment, and that he never thrust himself into the defence of a suit in which he did not believe he was employed: Held, that the admission of such statements was manifest error, and that in no event could he be permitted to state his conclusion as to being employed. He should state only the facts relating to his retainer.</p> <p>2. Instruction—assuming disputed facts, and selecting out facts on one side only. An instruction which is a summary.of the principal facts claimed to be proved by the plaintiff, and the conclusion to be drawn from such facts as a matter of law, and which also assumes as facts matters of serious contention, and leaving out of consideration the defence insisted on, is manifestly erroneous.</p> <p>3. Appeal—reviewing facts. It is only the findings by the Appellate Court of controverted questions of fact, that are conclusive upon this court. The findings of the trial courts in cases which, for any reason, come directly to this court, are not conclusive.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Amo? Watts, Judge, presiding.</p>

William H. Snyder, Judge, presiding. This was a bill filed in the Madison county circuit court, on September 26, 1883, for partition of real estate lying in that county and in the county of Cook, by the two children and five grand-children of Stephen H. Long, deceased.

<p>Appeal from the Circuit Court of Jackson county; the Hon. ' Oliver A. Barker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Gallatin county; the Hon. Carroll C. Boggs, Judge, presiding.</p>

Clair county; the Hon. Amos Watts, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Fourth District, which was heard in that court on appeal from the circuit court of St. Clair county.

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

<p>1. Tenants in common—partition—equalising shares by payment of money, as owelty. It is competent for a court of equity, on bill for partition of real estate, to decree the payment "of a sum. as owelty, to equalize the shares among the parties.</p> <p>2. Same—improvements upon the common property—power of court— rights of the respective owners. One tenant in common may rightfully insist that the other shall contribute his proportionate share for the preservation of the joint property, but he can not insist that he shall enter upon new investments, to be paid for from the joint property or out of other funds belonging to him, against his judgment and inclination.</p> <p>3. And a court of equity, on bill for partition of real property, has not the power to cause improvements and alterations to be made upon the same, preliminary to a partition, through its master in chancery, against the protest of one of the owners of the property, and require the parties in interest to pay the expense thereby occasioned.</p>

<p>1. Winn—election to lake under a will—application of the doctrine. "Where a testator devises property to his sons, and also property belonging to them, to another, they must either relinquish their claim to their own property so devised, or to the provision made in their favor. A party can not take under a will and also'contrary'to it. In such-case he mustunake his election.</p> <p>2. The doctrine of election does not apply where the testator has hut a part interest in an estate which he devises; but even in such a case, if it is apparent from the terms of the will that the testator intended to devise the ‘ whole estate, including the interest of a third person, then the doctrine will apply as to such third person, if a devisee.</p> <p>3. Same—whether devise of whole or part interest. The language in a will, that the testator gives and devises to a son-in-law the south-east fractional quarter of section, etc., containing sixty-two acres, and also part of north-west fractional quarter of section number 21, etc., containing eighteen acres, imports a devise of the whole of the two tracts, although it may be the testator owned only an undivided interest in the same.</p> <p>4. A testator owning but an undivided interest therein, by his will devised as follows: “I give and bequeath to J. S. one hundred and fourteen acres of land, (describing it,) to be set off to him so as to include all the land I own in said claim and survey, excepting the part of the same already reserved for A. M., and also to include all the lands in said quarter section which I ' own lying south of the road recently located from T. to East Prairie Union Church.” The word “own,” did not refer to the undivided interest of the testator, but to the extent of the entire claim in the survey, as appears from a prior clause devising a part of the claim to A. M.: Held, that it was evident the testator intended to devise, not his undivided interest in the claim and survey, merely, but the whole estate.</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. H. M. Shepard, Judge, presiding.</p>

<p>1. Negligence—contributory negligence to defeat recovery—as, where a conductor fails to bring his train to a stop on approaching a crossing— or fails to await a signal. Where a conductor of a railway train fails to have the same brought to a stop not less than two hundred feet before reaching a crossing of another railroad, as required by the statute, and such failure contributes to a collision with a train on the other road, causing the death of the conductor so neglecting his duty, no recovery can be had by his personal representative. If the injury might have been avoided by his bringing his train to a full stop the proper distance, before reaching the crossing, no recovery can be had, although the agent of both roads at the crossing may have been guilty of negligence in signaling the several trains when to pass.</p> <p>2. And where, it was the duty of the conductor killed, to hold his train until the proper signal was given for him to make the crossing, and the signal was given for the train on the other road to cross, and while it was in the act of crossing, such conductor negligently failed to observe the signal, and undertook to make the crossing in disregard of such signal, which was well understood, whereby a collision occurred resulting in the conductor’s death, it was held, that no recovery could be had in an action by his personal representative against either of the railway companies whose .trains collided.</p> <p>3. Same—fellow-sérvants—injury from neg ligence of a fellow-servant— as exempting common master from liability—and who are fellow-servants. Where a conductor of a train is killed by a collision of two trains at the intersection of two railroads, in consequence of the negligence of the station agent in giving signals when the several trains might pass with safety, no recovery can be had by his personal representative, if his co-employes in charge of the train under him were guilty of negligence which contributed to his death.</p> <p>4. In order to exempt a master from liability on account of injuries sustained by one of his servants or employes, resulting from the negligence of another one of his servants, the two servants must be co-employes directly operating with each other in a particular business, in the same line of employment, or their usual duties must bring them habitually together, so that they may exercise a mutual influence upon each other promotive of proper caution.</p> <p>5. Instbuctions—assuming there was negligence—and whether an instruction does so assume. In an action against a railway company to recover for an injury alleged to have been caused by the negligence of the defendant’s servant in the discharge of his duty, an instruction assuming as true the negligence of such servant, would be erroneous. In such case it is for the jury to find, from the evidence, whether such servant was guilty of the imputed negligence, as a question of fact; and it is not within the province of the court to direct the jury that any person was negligent, or assujne the negligence of any one alleged to be responsible for the injury.</p> <p>6. In such case, when the injury is charged to be the result of negligence of an agent of the defendant companies in operating a semaphore, or signal, at the intersection of the two roads, a clause in an instruction for the plaintiff, that “if the jury find, from the evidence," that said collision occurred solely by reason of gross negligence of one N. E. T. (the agent) in operating the semaphore,” was held not open to the objection that it assumed as true the negligence of such agent.</p> <p>7. Same —giving undue prominence to particular facts—and, whether an instruction is liable to such objection. Where the evidence is conflicting, it is improper to select isolated portions of the evidence, and give them prominence, by calling the attention of the jury especially to them. But an instruction which in substance informs the jury that if they find, from the evidence, the facts alleged- in the declaration, and relied upon as- proved, (reciting them,) their verdict should be for the plaintiff, is not liable to the objection of selecting and giving undue prominence to isolated parts of the evidence.</p> <p>8. The court should always instruct the jury, that if they find the facts involved in the issue are proved, (reciting them,) then they should find for the party in whose favor they shall find the facts. This is not giving undue prominence to any particular fact.</p> <p>9. Same—omitting to require a finding as to a material allegation in issue. In an action against two railway companies to recover for the death of a conductor caused by a collision of trains at the intersection of the two roads, the declaration alleged that the deceased conductor, and those engaged with him under his supervision in the management of the train, were in the exercise of due care at the time of the injury. The court instructed the jury, that if they found, from the evidence, that the collision occurred solely by reason of the gross negligence of the station agent, whose duty it was to give signals, and that the deceased was exercising due and proper care and diligence, then the plaintiff might recover: Held, that the instruction was erroneous, in omitting to require the jury to find, from the evidence, whether the engineer and others engaged in operating the train were free from negligence, or were exercising due care at the time.</p> <p>10. Same—one explaining all the others. Where the court, in its first instruction, told the jury that they should not regard anything contained in any of the instructions as intimating, in the slightest degree, any opinion of the court as to what any of the facts were, but they should determine from the evidence, and from that alone", what were the facts, it was held, a qualification of every instruction in the case, and in such plain words that no jury of ordinary intelligence could be misled.</p>

<p>1. Limitation—color of title—deed from tenant for life. A quitclaim deed from a tenant for life, of all the grantor’s right, title, interest, estate, claim and demand, both in law and in equity, to one having no actual notice that his grantor’s interest was only a tenancy for life, is good color of title, and the payment of all taxes on the land for seven successive years, under such color of title, made in good faith, will constitute a bar to the assertion of the title of the remainder-man.</p> <p>2. Same—possession under life estate, when adverse to title of reversioner. .A person having but a life estate in land, conveyed all his right, title and estate to one, who conveyed, by quitclaim, the same to another, neither of the grantees having notice that the original grantor had only an estate for life, and the second grantee entered into possession under his deed: Held, that after the life estate terminated, his grantee in possession could not be regarded ás a tenant at sufferance of the reversioners, but his possession was adverse to the reversioners, and not in subordination to them.</p> <p>3. Same—as against an infant not suing after coming of age. Where the bar of the statute, by the possession and payment of taxes under color of title, is completed before the owner attains majority, the fact of his infancy during the running of the statute will not avail him or her, unless he or she brings suit for the premises within three years after becoming of age.</p> <p>4. Same—as against a married woman. Since the passage of the Married Woman’s act of 1861, the saving clause in the Limitation act of 1839, in favor of married women, has no force, and since that time that limitation law applies against a married woman equally as against an unmarried woman.</p>

<p>1. Mandamus — to direct what the judgment shall be. Where a trial court has made a decision which finally disposes of the case, mandamus will not lie to compel the court to decide differently. The remedy, if any, is by appeal or writ of error.</p> <p>2. Appeal—what is a final judgment—of an order striking a cause from the trial calendar. To a writ of attachment in aid of an action at law, the defendant pleaded in abatement, denying the grounds of the attachment. Without replying to this plea, the plaintiff took judgment by default for the debt, after which the court entered an order that “it appearing to the court that the attachment herein has been abandoned or discontinued, by taking judgment herein on the merits, without replication to the plea to the attachment herein, it is therefore ordered that the cause be stricken from the trial calendar of this court:” Held, that this was a final disposition of the case; from which an appeal or writ of error would lie.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. W. J. Underwood, Judge, presiding.</p>

Cook county; the Hon. Joseph E. Gary, Judge, presiding. This suit was brought in the Superior Court of Cook county, by Lauchlin McLean, for the use of Delonas W. Potter, against J. A. Gronbeck, John Levin, Knute Nelson, Charles J. Stromberg, John Hanson and Thomas Brown. The declaration contains the common counts, and also a special count upon a written guaranty purporting to be signed by all of defendants.

Josiah McBobebts, Judge, presiding. Bill was filed in the circuit court, by the Matthiessen & Hegeler Zinc Company, against the city of LaSalle, and some individuals, with whom the city had made a contract, granting them the right, to mine coal underlying the streets and alleys.

<p>1. Adjournment of court, from day to day, by the sheriff, in the absence of a judge—as affecting the jurisdiction to hold the residue of the term—posting notices. A circuit court was opened on the first day of the term, in due form, by one of the judges, and an order was made and entered of record that if at five o’clock in the evening of that day no judge of the court should be in attendance, the sheriff should adjourn the court until'the next day at nine o’clock A. M., which he did, and there being no judge ; resent at that time, the sheriff again adjourned the court, by proclamation, to the same hour of the third day, and posted a notice on the court house door of such last adjournment, and on the third day a judge was present and opened court. It was held, that the court was properly adjourned from day to day, and had jurisdiction to try a party accused of crime, and that the statute did not require the posting of notice of the first adjournment, as it was by order of the court. ...</p> <p>2. Witness—competency'■—of grand juror to testify to evidence before g rand jury. On the trial of a party for larceny, after laying the proper foundation, a grand juror was called to contradict one of defendant’s witnesses, by testifying to his statements on oath before the grand jury, which he had denied. It was objected that a grand juror could not be called as a witness to disclose what occurred before the grand jury, hut the court held the evidence proper.</p> <p>3. Same—credibility—defendant in criminal case testifying in his own behalf. Where a defendant in a criminal case testifies, and the jury lmow he is a party, no further showing need be made that he is a part)', and the jury are authorized to consider to what extent that circumstance should affect his credibility. They are neither bound to believe nor to disbelieve him, but in weighing his evidence they are to take into consideration the fact that it is evidence given by the defendant in the case, and an instruction to that effect is not inconsistent with one that the jury have no right to disregard the defendant’s testimony through mere caprice, or merely because he is defendant, and that the law makes him a competent witness, and the jury are bound to consider his evidence, and give it such weight as they believe it entitled to, and that they are the sole judges of his credibility.</p> <p>4. Same—impeachment—by proof of contradictory statements of the witness. Where a witness, when asked as to the making of other statements inconsistent or at variance with his testimony, neither directly admits nor denies the act or declaration, but states he does not know or recollect, or gives any other indirect answer not amounting to an admission, it is competent to prove the affirmative, by way of impeachment. 0</p> <p>5. Where a witness testifies that on a certain day he let his father, the defendant, have $300 for a certain purpose, it is proper, on cross-examination, to ask him when and of - whom he got the money, as one means of contradicting him and discrediting his testimony.</p> <p>6. Same—right of witness sought to be impeached, to explain. A witness called by the defendant, after testifying as to a transaction, was asked if he did not testify so and so before the grand jury, naming his testimony there, to which he replied, “No, sir; but I can tell you what I ¿lid say, if you want me to.” Defendant’s counsel then said, “I insist that he can explain,” when the court said, “If it was that in s'ubstance, he can state, ” and the witness answered it was not that in substance, and defendant’s counsel excepted: Held, that the ruling was unobjectionable. If an explanation was desired, it should have been asked for on reSxamination, when he might have stated what he did testify to before the grand jury.</p> <p>7. Evidence—credence to be given to testimony—tests to be applied. On the trial of one for larcen)', the court instructed the jury that in judging of the weight and importance to be given to the testimony of any witness or witnesses in the case, they should take into account their means of knowledge of the facts of which they speak, and that the jury had the right to judge, from their own common observation, of the ability of persons.to judge of given facts from given opportunities, and that they were not obliged to accept as true the testimony of any witness or witnesses, if, judging, from such common observation, they are or may be mistaken concerning the facts of which they speak: Held, that the instruction contained all that was necessary to caution the jury in respect to the liability of witnesses to be deceived in seeing or hearing.</p> <p>8. Same—directing the jury to disregard certain testimony. .An instruction telling the jury that in certain contingencies they should disregard certain evidence, is not proper. The word “may” ought to be used in place of “should.”</p> <p>9. Criminal law—witnesses indorsed on indictment—whether all must be called to testify—of some of them being called by the defendant. Under bur practice the prosecution is not compelled to introduce all the witnesses whose names are on the back of the indictment. If the People fail to do so, and the defendant introduces a witness whose name is thus indorsed, he becomes his witness the same as any other.</p> <p>10. Same—reasonable doubt—as to particulars in chain of evidence. On the trial of one for larceny, the court, on behalf of the People, instructed the jury that the rule requiring them to be satisfied of the defendant’s guilt beyond a reasonable doubt, to warrant a conviction, did not require them to be satisfied, beyond a reasonable doubt, of each link in the chain of circumstances relied upon to establish the defendant’s guilt, but that it was sufficient, if, taking the • testimony all together, the jury are satisfied, beyond a reasonable doubt, that the defendant is guilty: Held, that the instruction was not erroneous.</p> <p>11. Each material fact essential to constitute the defendant’s guilt, must be proved beyond a reasonable doubt. But these facts may be proved by evidence of circumstances, some of much and others of little weight, resting on the testimony of various witnesses of different degrees of credibility and intelligence; and so in the chain relied upon, there may be links, when separately considered, about which there are ■ reasonable ’doubts, but when the entire evidence is considered, each link strengthens every other link, and thus there maybe a complete chain of evidence, satisfying-, beyond a reasonable doubt, of the guilt of the defendant.</p> <p>12. It is the effect of evidence as a whole, and not of distinct parts of it, isolated from its connection with the other evidence, by which the jury are to be governed in determining the question of guilt or innocence.</p> <p>13. Same—calling on prisoner to know if he has anything to say why sentence should not pass. The record of a trial and conviction of- one for larceny showed the making and overruling of motions for a new trial and in arrest of judgment, after arguments of counsel, but failed to show that the defendant was asked by the clerk or court if he had anything to say why sentence should not be pronounced, before the court gave judgment: Held, that under the modern practice, however it might be in a capital case, the reason of the rule contended for, that such question should be asked, does not apply to minor felonies.</p> <p>14. Instruction—not based on evidence. There is no error in refusing an instruction as to facts not shown by the evidence, nor one substantially given in another instruction. So in the absence of proof of any admissions of guilt by a defendant, on his trial for larceny, an instruction to the effect that statements of a witness as to the verbal admissions of a party should be received with great caution, was held properly refused.</p> <p>15. Practice—objection to evidence not made on the trial. If a party desires to assign error in the admission of evidence, he should make objection, or take the necessary steps in the trial court to have a ruling of the court on the question. If a witness called to impeach another does not show a sufficient acquaintance with the general character of the witness sought to be impeached, the party complaining should object at the time to the testimony, or move to exclude the same, and if the court should rule adversely to him, take his exceptions.</p>

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

This was a petition: for a mandamus, brought in this court by the relator, against the village authorities of Hyde Park, to compel the payment of certain judgments rendered in a proceeding to condemn land for a public street. Certain issues of fact were ordered to be tried before a jury in the Superior Court of Cook county.

<p>1. Chancery—evidence in support of bill, after a confession of plea in bar. Where a plea of a former adjudication is tiled in bar to a cross-bill, and the complainant in the cross-bill fails -to reply thereto, and thereby admits the truth of the facts set up in the plea, the only question on the cause being set for hearing on the plea is its sufficiency, and evidence offered in support of the cross-bill is properly excluded as irrelevant.</p> <p>2. Former adjudication—effect of dismissal of bill in chancery—as a bar to a second suit. A former decree in a suit in equity between the same parties and for the same subject matter, is a good defence to a second bill in equity, even though it be a decree merely dismissing the bill, if the dismissal is not expressed to be without prejudice.</p> <p>3. A, having the legal title to property in Chicago, which really belonged to B, his sister, a resident of Massachusetts, exchanged the same with C for twenty-seven vacant lots in a village in Massachusetts, and deeds were made accordingly. The Chicago property was conveyed, subject to a deed of trust thereon, for $1800, A agreeing to pay the interest on the incumbrance up to a certain date. B filed a bill in the United States Circuit Court for the Northern District of Illinois, against C, making A and others, parties, seeking to set aside the exchange of property on the ground of fraudulent representations in respect 'to the character, location and value of the village lots, which, on the hearing, was dismissed. C afterward filed his bill in the State court, to enjoin a sale of the Chicago property, making the trustee, and A and B, parties. A filed a cross-bill seeking a rescission of the contract of exchange on the same grounds of fraud, to which C pleaded the former decree in the Federal court in bar: Held, that the decree of dismissal in the Federal court was a bar to the relief sought in the cross-bill.</p>

<p>1. Creditor's bird—remedy at law—how far that remedy must he pursued, in order that equity may interpose. A creditor’s bill can not be sustained when there is no evidence tending to prove that the debtor has assets or property that can not be reached by execution, or which is covered up and kept out of the reach of creditors, or when it appears that the debtor has turned over property, real and personal, to the creditors, of sufficient value to satisfy the debt, before the filing of the bill.</p> <p>2. A creditor’s bill lies only when the creditor has exhausted his remedy at law. It must appear that the creditor has recovered judgment, and an execution issued thereon has been returned no property found. In other words, the theory is, in order to sustain such a bill, that the debtor has no property liable to be taken and sold in satisfaction of the judgment, on execution, but he has assets secreted or covered up, which can only be reached by bill in equity.</p> <p>3. If the debtor,-after judgment has been obtained, turns out to his creditors ample property to pay the debt, if converted into money, a court of equity will not sustain a bill to reach other property transferred by the debtor to some other party, on the ground that such transfer is fraudulent.</p> <p>4. A purchased of a banker real estate for $16,300, and afterward formed a partnership with B and G, for manufacturing plows, etc., and made valuable improvements upon the purchased premises, and borrowed of the banker $3000, for which the firm gave a judgment note, payable in ninety days. Afterward, A, in the absence of B, for the purpose of closing up the partnership business, obtained a deed for the property from the banker, and gave his notes, secured by mortgage, on the same, for $19,500, which included the purchase money, the interest thereon, and the $3000 firm note, which, however, was retained, and judgment confessed thereon. A, at the same time, turned over to the banker, as a security for the debt, all the personal property of the firm. The banker, after such transfer, filed a creditor’s bill, seeking to reach a deposit of B in his bank, which he had transferred by check to D, alleging fraud. After the filing of the bill the personal property of the firm so transferred was sold and converted into money, realizing about $1200, and it appeared that the real estate so mortgaged was of the value of $30,000: Held, that the creditor’s bill was premature, as the mortgaged property should first have been sold, even though a judgment had been recovered against A, after the purchase and before the giving of the mortgage.</p> <p>5. Partnership—as to individual and partnership properly—how to he applied, as respects individual and partnership indebtedness. The individual property of a partner is liable to be taken for the debt of his firm, when his creditors are not injured thereby and make no complaint. But when the rights of firm creditors and individual creditors are involved, the firm assets are not liable to be taken for individual debts until the firm liabilities are discharged, and vice versa.</p>

Wbit of Ebbob to the Appellate Court for the First Dis-' trict;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.

<p>1. Chancery—retaining a case for all purposes. Where a court of equity rightfully obtains jurisdiction of a suit, it will retain it for all purposes germain to the subject matter of the original bill, although some of the matters alleged therein may have ceased to be matters of contention.</p> <p>2. Same—multifariousness. A creditor’s bill seeking relief against different defendants, for separate and distinct matters, by setting aside different1 conveyances to different persons, and a judgment confessed and a chattel mortgage alleged to be fraudulent, is not obnoxious to the charge of multifariousness.</p> <p>3. Same—hearing without replication. Where a decree finds that the cause was heard on the pleadings, etc., including a replication, the decree at variance with the answer will not be reversed merely because no replication appears in the transcript, but leave will be given to file one nunc pro tunc.</p> <p>4. Same—evidence to overcome sworn answer. A sworn answer to a bill in chancery must be taken as true unless overcome by the testimony. Where such answer sets up a material fact responsive to the hill, which is denied by two witnesses, and is sustained by the testimony of the defendant answering and another defendant, they all being equally credible, it can not be said the answer is overcome.</p> <p>5. Fraudulent conveyance—extent of liability of fraudulent grantee or mortgagee. A party who takes a chattel mortgage, which is fraudulent as to creditors of the mortgagor, on creditor’s bill setting the mortgage aside, should be charged only with what he received for the property mortgaged, or, at most, with what he might with reasonable diligence have made out of the property that came to his hands. He should not be charged with property embraced in the mortgage that did not belong to the mortgagor, and which was claimed by others.</p> <p>6. Error—not assigned, not considered. Where errors and cross-errors are assigned in the Appellate .Court, and the decree reviewed is affirmed in all respects, and the appellant in that court again appeals to this court, and he alone assigns errors, no objections to the original decree can be considered in behalf of the appellees. Failing to assign cross-errors to the -ruling of the Appellate Court, it will be presumed they are satisfied.</p>

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

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

<p>1. Alley—right of abutting owner to its use—and as to being public or private. If an alley is a public one, a party whose buildings adjoin the same will have a right to its use for light and ventilation, as well as for all other lawful purposes; but if it is not public, the fact that it has remained a long time uninclosed, and such party has built his house with windows and doors opening upon it, and enjoyed the benefit of light and ventilation from it, will confer no right upon him to have it kept open.</p> <p>2. Dedication—in respect to an alley—in assessor’s plat. Where an assessor’s plat of land, made for purposes of taxation, shows a strip seven feet wide, marked, “alley, see book 15, page 228, ” and the reference shows it to be a private alley, created for the sole use of the parties then owning adjacent property, the sale and conveyance of lots by the numbers and description, as shown by such plat, will not amount to a dedication of such strip as a public alley. Nor will the making of such conveyances affect the rights of persons to such alley who are not parties thereto.</p> <p>3. Prescriptive right—the basis thereof—as to the use of an alley. Every species of prescription by which property is acquired or lost, is founded upon the presumption that he who has had quiet and uninterrupted possession of anything for many years, has a just right, without which he would not have been permitted to continue its enjoyment. It must originate under a claim of right, and not under mere permission.</p> <p>4. The use of a private alley of another by mere permission, without any claim of right to such use, which is not inconsistent with its use by the owners thereof, is not of such adverse character as will form the basis for a prescriptive right.</p> <p>5. .Where there is nothing to show that the use of an alley was under a claim of right, or with the intention to enjoy it without regard to the wishes of the owners of the land, or that it was established and maintained for the benefit of the party using the same, but, on the contrary, it appears it tvas established for the private use of others, no prescriptive right can be claimed in such alley.</p>

<p>1. Deed oe trust to secure a debt—insurance money coming to the hands of the trustee—of its proper application. A trustee, in pursuance of a provision in the deed of trust, received insurance money for a loss by fire of the buildings on the mortgaged premises, in a case where the trust deed required the mortgagor to keep the property insured for the further security of the debt, which had not matured and become payable: Held, that the money so received took the place of the buildings destroyed, and was in the’ trustee’s hands a part of the security for the debt.</p> <p>2. In such case, the trustee is the agent of both the mortgagor and the holder of the mortgage debt, in respect to the money, and as the principal debt wras not due, and no default had been made in the payment of the interest, the trustee could not apply the fund to the reduction of the debt without the consent of the debtor. Nor could he pay over the same to the mortgagor on his mere promise to expend the same in replacing the buildings destroyed.</p> <p>3. Same—in case of a loss of the insurance money after coming to the hands of the trustee—rights of the parties. A# mortgagor insured the buildings on the premises in the name of the trustee, as a further security for the debt. Before the mortgage debt became due, a loss by fire occurred, and the insurance company paid the insurance money to the trustee, who retained the same, the mortgagor being unwilling to have it applied in reduction of the debt, and, on the request of the mortgagor, deposited the same in a bank of good credit and standing at the time, but which afterward failed. At no time did the trustee have the note or trust deed in his possession, and he did not receive the money as the agent of the creditor: Held, on bill to foreclose the deed of trust, that the mortgagor was not entitled to have any part of the insurance money, so received by the trustee, and afterwards lost by the failure of the bank, applied as a payment on the mortgage debt.</p>

<p>1. Amendment of bill of exceptions—d/aring and after the term. Where a bill of exceptions is signed and sealed, and properly filed, it becomes a part of the record of the court to which it relates, and it stands upon the same footing as any other repord. During the term at which it is signed and filed, it may be amended at any time, without notice. But after the term expires, the judge loses all power to alter or change it on his own motion or suggestion. In case of an amendment during the .term, the proper practice is to call the attention of counsel to the fact.</p> <p>, 2. Where a bill of exceptions, through inadvertence or mistake, has been so made up as to not fairly and truly represent what actually transpired, it may, upon due notice, be amended, by order of the court, at a subsequent term, so as to make it conform to the real facts.</p> <p>3. Abstract oe title—admissibility in evidence—manner of preparation—requisites, etc. Where an abstract of title to land is shown to have been made by well known abstracters, or by clerks in their office, before the destruction of the records, and delivered, in the due course of business, to a person at the time having an interest in the land or a part thereof, and-it is further shown that such abstracters had been engaged in furnising abstracts of title for several years before and after the date of such abstract, it is admissible in evidence under section 29, chapter 116, of the Revised Statutes, so far as it relates to lost or destroyed deeds, in the party’s chain of title, upon their loss or destruction being shown, or inability to produce them.</p> <p>4. The fact that abstracts of title were prepared in an abstract office by one clerk from memoranda and abbreviated notes taken by other clerks from the records, and then signed by the principals in the firm name, does not render them inadmissible in evidence, on the ground they are copies of copies. The data so collected from the records do not constitute the abstract, but only the materials out of which they are constructed.</p> <p>5. An abstract of title, in a legal sense, is a summary or an epitome of the facts relied on as evidence of title. It should contain a note of all conveyances, transfers, or other facts relied on as evidence of the claimant’s title, together with all such facts appearing of record as may impair it.</p> <p>6. It is no objection to the admission in evidence of an abstract of title, that it fails to show that some of the lost deeds were properly acknowledged. The statute does not require the abstract to note such fact. The existence of the original deed is shown by the preliminary oath, and the abstract is admitted for the purpose of showing title.</p> <p>7. An abstract not being admissible in any case, or any part thereof, to prove such facts as the party is prepared to show by a higher grade of evidence, it is not necessary to introduce the whole of it in evidence when it is only required to prove a part of the facts in that way.</p> <p>8. If the plaintiff in ejectment introduces in evidence only a part of an abstract of title to make out his case, and it, as a whole, shows the title to the property is not in him, the defendant may introduce the balance of it in evidence.</p> <p>9. Practice—when specific objection must be taken. An objection to an abstract of title that it fails to show whether a deed therein referred to was properly acknowledged, if a valid one, should be specifically made on the trial. It comes too late on appeal or writ of error.</p> <p>10. Same—directing what the verdict shall be—the court remarking upon the weight of the evidence. Where the right of recovery in an action of ejectment depends upon the existence of certain extrinsic facts about which the evidence is conflicting, the court has no right to take the case from the jury, or to make remarks in the presence of the jury as to the weight of the evidence. There is no difference in this respect between an ejectment suit and any other.</p> <p>11. But where the plaintiff’s written evidence show's title in him, in the absence of any countervailing evidence the court is warranted in instructing the jury to find for the plaintiff; and in such case, any expression of opinion by the court with respect to the force or effect of the evidence, in the hearing of the jury, before so instructing, can make no difference.</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. Thomas A. Moran, Judge, presiding.</p> <p>This was a bill in equity, exhibited by the appellants, against the appellees, Jason C. Ayres, Maria Hutchinson and John V. Thomas, in the circuit court of Cook county, in which it is alleged that the complainants are the children and heirs at law and legatees of John P. Hutchinson, deceased, late of Dixon, in Lee county; that said John P. Hutchinson died about December 30,1872, and left a last will, which was duly probated in the county court of Lee county, January 2,1873; that orators are the beneficiaries in said will mentioned; that in his said will said Hutchinson bequeathed to each of his children the sum of $10,000, which defendants Maria Hutchinson and Jason C. Ayres, the trustees and executors therein named, were directed, as soon as each of orators should attain the age of eighteen years, to take out of the principal of his estate, and to hold for said orators; that the interest and income of said $10,000 should be paid to orators till they respectively attained the age of twenty-six years, when the principal should be delivered to them, and all the residue of said estate of the testator was devised to defendant Maria Hutchinson, for the .period of her life, the income and proceeds to be enjoyed by her during life, without waste or encroachment, however, on the principal, and upon her death the whole estate should be divided among orators, his children, in equal portions; that defendants Ayres and Hutchinson accepted the trusts imposed upon them by said will, and duly qualified as executors of said will, and letters testamentary were issued to them; that defendants reduced the personal estate to possession, and collected the income of realty and took charge of the estate; that Ayres acted as sole manager, and assumed control of the estate; that said Maria Hutchinson had but little knowledge of affairs, and trusted everything to said Ayres; that the inventory filed by said executors of the assets of said estate showed that they had-in their hands property to the value of about $58,000; that the entire debts of the estate amounted to only $800; that all of orators have long since attained the age of eighteen years, and are still under the age of twenty-six years, yet no sum has been set apart for them and no interest paid to them; avers that defendants have wasted and squandered the estate, so that only about $30,000 remains of the same, and that the great bulk of said estate was in good interest bearing securities; that although the will provides that no encroachment should be made on the principal of said estate, yet they have permitted over one-half of said estate to be wasted and spent; avers that certain accounts were, from time to time, presented by the executors to the county court of Lee county, and approved, but such accounts were approved without notice to them, and are not binding Vipon them, and that said accounts are not true and just accounts, but are incomplete, false and untrue; that said accounts credit said executors with moneys spent by defendant Maria Hutchinson out of her private estate, and with money paid out by her for her private use; that although the will provides that said Maria Hutchinson should only spend the income of said estate, yet said Ayres paid her large sums of money for her own use, when there was in fact no money applicable to the individual use of said Maria; that on October 6, 1876, Ayres presented his resignation as executor, and pretended to resign the trusts imposed upon him by said will, and his resignation as executor was accepted, but not as trustee; that thereupon said Maria Hutchinson became sole executrix, but orators aver that all the duties of said defendants as executors had been fulfilled and all the debts paid, and they held the estate as trustees, and the resignation of Ayres was void and of no effect; that on July 11,1877, said Ayres, who was a surety on the bond of Maria Hutchinson, well knowing that the estate was being wasted and squandered, withdrew from the bond of said Maria, and she was removed as executrix, and John V. Thomas was appointed by the county court administrator de bonis non of said estate; but they charge that the appointment of said Thomas was null and void, as there were no duties for said executor to perform, and the trustees having accepted, could only be relieved from duty in a court of equity; .that Thomas now has possession of the remainder of the estate; that said defendants Ayres and Thomas refuse to come to a just accounting with orators, but set up the approval of the accounts by the county court as an estoppél on orators, but orators say that even if such accounts were final, orators were all minors when said accounts were approved, and could not be estopped; that by reason of the approval of the accounts of said executors and said administrator de bonis non, orators can not bring them to an account in the county court, and are without remedy, save in a court of equity, therefore pray that defendants may be summoned and to account, and that an accounting may.be had under the direction of a court of equity, and that Thomas may be decreed to pay to orators all the funds in his hands.</p> <p>Summons was issued to the sheriff of Cook county, and served by him on the defendant Maria N. Hutchinson, and an alias summons was issued to the sheriff of Lee county, and served on the defendants Ayers and Thomas. Ayres answered, admitting that he was appointed executor jointly with Maria 1ST. Hutchinson, and that he qualified as such executor, and that he subsequently resigned as executor, but denying that he ever accepted the position .of trustee. He alleged that the bulk of the estate never was in his hands, and denied all the other material allegations of the bill. Answer was filed by Thomas, putting in issue the allegations of the bill as to him.</p> <p>The court, on hearing, decreed that the bill of complainants be dismissed as to the defendant Ayres, for want of equity, and the defendant Maria N. Hutchinson was declared guilty of waste, and the cause was referred to the master in chancery to state an account as to her, and thereupon the complainants prayed an appeal to the Appellate Court for the First District. .And afterwards, on complainants’ motion, it was ordered that the bill of complaint be dismissed as to John Y. Thomas and Maria N. Hutchinson, without prejudice, however, as to any suit at law complainants might be advised to bring, and vacated the decree theretofore entered as to Maria N. Hutchinson. At a subsequent day, a stipulation was entered into between counsel for the complainants and counsel for Maria N. Hutchinson, to the effect that complainants’ bill should be so amended as to allow them to reinstate the bill as to her" at any subsequent day. The Appellate Court affirmed the decree of the circuit court.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.</p> <p>On October 27, 1882, Maggie E. Chamberlin", the defendant in error, filed her petition in the circuit court of Cook county, under what is commonly known as the Burnt Records act, to establish her title to the east half 'of lot 8, block 2, in Yerby’s subdivision of the north half of the north half of the northwest quarter, and the west half of the north-east quarter, of section 15, township 38 north, range 14 east, making defendants a number of parties, all of whom made default, except Albert Wisner and the South Park commissioners, the plaintiffs in error herein. The South Park commissioners claim title to the north one hundred and thirty-four feet, and Wisner to the remainder of the half lot. Both plaintiffs and defendant in error claim title through one Amelia Wiltberger, who acquired title in June, 1852, and died intestate some time in that year, leaving her surviving, her husband, Joseph W. Wiltberger, and six childern, three of whom were minors, the youngest, a daughter*, having been born October 30, 1848.</p> <p>By decree of the Cook circuit court, rendered May 29, 1857, at the suit of Joseph W. Wiltberger, where all of said children were made defendants, it was decreed that an undivided half of the property, afterwards subdivided. by Yerby, was vested in Joseph W., and one-half in the children. By deed dated November 18, 1858, and recorded the next day, Joseph W. Wiltberger and the adult children conveyed the property to Jesse Embree, which deed was also executed by Joseph W. Wiltberger, as guardian of the minor children. The consideration recited was $94,550. The deed contained covenants by the father and the adult children, of seizin, of right to convey, of freedom from incumbrance, and of general warranty in peaceable possession.</p> <p>By mortgage dated November 18, and recorded November 19, 1858, Jesse Embree conveyed the same premises to Joseph W. Wiltberger, to secure payment of the unpaid 'part of the purchase money for the property, to-wit, $91,200, which was evidenced by nineteen notes, eighteen of which were for the sum of $2400 each, and one for $48,000, without interest. Two of the eighteen notes were payable on the first day of January of each year, beginning with 1859, and ending 1867, and the $48,000 note was payable January 1, 1868. The mortgage contained the condition, that if default was made in the payment of any of said promissory notes-for such periods as w-ere in the mortgage specified, then “the w'hole sum remaining unpaid shall immediately become due and payable, as in said promissory notes expressed; ” and then the mortgagee, as attorney in fact of the mortgagor, might sell and convey the premises. ■ The nineteenth note was as follows: “$48,000. Chicago, November 18, 1858.</p> <p>“On the first (1st) day of January, A. D. 1868, I promise to pay to the order of Joseph W. Wiltberger, $48,000, value received. This note is given, to the ratification of the sale and conveyance of their part, being one-fourth of a part of section 15, in township 38, north, range 14, east of the third P. M., described in a deed bearing even date herewith, between Joseph W. Wiltberger and others, to Jesse Embree, by the minor heirs of Joseph W. Wiltberger, named as follows: Charles Lewis, Joseph Samuel, and Laura Ann Wiltberger, and is to be paid when due, if said minors before that 'time shall have conveyed their interest so as to pass all their right, title and interest in and to said premises in said deed described, to the said Jesse Embree, his heirs, executors, administrators or assigns, and is to be paid any time thereafter when said minors shall well and truly convey their interest in fee, as above described, to said Jesse Embree, his heirs, executors, administrators or assigns, so that it will inure to his or their benefit.</p> <p>Jesse Embree.”</p> <p>On May 9, 1862, Joseph W. Wiltberger published a notice of mortgage sale, in which he stated that default had been made in the payment of seven of said notes, and that he would sell, June 10, 1862, the premises in the mortgage described, to pay said indebtedness. By deed dated June 30, 1862, Joseph W. Wiltberger, describing himself as mortgagee, conveyed the premises to Egbert W. Wiltberger, the deed being acknowledged and recorded September 16, 1862, and it being recited therein, that at the mortgagee’s sale the forty acre tract was first sold to Egbert W. Wiltberger for $400 per acre, and then the eighty acre tract was sold to him for $400 per acre, and that in consideration of the sum of $48,000, the two tracts were conveyed. In the deed it is recited that the whole of the notes were declared due. By quitclaim deed dated September 4, 1862, and recorded September 17, 1862, Egbert conveyed back the two tracts to Joseph W. Wiltberger, and by deeds dated, respectively, February 4, 1863, January 13, 1865, and November 4, 1865, Charles Lewis, Joseph Samuel, and Laura Ann Wiltberger, the minor heirs, respectively, quitclaimed the said premises to Joseph W. Wiltberger. The Wiltberger title to lot 8, block 2, remained in Joseph W. Wiltberger till January 22, 1863, when he conveyed, by warranty deed, said lot to Daniel H. Carpenter, the deed being recorded January 26, 1863; Carpenter, by warranty deed dated January 20, 1864, and recorded February 25, 1865, conveyed the lot to Mary Todd, who, by warranty deed dated September 21, 1865, and recorded September 23, 1865, conveyed the east half of the lot to William Galway, trustee, who conveyed the same to defendant in error by deed dated August 28, 1880. In 1857 the whole of the land described in the mortgage was subdivided by Yerby, an agent for Embree, which subdivision has been adopted by all parties ever since.</p> <p>Plaintiffs’ in error-claim of title is derived as follows: By warranty deed dated August 19, 1859, recorded March 8, 1861, Embree conveyed to Amos F. Tompkins numerous lots, including said lot 8. By quitclaim deed dated May 25, 1869, Tompkins conveyed lot 8 and other property to Joseph G. Gibbons. By warranty deed of September 20, 1870, Gibbons conveyed lot 8 and other property to James H. Bees. By deed dated September 23, 1870, Bees conveyed to the South Park commissioners the north one hundred and thirty-four feet of twenty-one lots, including lot 8, for the consideration, as recited, of $31,500. By quitclaim deed of date November 18, 1876, Bees conveyed to Josiah C. Goodhue an undivided half of lot 8 and other property, and this interest conveyed to Goodhue, by subsequent mesne conveyances, was transferred to Albert Wisner. Wisner also claims title under a tax deed to the east half of lot 8, except parkway, under sales for taxes made in 1879.</p> <p>The north one hundred and thirty-four feet of lot 8 is included within the limits described in the South Park acts as territory to b.e taken for park purposes, and in 1871, and since then, the park commissioners graded it for boulevard purposes, grubbed out the trees and stumps, and spread manure on it, but there has never been any travel on it. From about 1870 to 1880 the park commissioners used the south half of lot 8 for a pound, and had it fenced in, and after February 18, 1880, held it as tenant of Wisner. From 1873 to 1881 the east half of lot 8 was described in the assessment books as “except parkway.” It was shown that the entire Yerby tract was not worth more than $100 to $150 an acre, any time from 1862 to 1868 or 1869, when its value rose very rapidly on account of the .location of the park.</p> <p>The decree of the circuit court was in accordance with the prayer of the petition, establishing the title to the east half of said lot 8 in the defendant in error.</p>

<p>1. Former adjudication—whether a bar to a subsequent suit—as to identity of questions involved. Where an issue of fact is final!)' determined by a court of competent jurisdiction, its finding and determination are final and conclusive upon the parties and their privies in all subsequent litigation between them in which the same question arises, so long as the judgment remains unreversed or not otherwise set aside.</p> <p>2. But for the purposes of this rule it is not sufficient that the question arising in subsequent litigation is identical with the one decided, in some respects, only. It must be so in all respects. If there is an element in one of the questions which is not contained in the other, the rule does not apply.</p> <p>3. Same—;finding on bill for separate maintenance,, whether conclusive upon right to divorce. A decree dismissing the bill of a married woman for separate maintenance, is not conclusive against her husband’s right to a divorce upon the ground of subsequent desertion by the wife. The question whether a woman lived separate and apart from her husband without her fault, is not identical with the proposition that she willfully deserted and absented herself from him without any reasonable cause.</p> <p>4. On December 2, 1880, a wife filed her bill against her husband for a separate maintenance, which, on October 4, 1882, on a hearing, was dismissed; On February 12, 1883, the husband filed his bill against the wife for a divorce, charging her with willful and continuous desertion, “without any reasonable cause,” for a period of more than two years from December 2, 1880. On the hearing of the suit for divorce, the court admitted in evidence, against the wife’s objection, the pleadings and decree in the prior suit, and also excluded all evidence offered on her part tending to disprove the charge of willful desertion without reasonable cause: Held, that the court erred in admitting the record in evidence, and in the exclusion of the other offered evidence.</p>

<p>1. Appeal — final judgment — what so regarded, so as to give the right of appeal. After a composition agreement was entered into between an insolvent debtor and his creditors, to discontinue an assignment proceed-lug and have the assignee turn over the moneys and effects in his hands to an aSen* the creditors, a question arose between such agent and the assignee, whether a note taken by the assignee had been accepted by the agent, which the county court found against the assignee, and ordered him to pay over the amount of such note by tep o’clock the next day: Held, that such order of the county court was a final judgment, from which an appeal was given by statute, to the circuit court.</p> <p>2. The manner of enforcing an order for the unconditional payment of money within a limited time, whether by execution, or attachment for disobedience, does not affect its character in respect to being final and subject to an appeal.</p> <p>3. Same—effect of an appeal as a supersedeas. Where a party is committed to jail for a contempt of court for refusing to comply with an order of the county court, the perfecting of an appeal from the order disobeyed will of itself suspend all proceedings under the order of commitment, and there will be no necessity to appeal from it.</p> <p>i. Same—mandamus to compel allowance of appeal. Where the county court refuses to allow an appeal from its order, decree or judgment, in a case where one is given by law, this court will compel the county judge to allow the same, on the terms and conditions specified in the statute giving the right.</p> <p>This was an original proceeding in this court, in behalf of Eli Frank, the relator, against Richard Prendergast, county judge of Cook county, to compel him to allow an appeal from an order made by him on the relator. The material facts appear in the opinion.</p>

<p>Writ of Error to the Circuit Court of De Kalb county; the Hon. C. W. Upton, Judge, presiding.</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. T. A. Moran, Judge, presiding.</p> <p>Messrs. Willard & Driggs, Mr. R. Biddle Roberts, and Mr. F. J. Loesch, for the plaintiff in error, after quoting from the lease Between the companies, contended that defendant in error had no such interest in the track as to make it a necessary party to the condemnation proceeding.</p> <p>The only remedy sought being an injunction, the judgment of the Appellate Court, reversing the order dismissing the bill and remanding the cause, left the court below nothing to do but to make the injunction perpetual. Chap. 110, sec. 90; Peck v. Herrington, 104 111, 88; Chalcraft v. Railroad Go. 113 id. 86; International Bank v. Jenkins, 104 id. 143.</p>

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

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

<p>1. Practice in the Supreme Court—rehearing—of an application after one rehearing has been granted. Where a different judgment is rendered upon a rehearing granted at the instance of .one party, the other party may apply for a rehearing by giving the notice and filing his petition therefor within the time prescribed by the rule on that subject.</p> <p>2. Same—excuse for not applying for a rehearing in proper time. The fact that an unsuccessful party, immediately after the filing of the opinion of this court, applies to his attorneys to take steps to procure a reconsideration, and is informed by them that nothing can be done, wheréby thirty days elapse before he learns of his right to apply for a rehearing, affords no ground for allowing him to file his petition for a rehearing after the time fixed by rule of court has expired.</p> <p>3. Same—former decision—as to rehearing granted by the court on its own motion, in order to correct an erroneous entry. The case of Chicago Planing Mill Co. v. Merchants' National Bank, 97 HI. 299, is to be distinguished from this. In that case the judgment, by mistake of the clerk, was entered wrong, and this court at a subsequent term, of its own motion, ordered a rehearing, in order to correct the error. .Such a rehearing is not regulated by the rule of the court on the subject.</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. Thomas A. Moran, Judge, presiding.</p> <p>Plaintiff in error, Frank Cihak, filed his amended bill June 5, 1884, to enjoin the defendants in error from closing up or obstructing an alley running the entire length of his lot and in the rear of the lots of the defendants.</p> <p>In 1859, one Wilder, of Chicago, was the owner of lots 19, 20 and 21, each having a frontage of fifty feet on DeKoven street, in block 35, in school section addition to Chicago. At that time the land was occupied by squatters, and Wilder employed one John Gunzenhauser, as his agent, to dispossess the occupants, and rent the property. Gunzenhauser removed the squatters, and subdivided the lots according to a private plat made by himself, as follows:</p> <p>[[Image here]]</p> <p>The east two lots (20 and 21) were subdivided into four lots, fronting on Jefferson street, and the west lot (19) on DeKoven street, he divided into two lots, on DeKoven street. Wilder afterwards sold all the lots to Henry G. Hubbard, of Middletown, Connecticut, who remained owner for eighteen or twenty years. About 1878, Henry G. Hubbard sold all of the lots to Mrs. B. K. Hubbard, (Anna J. Hubbard,) as lots 19, 20 and 21. Gunzenhauser sold the lots, as subdivided, for Mrs. B. K. Hubbard, the then owner. He acted as the real estate broker in the sale of all the lots which were sold to the plaintiff and defendants in error. He advertised them for sale, and the deeds and other papers were drawn in his office. With the exception of an interval of one or two years, Gunzenhauser was. the agent, having charge and control of the whole property, paying taxes, collecting rents, etc., from 1859 down to the time all the lots were sold.</p> <p>In July, 1882, the plaintiff in error, Gihak, began his negotiations with Gunzenhauser for the purchase of the east half of lot 19. He employed one Kaspar, a real estate dealer, as his agent in the matter. Kaspar went to Gunzenhauser, told him he wished to purchase the lot on the alley for Gihak, and the other or west half for Mrs. Bain, tlpon examination of the abstract of title which had been given him for that purpose, Kaspar did not find any plat of record showing this alley. He and Gihak reported this fact to Gunzenhauser, who said, “That is all right—I have a plat here, ” and he showed Kaspar the plat, saying it was going to be put on record. He further showed them that the plat was acknowledged, and said he was going to sell the other lots subject to this plat, and the alley as it was being platted out. At that time, Mrs. E. K. Hubbard owned the entire lots 19, 20 and 21, no pa-rt of them having been sold. Kaspar told Gunzenhauser that Gihak would not buy unless the plat was put on record, and Gunzenhauser promised to do that. Thereupon Gihak bought the east half of lot 19. He testified he would not have purchased the lot if there had been no alley along the east line, and if Gunzenhauser had not promised to record the plat. A warranty deed was made by the owner, Mrs. E. K. Hubbard, (Anna J. Hubbard,) and Elijah K. Hubbard, her husband, to the plaintiff in error, Frank Gihak, conveying the east half of said lot 19, in block 85, school section addition to Chicago, “together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining. ” The deed was dated July 15, 1882, acknowledged August 30,1882, and not delivered until September 7, 1882. The plat shown Ciliak and Kaspar by Gunzenhauser, and which was afterward recorded, as promised, is as follows:</p> <p>[[Image here]]</p> <p>“State oe Illinois, ") Coo/c County. )</p> <p>“I, Samuel S. Greeley, do hereby certify that I have surveyed lots 20 and 21, in block 35, of school section addition to Chicago, and that I have subdivided the same into four lots and a private alley, all of which are correctly represented upon the plat hereon drawn.</p> <p>Chicago, July 28, 1882.</p> <p>Samuel S. Gbeeley, Suweyor. ”</p> <p>“Chicago, August 11, 1882.</p> <p>“This is to certify that the above subdivision and plat were made by my direction. Anna J. Hubbabd.”</p> <p>The plat was acknowledged, in statutory form, by said Anna J. Hubbard, August 11, 1882, and recorded September 19, 1882.</p> <p>The east half of lot 19 abutted on the west line of the alley. The alley which Gunzenhauser laid out in 1859, and for which he then originally drove the stakes, is the same as the private alley shown on the recorded plat, running north and south along the entire east line of lot 19, now owned by Cihak. Some time after Cihak purchased, all of the defendants in error purchased their lots from the same agent, Gunzenhauser. and received warranty deeds from the same grantors, Anna J". Hubbard and B. K. Hubbard, her husband.</p> <p>The deed to Hynek Klekr and Anna Klekr, two of the defendants in error, bears date August 8, 1882, was acknowledged September 8, 1882, and recorded November 23, 1882. The record shows it was delivered some days after Cihak’s deed was delivered. The deed conveys “lot i, in the subdivision of lots 20 and 21, in block 35, school section addition to Chicago, reserving, however, the use of the west ten feet of said lot for a private alley.” The deed to Joseph Kyasnieka, another of the defendants in error, bears date August 3, 1882, was acknowledged September 8, 1882, and recorded Septem-. ber 19, 1882. It conveys lot 2, in the same subdivision, and with the same reservation. The deed to Jaroslay Lenoch, another of the defendants in error, bears date February 1, 1884, was acknowledged February 8, 1884, and recorded February 12, 1884. It conveys lots 3 and 4, in the same subdivision.</p> <p>Upon the east half of lot 19, long before Cihak purchased, there was a cottage, covering the width thereof on the De Koven street front of the lot, having a door leading into the alley, and a window facing it, and the alley was used as a means of ingress and egress to and from the building, and for receiving coal and wood. Such was the condition at the time Cihak purchased, and he soon after moved the cottage to the rear of the lot, and on the front facing DeKoven street he erected a substantial three-story brick building, leaving a space of yard between the cottage and brick building: Both buildings</p> <p>stand on the line of the alley, and have windows facing it. The use of the alley always was and is necessary to afford means of ingress and egress to and from the yard. The occupant of the cottage is a milk dealer, and uses the yard for his horses and wagon. An instrument in writing, purporting to vacate the alley, was executed and acknowledged by four of .the defendants in error, the owners of lots 1, 2, 3 and 4, on February 12, 1884, and, acting thereon, they attempted and proceeded to move some buildings on the alley, and thereupon the present bill ivas filed. This is a general outline of the facts.</p> <p>Upon final hearing, on proofs taken, the circuit court dismissed the bill. On appeal to the Appellate Court for the First District the decree was affirmed, and the complainant brings this writ of error.</p>

<p>1. Appointment of a new trustee—as to the, donee of the power, under a will—whether the county court as a tribunal, or the county judge as an individual. A testator, after devising his estate to one, as trustee, and his successor, directed that in case of the death, resignation, refusal or inability of such trustee to act, the county court of the county, upon the application of any person interested, and on notice to all interested, should appoint a new trustee, with all the powers of the original one, and required such new trustee to enter into bond, to be approved by such court, and file the same in the office of the clerk of said court: Held, that the power of appointment was intended to be conferred upon the county court as a tribunal, and not upon the person who might hold the office of county judge.</p> <p>2. Same—jurisdiction of county court to exercise such power of appointment—and herein, what court may exercise the power. The county court has no jurisdiction to appoint a trustee to hold property for another after the death, resignation, refusal or inability to act, of one appointed by will, and the power to do so can not be conferred upon the court by the testator in his will.</p> <p>3. Under the judiciary system of this State, the only court having jurisdiction to appoint a new trustee of an estate after the death, resignation, removal, inability or refusal of a prior one to act, is a court of equity; and any attempt, by will, to confer this power upon any other court, is abortive.</p> <p>4. So where the county court, upon petition filed making all persons interested parties, entered an order appointing a trustee of an estate, in place of one who had died, to fill the vacancy, under a clause in the will of the person creating the trust, it was held, that such appointment was void for want of jurisdiction, and that a court of chancery, when properly invoked, would appoint a new trustee, regardless of the action of the county court.</p> <p>5. Same—former decision. The case of Morrison v. Kelly, 22 111. 610, is not in conflict with the view announced in this case. The court in that case selected as the donee of the power, was one having jurisdiction by law to exercise the power conferred by deed. "</p> <p>6. Jurisdiction—how acquired. It is not in the power of a testator to confer, by his will, upon the county court, or other tribunal, a jurisdiction or capacity which is not conferred by law.</p>