Volume 118 — Illinois Reports

<p>1. Production op books op account—rights of parties to a suit— extent and limit of the right of inspection. The statute authorizes the court, upon cause shown, and proper notice, to require either party to a suit to produce hooks or writings in his possession or power which contain evidence pertinent to the issue; but the court will not compel a party to submit for inspection his books of accounts with other persons not parties to the suit, when it is not made to appear that they contain evidence pertinent to the issues.</p> <p>2. Where a party is required to produce his books of account for inspection, he will have leave to seal up and conceal all such parts of them as, according to his affidavit, previously made and filed, do not relate to the matters in question.</p> <p>3. Prior to the trial of an action for the recovery of moneys placed in defendant’s hands by the plaintiff, as margins in the purchase and sale of stocks by the defendant, as agent of plaintiff, the latter made a motion, supported by affidavit, for an order compelling the defendant to submit his books of account during the time of the dealing between the parties, to the plaintiff's inspection, etc. The court denied the motion, but made an order, it appearing that all the accounts between the parties were embraced in a journal and ledger of defendant, to place them in the possession of the clerk of the court, and limited the inspection to certain pages containing the accounts involved, and gave the defendant liberty to seal up the remaining parts; and it appearing that the journal entries were so intermingled with other transactions as that an inspection of them would expose such outside matters, it was ordered that defendant present in court a verbatim copy of all the journal entries of all matters between the parties, giving the page where entered, such copy to be verified by affidavit, and the certificate of the clerk of the court, upon an actual examination and comparison, provided the plaintiff should so request: Held, that there was no error in the ruling of the court.</p> <p>4. Settlement of accounts—what to he so regarded. Where a plaintiff receives, at the end of each month, a statement from the defendant, of his account, and at the close of the dealings accepts a check of defendant as the payment of the balance of the account, making at no time any complaint of the accounts, or intimating any mistakes or incorrectness in the several statements, the acceptance of the check must be taken as an adjustment of the account between the parties.</p> <p>5. Pbactice—directing“ what the verdict shall he. Where there is no evidence given tending to show a cause of action, so that a verdict for the plaintiff for any amount would have no evidence in its support, and would be set aside, on motion, without hesitation, the court may properly instruct the'jury to find for the defendant.</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. Moban, Judge, presiding.</p> <p>The original bill in this case was brought by Levi Z. Leiter, against Marshall Field, and is for relief and for an injunction. After answering the' original bill, defendant filed a cross-bill, in which he also asked for affirmative relief, and for an injunction, concerning the matters involved. On the hearing in the circuit court, the cross-bill of defendant was dismissed, and relief decreed substantially as asked for in the original bill. That decree was affirmed in the Appellate Court for the First District, and defendant brings the case to this court on his further appeal.</p>

<p>1. Ejectment—by mortgagee against mortgagor. A mortgagee of land may maintain ejectment on the mortgage against the mortgagor after condition broken; so may the grantee in a deed absolute in form, given as security for a debt.</p> <p>2. Same—equitable defence. In an action of ejectment the legal title must prevail, and it can not be defeated upon equitable grounds. If the plaintiff’s title is sought to be questioned on equitable grounds, it must be done in a court of equity.</p> <p>3. In ejectment by the grantee of a deed absolute on its face, against the grantor, the deed can not be shown to be a mortgage only. The remedy of the grantor, if he has any, is in equity. He may there enjoin the action at law, and show the true character of the deed.</p> <p>4. Homestead—occupation as a resilience. To constitute a homestead estate in land the owner must reside upon the same. If a party makes a conveyance of a tract of land not at the time occupied by himself and family as a residence, no release of homestead is necessary.</p>

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

<p>1. Negligence—master and servant—risks of the service assumed by the latter—presumption of knowledge. A person who engages in the service of a railroad company in the running of its trains, is presumed to do-so with a knowledge of the dangers incident to such service, and he assumes the risks of its ordinary hazards.</p> <p>2. Same—duty of master in providing safe machinery. An employer is not bound to furnish for his workmen the safest machinery, nor to provide the best methods for its operation, in order to save himself from responsibility for accidents resulting from its use. If the machinery be of an ordinary character, and such as can, with reasonable care, be used without danger to the employe, it is all that can be required from the employer.</p> <p>3. So a railway company is not bound to furnish absolutely safe machinery for its employes. The machinery and other devices furnished the employe in operating the road, are not required to be the best, or of the most approved kind, or to be absolutely safe. It is sufficient if the same are reasonably safe. ^ the company has reasonably safe machinery and appliances, it will not be required to discard the same and adopt or apply a new invention which is yet .-an experiment, and but partially adopted by other companies.</p> <p>4. Same—of an instruction—misleading as to character of appliances ■required. Where the only negligence charged against a railway company was, that in constructing a turn-out or switch it failed to block the joints thereof, •and the evidence was directed to the proof of that ¿barge, the court instructed the jury that the law required a railway company to use reasonable and ordinary care and diligence in providing and maintaining reasonably safe structures, tracks, side-tracks, switches, turn-outs, etc., and that if it failed to do •so, and an injury happened in consequence of the failure, to the plaintiff, while -he was in the exercise of due and reasonable care, the defendant would be liable: Held, that while the instruction announced a correct abstract proposition of law', it was, z under the facts of the case, calculated to mislead, and was erroneous, as leading the jury to believe the defendant was required to use blocks in its switches and turn-outs.</p> <p>5. Same—of an instruction—as determining what amounts to negligence. In an action by a servant of a railway company to recover for a personal injury alleged to have resulted from an omission of the company to block the joints of a turn-out, the court instructed the jury that the plaintiff might recover damages for any permanent injury sustained by him, if shown, "by the evidence, “from the acts complained of, in this case:” Held, that as the only act complained of was the omission to block the joints of the turnout, it was not the province of the court to say that such omission was wrongful, or amounted to actionable negligence, and the instruction was misleading.</p>

<p>Appeal from the County Court of Lee county; the Hon. Bichard G. Farrand, Judge, presiding.</p>

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

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

<p>1. Impeachment oe deed—by the grantor—presumption as to his knowledge of contents. Papers for the transfer of property to a trustee, in trust for the grantor and his wife, during their lives, and for the disposal of what might remain after their death, had been prepared on due consultation and due deliberation of the grantor, and the notary who took the acknowledgment of the grantors testified that the deeds had been signed before he came to take the acknowledgment, and that the grantors acknowledged the same: Held, that it would be presumed that the grantors had read- the deeds, and that the wife freely and voluntarily executed the same, with a full knowledge of their contents and bearing on her rights.</p> <p>2. Same—prior and subsequent declarations of grantor. The declarations of a testator or grantor, made before or after the execution of a will or deed, may be competent evidence to prove his mental condition, but they are not competent to show undue influence or fraud.</p> <p>3. A person can not impeach a deed or other instrument of writing which he has voluntarily executed, by his own subsequent parol declarations.</p> <p>4. Testamentary disposition—or a trust. Where a disposition of property made by a written instrument is not to take effect until the death of the maker, it may be regarded as testamentary in character, and it will remain subject to revocation or change during his life.</p> <p>5. A trust is created when no act is necessary to be done to give it effect, and when the trust is fully and finally declared in the instrument creating it.</p> <p>6. In this case, husband and wife, by deeds, conveyed the real and personal estate of the former to a trustee in trust, out of which the trustee was to pay the husband $40 a month, and such other amount as he might deem necessary for the support of the grantor and his wife; and upon the death of the husband, if before the death of the wife, to make like payments to her, and upon the death of both, to c.onvey and transfer all the remaining property and effects to certain persons named. The deeds were duly acknowledged and delivered, and contained no power of revocation: Held, that the deeds constituted an executed trust, not a mere testamentary disposition, nothing being left by the grantors to give the same effect.</p> <p>7. Trust—consideration—whether necessary. Where a trust is complete and executed, so that nothing further remains to be done by the person creating it, to give it effect, the absence of a consideration is not material.</p>

M. F. Tuley, Judge, presiding. Philetus W. Gates exhibited his bill in chancery, in the circuit court of Cook county, against David it.

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

<p>1. Evidence — cross-examination — restrictions, and when a greater latitude may be allowed. The rule is, that the cross-examination of a witness shall be restricted to such matters and things as he may have been examined upon in his direct examination.</p> <p>2. But greater latitude is allowed on cross-examination, when the witness is one of the parties in interest, or an unwilling witness, than in the case of an ordinary witness. It is a matter of discretion to allow a wider range to the cross-examination of a party, and not confine it strictly to the matters elicited on the direct examination, and its exercise can not be assigned for error unless such discretion has been abused.</p> <p>3. So where the court allowed a witness, who was a party to the suit, in his cross-examination, to be interrogated upon other subjects than those he testified about in his direct examination, and it did not appear that any injury resulted therefrom, it was held no ground to reverse the judgment.</p> <p>4. Same—admissions and statements of the holder of a note, etc., as affecting the title of his subsequent assignee. If thq holder of a note, or other evidence of indebtedness, then due, which is claimed to be fraudulent as to other creditors of the maker, admits or states that the maker in fact owes him nothing, and afterward transfers the same to another, his admission is proper evidence against his assignee, who takes subject to all the equities against the assignor.</p> <p>5. Same—statements of vendor of goods, in disparagement of his vendee’s title. The admissions of the vendor of goods in disparagement of his title, after the sale, are not admissible to defeat the title of his vendee to the property.</p> <p>6. Same—statements of vendor after sale—to impeach him. While it is true that the declarations of a vendor, after the sale of property, is not competent evidence against the vendee, yet if the vendor, when on the stand, denies having made declarations in respect to the fairness and genuineness of the sale, his attention being called to the time and place of making the same, it is competent to prove he did make such statements, for the purpose of impeaching his testimony.</p> <p>7. Same—evidence to show fraud in purchase of goods. On the question of the right of a vendor of goods to rescind the sale for fraudulent representations of the vendee as to his financial circumstances, and his intention, at the time of the purchase, not to pay for them, the vendor will have the right to show the circumstances under which the goods were obtained, And the manner in which the vendee disposed of them.</p> <p>8. And when the vendee, after his purchase, confessed a judgment in favor of his brother, and then sold all his goods, including those so purchased, to another creditor, who took an assignment of the judgment, and who had knowledge of facts tending to charge him with notice of the fraudulent intent of the vendor, it was held proper to admit evidence that the assignor claimed that before the confession of judgment his safe was opened by burglars, and $6000 or $7000 taken therefrom, and also to show that this claim was false, and only a pretence, as tending to show the intention of the Assignor in obtaining the goods.</p> <p>9. Impeaching judgment confessed in fraud of creditors. If a judgment is confessed by a part)7, for the fraudulent purpose of hindering, delaying and defrauding bona fide creditors, or a vendor of property purchased by him, such judgment is not to be taken as conclusive as between such fraudulent debtor and others attempted to be defrauded by him.</p> <p>10. And so, when the evidence tends to show that a judgment confessed by a failing debtor to his brother is fraudulent, and not bona fide, but color-Able, merely, an instruction that the records of the court introduced in evidence are conclusive, is properly refused. The party contesting the validity of such judgment has the right to show it was entered up with a fraudulent intent, and such an instruction might be taken as holding the judgment conclusive for all purposes.</p> <p>11. Purchaser from, fraudulent vendor—with and without notice. A purchaser of goods, for the purpose of satisfying his own claim against the vendor, when he takes without notice of fraud, or the fraudulent title of the vendor, or without notice of facts sufficient to put him on inquiry, is entitled to protection. /</p> <p>12. But if a person fraudulently obtains the possession of goods by purchase, with intent not to pay for the same, a purchaser from him, with notice of facts sufficient to put a reasonably prudent person on inquiry with regard to the fraud, will not be protected as an innocent bona fide purchaser. Actual notice of the fraud is not necessary.</p> <p>13. Same—of facts to charge a purchaser with notice of the fraudulent title of his vendor. A creditor, at the time of taking a bill of sale of all the goods and effects of a failing debtor, knew that his vendor was indebted to .another for goods then in the vendor’s shop; that he claimed to have been robbed; that his account of the robbery was improbable; that he had confessed a judgment in favor of his brother, and was endeavoring to put his property out of his hands for the purpose of defrauding his creditors, and such creditor, before his purchase, had charged the debtor with fraud: Held, that these facts, so known to the creditor to whom the bill of sale was made, were sufficient evidence of notice to him of fraud in the original purchase of the goods by the debtor, as to submit the question of notice to the jury.</p> <p>14. Fraudulent conveyance—preference of creditor. It is lawful ior a debtor to prefer one creditor and pay him in full. Both parties to a sale must be cognizant of or participate in the intent to defraud creditors, to Tender the sale void.</p> <p>15. Instructions—a single one giving all the law of the case. The practice of giving the jury, in one charge, all the law demanded by the facts of the case, instead of numerous isolated instructions, is sanctioned as a good one.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. James F. Hughes, Judge, presiding.</p>

<p>1. Drainage law — drainage district — legality of its organisation assumed. On bill to enjoin the collection of special assessments made by drainage commissioners, on the ground of misconduct, etc., where no charge is made or proved affecting the jurisdiction to organize the district, it will be assumed, in a collateral proceeding, that the district was legally organized.</p> <p>2. Same—apportioning assessment for benefits according to the entire cost—the statute construed. The words, “but in no event shall any tract of land be assessed for benefits in a greater amount than its proportionate share of the estimated cost,” etc., in section 14 of the Drainage act of May 29, 1879, mean, that each tract of land shall pay a tax in the proportion the benefits it would receive will bear to the entire cost of the drainage. Such assessment does not necessarily find the full benefits the land will sustain.</p> <p>3. Same—of an additional assessment, in case of a deficit. Where the original assessment, under section 14 of the Drainage law of 1879, proves inadequate to complete the work undertaken, the commissioners are, by section 32 of the same act, authorized to levy an additional assessment to enable them to pay the deficit. In doing so, each tract of land must be assessed such proportion of the additional cost as its original assessment bore to the total original assessment. Ho additional assessment of benefits is necessary.</p> <p>4. Same—remedy in ease of improper assessment. The statute relating to drainage, gives any party who feels himself aggrieved by the assessment against his land, an appeal, by which any errors may be corrected; and where the commissioners, in making an assessment, have jurisdiction, and the party affected thereby fails to avail of his legal remedy, by objecting to its confirmation. or appealing, a court of equity will not interpose to vacate the judgment of confirmation, or grant other relief against the assessment.</p>

<p>1. Recognizance—requisites—as to the court, and the term at which to appewr. While it may be, a recognizance which wholly fails to specify the ■court and the term of the court at which the principal is required to appear, would be deemed to be void, yet it is not essential to the validity of the re■cognizance that the legal, technical name of the court shall appear-. It will be sufficient if the court is so described that the accused may know the one intended.</p> <p>2. A recognizance taken in Adams county was conditioned that the accused should appear “before the criminal court of said county * * * on the first day of the next term thereof, to be holden in the court house in Quincy, on the third Monday of January, 1885. ” By an order of court, the January term of the circuit court, which commenced on the third Monday of January, was set apart as a criminal term exclusively. But there was no court in that county technically known as the criminal court: Held, that under sections 9 and 18, division 3, of the Criminal Code, the defect of form in not giving the true legal name of the court did not render the recognizance void, it being evident that the circuit court was the court intended.</p> <p>3. Soibe facias on recognizance—to whom to be directed—of service out of the county. There is no provision of law requiring a scire facias upon a forfeited recognizance to be sent out of the county in which the court is held, for service, and it is properly directed to the sheriff of that county for service therein.</p> <p>4. Ror is there any law authorizing a sheriff to serve the scire facias issued upon a forfeited recognizance outside of his county, and without an express provision of the statute to that effect he has no right to do so. Therefore, such process will not be void because it directs the sheriff to serve the defendants if found within his county.</p> <p>5. Same—effect of one nihil, as being equivalent to actual service. Under a former statute, actual service, or the return of two nihils, was necessary to give the court jurisdiction of the persons of the defendants in a proceeding to enforce collection of a forfeited recognizance, but under the present statute one nihil is sufficient, and is equivalent to actual service.</p> <p>6. Same—variance between the writ and the recognizance, as to the term at which to appear. An averment in a scire facias, on a recognizance, that the accused was recognized to appear in the court to answer a criminal charge “ on the first of the then next term of the said court, ” where certain terms of the court are set apart exclusively for civil business, and other terms for criminal matters, will be held to mean the first or next term at which, under the law and rules of the court, the accused could be lawfully tried, and hence a recognizance conditioned for the appearance of the accused on the first day of a given term, which is in fact the next term for criminal business, will not be variant from the averment.</p> <p>7. Coubts—designating terms for criminal business, and for the civil docket. Under section 91, chapter 37, of the Bevised Statutes, a circuit judge is authorized to designate, by an order to be entered of record, what term or terms shall be devoted exclusively to criminal business, and what .to civil business only, and to direct that all process, etc., shall be made returnable to the appropriate terms as thus designated..</p>

<p>Appeal from the County Court of Wayne county.</p>

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

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

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

<p>1. Hegugencb—master and servant—exposing the latter to poisonous gases—liability of the master. Where a gas company, by negligence, permits the escape of poisonous gases into a room not properly arranged so as to let it pass out, and knows of such escape and the danger of inhaling the same, and either the company, or its superintendent, duly authorized to-employ and discharge, manage, direct and control its employes or workmen, orders a servant to do certain work in such room, and the servant, in obedience to such order, without knowledge of the danger to which he is exposed, and without fault or negligence on his part, undertakes to do the work, and is overcome by the gas so escaping, whereby he falls and receives an injuryr from which he dies, the company will become liable to the personal representative of such deceased servant, in damages, for his death.</p> <p>2. Same—question of proper care on the part of the person injured—of an instruction on that subject. In such case, on the trial of a suit brought. by the administrator of the deceased servant, the court instructed the jury, that if they believed, from the evidence, that the defendant company and its-superintendent had knowledge of the danger of the service required, and that the servant, without such knowledge, or any fault or negligence, but in obeying the order of the superintendent, inhaled said gas, which caused his death, to find for the plaintiff: Held, that while the use of the disjunctive “or,” was not grammatical or proper, it was not such an error as to call for a. reversal, especially where the instructions, as a whole, were more favorable to the defendant than it could ask.</p> <p>3. Same—contributory negligence—of an instruction, as introducing-an element not belonging to that question. In an action of that character, where it became a question whether the servant’s negligence did not contribute to his death, the court was asked to instruct the jury, that if they believed, from the evidence, that the deceased, at the time he started to go up to the place he was required to work, was told by a witness not to go the way he did, but to take a long ladder and go on it, and that deceased refused to do so, and in consequence thereof came to his death, they should find for the defendant: Held, that the instruction was properly refused, as being calculated to leave the impression that the refusal to take the ladder was of itself' evidence of negligence, whereas it had nothing to do with the question.</p> <p>4. Where the turning point in the case was whether the fall of the deceased from the place to which he was ordered to go, was caused by his inhaling' the poisonous gases escaping from the works, or whether it was accidental,. the death being directly caused by the fall, it is not proper; in an instruction, •to divert the minds of the jury from such main issue, by directing them to consider the manner in which the deceased reached the place from which he fell. If the fall was caused by the breathing of the gas, it is not material how the deceased made his ascent,—whether by a ladder, or by climbing part of the way.</p> <p>5. Evidence—to show the place of an accident and surroundings. On the trial of an action against a gas company to recover damages for negligence resulting in the death of the plaintiff’s intestate, by breathing poisonous gases negligently allowed to escape in the room where the deceased, as a servant of the company, was put to work, it was held, not error, but proper, to show, by a witness, the place of the accident, with all its surroundings, including the location of the smoke-stack which was used in generating "the gas.</p> <p>6. Same—to show qualification of an expert witness and his personal experience. Where an expert witness is called to testify as to the kind and quality of gases produced from the combustion of hard coal, and their effect upon the human system, and has shown his knowledge as a student and teacher of chemistry, it is eminently proper to ask him what experience he has had with such gases, and if in answer he gives a practical illustration of a part of his general knowledge and experience on the subject, there will be no error.</p>

<p>1. Will—rule of construction—giving effect to the intention of the testator. In construing a will, the intention of the testator, as manifested by the words used, must prevail. This intention is not to be determined from ■one clause or provision of the will, but each and every clause of it must be -considered, and from the whole instrument and all its parts the court must -determine such intention.</p> <p>2. Same—when an interest or estate becomes vested—as, where the proceeds of property to be converted into money, are the subject of the devise. A testator directed that all his estate, real and personal, be converted into money, and devised to each of the four children of his sister P., (naming them,) one share, and to her two grand-children each a half share, and in case of the death of either of said four children, then to the widow of such deceased, and in like manner one share to each of the children (naming them) 'of his brothers and another sister, and three shares to his half-brother, and then directed, that “in the event of the death of any one named above, then the portion or share of the deceased to be paid to his or her offspring, and if no offspring” was left, his part to lapse. Thirteen days after the death of the testator one of the sons of P. died, leaving children, and his administrator claimed his share of the estate: Held, that the son of P. did not take r& vested interest immediately upon the death of the testator, and that the share of such son went to his heirs.</p> <p>3. In such case the property of the testator was not devised, but only its ■proceeds when converted into money, and the persons named took no vested interest before the arrival of the time for distribution. In case of the death ■of any one before the conversion of the estate into money and the period for distribution had arrived, his or her part went to his or her children, if any, and if no children, his share lapsed, thereby increasing the other shares.</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 Hancock county; the Hon. “William Marsh, Judge, presiding.</p>

<p>1. Damages—to real estate—by nuisance—when future damages recoverable. In an action brought for a deterioration in the value of real estate, •occasioned by a nuisance of a permanent character, or which is treated as permanent by the parties, all damages for the past “and future injury of the property may be recovered, and one recovery in such a case is a bar to all future actions for the same cause.</p> <p>2. Action—/or injury to land—when not transferable with the land. Where private lots in a city are physically damaged, or injured in value, by the construction and operation of a railroad in close proximity thereto along -a public street, the right of action, if any exists, is vested in the owner of the lots immediately upon the construction of the railroad, to recover for all damages, past, present and future, and a subsequent grantee of the lots can not maintain an action at all for the proper use and operation of the road, after his purchase.</p> <p>3. Nuisance—railroad in public street. A railroad track laid upon a street of a city by authority of law, properly constructed, and operated in a skillful and careful manner, is not, in law, a nuisance.</p> <p>4. Eminent domain— compensation for damage to property not tahen. Prior to the adoption of the constitution of 1870, no compensation was required to be paid for property not taken for the public use, but which was damaeed bv the construction and maintenance of public improvements. Under that constitution, an action by a lot owner for a physical injury to his property by constructing and operating a railway in the public street near his lot, may be regarded as a proceeding to recover just compensation for private property damaged for the public good; and in such case the assessment will be in full compensation for all present and future damages, and one recovery will bar any subsequent action for the same cause.</p> <p>5. The just compensation to be made for damage to land is intended as an indemnity, not for successive, constantly accruing damages as they may afterwards be suffered, but for all the land owner may suffer from all the future consequences of the careful and prudent operation of the proposed public structure or other improvement.</p>

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Taxation—errors and irregularities in assessment—remedy—by injunction, or at law. A court of equity will not enjoin the collection of a tax for errors and irregularities on the part of the assessor, if the injured party neglects to avail himself of the remedy given by law.</p> <p>2. So where a person, in listing his property for assessment, declined to give in any moneys and credits when requested so to do, though he was liable to taxation on credits, and the assessor added $20,000 for moneys and credits to his assessment, and notified him of that fact, and of the time and place of the meeting of the board of review, but he failed to appear before that board and seek relief against the assessment, it was held, on bill to enjoin the collection of the tax on the moneys and credits, that having failed to avail of the remedy afforded by the law, a court of equity could not interfere.</p> <p>3. If, however, an assessor, after accepting a person’s list of personal property and fixing the valuation, should, without notice of any kind, enlarge the assessment by adding thereto an item for moneys and credits, such additional sum might be regarded as having.been assessed without authority of law, and the tax arising thereon enjoined.</p> <p>4. Same—notice to owner to appear before the board of review—whether it must be in writing. A tax-payer will not be excused from appearing before the board of review to have his assessment reduced or corrected because not notified in writing to so appear. The eighty-sixth section of the He venue law, requiring a written notice to the tax-payer, applies only to cases where complaint is made that a person has been assessed too low. In that case, written notice is required, before the board can act.</p>

Writ of Error to the Circuit Court of Menard county; the Hon. Cyrus Epler, Judge, presiding. The plaintiffs in error instituted this proceeding in the circuit court of Menard county, to condemn a right of way; one hundred feet wide,, for their railroad, over and across lands of McDougall and Hamilton, described as part of the north-west, quarter of section 11, township 19 north, range 8 west, and part of the north fractional half of section 10, same township.

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

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Douglas county; the Hon. J. W. Wilkin, Judge, presiding.

<p>1. Homestead—divorce—effect on the right of homestead. The effect of a decree of divorce of a husband from his wife, for her fault or misconduct, is the forfeiture of her right of dower and any estate of homestead she may have had in his lands.</p> <p>2. The homestead right of a husband or wife acquired by the desertion of the other, is held subject to a condition of forfeiture upon the marriage relation being dissolved by a divorce granted on account of the fault or misconduct of the one having such right. Section 2 of the act relating to exemptions must be construed with section 14 of the Dower act, so that both may stand, and have full force and effect given to each.</p> <p>3. Foreign divorce—presumption as to jurisdiction. Where the record of a suit for divorce in another State appears to be regular on its face, and shows the appearance of the parties, and a final decree dissolving the marriage relation, it will be presumed such court had the power to render the decree.</p>

O. T. Beeves, Judge, presiding. This was an action of assumpsit, brought by A. 0. Granger & Co., of Philadelphia, against the appellant. The declaration contained the common counts only. Appellees were builders of gas apparatus for the manufacture of “water gas,”—a patent process for making gas. Appellant bought a set of apparatus of appellees.

<p>Limitation—act of 1839—as to the payment of taxes. In order to successfully invoke the limitation law of seven years’ possession and payment of taxes, under claim and color of title, against the paramount owner, the party relying upon the bar must show that he has paid all taxes legally assessed on the premises during the seven years. A neglect or failure to pay a special town tax for one of the seven years is fatal to a defence under such statute, although such special tax may have been dropped from the tax books.</p>

John V. Eustace, Judge, presiding. This was a bill in chancery, filed in the Carroll circuit court, by appellant, for partition of certain lands lying in that county.

<p>1. Parent and child—as to their mutual support—presumption, as to the existence of any contract for compensation—evidence in respect thereto. Where a child lives with a parent, or a parent with the child, the relationship between them is so intimate that the law does not imply a contract to pay money for support or services, and unless there is an express contract to pay for the same, a recovery therefor can not be had by one against the other.</p> <p>2. In the absence of an express agreement to pay for support or services, as between parent and child, the law will presume that what the one may do for the other is done gratuitously, and as the prompting of natural affection.</p> <p>3. So where a father and mother reside in the family of their son-in-law for several years, without any express contract to pay for their support, and the facts and circumstances fail to show that any compensation was intended or expected to be given or received, but rather indicate that no charges were to be made on either side, the son-in-law will have no right to recover any sum for the support of his wife’s parents.</p> <p>4. In this case, an aged father made his home with his married daughter for about sixteen years, during which time there was no accounting or reckoning between him and his son-in-law, a physician, and the latter made no charge for medical services, nor any claim for board, or necessaries or supplies furnished, but, on the contrary, gave his notes to the father-in-law, at different times, for considerable sums, and continued to make payments thereon, and the father-in-law conveyed to him property worth $6000 for $2500: Held, that these facts negatived the idea of any contract of the father to pay for his support.</p> <p>5. Fraudulent conveyance—voluntary provision for wife or children. A man has a right to make a voluntary conveyance of land to a trustee, for the benefit of his wife and children, provided he does not do so in fraud of the rights of existing creditors. The mere fact of indebtedness, alone, will not invalidate such conveyance. It must further appear that the grantor was insolvent at the time of making such provision.</p>

Writ of Error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.

S. P. Shops, Judge, presiding. This was an action of trespass. The declaration has three-counts.

<p>Appeal from the Circuit Court of Alexander county; the Son. 0. A. Barker, Judge, presiding.</p>

<p>1. Water works in towns and cities—laying lateral service pipes— assessment of vacant lots, therefor. The municipal authorities of a city-provided for the laying of lateral service pipes from the main water supply pipes to lots abutting on the street in which the main supply pipe was laid, and a special assessment was levied upon each lot for the cost of the lateral pipe conducted to it. Among these lots so assessed were some that were-vacant, and the owner of them claimed that because they were vacant there was no use, public or private, for the improvement for which the property was assessed, and that the assessment was invalid on' that ground. But it was. considered that, in the absence of any statutory provision on the subject, the action of the city authorities in that regard was not such an abuse of the discretionary power vested in them as to justify any interposition on the ground suggested.</p> <p>2. Same—discriminating between properly owners—subdividing lots for purposes of assessment for lateral service pipes. Abutting upon a street in which lateral service pipes were proposed to be laid in order to connect the water main with adjacent property, were certain vacant lots having a frontage of forty-five feet. The city authorities, for the purposes of assessment for the improvement, made an equal subdivision of these lots, proposing to lay a service pipe to each half lot, and a special assessment was levied upon the property accordingly,—that is, for one service upon each half lot, being for two service pipes ujion each whole lot. Other lots having a frontage of twenty-five instead of forty-five feet, were, under the scheme adopted, to be provided with but one service pipe for each entire lot, and these lots were assessed as. entire lots. It was held, that, conceding the power to make the assessment, the scheme adopted, as far as the lots having the greater frontage were concerned, was unauthorized and void. Under the circumstances, that property should not have been assessed for more than one service pipe to each whole lot.</p>

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

This is a bill in equity, by William W. Thornton, against William Roll, James Stewardson, and others.

<p>Appeal from the City Court of Aurora.</p>

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

John G. Rogers, Judge, presiding. This was an action of assumpsit, by appellee, La Pointe, to recover upon a policy of insurance issued by appellant company, upon certain goods, chattels and fixtures of dppellee, in a building in South Chicago. The policy was dated June 26, 1883, and insured the property in the sum of $1000, for one year. The loss by fire occurred March 17, 1884. A trial resulted in a verdict and judgment thereon for $1000.

<p>1. Non-besident defendants in chcmcery—service by copy of bill, and notice of pendency of suit—of character of jurisdiction thereby acquired— of requisites attending that mode of service. The service of a copy of a "bill in chancery to remove a cloud upon title to land, and notice of the commencement of the suit, upon a non-resident defendant, will be a sufficient ■service under section 14 of the. Chancery Code, and will give the court jurisdiction, except to render a personal decree, although the notice be not signed. The notice may be regarded as a part of the bill, and if that is signed, it will be sufficient.</p> <p>2. In such case, the service out of the State, by copy of the bill and notice, ■so far as property in this State is sought to be affected, will give the court jurisdiction to decree concerning it, but not to render a personal decree against the defendant for the recovery of money or costs, and to award a .general execution against him for the collection of the same.</p> <p>3. The statute does not make the issue and return of a summons necessary to the validity of a service by a copy of the bill with a notice of the commencement of the suit, as to a non-resident defendant; but if it did, a finding in the decree of such fact will answer, where the record fails to show the contrary. The absence in the record of any summons will not overcome •such a finding.</p> <p>4. Costs in Supbeme Cotjbt—on partial reversal. In this case the ■court, on a partial reversal of a decree on a question not affecting the merits, required the plaintiff in error to pay all the costs in this court.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Union county; the Hon. Daniel M. Browning, Judge, presiding.

<p>1. Will—effect of the expression of a wish. A wish of the testator, j clearly expressed in his will, is equivalent to a positive direction or command.</p> <p>2. Same—time of distribution—and herein, of the vesting of an estate, in interest, and in possession. Where a will contemplates distribution at a period subsequent to the death of the testator, the time must be fixed by the will itself. It can not be left open, to be determined by the executors.</p> <p>3. Where there is a simple devise to a class, and the will does not, expressly or by necessary implication, fix the time when the objects of the gift are to be ascertained or when distribution is to be made, the law will fix it at the testator’s death, that being the time when the will first speaks. In such case, the gift vests, both in interest and in possession, at the same time, and after-born children will be excluded.</p> <p>4. A devise vests in interest when the right of property first attaches, without regard to whether there is a present right of possession or not. When the right of possession accrues, the gift or devise is said to vest in possession, or the time of payment or distribution has arrived.</p> <p>5. A gift by will always takes effect, both in interest and possession, at the death of the testator, when limited per verba de presentí, unless such vesting is expressly, or by necessary implication, deferred to a future period.</p> <p>6. Where the gift is limited to take effect, both in interest and possession, upon some contingency or event which may or may not happen until after the testator’s death, if the contingency or event happens after his death the gift will then vest absolutely, and if before his death, it will then vest at his death.</p> <p>7. A gift of personal estate at a specified future time, or upon the happening of a certain contingency, will not vest until the time specified has arrjved or the contingency has happened; but if the gift is general, and there is merely a simple direction that it be paid, or that the fund be distributed or divided, at a specified time or upon the happening of a like contingency, it will vest on the testator’s death, and the payment or distribution, only, will be postponed. This rule, however, has no application to a devise of real estate.</p> <p>8. Where there is a simple gift to a class, to be paid at a fixed time or upon an event -which may happen after the testator’s death, and nothing appears to show a contrary intention, the gift will vest in interest at the testator’s death, and the time of distribution, only, will be deferred.</p> <p>9. But if the element of futurity is annexed to the gift itself, and is not merely indicative of the time of payment, or if the time of payment is made descriptive of the class that is to take, the gift "will not vest in interest until the time so fixed for payment or distribution has arrived.</p> <p>10. When there is a simple direction to divide at a specified time, the gift will not vest until the time of division; but where there is an express gift, accompanied with a direction to divide at such specified time, it vests at the testator’s death, and the division, only, is postponed.</p> <p>11. Same—executors taking the fee, in trust—when the equitable title mil vest—awaiting the happening of a contingency. Where a testator gives Ms executors discretionary power to sell, and convert all his estate into money, to be put at interest until the happening of a contingency, at which time it is to be divided among a designated class, the executors will take, by implication, a fee in the legal estate, for the purposes of the trust created by the will, and the equitable title will not vest until the happening of the contingency.</p> <p>, 12. Same—when a legacy will lapse on the death of a beneficiary, and when it will inure to a survivor. In case the devisees or legatees are specifically named or designated in the will, if one of them dies before the testator, his share will lapse; but where the devise is to an indeterminate class liable to change, as, where it is to the children of a person, the shares of those dying before the testator will not lapse, but will inure to the benefit of the survivors.</p> <p>13. Same—talcing per capita, or per stirpes. If a testamentary gift be made to one person and the children of another person, as, for instance, to A and the children of B, A and the children of B, in the absence of anything to show a contrary intention, will take per capita, and not per stirpes; yet the opposite construction will prevail when the intention to that effect can be gathered from the context.</p> <p>14. Same—devise to a class—who may take. Where a gift or devise is to a class, none will take except such as are in esse at the time appointed for distribution. But, where the devise is to a class as tenants in common, with no provision for survivorship, and one or more of the class die after the gift or devise has taken effect in interest, and before the time for distribution has arrived, the shares of those so dying will go to their devisees or heirs.</p> <p>15. And in case a gift or devise is limited to such of the children of a particular person as shall attain the age of twenty-one years, it has been held that the first child attaining that age is entitled to his share of the estate in proportion to the number of children in esse at that time, and that an after-born child will be excluded.</p> <p>16. Same—the particular case—as to meaning of the word “heirs"— period of distribution—devise, whether per capita or per stirpes—interest of executors. A testator, after making equal specific bequests and devises to his daughter A, then living, and 0, the only son and heir of his deceased daughter B, authorized his executors to convert the residue of his estate into money, to be put at interest until the final distribution thereof, and expressed the wish that such estate be divided equally between “the heirs of the said A” that might be living at the time of such division, and the said 0, and that such division should not be until the youngest child of A should arrive at the age of twenty-one years, and then provided, that “if any of the heirs, ” after attaining that age, should wish to engage in business, etc., his executors might make advances to them, taking their notes therefor, bearing interest, to be deducted from their portions of the estate on final division. A had seven children living at the death of the testator, and one born after that event: Held, (a) That the words, “the heirs of the said A,” meant the “children of the said A.” (6) That the word “heirs,” in the clause “should any of the heirs, etc., wish to engage in business,” etc., was used to include the children of both A and B, as a common class, (c) That the devise to “the heirs of A” and to 0, was unaffected by the specific legacies to A and 0, but was an original devise or absolute gift to those entitled at the time the will took effect in interest, which was not until the youngest child of A arrived at the age of twenty-one years, (d) That the period for the distribution of such residue was not the death of the testator, but when the youngest child of A attained the age of twenty-one years, (e) That only such of the children as might be living at the period of distribution were entitled to share in such residue of the estate, and that children of A, bom after the testator’s death, might take, if living at the time of distribution. (/) That such residuum of the estate was to be divided between C and the children of A living at the time of the final division, per capita, and not per stirpes. (g) That the executors, by implication, took a fee in the legal estate for the purposes of the trust created by the will.</p> <p>17. Heibship—when it becomes fixed. The law does not determine who shall be the heirs of any person, until his death; and one, to be an heir of another, must survive that other.</p> <p>18. PabtitioN'—interest or estate necessary. A party claiming an interest in land can not maintain a bill for its partition, unless he has, at the commencement of the suit, a present, vested interest or estate in the same, or soine part thereof.</p> <p>19. Fobmeb adjudication—when conclusive in a subsequent suit. Before a former decision can be successfully invoked as an estoppel in another suit between the same parties, it must appear that the question is the same in both cases, and that the court, in the former suit, had power and jurisdiction to determine it.</p> <p>20. Sam®—conflict of laws—construction of will in foreign jurisdiction—as to title to real estate in this State. A decree of a court of another State, giving a construction to a will as to the nature and extent of the interests given the several devisees in real estate in such State, is not binding upon the courts of this State as to the interests of the same devisees, under the same will, in lands in this State. As to the lands in this State, our courts will construe the will for themselves. This case distinguished from Hanna et al. v. Read et al. 102 111. 596.</p>

<p>1. Eminent domain—as an attribute of sovereignty—its nature. The Tight of eminent domain, being an inherent attribute of sovereignty, exists independently of written constitutions or statutory laws, though its exercise is usually regulated by appropriate legislation.</p> <p>2. The right is founded on public utility and necessity, and its exercise is a strictly legislative function, and, subject to the right of the courts to determine whether the use for which property is sought to be taken is a public one, and whether the proceedings have been conducted according to the law made on the subject, but the legislature is the exclusive judge of the necessity or emergency justifying the exercise of the power.</p> <p>3. Same—whether the use to which it is proposed to appropriate the land of another, is public or merely private. The business proposed to be done, and the manner of doing it, must be looked at in determining whether the use to which property is to be devoted will be a public or a private one. If, from the nature of the business and the way in which it is to be conducted, it is clear no obligation will -be assumed to the public or liability incurred other than such as pertains to all strictly private enterprises, then the use is private, and not public.</p> <p>4. The use of a strip of latid by a coal company, upon which to construct a tramway leading from the coal works to a railroad track, is a private use, and such strip can not be condemned, under the Eminent Domain act, for such use.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. Richard Peendergast, Judge, presiding.</p>

<p>1. Descents—by what law governed. The laws of descents in force at the time of a person’s death, will control in the distribution of his estate.</p> <p>2. Same—as to illegitimate persons—from whom they may inherit. Under the legislation of 1845 and 1853, relating to the descent of property, etc., an illegitimate person is recognized as the child of its mother, as regards the descent of property, and is made capable of inheriting her property to the exclusion of all persons, when she died unmarried; and he was enabled to transmit, by descent, his own property to her and her children.</p> <p>3. The act of 1872, relating to descents, confers upon illegitimates and their lawful issue, as respects the mother and any maternal ancestor, and any person from whom the mother might have inherited, if living, inheritable blood, and, as such, in the respects mentioned, they have the right of inheritance as fully as legitimate children.</p> <p>4. The object of the framers of such act seems to have been to remove the common law disability of inheritance by illegitimates, through the maternal line, and in that regard place such persons upon the same footing as legitimate persons.</p> <p>5. Same—the particular case. The mother of an illegitimate son, married, and there was issue of the marriage. The illegitimate son died, leaving children who were born in lawful wedlock. The mother also died, leaving her surviving several children, the issue of her marriage, one of whom, a son, afterwards died, intestate, leaving no widow, no child or descendants of a child, nor parents, but leaving surviving him one sister, and the descendants of other sisters. Had the mother been living at the time of the death of this son, she would have inherited a portion of his estate, and because the mother would, if living, have inherited from him, her illegitimate son, had he survived, would have been one of his heirs, and so, the children of such illegitimate, born in lawful wedlock, representing their father, became invested with the same heirship.</p> <p>6. This results under the act of 1872, notwithstanding the illegitimate son and his mother both died before that act took effect.</p>

<p>Bill of exceptions—when necessary—presumption from its absence. Where the record contains no bill of exceptions showing the evidence heard on the trial of a cause, it will be presumed that the evidence was ample to sustain the judgment of the court below. It devolves on the party alleging error to make it appear.</p>

<p>1. Appeal—to what court—on prosecution for a misdemeanor, when validity of a statute is involved.. When the validity of a statute is involved in a prosecution for an alleged misdemeanor, an appeal lies directly from the trial court to the Supreme Court, and not to the Appellate Court.</p> <p>2. So where one was indicted for unlawfully practicing medicine and surgery without having first complied with the statute of 1877, and convicted, and the question of the constitutionality of the statute is raised, by motion" to quash the indictment and by motion in arrest of judgment, no appeal lies-to the Appellate Court, it being given by section 88 of the Practice act, as amended in 1879, directly to the Supreme Court.</p>

<p>1. Drainage law—constitutionality of the act of 1885. The act of June 22, 1885, entitled “An act to vest the corporate authorities of cities and villages with power to construct, maintain and keep in repair, drains, ditches, levees, dykes and pumping works for drainage purposes, by special assessment upon the property benefited thereby,” is not unconstitutional, but is a valid law.</p> <p>2. The authority of the legislature to pass the act of 1885, relating to drainage, etc., in cities and villages, is not affected by section 9, article 9, of the constitution, but the power was conferred by the amendment to section. 31 of article 4 of that instrument, adopted in 1878.</p> <p>3. Same—powers of municipalities—and as to the selection of the mode and instrumentalities for the exercise of those powers. The act of .June 22, 1885, vests the corporate authorities of cities and villages with power to construct and maintain such drains and pumping works as are necessary for the purpose of draining lands within their corporate limits.</p> <p>4. The legislature, in the exercise of the power conferred upon it by the constitutional amendment of 1878, is not restricted to the mode prescribed by the drainage acts of 1879, nor to the agencies and instrumentalities designated in those acts. The authorities of cities and villages may be made drainage commissioners, and empowered to determine what portion of the lands within such cities or villages shall be drained.</p> <p>5. Same—formation of drainage district—in cities and villages. Where city or village authorities have determined that a particular portion of the lands within the corporate limits needs draining, and have set the same apart, by ordinance or otherwise, as the district to be drained, they will have thereby virtually organized a drainage district. In such ease, no preliminary petition for the organization of the district by the owners of property is necessary.</p> <p>6. Ordinance—for local public improvements—sufficiency of ordinance as to the nature and description of improvement. An ordinance for the-making of a local public improvement by a city or village, to be paid for by special assessments, which fails to specify the nature, character, locality and. description of the proposed improvement with sufficient certainty, is defective,, and special assessments based thereon will be invalid.</p> <p>7. Provisions in an ordinance for the construction of a sewer and pumping works in a village, that the wells or basins should be located upon a certain lot, “or upon some other suitable lot in the immediate vicinity of the one described;” that the lot described, or “some other suitable lot” in the same-vicinity, etc., be purchased, and that there be erected suitable buildings, consisting of an engine-room, etc., “substantially as the same is delineated upon plans on file in the office of the village engineer, ” are all objectionable, in failing to comply with the requirements of section 19, article 9, chapter 24, of the Revised Statutes.</p> <p>8. Such an ordinance is further defective if it does not specify, with sufficient definiteness and certainty, the location of the man-holes and mantraps, and fails to give any specifications from which the cost of the pumping engines and boilers, and their foundations, can be estimated.</p> <p>9. Municipal corporation — mode of acquiring real estate. The-trustees of a village have no power to acquire a lot on which to locate buildings and pumping works for drainage purposes, except by proceedings to condemn, as provided in sections 3 and 4, article 9, chapter 24, of the Revised Statutes.</p>

<p>Appeal from the Appellate Court for the Second District;— Beard in that court on appeal from the Circuit Court of Stark •county; the Hon. T. M. Shaw, 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. Elliott Anthony, Judge, presiding.

<p>1. Wills—whether an estate in fee, or merely for life. Where a testator in a clevise employs language sufficient to pass the fee simple title, in the absence of the expression of a clear intention to cut down the fee to a life estate, an estate in fee simple will pass.</p> <p>2. The following clause in a will, “I now will and bequeath the rest and residue of all I possess of real and personal and mixed property, as follows, viz.: one-fourth to my daughter H., one-fourth to my son W., one-fourth to-my two grandchildren, J. and E., and one-fourth to my wife, 0.,” is held sufficient to pass the fee simple title of the undivided one-fourth of the estate to the two grandchildren.</p> <p>3. A subsequent clause in the will, directing that the oné-fourth given to-his daughter be so secured to her that she should enjoy it during her natural life, and after her decease then to her right heirs forever, and expressing a wish that the interest of the two grandchildren should in like manner be secured to them, and giving the executors power to so secure such shares, as indicated, and to manage the estate until a division thereof, etc., was held not to cut down the estate in fee given to the grandchildren in the prior-clause, and make it an estate for life, only.</p> <p>4. Same—the rule in Shelly’s case—its application. A devise of an estate to a daughter, to be so secured to her that she shall enjoy it during her natural life, and after her decease to go to her heirs forever, will, under the-rule in Shelly’s case, give her an estate in fee simple.</p> <p>5. Same—when the legal title is given to executors. A testator devised his estate in four equal parts, one-fourth to his daughter, one-fourth to his son, one-fourth to two granddaughters, and one-fourth to his widow, and by the will further provided and directed that the share of his daughter be so secured to her that she might enjoy it during her life, and on her death to go to her heirs forever, and in like manner that the share of his granddaughters be so secured to them, and gave his executors power to manage the estate for the best interests of all concerned, until a division should be made, and to sell depreciating stocks or property, and re-invest, when deemed proper: Held, that the executors, by implication, took the legal title to the estate, in trust, to enable them to carry out the intentions of the testator, and discharge the trust created by the will.</p>

<p>1. Will—power of sale in several executors—when the power may be exercised by a part of the donees thereof. Where power is given in a will to several executors to sell real estate, a sale by the executor who qualifies, or by the surviving executor, will be valid, whether the power is merely discretionary or is mandatory.</p> <p>2. A testator gave all his estate to his widow for her life, and directed that at her death it be disposed of, one-third to the testator’s son, one-third to his daughter, A, for her life, the income to be applied, by her and her husband, to her support, and to the support and education of her four children, and at her death her portion to be divided among her said children as they should, respectively, become of age, and the other third to his daughter, B, for her life, the income to be applied in the same manner as with the other daughter, He appointed O, D and E, his executors, and authorized them to sell such portions of his real estate as they might think advantageous, and mUke proper conveyances. E declined to accept and qualify. 0 and D qualified, and the widow and D died without any sale of real estate having been made: Held, that 0, the sole surviving executor, had full power to sell and convey any of the lands of the testator in this State.</p> <p>3. Same—effect of the death of one of several beneficiaries, on the power of sale given to executors. It has been held, that when the object for which a power has been created has been accomplished, or has become impossible, or unattainable, the power itself will cease to exist.</p> <p>4. But where power is given to executors to sell real estate for the purpose of creating a fund in which several persons are to participate, the death of one of the beneficiaries before there has been any attempt to exercise the power, will not in anywise operate to impair the authority of the exeeutorsto sell for the benefit of the survivors. In such case, the object of the testator in making provision for the fund has not been wholly accomplished, nor has it become entirely impossible or unattainable,—and so the power will not have ceased to exist.</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. Joseph E. Gary, Judge, presiding.

<p>1. Subface watebs—diverting the flow thereof to the injury of lower proprietors—strangers contributing to the injury—liability. Where a railway company diverts the flow of surface water from its natural channel, and conducts it through a ditch it has made along its right of way, and empties it into a slough at a point where it overflows the land of another, the company may be liable for such damages as result from its own acts, but it will not be liable on account of any water that may be brought into such railroad ditch by artificial drains of other parties, made without the sanction or approval of the company.</p> <p>2. Same—presumption as to the right of other proprietors to use the ■new channel. And where others owning land along the new water-way so constructed, drain the surface waters from their premises, by ditches, into that of the railway company, whereby the land of a lower proprietor, is injured, it can not, in the absence of proof, be presumed that such parties have the right to turn water into the railroad ditch, or that they did so with the consent of the railway company. • ...</p>

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

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, (presiding.

John J. Glenn, Judge, presiding. Frederick P. Burgett filed his petition in the circuit court of Mercer county, on the 13th of October, A. D. 1885, praying partition of lot 10, in block 10-, in Keithsburg.

<p>_ 1. Road tax—as to highways within incorporated cities, etc.—powers of commissioners of highways. Statutes conferring, in general terms, authority upon commissioners of highways to construct and maintain roads and bridges within their respective towns, will not be so construed as to authorize the exercise of such authority in respect to highways within the limits of incorporated cities and villages in such towns.</p> <p>2. So a road tax, levied by commissioners of highways for the improvement of certain public roads, a part of each of which lies within an incorporated village, is illegal, and its collection may be enjoined.</p>

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

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

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

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

<p>Insolvent debtob— discharge from imprisonment—when malice is the “gist of the action." Malice being the “gist of the action” in a suit in trespass for an assault and battery, the defendant in the judgment, arrested and held in custody under a writ of capias ad satisfaciendum issued thereon, is not entitled to a discharge from imprisonment under the Insolvent Debt- or’s act.</p>

<p>1. Evidence—parol evidence, to prove contents of a written contract. Where there was evidence tending to show that a written ante-nuptial contract was in the possession of the wife, in a contest affecting her right to dower, etc., and she failed to produce it, on notice, and gave no reason for its non-production, it was held, that parol evidence of the contents of the instrument was admissible.</p> <p>2. Same—of evidence admissible in such case—as, the testimony of the attorney who drew the contract, in the absence of the person sought to be affected by it. To show an ante-nuptial contract between a husband and wife, an attorney was allowed to testify to the fact of his having drawn such a contract for the husband shortly before his marriage, and that the latter took it away unexecuted, the intended wife not being present. There was other proof of the existence of such a contract, and of its execution by the wife just before her marriage, and the evidence tended to show the original was in her custody. It was objected that the attorney could not testify to a transaction with the husband alone, in her absence, and that such transaction should not affect the wife: Held, that in view of the other evidence, the attorney’s testimony was properly received.</p> <p>3. Witness—competency—of a party to the suit, concerning matters transpiring before the death of another, as against the heirs of the latter. A witness was called in a case in which a widow was seeking dower in heríate husband’s lands, who testified to a transaction between the witness, the wife and the husband, and what was then said about an ante-nuptial contract between the latter two, the witness being called upon to draw a note and mortgage from the husband to the wife, to secure her in her post-nuptial rights. The widow offered to testify in her own behalf, as to what occurred between her and her husband and such witness, on the ground the witness was an agent of her deceased husband: Held, that she was not competent to testify to matters stated by such witness, as he was not an agent of the husband.</p> <p>■ 4. Administrator’s saie oe dand to pay debts—of the pleadings in the proceeding—whether a cross-petition required. On petition by an administrator for an order to sell real estate to pay debts, in which proceeding the widow’s right to a specific allowance and dower is contested by the heirs, the court may properly find against the claims of the widow, under the petition and answers, without the filing of a cross-petition, and the court may also require her to apply upon a note held by her on the estate, property improperly taken by her under the assumption she was entitled to an award.</p> <p>5. Ante-nuptial contract—as a bar to widow’s dower and award. A widow’s dower may be barred by an ante-nuptial contract, and where there are no children of the marriage, the widow’s award may in like manner be barred.</p> <p>6. County court—of its equitable jurisdiction—awarding restraining order. Where a widow, having a note of her deceased husband, not yet due, given in lieu of the rights that would have accrued to her by the marriage, takes property without lawful right, to apply on what is called the widow’s award, and she claims dower in the lands sought to be sold to pay debts, the county court, under the somewhat of equitable jurisdiction which has been accorded to it in the settlement of estates, will have the power to direct that she credit the sum received by her, as being part of her award, upon her note, and restrain her from negotiating the note without such credit having been entered thereon.</p>

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

<p>1. Exemption from taxation—University of Chicago—constitutionality. Section 10 of the charter of the University of Chicago, passed in 1857, is unconstitutional and void, under the constitution of 1848, in so far as it attempts to exempt the property of that corporation from assessment of benefits for local improvements.</p> <p>2. Nor does the provision in section 2, article 8, of the constitution of 1870, securing the faithful application of all gifts, etc., to the purposes intended, lend any aid to the claim of exemption in such case. That clause in the constitution relates to the public school fund of the State, from whatever source derived, and not merely private donations to educational institutions, or to private corporations created for educational purposes.</p>

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

<p>1. Negligence—whether the question of comparative negligence involved—as, in case of injury to a child. In an action by an infant, against a railway company, to recover for a personal injury, when the plaintiff, at the time of the injury, was too young to be chargeable with negligence, and the parent of the child is not shown to have been guilty of any, the question of comparative negligence does not arise. In such a case the inquiry is, whether the injury was caused by the negligence of the defendant.</p> <p>2. Same—instruction—when it need not present the rule as to comparative negligence. The law does not make it necessary to state the doctrine of comparative negligence in an instruction, as applicable to a plaintiff incapable, from its tender years, of observing ordinary care for its personal safety, and hence an inaccuracy in an instruction as to the negligence of the plaintiff, is harmless, as no question can arise on it.</p>

<p>1. Wills—proof of execution, where the will has been lost or destroyed. Section 6 of the Statute of Wills, relating to the proof of wills when an attesting witness is dead, applies to lost or destroyed wills the same as to wills produced before the court.</p> <p>2. In this country, the ruling, in general, is, that a will may be established by one, only, of the attesting witnesses, if he can testify to a compliance with the statute relating to its execution. This does not, however, dispense with the necessity of the will being attested by two witnesses; and this rule applies equally to a lost or destroyed will.</p> <p>3. Same—proof of contents of lost will—by a single witness—declarations of ¿estator. The contents of a lost or destroyed will may be proved by the testimony of a single witness.</p> <p>4. The declarations, written or oral, made by a testator after the execution of his will, are, in the event of its loss, admissible, not only to prove that it has not been canceled, but also as secondary evidence of its contents.</p>

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

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

<p>1. Descents—as to estate of illegitimate—on renunciation of ivill by ■widow. Under the act of 1872, where an illegitimate person died testate, leaving a widow and no descendants, his widow, upon renunciation of his will within one year after its probate, took, absolutely, the whole of his estate, both real and personal.</p> <p>2. Same—of the terms of the widow’s renunciation, as affecting her rights under the statute. Where a widow of a deceased illegitimate testator renounces the provisions made for her by will, the statute fixes her rights in the estate, whether she claims them specifically or not in her renunciation.</p> <p>A statement in her written renunciation that she elects to take dower, will not prevent her from taking as heir, where the testator left no issue or descendants.</p> <p>3. WILL—power to dispose of property by will—subject to control of the law. The privilege of a person to dispose of his property by will is not a natural right, but depends for its existence on positive law. It is wholly within the control of law.</p> <p>4. Same—“devise”—“bequest"—“legacy”—defined and distinguished. A legacy is a gift of personal estate by will, while the word “devise” is usually employed to denote a gift, by will, of real estate, or an interest therein. But the word “bequest” may mean any gift by will, whether of real or personal property. In section 10 of the Dower act of 1845, the words “devise” and “bequest” seem to have been used as convertible terms.</p>

<p>1. Limitation—extent of one’s possession of land—as affecting the bar of the statute. Possession of a part of an entire tract of land, under color of title for the whole, will be possession of all of the tract not in the adverse possession of another.</p> <p>2. Where a person enters into the actual possession of a part of an entire tract, which was vacant and unoccupied at the time, under a conveyance for the whole, his possession will be regarded as embracing all the land called, for in his deed. But possession of a part, only, of an entire tract, even under a deed for the whole, will not extend to and embrace another portion in the. adverse possession of another.</p> <p>3. So in an action of ejectment to recover a strip off a lot of ground, the plaintiff showed color of title for the whole lot, and also proved the payment of all taxes thereon for seven successive years, under such color of title, but failed to show any possession of such strip at any time: Held, that the evidence did not authorize a recovery, and that the court properly instructed the jury to find for the defendant.</p> <p>4. Ejectment—plaintiff must recover on the strength of his own title. Where the plaintiff in ejectment fails to prove title to the premises, or show a right of possession, and is therefore defeated, he can not complain that he was not allowed to rebut the proof of the defendant’s title. The plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary.</p> <p>5. Same—recovery when plaintiff is in possession. A plaintiff in ejectment is not entitled to a judgment of recovery as to premises of which he had possession when suit was brought, and is in the possession at the trial.</p> <p>6. Practice—directing what the verdict shall be. Where the plaintiff in ejectment fails to establish a fact necessary to his right of recovery, the court may properly instruct the jury to find for the defendant.</p>

<p>1. Limitation—continued possession by a grantor who has conveyed to a co-purchaser more than his portion. A person purchased land, in his own name, for himself and another, each paying one-half of the purchase money. The two owners established a division line by a survey, and fencing with reference to it, and some four or five years after, the one holding the legal title conveyed to the other, intending to convey the half of the tract as shown by the survey, but in fact conveying a small strip more than such half. Such original purchaser occupied his half of the land according to such division line, under claim of ownership, for thirty-six years. ' It was held, that he became the owner of such strip of land under the Limitation law.</p> <p>2. Pleading!—declaration in ejectment. The demise of the plaintiff in ejectment should not be alleged as of a date prior to his having acquired the title. If his title has been acquired by twenty years’ adverse possession under claim of title, the demise should be laid at some time after the bar of the statute is complete, otherwise his evidence may be excluded for variance.</p> <p>3. It was averred in a declaration in ejectment, that on June 1, 1860, the plaintiff was possessed of the land in dispute, and that, “the said plaintiff being so possessed,” the defendant, on May 28, 1885, entered and ejected him, etc.: Held, that such allegation was equivalent to an "averment that the plaintiff was in possession on May 28, 1885.</p> <p>4. Ejectment—demand of possession. Where the defendant in ejectment has not entered into possession under the plaintiff or by his consent, so that there is no relation of landlord and tenant, nor any privity between them, but each claims adversely to the other, no demand of possession or notice to quit is necessary before action brought.</p> <p>5. Practice— time to object—as to variance between allegations and proofs. An objection as to a variance between the declaration and the proof, in an action of ejectment, must be interposed when the evidence is offered, or at least by motion to exclude after the evidence is closed, so that it may be obviated by amendment. Such an objection comes too late on appeal or writ of error.</p>

<p>1. Pleading and evidence—when there may be a recovery on the common counts—and when the plaintiff must declare specially. Where a person has been employed to make and construct certain machinery for a given price, one-half to be paid when shipped by the maker, and the balance when received and applied to the use intended, and it working satisfactorily, and before the work is completed the manufacturer is notified by the other party that he will not receive the same, the former can not recover for the machinery under the common counts. He can only recover damages for a breach of the contract, and must declare specially.</p> <p>2. Same—set-off under the common counts—what recoverable. So damages growing out of a breach of a contract to accept and pay for certain work when completed, can not be set off under a plea containing only the consolidated common counts.</p> <p>3. Set-off—unliquidated damages. Unliquidated damages arising out of a contract unconnected with the subject matter of the plaintiff’s suit, are not the subject of set-off in that suit.</p> <p>4. Pleading and practice—allowing plea of set-off after issues are made up. After a cause has been brought to issue, and has been continued, when called for trial, on the defendant’s application, and when it has again been reached for trial, it having been pending over a year, this court is not prepared to say it is error to refuse leave to file a plea of set-off.</p> <p>5. Promissory note—construed, as to credits to he allowed. A clause in a promissory note, to the effect that amounts becoming due to the maker on account with the real payee, should be indorsed as payments on the note as they become due, does not contemplate that unliquidated damages, arising upon a breach of a contract, may be applied as a payment, but only money due the maker.</p> <p>6. Error will not always reverse—instruction that could have done no harm. Where the jury fail to award any damages against a defendant for an alleged breach of contract, this court will not inquire whether there was error in the instructions given in behalf of the plaintiff, in respect to the damages claimed, as, whatever they may have been, they could not have done the defendant any harm.</p>

Writ oe Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.

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

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

<p>1. Advancement—in what manner to be evidenced. An advancement which is not evidenced in the manner required by the statute, is, in legal effect, no advancement at all, however clearly it may appear it was so intended.</p> <p>2. Specific performance—contract must be clear in its terms. A contract which is sought to be specifically enforced, must be clear, certain and unambiguous in its terms, and must be admitted by the pleadings, or proved with a reasonable degree of certainty. It is not sufficient to show that a contract of some kind exists between the parties, and that it has, in whole or in part, been performed by the complainant, but all its material terms must be satisfactorily proved or admitted.</p> <p>3. Heir’s expectancy—release—as to evidence thereof. The mere making and delivery of a quitclaim by a person to his grandfather, as to the lands of the latter, afford no evidence of an intention on the part of the grantor to release an expected inheritance.</p> <p>i. In this case the facts and circumstances relied on as evidence of a contract of a prospective heir with his ancestor, to take certain property conveyed to him, in full of his share in the grantor’s estate, as heir, are stated, and held insufficient to show such agreement.</p>

<p>1. Specific performance—contract obtained by fraud. A court of equity will not specifically enforce a contract for the sale of land, which has been procured to be made through the practice of deception and making of false representations.</p> <p>2. Statute of Frauds—by whom it may be availed of. A verbal contract for the sale of land is equally as obligatory on the parties as a written one, when they make no objection to it themselves that it is not in writing. Third persons can not object for them that they are not bound by a verbal contract.</p> <p>3. Same—written contract operating as a repudiation of a prior verbal agreement—fraudulent representations. A written contract for the sale of land will not operate as a repudiation of a prior verbal one, when there is no such intention, as, where the written contract is induced by false representation that a prior purchaser under the verbal contract would not take the land.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.</p>