Volume 119 — Illinois Reports

■ Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Grundy county; the Hon. Geobge W. Stipp, Judge, presiding.

<p>1. Ejectment—proof of title—by possession, etc. Proof of possession of land, under claim of ownership, is prima facie evidence of a fee simple title in the occupant so claiming to be owner.</p> <p>2. In an action of ejectment, the plaintiff proved that A, as far back as 1855, was in possession of the premises, claiming as owner, and so continued tip to his death, in 1873, and that his widow lived upon the same several years after his death, and showed deeds to himself from all the heirs of A: Held, that, in the absence of any countervailing evidence, this was sufficient to show title in the plaintiff.</p> <p>3. Same—demand for possession—whether necessary. A notice to quit, or demand for possession, which is the same thing in the meaning of the Ejectment act, is never required by that act when there is a want of privity between the parties to the suit with respect to the premises sought to be recovered. In other words, when the parties claim under independent hostile titles, demand of possession is not required.</p> <p>4. Where ihe plaintiff in ejectment claims title by deeds from the heirs of a person having possession up to his death, claiming to own the premises, and the defendant seeks to show an outstanding paramount title in a third person derived through a sale of the premises for taxes, no demand of possession or-notice to quit need be shown by the plaintiff.</p> <p>5. Tax title—excess in judgment, as affecting title—and what may be included in the judgment. If the judgment against a lot for taxes is for a greater sum than the law authorizes, the sale thereunder and the deed will be void.</p> <p>.6. Where the judgment includes interest compounded on penalties for forfeited taxes, and there is no personal appearance of the owner resisting, the judgment will be void, and no title will pass on a sale under it.</p> <p>7. Costs accruing anterior to the judgment for taxes, enter into and form a part of it, but not those accruing afterwards. They can not be anticipated.</p> <p>8. Where property is once forfeited for non-payment of taxes, it is proper to include, as a part of the amount due, all the costs incurred up to the time of such forfeiture; but this amount is to be added, in the next year, to the amount of the taxes for the current year. The forfeiture for each year should be for a single item, including current and back taxes, and single costs upon the whole, and not costs for each year’s taxes.</p>

George Gardner, Judge, presiding. This case was before this court at its September term, 1883, and the decree below ivas reversed and the cause remanded. Deference may be had to the printed report for a full statement of the case. After the cause was remanded, the Superior Court, at its May term, A. D. 1884, modified its former decree.

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

<p>1. Negligence—master and servant—corresponding duties as to proper condition of machinery used. It is primarily the duty of a railway company to provide good, safe and proper machinery, so far as reasonable skill and diligence can construct it; but when that duty has once been performed, it is a duty devolving upon the servants operating it, to observe that it is in repair and good working order, and report to the company when it is not in such condition. There are many cogent reasons why both the company and the employes shall be held to a strict performance of their respective duties to each other and the public in this respect.</p> <p>2. Same—duty of hrakemen on railway trains to see that the brakes are in proper working condition. The law imposing a high degree .of care upon all employes of railway companies engaged in the running of their trains, to insure the safety of those in the service, makes it the duty of a brakeman on a railway train to see that the brakes on the cars are always in proper order for working, and report all defects therein to the company; and if he suffers a personal injury in consequence of the neglect to perform that duty, no recovery can be had against his employer. ”</p> <p>3. The fact that a railway company may have employed car inspectors, at certain local stations, to inspect cars, will not relieve brakeinen using the same, from their duty of inspecting that part of the machinery they are expected to handle, and reporting defects to the company. Their duty in this respect remains as imperative as if they were the sole inspectors. It is not in the power of the company to relieve its brakemen of this duty.</p> <p>4. So an instruction which holds that a servant in the employ of a railroad company may be relieved from the observance of that care the law exacts of him, is pernicious in the extreme.</p> <p>5. And when neither the law nor any rule of a railway company makes it the duty of a brakeman on a freight train to inspect the cars, and, generall}", as to their construction, strength of wheels or axles or timbers used in their manufacture, it is not proper to introduce the question of such duty into the case by an instruction, in a suit for an injury to the brakeman.</p> <p>6. Same—neglect of duly by one servant, as justifying such neglect on the part of another. In an action against a railway company to recover for the death of a brakeman, caused by an injury received in attempting to couple a freight car, in consequence of a defect in the brake, the court instructed the jury, that if they believed, from the evidence, “that the printed rule of the company requiring train men to examine their trains, was habitually disregarded by the company itself,—that is, if the officers of the company having charge of the freight trains habitually caused such trains to be made up, and sent out * * * after being made up, without affording brakemen an opportunity to examine the train,—such fact, if proven, would cause the rule to lose its authority over the brakemen,—in other words, the rule must be obeyed by the master as well as by the servant, or it ceases to be operative as to both:” Held, that the instruction did not have any proper application to the case, the rule being intended only for conductors and train men.</p> <p>7. Where a rule of a railway company imposes no higher duty upon a brakeman, in regard to the inspection of that part of the machinery of cars he is required to use, than the law requires of him, an omission of duty by other employes of the company will not relieve him from the duties and obligation the law imposes.</p> <p>8. So in an action against a railway company to recover for a personal injury to a brakeman, the question of whose negligence is involved, growing out of his neglect of duty, evidence that a good many other brakemen omitted to observe the same duty, is inadmissible, it furnishing no excuse for a like omission on the part of the brakeman receiving the injury.</p> <p>9. Evidence—as to usual duties of brakemen, as relating to question of negligence. In an action involving the question of a brakeman’s negligence in his failure to examine the brakes on a freight car, either party has the right to prove what were the customary and usual duties of brakemen as to the inspection of the brakes, and it is error to refuse such evidence.</p> <p>10. Instructions—should relate to matters in issue. In an'action against a railway company to recover for an injury to a brakeman, the ground of liability alleged was, that the ratchet wheel or the dog on a freight car, or both of them, were out of repair, and no other defect was alleged or shown. The court instructed the jury that there was an undertaking by the companj-, with its brakemen, to exercise reasonable care to furnish safe and suitable cars to work with: Held, that while this was good law, it had nothing to do with the case, and was calculated to mislead. It should have directed the attention of the jury to the defects stated in the declaration.</p> <p>11. So, too, in the same case, the court instructed the jury, that if the brakeman had no notice, or by the exercise of reasonable care could have had no notice, “of that dangerous and defective condition of the car,” etc.: Held, that the instruction was erroneous in calling the attention of the jury to the “dangerous and defective condition of the car,” there being no complaint as to the car itself, its construction or repair. Attention should have been called only to the ratchet wheel and dog, the condition of which, it was alleged, made the brake inefficient.</p> <p>12. Same—assuming facts not proven. An instruction which assumes there is evidence of a fact, when there is none even tending to show such fact, is calculated to mislead, and is erroneous.</p>

<p>1. Bailboads—in case of a leasing—remaining liability of the lessor company for negligence in operating the road. A railway company can not absolve itself from the performance of duties imposed upon it by its charter or any general law of the State, or relieve itself from liability for the wrongful acts or omissions of duty of persons operating its road, by transferring its corporate powers to other parties, or by leasing its road to them, except by special statutory authority. To allow it to do so would be contrary to public policy.</p> <p>2. So a railway company which has leased its road to another company, and the exclusive use of its track, etc., for ninety-nine years, which leasing is confirmed by the legislature of this State, will be liable for the destruction of property by fire, caused by a neglect on the part of the lessee company to keep its track and right of way clear from all dead grass, dry weeds, etc., notwithstanding the legislature may have conferred upon such lessee company all the powers of the lessor company, and others. There being no clause of exemption in such act of the legislature, the liability of the lessor would remain.</p>

<p>1. Sake—whether complete, so as to pass title—amount undetermined. A creditor purchased from his debtor certain personal property, subject to a mortgage thereon, and assumed the mortgage debt, and agreed, upon the sale of the property, to give the debtor credit for the entire proceeds of the sale, less the mortgage debt, and possession was taken: Held, the title, if so intended, would thereby pass,, although the definite amount for which credit was to be given had not been determined.</p> <p>2. Evidence—on question of bona fides of purchase. In trover, by one claiming as purchaser of personal property, against the sheriff, for taking the same under execution against the plaintiff’s vendor, the validity of the sale was questioned as in fraud of creditors. It appeared that the original owner, who was also the defendant in the execution, sold the property to his daughter, to whom he was largely indebted, subject to a chattel mortgage thereon, which she agreed to pay off, and it was agreed that she should sell the property, and give her father credit for the entire proceeds, less the amount of the incumbrance thereon: Held, that it was competent for the defendant to show any act done by the holder of the chattel mortgage toward taking possession of the property, but that the record was the best evidence to show the fact of his having brought a suit to recover the same.</p> <p>3. Practice—limiting argument of counsel to the jury. The limiting of the argument of counsel to the jury, is a matter resting in the sound legal discretion of the trial court, and unless that discretion has been abused, a court of review will not interfere. Before the action of the court below can be called in question, it must be shown that sufficient time was not allowed to properly argue the case to the jury.</p> <p>4. Assignment op error—as to matters occurring in another case. Orders made in one ease are not, as a general rule, reviewable in another. So on the trial of an appeal in an action of replevin, the refusal of the court in a suit in chancery, to giant an injunction restraining the fjroseeution of the suit at law, can not be assigned, for error in that case. The propriety of such ruling can only be questioned in this court when the record in the chancery suit is brought before it for review.</p>

<p>• This is' an original proceeding,- commenced in this court by Charles P. Swigert, Auditor of Public Accounts, to have the decision and order of the county board of Alexander county, holding certain property of the Illinois Central Railroad Company not exempt from taxation under its charter, confirmed by this court.</p>

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

<p>1. Chancery—cross-bill—whether necessary, in order that a defendant may have affirmative relief. On bill by part of the heirs of a deceased person to set aside a decree establishing an adverse title, the other heirs, made parties defendant, without a cross-bill, can not, independently of the complainants, have any affirmative relief against the decree, and they can not be heard to complain of the dismissal of the original bill.</p> <p>2. Same—cross-bill—when not proper. Where a defendant seeks the same relief as the complainant, and no other, a cross-bill is not proper, and if filed, would be dismissed on motion. So a cross-bill in a suit for partition is not necessary, when the defendant desires no more than the complainant seeks in his behalf.</p> <p>3. Arpead—by whom—as to defendants in chancery, in respect to the dismissal of the original bill. A portion of the heirs of a deceased person, claiming land, filed a bill against the holders of an adverse title, to impeach and set aside a decree establishing and confirming their title, making the other heirs not joining in the bill, defendants, with the holders of the adverse title. The heirs defendant answered, admitting the material allegations of the bill, but filed no cross-bill seeking affirmative relief, either against the complainants or their co-defendants. The bill, which, by amendment, also sought a partition, was dismissed, and an appeal was prosecuted by one of the complainants and several of the defendant heirs, and errors assigned. The complainant appealing, voluntarily dismissed his appeal, when the appeal by the defendant heirs was dismissed on motion of the defendants, this court holding there was nothing from which they could appeal.</p> <p>4. Assignment op errors—by one not joining in an appeal. A party not joining in an appeal from an order dismissing a bill, can not assign errors upon the record brought up by the appellants, without leave of "court, and then only upon such terms as may be imposed. The dismissal of the appeals of those with whom he joins in assigning errors, has the effect also to dismiss his assignment of errors out of the case.</p> <p>5. Same—as to a decree favorable to the party. A party can not assign cross-errors on a decree in his favor dismissing a cross-bill filed against him.</p> <p>6. Sheriee’s deed—supported by relation back to date of purchase, after decree confirming the sale. Prior to the bankruptcy of a party, land claimed by him was sold under execution, on a judgment against his grantor, and long after his bankruptcy, on bill against him and others, a decree passed confirming the validity of the sale under the execution, and requiring the sheriff to make the purchaser a deed, which was done: Held, that the making of the deed by the sheriff related back to and confirmed the title in the purchaser as of the date of his purchase, if the decree was valid and binding on the parties in interest.</p> <p>7. Limitation—as against assignee in bankruptcy—and, his grantee. Under the Bankrupt law of the United States, the assignee of a bankrupt was required, within two years, to recover whatever interest the latter may have had, when claimed by others adversely; and where the right of the assignee to maintain an action against an adverse claimant is barred before he makes a conveyance, his grantee will be equally barred.</p> <p>8. Laches—as a bar to equitable relief—delay in asserting title to real estate. A party seeking to defeat the title of his adversary to real property, must be diligent in discovering that which will avoid the title or render it invalid, and diligent in the application for relief. Unreasonable delay, not explained by equitable circumstances, affords evidence of acquiescence, and will bar relief.</p> <p>9. So where a party, and those claiming under him, suffer a quarter of a century to elapse without asserting their claim to real estate, during which period it is held adversely, and transferred many times to purchasers for value, and no reason is given for the delay, the laches will be a bar to equitable relief.</p>

<p>1. Constitutional law—of an act being void in part, and valid as to the residue—jurisdiction of local inferior courts. An act of the legislature may be unconstitutional and void in part, and good as to the residue. Therefore, an act creating an inferior court in a city, and giving jurisdiction within the city, and also in the township without the city, will be valid in conferring jurisdiction within the city, whatever may be considered as to the validity of that portion of the act purporting to extend the jurisdiction outside the city limits.</p> <p>2. Same—as to what “jurisdiction” might be given to “inferior local courts” in cities, under the constitution of 1848—sale of ward’s land by guardian. The word “jurisdiction,” in the constitution of 1848, in relation to city courts, relates to the exercise of such powers, only, as are judicial in their nature, and the power to authorize a guardian to sell his ward’s land is not a power of that nature, but rather ministerial. Therefore the legislature was authorized, under that constitution, to confer on city courts the power to order a guardian’s sale of a ward’s real estate situated without the cities in which the courts were established, when the ward resided therein.</p> <p>3. Same—creating “inferior local courts in cities”—City Court of Alton, as coming within that description. In 1859, the City Court of Alton was created by a special act, with a grant of jurisdiction concurrent with the circuit court in all civil and criminal cases, except cases of treason and murder, and the judge thereof was declared to possess the same powers as judges of the circuit courts, except as limited in the act, and it was made a court of record: Held,- that the city court was an “inferior court,” within the meaning of those words in the constitution of 1848. The mere fact of that court being made a court of record, did not affect its character as being an “inferior” court.</p> <p>4. Same—validity of act of 1857, giving an uniform organization to inferior local courts in cities. The act of February 10, 1857, entitled “An act to give an uniform organization and jurisdiction to inferior courts of local jurisdiction in cities of this State,” is not void for uncertainty, repugnancy and inconsistency, under the constitution of 1848, for the reason it confers upon any city court created, the same jurisdiction possessed by two other city courts whose jurisdictions are different as to criminal cases and as to the amount involved in civil cases. The difference in the jurisdiction of the two courts may give rise to doubt, and call for construction as to the precise extent of jurisdiction in the cases named, but does not go to the validity of the act itself.</p> <p>5. Jurisdiction of Alton City Court—as to application by guardian to sell ward’s land. The City Court of Alton, within the city, was, by the act creating it, invested with concurrent jurisdiction with the circuit court, not only in all civil cases, but also with the same powers possessed by the latter court, including the statutory power to order a sale of a ward’s land by his guardian.</p> <p>6. Guardian’s sade op ward's dand—of facts giving a court jurisdiction. Under section 10, chapter 47, of the Revised Statutes of 1845, a guardian’s petition for leave to sell his wards’ land, filed in the Alton City Court, in 1865, showing the requisite facts, and that the wards were residents of that city, and the publication of notice to all interested, of the application, was held sufficient to give the court jurisdiction to order the sale of the wards’ lands, though situated without the city, and in different counties.</p> <p>7. Same—of the signing of the petition. A petition of a guardian for leave to sell her wards’ land, filed in 1835, was signed, “Mary M. Olcott, guardian for Lizzie Olcott and Sue Olcott, by Levi Davis, her solicitor,” was held a sufficient signing by the guardian.</p> <p>8. Same —certificate of publication—its sufficiency—recital of due notice published. A certificate of the publication of a notice of a guardian’s application for an order of court to sell lands of his ward, signed “Parks & Pinkard, publishers, ” was objected to in a collateral proceeding, for the reasons the Christian names of the publishers were not given. The order of sale recited that there was due notice published, etc.: Held, that there was no force-in the objection. ■ ■</p> <p>9. Same—amending order of sale without notice. A decree for the sale of land by a guardian required the sale to be for one-third of the purchase money cash, with a credit of six and nine months for the balance; At a- succeeding term, the guardian reported an inability to sell, and obtained, without any further notice, an amended order for a sale, on one, two and-three years’ credit: Held, that the sale under the amended order was valid, and that no further notice8 was' required, as the case was still under the control of the court.</p> <p>10. Same—order of approval of sale entered nunc pro tunc, at the instance of purchaser. A guardian sold his wards’ land in 1866, and reported the same to the court ordering the sale, and there appeared indorsed on the report, its approval by the judge, but no order of approval was entered of record. In 1882, after ejectment by the former wards, the case was re-docketed, and, on motion of the purchaser, an order was entered nunc pro tunc, reciting the facts, and the appearance of the wards, and approving the sale: Held, that the order of approval was properly made, the court having the undoubted power to correct its records in accordance with its written minutes, and that such order related back to the time when the approval was actually made.</p> <p>11. A purchaser at a guardian’s sale has the right to appear in court and enter a motion for an order of approval of the sale nunc pro tunc, in accordance with the judge’s minutes, even after the death of the guardian, and have such order made to protect his title. Eor such purpose he is regarded as a quasi party to the proceeding.</p> <p>12. Evidence — attaching judicial proceedings collaterally, for mere error. It is a well settled general rule, that where a court has jurisdiction of the subject matter and "of the parties to the litigation, its judgments and decrees will be held valid, when questioned collaterally. In such case, mere errors in the proceeding will not invalidate the judgment or decree.</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 Adams county; the Hon. S. P. Shore, Judge, presiding.

<p>1. Exemption from taxation—Illinois Central Railroad Company-scope of the exemption in its charter—as to freight houses, elevators, etc. This court has held that the property of the Illinois Central Eailroad Company which is exempted from taxation by section 22 of its charter, is such as has been acquired in the prosecution of its business in constructing and operating its road as authorized by its charter.</p> <p>2. Freight houses, elevators, etc., constructed and used solely for the purpose of enabling the company to perform its duties as a common carrier, are exempt from taxation under the charter of the company. But property devoted to a use not contemplated by the charter, as, for the business of warehousing for private gain, or merchandizing, is not within the exemption.</p> <p>3. So an elevator of the Illinois Central Eailroad Company, built upon its right of way leased to private persons, holding as agents of the company, under an agreement to pay a compensation for its use, is not exempt under section 22 of the charter of the company, it not being used exclusively by the company in the exercise of its franchise.</p> <p>4. Same—burden of proof on question of exemption. The party alleging an exemption of property from taxation must show that fact.</p>

<p>Writ of Error to-the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Advancement—defined. An advancement is a giving by a parent to a child or heir, by way of anticipation, of the whole or a part of what is supposed the donee will be entitled to on the death of the party making it.</p> <p>2. Same—whether a gift to be considered an advancement—intention of donor, how to be shown—before and since the act of 1872. Prior to the act of 1872, whether a gift by a parent to a child was to be deemed an advancement, depended upon the intention of the donor, to be gathered from the attending circumstances.</p> <p>3. If the subsequent verbal declarations of an intestate ancestor are admissible at all to show his intention in making conveyances to his sons was to make advancements, yet if they were made to persons having no interest in the subject matter, and are reproduced long after his death, they will be regarded as a most unsatisfactory class of evidence.</p> <p>4. The proof, merely, of gifts of land by a father to a son, even prior to the act of 1872, is not alone sufficient to show they were intended as advancements.</p> <p>5. And in cases of intestacy since the act- of 1872 went into effect, gifts or grants made by the intestate to any of his children will not be regarded as advancements-unless they'are so expressed in-writing, or charged as such by him, or acknowledged in writing by such children.</p> <p>6. Same—effect of act of 1872 as to prior gifts. The act of 1872, relating to advancements, applies to advancements made prior to its enactment, in cases of subsequent distribution.</p>

This .was an information or complaint filed by the Attorney General, in this court, against Frank S. Murphy, an attorney at law of 'this State, seeking to have his name stricken from the roll of attorneys. The material facts of the case are fully stated in the opinion of the court.

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

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

Jesse J. Phillips, Judge, presiding. Ira Millard died November 11, 1877, testate, and, by his will, appointed Wooten Harris his executor,… Held: that as the executor had not presented the claims paid by him to Lucy A. Haskell, and had them allowed within two years from the grant of letters, he was improperly credited with the amount paid her; but as he had sold the eighty acres of land securing payment of these notes, for the sum of $3440, he should be subrogated to the…

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the City Court of East St. Louis; the Hon. William P. Launtz, Judge, presiding.</p>

<p>Writ of Error to the County Court of Clay county; the Hon. Gr. A. Hoff, Judge, presiding.</p>

Henry M. Shepard, Judge, presiding. This is an appeal from a decree of the Superior Court of Cook county, dismissing a bill filed by the county of Cook, against certain railroad companies, to enjoin the construction of a railroad until compliance should be had with a resolution passed by the board of county commissioners.

<p>1. Appeal—review of questions of fact. The finding of the Appellate Court upon the issues of fact, in an action of replevin, is conclusive upon this court, and not open to discussion or review.</p> <p>2. Instruction—when sufficiently based on evidence. An instruction may be given hypothetically as to a state of facts, although the evidence in support thereof is very slight, or even unsatisfactory.</p> <p>3. Same—repeating. The trial court is warranted in refusing an instruction, when all that is pertinent and proper in it is embodied in others which are given.</p>

<p>1. Homestead—abandonment—what to be so regarded. A widow having a homestead in premises left by her deceased husband, in 1878 rented the same, reserving a room in which she left her furniture, and went to St. Louis, with her three minor step-children. At the end of a year she sold her furniture and gave up the room, and at the end of two years she gave up housekeeping, but continued to board in St. Louis, her step-children having obtained situations. Seven years after leaving her homestead, she testified that she lived at St. Louis, Quincy and Milwaukee, about an equal time at each place; that she was located nowhere, and that when she got ready to settle she intended to occupy her homestead, but that her intentions were not definite when she would go back to it: Held, that she had lost her homestead by abandonment.</p> <p>2. Assignment of error—os to matters not affecting party alleging error. A party can not assign for error that which does not prejudice his or her rights. So a widow, on a bill for partition and the assignment of her dower, can not assign for error a matter affecting only the interest of a party whose title is claimed to have been purchased, pending the suit, by another one of the parties.</p>

<p>1. Negligence—negligence of another contributing to the injury. A railway company will not be excused from the consequences of its own neglilenee, or its liability for an injury caused thereby, from the fact that another company was more culpably negligent than it, thereby contributing to the injury, as, in the case of a collision of trains causing the death of a passenger.</p> <p>2. Parties—representative capacity of the plaintiff—whether it must be proven, and in what way. In an action on the case by one suing as administrator of an estate of a deceased person, against a railway company, to recover for causing the death of the plaintiff’s intestate, unless the representative capacity of the plaintiff is put in issue by plea, it is not necessary to make any proof of his letters of administration, or his appointment, or right to sue in such capacity.</p> <p>3. The appointment of one as administrator of an estate, when that fact is put in issue, may be shown by an examined copy of the record of the appointment, satisfactorily proved, by oral testimony, to be a true copy thereof.</p> <p>4. Action—remedy—ira case of a new right given by statute. Where a statute gives a new right, without providing a special remedy for its enforcement, it may be enforced by any appropriate common law action.</p> <p>5. Appeal—reviewing the facts—for what purpose. AVhereitis claimed there is no evidence of a fact, as, negligence in operating a train of cars, upon which to base an instruction, and the alleged error in giving the instruction depends upon there being no evidence tending to prove the fact, this court will examine the evidence to see if it does prove, or tend to prove, such fact.</p>

<p>Writ of Error to the Circuit Court of Saline county; the Hon. David J. Baker, Judge, presiding..</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. B. W. McCartney, Judge, presiding.</p>

Wbit of Ebbob to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.

<p>1. Continuance—in crimi/nal case—absence of witnesses. An affidavit for a continuance, in a case of homicide, after stating the nature of the charge, the place and circumstances of the killing, making it very probable that the evidence would be conflicting, as it proved to be, and averring the innocence of the accused, and that he could not safely proceed to trial on account of the absence of certain named witnesses, then set out the facts the affiant expected to prove by such witnesses, which were material and vital; and it appeared the absent witnesses named were real persons, and were present at the affray which resulted in the homicide, and had as good an opportunity of seeing what occurred as the witnesses for the prosecution, most of the latter being parties to the affray and hostile to the defendant. It also appeared that due diligence had been used to procure the attendance of the witnesses, and that the evidence on the trial was not as full as it might have been: Held, that under the circumstances it was error to refuse a continuance on such affidavit.</p> <p>2. Pbaotioe—latitude allowed and restrictions imposed, in the examination of witnesses—in a capital case. On the trial of one for homicide, the broadest latitude should be allowed to the defendant in the cross-examination of witnesses who were active partisans in the difficulty leading to the killing, and who are hostile in their feelings against the defendant, and on the other hand, the examination of such witnesses by the People should be correspondingly restricted.</p>

<p>1. Practice—obviating objection to testimony—necessity of so doing, in order that the parly may protect his interests. A party can not have a judgment reversed on account of an objection to testimony which he might have removed by the introduction of other evidence, but failed to do.</p> <p>2. So where the plaintiff in an action to recover damages for personal injury alleged to have been occasioned by the negligence of the defendant, had proved that the profits of his business, which he was disabled from attending to, were $100 a month, including charges for certain medical services, which medical charges were excluded on defendant’s motion, it was held, if this left it uncertain as to the profits exclusive of the medical charges, the defendant should not be heard to complain on that ground, when he might have obviated the objection by proof, but did not.</p> <p>3. Evidence—relevancy—physical condition of medical witness, as giving value to his opinion as an éxpert. In an action for a personal injury, in which it was claimed that the left side of the plaintiff was paralyzed, he called a physician, who testified that he, himself, was paralyzed on the left side, in his arm and leg, and had no practical use-of them: Held, that while the paralj'sis of the witness was not an issue, the testimony was relevant, as tending to show that the witness had given the subject special study, and thus giving greater value to, his opinions as an expert.</p> <p>4. Instruction—should be restricted to matters involved. On the trial of an action for a personal injury to the plaintiff, the defendant asked an instruction, to the effect that if the jury believed, from the evidence, that the evidence on the part of the defendant was equally balanced with the evidence of the plaintiff, or preponderated in favor of the defendant, they should find for the defendant:' Held, "properly refused, for the reason it was not restricted to matters essential to the right to recover.</p> <p>5. Same—whether modification is not too broad. On the trial of an action based on alleged negligence of the defendant, he asked the court to instruct, generally, that if the evidence of the parties was equally balanced, to find for the defendant. The court modified the same by making it read, that if the evidence on the question of negligence was equally balanced, etc. It was objected that the instruction was improperly restricted to- the question of negligence, and did not embrace the question of the injury of the plaintiff: Held, that the modification was proper, as the instruction was directed to the right to recover at all, and not" to the extent of the recovery.</p>

; the Hon. R. S. Williamson, Judge, presiding. On October 17, A. D. 1881, George Bartelott brought an action of assumpsit, in the Superior Court of Cook county, against the International Bank and Berthold Lowenthal. The declaration contained the common counts, only.

<p>1. Tax title—acquired by the owner—treated as a payment of taxes, only. Where the owner lets his land be sold for taxes, and buys it in at the tax sale, he does not thereby get any independent title, but the transaction will be treated as but a payment of the taxes.</p> <p>2. Same—tax title obtained by a third person by collusion with the owner, to defeat a mortgage. Where a mortgagor, by fraud and collusion with another, suffers the premises to be sold for taxes, and procures such third person to purchase the same to defeat the mortgage, the tax title will be treated the same as if the mortgagor were the purchaser, and held subject to the mortgage.</p> <p>3. Same—service of notice upon tenants in possession, as to expiration of time of redemption. Where the holder of a certificate of purchase at a tax sale fails to serve the requisite notice of the purchase, and of the time when the redemption will expire, on a tenant in the occupancy of a building upon the premises, he will acquire no title, notwithstanding he may have made affidavit that he had served such notice on all persons in possession.</p> <p>4. Remedy—to question the validity of tax title set up to defeat a foreclosure—whether at law or in equity. On bill to foreclose a mortgage, the validity of a tax title held by a third party, not acquired by collusion with the mortgagor, will not be passed upon and determined in that suit, but will be left to be adjudicated in an action at law. But if the tax title has been obtained by such collusion, it will be in subordination to the mortgage, and the question of its validity may be passed upon in the suit to foreclose, and the title made subject to the mortgage in the decree of foreclosure.</p>

<p>1. Appears and writs op error— writ of error awarded, in the absence of any other remedy. A writ of error, in the absence of express statutory authority, in purely statutory proceedings that are not according to the course of the common law, has been allowed only to prevent a failure of justice, because the party affected has no other mode of review.</p> <p>2. Same—os to final orders of county court—writ of error not a writ of right, in all cases, under section 19, article 6, of constitution. Section 19, of article 6, of the constitution, relating to appeals and writs of error to review final orders of the county court, does not confer the right to a writ of error from this court in all cases decided by the county court. It is but a direction to the General Assembly to prescribe, by law, how appeals and writs of error shall be allowed from the final judgments of the county courts.</p> <p>3. Same—under section 11 of the Probate Court act—whether a writ of error will lie to the county court, in respect of similar matters. Section 11 of the act to establish probate courts in certain counties, in relation to writs of error, is prospective, only, in its operation, and applies only to decrees and orders of that court, and does not authorize a writ of error to review a decree or final order of the county court for the mortgage or sale of a ward’s land by a guardian.</p> <p>4. Same—in case appeal is given from county court to circuit court—■ whether writ of error will lie to county court. Where the statute confers on the county court a jurisdiction unknown to the common law, and gives an appeal from the judgments and final orders of that court, under such statutory jurisdiction, to the circuit court, a writ of error will not lie from this court to review the action of the county court.</p> <p>5. Same—whether freehold is involved. The foreclosure of a mortgage, and, much less, the giving of leave by the county court to a guardian to mortgage his ward’s lands, does not involve a freehold, within the meaning of the section relating to appeals and writs of error.</p> <p>6. Mortgage by guardian, of ward’s land—of the defences accorded to the ward, on foreclosure. On a proceeding in the county court to foreclose a mortgage given by a guardian on- his ward’s lands, the guardian and the ward are both necessary parties; and any sale made on a decree of foreclosure may, at any time before confirmation, be set aside for good cause, and will not be binding upon the guardian or ward until confirmed by the court. In such suit the ward may have the entire proceeding, including the authority to give the mortgage, reviewed by the court.</p> <p>7. Bill OF review—by a ward, in respect to an order of the county court permitting the guardian'to mortgage the ward’s land. ‘ A ward may, before bill to foreclose a mortgage given by his guardian, maintain his bill in equity to review the order of the county court granting leave to give such mortgage, and thereby take advantage of every objection that might be urged on writ of error, if one were allowed.</p> <p>8. Local or special law—allowing a writ of error to a probate court, when it is not allowed to the county courts in respect of the same subject matter. A statute attempting to give the right to sue out a writ of error, in a proceeding by a guardian for the sale of his ward’s real estate, in the probate court, where the same right is not allowed in such a proceeding in the county court, would- be a local and special law, within the constitutional prohibition.</p>

<p>1. Eminent domain—corporate existence of the railroad company petitioning—whether it must he shown, and in what way, etc. The defendant, in a proceeding to condemn his land by a railway company, by going to trial on the merits, waives the necessity of the preliminar)- proof of the corporate existence of the petitioner.</p> <p>2. The proof of the corporate existence of a railway company, if required to be made, is addressed to the court, and not to the jury called to assess the damages. The right to exercise the right of eminent domain is a question exclusively for the court to determine. The defendant may raise the question of the petitioner’s right, without plea or answer.</p> <p>3. Proof of the exercise of corporate acts, though slight, will be sufficient to authorize the proceeding to condemn land by a railway company. So the filing of a cross-petition by the defendant for the assessment of damages to other land than that sought to be taken, may be regarded as an admission of the corporate capacitj' of the petitioner. The defendant, by asking the court for a rule on the petitioner to exhibit the plan and profile of its road over and. across the lands sought to be condemned, may be regarded as admitting that the petitioner is a de facto corporation.</p> <p>4. Same—proof of inability to agree with land owner. Where, from the contest and the acts of the parties, it is evident that the parties could not agree as to the compensation to be paid for land sought to be condemned for a right of way, the judgment will not be reversed, because no direct testimony was offered to show such inability to agree.</p>

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

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

<p>1. Negligence—measure of damages—inaction to recover for personal injury occasioned by negligence of the defendant. In an action against an incorporated village to recover for a personal injury caused by a defective sidewalk, the court, in substance, instructed the jury, that if they found the defendant guilty, the plaintiff would be entitled to recover for any pain and anguish which he had suffered, or would thereafter suffer, in consequence of the injury; for any and all damages to his person, permanent or otherwise, occasioned by such injury; for loss of time, if any, caused by the injury; for expenses incurred in a reasonable effort to effect the cure of such injury; and, generally, to recover all damages alleged in the declaration which they believed, from the evidence, he had sustained by the injury: Held, that as an instruction in regard to the measure of damages it was substantially correct, and that it was not open to the objection that it allowed the jury to give damages although the plaintiff had failed to exercise due care.</p> <p>2. Same—of an instruction in such case—of its proper elements. An instruction as to the plaintiff's right to recover for personal injuries resulting from the alleged negligence of the defendant, should include the hypothesis of ordinary care on the part of the plaintiff to avoid the injury.</p> <p>3. But when the instruction relates solely to the measure of damages, and the elements thereof, in the event the defendant is found guilty, it need not refer to the care exercised by the plaintiff, nor need it include the hypothesis that the plaintiff used due care and prudence in his efforts to be cured of Ms injuries, that being a matter in mitigation of damages, and the proper subject of an instruction for the defendant.</p> <p>4. Instruction—need not contain every element essential to a recovery or defence. It is not necessary that every instruction asked, without regard to its office or purpose, should have embodied in it every fact or element essential to sustain the action, or that it should negative matters of defence.</p>

Thomas A.' Moban, Judge, presiding. Freeland B. Gardner obtained a lease, from the heirs-at-law of George Manierre, deceased, of lot 1, in block 8, of fractional section 15, addition to Chicago, to run from November 1, A. D. 1871, to November 1, A. D. 1881.

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

<p>1. Special assessments—sufficiency of the ordinance, as to the nature and description of the improvement. An ordinance provided that the sewer through an alley in a given block of the town be reconstructed, and deepened to as great a depth as its connection with another sewer named would admit, the grade of bottom to be as thereafter established by the city surveyor, and. after fixing its locality, provided that the character of the work should be the same as the then present sewer, and that the materials in the old sewer should be used in the new, as far as possible: Held, that the ordinance was defective in failing to give, with sufficient certainty, the character, nature and description of the proposed reconstruction of the sewer, and that no special assessment based on the same could be enforced.</p> <p>2. If the ordinance which is the foundation of a special assessment does not contain a description of the nature, character and locality of the improvement, the court will have no authority to confirm the assessment.</p> <p>3. Same—degree of certainty required in ordinance. The ordinance for the proposed improvement must prescribe the nature and character thereof with such definiteness and certainty as to furnish data for an intelligent estimate of its cost. When it can not he gathered from the ordinance itself whether a sewer is to be built of brick, stone, iron or wood, or what are its dimensions or capacity, it will be insufficient to justify a special assessment.</p> <p>4. It is not necessary that an ordinance for the construction of a sewer by special assessment shall set forth the details and all the particulars of the work. A substantial compliance with the statute is all that is required.</p>

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

<p>Evidence—as shoii'ing ownership of funds garnisheed. The proceeds of the sale of certain railroad ties and cedar posts were garnisheed, in an attachment suit, as belonging to the defendant in attachment. The same fund was claimed by a bank, by way of interpleader. A written contract between the bank and the defendant, under which the bank furnished the defendant the means with which to procure such ties and posts, and by which it was agreed how they should be got out, by whom, and when they should be sold for the reimbursement of the bank, and that the proceeds should belong to the bank, w'as held properly admissible in evidence on the trial of the issue upon such plea, together with other evidence, for the purpose of showing to whom the funds attached belonged.</p>

<p>1. Mortgage—of a deed absolute in form,—whether a mortgage—of evidence on that question. The true character of a transaction may be shown by parol, and if, upon a consideration of the facts, it clearly appears that the deed, though absolute in form, was taken as security for the payment of money, it will, in equity, be held a mortgage.</p> <p>2. Ordinarily, the intent of the parties is to be drawn from a consideration of the deed itself. Therefore, to change the character of the instrument by parol, by attaching to it a condition of defeasance, the evidence should be clear and satisfactory.</p> <p>3. The gist of the inquiry, in cases of this class, is, what was the purpose for which the deed was executed; and every fact or circumstance tending to illustrate the purpose and intent of the parties is receivable as evidence.</p> <p>4. The fact of an existing indebtedness, in respect to which the deed is executed, the retention of the evidence of such indebtedness by the grantee in the deed, that the deed was procured by fraud or oppression, that there was a loan of money, the subsequent conduct of the parties in respect to the land, as, that the grantor had retained possession, and the like, and, indeed, almost every conceivable state of facts legitimately illustrative of the transaction, has been held competent evidence on the question whether a deed absolute in form was intended as a mortgage, or security for the payment of money by the grantor to the grantee.</p> <p>5. The declarations and statements of the parties contemporaneous with the execution of the deed, are admissible, not for the purpose of altering or varying the terms of the written instrument, but as tending to illustrate whether a condition of defeasance should be added thereto in equity; but such declarations are not necessarily of controlling force and effect, as they may be but a device to cover usury, or to conceal a hard and unconscionable bargain, and the like.</p> <p>6. In this case, the inadequacy of the consideration, and the facts and circumstances under which a deed absolute in form was made, and the subsequent conduct of the parties in relation thereto, are stated, from which the court holds, the convej'ance was merely a security for the payment of a sum of money advanced by the grantee to prevent the foreclosure of a deed of trust previously given by the grantor.</p> <p>7. Laches—in what manner availed of. If the laches of a complainant is relied on as a defence to equitable relief by the defendant, he should set it up in his answer.</p>

<p>1. Amendment of declaration— on opening judgment by confession, to Zei in defence. Where a judgment by confession has been opened, and the * defendant allowed to plead, the. court may properly allow an amendment of the lteclarati°n, *° avoid a variance, when the note, warrant of attorney and cognovit are filed, and they show an error in the date of the note, as alleged in the original declaration.</p> <p>2. . Practice—opening and conclusion of the argument to the jury. Whether the plaintiff or defendant shall have the opening and close of a case, is generally deemed a matter of discretion, to be ordered by the judge at the trial, as he may think most conducive to the administration of justice; and an error in this respect is ordinarily not of sufficient gravity to call for a reversal.</p> <p>3. Where the defendant pleads the general issue, and also special pleas of an affirmative nature, he must withdraw the general issue before he can demand the privilege of opening the case. And if the defendant pleads the general issue, with a stipulation that all special matters of defence may be set up under it, he will not, merely by reason of affirmative matters thus to be allowed in defence, be entitled to open and close.</p> <p>4. Pleading—general issue, with a stipulation to permit special defences—effect in fixing the affirmative of the issues. Where a defendant files only the general issue, under a stipulation that the same defences which could be properly setup in special pleas may be introduced under the general issue, the same as though specially pleaded, the stipulation will not have the effect of making a special plea out of the general issue, but the cause will stand as though the general issue, and, in addition thereto, affirmative pleas, had been filed.</p> <p>5. Contract—executed without reading—whether binding upon maker. If a party signs a promissory note without reading it or understanding its ' contents, this will not relieve him of his liability as maker, when no artifice was used to induce him to sign the same, and he is a man of mature age, and able to read and.write, and had an opportunity to read and examine the paper before signing it, and to inform himself of its contents.</p> <p>6. Measure oe damages—for defect in quality of grain sold. Where grain sold proves to be not of the quality bargained for, the general rule is, that the purchaser is entitled to recover the difference between the contract price and the value of the article in the market at the time and place of delivery.</p> <p>7. This rule, however, is changed, when the vendor knows that the purchaser has an existing contract for a re-sale at an advanced price, and that the purchase is made to fulfill such contract, and the vendor agrees to supply the article to enable him to fulfill the same. In such case, the profits which would accrue to the buyer upon fulfilling his contract or re-sale, may justly be said to have entered into the contemplation of the parties in making the contract.</p> <p>8. Instruction—assuming disputed facts—ignoring elements in the case which ought to be considered. In an action upon a note given for the price of a lot of com purchased, in which damages were claimed for a defect in the quality of the corn, an instruction which assumes that the defendant had a contract for its re-sale at a particular place, at an advanced price, (which is a disputed fact,) and leaves out of consideration the question whether or not such a contract did exist, or whether the vendor knew of its existence, and that the grain was bought to fulfill it, and whether he agreed to supply the same to enable the purchaser to fulfill it, is erroneous, and properly refused.</p> <p>9. Evidence—whether a sale was absolute or upon condition. Where it becomes a question whether a contract for the sale of corn was an absolute one on the day it was made, or was not to be such until after an inspection in Chicago, to which place it was shipped, and the corn was found to be of a certain grade, if the purchaser actually treats the corn as his own by making a sale of a part of it before the inspection could possibly have taken place, such conduct is evidence tending to show that the purchase was an unconditional one, and without reference to an inspection.</p> <p>■ 10. Same — as to a matter not within the personal knowledge of the witness. Where a person shipping grain to market, through his agent there sells the same, not being present at the sale and having no personal knowledge of the price it sold for, is asked, when oh the stand, what price he received for the same, an objection to the question will properly be sustained, as his testimony would be based entirely upon the report made to him. In such case the testimony of the agent who made the sale should be taken on that question.</p> <p>■ 11. Same—relevancy—as to what a party would have done, if he had known a particular fact. Where the issue being tried is whether the defendant’s purchase of grain was conditional upon an inspection of the same in Chicago, and whether the result of such inspection was correctly stated to the defendant, it is immaterial whether he would have made the purchase if he had known of the inspection, and there is no error in disallowing a question seeking to elicit that fact.</p> <p>12. Same—promissory note—as prima facie evidence of amount due. A promissory note is prima facie evidence of the amount due to the payee, so as to throw upon the maker, when sued thereon, the burden of showing a less amount due than that named in the same.</p>

<p>Tender—acceptance—whether not in full satisfaction. A railway company, before suit brought, tendered to .a party a sum less than his demand, in full satisfaction,-which was refused, and upon suit brought before a justice of the peace, deposited the tender with the justice, to be paid to the plaintiff on condition it was accepted in full, which was again refused, and a trial had, resulting in a judgment for a larger sum than that tendered. After the judgment, the justice, on the advice of the plaintiff’s attorney, applied part of the deposit upon the costs, and paid the. residue to the plaintiff in part payment of the judgment, the latter not accepting the same in full satisfaction: Held, that a bill by the company to enjoin the collection of the balance of the judgment was properly dismissed. The question of authority, or want of authority, in the justice to make such application of the tender, it was not considered important to consider.</p>

<p>1. Boundaries—accretions—of the rule for extending lines to take in an accretion. As a general rule, where new land is formed on a river bank by a change in the river, the riparian proprietor’s lands will be extended bylines drawn at right angles with the middle thread of so much of the river as lies opposite the shore line, rather than at right angles with the shore line. But this rule, under special circumstances, is subject to modification.</p> <p>2. Same—of evidence in reference to boundaries, in connection with the question of accretions. A town was laid out on the east bank of a river, the plat showing a street extending due east and west, sixty-six feet wide, up to the river, which ran in a south-easterly course, and a lot bounded on the west by the river, and on the south by the north line of the street. After the location of the town, the river receded some seventy feet to the west, leaving an accretion. The lot owner claimed all of the accretion north of a line from his south-west corner, extending to the river at a right angle to its general course, while the city claimed all of it south of an extension of the north line of the street to the river, and also a part of the accretion south of the south line of the street extended in like manner, thus making the street one hundred feet wide at the river bank. It appeared that the travel on the street over such accretion had been deflected to the south as it approached the river, to reach a bridge over the same. In ejectment, by the owner of the lot, to recover the accretion claimed by him, the city, which was the defendant, offered in evidence a deed for land south of the street, as extended due west, which the court refused to admit: Held, that the court erred in excluding the same, as it afforded a reasonable explanation why the street was wider at the river.</p> <p>3. In a case where it becomes material to show the north line of a public street over land formed by accretions since it was first laid out, as, whether in the same direction as the balance of the street, or whether at a right angle with the center thread of a river from which the accretion was formed, any evidence tending to show its true line, is proper; and it is error to exclude from the jury declarations of the plaintiff’s grantors, made when in possession of the land owned by the plaintiff, as to the location, and as to what was the true north line of the street.</p> <p>4. On the trial of an action of ejectment, for a strip of land formed by accretion to the former bank of a river, involving the question whether such strip was an accretion to a public street or to a lot of the plaintiff, whose deeds referred to a plat of a subdivision of a lot made by an assessor, which included the plaintiff’s, and to which some of his witnesses referred, the defendant offered in evidence the assessor’s plat of such subdivision, which the court excluded: Held, that the court erred in refusing to admit the same in evidence.</p> <p>5. Evidence—declarations of one in possession of land, as to boundary lines. Declarations in disparagement of the title of the declarant in possession of lands are admissible as original evidence. So when the boundary line of a lot is in dispute, and depends upon the true line of a street, the declarations of a former owner while in possession of the lot, as to the location of the line of the street, are admissible in evidence against one claiming under him.</p> <p>6. Dedication—for street by plat, over a river. Where the plat of a city bordering upon a river shows a street to the bank of the river, with lines marked “bridge, ” that is evidence that the party making such plat intended to dedicate the land for a street to the center of the stream, or at least so far as he could dedicate a highway. The dedication of land to public use, by plat or otherwise, is a matter of intention.</p> <p>7. Law and fact—line of a street—question of fact. What is the line of a street over ground formed by accretions, after the laying out and platting of the street, is purely a question of fact; and to state in an instruction, as a matter of law, what is such line, when it forms a boundary of land which is in dispute, is error.</p> <p>8. Instruction—assuming to settle a question of fact. An instruction which assumes to state, as a matter of law, what line is the north line of a street in a case where such line is a vital and disputed question, is erroneous, as being equivalent to a withdrawal of such question from the jury.</p> <p>9. Same—ignoring matters in defence. In an action of ejectment, an instruction virtually deciding the case for the plaintiff on a hypothesis which ignores certain matters tending to show' a defence, is erroneous.</p>

<p>1. Contracts—construction of contracts—separate, writings construed together as one. Where different instruments are executed as the evidence of one transaction or agreement, they are to be read and construed as constituting but a single instrument.</p> <p>2. Same—parol evidence, in aid of construction of written contract. Although it is not competent to contradict or enlarge the terms of a written agreement by parol evidence, it is competent to resort to such evidence to ascertain the nature and qualities of the subject to which the instrument refers.</p> <p>3. Same—attendant circumstances, as manifesting intention of parties. Courts, in construing written contracts, endeavor in all cases to place themselves in the position of the contracting parties, so that they may understand the language, and in the sense intended by the persons using it.</p> <p>4. Same—contract for exchange of stock in an incorporated company for bonds of the same company—construed, in respect to the purpose of the exchange, etc. A contract for the exchange of stock in an incorporated company, organized for the manufacture of sewing machines, for bonds of the same company, provided that the first party should place in the hands of a custodian or depositary, properly transferred, $29,500 of the stock, and receipts of a third person, with proper assignments, of $15,000 more stock then loaned to such third person, making $44,500 of the stock, and that the second party should deposit $40,000 of the bonds of the same company, to be delivered to the first party by the custodian, upon satisfactory evidence that the company was producing three hundred sewing machines per week, the bonds to be delivered to the assignor of the stock, and the stock to the other party, and the contract further provided that each party should make his delivery within twenty days: Held, that it was the duty of the first party, within twenty days, to deposit with the custodian, evidences of unincumbered, properly transferred stock, to the amount of $44,500, and that the obligation to transfer the receipt for $15,000 of bonds which had been loaned, did not imply a sale of a claim on the maker of such receipt for so much stock, but that such person then held the bonds in such condition that he could return the same, and a reasonable time, only, was allowed in which the company should produce three hundred sewing machines per week.</p> <p>5. Same—condition construed—as to the producing capacity of a manufacturing company. Where a contract for the exchange of the bonds of a manufacturing corporation for stock in the corporation, is dependent upon its producing three hundred sewing machines per week, that number of complete machines must be the fan- average product of the week, evincing a continuous average capacity of that amount per week, to make the contract complete.</p> <p>6. Same—roilh whom a contract is considered as having been made, as giving the right to avail of its provisions. The owner of stock in a private corporation made a contract with another for its exchange for bonds of the same corporation, in which it was recited, that “for and in consideration of payments” made by the latter in purchasing the stock, the former had covenanted and agreed with the latter to give to such corporation -his unstinted, unreserved, hearty good will, active assistance, counsel, aid and advice, for the next three years, and to do all he could to make such corporation a complete success, and to assign to it certain other stock, and agreed to forfeit certain royalties to the corporation in case of his failure to perform his said covenants: Held, that the covenant was with the purchaser of the stock, and for his benefit as a stockholder, notwithstanding the corporation might also derive a benefit from the performance of the same, and that without performance by the covenantor he could not enforce the agreement as against the covenantee.</p> <p>.7. Same—contract for services, construed—as to the character of service to be rendered. Where a party contracted to give “his unstinted, unreserved, hearty good will, active assistance, counsel, aid and advice, for the next three years, through good and ill, and to do all, except financial management, that he” could “in any way do * * * to make the most complete possible success” of a sewing machine company, “without further request,” etc., it was held, that his duty was not negative or passive, but affirmative and active, and no request was necessary in order to fix his obligation in that regard.</p> <p>8. Same—rescission of contract—effect of providing a penalty for nonperformance. A party to an executory contract will not be denied the right to rescind the same for a breach thereof by the other party, on the ground that he might perform his part and then recover a penalty provided in the contract, in an action at law, for such non-performance.</p> <p>9. Same—the particular case, showing right to rescind. The holder of stock in a private corporation for the manufacture of sewing machines, by misrepresentation as to the value of the property of the corporation, and its capacity to make a large number of machines a week, and by his agreement and covenants to give his active aid and assistance in making the business of the corporation a success, and to transfer to it certain stock in a prior company which it had succeeded, induced another to enter into a contract, whereby he was to purchase of the former $44,500 of the stock of the new corporation for $40,000 of its bonds, the stock and bonds to be placed in the hands of a third person within twenty days, to be delivered upon a certain condition. The first named party failed to procure and deliver the stock, unincumbered, within the time prescribed, and could not, up to the time of the filing of the bill to rescind, make a clear title to the bonds, and generally had failed to perform his part of the contract: Held, on such bill filed, that the purchaser of the stock had the right to have a rescission of the contract.</p> <p>10. Same—whether time is of the essence of the contract. In general, time is not of the essence of a contract, unless so declared by the parties; but the rule has its exceptions, as, if the thing sold be of greater or less value, according to the effluxion of time, it is manifest that time is of the essence of the contract.</p> <p>11. So where a party had agreed to prepare a model for the manufacture of sewing machines by a corporation, the expense of which was $8000 or $10,000 a month, and a delay in bringing its factory to a profitable productive capacity, would necessarily depreciate the stock of the corporation in value, the time for the performance of the undertaking is necessarily of the essence of the contract.</p> <p>12. Appearance—as a waiver of defect in service. A defendant in an attachment suit, by the entry of his appearance and going to trial on the merits, waives any objection he may have as to the service of process on him.</p> <p>13. Estoppel—of the elements essential to an estoppel. One entitled to the assignment of stock in a private corporation, free of incumbrance, will not be estopped from urging an attachment of the same in a suit against his vendor, as affecting his ability to make a valid assignment, merely from the fact he may have known of the attachment and proposed ways for obviating the same, none of which were accepted, and when he has done no act to cause his vendor to change his course of conduct. In such case, the indispensable elements of an estoppel, fraud-and injury, are wanting.</p>

<p>1. Negligence—instructions limited to the question of the measure of damages, as distinct from such as are designed to lay doum the rule in respect to due care and comparative negligence. In an action against a railway company to recover for the killing of the plaintiff’s intestate,—the result, as alleged, of negligence on the part of the defendant,—where the jury is properly instructed as to the right to recover, another instruction relating to the measure of damages in case of a recovery, is not erroneous, merely on the ground that it ignores the question of comparative negligence, or the care on the part of the deceased.</p> <p>2. In such a case, the court instructed the jury, that if they believed, from the evidence, the plaintiff had made out his case as laid in the declaration, to find for him, and in another instruction told the jury, that if they found, from the evidence, that the defendant was guilt)' of the wrongful act, neglect or default, as charged, and that the same resulted in the death of the plaintiff’s intestate, then the plaintiff was entitled to recover such damages as they might deem, from the evidence, a fair and just compensation therefor, having reference to the pecuniary injuries resulting from such death to the plaintiff and next of kin, not exceeding the amount in the declaration, and that sorrow or grief for the deceased, or any pain caused to the next of kin by the manner of bis death, should not be considered. The second instruction was claimed to he erroneous, as ignoring the question of the care or negligence of the deceased: Held, that as the object of such instruction was merely to give the proper measure of damages, and not to lay down any rule as to the doctrine of negligence, the instruction was not open to the objection urged against it.</p> <p>3. Same—an instruction construed, as whether ignoring the question of due care. In the same case, the declaration averred that the plaintiff’s intestate, when struck by the defendant’s train of cars, was in the exercise of due care and diligence, and that his death was the result of the carelessness and negligence of the defendant. The court instructed the jury, that if they believed, from the evidence, that the plaintiff had made out his case as laid in the declaration, they should find for him: Held, that such instruction was not obnoxious to the objection of ignoring the question whether the deceased was in the exercise of due care for his personal safety.</p> <p>4. Instruction—should be based on the evidence. Instructions must be based upon evidence; and the court is not required to give an instruction, although, as an abstract proposition of law, it may be correct, unless there is evidence before the jury upon which it may be properly predicated.</p> <p>5. So in an action against a railway company for causing the death of an intestate by negligence, where there was no evidence that the deceased went upon the railroad track in a reckless and heedless manner, or failed to exercise that degree of care and caution that a prudent man would observe to avoid danger, it was held no error to modify an instruction asked by the defendant, to the effect that if the deceased knowingly attempted to cross the track without looking for the approach of a train, he was guilty of negligence,—so that it left it as a question for the jury to determine, whether, under the facts, he was guilty of negligence.</p> <p>6. Same—in case of several counts—of an instruction ignoring one of them. Where a plaintiff seeks to recover for negligence, under two different counts, relying upon different matters as negligence, an instruction by the defendant applicable only to one of the counts, and ignoring the right to recover under the other count, is properly refused.</p>

<p>1. Banks and banking—right of set-off as against a deposit—in the case of an individual depositor, and a partnership debt, rights of the depositor, and his creditors. A bank has the right of set-off, as against a deposit, only where the individual, who is both depositor and debtor, stands in both these characters alike, in precisely the same relation and on precisely the same footing toward the bank. Hence, an individual deposit can not be set off against a partnership debt.</p> <p>2. Although a partner making an individual deposit with a bank' is under a legal obligation to pay a debt to the bank owing by a firm of which he was a member, he may lawfully appropriate his deposit to a bona fide creditor by drawing a check in his favor, and thereby vest him with full power to sue for and collect the same of the bank.</p> <p>3. Where a partnership firm has been dissolved while largely indebted to a bank for overdrafts upon its deposits, and the bank has notice of the dissolution, and of the fact that one of the partners continues the business in the old firm name, and such partner afterward makes a deposit, against which he issues his check, the holder of such check will be entitled to be paid out of such deposit; and in such case it is immaterial in what book or in what manner the entry of the deposit has been made, if the bank, at the time of such entry, knew such deposit was made by the partner so continuing the business for himself, though in the old firm name.</p>

<p>1. Resulting trust—whether it arises—of the nature and extent of interest which passes by a deed. As a general rule of law, it is true that a deed in due form, executed by one sui juris for a tract of land, will pass whatever estate, title or interest the grantor has therein; and in the absence of anything to the contrary, it will be presumed that both the legal and equitable title to such interest or estate passes to the grantee.</p> <p>2. But where the consideration paid for property belongs to one other than the grantee in the deed, or when the purchaser causes the conveyance to be made to a stranger, the use or beneficial enjoyment of the estate will, in the first case, result to the person to whom the consideration belonged, and, in the second, to the grantor, when nothing appears to show a contrary intention.</p> <p>3. "Where a father, having a life estate in a tract of land, the remainder being in his seven sons and daughters, with a view to borrow money on the same, conveyed his estate to his children, and procured a decree of partition and sale of the premises, and had' the premises struck off" and conveyed to one of his sons, who paid nothing on his purchase, but used the receipts of his brothers and sisters in payment of the price, the father paying the costs, it was held, that while the master’s deed conveyed to such son the legal title, the law would raise, by implication, a resulting trust in favor of the other brothers and sisters whose receipts were used in making the payment, they being used the same as money. Their equitable interest in such case is in proportion to the sums paid by their receipts.</p> <p>4. There can be no resulting trust where the use is expressly limited to the grantee in a deed. In such case there can be no trust in favor of the grantor. The ulterior object in making such deed can not be shown to override and counteract the express uses and purposes expressed in the deed.</p> <p>5. Same—parol evidence to establish or defeat a claim of resulting trust. A resulting trust being one which arises, by implication of law, out of external facts and circumstances, and not by the agreement of the parties, may be established or defeated by parol evidence, merely.</p> <p>6. Trust—Statute oe Frauds—whether an express trust. Where a conveyance is made to one person for the use and benefit of some one else, and the object and purposes of the conveyance are expressly declared by the grantor, this will constitute an express trust, which is void, under the Statute of Frauds, if not manifested or evidenced in writing, as required by the statute. In such case there can be no implied trust.</p> <p>7. Release oe trust deed—by deed as to one trust deed—whether as to another. Where a party has executed two deeds of trust to the same trustee, of different dates, to secure separate notes given to the same person, the administratrix of the deceased payee, together with the trustee, made a quitclaim deed of the premises to the debtor, in which it was recited that its object was to release the second deed of trust, it was held, that such deed did not release the first deed of trust, and that the same might nevertheless be foreclosed, in equity. '</p> <p>8. Deed—of conditions repugnant to the grant. All conditions, provisions and limitations in a deed for the conveyance of land, which are repugnant to the grant, are treated as inoperative and void.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.

' Appeal from the Appellate Court for the First .District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G-. Rogers, Judge, presiding.

<p>Appeal from the Circuit Court of Lake 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 Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p> <p>Appellant exhibited his bill in equity,, in the circuit court of Cook county, against the appellee, alleging therein, among other things, the execution and modification of certain contracts, marked, respectively, exhibits “A,” “B,” “C” and “D,” as follows:</p> <p>[Exhibit “A.”]</p> <p>“J. F. Wollensak:</p> <p>“Dear Sir—I propose to build, and deliver to your factory, and set up in complete running order, improved and special machinery, including shears and tools, for making 1 inch, 1J inch, lj-.inch tin speaking-tube, the tube to be made in 30-inch, one length, so that two lengths may be joined to make usual 5-foot lengths, the seam to be single lock folding smooth and close, and be air-tight, and require no solder. One end of the tube will be enlarged so the lengths can be fitted together in the usual way. I intend the machine to be an improvement over those now in use, and that it will produce a first-class article, and do it rapidly, so as to reduce the cost of manufacturing as much as possible, and I will assign all the improvements in the machine to you, if you see fit to cover them by patents right, and I agree to give it to you within ninety days from date, and in consideration of the foregoing you are to pay the sum of eight hundred dollars, ($800) when all is complete and approved by you. I will also investigate for you the best method of finishing door and other lock keys, and will give you my ideas as to which is the best kind of machinery or tools for the purpose, so that you can modify machinery you now have, or may want to make, for this purpose. 0. P..Beiggs.</p> <p>Chicago, August 8,1884.</p> <p>Accepted.—J. F. Wollensak.</p> <p>[Exhibit “B.”]</p> <p>“Chicago, March 9, 2885.</p> <p>“ J. F. Wollensak—I propose to build and deliver to your factory, set up in complete running order, improved and special machine, complete in all its parts, for making 1 inch, 1J inches, and lj- inch round speaking-tube elbows, of one piece, without the use of solder, the elbows to have the usual large end and small end, so as to fit into and over the speaking-tube for which I am now building machines for. The machine will be a first-class and durable article, and designed to make a superior elbow, and do it rapidly and cheaply, so as to enable you to compete successfully with any now in market.</p> <p>“I also agree to sign over to you any claim I may have for improvements on the machine, and assist you in procuring a patent for it, should you desire to secure a patent.</p> <p>“I also agree to deliver the machine, and have it in complete running order in your factory, in thirty days from date, and in consideration of the foregoing you are to pay me the sum of six hundred dollars ($600.)</p> <p>“You are to advance me, on signing this agreement, two hundred and fifty-($250) dollars, and two hundred ($200) dollars more, in two payments of one hundred ($100) each, while the machine is-being built,—this amount to apply on account, and the balance, viz., one hundred and fifty ($150) dollars to be paid me when you have finally accepted the machine, and are entirely satisfied with it. Should the machine prove a failure, or not meet with your approval, I propose to construct another which will. In that event I should, of course, require the time of delivery extended sufficiently to enable me to make necessary modifications.</p> <p>“It is understood that the assignment of the machine above mentioned, when patent is applied for, shall be an assignment to you in the patent of an exclusive and undivided right in the United States for making - speaking-tube elbows, and that I</p> <p>reserve the right to use the machine or patent for making stem-pipe elbows,—the idea being to limit your claim in the patent to the right for making speaking-tube elbows, and that anything I might do farther with the patent shall be subject to the assignment to you, and your right in this business shall also be protected m any subsequent improvements I might make in this kind of machine. q. P. Briggs.</p> <p>“Accepted.—J. F. Wollensak. ”</p> <p>[Exhibit “C.”].</p> <p>“No. -1088 W. Monroe, 88,517:</p> <p>. “This contract is modified so as to make the con tract, price nine hundred dollars ($900), instead of eight hundred ($800), and the'delivery April 10, 1885. • .,</p> <p>J. F. Wollensak, ■</p> <p>“March 9, 1885. O. P. Briggs.”</p> <p>[Exhibit “D.”]</p> <p>“This agreement is further modified, so that when a patent on the machine mentioned within is applied for,-the patent shall be assigned to J. F. Wollensak, for the exclusive and undivided right in the United States for making speaking-tubes ; that O. P. Briggs reserves the right in the machine for making stove-pipe and other articles, the idea being to limit Wollensak’s claim in the machine to the manufacture of speaking-tube, and that any assignment or disposition of the machine or patent shall'be subject to Wollensak’s claim, viz., that he alone shall have the use of the machine or patent for making speaking-tubes. This agreement also covers any subsequent improvement by Briggs in this kind of machine.</p> <p>J. F. Wollensak,</p> <p>“March 12, 1885. " O. P. Briggs.”</p> <p>It was further alleged, “that the first of said machines, being intended for the purpose of manufacturing speaking-tubes more rapidly and economically than then had been previously clone, and the second for making the elbows thereof in one operation, from a straight piece of tin-tubing, and without the use of solder, said machines were 'and are considered of great importance and value to your orator, and that because of this’ fact your orator was and is especially anxious to procure the same for use in his said business; that after the making of said contract, (Exhibit ‘A,’) the said defendant partially built one machine of the kind therein referred to, bringing the same almost to the point of full completion, which he tried and experimented with, but afterwards pronounced a failure; that the said defendant then, or about that time, showed and explained to your orator new drawings, which he said, he had prepared, and according to which he then proposed to build another machine in place of the one first built arid'tried," as aforesaid, and that your orator was so iinpressed therewith, and so desirous of procuring and having said machine, that he thereupon, and as a further consideration therefor, agreed to pay the said defendant the sum of $100'additional to the price mentioned and specified in said first agreement,' (Exhibit ‘A,’) and also as a part of the same transaction, and simultaneously therewith, entered into said agreement in reference to the building of said other machine, (Exhibit ‘B;’) that the said defendant afterwards began work on said second machine, which was to be built in accordance with said new drawings, as aforesaid, and after-bringing it almost tn the point of - completion, invited your orator over to his workshop to see the same operated, it being then substantially finished so as to make one size of speaking-tube, and, in fact, almost entirely finished in every respect, except as to the gearing attachments and a few small features or details of construction; that after the making of said agreement, (Exhibit ‘B,’) the said defendant also began ■work on said machine for making elbow joints, and substantially completed the same, but that it was never delivered to your orator, or in any way put into actual use or work, so far as he knows; that after building said machines fis above mentioned, but before delivering them, or either of them, to your orator, said defendant informed your orator that he had been put to greater expenses than originally contemplated or expected, and therefore suggested and insisted that your orator should pay him a larger sum for said machines than specified in said agreements; that in view of these facts, and because of his anxiety to get said machines, your orator then expressed his willingness to pay the said defendant a much larger sum therefor than he was under any obligations to pay, and that your orator has in fact, at various times, paid the said defendant, in all, the sum of $1200 on account of said machines; that afterwards, and after your orator had expressed his willingness to pay the said defendant a greatly increased price for said machines, and had in fact paid him the sum of $1200 on account thereof, the said defendant declined and refused to deliver said machines, or either of them, to your orator, or to execute and deliver to him any assignment or license in reference to said inventions or improvements, in accordance with the terms and conditions of said agreements, but that instead thereof, he, the said defendant, as your orator believes, delivered both-machines to other parties, and promised and agreed to assign and transfer to them, or did actually attempt to transfer and assign to'them,'the interest in said inventions and improvements which he had previously agreed to transfer to your orator, and that, although often requested so to do, he has refused, and still refuses, to deliver said machines, or others like them, to your orator, or to assign and transfer to him said interest in said inventions and improvements agreed to be assigned as aforesaid; that, as your orator is informed and believes, the said defendant, combining and confederating with others, is now seeking and endeavoring to cheat and defraud your orator out of the said money paid to him for said machines and said rights and privileges agreed to be assigned to your orator, as aforesaid, and> generally,' that the said actings and doings of the said defendant are calculated and intended to work great and irreparable loss and injury to your orator in his said business of manufacturing and selling speaking-tubes, as aforesaid; that, as your orator believes, the said defendant, in pursuance of his intentions to cheat and defraud your orator in the premises, has agreed to sell and assign, or actually attempted to sell and assign, said inventions and improvements to others, and at the instance or for the benefit of others has made, or ihtends-'to make, application for letters patent therefor, but that, applications for patents pending in the patent office being secret, your orator has no means of knowing or ascertaining all the actual facts in this respect, or obtaining copies of such application or applications, "if filed, and that all the facts in this respect being peculiarly within the knowledge of the said defendant, it is necessary for your orator to have a discovery and disclosure from him as to whether he has filed any such application or applications, and if so, the status thereof, and what proceedings have been taken therein; that said machines are of such peculiar kind and construction that your orator can not build the same, or have them built by others, and, as your orator is informed and believes, their construction and operation involve the use of said inventions arid improvements, which, so far as your orator knows, have never been described or explained to others, so as to enable them to manufacture or use the same; that the defendant has never delivered to your orator any specification or drawings of said machines, or otherwise explained their construction and operation, so as to enable your orator to build or use the same, or in any way "to utilize and enjoy the exclusive rights and privileges agreed to be assigned to him, and which, if capable of being used as intended and represented, would be of great value to him in his business, as aforesaid, and- that in order to enable your orator to have similar machines built, or in any way to use or utilize said inventions and improvements, it is necessary for him to have drawings, specifications or explanations thereof, and for this purpose to have a further discovery and disclosure from the said defendant, showing the exact construction and manner of operation of said machines, and such other facts as may be necessary to enable your orator to have them built and put into operation in his said business of manufacturing and selling speaking-tubes, as aforesaid. ”</p> <p>And afterwards the following additional allegations were filed, as an amendment to the bill: “Your orator shows and represents unto your Honors, that the said'defendant, while engaged in building the machines for your orator, referred to in the contracts nientioned herein, at various times .exhibited to your orator drawings of said machines, which your orator understood when the same were before him, and in accordance with which'- the said defendant was building said' machines; that your orator approved of and was satisfied with the machines-which were described and shown in such drawings, and which defendant was building for him, as aforesaid, and repeatedly told the defendant so, and at the time the defendant exhibited- the second machine to him, practically completed, except some gearing and other slight details of construction, your orator informed the defendant that he was satisfied with such machine, and approved of and was ready to accept and pay for the same, and at various times your orator has so expressed himself to the said defendant; that your orator is able to build the machines mentioned in the contracts declared on here, if he can have the drawings of the same which were exhibited to him from time to time by the said defendant, before him for examination and inspection, or copies of the same, and is ready and willing, and hereby offers, to build such machines himself, if the defendant will permit him to inspect and examine said drawings; that he has so expressed himself to the defendant at various times, and has requested him to permit an examination and inspection of such drawings, but the defendant has always refused to permit such inspection and examination on the part of your orator, or others for him, and now refuses to permit your orator such privilege; that your orator is informed, and believes, that said defendant is wholly irresponsible and insolvent, financially; that your orator has made inquiry and examination, and has been .unable to learn that defendant has any property in his own name that could be reached by execution, except a small quantity of stock in a stock company, which your orator is unable tq ascertain has any salable value whatever, and that, in the belief of your orator, any judgment against the defendant would be unavailable and uncollectible, and would afford your orator no sufficient or adequate remedy whatever in the premises; that your orator has, at all times and in all respects, faithfully carried out and performed all said agreements on his part, and is now ready and willing, and hereby offers, to perform and do everything on his part required by said contracts, or either or any of them, or which he ought, in equity and good conscience, to do in the premises; that your orator is without remedy in the premises, save in a court of equity, where matters of this nature are properly cognizable. ”</p> <p>The prayer then proceeds: “To the end, therefore, that the said defendant, Orlando P. Briggs, may answer the premises, (but not under oath, an answer under oath being hereby expressly waived,) that the said defendant may be decreed to carry out and specifically perform all and singular said agreements on his part; that he may be required to build, and deliver to your orator, machines of the kind and for the purpose aforesaid, and containing the inventions and improvements aforesaid, according to the letter and spirit of said agreements; that if he has not already made such applications, he may be required to make application for letters patent for said inventions and improvements, and to assign to your orator the rights and privileges therein, which he is entitled to under said agreements; that if unable so to build and deliver said machines, he may be required to make and deliver to your orator full and complete drawings, specifications and explanations thereof, so as to enable your orator to build the same, or have the same built elsewhere; that he may also be required to disclose and discover whether he has made any application or applications for lettters patent on said inventions or improvements, or either of them, and if so, the status thereof,' and, generally, what proceedings have: been taken therein; that he may be required to show and exhibit to your orator, or to mechanical experts or draughtsmen on behalf of 3rour orator, the said drawings of the machines mentioned in the contract declared on herein, which he has already made and prepared, and on several occasions showed to your orator while engaged in building said machines, and that he permit 3Tour orator, or others for him, to examine such drawings, and to make copies of the same for the use of your orator in building such machines himself; that he may also be enjoined, as. well preliminarily and provisionally as perpetually, from assigning to any other person or persons the rights and privileges in said inventions and improvements agreed to be assigned to your orator, as aforesaid, or from in any way incumbering the same, or seeking to hinder or embarrass your orator in the full or free use and enjoyment thereof; that he may also he decreed to pay over to your orator all the damages which your orator has sustained by reason of his failure to carry out and perform said agreements on his part; and that your orator may have such other.and further relief in the premises as may be agreeable to equity and good conscience, and as to your Honors shall seem meet. May it please your Honors to grant unto your orator the People’s writ of summons, issued out of and under the seal of this honorable court, directed to the said defendant, Orlando P. Briggs, commanding him, by a certain day and under a certain penalty, to be and appear in this honorable court, then and there to answ'er the premises, and to stand to and abide by such order and decrees as may be made against him; and also the writ of injunction, as well preliminary and provisional as perpetual, issuing out of and under the seal of this honorable court, enjoining and restraining the said defendant, Orlando P. Briggs, his agents, attorneys, servants and workmen, as is heretofore in that behalf prayed.”</p> <p>The circuit court sustained a demurrer to the bill, and that judgment was affirmed, on appeal, in the Appellate Court.</p>

<p>Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Whiteside county; the Hon. William Brown, Judge, presiding.</p> <p>This suit was brought in the circuit court of Whiteside county, by George W. Harris, Solon F. Gleason and Adam Smith, against Levi Bressler and Henry Bressler. The declaration counts on three promissory notes, of the date of January 22, 1872, each for the sum of $241.67, with interest at ten per cent per annum, and payable in one, two and three years, respectively. The pleas filed by defendants allege a defence to the entire cause of action, except as to the sum of $66.66, and as to this sum, a tender, with costs, is made. Lhe defence insisted upon is, payment, and usury in the original notes given for the indebtedness for which the suit was brought. The pleas are broad enough to let in proof of the matters relied upon as a defence to the action. On the trial, the court rendered a judgment in favor of plaintiffs, and against defendants, in the sum of $642. On the appeal of defendants, that judgment was reversed in the Appellate Court for the Second District, and judgment rendered in that court in favor of plaintiffs for the sum of $140.57, and ordered execution to issue therefor. A majority of the judges of the Appellate Court having made the necessary certificate to enable them to do so, plaintiffs bring the case to this court on appeal. On the hearing of the cause, the Appellate Court found the facts, and incorporated the same in and made them a part of its judgment, as follows:</p> <p>“That the only cause of action in this cause was a certain promissory note for the sum of $241.67, due in one year after date, payable to Joseph S. Martin, with interest at the rate of ten per cent per annum, signed by appellants, and indorsed by said Martin to the appellees, long after due. The above note was given to said Martin in only consideration of a note given by appellants to M. S. Henry & Co., for the sum of $427.18, of date July 1, 1858, due in sixty days after date, drawing ten per cent interest after due, and was in fact a renewal of said last mentioned note, which said last mentioned note, after it became due, was, for value, indorsed to one G-eorge W. Hoover, with full knowledge on his part, prior to and at the time of indorsement, that the makers, the appellants, claimed, and would insist on, the defence of usury in and to said note so given to said M. S. Henry & Co.; that the said Hoover retained the possession and ownership of said note from the time he obtained it till the giving of the first mentioned note sued on in this case, being some ten years, and was, at the time said new note was given to said Martin, the owner of the said old note and also of the note sued on herein, after it was given the said Martin, being only an accommodation holder of said note; that in taking the new note, no claim or allowance of usury was deducted from the amount of the old note, but the settlement was made as though no usury had existed; that during the time the old note of date of July 1, 1858, was in the hands of said Hoover, the appellants paid, in various payments on said note, all but $58 of the amount of- the said note, after excluding the usury contained in the face of the note, and all interest called for by the note after due. It is further found, that there was usury contained in the face of the said first note of July 1, 1858, as follows : The payees charge interest from the date of said note (July 1,1858,) to the time the note matured, being sixty days, at the rate of three per cent per month of the amount borrowed, or $25.63, and added it to the amount borrowed into the face of the note, and which made up a portion of the face value of the note, and that it was a greater rate of interest than ten per cent per annum on each $100, and more than the" law allowed, and was in fact usurious. It is found that said Hoover, the person who purchased said note and was the indorser, had notice prior to his purchase and indorsement to him of said note, and at the time thereof had full notice of the said usurious contract in the making and obtaining the said note; that said Martin, the payee of the note sued on, is also chargeable with notice of the said usurious contract at the time the said note was executed to him; that the- appellees, also, at and before the said note in suit .was sold and indorsed to them, and all persons holding said note prior to the time they held the note, are chargeable with full notice of the existence of usury in the note sued on, as well as the original note, and the right of the defence of usury the appellants had to the note in suit; that the $58 of principal due on the said original note, after deducting the usury contained in the face of the said original note, and all interest, after it became due, to the date of the note in suit, and adding ten per cent interest to the said $58 from the date of. the said note in suit, (January 22, 1872,) the amount of interest called for in said last named note, to the date of the judgment rendered herein, is the amount of and comprises the amount of said judgment. The court also finds all other facts, as stated in the opinion herein, are as stated in said opinion. ”</p>

<p>1. Life insurance—of the application—whether a warranty or merely a representation—of the relative■ effect. As a general rule, where the application for insurance on a person’s life is expressly declared to be a part of the policy, and the statements therein are warranted to be true, such statements will be deemed material, whether they are so or not; and if shown to-be false, there can he no recovery on the policy, however innocently made, and notwithstanding their falsity may have no agency in causing the loss or producing the death of the insured. But this rule is subject to some qualifications amjl exceptions.</p> <p>2. Where.the statement in a policy of insurance, that the answers) statements, etc.-, in the application, “are warranted by the assured to be true in all respects,” is followed by the further statement, “that if this policy has been obtained by or through any fraud, misrepresentation or concealment, said policy shall be absolutely null and void,” which fraud, etc., relates to the answers to the questions in the application, such of the answers not material to the risk as were honestly made in the belief they were true, will not he binding on the assured, or present any obstacle to a recovery.</p> <p>3. Same—notice and proof of death—waiver as to sufficiency. Where notice and proof of the death of the assured, in the case of a life policy, have been made out and delivered to the insurer in due time, and they are retained by it without objection, it can not, when sued on the policy, question their sufficiency.</p> <p>4. So where an insurance company, after the death of the assured has-occurred, places its refusal to pay upon some ground not affecting the merits of the ease, as, for instance, want of proper notice, all other formal objections not then urged or pointed out will be regarded as waived. If the refusal to pay is placed upon the ground of fraud, breach of warranty, or other grounds affecting the binding force of the insurance contract, the company can not afterward urge a merely formal objection to the right of recovery, and no evidence need be given of the notice and proof of the death of the assured.</p> <p>5. If some kind of proof of the death of the assured is in apt time delivered to the insurance company, its failure to make any objection to the same will estop it from afterward questioning its sufficiency, no matter how defective it may have been.</p> <p>6. Pleading — of the declaration on a life insurance policy. In an action upon a life policy of insurance, the plaintiff, by setting out in hcee verba the application, which is made a part of the contract of insurance, makes it a part of the declaration, and the legal effect of it is the same as if every fact therein stated had been in the ordinary way expressly averred.</p> <p>7. Pleading and evidence—in suit on life insurance policy—as showing a right of recovery—and herein, of matters availing only in defence. In an action on a life policy of insurance, the plaintiff must aver in the declaration the making of the policy, its terms, the payment of the premium, the death of the assured, and the giving of the notice and making of the proof thereof to the defendant, as required in the policy; and upon proof of such averments, in so far as their proof is not waived or dispensed with, a prima facie right of recovery will be established, which the defendant must meet by some affirmative action, to defeat a recovery.</p> <p>8. Where the answers in an application for insurance are to be treated as merely representations, as distinguished from warranties, any defence founded upon an alleged misrepresentation or fraudulent concealment must be set up as a defence to an action on the policy.</p> <p>9. In such an action, it is not necessary for the plaintiff to either allege or prove such matters as appear in the application, only. To be availed of, without regard to whether they are warranties or representations, merely, their falsity or breach by the assured must be set up and proved by the defendant as a matter of- defence.</p> <p>10. Same—as to conditions precedent—necessity for averment and proof of them—and when they need not be proven. Where a contract contains promissory conditions, or conditions precedent undertaken by the plaintiff, if they have not been waived or dispensed with by the defendant, the plain tiff, in an action on the contract, is bound, at his peril, to aver and prove their performance, or an offer to perform-them.</p> <p>11. But it is not necessary, in any case, to prove the performance of a condition which has been waived by the party having the right to demand its performance. A condition once waived is forever gone.</p> <p>12. Noticie to produce original papers—how to be shown. The filing of the declaration upon a policy of life insurance, alleging the giving of notice a'nd proof of the death of the assured, is, of itself, notice to the company to produce the notice and proofs, and, failing to do so, parol evidence of the same may be received.</p> <p>13. Practice—directing what the verdict shall be. It is the settled practice in this State, when no evidence has been offered to prove any material allegation in the declaration which is put in issue, and not admitted for the purposes of the trial, or otherwise waived or dispensed with, for the court, on motion, to exclude the evidence offered on either issue in the case, or direct the jury to find for the defendant.</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>

Alfred Sample, Judge, presiding. The original bill in equity in this ease, filed July 21,1884, by the Chicago and Eastern Illinois Railroad Company, set forth that that company and its predecessors had been, for about thirteen years, in the use of, for the operation of its railroad, a strip of land, one hundred feet in width, across the north-east quarter of the south-east quarter of section 28, township 29, north of range 12, west of the second principal meridian, in…

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

<p>1. Municipal corporations — of their powers—as to the mode of improving streets. Where a city, by special charter, is invested with the exclusive control of its streets, and with power to regulate and improve the same, the manner in which they may be improved, must in a large measure he left to the discretion of its authorities; and they may rightfully cause a street to he graded, and when its entire width is not needed for travel, they may cause a strip in the centre thereof to be sodded, instead of graveling the entire street, and provide for the payment of the cost,thereof by special assessment upon the property benefited thereby.</p> <p>2. Same—of a single improvement embracing different elements. A city, under its general power to improve its streets, may properly provide, by ordinance, that a street shall be improved, by grading the same, the sodding of the centre thereof, the graveling of the sides, and for the construction of a sewer under the same; and this will constitute but one improvement, although containing different elements.</p> <p>3. Special assessments—powers of municipalities—as to character of improvements to be made. Where a city acting under a special charter has adopted article 9 of the general act in relation to cities and villages, it will have the power to construct sewers under its streets by special assessment, without regard to its powers in this respect under its special charter.</p> <p>4. Same—appointment of commissioners—at a probate term of county court. = The county court is authorized by the statute, on petition to appoint commissioners to make a special assessment for the improving of a street by a city, at a probate term, although the final hearing of the application to confirm the assessment may be required to be at a laiv term, as held in the case of East St. Louis v. Wittich, 108 111. 450.</p> <p>5. Same—of the notice of confirmation—its sufficiency. An affidavit of one of the commissioners appointed to make a special assessment, showing that he had, on a day named, mailed to each of the owners of the premises assessed, as per the assessment roll, whose names and place of residence were known to him, a notice of the application for confirmation, giving a copy of the notice, is insufficient to give the court jurisdiction to render judgment against the lands of those not appearing. The statute (Rev. Stat. art. 9, chap. 24, secs. 26, 27, 28,) requires notice to be sent to each owner whose name and place of residence are known to any one of the commissioners.</p> <p>G. Each owner whose name and residence may be known to any one of the commissioners, is entitled to notice; and the affidavit, in order to give the court jurisdiction, must show a compliance with this provision of the statute.</p> <p>7. Same — uwiver of defect in notice. Owners of premises specially assessed for a proposed public improvement, who appear and file objections to the confirmation of the assessment, will thereby waive any and all defects in the notice of the application' for a judgment of confirmation.</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. L'orin C. Collins, Judge, presiding.</p>

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

<p>Evidence—to establish that a deed is a forgery. In this case, the facts and circumstances relied on to show that a recorded deed was a forgery, are stated, and held insufficient to invalidate the deed as recorded.</p>

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

<p>1. Evidence—cross-examination—latitude allowed—as to a party to a transaction alleged to be fraudulent. Where a party to a transaction alleged to be fraudulent as to creditors, testifies in respect thereto, in a suit involving the question of ownership of property, arising out of the transaction, the rule should be liberal in allowing a full examination of such party.</p> <p>2. Same—burden of proof—claim of property attached. A party who-intervenes in an action brought by attachment, and claims the property attached, must show that he is the owner of the same. The burden of proof' rests upon such claimant throughout the trial, and not upon the plaintiff in the attachment.</p> <p>3. Same—statements and declarations of a third person. On a trial of' the right of property in an attachment suit, in which the claimant’s title was assailed as being fraudulent as to creditors of his vendor, where there was much evidence tending to show that a third person was interested with him in the purchase, it was held improper to exclude from the jury, by an instruction, all the conversations and admissions of such third person, relating to the transaction, although not made in the presence and hearing of the-claimant.</p> <p>4. Same—privileged communication—to an attorney. An attorney who-was employed by a failing debtor to draw up an assignment of certain contracts of the debtor, (which assignment was attacked by creditors as fraudulent,) was asked if the assignor said anything at the time with reference to the intent or purpose of making the assignment, and if so, what: Held, that the question was properly disallowed, as calling for a privileged communication made to an attorney.</p> <p>5. Bight oe pbopebty—interpleading claimant in attachment. If a party claiming, by interpleader, the property attached, shows a purchase from the defendant in the attachment, it seems to be immaterial whether the purchase was made by the claimant for himself or for his father, as, in either event, the plaintiff in the attachment could not subject the property to his-debt unless it belonged to his debtor.</p>

<p>1. Practice—objecting as to competency of evidence. Where evidence is clearly incompetent, so that nothing can render it admissible, a failure in the record to show a formal objection will not preclude this court from considering whether it is competent, where it is necessary to the relief claimed.</p> <p>2. Chancery—consideration of the evidence—that which is incompetent, rejected. In chancery cases, the whole record, including all the evidence offered, is before this court, on appeal or writ of error; and it will be presumed that all the incompetent evidence was rejected, and all the competent evidence was admitted and considered, on the final hearing. If there is competent evidence in the record sufficient to sustain the decree, it will be affirmed, and if not, it will be reversed.</p> <p>3. "Witness— competency—husband and wife. A husband or wife can not testify for or against each other, where the adverse party sues or defends as the executor, etc., of any deceased person. So on a bill by a wife to set aside a sale of her land under a deed of trust, where the executor of the deceased creditor is defending, the husband is not a competent witness for the wife.</p> <p>4. Same—former decision. The case of Marshall v. Peck et al. 91 111. 187, in so far as it differs from the ruling in Crane v. Crane, 81 111. 165, as to the competency of husband or wife to testify for each other, is overruled. The remark of the court in Powell v. Powell, 114 111. 329, upon the question of fact whether the wife was the agent of her husband, was unnecessary, and is not to be regarded as indicating any rule of law on the question of her competency as a witness.</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. John G. Rogers, Judge, presiding.</p>

<p>1. Behoving cloud upon title—of the possession required in order to avail of the remedy. In order to give a court of equity jurisdiction of a bill to set aside a deed as a cloud upon title, the complainant must show that he is in possession of the land.</p> <p>2. The agent of the owner of the title to a lot of land, finding the same unoccupied, and without improvements thereon, except an old fence, with bars down on the ground, so that any one might go upon it, entered, and put up the bars so as to complete the inclosure of the lot, and nailed a board upon a tree thereon, announcing that the premises were for sale, and calling attention to himself, as such agent: Held,, that these acts of the agent constituted possession of the lot, so as to authorize the owner to maintain a bill to remove a cloud from the title.</p> <p>3. Same—defective tax title. Where the judgment against a lot for taxes is for too large an amount, a sale thereunder and deed will pass no title, and such deed may be set aside as a cloud upon the title of the owner.</p> <p>4. Taxation—:judgment for taxes—computing interest upon penalties. Prior to the act of 1879, amendatory of the Revenue law, in ascertaining for what amount a judgment for delinquent taxes should be rendered, interest was not to be computed upon penalties which might have accrued, but only upon the amount of tax due,</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. Josiah McRobebts, Judge, presiding.</p>

<p>1. Surety—undertaking strictly construed—technical defects in execution of official bends. The undertaking of a surety should be construed strictly, and he will be bound only in the manner and to the extent set forth in the obligation executed by him; but a surety on an official bond should not be allowed to avoid his undertaking upon a mere technical defect in the execution of the instrument.</p> <p>2. Same—bond not signed by the officer—liability of the surety—and, herein, as to the effect of a conditional signing by the surely. Sureties who execute an official bond on the promise of the officer that he will also execute the same before delivery, will be liable on the bond, notwithstanding the officer may fail to sign it before its acceptance and approval.</p> <p>3. Where, however, a school treasurer’s bond is signed by the sureties upon condition it shall not be delivered until executed by the treasurer, and the trustees of schools have notice of such condition, or notice of such facts pointing to such a condition as to put a prudent man on inquiry, before they accept the same, and they take the bond without performance of the condition, they will not be innocent holders, and therefore can not enforce the bond against the sureties.</p> <p>4. Same—right of surety to recover against the principal who did not sign the instrument. A surety who executes an official bond of another at his request, and upon his promise also to sign the same before delivery, may maintain an action against the officer for any sum he may be compelled to pay as such surety, notwithstanding such officer has never executed the bond.</p> <p>5. Contract—whether executed upon a condition. Where an officer, in procuring the signatures of sureties to his bond, promises them that he will sign the same before its delivery, which he fails to do, this will not constitute the execution of a bond upon condition, when the sureties rely upon the promise, and not upon a conditional delivery.</p>

Eollin S. Williamson, Judge, presiding. This was an action on the case, by Jeremiah O’Connor, against the Chicago-and Eastern Illinois Eailroad Company, brought to the March term, A. D. 1882, of the Superior Court of Cook county.

<p>1. Evidence—proof of signature—opinions of witnesses as to genuineness. Upon the question of the genuineness of a signature, the number of witnesses will not always control. In determining what weight shall be given to the testimony of a witness, his knowledge and means of information, and his honesty and intelligence, should all be considered.</p> <p>2. Where a witness shows he was acquainted with a person in his lifetime, and his handwriting, and had seen him write, he will be competent to give his opinion as to the genuineness of a signature purporting to be that of such deceased person. .</p> <p>3. Same—indorsement of payment of interest on a note—admission. An indorsement upon a note, in the handwriting of the maker, of the receipt of the interest thereon up to a given date, after which the interest should be eight per cent, if unexplained, is an admission that such note was in force at the time the indorsement was made. But if there is no proof aliunde of the payment of the interest, such indorsement will not be sufficient evidence to overcome the payee’s written receipt of payment in full, and his admission that the maker was “square” with him.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.</p>

<p>Practice—after reversal and remandment—what .further proceedings may be had. Where this court in a chancery case finds for the defendants on the merits, and reverses the decree in favor of the complainant, and remands the cause for further proceedings in conformity with the opinion, this is equivalent to a reversal with direction to dismiss the bill. In such case the complainant will have no right to have the case heard again on the merits, or to file a supplemental or amended bill.</p>

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

John G. Rogers, Judge, presiding. This was an action for money had and received, brought by M. J. O’Hare, appellee, against the appellant, in the circuit court of Cook county, where a trial ■ by the court, without .a jury, resulted in a judgment for plaintiff for $1129.50. The defendant appealed to the Appellate Court for the First District, where the judgment of the circuit court was affirmed, and now prosecutes this further appeal from that judgment.

<p>Appeal from the Circuit Court of Whiteside county; the Hon. John Y. Eustace, Judge, presiding.</p>