Volume 120 — Illinois Reports

<p>1. Setting aside tax deed—reimbursing claimant under tax deed for taxes, etc., paid—in what proceeding—prospective operation of the statute. The proviso to section 224 of the Revenue act, in force July 1,1885, requiring any judgment or decree of court setting aside a tax deed, to provide that the claimant shall pay the holder of such deed all taxes, legal costs, etc., paid by such holder or his assignors, has no application to an action of ejectment against the holder of a tax title, hut relates to equitable proceedings instituted for the purpose of setting aside tax deeds. It was not the purpose of the statute to change the action of ejectment into a chancery proceeding, or to confer any new or enlarged jurisdiction upon courts of-law.</p> <p>2. Same—impairing vested rights. Nor was it the design, by that section of .the statute, to change or affect the vested rights of others. The legislature has not the power to deprive a party of a vested right, or to say that a vested right, which is absolute and unconditional, shall only be exercised upon certain conditions imposed by itself. So where it has been adjudicated that a certain tax deed is invalid, and unavailing as a defence in an action of ejectment, no subsequent legislation can operate to impair the right of the plaintiff in the ejectment suit to the protection of that ruling.</p> <p>3. Formeb adjudication—whether a bar to a subsequent suit, generally. A judgment upon the merits is an absolute bar to a subsequent action upon the same claim or cause of action, not only as to every matter which was offered and considered to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.</p> <p>4. But when the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered. In such case, the inquiry is as to the question actually litigated and determined,—not what might have been thus litigated and determined.</p> <p>5. Same—;judgment in forcible entry and detainer, as a bar to am, action of ejectment. A judgment in an action of forcible entry and detainer can not be pleaded as a bar to an action of ejectment, for the reason that the questions involved in the two proceedings are different. The question of title can not be inquired into in forcible entry and detainer, and if it could, a judgment therein would be no bar, without proof that the question of title was raised and decided.</p> <p>6. Ejectment—affirmative title arising under twenty years' possession. Where the plaintiff in ejectment shows an adverse possession for twenty years, so that the entry is barred, he is entitled to recover even against a defendant w’hose possession, for a less period, is lawful.</p> <p>7. Same—rights acquired by possession for less than twenty years. But, while prior possession of land for a less period than twenty years is prima facie evidence of title, and will authorize a recovery in ejectment as against a mere intruder or trespasser, it will not authorize a recovery against a defendant who is lawfully in possession.</p> <p>8. Same —conditional judgment—whether allowable. Where a plaintiff in ejectment recovers judgment in a case where a tax title is set up in defence, it is error to stay the execution of the judgment until the plaintiff shall pay the defendant the sums advanced by him for the tax title, etc. The court has no right to render a conditional judgment.</p>

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

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

This' is an original petition, filed in this court by the Mutual Fire Insurance Company of New York, for a mandamus,' compelling the Auditor of Public Accounts to issue to the petitioner a license to carry on the business of fire insurance in this State. The material facts of the case appear in the opinion of the court.

This is a petition filed in this court by the People, on the relation of the State’s attorney of Hamilton county, against .the Louisville and Nashville Eailroad Company, for a mandamus, to compel such company to run all its passenger trains to the town of McLeansboro, and to stop there for the receiving and discharging of passengers. The facts of the case are sufficiently stated in the opinion of the court.

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, 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. Lorin C. Collins, Judge, presiding.</p>

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

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

Henry M. Shepard, Judge, presiding. This was a bill in equity, brought by John LeBahn, to enjoin the town of Lake View from disturbing the complainant in his possession of the north thirty-three feet of block 5, in a subdivision of the south-west half of the north-west quarter of section 29, town 40, north, range 14, in Cook county, and from prosecuting him for alleged obstruction of said strip of land as a street.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p> <p>James Ward died, testate, on July 6, 1SS1, leaving a widow, Margaret E. Ward, and nine children: Sarah A. Amberg and Mary E. Gannon, adults; and Frank C. Ward, Albert J. Ward, Charles S. Ward, Walter M. Ward, Anna E. Ward, Ella D. Ward, and James A. Ward, minors. The will was executed May 12, 1880. James A. Ward, the complainant, who brings this, bill by his next friend, was born July 15, 1880, and is not mentioned in the will.</p> <p>In his will, James Ward, after directing the payment by the executor of debts and funeral expenses, makes the follow - ing devises and bequests;</p> <p>First—He bequeaths to the widow all the personal property, (except the library, which is given to the four sons, Frank, Walter, Charles and Albert) on condition that she pay out of the same all lawful claims against the estate, and also $500 to his sister, Sarah Hitchcock, and $500 to his brother, Edward Ward, in annual installments of $100 each:</p> <p>Second—He devises to the widow the use, improvements and income of certain lots in Chicago for her life, and, at her death, such lots to go to the four sons, above named, share and share alike, in fee; but if she should die before any of said four sons become twenty-two years old, then the trustee, William A. Amberg, is to sell said lots, and divide the proceeds, fro rata, among said four sons, giving to each his share upon his becoming*'twenty-two years of age:</p> <p>Third—He bequeaths to his wife the income, issues and profits in the premises, known as No. 435 West Van Burén street in Chicago, his interests and rights therein being set forth in an agreement between his sister, Sarah Hitchcock and himself:</p> <p>Fourth—He devises certain lots in Chicago to his daughter, Sarah A. Amberg:</p> <p>Fifth—He devises certain lots in Chicago to his daughter, Mary E. Gannon:</p> <p>Sixth—He devises certain lots in Chicago to William Am-berg, in trust for his son, Frank, until he arrives at the age of twenty-two years, and, after that, to said son, in fee: Seventh—He devises certain lots in Chicago to said Amberg, in trust for his son, Walter, until he becomes twenty-two years old, and, after that, to said son, in fee:</p> <p>Eighth—He devises certain lots in Chicago to said Amberg, in trust for his son, Charles, until he becomes twenty-two years old, and, after that, to said son, in fee:</p> <p>Ninth—He devises certain Chicago lots to said Amberg, in trust for his son, Albert, until he becomes twenty-two years old, and, then, to said son, in fee:</p> <p>Tenth—He devises certain Chicago lots to said Amberg, in trust for his daughter, Anna, until she becomes twenty-two years old, and, then, to her, in fee:</p> <p>Eleventh—He devises certain Chicago lots to said Amberg, in trust for his daughter, Ella, until she becomes twenty-two years old, and, after that, to her, in fee:</p> <p>Twelfth—He devises to his sons, Frank and Albert, in fee, each an undivided half of six hundred and forty acres of land in Texas:</p> <p>Thirteenth—He devises to his sons, Charlds and Walter, in fee, each an undivided half of another tract of six hundred and forty acres of land in Texas:</p> <p>Fourteenth—He authorizes said trustee and executor to sell the residue and remainder of his real estate (the same being in Cook county,) at any time before his son, Frank, becomes twenty-two years old, at public or.private sale, for such price and uyon such terms as may seem best to him, and to convey the same free from any liabilities, and to divide the same among all the said children, named in the will, share and share alike:</p> <p>Fifteenth—Tiz appoints Amberg, the trustee and executor, guardian of the estates of the minor children, named in the will, and authorizes him to manage and improve the same, and collect and pay over the incomes thereof, etc.</p> <p>Sixteenth—In case of the death of any of his children, without leaving lawful issue, he gives and devises the share of such child dying, to Amberg, trustee and executor, in trust, to sell the same for the benefit of the survivors in equal shares and proportions, in the same manner, as specified as to the residue of the real estate.</p> <p>In the circuit court, several references were made to the master, who took testimony, including that of real estate experts and others, and, in his several reports, found, that the portion, which appellee would have been entitled to receive out of his father’s estate, if there had been no will, was one-ninth of the estate, subject to the dower of the widow therein; that appellee was entitled to one-ninth of the rents, since the testator’s death; tha't the total value of the land and the improvements thereon, belonging to the estate, was $308,707.75; that,,the gross value of the personal estate was $23,737.27, and, after deducting therefrom, the costs and expenses of administration, the widow’s award and the proven debts, that the net value of the personal estate was $9209.91; that the total value of the estate was $317,917.66; that the dower of the widow in the real estate, calculated by the Northampton tables, was $62,420.70, which deducted from $308,707.75, would leave a balance of $246,287.05, one-ninth of which, to-wit: $27,365.23, would be the value of appellee’s interest in the realty; that his ipterest in the personalty was $682.21, being one-ninth of the two-thirds of the net amount thereof, which would belong to the heirs in case of intestacy, after giving the widow one-third thereof; that the total value of appellee’s inheritance was $28,047.44.</p> <p>The decree, entered by the circuit court, confirms the reports of the master, and finds, that, to make up the sum of $28,047.44, the several defendants (the devisees above named) should contribute proportionately to the amounts devised and bequeathed to them, specifying the amount to be contributed by each; that the real estate, described in the will as “residue and remainder” (that referred to in above paragraph No. 14) be set,off to complainant, without prejudice to the defendants, at the value of $18,725, and that the residue of the sum of $28,047.44 be paid by the trustee out of moneys in his hands, belonging to the defendants; that the real estate, specifically devised is not susceptible of partition without prejudice; it is decreed, that the trustee convey such “residue and remainder” to complainant, that the defendants pay to William Amberg, guardian of complainant, the respective sums above named (specifying them;) that said real estate and money shall be the full portion of complainant in the estate, and the balance of the property shall be free from any claim on his part; that certain defendants pay to complainant one-ninth of the net amounts of rents, received by them, etc; that the taxed costs be borne by complainant and the several defendants in proportion to the value of their several devises.</p>

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

<p>Appeal from the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.</p>

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

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

<p>1. Fraud—false representations as to the cost of an article proposed to be sold. Where, pending negotiations for the sale of property, the vendor and vendee are dealing at arm’s length with each other, the representations of the former as to the cost of his property, even though false, and made with a view to deceive, will furnish no ground of action, nor authorize the vendee to rescind the contract.</p> <p>2. This rule, however, does not apply where any fiduciary relation exists between the parties, or where the property in regard to which the vendor makes a false statement has been bought by him on the joint account of himself and his vendee. In such case, a misrepresentation as to the price paid will give a right of action.</p> <p>3. Measure of damages—in action to recover bach purchase money obtained by fraud. Where a vendor of an interest in a certain license, falsely represented to another the cost of the license, and thereby induced the latter to make the purchase, under the belief that the license cost as much as repre-</p> <p>• sented, it was held, in assumpsit by the purchaser to recover back the money paid under the contract, that he was entitled to recover the whole sum paid by him, with six per cent interest thereon.</p> <p>4. Instruction—in respect to the existence of an undisputed fact. In a case where there is no conflict in the testimony, and no room to doubt or hesitate as to a matter of fact in issue, an instruction ought not to assume that it is or may be doubtful. To call upon the jury to decide whether an undisputed fact is or is not proven, is to mislead them by inducing them to suppose that they may find the fact either way, where the evidence warrants but one conclusion.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.</p> <p>This was an action of assumpsit, brought by Henry 0. Glattfeldt, against John J. Bonnet and Richard W. Nance, to recover for work and materials done and furnished by the former to the latter, in doing the brick and cut stone work in the repair and part rebuilding of a foundry which .bad. been partially destroyed by fire. The fire occurred in November, 1882, burning out most of the wood work and injuring a portion of the brick walls. . There was an agreement in writing between the parties, on the subject, of the date of February 12,1883, by the terms of which, and the specifications therein referred to, plaintiff agreed to furnish all material and labor necessary in rebuilding and completing the brick and cut stone work of the foundry building, and do the same according to plans, specifications and detail drawings, as furnished by.Frank R. Tubbesing, architect, and complete the same on or before the 10th day of March, 1883; and that he would do the same in a good and workmanlike manner; and that. in doing the same, he would take down all the defective parts of the brick, walls of the building, and rebuild the same in the same manner they formerly were; and that he would be responsible for the work until the same should be done, completed, and accepted in writing by said architect. - In consideration of which, it was agreed by defendants that they would pay to plaintiff the sum of $1050, upon the written certificates issued by the architect, as follows: Seventy-five per cent of the same during the progress of the work, and the remaining twenty-five per cent in or within thirty days from the completion of the job, if the same should be done and completed according to agreement, and accepted, in writing, by the architect; and further, that all the old brick on the premises would become the property of the brick contractor, which might be used in rebuilding the walls. The architect was appointed superintendent, with full power to inspect, accept or reject any work done or material to be used, whether worked or otherwise, when the same should not be in accordance with the plans, specifications and detail drawings; and that his decision in that matter, and all other matters relating to said building and other work referred to in the agreement, should be binding and conclusive upon both parties alike. Defendants pleaded the general issue, and filed a plea of set-off, claiming damages for breaches, by plaintiff, of the agreement, in that plaintiff did not, by the time agreed, furnish the material and labor agreed to be furnished, but furnished only a part of the same, and neglected and refused to furnish the residue; and that of the work performed by him, a great part of the same was done in so bad and unworkmanlike a manner, that a large amount of brick work laid up by him in the walls of the building in an improper and unworkmanlike manner, necessarily had to be and was taken down and rebuilt at the expense of defendants. There was a verdict and judgment for plaintiff for $511.95. On appeal, the judgment was affirmed. by the Appellate Court for the Third District, and the defendants appeal to this court.</p>

<p>1. Criminal law—prosecutions in the county court—by information. Under the statute, all offences cognizable in the county court must be prosecuted by information of the State’s attorney, Attorney General, or other person.</p> <p>2. Same—indorsement of probable cause, by county judge—and herein, when an information is that of the State’s attorney. Where an information is presented by any person other than the State’s attorney or Attorney General, the county judge must indorse thereon that there is probable cause for filing the same.</p> <p>3. Where an information is filed by the State’s attorney in his name, and it is signed by him, the fact that it is accompanied by an affidavit of a private person that the matters therein stated are true, will not render the information that of the latter, so as to require the indorsement thereon of probable cause, by the county judge.</p> <p>4. Evidence—os to proof of the habit of becoming intoxicated. In a prosecution for selling intoxicating liquor to a person in the habit of becoming intoxicated, there is no error in allowing witnesses to testify to the habit of such person as to becoming intoxicated, when they are able to speak from their own personal observation, and have had opportunities of knowing such person’s habits in the respect named.</p> <p>5. Same—of opinions or conclusions of witnesses as direct evidence. As a general rule, it is not proper to admit in evidence the opinions or conclusions of witnesses; but whether a person possesses a certain habit, is lather a question of fact, than of opinion or conclusion. It respects a person’s condition, as to which witnesses are often allowed to speak without being confined to a narration of the particulars which go to constitute the condition.</p> <p>6. Under proper circumstances, a common witness may testify directly as to sanity, solvency or insolvency; as to a person being sick or in pain; or whether, a pel'son was drunk or sober; or whether a horse is a safe and kind animal.</p> <p>7. Instruction—as to what proof will establish the fact of habitual intoxication. On a prosecution for selling intoxicating liquor to a person in the habit of becoming intoxicated, it is a question for the jury to say whether the evidence shows such a habit in such person; and an instruction that it is not sufficient to show that such person has been frequently intoxicated, or to intimate therein that five occasions of intoxication will not justify the finding of habitual intoxication, is properly refused.</p>

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

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

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

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

<p>Appeal from the County Court of Peoria county; the Hon. L. W. James, 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. John G. Rogers, Judge, presiding.</p> <p>Wilbur F. Storey, a resident of Cook county, died October 27, 1884, seized of real and personal estate of the value of several hundred thousand dollars. He left surviving, a widow, Eureka C. Storey, and Anson L. Storey, a brother, Mary E. Farrand, a sister, Mary E. Anderson, a niece, and Edward P. Chapin, a nephew, his only heirs-at-law. On November 5, 1884, Mrs. Storey petitioned the probate court of Cook county for letters testamentary, and produced a writing purporting to be the last will and testament of Wilbur F. Storey, bearing date February 1, 1881, signed by the testator, and witnessed by Austin L. Patterson, Alfred S. Trade and Frank C. Mc-Clenthen, and offered the same for probate. Mrs. Storey was, by the will, appointed executrix, and among other provisions it gave to Mrs. Storey the management and conduct of the business of publishing the “Chicago Times, ” a newspaper owned and published by the testator at the time of his death, until the same should be sold; and, subject to exceptions named, she was given the use or interest of all the testator’s estate during life, and was authorized to convert all the estate, except a certain house and grounds, into good interest bearing securities; and on condition that the testator’s estate should yield $12,000 or more per year, the executrix was directed to pay to the testator’s brother and sister, Anson L. Storey and Mary E. Farrand, each $1000 per year, for life, but if the estate should yield no more than $10,000 per year, such annuities should not be paid; and that upon the death of Eureka C. Storey, the remaining portion of the estate should descend to the testator’s heirs-at-law.</p> <p>On November 14,18S4, the subscribing witnesses appeared before the probate court, and testified as to the writing offered for probate, and as to the mental condition of the testator, and the same day, the probate court entered an order refusing probate of the alleged will, for the reason that at the time Wilbur F. Storey signed said instrument, he was not of sound mind and memory, and was not competent to make his last will and testament. From this final order Mrs. Storey then prayed an appeal to the circuit court, which was allowed, on her filing an appeal bond, with approved security, within twenty days, and which appeal she perfected by filing her approved bond in the probate court on December 2, 1884. On the last named day, Mary E. Farrand also prayed an appeal from the same final order of the prohate court, to the circuit court, and which was allowed on her entering into bond, with approved security, within twenty days from November 14, 1884, and this appeal she, on the same day, perfected, by filing in the probate court her approved appeal bond. A transcript of the whole record and proceeding in the. probate court, from the filing of Mrs. Storey’s petition for letters, on November 5, 1884, to and including the appeal bonds of both Mrs. Storey and Mrs. Farrand, of December 2,1884, was, on December 5, 1884, filed in the circuit court of Copk county, and appears to have been docketed as No. 50,828. Three days later, on December 8, 1884, another transcript of the same record, in all respects like the first, except that it did not contain the prayer for appeal, allowance of appeal, and appeal bond of Mrs. Farrand, and contained the original appeal bond instead of a copy, was, by Mrs. Storey, filed in the circuit court of Cook county, and docketed in that court as No. 50,851, where it remained upon the docket of that court as a pending appeal until December 18, 1884, when, upon motion of appellant Eureka C. Storey, her. appeal was dismissed out of that court, at her costs.</p> <p>On December 24,1884, John P. Altgeld entered his appearance in the circuit court, as the attorney of Mrs. Farrand, in the matter of the estate of Wilbur F. Storey, appeal by Mary E. Farrand, pending in that court, and docketed as No. 50,828, and. on January 6, 18S5, Mrs. Storey, by her attorneys, filed her written motion in the cause, moving the court to take the cause out of its order on the docket, and set it down for early trial, and on January 10, 1885, the appearance of Anson L. Storey was entered in the same cause, by his attorney. The motion of Mrs. Storey, of January 6,1885, was, on January 17, 1885, continued till January 26, 1885, on which last named day the court, after argument, took the motion under advisement. On February 2,1885, the court allowed Mrs. Storey’s motion, and set the cause down for trial on July 6, 1885. It will be sufficient, further, to state, that commencing with the appearance of Mrs. Storey in the appeal of Mrs. Farrand, when, through her counsel, she moved the court to advance the cause and set it down for early trial, there was contention as to whether this appeal should be conducted and controlled by Mrs. Farrand, on whose appeal it was said to be pending, or by Mrs. Storey, the executrix.</p> <p>On behalf of Mrs. Farrand it was contended, that Mrs. Storey, having dismissed her appeal from the same final order of the probate court, out of the circuit court, had no longer any standing in that court as an appellant or proponent of the will, and that the only appeal pending in the circuit court being the appeal of Mrs. Farrand, the latter occupied the position, in the circuit court, of appellant and proponent of the will, and had the right to conduct her own appeal; while on the part of Mrs. Storey it was contended, that upon an appeal of this character the case was not inter partes, but a proceeding in rem,—the only question being will or no will,— and that on appeal, as in the probate court, the executrix was the legal proponent of the will, and, as such, was entitled to -conduct the trial. The circuit court accepted and acted upon this view of the law, and consequently recognized the right of Mrs. Storey to conduct the trial in that court, over the objection of Mrs. Farrand.</p> <p>Various steps occurred in the progress of the cause, during the year 1885, not necessary to be recounted, but during the early part of 1886 the court was engaged in the trial of the cause. It should, however, be stated, that when the cause was ready for trial, counsel for Mrs. Farrand moved the court to strike the appearance of Mrs. Storey from the files, and that this motion was overruled by the court; that this ivas followed by the formal objection of Mrs. Farrand to Mrs. Storey proceeding with the evidence as the proponent of the will, and coupled with this objection was an offer by Mrs. Farrand to proceed with the conduct of the case, and to put in the evidence on the part of the appellant, as proponent of the will, and to call A. S. Trade as a witness. This objection and offer of Mrs. Farrand were overruled, upon the ground that Mrs. Storey, the executrix of the estate, was really the proponent of the will,—the record showing, that by her petition the will was presented in the probate court, and asked to be probated. To both these rulings exceptions were taken by Mrs. Farrand.</p> <p>As the trial was drawing to a close, and the evidence had been heard, Mrs. Farrand made the following motion:</p> <p>“State of Illinois, County of Cook. In the Circuit Court.</p> <p>“In the matter of the estate of Wilbur F. Storey, deceased— Appeal of Mary E. Farrancl:</p> <p>“And now comes the appellant, Mary E. Farrand, by John P. Altgeld, her attorney, and dismisses her appeal from the probate court herein, and moves that an order be entered dismissing.the said appeal at appellant’s costs.</p> <p>Mary E. Farrand,</p> <p>By John P. Altgeld, her attorney.”</p> <p>Endorsed: “Filed January 29, 1886.—Henry Best, Clerk. John P. Altgeld, Attorney. ”</p> <p>But upon the objection of counsel for Mrs. Storey, the court overruled the motion, and this ruling of the court was excepted to by both Mrs. Farrand and Anson L. Storey. Afterwards, such further proceedings were had that the circuit court found that the will propounded for probate, and dated February 1, 1881, was the last will and testament of Wilbur F. Storey, deceased, and Anson L. Storey then entered his motion to set aside the finding, grant a new trial, and in arrest of judgment. But the court overruled the motions, and rendered judgment on the finding, that probate of the will be allowed, etc. Anson L. Storey excepted to the overruling of his motions and to the rendering of the judgment, prayed and perfected his appeal to the Appellate Court for the First District, where the judgment of the circuit court was affirmed.</p>

<p>1. Administration or estates—keeping claim, upon the docket—reinstating same. A claim against an estate was filed in proper time, of which filing the personal representative had due notice, but the clerk omitted to continue and keep the case and claim upon the docket from term to term. An order re-instating the claim was entered, after motion duly made, and ten days’ notice of the motion duly served upon the executors. Upon objection that the claim was improperly re-instated, it was held, that having been filed in time, it made no difference whether the clerk kept it on the docket or not, so long as there was no order in any way disposing of it; so the objection was not well taken.</p> <p>2. Same—amendment, by changing the name of the claimant. Where a claim has been filed in the county court in the time required by law, that court may properly allow an amendment of the claim filed, by changing the name of the claimant, even after the time limited for the filing of claims, when the effect is not to introduce a new and different cause of action. When no new cause of action is introduced, the courts will allow amendments liberally, for the purpose of avoiding the bar of the Statute of Limitations.</p> <p>3. Same — classification of claims when allowed—whether essential. On appeal from the county court, a judgment of the circuit court, in allowing a claim against an estate, will not be erroneous, merely because the order fails to fix the class to which the claim belongs. That court has the power to direct the classification of a claim allowed by it, but it is not error for it to fail to do so. The statute fixes the class to which it belongs. . The direction that it be paid in due course of administration, means that it shall be paid as, and pro rata with,.other claims of the same class, out of the assets administered.</p> <p>4. Same— considering the equities, in allowance of claim. The county court, in considering claims against estates, is not limited to the technical legal rights of the parties, but may act upon their equities.</p> <p>5. Estate in personal property—life estate, with limitation over. Personal property may be given, by contract or by will, to one person for life, with remainder over to another after the life interest therein has expired; and such limitation over is good as to every species of chattels of a durable nature.</p> <p>6. A husband, as the sole heir of.his deceased wife in her personal estate, consisting mostly of notes, and as heir of one-half her real estate, conveyed and transferred to his wife’s mother one-half of the land and the personal estate for her life, under a written agreement that at her death the interest so transferred to her should go to the husband, and the mother collected the notes and converted the property into money, and by her will gave all her property to others. It was held, that the husband was entitled to have the amount of such property so converted by his mother-in-law, allowed as an equitable claim against the estate of the latter.</p>

<p>Appeal from the Comity Court of Sangamon county; the Hon. J. H. Matheny, Judge, presiding.</p>

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

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

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

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

<p>Writ of Error to the Circuit Court of Union county; the Hon. Robert W. McCartney, Judge, presiding.</p>

This was a petition, filed in this court, asking for issue of a writ of mandamus, on the grounds and for the purposes fully stated in the opinion of the court.

heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. George W. Herdman, Judge, presiding. This was a proceeding commenced by Sylvanus Shurtleff, in the circuit court of DeWitt county, by bill in chancery, as purchaser of a portion of a tract of land on which there was an incumbrance, which he paid, against the owners of the-other portions of said incumbered tract, for contribution.

Charles J. Scofield, Judge, presiding. This was assumpsit, by appellee, against appellant.

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

<p>Appeal from the'Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

Charles Blanchard, Judge, presiding. This was an action of replevin, brought by Thomas Walsh, in the circuit court of Grundy county, on October 5, 1878, against John Schroeder, sheriff of the county, for the recovery of a stock of goods valued at $2000.

<p>1. Mechanic’s lien—personal decree—to what extent allowable—and when not permissible. It is error to render a personal decree in a proceeding to enforce a mechanic’s lien, against the defendant or party with whom the contract was made, except for such deficiency of the debt as may remain after sale of the property burdened with the lien.</p> <p>2. Where property, however, becomes divested of a mechanic’s lien by reason of a sale under a prior incumbrance, so that it can not be sold to satisfy the mechanic’s demand against his employer, no decree should be entered except for the dismissal of the petition. In such case it is error to render any decree against the party for whom the work was done or materials fur-' nished.</p> <p>3. Same—cut off by sale under prior lien. Where a contract is made with the owner of real estate for the furnishing of materials and labor to improve the property, pending a bill to foreclose a prior mortgage on the same premises, a decree and sale under the bill will out oif all rights of the mechanic or material-man for a lien.</p>

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

<p>Appeal from the Appellate Court for the Second District;— on motion in that court to quash fee-bill and re-tax costs.</p>

Sidney Smith, Judge, presiding. This was an action brought by Charles Stose, in the Superior Court of Cook county, against Jacob Heissler and August Junge, for the recovery of a month’s rent, claimed to be due under a lease by the plaintiff to defendants, of certain real estate in the city of Chicago.

<p>1. Trust—wrongful application of securities by officers of a corporation-purchaser with notice. The appropriation of the bonds of a railway company, by its president and general manager, to the payment of the debts of other corporations, from which the railway company derives no practical benefit, is a breach of trust, and illegal and void as to the railway company; and-such bonds will be void in the hands of all persons acquiring them with notice of the facts showing the illegality of them delivery for unauthorized purposes.</p> <p>2. Corporations —stockholders—preserving the corporate property and interests—rights and remedies of the stockholders. Where a corporation having a right of action against directors, officers or others, for wrongfully dealing with corporate property, or wrongfully exercising corporate franchises, either actually or virtually refuses to institute or prosecute a suit, in order to prevent a failure of justice an action may be brought and maintained by a stockholder or stockholders, either individually or suing on behalf of themselves and all others similarly situated, against the wrongdoing directors, officers and other persons; but it is absolutely necessary that the corporation shall be joined as a party, usually defendant.</p> <p>3. Where there is a reasonable certainty that a demand on the corporation to bring suit will be nugatory, the stockholder, as one of the beneficial parties in interest, may bring the suit without first having requested the managing body of the corporation to do so.</p> <p>i. The remedy of stockholders against the wrongful acts of the directors or other officers of a corporation is not confined to the prevention of an unlawful act, but in a case where an act would be enjoined, a court of equity may declare the same act, if consummated, void. So if corporate bonds are delivered for improper purposes, by an officer having charge of them, a court of equity may declare them void, and cancel them, and set aside a deed of trust given to secure their payment.</p> <p>5. Bes judicata—difference in effect of judgment as a bar and as an estoppel. There is a difference.in the effect of a judgment as a bar, and as an estoppel in a suit upon a different cause of action. A judgment upon the merits constitutes an absolute bar to a second suit upon the same cause of action. But when the second suit is upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, and only upon that is the judgment conclusive in another action.</p> <p>6. Laches—delay on the part of stockholders to interpose to protect corporate interests. Where no attempt was made to enforce the payment of bonds of a railway company wrongfully delivered for other than a corporate purpose, it was held, that a delay of eleven and a half years in the bringing of a suit by stockholders to cancel and set aside such bonds, and the deed of trust given to secure their payment, was not a bar to the relief sought.</p> <p>7. Assignment of error— by whom. Parties holding railroad bonds wrongfully issued or delivered to them, can not be heard to urge as error that the rights of others not before the court have been determined. The fact that the decree may be erroneous as to others not legally brought before the court, can be urged only by them. A party can avail himself only of error 'which may injuriously affect himself.</p>

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

C. B. Smith, Judge, presiding. The declaration contained two counts, in each of which it was alleged that John Kimlin purchased cattle of Johns, and gave his check on the First National Bank of Kansas, Illinois, for $1041.74, (th'e price of the cattle,) and that Endsley falsely and deceitfully represented to Johns that Kimlin was solvent, and that the check was good, and would be honored by the bank, and then averred that Kimlin was insolvent, and the check was not good, and…

<p>Appeal from the County Court of Mason county; the Hon. H. C. Burnham, Judge, presiding.</p>

Henry M. Shepard, Judge, presiding. Edgar D. Swift was the contractor for building three houses, one for Julia A. Slater, one for John W. Moore, and one for Stewart L. Moore. Martin & Co. were sub-contractors, and furnished materials for the construction of each building.

<p>Writ oe Error to the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Jesse J. Phillips, Judge, presiding. .</p>

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

Cyrus Epler, Judge, presiding. Fractional section 16, in township 16, north) of range 13, west of the third principal meridian, in Morgan county, being a school section, was platted by the trustees of the township, in April, 1846, and the platted lands advertised for sale by the school commissioner of the county, November 21, 1846.

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

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

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

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

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

<p>Appeal from the Circuit Court of Whiteside county; the Hon. Joseph M. Bailey, Judge, presiding.</p> <p>The bill in this case was brought by the Chicago and Northwestern Railway- Company, against William H. Thatcher, treasurer of Whiteside county and ex officio collector of taxes. The object of the bill is to enjoin the collection of certain municipal taxes levied and assessed by the city of Sterling on the property of complainant, situated within the limits of such municipality. On the hearing of the cause in the circuit court, on bill, answer, replication and proofs, the court rendered a decree enjoining the entire tax levied on the property of complainant, and from that decree the collector appealed to this court.</p>

<p>Appeal from the Superior Court of Cook county.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. N. W. Green,.Judge, presiding.</p> <p>This was an action of trespass, brought by the appellant, •against B. W. Baker, B. F. Wright, J. F. James, William B. Ward, J. M. Sadler, H. E. Reynolds and F. McPheeters, for •an unlawful arrest and false imprisonment.</p> <p>The defence set up by the pleas and the stipulation of facts is, that the appellees lawfully arrested appellant for performing acts which, by section 59, chapter 38, of the Be vised Statutes, are made a criminal offence, to-wit: That while a camp meeting for religious purposes was being held, he did, upon his own land, within one mile of the camp meeting, and without the permission of the authorities having control of it, erect and maintain a booth for vending provisions and refreshments. The appellant had no regular place of business-within the mile limits. His residence was there, but he never kept a booth there, or anywhere else, until the camp meeting; was being held.</p> <p>A jury was waived, and a trial had by the court, who found for the defendants, and rendered judgment against the appellant for the costs.</p>

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

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

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

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

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

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

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

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

<p>Writ of Error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.</p> <p>Omar H. Allen, the defendant in error, entered into a written contract of sale with Martin J. Ryan and Michael J. Ryan, the plaintiffs in error, whereby Allen agreed to convey to the Ryans, in fee simple, clear of all incumbrances, that part of lot 4, of O. H. Allen’s subdivision of block 5, assessor’s subdivision of unsubdivided lands in the north-east quarter and the east half of the north-west quarter of section 6, township 39, north of range 13, east of the third principal meridian, lying north of a line running parallel with, and distant ninety-nine feet southerly from, the south line of North avenue, in Cook county, and in consideration, the Ryans agreed to pay Allen $450, as soon as Allen should convey to them “a good, clear and merchantable title” to the premises, and that the Ryans should take immediate possession, and pay the taxes. The Ryans went into possession under the contract, and have since occupied the same. Allen submitted to them an abstract of title, tendered or offered to make a deed, and demanded the purchase money. The Ryans refused to accept the deed and pay the money, because, as they contended, Allen had only a life estate in the premises, and therefore could not convey a good, clear and merchantable title in fee simple. Thereupon, Allen exhibited his bill in the Superior Court of Cook county, against the Ryans, for specific performance of the contract.</p> <p>It appears from the bill and its exhibits, that the premises in question were owned by Elizabeth H. S. Allen, step-mother of the complainant, now defendant in error; that Elizabeth died testate, leaving surviving, Nathan Allen, her husband, and Kate A. E. Johnson, a daughter by adoption, her only heirs-at-law; that the will and codicil of Elizabeth were duly probated in Cook county; that by the original will, the entire estate was devised to her husband, Nathan, for life, with full power of disposition, with remainder to her step-son, Omar, and her adopted daughter, Kate,—Omar to take the Du Page county property, and Kate the residue, except a certain five acres, which was to “go to my son Omar, as the DuPage property does; ” but that, by the codicil, testatrix gave to her step-son, Omar, “the use or rents accruing from my house, and one acre of land that the said house stands upon, after his father’s decease, provided his father does not sell said property, which privilege I grant him, provided it is necessary for his maintenance. After the said Omar H. Allen’s decease, the said house and land is to go to his nearest heirs,”— fully describing the parcel of land; that the lands described in the contract of sale are a part of the premises described in and devised to Omar in and by the codicil; that long after the death of the testatrix,' Kate A. E. Johnson conveyed all her interest in the premises to Omar; that afterwards, Nathan Allen, and his then wife, Martha, by their warranty deed, conveyed the same house and acre of land to Omar, reserving therein to the wife, Martha, a right of occupancy during her life, and this deed was placed in escrow, to be delivered on the death of Nathan; that afterwards, and upon Nathan’s death, the deed in escrow was delivered to Omar; that afterwards, the widow, Martha, by her deed, conveyed her interest in the premises to Omar. And the bill averred, that by virtue of the codicil and the subsequent conveyances, Omar became seized in fee of the premises described in the contract of sale, and prayed specific performance. The defendants, the Byans, interposed a demurrer to the bill, which was overruled, and a decree of specific performance rendered by the Superior Court.</p> <p>The assignment of error questions the decree of the 'court in finding and decreeing that Allen had an estate in fee simple in the lands described in the contract.</p>

<p>Writ oe Error to the Circuit Court of Ogle county; the Hon. William Brown, Judge, presiding.</p>

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

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