Volume 122 — Illinois Reports

Writ of Error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. A collection of extracts from documentary evidence, found in the record in this cause, has been prepared as a preface to the opinion. These extracts are referred to in the opinion as being contained in a “statement” that precedes the opinion.

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Cass, county; the Hon. Lyman Lacey, 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 Macon county; the Hon. James F. Hughes, Judge, presiding.

<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. Jambs A. Creighton, Judge, presiding.</p>

<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>1. Franchise—defined. The word “franchise” is often used in the sense of privileges generally, but in its more appropriate and legal sense the term is confined to such rights and privileges as are conferred upon corporate bodies by legislative grant. It is nothing more than the right or privilege of being a corporation, and of doing such things, and such things only, as are authorized by the charter.</p> <p>2. Same—in whom vested. It follows, from the very nature of a corporation, that a franchise, or the right to be and act as an artificial body,, is vested in the individuals who compose the corporation, and not in the, corporation itself.</p> <p>3. Same—not the subject of sale or transfer. A corporation, in the absence of statutory authority, has no right or power to sell or transfer the franchise, or any property essential to its exercise, which it has acquired under the law of eminent domain.</p> <p>i. Corporation—defined. A corporation aggregate is an artificial 'being created by law, and composed of individuals who subsist as a body politic, under a special denomination, with the capacity of perpetual succession, and of acting, within the scope of its charter, as a natural person. It has, for most purposes, a distinct identity from that of the individual corporators.</p>

George Verner, Judge, presiding. This was an application to the county court of Washington county, for judgment for taxes against certain lands and lots returned delinquent by the collector of that county.

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

<p>Writ of Error to the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.</p> <p>James W. Humphrey, being the owner of the lands in controversy, bargained with Maria Anna Lehndorf for the sale thereof, for $5100, and, joined by his wife, on the 3d day of August, 1883, by statutory form of warranty deed, in considoration of that sum, did “convey and warrant to Maria Anna Lehndorf, and her heirs by her present husband, Henry Lehndorf,” said lands. Two thousand dollars of the purchase money was paid in hand, and two notes of Maria Anna Lehndorf were given, for $1550 each, payable, with interest, to said Humphrey, in twelve and twenty-four months, respectively. At the same time, and as part of the same transaction, a mortgage in statutory form was duly executed and delivered by said Maria Anna Lehndorf, and Henry Lehndorf, her husband, upon the same lands, to secure the said two notes,—all being done simultaneously, and as parts of the same transaction. James W. Humphrey afterwards sold, indorsed and delivered the said notes to Allen Cope, defendant in error.</p> <p>On the 26th day of December, 1885, said Maria A., joining with her two sons, Paul and Albert Lehndorf, executed and delivered a deed conveying to Elizabeth Wirtz said lands. The first deed and mortgage mentioned were duly recorded August 8, 1883, the latter, December 26, 1885. The notes remaining unpaid after due, Cope, assignee thereof, filed this bill to foreclose the said mortgage, making Maria A. Lehndorf, Henry Lehndorf, her husband, Paul, Albert and William Lehndorf, (children of Maria.and Henry,) and Elizabeth Wirtz, defendants.</p> <p>The bill, after alleging the sale of the land by Humphrey to Mrs. Lehndorf, and making the deed, mortgage and notes exhibits, sets up the foregoing facts, and then proceeds, at 'the request of said Maria A. Lehndorf, the said James W. Humphrey, and his wife, Sarah F. C. Humphrey, conveyed and warranted said lands and real estate to her, by the name and style of Maria Anna Lehndorf, and her heirs by her present husband, Henry. Lehndorf, by a deed of conveyance, bearing date the said 3d day of August, 1883, duly recorded the 8th .of August, 1883. ...</p> <p>“Complainant submits that said Maria Anna Lehndorf can have no heirs while living, and that the words, ‘and her heirs by her present husband, Henry Lehndorf,’ are surplusage in said deed, and that said Paul, Albert and William Lehndorf take no interest, either in law or equity, in said lands and real estate by virtue of the same being incorporated, as aforesaid, in said deed of conveyance. And complainant further shows that said Paul, Albert and William Lehndorf paid nothing of the purchase money of said lands and real estate to said James W. Humphrey, and of any interest of said lands, by virtue of said words or otherwise. Such interest would be subject to the payment of the purchase money of said lands and real estate, and subject to the rights and equities of your complainant to have said lands and real estate subjected to. the payment of said purchase money so secured by said notes and mortgage, as aforesaid. Complainant further shows, that on, to-wit, the 26th day of December, 1885, Maria Anna Lehndorf, Paul and Albert Lehndorf, executed, acknowledged and delivered to one Elizabeth Wirtz, of St. Louis, Missouri, a warranty deed of ■conveyance, purporting to convey and warrant said lands' to said Elizabeth Whiz, which said deed was duly recorded in said Marion county, in record book 41, page 55. Complainant charges, on information and belief, that said conveyance so made by Maria Anna, Paul and Albert Lehndorf, to said Elizabeth Wirtz, was without any consideration; that said Elizabeth Wirtz is the mother of said Maria Anna Lehndorf, and that she paid nothing- for said lands and real estate to said Maria Anna, nor to said Paul or Albert Lehndorf, but said conveyance was made to embarrass in the collection of said notes. Complainant submits that if said conveyance of said lands and real estate to said Elizabeth Wirtz was in good faith, the rights of said Elizabeth Wirtz acquired by such conveyance would be subject to the rights and equities of complainant in and to said lands and real estate.”</p> <p>The bill prays for appointment of a guardian ad litem for Paul, Albert and William Lehndorf, who are alleged to be minors; that an account be taken of the amount due eomplainant on the mortgage; that in default of payment, sufficient of the land be sold to pay the amount found due; that the rights and equities of the defendants be decreed subject to the equities of complainant, and that they be barred, etc., of the equity of redemption.</p> <p>The defendant Maria A. Lehndorf answered, admitting the making of the deeds and mortgage, and that the notes mentioned, and seemed by the mortgage, were part of the purchase money; admits that it was agreed between her and said Humphrey, that in making the conveyance of said land the deed should be made to Maria Anna Lehndorf and her heirs by her present, husband; that said deed was so made for the purposes in the deed expressed, and with the intent to so convey the land, and not otherwise; denies that she agreed to purchase and take a conveyance to herself, but that the deed was intended to convey said lands to her and her heirs by her husband, Henry Lehndorf, and not otherwise; avers that the deed conveyed an estate for life to her in said lands, and the fee therein to her heirs of said Henry, and that Humphrey well knew the same before and at the time of the execution of said deed; admits making notes as alleged, and mortgage to secure the same, but denies that it was upon any interest in the land not owned by her; that said mortgage was intended to be only of her life estate, and Humphrey well knew the same, and accepted the same with such knowledge and intent; avers that if complainant is owner of the notes, he held with notice that Maria, Anna had purchased and taken by said deed only a life estate in said lands at and before he purchased said notes of said Humphrey; that Humphrey had taken and accepted a mortgage on her life estate for the security of said notes with full knowledge, and his assignee took no other or greater interest or right than he possessed; denies the right of complainant to other equitable relief; avers that Humphrey waived right to lien in equity for the purchase money by taking security by mortgage of life estate, and that upon the assignment of the notes he received pay and satisfaction of the purchase money, and thereby any right of equitable relief for the purchase money he might have had was lost; avers that her children by said Henry became and were owners in fee of said lands as tenants in common, subject to the life estate in herself, and subject, also, to be opened to let in other child or children that may be born to the body of said Maria by her present husband, Henry Lehndorf, etc.</p> <p>The defendants Paul, Albert and William Lehndorf, by their guardian ad litem, demurred, to the bill, and the demurrer was overruled by the court, and defendant Wirtz was defaulted. Decree was rendered foreclosing the mortgage, finding the interest of all the defendants subject thereto, and decreeing accordingly.</p> <p>The only evidence introduced, other than the deeds, notes and mortgage mentioned, was that of the scrivener who drew the deed and mortgage of August 3, 1883, who identified the-notes as those given at the time for the purchase money of the land; and it was shown, also, that Paul, Albert and William Lehndorf were the children of said Maria by her husband, Henry Lehndorf; that all were minors; two of them were born prior to the 3d day of August, 1883, and one since. The defendants below prosecute this writ of error.</p>

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

<p>Appeal from the Circuit Court of McLean county; the Hon. »’ N. J. Pillsbury, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.</p> <p>This was assumpsit, upon the following promissory note: “$300.00. Vandalia, III., December 10, 188á.</p> <p>“Six months after date, for value received, we, or either of us, promise to pay to the order of the Farmers and Merchants’ National Bank of Vandalia, $300, with interest at eight per cent after maturity. If this note is not paid when due, we agree to pay an attorney’s fee of $30, if placed in the hands of an attorney for collection. John S. Barton,</p> <p>W. L. Ballinger, Benjamin Buckmaster.”</p> <p>Judgment was recovered for the principal and interest, the trial court excluding the $30 reserved for attorney’s fee, although it appeared in evidence that the note was not paid at maturity, and was placed in the hands of an attorney for collection, and at the same time the fee of $30 was paid to him by the plaintiff. On appeal, the Appellate Court reversed that judgment, and on the appeal of the defendant below the case is brought to this court. The question whether the agreement to pay the attorney’s fee was usurious, is the one presented.</p>

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

<p>Appeal from the Appellate Court for the Third District;— heard in that court on an agreed case from the Circuit Court •of Adams county; the Hon. William Maesh, 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. 0. T. Beeves, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.</p> <p>This is an appeal from the judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of St. Clair county, convicting appellant of violating an ordinance of appellee, prohibiting owners of locomotives, cars, etc., to obstrucj; crossings, etc., of streets thereby. So much of the facts as is essential to an understanding of the case may be briefly stated, as follows:</p> <p>The road of appellant runs in a direction north-west and south-east, across Abend’s addition, crossing Richland, Spring and Illinois streets, which run north and south, and Sixth and Seventh streets, which run east and west. The railroad depot is located on Seventh South street, to the east of its junction with Spring street, and the appellant claims the right to the exclusive use of Spring street for its yards and necessary use. The appellant is successor of the Belleville and IUinoistown Railroad Company, and entitled to all its property, franchises, grants and privileges. The record shows that Spring street, and the next street west of the appellant upon Seventh street, was dedicated to the city of Belleville in 1849. In 1853, a resolution permitting the Belleville and Rlinoistown Railroad Company to use certain streets of the city, was adopted by the city council, which reads as follows: ,</p> <p>“Resolved by the city council of the city of Belleville, That the use of the following named streets in the city of Belleville, in Chandler and Abend’s addition thereto, be and the same are hereby appropriated to the Belleville and Illinoistown Railroad Company, so far as the said company may require to appropriate the same in crossing them, in the construction of their railroad track, switches, turn-tables, and other machinery and fixtures necessary to be used or employed by them in operating said road,—namely, High, Illinois, Spring, Richland, Race, South, Fifth, Sixth and Seventh South streets, and such alleys in said Chandler and Abend’s addition as are crossed by said .railroad track: Provided, that the same shall be occu:</p> <p>pied with as little detriment and inconvenience to the public as possible; and if said railroad shall find it necessary in crossing any of said streets, to raise embankments across the same, the streets crossing said embanked streets shall be so graded as not to make their said embankments an obstruction to crossing the same.”</p> <p>Appellee introduced in evidence an ordinance prohibiting the obstruction of street crossings, etc., and appellant admitted on the trial, that it had obstructed Spring street before- the. commencement of the suit. Appellant claimed that that portion of Spring street within its yards had been vacated in 1852, and until that part of the addition to the city south of appellant’s road had been considerably built upon, no controversy had arisen between it and the public concerning the - use of Spring street. No action of the city council, entered of record, was introduced showing such vacation. It was also claimed by appellant, that several years before the commencement of the suit, the grounds south of the railroad having been fenced in, admitting of no passage from Spring street to Illinois street, complaints were made by persons who had acquired property and built houses south of the railroad, of the blocking of Spring street crossing by the railroad company, and the city council appointed a committee to confer with the railroad ■company and adjust the matter; that this committee met the officers of the company, and it was agreed that the railroad ■company should construct a roadway on its right of way for public use, from Spring street to Richland street, and should acquire property and open up a roadway from Spring to Ulinois street, and build a sidewalk, so as to afford convenient access from both streets to Spring street, and that the railroad company should continue in the use of Spring street; that this was reported to the city council; that the railroad company made the roadway on its right of way, to Richland street, and purchased property and opened up a way to Rlinois street, ■constructed the sidewalk, and the city took possession of the strip of land purchased by the railroad company, and improved ■and worked it as a street of the city; that the city afterward attempted to vacate so much of Spring street as was within the yards of the company, and published the ordinance as having been passed, sent a copy thereof to the railroad company, and the company executed a deed for the strip of land ■south of the railroad to the city, and delivered the same to. James M. Hay, the then city attorney; that this deed the -city attorney did not present to the city council, and it was subsequently lost; that the city having been sued for damages in regard to this crossing, the city attorney, Martin Schaefer, requested the company to execute another deed for this strip, which was done, and this deed, and the fact that the city had procured thereby other convenient access to this property to lot owners, was used by the city attorney as evidence in that suit. But the deed, when laid before the city council, was not accepted by it, and a resolution was adopted by the city reciting that the ordinance vacating the street was not passed legally by the council, and that the present council refused to pass that or any similar ordinance, and the clerk was therefore ordered to return the deed to the railroad company. The deed was returned to the railroad company.</p> <p>By agreement of parties, the cause was tried by the court without the intervention of a jury. Appellant asked the court to hold the following propositions of law, but the court refused, and appellant excepted:</p> <p>“First—If the city, by its officers or agents, induced the defendant to expend money in making a roadway from Spring to Bichland street on its right of way, for the use of the public, and to purchase land and open a way from Spring to Illinois street, upon the understanding and promise, expressed or implied, that the defendant, in consideration thereof, should have the right to use that portion of Spring street within its yards, for yard purposes, and said city took possession of the lands so purchased, and other lands-of the company, in pursuance to said understanding, and worked and used the same as a street, then said city is estopped from recovering a penalty from defendant for using such portion of Spring street for yard purposes, and the court ought to find the defendant not guilty.</p> <p>“Second—That the resolution or ordinance of the city council, of ....., A. D. 1853, is a license to the defendant, if it is the successor of the railroad company therein named, to use that portion of Spring street within its yards, for yard purposes, and the city can not recover a penalty for using said street for such purposes, even if it obstructs' the street there by such use, without first revoking said license, or giving the defendant notice that such use must be discontinued.</p> <p>“ Third—If the city accepted a deed from defendant for the strip of land mentioned in ordinance of city, of July 5, 1883, and used the same in defence of a suit brought against the city, and took possession of said strip of land, and worked the same as a street of the city, it is estopped from prosecuting defendant for a penalty.”</p>

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

<p>1. Specific! performance—parol agreement to convey land—whether established. The specific performance of a parol contract for the sale of land will not be enforced by a court of equity, unless, in addition to other requirements, such contract is established, by competent proof, to be clear, definite and unequivocal in its terms.</p> <p>2. Testimony given years after alleged conversations as to what a father said about his intention to give or deed his son a farm, or as to his statements of what he told his son upon that subject, does not establish a clear, definite and unequivocal contract between the father and the son. A court of equity will not execute the expressed intention and expectation of a father to give his son a farm, unless such intention and expectation have ripened into and become embodied in a definite agreement.</p> <p>3. A father rented a farm to his son in 1878 at a low rent, and the son being dissatisfied, in 1880 threatened to leave the place and go elsewhere, but afterward gave up that intention and continued to occupy the same, making some very trifling improvements for his own benefit, still paying the. same rent, until his father’s death, after which he rented the place of the devisee of his father. The proof showed that the father had several times stated that he had given, or intended to give, the farm to him, the son not being present, except on one occasion, and it did not appear that the son ever held possession other than as a tenant. After his father’s death and his renting from the devisee, he filed his bill for specific performance of an alleged parol contract of his father to convey him the land, to which the Statute of Frauds was pleaded by answer, which also denied the contract: Meld, that the bill could not be maintained.</p> <p>4. Statute of Frauds—part performance. Acts relied on to show part performance will not operate to defeat the operation of the Statute of Frauds, unless they are done under the contract itself. If they might have been done with other views, they will not take the case out of the statute. It must appear that the party entered into possession of the land under the contract, and in performance of it, and that he was allowed to make valuable and permanent improvements under his contract of purchase, and not otherwise. If the acts are referable to a tenancy, they will not do.</p>

<p>1. Negotiable instruments—liability of indorser—by what law governed. Where promissory notes are made and indorsed in another State, the law of that State will govern as to the indorser’s liability.</p> <p>2. Same—character of liability under the law merchant. Under the law merchant, the indorsement of a note amounts to a contract on the part of the indorser, that if, „when duly presented, the note is not paid by the maker, the indorser will, upon due and reasonable notice given him of the dishonor, pay the same to the indorsee or oth§r holder.</p> <p>3. Same—waiver of presentment and notice, as qualifying character of liability of indorser. Under the law merchant in force in the State of Indiana, applicable to a note payable in a bank of that State, where there is an express waiver, in writing, by the indorser, of presentment for payment and of notice of its non-payment, the indorser’s obligation for its payment is unconditional and absolute, and on the maturity of the note the holder may immediately bring suit against the indorser, without performance of any act.</p> <p>Í. An indorser may, by the form of his indorsement, make himself absolutely and positively, in all events, liable for the payment of the note, with or without due presentment or due notice of non-payment. If there is an agreement, in writing, to dispense with any demand upon the maker, or with notice of dishonor, the language will be construed to import an absolute dispensation with the ordinary conditions of an indorsement, and the indorser will become as absolutely bound to pay the same, when due, as if a guarantor or surety.</p> <p>5. Administbation oe estates—as to claims not due—estate of indorser of promissory note. Under section 67, chapter 3, of the Revised Statutes, relating to the administration of estates of deceased persons, the indorsee of notes not yet due, where the liability of the indorser was absolute and not dependent upon any conditions, may have the same allowed against the estate of the latter, allowing the proper rebate of interest. Such indorsee or holder of the notes is a creditor of the estate, within the meaning of the law.</p> <p>6. A, on January 1, 1881, sold a tract of land in the State of Indiana to B, for $8000, of which $500 was, paid, taking notes for the balance, payable in one, two, three, four, five, six, seven, eight, nine and ten years, bearing eight per cent per annum interest, secured by mortgage on the premises sold, the last six of which the payee indorsed in blank to C. The notes provided that the drawers and indorsers severally waived presentment for payment, protest and notice of protest, and non-payment thereof, and they were made payable at a bank in Indiana, in which State they were so assigned. A statute of that State provided that notes payable to order or bearer in a bank in such State, should be negotiable as inland bills of exchange, and that the payees and indorsees thereof might recover as in a case of such bills, and the Supreme Court of that State held that the provisions of the law merchant in regard to the presentment for payment and notice of protest and non-payment might be waived by the terms of the contract, and that such waiver extended to the indorsers. A, the payee, died, and his administrator sold the other notes to a third person, who foreclosed the mortgage, making the mortgagor, B, and C, parties defendant. The sale only paid C $500 of the notes held by him. A decree was rendered against B for the sum due on the other notes, on which an execution was-returned nulla bona: Held, that the estate of A was liable to 0 on the notes so indorsed to the latter, notwithstanding they were not due at the-time of filing the same.</p>

Geobge Gabdneb, Judge, presiding. This was a bill in equity, to declare a resulting trust, compel the conveyance of the legal title, and enjoin the prosecution of an action of ejectment, exhibited in the Superior Court of Cook county, by John L. Wilson, against Thomas H. Bush, Isaac K. Palmer, Isaac R. Hitt, the city of Chicago, Thomas Fast and Lucy Bush.

<p>1. Special legislation—under constitution of 1848—township organization and the county court—management of comity affairs. Section 6, of article 7, of the constitution of 1848, which provides that “the General Assembly shall provide, by a general law, for a township organization,” etc., relates to the management of the affairs of the several towns of counties adopting the system, and not to the management of the fiscal affairs of counties.</p> <p>2. The constitution of 1848 provided that as to such counties as might adopt the township organization, the General Assembly might dispense with the county court for the management of the county fiscal concerns, and the affairs of such counties might be transacted in such manner as the General Assembly should provide. In this the legislature was not restricted to general laws.</p> <p>3. The adoption of the township system did not necessarily, under this constitutional provision, do away with the county court for the transaction of county business.. The management of the county affairs might still be left to the county court, or intrusted to any other tribunal created for that purpose.</p> <p>4. Statute—whether title embraces the subject. The act entitled “An act to change the time of electing certain officers in a county therein named,” approved February 28, 1867, is in violation of section 23, of article 3, of the constitution of 1848, in not having its subject or main object expressed in its title. The main subject of the act in question was, the change of the composition of the board of supervisors in Wayne county,—to diminish the number of the members of the board as provided by the general Township Organization law, and to change the mode of their election, from towns singly, to groups of towns. This subject was not expressed in the title, nor was it in any way germain to the purpose which was expressed in the title.</p> <p>5. Officebs de facto—validity of their acts—of officers acting under law which is not constitutional. The acts of de fado officers under color of legal title to the offices the duties of which they are assuming to perform, are valid as to the public, and so far as they concern the rights of third persons who have an interest in their acts done.</p> <p>6. The legislature passed an act which proved to be in violation of the constitution, whereby the management of the affairs of a county acting under township organization was attempted to be taken from the.supervisors of the several towns, and vested in a board of supervisors consisting of only five members, instead of fifteen, as before, to be elected in five districts, and hold their offices for four years. Supposing the act to be a valid enactment, such board of five were elected, and for a time acted without question, as the legally constituted tribunal having charge of the county affairs: Held, that their acts were valid and binding as those of defacto officers under color of office.</p>

<p>1. Rembdy—to recover on judgment of condemnation. Where an ordinance for the condemnation of land by a village for a street, provides that the entire cost of the proposed improvement shall be paid by special assessments, so long as such ordinance remains in force it excludes every other mode of payment, and an action of debt will not lie on the judgment of condemnation against the village, although it may have taken possession of the land condemned. Such judgment can be paid, if at all, only by special assessments.</p> <p>2. Res judicata—by decision of ihis cowrt. A decision by this court, that mandamus will not lie to compel a village to pay a judgment of condemnation of land for a street out of a fund to be raised by a general tax, and that the ordinance under which the condemnation was had is still in force and not repealed, becomes res juddcata as to such matters, and an action of debt by which it is sought to recover a judgment for the compensation awarded, seeking the same end, can not be sustained.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.</p> <p>This was a bill in equity, exhibited in the De Kalb circuit court on the 18th day of February, A. D. 1876, by Robert Furniss Long, Elizabeth Long, Harry C. Long, Alicia Lucia Burton, John Burton, Eleanor M. Taylor, Charles A. Taylor, Alice E. Long and Albert D. Long, against Erastus Dean and George M. Hadden, and alleging, in substance, that Robert Whatkinson Long caused to be purchased of the United States the south half of the south-east quarter, and south half of the south-west quarter, of section 36, town 39 north, range 4, in De Kalb county, Illinois, 160 acres; that the money to buy it was furnished by Robert Whatkinson Long, and the purchase was made for the benefit of said Elizabeth Long and her children, and that the title to same was placed in Robert F. Long and Robert Wliatkinson Long, in trust for the benefit of said Elizabeth Long and her children, on or about August 1, 1853; that a trust patent of that import was issued by the United States to said parties; that Alicia Lucia Burton, Eleanor Mary Taylor, Alice E. Long, Albert D. Long and Harry C. Long are all the children of Elizabeth Long, and the only children; that Robert Whatldnson Long died in Illinois in 1869, and that he was the step-son of said Elizabeth, and son of Robert Furniss Long, who is the husband of said Elizabeth and the father of all the others above named; that the said children of the said Elizabeth Long are aged, respectively, from twenty-one to thirty-two years of age; that the legal title of said lands was placed in said trustees for the use and benefit of said Elizabeth and her children, and to place it beyond her power to encumber or dispose of it, etc.; that one Erastus Dean is now in possession of the south half of the south-west quarter of said section 36, and claims to be the owner in fee, and that he derived title from one George M. Hadden, and that said Hadden claims to have acquired the title to the same through a pretended purchase, etc., made by said Robert F. and Elizabeth Long, but they deny that said Hadden ever had any valid deed, that it is void, etc.; that Hadden knew that the title was a trust title, in said Robert F. and Robert W. Long, exclusively to and for the benefit of the said Elizabeth and her children, and that he could not get a good title, etc.; that the deed was made to said Hadden in payment of money loaned by him to said Robert Furniss Long at usurious rates of interest, and which had been used by him in his individual character, and not in his character as trustee, etc., and that the whole transaction was a fraud and a violation of the trust, etc.; that Hadden went into possession of the said land in the year 1855, and he and his grantees have had possession ever since, and have had all the rents, etc., and that they refuse to recognize the claims of the complainants, etc.; that said Dean knew all about the rights and claims of complainants when he bought it, and took his chances; that it is worth $50 per acre, and that the rents have been worth $250 per year, and that they ought to have these rents, and that Hadden and Dean should be made to account, and that they are ready to pay back all the taxes. The bill prays for answer, but not under oath, and that the title in Dean be set aside and declared to be in the complainants, and that an accounting be had of the rents and profits and taxes, etc.</p> <p>Hadden and Dean answered, jointly and severally, but not under oath, in substance, that Hadden, about the year 1853 or 1854, was induced to buy a note of the said Robert Furniss Long, which said Long claimed to own, against one Shackleton ; that Hadden would not buy it, but after repeated solicitations did buy it, on the condition that Long should get it changed so it would run at ten per cent; that he sent away and in a few days came back with the note changed to ten per cent; that Long said he had seen Shackleton, and it was all right, etc.; that Hadden soon learned that Shackleton had not authorized the change, and that Long had made 'it without the assent of said Skackleton; that Hadden then insisted that he secure him, which he did by a bond for a deed and a mortgage, and afterwards, to pay it, Long and wife gave Hadden a deed of the said land; that Hadden had no knowledge whatever of the trust now claimed, and did not know that anybody had any interest in it but the said Long and "wife, as said Long stated; claims that the land was in fact bought with the money of said Long, and that his son never paid anything towards it, and that if such patent was so issued, it was so done for some dishonest purpose; that said Long, always regarded and treated it as his own, and no one else ever exercised any control over it, and that he was, in fact, the owner; that at the time the said land was entered, several of the complainants were not bom; that the statement that the land at that time belonged to the said wife and children, is a cheat and a fraud; that said Bobert Whatkinson Long was a rascal, had no money, and had to run the country on account of some rascally work, and if the said patent issued as in said bill stated, it did not give-the said wife and children any interest, as it does not describe what is their interest, and also that it was done to cheat creditors, etc.; that said Hadden held the land for two or three-years, paid a large amount of taxes, and then sold and conveyed it to said Dean for a valuable consideration, and that said Dean never has received to this day any notice of any such claim; that he at once took possession, and built a house,. and has otherwise improved it to a large extent, to the amount of $5000 or thereabout, and has continued his said possession thence hitherto, and paid all the taxes, etc., to the amount of $2000 more, and he claims the benefit of the seven years’ limitation, etc.; that no taxes have been offered to said Hadden,, or to said Dean, as a tender for taxes paid, and they claim that even if the said wife and children ever had any interest in the land, they have long since lost it by laches; that all the children are of full age, and have been so for more than three years previous to the filing the said bill, (at least all of them that were in existence at the time of the entry of said land,) and that all the parties are estopped, etc.; deny all other allegations in the bill not otherwise answered.</p> <p>Replication was filed to the answer. The cause was continued, from time to time, until the 26th day of- June, A. B. 1882, when, by agreement of parties, the venue was changed to the circuit court of Kane county. Thereafter, on the 11th of Becember, A. B. 1882, the death of the defendant George M. Hadden was suggested. Subsequently, his heirs-at-law were made defendants, and duly summoned, and a guardian ad litem was appointed for the minor defendants, who filed the requisite answer. The cause was then again continued, from time to time, until the 19th day of Becember, A. B. 1884, when the death of the complainant Robert Furniss Long was suggested.</p> <p>The cause was heard at the April term, A. B. 1886, of the Kane circuit court, but the court took time for advisement, and, at the next following October term, decree was rendered. The decree finds that the United States, in 1853, conveyed, by patent, the land in said bill mentioned, to-wit, the south half of the south-west quarter of section 36, township 39 north, range 4, east of the third principal meridian, to Robert F. Long and Robert W. Long, as trustees, for the use of Elizabeth Long, wife of Robert F-. Long, and her children; that said grantees were naked trustees, having no duties to perform and no trusts to execute, and that the title to said land, immediately upon the issuing of said patent, became vested in said Elizabeth Long and her children, in like manner and to the same extent as if they had been named as grantees in said patent, and they, the said Elizabeth Long and her children, held said lands in fee simple, as tenants in common thereof; that June 13, 1855, the said Elizabeth Long, and Robert F. Long, her husband, joined in a deed of conveyance-of said lands, with full covenants of warranty, to George. M. Hadden, one of the original defendants herein, whereby the said Hadden succeeded to the interest of said Elizabeth Long, and became a tenant in common of said lands with the children of said Elizabeth Long; that January 9,1865, the said Hadden conveyed, by warranty deed, to the defendant Erastus Dean, the 'said land, and that said Dean entered into immediate possession of said land, and from thence hitherto continued in such possession; that said Dean, ever since the time of his purchasing and taking possession of said lands, as aforesaid, has in good faith paid all the taxes and assessments on said lands, without any notice of or information (until the commencement of this suit) that the children of said Elizabeth Long, or any other person than said Hadden, had, or claimed to have, any right, title or interest in or to said land; that said Hadden p>aid all the taxes and assessments on said land, from the time of his purchase thereof, in 1855, to the date of his conveyance of same to said Dean, in 1865; that at the time of the commencement of this suit, the said Henry C. Long was the only one of the children of the said Elizabeth Long who was under the age of twenty-four years, he then being in his twenty-second year; that at the time of the birth of said Henry C. Long, Elizabeth Long had four other children, thus making the share of each child in the ownership of said land one-sixth. It is therefore decreed, that by the conveyance of said Elizabeth Long and her husband to said George M. Hadden, one-sixth of the title to the said lands was vested in said Hadden, and the other five-sixths were vested in the five children of said Elizabeth Long, as tenants in common; that said Elizabeth, having conveyed her interest in said land to said Hadden, had no interest in said land at the commencement of this suit, and that all the other complainants, except the said Henry 0. Long, having failed to make any claim or to assert their rights to said land within three years next after their majorities, respectively, were, at the time of the commencement of this suit, barred of all right, claim, title or interest of, in and to said land, and at such time had no rightful claim, demand or interest to or in said land, the defendant Dean having, for more than seven successive years prior thereto, been in the actual possession thereof under claim and color of title made in good faith, and during all said time having paid all taxes and assessments levied on said land; and said Dean and said Hadden, under whom he claimed, having been in the actual, exclusive and adverse possession of said land for more than twenty years prior to the commencement of this suit, it is therefore adjudged and decreed that as to all of said complainants, except the said Henry C. Long, the bill be dismissed. The court further finds that the said Henry C. Long, at the date of said patent, was not then born, yet being the child of the said Elizabeth Long, though born subsequent to the date of the patent, and the patent not limiting the grant to the children then in esse, it included the said Henry C. Long. It is therefore adjudged and decreed that the said Henry' C. Long is the owner of, and entitled to recover, an undivided one-sixth part of said land in fee simple absolute.</p> <p>By agreement of parties no decree or order was made in respect to rents and profits, which are reserved for future consideration.</p> <p>The patent for the land reads as follows:1</p> <p>“Whereas, Robert Furniss Long and Robert Whatkinson Long, in trust for Elizabeth Long and her children, of Cook county, Rlinois, have deposited in the general land office of the United States a certificate of the register of the land office at Chicago, whereby it appears that full payment has been made by the said Robert Furniss Long and Robert Whatkinson Long, trustees as aforesaid, according to the provisions of an act of Congress on the 24th of April, 1820, entitled “An act making further provision for the sale of public lands,” for the south half of the south-east quarter, and the south half of the south-west quarter, of section 36, in township 39, of range 4, in the district of lands subject to sale at Chicago, Illinois, containing one hundred and sixty acres according to the official plat of the survey of said lands returned to the general land office by the Surveyor General, which said tract has been purchased by the said Bobert Furniss Long and Bobert Whatkinson Long, trustees as aforesaid.</p> <p>“Now, know ye that the United States of America, in consideration of the premises, and in conformity with the several acts of Congress in such cases made and provided, have given and granted, and by these presents do give and grant, unto the said Bobert Furniss Long and Bobert Whatkinson Long, trustees as aforesaid, and to their hens, the said tract above described, to have and to hold the same, together with all the rights, privileges, -immunities, appurtenances, of whatsoever nature thereunto belonging, unto the said Bobert Furniss Long and Bobert WTiatkinson Long, trustees as aforesaid, and to their heirs and assigns forever.”</p> <p>Then follow the .attestation, signature, etc., on the 1st day of August, A. D. 1853. It was filed for record in the recorder’s office of De Kalb county, on the 18th day of February, 1876.</p> <p>The following facts were stipulated by the parties to be true, and to be received as evidence in the case.</p> <p>First—The United States patent in both of said bills mentioned as a trust patent to the said Longs, was not recorded prior to the commencement of these suits in said De Kalb county.</p> <p>Second—The children of Elizabeth Long and Bobert F. Long, two of the complainants in said bills, at the time of the filing said bills in said causes, were aged, respectively, as follows: First, Mrs. Lucy Burton, thirty-five years, eleven months, seventeen days; second, Mrs. Eleanor Taylor, thirty-three years, one month, seventeen days; third, Alice E. Long, twenty-six years, seven months, nine days; fourth, Harry C. Long, twenty-one years, seven months, nine days; and fifth, Albert D. Long, twenty-four years, three months.</p> <p>Third—-George M. Hadden (defendant, now dead,) received the property mentioned in the bills of complaint in the above causes, by a warranty deed from said complainants Robert F. Long and Elizabeth Long, (patents were not on record,) which deed was recorded in said DeKalb county, June 15,1855, and that said Hadden went into possession immediately, and he and his grantees have been in possession of the same and paid taxes ever since that time.</p> <p>Fourth—That defendants O’Boyle, in one of said causes, and Dean, in the other, are the grantees of said Hadden, and have each been in undisturbed possession of their respective portions of said premises, and have paid the taxes thereon for more than seven years next prior to the commencement of these suits.</p> <p>Fifth—The defendants then offered and read in evidence the warranty deed of Bobert F. and Elizabeth Long to George M. Hadden, dated June 15,1855, and recorded in the recorder’s office of DeKalb county, Illinois, in book 14 of deeds, page 603. This deed is the old long form of warranty deed, with full covenants, conveying to Hadden the south half of the southeast quarter, and the south half of the south-west quarter, of section 36, town 39 north, range 4,—160 acres.</p> <p>Sixth—Defendants next offered and read in evidence a warranty deed from George M. Hadden and wife to Erastus Dean, dated January 9, 1865, and recorded in the recorder’s office of DeKalb county, Illinois, in book 32 of deeds, page 455. This deed is the old long form of warranty deed, with full covenants, conveying to Dean the south half of the south-west quarter of section 36, aforesaid,—80 acres.</p> <p>Seventh—Defendants next offered in evidence the affidavit of Erastus Dean, subscribed, sworn and filed June 25, 1886, which was allowed to be read and received in evidence, by agreement of parties, the same as if sworn in open court on trial, subject to all other legal objections that might exist to it as evidence. Said affidavit is entitled in this cáse, and is as follows: “Erastus Dean being first duly sworn, says that since the date of his deed offered in evidence herein, and prior to the commencement of this suit, he has occupied said land therein described, in good faith, without notice of claimant’s rights, and built a house worth $700, built stables and sheds worth $400 and over, dug a well at the cost of $75, put in two hundred rods of hedge fence, and otherwise fenced the above tract with several hundred rods of fence.”</p> <p>Certain depositions were also read in evidence, on behalf of complainants, which are sufficiently noticed in the opinion. Errors were assigned, presenting the questions discussed in the opinion.</p>

Appeal frooi the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph B. Gary, Judge, presiding. This was an action on the case, brought by Isaac W. Holland, against the Chicago and Eastern Illinois Bailroad Company, to recover damages for a personal-injury to the plaintiff, caused, as is alleged, by the negligence of the defendant’s servants.

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. William Broto, Judge, presiding.</p>

H. M. Shepard, Judge, presiding. In December, 1880, Thomas L. Iiempster purchased of William W. Marsh, of Sycamore, Illinois, an engine and boiler, at. the price of $800, $200 of which was to be paid on delivery, and for the balance he gave two notes, of $300 each, each to be secured by mortgage on real or personal property.

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. T. M. Shaw, Judge, presiding.</p>

Writ of Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.

<p>Appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, 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>

Charles Blanchard, Judge, presiding. In the year 1884, William Wilson, Osman J. Wilson and Samuel C. Wiley were partners in business, under the firm name and style of 0.

<p>1. Conflict of laws—volimtm-y assignment for benefit of creditors, made in another Slate—whether enforcible here. A voluntary assignment made in another State by a non-resident debtor, executed in conformity with our laws in respect to the conveyance of property, inconsistent, in substantial respects, with our statute relating to assignments, will not be enforced here to the detriment of our citizens; but for all other purposes, if the assignment be valid by the lex loci, it will be carried fully into effect. Rhawn v. Pearce, 110 Ill. 350, is not in conflict with this rule, as in that case the assignment was by operation of the law of another State, which could not pass property out of its limits.</p> <p>2. Non-resident owners are authorized by our laws to make conveyances of land situated in this State, if made pursuant to our law for the making of such conveyances. Therefore, a voluntary assignment of a non-resident debtor in form sufficient to convey real estate, will be held valid, unless made in contravention of some law or policy of this State.</p> <p>3. Same—preference among creditors—m a foreign volwntary assignment. The provision in our statute prohibiting all preferences in assignments by debtors, applies only to those made in this State, and not to those made in other States. The statute concerns only domestic assignments and domestic creditors.</p> <p>4. Non-resident debtors may execute voluntary assignments, with or without preferences, among foreign creditors, as they may see fit, so long as creditors in this State are not injuriously affected thereby.</p>

<p>1. Wills—probate and contesting of wills—time within which to exhibit a to contest. Section 2 of chapter 148 of the Revised Statutes, entitled provides for the ex parte proof of wills on the testimony of the attesting witnesses, which corresponds with the probate, in England, “in common form,” while the subsequent proceeding by bill in equity, under section 7, to contest the validity of the will, is analogous to the probate “in solemn form,” by the executor, upon being cited in by the next of kin. Both stages differ from the English probates in extending to the real as well as personal estate.</p> <p>2. The provision in the statute that if anv person interested shall, within ^lee yeal's after the probate of any will, by bill in chancery, contest the validity of the same, etc., is not a limitation law. The filing of the bill within three years is a jurisdictional fact, and is necessary to put the court in motion. The court has no power to entertain such a bill which has been filed after the three years have expired, except in the cases of disability named in the statute.</p>

<p>Writ of Error to the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.</p>

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

<p>Wbit of Ebbob to the Circuit Court of Livingston county; the Hon. N. J. Pillsbuby, Judge, presiding.</p>

<p>1. Costs—witness fees to be taxed—limiting member of witnesses—in proceedings under Eminent Domain act. The general Cost act applies to proceedings to condemn land under the Eminent Domain act, and under it the court may, after the conclusion of the evidence, limit the number of witnesses whose fees are to be taxed against any party, not less than two, as may appear to have been necessary.</p> <p>2. Same—time of application to limit number of witnesses whose fees may be taxed—and, hou> far discretionary. A motion to limit the number of witnesses called by a defendant, whose fees are to be taxed against the plaintiff, made before the defendant has examined his witnesses, is premature, and therefore properly overruled.</p> <p>3. There is no inhibition upon parties calling as many witnesses as they may desire; but every party must assume the risk of having taxed against him the fees of all such witnesses as the court may find were unnecessary, being not less than two. A motion to restrict a party to a certain number of witnesses whose fees may be taxed as costs, is addressed to the discretion of the trial court, and its decision is not subject to review, except where the discretion is abused.</p> <p>4. Eminent domain—measure of damiages—as to land taken. The fair market value of land proposed to be taken for public use under the Eminent Domain act, having proper regard to the location and advantages as to situation and the purposes for which it was designed and used, is the proper measure of compensation to be awarded.</p> <p>5. Where a part is taken, and that part has a greater value, in connection with the whole, than as a separate parcel, the measure of damages will be the fair cash value of the part taken, as a part of the whole.</p> <p>6. Same—measure of damages—as to part not taken. Where a cross-petition is filed for damages to land not sought to be taken, but a part of that sought to be condemned, the jury should award to the owner such damages, in cash, as his lands not taken will sustain, if any, by reason of the construction of the proposed railroad, and its continued use and operation, through his farm. In such case it is proper for the jury to give damages for all actual and appreciable injuries resulting from the construction and operation of the proposed railroad.</p> <p>7. If the lands not taken will be depreciate-1 in value by the construction and operation of the proposed railroad, the measure of damages will be the difference in their market value before the construction of the road- and after its construction. In determining this, the jury may consider the injury to the land arising from inconveniences actually brought about by the construction of the proposed railroad, or incidentally produced by dividing the land as to water, pastures and improvements, although such injiu-y may not be susceptible of definite ascertainment, and also for such incidental injury as would result from the perpetual use of the track for moving trains, or from danger of killing stock, or injury to pasturing stock, or escape of fire, and generally for such damages as are reasonably pi obable to. ensue from the construction and operation of the proposed road.</p> <p>8. The physical condition of land over which a right of way is sought to be condemned for a railroad, whether affected by another railroad, a watercourse, or other natural or artificial object, must be considered in the proceeding,—not in respect to the damage or depreciation caused by such other railroad, water-course, etc., but for the purpose of determining the damages ■occasioned to the owner by the proposed improvement.</p> <p>9. Same—proximate and remote damages. While it is true that only real, tangible and proximate damages are recoverable, yet it is all such damages as are reasonably probable, as distinguished from possible, speculative or remote damages, that form the proper basis of recovery.</p> <p>10. Same—of am instruction—whether permitting remote or speculative damages. An instruction that the land owner is entitled to just compensation for the land taken, and for all “reasonable and probable damage” to the balance of his land not taken, caused by taking the strip condemned for the uses and purposes of the proposed railroad, is not obnoxious to the objection that it opens the door to let in remote, conjectural and speculative damages.</p> <p>11. Bniii op exceptions—when necessary. Affidavits filed in a cause do not become a part of the record sent up on appeal or error, unless made so by being incorporated into a bill of exceptions.</p>

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

John P. Hand, Judge, presiding. The commissioners of the North Edwards Special Drainage District of Henry county, made an assessment upon the land of Bichard Mascall, for drainage purposes. Mascall appealed ' to the county court, and in that court demanded a jury, which was refused. The case was tried by the court without a jury, and at a probate term.

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

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

<p>1. Former adjudication—in the Supreme Court—what may be considered on a second appeal. Where a question either of law or fact has been decided, by this court in a ease properly before it, the same question can not be again raised in that case except upon petition for rehearing; and when a decree has been reversed, and remanded to the trial court with directions as to the decree to be entered, on a subsequent appeal errors can not be assigned for any cause that existed prior to the former decision in this court.</p> <p>2. Practice—after reversal and remandment—what proceedings allowable in the trial court. This court reversed a decree on bill to foreclose a lien on lands for taxes, and remanded the cause with directions to the circuit court to ascertain the amount of taxes due on each tract of the land, and enter a decree in conformity to the opinion pronounced: Held, that the circuit court, on the return of the case, had no authority to enter upon a general investigation of all matters and things which the defendants might desire to present, and that the court had but one duty to perform, which was to ascertain the amount due on each tract, and enter a decree in conformity to such finding. The validity of the assessments upon which the taxes were levied, and the legality of some of the taxes which were before the court on the former hearing, could not be again questioned.</p> <p>3. Allegations and proofs—on bill to foreclose lien for taxes. A bill to foreclose a lien on land for taxes, alleged that the lands were forfeited to the State for the taxes for the years 1878 and 1879, giving a statement for each year, and then averred that “the full amount now due Upon said lands and lots, as shown upon the collector’s books of the year 1880, for taxes, penalties, interest and costs, including said forfeitures for the years 1878 and 1879, and accrued taxes for 1880, is the sum of §3687.40,” and that the amount which was a lien upon each tract and lot separately, is shown by said books, and said copy attached, opposite to each tract and lot, separately and respectively: Held, that such averment was sufficient to admit proof of the amount of taxes due and unpaid for the years 1875,1876 and 1877, the collector’s books (a copy of which was made an exhibit) being prima facie evidence of the amount of the taxes, and they being properly included in the taxes of 1880.</p> <p>4. Evidence—computation by county clerk of taxes due as shown by collector’s books. On bill to foreclose a lien on lands for taxes of several years, the county clerk testified that he had, at the request of the State’s attorney, examined the collector’s books, and made a computation of the taxes due and unpaid, as shown by such books, and had prepared a paper showing the balance unpaid, which he, on request, attached to his deposition as a part thereof: Held, that there was no valid objection to the evidence, it being a tabulated statement from the books. If there was any error or mistake in the statement of the clerk, it might he shown on cross-examination.</p> <p>5. Ebbob will hot always bevebse—refusal of change of venue— ground of application obviated. The error, if any, in overruling a motion for a change of venue on account of the prejudice of the judge of the court, is rendered harmless by the case being tried by another judge of the same court. An error working no harm is no ground of reversal.</p>

<p>1. Impbisonment fob debt—constitutional exemption—limited to contracts. The constitutional provision prohibiting imprisonment for debt, applies to actions on contracts, express or implied. As to the debts thereby intended, there must be the relation of debtor and creditor. The prohibition does not extend to actions for torts, nor to fines or penalties arising from a violation of the penal laws of the State.</p> <p>2. Section 14 of division 14, chapter 38, relating to crimes, etc., which authorizes a commitment to the county jail for the payment of a fine and costs, is not in contravention of the constitutional provision prohibiting imprisonment for debt. The costs in a criminal prosecution is not a debt, within the meaning of such provision.</p> <p>3. Jubisdiction — assault—circuit courts and justices of the peace— prosecution by indictment. Circuit courts have original jurisdiction in all cases of misdemeanors, which includes assaults, and all offences cognizable in such courts may be prosecuted by indictment.</p> <p>4. The fact that the statute gives to justices of the peace jurisdiction in cases of assault, does not give them exclusive jurisdiction thereof. They can not be vested with exclusive jurisdiction under the present constitution.</p> <p>5. Gbiminal law—conviction of a less offence than charged. Where a person is put upon trial for a crime which includes an offence of an inferior degree, the jury may acquit of the higher offence and convict of the lesser, although there may be no count in the indictment specifically charging the lesser offence. So when one is indicted for an assault with a deadly weapon, with intent to inflict a bodily injury, etc., he may be convicted of a simple assault.</p> <p>6. Costs—in criminal cases—where there are several defendants. Each of several defendants convicted of a criminal offence is liable for the costs made by the People in procuring his own conviction, and when two are convicted on a joint charge, they are severally liable for all the costs made by the prosecution in procuring their several convictions.</p> <p>7. So where three persons are tried together, and one is acquitted and two convicted of an assault, and fined, and ordered to stand committed to jail until the fines and costs are paid, those so convicted will be required to pay only the costs of their own conviction, and not the costs of the one acquitted.</p>

L. C. Collins, Judge, presiding. • This was an action of debt, brought by the appellee, N. B. Boyden, coroner of Cook county, who sues for the use of Seth F. Hanchett, sheriff of Cook county, James H. Burke, John L. Barnum, Ralph Arthur, and Robert K Jenkins, assignee of the estate of Josiah R. Butler, against E. W. Blatchford, Caleb F. Gates and Nathaniel H. Blatchford, upon a replevin bond.