Volume 123 — Illinois Reports

Josiah MoEoberts, Judge, presiding. This suit was brought by Nathaniel J. Pillsbury, in the iivingston county circuit court, against the Chicago and Alton Eailroad Company, to recover for personal injuries alleged to have been received in consequence of the negligent or wrongful ■conduct of defendant.

Kirk Hawes, Judge, presiding. This case was before us at our January term, A. D. 1884, and we then reversed the judgments of the lower courts, and remanded the cause for a new trial. The report of the case, as then published, gives a sufficiently full statement of the cause of action and the questions in controversy.

<p>1. Attachment—fraud that will authorise am, attachment—obtaining money from, one who had resigned a guardianship on the pretense of having qualified as his successor. A, on the settlement of his account and his resignation as guardian, and the naming of B as his successor, promised, the latter to pay over the fund in his hands when B should give bond and qualify. Shortly afterward B went to A and told him that he had filed his bond and qualified, and, at the same time, presented a paper oh which was written B’s appointment, signed by the county judge, and a receipt running to “A, former guardian of,” etc., for $1941, belonging to A’s wards, and signed by B as “succeeding guardian,” on the faith of which A paid him the sum named in the receipt. The representation of B that he had qualified, proved false, and A was compelled to pay the amount found in his hands, to the rightful guardian: Held, that the receipt given by B to A, taken in connection with the order of the court, and considered iu the light of the circumstances, was such a statement in writing as constituted a fraud, within the meaning of the ninth clause of section 1 of the Attachment act, and authorized an attachment against the property of B.</p> <p>2. Insolvent Debtob’s act—priority of right as between an attaching creditor amd am assignee of the debtor. A writ of attachment was levied on real estate on November 6, 1885, at twenty minutes after ten o’clock A. M., and a deed of assignment for the benefit of creditors, made by the attachment debtor, was filed in the county clerk’s office some three hours later, but not in the recorder’s office until May 4, 1886. There was no proof that the attaching creditor, at the time of the levy, had any notice of the assignment, and the assignee had not then taken possession: Held, that the attachment took precedence over the deed of assignment, and that the assignee took the real estate subject to the lien of the attachment.</p> <p>3. An assignee to whom property is transferred by a debtor for the payment of his debts, takes it subject to all liens to which it is then liable.</p> <p>4. Same—waiver of attachment lien, by proving claim wader the assignment. A creditor of an insolvent debtor who has made a voluntary assignment for the benefit of creditors, by proving his debt against the estate, will not waive or lose his lien on the assigned property acquired by the levy of an attachment before notice of the assignment.</p>

Oliver A. Harker, Judge, presiding. On the 13th of October, 1880, William J. Slee filed his bill in chancery in the circuit court of Cook county,… Held: in case he be found entitled to. redeem, that he must take said condemnation money as the full value of said entire property, and that he is entitled to that alone, and that your orator had the right to take posession of said entire property, and that full compensation for the taking thereof has been made in payment of said…

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

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. George Gardner, Judge, presiding.

Thomas A. Moban, Judge, presiding. This was a bill filed by appellant to restrain the village of Des Plaines from prosecuting seven suits then pending, and to restrain others threatened, under the following ordinance: “Be it ordained by the president and hom'd of trustees of the village of Des Plaines: “Sec. 1. That all public picnics and open air dances within the limits of said village are hereby declared to be nuisances. “Sec. 2.

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

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

M. E. Tuley, Judge, presiding. This was a bill in equity, brought by Emanuel J. Buresh and John 0. Eenloch, residents, property owners and tax-payers of the village of Jefferson, in Cook county, on behalf of themselves and others similarly situated, to enjoin Amos J. Snell from obstructing Milwaukee and. California avenues by erecting a gate upon and at the intersection of California avenue.

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

Elliott Anthony, Judge, presiding. This was an action on the case, brought in the Superior Court of Cook county, by Nancy J. Brown, administratrix of the estate of Nelson Brown, deceased, against appellant, to recover damages for wrongfully causing the death of the intestate, who was the plaintiff’s husband. A demurrer was sustained to all except the eighth and ninth counts of the declaration.

<p>Appeal from the County Court of Knox county; the Hon. P. H. Saneobd, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Macoupin county; the Hon. "William E. Welch, Judge, presiding.</p>

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

Elliott Anthony, Judge, presiding. This is covenant, upon the following instrument; “This indenture, made this 18th day of February, in the year of our Lord, 1884, between John D. McLean and Jacob Retterer, of Chicago, Illinois, party of the first part, for themselves, their heirs, executors, administrators and assigns, and James H. Smith, of Quincy, Illinois, and Thomas W. Pattison, of Chicago, Hlinois, party of the second part, for themselves, their heirs, executors and…

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

<p>Writ op Error to the Circuit Court of Kankakee county; the Hon. Alfred Sample, 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. Loein C. Collins, Judge, presiding.</p> <p>The following petition for mandamus was filed in the circuit court of Cook county:</p> <p>Tour petitioner, the People of the State of Illinois, on the relation of John M. Cooper, respectfully shows unto your honor that relator is a resident of the city of Chicago, county of Cook and State of Hlinois, and is a citizen of said State, of lawful age.</p> <p>Delator further shows, that having selected the practice of dentistry and dental surgery as his profession and life work, in order to fit and prepare himself for said profession and work, he did, on or about the — day of November, A. D. 1884, enter and matriculate as a student in the Chicago College of Dental Surgery, an institution situated in the said city of Chicago, organized for the purpose of and engaged in educating persons who might become students therein in the theory and practice of dentistry and dental surgery; that relator remained as such student in said college, and diligently prosecuted his studies therein throughout the whole course of instruction, of not less than five months, given by said college during the years 1884 and 1885, and that during the summer and fall of 1885 he was engaged in receiving practical instruction in dentistry and dental surgery, up to the time of entering as a student the dental college hereinafter named.</p> <p>Eelator further shows, that on, to-wit, the 2d day of November, 1885, he entered the Northwestern College of Dental Surgery, and matriculated as a student therein; that said last named institution was then and is now an institution organized for the purpose of and engaged in educating persons who become students therein, in the theory and practice of dentistry and dental surgery, and was duly incorporated and organized under the laws of the State of Illinois, October, 1885, and is now, and has been since its organization, a reputable dental college, duly authorized by the laws of this State, in which there was, at the time of the issue of the diploma to relator, as hereinafter mentioned, annually delivered a full course of lectures and instruction in dental surgery, not less than five months in length.</p> <p>Eelator further shows, that he attended, regularly and faithfully, said last mentioned college, as a student therein, during the one full, regular course of instruction held and given in said last mentioned college during the years 1885 and 1886, which course was of not less than five months duration; that relator thus completed two regular, full five months courses of instruction in the practice of dentistry and dental surgery, one in each of said colleges, said courses being had in separate years, with practical instruction intervening between the two courses.</p> <p>Eelator further shows, that on certification and proof of the above facts the said Northwestern College of Dental Surgery graduated your petitioner in due form on the 3d day of April, 1886, and thereupon, to-wit, on the day and year last aforesaid, a diploma was issued to your petitioner by the faculty of said Northwestern College of Dental Surgery, duly certified by the signatures of the members of the faculty of said college, and the officers thereof, conferring upon petitioner the title and degree of Doctor of Dental Surgery.;</p> <p>Belator further shows, that the said Northwestern College of Dental Surgery has in all respects complied with the requirements of the laws of the State relating to and regulating the practice of dentistry in the State of Illinois, and has in all respects complied with the rules and regulations adopted and established by the State Board of Dental Examiners of the State of Illinois, and is in all respects a reputable dental college, and has been decided to be entitled to be recognized as reputable by the said State Board of Dental Examiners, by strictly complying with the standing rule of said State Board of Dental Examiners, which was adopted by said board in September, 1884, and has been since June, 1885, and still is, the rule of said board for the recognition of dental colleges as reputable, which rule is as follows:</p> <p>“Resolved, that after June, 1885, the Illinois State Board of Dental Examiners will recognize as reputable only such dental colleges as require, as a requisite for graduation, attendance upon two full, regular courses of lectures and practical instruction, which courses shall each be of not less than five months duration, and shall be held in separate years, with practical instruction intervening between the courses. Such colleges must also require a preliminary examination before admitting students to matriculation, provided that no certificate horn a high or normal school, or other literary institution, is presented by the candidate.”</p> <p>Belator avers that the said Northwestern College of Dental Surgery has, from its organization and during the time your relator was a student therein, strictly and entirely complied with all and each of the requirements of said rule, and was so ■complying with the same at the time the diploma was issued io relator, and that by virtue of said compliance, and by virtue •of the terms of said standing rule, the said college has been recognized by the said State Board of Dental Examiners as a reputable dental college, and was so recognized at the time •of the presentation to said board of the diploma of relator, as .hereinafter set forth, and still is so recognized.</p> <p>Delator further shows to the court, that desiring to engage in the practice of his profession of dentistry, he afterward, to-wit, on or about the 11th day of May, 1886, presented his said •diploma so received from the faculty of the said Northwestern •College of Dental Surgery, duly authorized, to the Illinois State Board of Dental Examiners, at a regular meeting of •said board held in the city of Dock Island, Illinois, on or about the 11th day of May, 1886, and tendered to said board a fee •of one dollar, as provided by law, and demanded that said board issue to him, the relator, a license to practice dentistry in the State of Illinois, as provided by law.</p> <p>Delator further shows to the court, that it was the duty of ■said Board of Dental Examiners, upon the presentation of said diploma and the tender of the fee of one dollar, as aforesaid, to said board by said relator, and the demand as aforesaid, to ascertain, if it was not already informed, whether the said Northwestern College of Dental Surgery had complied with the above mentioned rule of said board as to recognition, as being reputable, and finding that it had so complied, and was under said rule to be recognized by said board as reputable, as aforesaid, to issue to relator a license to practice dentistry in the said State of Illinois, but that said Board of Dental Examiners, not regarding their duty in this behalf, thereupon, to-wit, on the day and year last aforesaid, refused and neglected to issue to relator a license to practice dentistry in this State, .and have continually refused, and still do refuse, to issue to relator such license.</p> <p>Tour relator further shows, that after waiting for his license-for a reasonable time after making application therefor in the manner aforesaid, he afterward, to-wit, on the 25th day of May, 1886, wrote to George H. Cushing, secretary of the said Illinois State Board of Dental Examiners, and inquired why his license had not been issued, to which inquiry he received, reply, of which the following is a copy:</p> <p>“Illinois State Boabd of Dental Examinees,</p> <p>Chicago, May 26, 1886.</p> <p>“Dr. J. M. Coopeb :</p> <p>“Dear Sir—In reply to y’rs of 25th, I would say that the-matter of issuing a license on your diploma from the Northwestern College of Dental Examiners was referred to the National Association of Dental Examiners, which will meet in, August. Until them decision I can not issue any license.</p> <p>Besp y y rs, Geo. H. Cushing,</p> <p>Sect. IU. St. Bd. Den. Exs.</p> <p>“P. S. I return herewith the $1.—G. H. C.”</p> <p>Belator shows that the said Board of Dental Examiners not. only refused to issue to him the license to which he was entitled, and returned to him the dollar paid by him to said board for such license, as required by law, but voluntarily assumed to refer the application of relator to a so-called National Association of Dental Examiners for decision, as to whether relator could have license to practice dentistry in the State of' Illinois, which he has, by law, a right to, thus unlawfully,, willfully and designedly usurping powers not given said board by law, and neglecting, failing -and refusing to perform the-duty imposed by law upon said board, in reckless disregard, of the rights of relator, and of their obligations to the people-of the whole State.</p> <p>Belator further shows, that the said so-called National Association of Dental Examiners is, as your relator is informed, and believes, a mere voluntary association of men, who meet, in convention at Saratoga, in the State of New York, in August next; that it is composed mostly of men residing outside of the State of Illinois, and is clothed with no executive or legal power to decide upon the rights of relator, or anyone else, to a license to practice dentistry in the State of Illinois; that in pretending and assuming to refer the question to a voluntary and irresponsible body of men outside the State of Illinois, clothed with no legal power, said State Board of Dental Examiners refused to perform the functions of the office for which said board was created, and for which said board was constituted and appointed.</p> <p>Delator further shows, that after the above described action was taken by the board, he employed an attorney to bring suit for mandamus against said Board of Dental Examiners, to compel them to issue to your relator his license to practice dentistry in the State of Illinois, which he was entitled to by law, and that his attorney was preparing a petition for that purpose, when the State Board of Dental Examiners, by and through a written official communication signed by the secretary of said board, notified relator’s attorney that if he would wait before commencing a suit for mandamus a reasonable time, the said board would call a meeting as soon as practicable, and would issue to relator a license to practice dentistry in the State of Illinois, as aforesaid, and repeated said promise to issue said license as soon as they could have a meeting, both to relator and his attorney; and that relator’s attorney did wait, as requested by said board, for it to have a meeting and issue said license, as the board had promised and were required by law to do, and that said board held a meeting as promised, in the city of Chicago, in said State, on the 24th and 25th of June, A. D. 1886, and instead of issuing said license to relator, as promised, the said board refused to issue such license to relator, and falsely and fraudulently pretended then to find that said Northwestern College of Dental Surgery was not a reputable college.</p> <p>And relator avers, that said last mentioned action of the board was not taken as the deliberate judgment of the board, after due inquiry as to whether said dental college was reputable or not, and was not based upon proper evidence to that effect, but such action was taken arbitrarily, with the wicked and malicious design, solely, of depriving relator of the license and right to practice dentistry in the State of Illinois, on account of the malice of the members of said board toward the relator, because he had left the said Chicago College of Dental Surgery, after attendance there of one course, and had graduated at the said Northwestern College of Dental Surgery, and for the further wicked and malicious design of injuring the said Northwestern College of Dental Surgery, and preventing it from getting patronage, by arbitrarily and wickedly refusing to license its graduates, because of such malice and hatred of said Board of Dental Examiners, being hereinafter fully set forth.</p> <p>Belator further shows, that at the time of the refusal of said board to issue license to relator, the said board well knew that the said Northwestern College of Dental Surgery was a reputable dental college, duly organized under the laws of the State of Illinois, and well knew that said college had fully complied with the rule adopted by said board for the recognition of dental colleges as reputable by said board, and well knew that said board had already recognized said dental college as being reputable.</p> <p>Belator further shows, that the said State Board of Dental Examiners consists, by law, of five persons, and that the persons composing said board at the time of refusing to issue said license, and now, were and are as follows: G. Y. Black, A. W. Harlan, Homer Judd, C. A. Kitchen, and George H. Cushing, and that four of the five members of said board, to-wit, G. Y. Black, A. W. Harlan, George H. Cushing and C. A. Kitchen, are interested in and connected with the said Chicago College of Dental Surgery, either as members of the faculty of or instructors in the same; that the said Chicago College of Dental Surgery is an older dental college in the city of Chicago than the said Northwestern College of Dental Surgery, from which petitioner graduated and received his said diploma, the said last mentioned college having organized as such only in 1885; that the two colleges aforesaid are rivals and competitors for patronage of students, and reputation as institutions for teaching dentistry and dental surgery, and that the said State Board of Dental Examiners is entirely under the control of the said Chicago College of Dental Surgery, and four-fifths of said board belonging to -said Chicago college, the said board is determined, if possible, to cripple and destroy the said Northwestern college, and for that reason are willing to abuse, and in the acts above mentioned have shamefully abused, their power as such officers and members of such State board, to protect the college to which they belong from competition, and to destroy and cripple a rival.</p> <p>And relator charges the fact to be, that the said State Board of Dental Examiners, controlled by the said Chicago College of Dental Surgery, intend and design, by their action in refusing a license to relator, not only to prevent relator from practicing his profession, for which he has, at great expense of time and money, fitted himself, and which he is lawfully entitled to practice, but also to hinder, cripple and destroy the successful operation of the said Northwestern College of Dental Surgery, by unlawfully and maliciously witholding from its graduates license to practice dentistry in the State of Illinois, thus deliberately abusing the powers in them vested, and prostituting them to the malicious design and purpose, as relator verily believes, of destroying and crushing out an honorable rival, which, in all its appointments and requirements for dental education, is just as reputable and complete as is the Chicago College of Dental Surgery, which the said board is thus wrongfully endeavoring to protect,—all of which the said board and the members thereof well know.</p> <p>Relator therefore distinctly charges, that said State Board of Dental Examiners, in total and reckless disregard of the duties of their office, refuse to perform the duties which they are required by law to perform; that they have, so far as relator’s rights are concerned, endeavored to evade the performance of their duties by pretending to shift the performance of those duties upon a voluntary association outside the State, and that the said board has, in the actions aforesaid, deliberately, wantonly and recklessly and maliciously abused the power and discretion in it vested by law, and still continues so-to do, in flagrant and outrageous disregard of relator’s rights, and the rights Of the People of the State.</p> <p>Relator further shows, that he has, at great expense and in the manner aforesaid, qualified himself for the practice of said profession; that he has spent much time and money in such preparation, and desires to make it his life profession, and that he depends upon the same for a living, and that by the failure and refusal of said Board of Dental Examiners to so issue and grant relator a license to practice dentistry, as aforesaid, he, the relator, has been prevented from practicing dentistry in this State, as he is lawfully and by right entitled to do, and still is so prevented; that he is a citizen and resident of, and desires to remain in, the State, and follow the practice of dentistry, for which he has prepared himself.</p> <p>Relator further shows, that the questions here presented not only involve the individual rights of the relator, which are of grave importance to him, but the right of dental colleges other than the said Chicago College of Dental Surgery, to which four out of five of said board belong, to exist and be recognized as reputable, after complying with all the provisions of the law of the State and the rules established by the said State board, and also the right of the whole State to have the said State Board of Dental Examiners perform their duty and issue license to applicants who come within the law and the rules established' by said board, without arbitrarily, unlawfully and maliciously referring the rights of citizens to irresponsible, self-constituted associations outside of the State, and unknown to any of the provisions of our laws.</p> <p>Wherefore, being without other adequate legal remedy, relator makes the said Illinois State Board of Dental Examiners, and each member thereof, to-wit, G. Y. Black, A. W. Harlan, Homer Judd, 0. A. Kitchen and George H. Cushing, parties defendant to this petition, and prays for the People’s writ of mandamus, directed to said board and each member thereof, ■commanding them to forthwith receive from relator the fee of one dollar, which is hereby tendered as required by law, and upon proof of the diploma of relator being presented to the said board, to issue to relator a license, in the usual form, to practice dentistry and dental surgery in the State of Illinois.</p> <p>John M. Cooper.</p> <p>Subscribed and sworn to.</p> <p>A general demurrer was filed to this petition by the respondent. The circuit court overruled the demurrer and, respondent electing to stand by the demurrer, judgment was rendered in accordance with the prayer of the petition. The Appellate Court affirmed the judgment of the circuit court. The case is brought here by appeal from the Appellate Court.</p>

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

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

<p>Wbit of Ebbob to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Scott county; the Hon. Cybus Epler, Judge, presiding.</p> <p>By the will of Thomas Longwith his estate was devised to executors to be sold,—one-third of the estate to be loaned out and the interest paid to the widow, special legacies to grandchildren named, and the residue was bequeathed to “my four children, Francis, Huida, Julia and Lavina, share and share alike.” The bequest to Lavina, aforesaid, however, is made in trust, she to take only the interest during her natural life, and requests the circuit court to appoint a trustee “to takq charge of and manage the bequest made” to Lavina, “to loan out the fund” and “apply the annual income therefrom to the said Lavina’s support,” trustee to give bond, etc.; that on the widow’s death, the one-third of the estate till then on interest for her benefit, was bequeathed “equally, share and share alike, between and among my said four children, Francis, Huida, Julia and Lavina, or if said Lavina has departed this life, then among the other three, to-wit, Francis, Huida and Juliathat at the death of Lavina “the estate herein bequeathed to her shall be divided equally, share and share alike, among my three children, Francis, Huida and Julia.” The widow renounced the provision made for her in the will, and elected to take under the statute.</p> <p>Shortly after the death of the testator, his three children, Francis, Huida and Julia, exhibited their bill in the circuit court, against Julia Longwith, widow, and Lavina Longwith, and therewith a copy of the will. The bill alleged the renunciation of the widow, and that Lavina was a feeble-minded person, and prayed assignment of dower to the widow, and the appointment of a trustee to take charge of the portion provided for said Lavina in said will. Such proceedings were had under this bill as that dower was assigned to the widow, and Milton W. Eiggs was appointed “trustee of all the shares of said estate which have or may come to said Lavina under the provisions of said will,” under a bond of $4000, and with a direction to the trustee to report to the court, from time to time, his actings as such trustee.</p> <p>Lavina’s share of the estate coming to the hands of the trustee, was $2607.43; and during her lifetime, and covering a period of nearly seven years, the trustee expended in the support of Lavina, and for taxes and commissions, not only all the interest arising from the fund, but $392.93 of the principal.</p> <p>The final report of the trustee, presented to the court after the death of Lavina; showed in his hands $2214.50 undisposed of. But the report also showed that in the last sickness of Lavina an indebtedness of $103.50 had been incurred for medical attendance and medicines, and that Julia Longwith, a sister of Lavina, claimed a balance due her on account of Lavina, the amount of which was not stated, and that one year’s taxes had not been paid; and the trustee asked-that the several claimants come into court and prove up their claims, etc.</p> <p>Evidence was heard in respect of these claims. The bill alleged, and the evidence abundantly showed, that Lavina was a feeble-minded person. Some four years prior to her death, the sister Julia moved to Missouri, and with the consent of the trustee took Lavina with her, and from thence kept and took care of her until Lavina’s death. Her personal habits were such as are usually observed in idiotic and feeble-minded persons, and she was afflicted with a discharge from her ear, offensive to those in her presence, and rendering necessary a daily change in her bedding. Plaintiff in error, although living in the vicinity, and the sister Huida, neither gave to the care of their unfortunate sister personal attention nor material assistance, and the whole burden of her care and maintenance, save such as the trustee could afford, fell upon the sister Julia, and -for this she claimed $250 a year, for four years and nine months, and- also for the money expended by her for medical attendance and funeral expenses.</p> <p>In the final decree, the court approved the trustee’s report, with the consent of all the parties in interest, and found that Lavina Longwith was the beneficiary of the trust fund to the extent of the income thereof; that by the will, such fund, on the death of Lavina, should be equally divided between Francis, Huida and Julia, (and who were the only persons interested therein,) after the payment of such proper unpaid expenses as ought to be charged against it. The decree then allowed the physician’s bill of $65.50; allowed Julia Longwith, for doctor’s bill and funeral expenses paid by her, $98.65, and for the boarding, care and nursing of Lavina, at the rate of $250 a year, $1187.50, (less $400.98 paid her by the trustee,) equaling $786.50, making the total allowance to Julia $885.15; and after finding that Lavina left no estate out of which the claims could be paid, that she was feeble-minded, and unable to support or care for herself, and that the mother was not a proper person to have her care, and was without means to support her and pay her funeral expenses, decreed the payment of the claims allowed, out of the trust fund, and the distribution of what remained, equally between Francis, Huida and Julia. Francis Longwith appealed, and the Appellate Court .affirmed the decree of the circuit court, and the record is brought here by writ of error.</p> <p>The error assigned, which was considered by the court, questioned so much of the decree as ordered the trustee to pay Julia Longwith for the care and board of the cestui que trust from the principal of the fund in his hands.</p>

<p>This is an original proceeding, commenced in this court by Charles P. Swigert, Auditor of Public Accounts, to have the decision and order of the county board of Bock Island county, holding certain property of the city of Moline not exempt from taxation, confirmed by this court.</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>This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment of the Superior Court of Cook county, recovered by the appellees, against appellant, for damages for the non-performance of a certain contract in writing, dated July 28, 1880.</p> <p>In 1856, Abner Beeves purchased all that part of block 63, school section addition to Chicago, bounded on the north by Forquer street, on the east by Beach street, on the south by Taylor street, and on the west by an alley, ten feet wide, running north and south through the block, and one hundred feet-east of the east line of Canal street. The part thus purchased, included lots numbered from 26 to 46, both inclusive, in said block. Lots 32 to 40, both inclusive, comprised the whole frontage on Beach street, and extended west one hundred feet-to a second north and south alley, ten feet in width, running through said block. The whole premises, from the time of Beeve’s purchase, were occupied for coal and lumber yards, or coal yards alone, until the sale of the lots from 32 to 40, fronting on Beach street, to appellant, in 1880. During most of this time; the main track or tracks of the appellant were-located in Beach street, which were also used by the Chicago- and Alton Bailroad Company, and switches were in use leading from these tracks to said premises, at or near their south-east, corner^ and connecting with private tracks laid down upon the premises for the convenience of the occupants, on which switching was done, by both the ■ appellant and the Chicago- and Alton company, of the cars consigned to the occupants of said premises over their respective roads, free of charge. Prior to the year 1880, Mrs. Beño and Mrs. Little, two of the heirs of Abner Beeves, and two of the appellees, had acquired the title to the whole of these premises, and from about the year 1878 their husbands, under the firm name of B-eno & Little, had been in the occupancy of the north part of the premises as a coal yard, as tenants of their wives.</p> <p>On July 28, 1880, a written agreement was entered into, and signed by both parties, whereby Mrs. Reno, Mrs. Little, and their husbands, Charles A. Reno and Jacob H. Little, agreed to sell the entire frontage of the premises upon Beach street,—viz., lots 32 to 40, inclusive, of said block 63,—to the appellant, the Pittsburgh, Fort Wayne and Chicago Railway Company. The contract “witnesseth, that the party of the first part, in consideration of the money to be paid, and the covenants as hereinafter expressed, * * * hereby agree to sell,” etc. The contract contains the following: “And it is further so agreed between the parties hereto, that said second party shall, on taking possession of the premises so hereinbefore described, restore all the switch connections now existing between said second party and said first party, or any of them, and continue to them the use of the same, as heretofore.” It is for' the breach of this provision of the contract that this suit was brought.</p> <p>A deed of the lots numbered from 32 to 40 was made by the party of the first part to the contract, on or prior to November 23, 1880, at which date the following memorandum was signed by the parties to the contract, and indorsed thereon “It is agreed, this 23d day of November, 1880, that the parties of the first part to the above agreement have made, at the request of the party of the second part to said agreement, a deed of this date for said premises to James D. Layng,” and said agreement has been performed to that extent. In the year 1881, Layng sold the west seventy feet of these lots to the Chicago, Burlington and Quincy Railroad Company, and on the 19th day of August, 1881, that company destroyed the existing switch connections between appellant’s tracks and the premises of the appellees and laid down seven parallel north and south tracks on the seventy feet so conveyed to it. The Fort Wayne switch connections have never since been restored.</p> <p>A bill in chancery for a specific performance of this same covenant had before been brought by these appellees against this appellant, and the Chicago and Alton and the Chicago, Burlington and Quincy Bailroad Companies, and specific performance decreed by the lower court against the three companies. On appeal to this court, by the Chicago, Burlington and Quincy company, the decree was reversed, on the ground that, under the circumstances of the case, such a decree involved such disastrous consequences, both private and public, that, in the exercise of the sound discretion of the court, specific performance should not be granted, and the cause was remanded. (Chicago, Burlington and Quincy Railroad Co. v. Reno et al. 113 Ill. 39.) The lower court afterward ordered that the bill be dismissed, but without prejudice to any remedies or actions at law which the complainants might have concerning the matters mentioned in the bill.</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. Kirk Hawes, Judge, presiding.</p> <p>This is an action of debt, by Hannah Kinnare, administratrix of the estate of Frank Kinnare, deceased, against Rose Keegan, John Keegan and John M. Smyth, on the following bond, namely:</p> <p>“Know all men by these presents, That we, Rose Keegan and John Keegan, as principals, and John M. Smyth, as surety, all of the city of Chicago, in the county of Cook and State of Illinois, are held and firmly bound unto Frank Kinnare, also of the same county and State of Rlinois, in the penal sum of three thousand dollars, ($3000,) lawful money of the United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly, severally and firmly, by these presents.</p> <p>“Witness our hands and seals this twenty-third day of May,. A. D. 1884.</p> <p>“The condition of the above obligation is such, that whereas the said Frank Kinnare did, on the fourteenth (14) day of May, A. D. 1884, in the circuit court of Cook county, in the State aforesaid, and of the April term thereof, A. D. 1884, recover a judgment against the above bounden Rose Keegan and John Keegan, for the restitution of the possession of certain premises in said county and State, to-wit: Sub-lot number nine (9,) of lot four (4,) in block fifty (50,) in the school section addition to Chicago, besides costs of suit,—from which said judgment of the said circuit court of Cook county the said Bose Keegan and John Keegan have prayed for and obtained an appeal to the Appellate Court within and for the First District of said State.</p> <p>“Now, therefore, if the said Bose'Keegan and John Keegan shall duly prosecute their said appeal with effect, and, moreover, pay the amount of the judgment for costs rendered and to be rendered against, and pay all rent now due and that may become due before the final determination of the suit, and all damages and loss which the said plaintiff may sustain by reason of the withholding of the premises in controversy, and by reason of any injury done thereto "during such withholding, together with all costs, until the restitution of the possession thereof to the plaintiff, in case the said judgment shall be affirmed in said Appellate Court, then the above obligation to be void, otherwise to remain in full force and virtue.</p> <p>Bose A. Keegan, (Seal.)</p> <p>his</p> <p>John X Keegan, (Seal.)</p> <p>mark.</p> <p>John M. Smyth. (Seal.)”</p> <p>To which is added the approval of the court on the 23d day of May, A. D. 1884.</p> <p>It is alleged that at the March term of the Appellate Court, on the 28th day of April, A. D. 1885, the judgment of the circuit court appealed from was affirmed, and that said Frank Kinnare then recovered judgment against said Bose A. Keegan and John Keegan for the restitution of the possession of the premises described in the bond, besides costs of suit. And the breach of the bond alleged is the non-payment of costs and non-payment of rent and damages, and loss sustained by reason of the withholding of the premises in controversy, etc.</p> <p>Certain pleas were filed, upon which issue was j oined. Plaintiffs recovered judgment. Defendants appealed to the Appellate Court for the First District, and' that court affirmed the judgment.</p>

<p>1. Eminent domain—of the petition—its requisites, as showing the particular use intended. It is not necessary to state, in a petition for the condemnation of land for railroad purposes, the particular manner in which the land is to be used. To show that, the petitioner may give in evidence its plans and specifications, and the defendant may have them produced, on motion.</p> <p>2. Same—sufficiency of petition as to purpose of condemnation. A petition by a railway company for the condemnation of land, after stating that the company had located its line of road over certain tracts of land specifically described, averred “that a part of each of said lands is necessary to petitioner for its right of way, side-tracks, depot and depot grounds, freight yards, shops, and appurtenances for the construction and operation of its said line of railroad:” Held, that this averment was a sufficient statement of the purposes for which the property was sought to be taken.</p> <p>3. Same—defects in petition, how reached. If a petition for the condemnation of land is defective in stating the purpose of the taking, and the manner in which the land is to be used, the proper manner of taking advantage of the defect is by demurrer.</p> <p>4. Same—description of land taken—in the verdict and judgment. A petition for the condemnation of land by a railway company for a right of way, etc., described the land over which the right was sought, as “lot 1, of N. W. \ of sec. 34, containing one hundred and six acres.” The part to be taken was described as “a strip of land * * * two hundred feet wide, for a distance of eleven hundred and fifty-one feet across the tract fifthly above described, commencing at a point where the line of said railway, as now located and staked out, enters said tract, coming from the east and going toward the west, and one hundred feet in width across the balance of said tract, * * * said strips of land being fifty feet and one hundred feet in width on each side of the center line of said railway, as now surveyed, located and staked out across,” etc. The verdict and judgment describe the land taken as “the land taken for right of way across the one hundred and six acres, as described in the petition:” Held, that the description of the land taken was sufficiently certain by reference to the petition.</p> <p>5. Same—of the verdict, where there are several owners. Where separate tracts of land are alleged in the petition to belong to separate persons, respectively, the jury must find the compensation due each owner for the particular tract belonging to him. But when the petition avers that a particular tract is owned by several persons, they will be presumed to be tenants in common, in the absence of proof to the contrary; and in such case the verdict may find a gross amount to be paid to the defendants.</p> <p>6. Same —presumption in support of verdict. In the absence of a bill of exceptions showing the evidence before the jury, a verdict awarding a gross sum for compensation for the land taken, and damages to the part not taken, will not be held erroneous, on appeal or writ of error. It will be presumed the evidence justified such a finding.</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. E. S. Williamson,- Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Lawrence county; the Hon. William C. Jones, Judge, presiding.</p> <p>This is a petition claimed to be filed under section 117 of the Election law of this State, (chap. 46, Hurd’s Bev. Stat. of 1885, p. 542) for the alleged purpose of contesting an election in Lawrence county. The petitioners are more than five in number and style themselves “electors of the county of Lawrence.” The petition avers, that, on July 12,1886, the board of supervisors of Lawrence county passed and caused to be entered of record an order to build a new court house at a cost of $50,000, and to submit to the legal voters of said county, at the general election on November 2, 1886, a proposition to issue bonds of said county, drawing six per cent interest or a less rate, if possible, to the amount of $50,000, for the payment for the building of said court house, to become due in ten years; that, in pursuance of such order, John W. Calvert, clerk of the county court of Lawrence county, gave notice to the electors, that, on Tuesday, November 2, 1886, an election would be held in the several towns of the county for certain State and county officers, “and to vote for or against the proposition to issue county bonds in the sum of $50,000 for the purpose of erecting a new court house at Lawrenceville in said county of Lawrence;” that, at the election so held, the electors of the county voted upon the question so submitted; that, on the next day after the election, returns thereof were made to the county clerk from all the towns in the county “excepting the town of Petty, from which,” it is alleged, “no returns were made nor have any such returns yet been made in conformity to the statute,” etc.; that, by the returns of the election made to the county clerk, it appeared that 1380 votes had been cast for the proposition to issue county bonds to build the new court house, and that 1275 votes had been cast against it, showing a majority of 105 votes in favor of the proposition; that the canvassing board, consisting of John W. Calvert, county clerk, and John B. Began and B. H. Propes, justices of the peace of the county, entered upon the discharge of the duty of canvassing the returns of the votes, east at said election, and making abstracts thereof; that the board, in violation of its duty, canvassed and counted 17 votes, as cast for, and 307 votes, as cast against said proposition, in the town of Petty, “when in fact no return whatever had ever been made to the county clerk by the judges and clerks of election of the town of Petty;” that, by the wrongful act of the canvassing board, in counting the votes purporting to have been cast in the town of Petty and including the same in the abstract made and filed for preservation in the county clerk’s office, an apparent majority of 187 votes against said proposition was certified, “when, if only the returns made to said clerk had been counted, canvassed and included in said abstract, there would have been a majority of 105 votes in favor of said proposition;” that petitioners as electors of the county “desire to and do contest the election aforesaid upon the question so submitted to the people and upon no other question whatever,” and state the. following grounds or points, upon which they make such contest, to-wit:</p> <p>The board of canvassers canvassed and counted, and included in the abstract made, votes alleged to have been cast in the town of Petty, without having any returns made by the judges and clerks of election, and without any legal evidence that the votes so counted and canvassed had been cast.</p> <p>E any election was held in the town of Petty, the votes cast were not canvassed, and returns thereof enveloped and sealed in the room where said election was held, as provided by law.</p> <p>The clerks of said election did not set down in their poll-books the names of the persons voted for, and the question voted upon, written at full len'gth, the office for which said persons received votes, or the question voted upon, and the number of votes received, or cast, expressed in words at full length.</p> <p>No list of voters, certified according to law, was ever enveloped, or sealed, and by one of the judges delivered to the county clerk.</p> <p>No list of voters, and no tally sheet thereof was enveloped, sealed, and directed to the Secretary of State, and deposited in the post-office, as provided by law.</p> <p>No list of voters, and no tally sheet, with certificates thereon, as required by law, was enveloped, sealed, and delivered to the town clerk, as required by law.</p> <p>The judges did not, before any returns to the county clerk, Secretary of State and town clerk, were sealed up, compare the tally papers, footings and certificates, and see that they were correct duplicates, and certify to the correctness of the same.</p> <p>No returns of any election in Petty township, on the 2d day of November, 1886, have ever been made, or offered, to be made, by the judges and clerks of election in said town.</p> <p>The county clerk and justices of the peace counted and canvassed 324 votes more than were returned to them, and by so doing changed the result of said election, on the question of issuing bonds to build the court house, from an affirmative to a negative.</p> <p>The petitioners make the county of Lawrence defendant, and pray for process, and that the votes in the town of Petty, which were canvassed and counted by the canvassing board, may be excluded from the count of the votes of said election, and that the abstract of votes reported by the county canvassers, may be corrected accordingly, and that the vote of said county on the question of issuing bonds to build a new court house may be declared by the decree of the court upon the returns lawfully made to the county clerk, and for other and further relief, etc.</p> <p>The answer of the defendant admits that the board of supervisors passed and entered of record the order to build a new court house, and-to submit the question of issuing $50,000 of bonds to a vote of the electors at the general election in November, 1886; that notice was given as alleged; that, at the election, the electors voted on the question of issuing bonds, and that, on the day after the election, returns were made to the county clerk; but denies that no returns were made to the county clerk from the town of Petty, and charges the truth to be that returns were made from the town of Petty, on the next day after the election; denies that, by the returns, a majority of the legal votes cast were in favor of issuing the bonds, and charges that the returns made to the county clerk, showed a majority of 187 votes against the proposition to issue the bonds; admits that, the county clerk and John B. Began and B. H. Propes, two justices of the peace, constituted a canvassing board; that said board canvassed the returns and made an abstract, but denies that said canvassing board, in violation of their duty, canvassed and counted any votes, either for or against said proposition, from the town of Petty, which should not have been canvassed and counted, and an abstract thereof made by said board; denies that no returns were made from the town of Petty to the county clerk, by the judges and clerks of the election; but avers that returns were made by the said judges and clerks, which were canvassed and counted by said board, and abstracts of the same made; that upon a full and honest canvass of all votes cast at said election, by said convassing board, there was found to be a majority of 187 votes against the said proposition, and that it was so declared by said board, and an abstract was made by said board showing such majority to have been given against the said proposition; denies the existence and truth of all the specific grounds and facts, stated in the petition as reasons for throwing out and not counting the votes cast in the town of Petty for and against the said proposition, and charges the truth to be, that if any such facts exist they are but mere irregularities by which the election in that town can not be invalidated and the legal voters disfranchised; that, if there were any irregularities in the certificates "of the judges and clerks, an offer was made to correct and perfect such certificates before the returns from the town of Petty were canvassed and counted, and an abstract of the votes made; and that the said canvassing board proceeded to canvass and count the votes of the town of Petty without making any correction of such certificates; the defendant offers to perfect and complete the certificate of the judges and clerks of said election in the town of Petty, by procuring the said judges and clerks to sign said certificate in the presence of the court, if such certificate, on inspection by the court, should be found to lack the signature of such judges and clerks. Eeplication was filed to the answer.</p> <p>Upon the hearing, the petitioners introduced the following evidence: Poll-book of an election held in the town of Petty, on the 2d day of November, 1886, duly certified by the Secretary of State as a true copy of the one filed in his office, showing the names of the judges of election as follows: Assessor, Clinton Thorn, supervisor, David Smith, collector, D. W. Judy; also the names of the clerks, as follows: William H. High-field, T. J. Smith, J. E. Boseborough; oaths of the judges and clerks; a list of the electors voting at the election, showing that 329 votes were cast; a duly certified copy from the office of the Secretary of State of a tally list of an election held in the town of Petty, on Tuesday, the 2d day of November, 1886, showing the following: Por county bonds, 17 votes; against county bonds, 307 votes.</p> <p>B. H. Propes, sworn: “I was a member of the board that counted and canvassed the returns of the election held in Lawrence county, on Tuesday, the 2d day of November, 1886; John B. Began and John W. Calvert, county clerk, were the other members; there was a tally sheet and return of the names of voters from the town of Petty; they were not signed by any of the judges or clerks, and the number of votes given was not written in the blanks made for that purpose; on the question of issuing bonds, we counted 17 votes for and 307 votes against, from the town of Petty; we obtained the number from the tally sheet; we made an abstract of the votes cast in the county on the question of issuing _ bonds to build the new court house; the abstract included 17 votes for and 307 votes against the proposition, as having been cast in the town of Petty; including the votes from the town of Petty, the abstract showed 1375 votes for and 1582 votes against issuing the bonds.”</p> <p>The witness here identified the return and tally sheet of the town of Petty, produced from the office of the county clerk, and said: “They are the same that were before the canvassing board; the tally sheet is in the same condition as when returned, but the other is not; David Smith, the supervisor of the town of Petty, who made the returns, has signed it, and the blanks for the number of votes have been filled; these changes were made after the canvass; Smith signed his name on the same day, and Calvert filled the blanks with the number <of votes indicated on the tally sheet; there was nothing said about having the returns fixed; Smith did not propose to take the returns back to have them perfected; he made no offer of that kind.”</p> <p>The poll-book filed with the county clerk, returned from the town of Petty, showing the names of the judges and clerks the same as the one from the office of the Secretary of State, and the oaths administered, and a list of the names of electors, and showing that 329 votes were cast; certificate duly filled up and signed by David Smith, one of the judges, showing that 17 votes were cast for and 307 votes were cast against issuing the bonds; the tally list of the election held in the town of Petty, returned to the county clerk, being the same used by the canvassing board in canvassing and counting the returns and making the abstract, and showing the number of votes cast for the proposition to issue the bonds to be 17, and the number cast against the proposition to be 307; the abstract, made and signed by the canvassing board, on the question of issuing bonds to build the new court house, showing as follows: “For county bonds received 1375 votes; against county bonds received 1582 votes.”</p> <p>The petitioners here rested, and defendants declined to offer any evidence.</p> <p>The circuit court of Lawrence county, where the cause was tried, rendered a decree, finding the allegations of the petition, as above set forth, to be true, and decreeing that all the votes, counted by the canvassing board as having been cast in the town of Petty, “be and are excluded from said canvass and count and from the abstract thereof made by the said canvassing board;” that the papers filed in the county clerk’s office, purporting to be returns of an election in the town of Petty, “are absolutely null and void, and of no force or effect whatever;” that the number of votes cast and returned and counted in favor of the proposition to issue the bonds was. 1378, and that the number of votes cast, returned and counted against said proposition was 1275, and that “the said proposition was carried by a “majority of 105 votes at said election that defendant pay the costs, etc.</p>

<p>Writ of Error to the Circuit Court of Saline county; the Hon. C. S. Conger, Judge, presiding.</p>

<p>1. Municipal corporation—of the right to declare what are nuisances. The power given by law to incorporated cities and villages to declare what shall be a nuisance, does not authorize a village to declare that a nuisance which is not such in fact.</p> <p>2. Same—power to declare picnics and open air dances nuiscmces. Public picnics and open air dances are not, in their nature, nuisances, and can not be so declared by ordinance. The manner of conducting them may be productive of annoyance and injury to the public, and since the nuisance must consist in this, an ordinance should be directed thereto. The question whether they are so conducted as to become a nuisance, must be settled as one of fact, and not of law.</p>

Writ of Error to the County Court of DeWitt county; the Hon. George B. Graham, Judge, presiding. The county collector of DeWitt county applied to the county court for judgment against delinquent lands and lots, for taxes and special assessments levied and assessed in the year 1884.

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Franklin county; the Hon. 0. A. Habkeb, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Isaac Gr. 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. Kirk Hawes, Judge, presiding.</p>

<p>Wbit of Ebbob to the Circuit Court of Effingham, county; the Hon. W. C. Jones, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Saline county; the Hon. David J. Baker, Judge, presiding. This was a creditors’ bill, originally filed by Preston Bros, in the Saline circuit court, at the September term, 1884, against the plaintiffs in error. The other defendants in error, upon their petitions, were made complainants.

<p>Writ of Error to the Circuit Court of White county; the Hon. G. S. Conger, Judge, presiding.</p>

<p>Writ of Error to the County Court of Sangamon county; the Hon. James H. Matheny, Judge, presiding.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding:</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Cybus Epleb, Judge, presiding.</p>

<p>Wbit of Ebeob to the Circuit Court of Fayette county; the Hon. J. J. Phillips, Judge, presiding.</p>

<p>1. Non-resident defendants in chancery—affidavit of non-residence —statement of defendant's residence. An affidavit of the non-residence of a defendant stated that such defendant’s residence was, “20th St. Louis avenue, St. Louis, Missouri:” Held, sufficient as to the residence of the defendant.</p> <p>2. Same—publication of notice—clerk's certificate as to mailing copy to non-resident. The printer’s certificate of the publication of notice to a non-resident defendant in chancery showed that the first publication was made July 25, 1884. The clerk, in his certificate, stated that he mailed a copy of the notice on July 19, 1884, and also that “within ten days of the first publication of the notice” he mailed the copy. The decree found that the copy of the notice was sent “within ten days after its first publication:” Held, that there was an evident mistake of the clerk in writing July 19, instead of July 29, and that the service was good.</p> <p>3. Notary rubric—whether seal to jwrat necessary—judicial notice. The circuit court will take judicial notice of the notaries public of the county in which it sits. Hence the jurat of a notary to affidavits made before him, to be used in his county, need not be authenticated by his notarial seal.</p> <p>4. The statute entitled “Notaries Public,” which requires them to provide themselves with seals with which to authenticate their official acts, relates only to such official acts as are in the contemplation of that act. That statute does not authorize notaries public to take affidavits and administer oaths. That power is given by another statute, which does not provide for any jurat, or mode of authenticating it.</p> <p>5. Pleading in chancery—allegation as to homestead. An allegation in a bill for partition that “A B is entitled to a homestead in said premises," is sufficient to authorize the court, on failure of any answer, to decree such person a homestead.</p> <p>6. Attorney’s fee m partition—as fixed by the master and approved by the court. A decree in partition was objected to, on the ground the court directed the master in chancery to pay the complainant’s solicitor a reasonable fee, without fixing the amount. The final report of sale fixed the solicitor’s fee at $15, and this report was approved by the court, and this was held to obviate the objection that the court itself did not determine what was a reasonable fee.</p>

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

Clair county; the Hon. Amos Watts, Judge, presiding. This is a hill for partition and assignment of dower and homestead filed in the circuit court of St. Clair county on July 25, 1880, by the appellee Jenks, as complainant, against the appellants, as defendants.

<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. Kirk Hawes, Judge, presiding.</p>

<p>1. Railboads—consoUdationofrailroads—of the right to consolidate— status of the new company and of the constituent companies. Under the act of February 28, 1854, railroad companies organized under the laws of this State, and whose lines of railway were so intersected as to constitute a continuous line within this State, might consolidate their property, stock, rights and franchises, and thereby constitute a new corporation, under a "new name, possessing the property, rights, powers and franchises of the constituent companies, as given by their charters; and thereupon the constituent companies, as independent legal entities, would cease to exist, and all their duties and obligations, whether to the public orto private persons, would be cast upon and must be assumed and discharged by the new consolidated company.</p> <p>2. Same—consolidation of railroads existing in different States—of the power—and of the relation to the respective States, of the new corporation and of the constituent companies. A corporation dejure as well as defacto may be created, with the consent and under the authority of two or more States, ‘by the voluntary consolidation of corporations created and existing by virtue of the laws of such States, respectively. On the consummation of such consolidation of railway companies in two or more States, authorized by the laws of the States creating them, a new corporation will be created, having in each State all the powers, rights and franchises that the constituent companies had in the same State, but not in one State the powers, etc., of the constituent company in the other State. The new corporation will stand in each State as the original corporation had previously stood in the same State.</p> <p>3. A consolidated railroad company formed by the consolidation of two or more companies of different States, having a capital stock which is a unit, and only one set of stockholders, who have an interest, as such, in all its property everywhere, and a single board of directors, will have its domicile in each State, and its stockholders, directors and officers may, in the absence of any statutory provision to the contrary, hold meetings and transact corporate business in either of the States, though in relation to either State the consolidated company will be a separate corporation, governed by the laws of that State as to its property therein, and subject to taxation in conformity with the laws of such State, and to all the police power of the State in respect to its property and franchise within such State.</p> <p>4. Upon the creation of the consolidated corporation, the constituent corporations of the different States do not necessarily cease to exist, although they lie dormant, and their property, rights, powers and franchises are possessed and exercised by the new consolidated corporation.</p> <p>5. - Same—residence and citizenship of directors to he in this State—to what corporations the requirement applies. The constitutional provision that “a majority of the directors of any railroad corporation now incorporated or hereafter to be incorporated by the laws of this State, shall be citizens and residents of this State, ” has no application to a railway corporation formed, prior to the adoption of the constitution, by the consolidation of a railway company in this State with one of another State, by the consent of each of such States. Such a corporation exists under the laws of the two States, and can not be said to be incorporated solely under the laws of either.</p> <p>6. Constitution—rule and ohjeci of construction. The object of con-' situation, as applied to a written constitution, is to give effect to the intent of the people in adopting it; and this intent is to be found in the instrument itself, from the words and phrases employed. The presumption is, that the language employed was intended to have its ordinary and usual meaning, and to be sufficiently perspicuous within itself to convey the intent.</p>

<p>Appeal from the County Court of Perry county;- the Hon. S. Gr. Pabks, Judge, presiding.</p>

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

<p>Appeal from the Appellate Court for the Second District;—■ heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. William Bbown, Judge, presiding.</p>

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

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

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

<p>Appeal from the Circuit Court of St. Clair county; the Hon. W. H. Snyder, Judge, presiding.</p>

Clair county; the Hon. Amos Watts, Judge, presiding. George Christian Mueller died March 27, 1870. By his will, dated March 14, 1870, his real estate was devised to his sons, George and Solomon Mueller. The will was admitted to probate,' but afterwards, at the January term, 1871, in- the circuit court of St. Clair county, this instrument was, on bill filed for that purpose, set aside, and declared not to be the will of said deceased. This decree was affirmed by this court.

<p>1. Negligence—railway trains approaching highway crossings—duty as i0 S^tny signals. Independently of the statute on the subject, it is the duty of those having charge of a train of cars to give notice of their approacb at all points of known or reasonably apprehended danger. This is almost always done by the ringing of a bell or sounding a whistle, and frequently by both. In exceptional cases, when the highest degree of care is deemed advisable, flagging, is resorted to. These duties are enjoined by ^he common law, independent of any statute.</p> <p>2. Same—of the rule when the crossing is not a public highway. An action against a railway company for an injury by a passing train at an intersection of an avenue used by the public, on the ground of a failure to give the usual warning by bell or whistle, is not a statutory action, although there may be references in the declaration to the statutory duty, and the company can not escape liability for the injury on the ground that the avenue is not a public highway, in the sense of that term as used in the statute, requiring such warning before crossing public highways.</p> <p>3. Same — of the higher degree of care required at dangerous place. Where an approaching engine is concealed from the view of persons with vehicles approaching a highway crossing at a place of much travel, the duty of the railway company to operate its train at a moderate rate of speed, and to give the usual signals of its approach by the ringing of a bell or sounding a whistle, or both, is more imperative than at a place of less danger.</p> <p>4. Same—evidence to show signals were not given by a train approaching a highway crossing. On the trial of an action against a railway company'to recover damages for a personal injury by a collision at a highway crossing, the court allowed several witnesses to testify that they were near the crossing at the time of the accident, and did not hear any bell or whistle, and that, in their o'pinion, if the bell had been rung or the whistle sounded they would have heard it: Held, that the evidence was properly admitted.</p> <p>5. Same—instruction—of its form—as to liability for negligence. In an action against a railway company, to recover for an injury received at a highway crossing by a passing train, an instruction was given for the plaintiff, the greater part of which was a mere statement of what the statute requires of such companies when crossing public highways. The other part simply told the jury, that if they found, from the evidence, that the place of the accident was at a public highway crossing, then it was the duty of the defendant to ring the bell or sound the whistle, as required by the statute: Held, that there was nothing objectionable either in the form or substance of the instruction.</p> <p>6. Same—instruction construed—as not being confined to the negligence charged. In' an action founded on certain acts of negligence, the court instructed the jury, that it was the duty of the defendant to use reasonable care and diligence to prevent injury to the plaintiff; and if they believed, from the evidence, that the defendant failed to perform such duty, by reason whereof the plaintiff, while exercising reasonable care on his part, received the injury complained of, then the defendant was liable: Held, that the instruction was not obnoxious to the objection that it authorized the jury to find the defendant guilty upon proof of any actionable negligence causing the injury, whether charged in the declaration or not.</p> <p>7. Bailboads—statutory penalty for not giving warning before crossing a highway. In a statutory action against a railway company, to recover the penalty for a failure to ring a bell or sound a whistle before reaching a public highway crossing, the question whether the avenue crossed is such a highway, might become a material one to a right of recovery.</p> <p>8. Pleadiks—of the declaration—in action at common law, and under a statute. In suing at common law, in any case where the provisions of a public statute are applicable, as a general rule it is not necessary to set them forth or refer to them, as the court will take judicial notice of them. There is an exception to this rule in cases where the remedy given by the statute is cumulative, and differs from that given by the common law. In such case, if the relief given by the statute is sought, the pleader must manifest that purpose or intent by apt words of reference to the statute.</p> <p>9. Same—u/rmecessary or improper reference to a statute—surplusage. Where an action lies at common law, and the declaration concludes against the statute, and the statute has been misreeited or incorrectly referred to, or there is no statute in fact in relation to the subject, those words of reference to the statute will be rejected as surplusage, and the action may be maintained as at common law.</p> <p>10. So in an action predicated upon the neglect of duty or negligence actionable at common law, reference in the declaration to the statute as imposing the duty, being entirely superfluous and uncalled for, may be' treated as surplusage.</p> <p>11. JUDICIAL notice — of public statute. The act requiring railway companies to ring a bell or sound a whistle before passing over a highway with a train, is a public statute, of which the courts will take judicial notice. The rule is different in respect to a private statute.</p> <p>12. Peactice—improper remarles of counsel in argument to the ju/ry. Complaint was made that the court erred in permitting plaintiff’s counsel, in an action against a railway company, in his opening statement and closing argument to refer to the number of trials there had been in the case and how they had resulted, and to state that the judgment on the first hearing in the Appellate Court had been reversed upon a mere technicality: Held, that if the matter complained of was improper, it was not of so serious a character as to justify a reversal of the judgment in favor of the plaintiff.</p>

<p>Appeal from the County Court of La Salle county; the Hon. Frank P. Snyder, Judge, presiding.</p>

heard in that court on writ of error to the circuit court of ¡Rich-land county; the Hon. William C. Jones, Judge, presiding.

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the City Court of East St. Louis; the Hon. B. H. Canby, 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. Eire Hawes, Judge, presiding.</p>

<p>1. Consideration—swrrender of claim to- land devised, as a consideration for an agreement by a beneflcia/ry to relingwish am interest in the fund. Where a residuary legatee, who in good faith claims the title to or an interest in land directed by the will of his father to be sold to make a provision for the payment to the testator’s widow of the yearly sum of §1000 from the interest on the proceeds, gives up his claim, and agrees to quitclaim to the purchaser all his interest in the premises, this will form a sufficient consideration for an agreement by the widow to relinquish, in his favor, her right to the interest upon a stipulated portion of the fund.</p> <p>2. Administration oe estates—trust fund created by will, to be hept intact. A testator directed his executor to sell land claimed by him, and that the proceeds should constitute a fund, the interest of which, to the extent of §1000, was to be paid to his widow during her life, and after her death was to go to his son for his use during his life, and at his death to his children. The son became the purchaser for the price of $15,150, for which he gave his notes to the executor. The son sold a part of the premises to the widow for $2180, for which she gave her notes to the executor, who credited that amount on the son’s notes. On bill by the widow, the court directed the cancellation and surrender of these notes to her, in payment of the debt due her from the executor: Held, that the notes of the widow were a part of the trust fund, and should have been held and kept intact by the executor, and that it was error to order them to be surrendered, and that the error was not cured by an order that when the amount of the notes should be collected of the executor, it should be re-invested in securities to be held as a part of the fund.</p> <p>3. Interest—rate, when not fixed by contract. Where interest, simply, is named in a contract, the rate of interest, where nothing appears to the ■contrary, will be six per cent, the rate fixed by the statute, where there is no contract as to rate.</p> <p>4. Purchaser—at executor’s sale—purchase by one owning a part interest. A sale of land by an executor, to a son of the testator, will not be set aside at his instance, merely for the reason that at the date of the sale he was the beneficial and real owner, when it appears, from a decree in partition, that he was the owner only of an undivided half thereof. Such a •decree, however erroneous, can not be disregarded in a collateral proceeding.</p> <p>5. Donatio mortis causa—delivery to a third person. A testator, while his will was being drawn, a few days before his death, handed a note held by him on his son, to the executor, who was writing the will, saying, ■“You give that note to James (the son) in case he does not contest the will,” and directed that if he did, to collect the same. The executor then handed the note to the widow, and told her to take care of it, who returned it to the place from which it was taken, but he afterward received it from</p> <p>■ the widow and gave it to the son, who did not contest the will: He Id. that there was a complete and valid donation of the note mortis causa. The ■delivery in such case may be to a third person, for'the donee.</p> <p>6: Practice in the Supreme Court—assigning error upon a decree against mother. A decree in chancery, in settling the rights of parties in -an estate, charged against the executor of the estate the amount of a certain promissory note which had been given to his testator in his lifetime by a son of the latter. The executor resisted the charge on the ground that the testator had made a gift of the note to the maker of it, the son, mortis causa. The charging of the note against the executor was a determination against such a gift. The beneficiary of the gift was a party to the suit, and was enough of a party in interest, as respects the subject matter of the gift, to entitle him to assign as error the rendering of the decree for the amount of this note against the executor, in favor of the estate.</p>

<p>Writ of Error to the Circuit Court of Jasper county; the Hon. William C. Jones, Judge, presiding.</p>

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

<p>Overflowing- lands of another—hy a mill-dam—prescriptive right, after twenty years. Where the owner of a mill, and his grantors, have maintained a dam of a given height across a stream for over twenty years, and have exercised the uninterrupted enjoyment of the privilege to overflow the lands of another situated above such dam, such mill owner will have acquired a prescriptive right to maintain his dam at such height and overflow the lands above, and the upper land owner can not enjoin him from rebuilding such dam to the same height when washed out by a freshet.</p>

<p>Appeal—reviewing facts—question of excessive damages. Whether the ■amount of damages found in an action for a tort is excessive, is a question ■of fact, not reviewable in this court on appeal from the Appellate Court. What is the rule for assessing the damages in any case is a question of law, but the amount of the damages, as depending upon the evidence, is a question of fact.</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. Wm. H. Snyder, Judge, presiding.</p>

<p>Appeal from the County Court of Coles county; the Hon. Charles Bennett, Judge, presiding.</p>

<p>Appeal from the County Court of Wayne county; the Hon. E. C. Kramer, Judge, presiding.</p>

<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. George W. Stipp, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Kankakee county; the Hon. Alfred Sample, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;—■ heard in that court on writ of error to the Circuit- Court of Jasper county; the Hon. W. C. Jones, Judge, presiding.</p> <p>This was a bill in chancery for the foreclosure of a mortgage given on October 23, 1874, to secure the payment of a promissory note of that date, payable one year after date, for $300. Several payments had been made upon the note, the last of date December 12, 1882. The bill was brought to the December term, 1886, of the circuit court. The defence set up the Statute of Limitations.</p>

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