Volume 124 — Illinois Reports

<p>This is an original proceeding instituted in this court. The facts of the ease appear in the opinion of the court.</p>

<p>1. Geiminal law—attempt to suborn a witness—elements of the offence —and herein, what constitutes perjury. In order to convict a person, under section 228 of the Criminal Code, of endeavoring to incite or procure another to commit perjury, it must be shown that the accused urged the witness to give false testimony, knowing that such witness, as well as himself, was aware of its falsity. It must appear that the witness "would have been guilty of perjury if he had given the proposed false testimony, which could not be unless he knew it to be false.</p> <p>2. To commit perjury, a person must willfully, corruptly and falsely swear or affirm to some material fact or matter. The false assertion made by the witness under oath, must be known to the witness to be false, and must be intended by him or her to mislead the court or jury.</p> <p>3. If a proposed witness believes what he is asked to testify to is true, and does not know of its alleged falsity, he will not be guilty of perjury if he swears to it; and in such case, the person soliciting the witness to so testify, can not be convicted, under section 228 of the Criminal Code, of endeavoring to procure such witness to commit perjury.</p>

Owen T. Beeves, Judge, presiding. The plaintiff filed the common counts in assumpsit. The ■defendant pleaded general issue, payment, Statute of Limitations and set-off.

<p>1. Ejectment—legal title as the basis of recovery. A plaintiff in ejectment, in order to recover, must show in himself a legal title. He can not maintain the action upon a mere equitable title.</p> <p>2. And when the plaintiff seeks to recover land, claiming a title in fee simple, he must show in himself a fee simple title at law, as contradistinguished from an equitable fee.</p> <p>3. Same—as to one holding the mere naked legal title. But one having a mere naked legal title to land in which he has no beneficial interest, and "in respect to which he has no duty to perform, can not maintain ejectment against the equitable owner, or any one having an equitable interest therein •with a present right of possession.</p> <p>4. Same—ejectment by a mortgagee—or his assignee. At the common law, by the execution of a mortgage upon land, the entire legal estate passed ■to the mortgagee, and unless it was expressly provided that the mortgagor should retain possession till default in payment, the mortgagee might maintain ejectment as well before as after default; and this is the view taken by the common law courts of England, and which has obtained, with certain limitations, in most of the States of the Union, including our own, in which the common law system prevails.</p> <p>5. But a mortgagee may not in all cases maintain ejectment. The mortgage title exists only for the benefit of the holder of the mortgage debt, and can only be asserted in furtherance of his interest. Therefore, if the mortgagee, for a valuable consideration, should assign the mortgage debt to a ■third party, and the latter, in default of payment, should take possession of the mortgaged premises, ejectment would not lie against him at the suit of the mortgagee, although the legal title is in him, for the reason it would not 'be in the interest of the holder of the debt.</p> <p>-6. The estate and interest of a mortgagee may be conveyed to the holder •of the debt secured thereby, or even to a third party, .by deed, with apt words of conveyance; and the fact that the instrument is in form an assignment, will make no difference. Such assignee, if the owner of the mortgage debt, may, no doubt, maintain ejectment in his own name for his own use, -and if not the holder of the debt, the action may be brought in his name, •for the use of the holder of the debt.</p> <p>7. A mortgagee holding a note secured by mortgage on land, in his lifetime pledged the note and mortgage to a third person as collateral security. After the death of the mortgagee, his administratrix and the pledgee, by a ■separate instrument in writing, sold and assigned the note and mortgage to a purchaser thereof: Held, that on the mortgagee’s death the legal title in the mortgaged premises vested in his heirs-at-law, and that the pledgee ¡and administratrix, by the assignment of the note and mortgage, could not pass the legal title so as to enable the assignee to maintain ejectment.</p> <p>8. Same—ejectment by a mortgagor—the mortgage as an outstanding •title. A mortgagor or his assignee is the legal owner of the mortgaged premises against all persons except the mortgagee or his assigns. So in ■ejectment by the mortgagor against a third person, the mortgage can not •be set up as an outstanding title to defeat a recovery.</p> <p>9. Mobtgages—relative nature of the title of mortgagor and mortgagee. Courts of equity, looking at the substance of the transaction rather than the form, and with a view of giving effect to the real intentions of the parties, treat a mortgage as a mere security for the payment of the debt, •and the mortgagor as the real beneficial owner of the land, subject to incumbrance of the mortgage, and the interest of the mortgagee simply as a. lien, rather than as an estate.</p> <p>10. The courts of law regard the title of a mortgagee in fee as in the-nature of a base or determinable fee. The term of its existence is measured by that of the mortgage debt. When the latter is paid or becomes, barred by the Statute of Limitations, the mortgage title is extinguished by operation of law.</p> <p>11. Assignment—of promissory note—-by separate instrument. A promissory note can not be assigned by a separate instrument, so as to pass the legal title.</p> <p>12. Same—as to note and mortgage. A transfer or assignment of a-note and mortgage securing it, by a separate written instrument, will make-the assignee the equitable owner of the note and mortgage, and give him. such an equitable interest respecting the mortgaged premises, as to entitle-him to have them sold in satisfaction of the note or debt.</p> <p>13. A mortgage can not be assigned, like negotiable paper, so as to pass-the legal title in the instrument, or clothe the assignee with the immunity of an innocent holder, except under certain circumstances; but the mortgagee, or any one succeeding to his title, may, by deed, in the form of am assignment, pass to the assignee the legal as well as the equitable interest, of the mortgagee.</p> <p>14. If a mortgagee conveys the mortgaged premises without assigning-the debt to the grantee, the latter will hold the legal title in trust for the-owner of the debt. But the mortgage interest, as distinct from the debt, has no appreciable or determinate value, and is really not a fit subject of assignment.</p> <p>15. Same—whether a seal is necessary. A mere written assignment of a note and a mortgage securing the same, though upon a separate paper, founded upon a valuable consideration, is just as available, for the purpose of passing to the assignee the equitable title to the mortgaged premises, as-an instrument under seal; but in order to pass the legal title to land, the-, instrument must be under seal.</p> <p>16. Same—evidence to show an assignment, so as to pass the legal title-A plaintiff in ejectment, who purchased a note secured by a mortgage, testified that the assignment of the note and mortgage to him was by the administratrix of the mortgagee and a pledgee of the note, but did not pretend; to state its contents, but characterized it as a full assignment of the note and mortgage and the land, which was regarded as but the conclusion of the witness: Held, that the proof of the assignment was not sufficient to-show a transfer of the legal title to the mortgaged premises. The term “assignment” does not, like the term “deed,” or “specialty,” signify an < instrument under seal, which is indispensable to the passing of the legal title to land.</p>

<p>Appeal from the County Court of McLean county; the Hon. C. D. Meyers, Judge, presiding.</p>

<p>Wbit of Ebbob to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Wabash county; the Hon. C. 0. Boggs, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;—. heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.</p> <p>This was an action of assumpsit, brought in the Adams circuit court, by appellants, against William L. Black, Samuel N. Black and Charles C. Connor, on a promissory note of $100 and a balance of over-draft in hank of $1038.02. The note was signed W. L. Black & Co., and the over-draft was in the name of the same firm, and to its debit. The declaration contains three counts and the consolidated money count. The first and second counts were upon the promissory note, and the third upon the same instrument, treated as a contract. The declaration charged that the said William L. and Samuel N. Black and Connor were partners, under the name and style of W. L. Black & Co., and as such made such note and overdraft, and were liable therefor. William L. Black was not served. Samuel N. Black and Connor each filed a separate plea in abatement, duly verified, denying their joint liability with each other, or with their co-defendant, W. L. Black. Replications were filed traversing these pleas, and a trial had on the issue thus presented, without the intervention of a jury, which resulted in finding the issues for the defendants, (appellees here,) and judgment thereon, and for cost against appellants. No propositions of law were presented to the lower ■court to be held or refused. On appeal to the Appellate Court for the Third District, the judgment was affirmed, and this further appeal is prosecuted by the plaintiffs below.</p>

<p>1. Pleading—of the declaration—in debt to recover tax on personal property. A count in a declaration in a suit to recover a personal property tax, in attempting to present a case for the assessment of the property to the defendant at a place other than that of his residence, on the ground that the defendant carried on his business there, as contemplated by section 13 of the Bevenue law, will be defective if it omit to show that such business was one of the kinds of business specified in that section.</p> <p>2. Taxation—action to recover personal judgment for taxes—in whose name to be brought. Under section 230 of the Bevenue law, the county board may bring an action of debt, in the name of the People, for the whole amount due on forfeited property, or it may sue, in its corporate name, for the county tax alone, leaving the other corporations to sue for the taxes due them. If the county sues, in the name of the People, for the recovery of any personal tax, a recovery may be had of the entire personal tax, and the county, on collection of the same, will be required to pay over to the several municipal corporations their respective shares.</p> <p>3. Same—personal property in hands of agent—at what place and in whose name to be assessed. Where the owner of cattle not attached to any farm, places them in the charge of an agent in a town other than that in which the owner resides, to look after them and feed them, they will properly be listed and assessed in the town where they are in the hands of the agent. The property, in such case, should he listed and assessed in the name of the agent, but the listing and assessing of the same in the owner's name will not invalidate the taxes levied thereon, and such owner will not he allowed to complain of such informality.</p> <p>4. Ebbob will not always be verse—■overruling demurrer to defective count. The error in overruling a demurrer to a defective count in a declaration, will be held immaterial, when the evidence makes no case under such count.</p>

<p>1. Contract—to procure homestead right—construed, as to character of right intended. One party to a written contract agreed to procure for the other “a good right to the north-east quarter of section 26, town 13, range 23, in Trego county, Kansas, as a homestead.” The proof showed that the parties had in view government lands, and that the right of homestead in contemplation was that secured by the United States laws to set--tiers: Held, that the covenant was only to procure for the covenantee the Tight to become an occupant of the tract as the claimant of a homestead, •and not to procure the title.</p> <p>2. Specific performance—refusal to perform, rendering an offer to perform by the other parly a useless act. A agreed in writing to convey to B twenty acres of land in this State, in consideration that the latter should procure for the former a good right to a certain quarter section of land in the State of Kansas, as a homestead, under the United States law. A wholly abandoned the contract and refused to perform it before the date at which B was required to or could have procured the homestead right: Held, ■on bill by B for a specific performance of the contract to convey the twenty acres, that no tender of the homestead right was necessary to the relief ■sought.</p> <p>3. And in such case, the fact that the homestead right was forever lost -through the non-compliance of A with the contract, and had ceased to exist, furnished no ground for the court to refuse to decree a specific performance ■of the contract by A.</p> <p>4. Practice—time to object—for va/ria/iice. An objection that there is .a variance between the allegations in a bill and the proofs, comes too late on appeal or writ of error. It should bo made in the trial court before the •case passes beyond its control.</p>

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

<p>1. Special assessment—ordinance for sewer—location of man-holes. An ordinance requiring the construction of a sewer in a certain street, provided that “said sewer shall be two feet inside diameter, and shall be constructed of the best brick and cement, in the best workmanlike manner, with necessary man-holes and inlets for surface drainage, ” etc.: Held, that the ordinance was sufficiently certain in specifying the location of the manholes.</p> <p>2. The word “necessary,” in such ordinance, should he taken as a restrictive term, as respects the location of the man-holes, going to show where they should be constructed,—that is; they were to be where it was necessary and proper they should be. The words “necessary man-holes” would enable a civil engineer to determine where the man-holes should be built.</p>

<p>Appeal from the County Court of McLean county; the Hon. C. D. Meyers, Judge, presiding.</p>

<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. Cybus Eplee, Judge, presiding.</p>

<p>FbaxjdttIiENT conveyance—voluntary conveyance to a child—retaining property apparently sufficient to pay debts. A voluntary conveyanee to a child by a debtor, is fraudulent as to pre-existing creditors of the donor even though the latter retains property apparently sufficient in value to satisfy all his indebtedness, when it results that the property retained is not in fact sufficient to discharge all his liabilities.</p> <p>2. Same—inadequate provision for payment of debts. Nor will the voluntary conveyance by a debtor be relieved of its fraudulent character as against creditors, merely from the fact that he has placed sufficient means in the hands of another for the payment of his debts, the fund so provided being misapplied to other purposes.</p> <p>3. SAME'—motives and intent of the. donor and Ms grantee, as giving character to the transaction. If a voluntary conveyance from a parent to a child results in hindering or delaying creditors, it will be fraudulent in law, notwithstanding the grantor’s motives may have been honest and upright, and he may have supposed he retained ample means to discharge all of his debts.</p> <p>4. On bill by a creditor to impeach a voluntary conveyance, the motives of the grantee do not determine the validity of the transfer. If, however, the conveyance is based upon a valuable consideration, then the intent of the grantee may become important.</p>

<p>1. Fobmeb beo overt—after- accruing damages—whether a further action may be brought—of continuing a miisance. Where a railway company, under authority of law, properly constructs a bridge over a watercourse, and suit is brought by the land owner for damages thereby caused to his property, and a judgment is recovered and paid, it will be regarded as in full for all future as well as past damages, and a bar to a second suit for subsequent damages arising from the same cause.</p> <p>2. But when the bridge is imperfectly and improperly built, so as to prevent the free passage of the water, and thereby damages the lands above, a judgment for the damages caused by the creation of a nuisance by means of such bridge, will not be a bar to any subsequent action for damages caused by its continuance in such bad condition. In such case, the party injured is not bound to assume that the imperfect structure will be a permanent one. He has a right to regard the nuisance as of a transient character, and instead of bringing one action for the whole injury to the value of his property, resulting from the original construction of the nuisance, he may sue for the amount of such injury as he suffers from its continuance.</p> <p>3. So a party injured thereby may maintain an action against another for the creation of a nuisance, and a subsequent action for its continuance. The continuance of that which was originally a nuisance, is regarded as a new nuisance, and although a recovery may be barred upon the original cause, an action on the case may be brought at any time before an entry is barred, to recover such damages as have accrued by reason of its continuance, within the statutory period.</p> <p>4. If, however, a land owner treats a defective structure as a railroad bridge across a stream of water, which causes his land to be overflowed and otherwise injured, as a permanent source of injury, and recovers the full amount of damages, both present and prospective, which his property sustains or may sustain by reason of such structure, he will be estopped from bringing a second action for subsequent damages.</p> <p>5. SAME—identifying prior cause of action with that of the subsequent suit. Where a judgment is shown by way of bar to a subsequent suit, whether by pleading or in evidence, it is competent for the plaintiff to reply that the prior suit did not relate to the same property or transaction in controversy in the action in which the judgment is set up in bar, and the question of identity thus raised is to be determined upon the evidence adduced.</p> <p>6. And in such case, if the face of the record does not show the full and true state of the controversy and the matters investigated in the prior suit, parol evidence is proper to supply what is not shown, but not to contradict the record.</p> <p>7. Appeal—in case of certificate of importance—what questions may be considered. Where a ease is taken by appeal from the Appellate Court to the Supreme Court on the certificate of importance, etc., this court will not be confined to the consideration of the particular question specified in the certificate, but may consider any arid all questions of law arising upon ■ the record.</p>

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

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

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

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

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

<p>1. Surface waters—dominant and servient heritage. The owner of a ■higher tract of land has the right to have the surface water falling or coming naturally upon his premises by rains or melting snow, pass off the same, Íthrough the natural drains, upon or over the lower or servient lands next idjoining, and the owner of the dominant heritage has, and ought to have, he right, by ditches and drains, to drain his own land into the natural and usual channels which nature has provided, even if the quantity of water in that way thrown upon the next adjoining lower lands be thereby increased.</p> <p>2. While the owner of lower lands shall receive all water that naturally flows from the next higher lands, the owner of the higher lands may not open or remove natural barriers, and let on such lower lands water that would not otherwise naturally flow in that direction.</p> <p>3. Chancery—exceptions to master’s report—how to be disposed of. A defendant in chancery can not assign for error the neglect of the court to dispose of the complainant’s exceptions to the master’s report. But a decree in favor of the complainant on the points covered by his exceptions to the master’s report, is in effect sustaining the exceptions, and the omission to make a formal order sustaining the same is not such error as to call for a reversal.</p> <p>4. Same—affirmative relief to defendant. Affirmative relief can not be granted to a defendant upon answer. That can only be granted on cross-bill.</p> <p>5. Same—decree—finding facts as to matters not in issue. It is improper for the court, in its decree, to find the facts in relation to a matter not made an issue by the pleadings.</p>

heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.

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

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. W. H. Snyder, Judge, presiding.

<p>Writ of Error to the Circuit Court of St. Clair county; the Hon. B. H. Canby, Judge of the City Court of East St. Louis, (by request of Hon. W. H. Snyder, circuit Judge,) presiding.</p>

<p>1. Besudting tbtjst—when it arises—degree of proof required. A conveyance to a party may be overcome by proof of a resulting trust, by evidence showing that another than the grantee in the deed furnished and paid the purchase money. But the evidence to establish a resulting trust must be very clear, and is always received with great caution.</p> <p>2. Evidence — declarations of party in his own favor. The title or interest of a party in land in the possession of another, claiming under a conveyance, can not be established or shown by the parol declarations of the former, made when such other person is not present. Such declarations may be used against the person making them, but not in his favor, or in favor of one claiming through him.</p> <p>3. Same—weight of declarations as evidence of title. On bill to establish a resulting trust in land in favor of another than the one holding the-legal title, the parol declarations of the latter are admissible as evidence, but such evidence ought to be received with great caution. It is subject to-much imperfection, and frequently is entitled to but little weight.</p>

Joseph E. Gary, Judge, presiding. This was an action of ejectment.

<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>

M. F. Tuley, Judge, presiding. This was a bill by Caroline Ogden Jones and Frances Ogden Jones, in the circuit court of Cook county, against Mahlon Ogden Jones, and others, including the devisees under the will of Caroline Ogden McCagg, the executor of the will, and the widow and children of William Ogden Jones, deceased, praying for a construction of the will, a substitution of trustees under the same, and for partition.

Lorin C. Collins, Judge, presiding. A paper purporting to be the last will and testament of John Noble, deceased, was presented to the probate court of Cook county, by Edward P. Savage and Otis K. A. Hutchinson, the •executors, for prohate, and an order was entered in that court admitting it to probate as the last will and testament of John Noble.

A. A. Smith, Judge, presiding. This was a hill filed by William H. Appleton and William W. Appleton, executors of the last will of James E. Cooley, deceased, in the circuit court of Rock Island county, against David B. Sears, Thomas J. Robinson, John H. Wilson, the Rock River Navigation and Water Power Company, the Rock Island Watch Company, and others. The bill was filed July 23, 1883.

Writ oe 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. Henry M. Shepard, Judge, presiding. One Samuel J. Walker having become largely indebted, ancl to many parties, was being pressed for payment of his debts, and sued for the collection thereof in different courts, both. Federal and State, in Cook county. Some of his creditors were-secured, but many were unsecured.

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

<p>This cause was before the court at a former term, when the judgment of the Appellate Court was affirmed. (Poyer v. Village of Des Plaines, 123 Ill. 111.) The appellant, Poyer, now moves the court to correct an alleged error in the rendering of that judgment and decision, and to reverse the judgment below, and remand the cause.</p>

<p>Writ of Error to the Appellate Court for the Third Dis-' trict;—heard in that court on writ of error to the Circuit Court of McDonough county; the Hon. Charles J. Scofield, Judge, presiding.</p>

George W. Stipp, Judge, presiding. This is a bill filed in the circuit court of Bureau county, by Myra A. Price and Lydia A. Cramb, against Henry C. Reed,. Eugene C. Bates, his conservator, the Rlinois Trust Company, William K. Reed and the Dime Savings Bank, seeking to have-fifty shares of the stock of the Dime Savings Bank declared subject to a lien for the payment of a certain note of Henry C. Reed, and a decree for the sale of such stock.

<p>1. Eminent domain—measure of damages—present value as the basis. In a proceeding to condemn land for a public use, the damages to be . awarded as compensation to the land owner must be based upon the fair cash value of the land at the time of the condemnation.</p> <p>2. Same—adaptation to particular use—as an element of damages. The compensation is to be estimated with reference to the uses for which the property is suitable in its then condition, having regard to its location, situation and quality, and to the business wants in that locality, or such as may reasonably be expected in the near future.</p> <p>3. If lots abutting upon a river are available for dock purposes, for which there is no present demand, their value when improved by the building of docks, the profits that might be derived therefrom, or the value of the lots at some future time, as, when business or the wants of the community may make profitable the building of docks or slips on the lots, is merely conjectural and remote, forming no proper element in estimating the damages to be paid.</p> <p>4. But if the fact that lots are located with a frontage on a river, at a place where they can, at some future time, when demanded, be made available as dock property, enhances their present market value in their then condition and state of improvement or want of improvement, that fact will be competent, and proper to be shown and considered by the jury in estimating the damages.</p> <p>5. In such case, it can make no difference that there may be no present demand for docks upon the lots. If, in consequence of their supposed adaptation to such use, they have an increased market value above what they otherwise would have, such value forms the proper basis of a recovery.</p> <p>6. Same—evidence—plan of proposed improvement of property by the owner. On the assessment of compensation and damages in a proceeding to condemn for a right of way a strip across lots abutting upon a river, the court allowed the lot owner'to introduce in evidence a plat of a proposed improvement, showing water fronts of proposed docks along the river. The court, in admitting the plat, and in an instruction, limited this evidence to the "question of what uses the lots might or might not be adapted to: Held, no error in its admission.</p> <p>7. Instructions—whether authorizing a belief outside of the evidence. An instruction in a condemnation proceeding, telling the jury that they are to assess the damages at such sum as in their judgment the defendants are entitled to under the evidence, is not open to the criticism that it authorizes the jury to make up a belief and judgment outside of the evidence.</p> <p>8. Same—whether assuming a fact. An instruction that if the jury believe the damages, in a condemnation proceeding, exceed the benefits, provided they believe there are benefits, they should assess the damages in excess of benefits at such sum as in their judgment the defendants are entitled to, under the evidence, is not open to the objection that it tells the jury positively that there are damages, but that the benefits are doubtful. The words, “under the evidence,” relate to and govern both antecedent propositions, damages as well as benefits.</p> <p>9. New trial—excessive damages. Where there is a great disparity in the evidence as to the value of the land sought for a right of way for a railroad, and as to damages to land not taken, this court will not feel justified in reversing the judgment on the verdict, unless it appears that the result reached by the jury is clearly unreasonable, and the damages awarded are grossly excessive, so as to evince that the verdict was the result of passion, or undue and improper motive or influence.</p>

<p>Writ of Error to the Circuit Court of Pike county; the Hon. Charles J. Scofield, Judge, presiding.</p>

<p>1. Surety—liability—strict construction. The undertaking of a surety is to be construed strictly, and can not be varied or enlarged by judicial ■construction.</p> <p>2. Replevin—of the judgment, as fixing the rights of the pan-ties— presumption, when no retwn is awarded. The right of the defendant in replevin to the possession and return of the property is determined by the judgment. When no return is awarded in a judgment for the defendant, it will be presumed that it was made to appear that the plaintiff had become •entitled to the possession of the property.</p> <p>3. Replevin bond—two-fold character of its conditions—breach. The conditions in a replevin bond to prosecute the suit to effect, and to make return of the property, are distinct ones, and the condition is broken and the bond forfeited by a failure in either; but evidence of a breach of the former condition can not be held sufficient proof of a breach of the latter.</p> <p>4. Same—measure of damages im suit on the bond, in case no return is muarded. Under a replevin bond conditioned that “the plaintiffs shall prosecute their suit to effect and without delay, and make return of the said property if return thereof shall be awarded,” there can be no recovery •of the value of the property replevied, without proof of a judgment awarding its return.</p> <p>5. Presumption—in support of the judgment below. In the absence of any showing to the contrary, it is always to be assumed that the judgment rendered by the court was the right one to be rendered in the case.</p>

<p>Appeal from the County Court of Coles county; the Hon. S. C. Hensley, Judge, presiding.</p>

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

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

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

<p>1. Mobtgage—of a deed absolute in form—whether a mortgage. By the statute, every deed conveying real estate, intended only as a security in the nature of a mortgage, though absolute on its face, is to be considered as a mortgage.</p> <p>2. Same—of evidence to show a deed absolute in form to be a mortgage only. A deed absolute in form may be shown by parol to be a mortgage, but in the absence of evidence to the contrary the law will presume such a. deed is what it purports to be,—an absolute conveyance. To show the deed is a mortgage, the evidence must be clear, satisfactory and convincing. The question is one of intention, to be ascertained from all the circumstances.</p> <p>3. In this case a father induced his daughter to convey to him her interest in land on an expressed consideration much less than its real value, advancing, at the time, the sum named as the consideration, to her husband by way of loan, and no time was mentioned for • repayment. The father, however, led the grantor to believe that there would be enough coming to her from his estate to cancel the indebtedness, and assured her that she would get the land back without being troubled as to paying back the loan: Meld, that the deed was to he treated as a mortgage, to secure the money advanced to the grantor’s husband.</p> <p>4. Evidencie—declarations m one’s own favor. On a bill by the grantor in a deed to have the conveyance declared a mortgage, and to redeem from the same, the declarations of the grantee, in his lifetime, in the absence of the grantor, to the effect that he had purchased the property, are incompetent evidence against the grantor.</p>

<p>1. Criminal law—threats—as justifying the taking of life. Threats of personal injuries, or even against the life of another, will not justify the latter in taking the life of the person who has made such threats, when he is doing nothing to put them into execution.</p> <p>2. Instructions—the whole series to he considered. This court may well omit to consider a great number of instructions in detail, when it can see, from the whole series read together, as they should be, that the jury have been fully and fairly advised as to the law applicable to the facts they are called to consider.</p> <p>3. Same—numerous instructions—not approved. The practice of asking a great many instructions upon every conceivable phase of the law is a pernicious one, as, if given, they will tend rather to confuse than to enlighten the jury.</p> <p>I. Hew trial—newly discovered evidence. A new trial will not be granted for the purpose of permitting the introduction of newly discovered evidence, which is merely cumulative.</p>

Lyman Laoey, Judge, presiding. This was an action of assumpsit, in the Cass circuit court, upon a promissory note, given by Elijah Watkins, and appellee, William Watkins, to appellants, (plaintiffs below,) for $1000, dated April 19, 1884, and, in effect, payable on demand, to appellants, bankers. Elijah Watkins was defaulted. William Watkins pleaded tender and payment, upon which issue was taken.

<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>

Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding.

<p>1. Pledge—what essential to pass title. Where stock is pledged for the payment of money borrowed, the pledgee or lender can only acquire title to the stock by its sale for non-payment, and the sale, in order to pass title, must be conducted in the mode required by law where personal property is pledged as security for a debt.</p> <p>2. Same—evidence to show a mere pledge. While a transfer of stock, absolute in form, may be shown by parol evidence to be really a pledge to secure a debt, yet when that kind of evidence is relied on it ought to be clear and convincing.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.</p>

<p>1. Parties—proceeding to enforce mechanic’s lien—subsequent mortgagee. After a mechanic’s lien had attached to lots, the owner executed a promissory note, payable to his own order, securing the same by deed of trust on the same property, and indorsed the note to a third person, to secure a loan. D was appointed trustee, and the deed provided that in case of his death or inability to act, E should be trustee in his stead, etc. The holder of the mechanic’s lien brought suit to enforce his lien, making the original owner and the trustee, D, parties, but not the holder of the note, and obtained a decree: Held, that the holder of the mortgage debt, as well as the trustee, was a necessary party, and not being made a party, was not bound by the decree.</p> <p>2. Same—where party in interest is unknown. The fact that the holder of the mortgage note was unknown, afforded no sufficient excuse for not making him a party. He should have been made a party by the description of “unknown owner” of the note.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Superior Court of Cook county; the Hon. J. P. Altg-eld, Judge, presiding.</p>

<p>1. Pbaotioe&emdash;directing what the verdict shall be. If there is evidence-tending to prove the cause of action alleged by the plaintiff, an instruction to find for the defendant is properly refused.</p> <p>2. Instbtjctions&emdash;long recital of facts. An instruction containing a. long recital of many facts which the evidence tends to prove, is faulty.</p> <p>3. Same&emdash;repeating. Where the instructions given for a party embody the same proposition, substantially, as others asked, there will be no error in refusing the latter.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.

<p>1. Banks and banking—trust funds on deposit—paying out on checks ■of depositor. Where a bank account is opened between a depositor, as trustee, generally,—-not as a permanent investment, but to be drawn against, —the contract of the bank is, that it will pay out the same on the checks of the depositor, and when such checks are drawn in proper form, the bank is bound to presume they are drawn in the proper discharge of the duty of the trustee, and to honor them accordingly.</p> <p>2. Same—bankruptcy funds on deposit—m what manner to be paid ■out—duty and liability of the bank. Under act of Congress and the rule of court, all sums of money received by assignees in bankruptcy, and by the clerk of the United States District Court, were required to be deposited with a certain bank to be named by the court, to be drawn out upon the •checks of the court. The funds so deposited were kept as a unit to the ■credit of the court, and were paid out on checks signed by the clerk and ■countersigned by the judge. The clerk failed to make deposit of all the funds received by him, and the bank paid checks drawn on it until it paid ■out all the funds deposited, but refused to pay other checks drawn, when suit was brought on a check so refused: Held, that the bank was not liable •to the holder of such check.</p> <p>3. The bank having properly kept the account of> deposits as a unit with ;and in the name of the district court, as required by the act of Congress •and rule 28 in bankruptcy, and the deposits having been properly withdrawn on checks drawn as required by the statute and the rule, for the benefit of the beneficiaries entitled to share in the common fund, it was .held, that as there was no misappropriation of such funds by the bank, it was not liable for any deficit in the amount due the beneficiaries, arising from the neglect of the clerk to deposit all the trust funds that came to his hands as an officer of the court.</p> <p>4. In such case, the bank was not bound to take any notice of any mem■oranda, either on the margin or in the body of any check drawn upon it. Such memoranda are to be regarded as having been made for the convenience •of the drawers. Nor was the bank bound to open a separate account as to -the several cases in which the deposits were made.</p>

<p>1. Eabtnebship—payment of individual debts out of pa/rtnership funds—recovery back by the other partners. Where an individual creditor of a partner knowingly receives payment of his claim out of the partnership funds, it is per se a misappropriation of the assets of the firm to that extent, and it may be recovered back for partnership purposes.</p> <p>2'. But when such payment is made with the consent, express or implied, of the other partners, the latter will have no right to recover the money back to satisfy any demand they may have against the firm.</p> <p>3. Sake—conditions to recovery back as to money so misapplied. Even in case money so misapplied in payment of individual debts may be recovered back in the names of the other partners, or in the name of the firm, for the use of firm creditors, a suit in equity can not be maintained for such purpose without showing-the insolvency of the firm, and that the money sought to be recovered is necessary for the payment of firm debts.</p> <p>4. And on bill by one partner to recover back payments made by the other of his individual debts from the partnership funds, it should be shown that such payments exceeded the sum the latter was entitled to draw from the firm on his own account.</p> <p>5. Same—of notice to the individual creditor—that he will be required to refund. If a partner misappropriates the firm assets by the payment of his individual debts, without the knowledge of the other partners, it is their duty, upon learning the fact, to notify the persons so paid of their intention to hold them liable, so as to enable them to take steps to secure themselves. A delay of nearly two years to take steps to collect such payments of the individual creditors so paid, is unreasonable.</p>

Writ op Error to the Appellate Court for the Second District ;—heard in that court on appeal from the County Court ■of Kankakee county; the Hon. Thomas S. Sawyer, Judge, presiding.

<p>1. Service of process'—recital in decree—presumption. A recital in a decretal order on a bill for dower, that it appeared “to the court that the defendants were each duly served with process more than ten days prior to the commencement of the May term, 1886, to which term said cause was made returnable,” etc., is prima facie evidence of the service of process. But this presumption may be rebutted by other portions of the record.</p> <p>2. Where a decree was taken at the return term, finding there was due service of process on all the defendants, but the sheriff's return on the summons showed a service on certain named defendants, and that two of the defendants were not found, and as to all the rest, being the minor defendants, there was no return: Held, that the sheriff’s return to the writ rebutted the presumption of service arising from the recital in the decree.</p> <p>3. In such case, it was urged that the court should presume the infant defendants resided in a different county, and were there served. . The summons issued to the sheriff of the county in which the suit was brought, contained the names of all the defendants, and this was held indicative that they all resided in that county, and hence there was no room for the presumption of service in another county.</p> <p>i. Same—appearance by guardian for Ms ward—only upon due service. Notwithstanding the change in the statute authorizing and making it the duty of a guardian to “appear for and represent his ward in all legal suits, ” the guardian has no power to enter the appearance of his ward in a suit against the latter, when he has not been served with process. The power to appear is confined to cases where the ward is in court, by the service of process upon him.</p>

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

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

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

<p>Appeal from the Circuit Court of Stephenson county; the "Hon. William Brown, Judge, presiding.</p>

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

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

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

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

<p>1. Botjndaby—as to land lying along a river or slough. The title of a riparian owner whose land is bounded by a navigable slough or arm of the Mississippi river, extends to the middle thread of the slough, and includes islands which are separated from the mainland, and which lie between the mainland and the center of the slough.</p> <p>2. Same—meandered line, whether a boundary line. A meandered line which is run along a water-course, merely for the purpose of ascertaining the quantity of land in the fraction lying upon a river or slough, is not a boundary line, when it appears only from the minutes of the survey, and does not appear upon the plats filed in the land office.</p> <p>3. Swamp land—embraced only such land as the United States owned. A conveyance under the swamp land acts can not pass title to any lands which had been conveyed by the United States previously to the passage of such acts.</p>

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

<p>1. Jurisdiction of Appellate Courts—constitutional law. Under the constitution, the Appellate Courts have only appellate jurisdiction, and it is not competent for the legislature to clothe them with any other kind of jurisdiction.</p> <p>2. Same—in case of mandamus. The Appellate Court has no jurisdiction of an original action by mandamus. So when that court has not acquired jurisdiction in a case, by appeal or writ of error, it will have no jurisdiction of a proceeding by mandamus to compel a judge of the trial court to sign a bill of exceptions.</p> <p>3. Where the Appellate Court has acquired jurisdiction of a suit by appeal or writ of error, it may, by the action of mandamus, compel the judge of the trial court to sign and seal a bill of exceptions on a proper showing. Such action in that case would be in aid of the appellate jurisdiction of that court.</p>

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

<p>1. Cbiminaii law—prosecution for rape—evidence■—of the complaint filed, as showing a different time. On the trial of one for rape; the prosecutrix testified that the rape was committed on the evening of May 19. The defendant offered in evidence the complaint of her brother, who was not a witness, made on May 28, alleging the offense to have been committed on that day, which, on objection, the court refused, to admit: Held, that the ruling of the court was proper.</p> <p>2. Same—statements as to the date of another transaction. On the same trial, for an alleged rape on May 19, the defendant offered to prove that on May 23 a brother of the prosecutrix proposed the name of the accused for leader of a band, of which they were members, which the court excluded: Held, that the evidence was not competent, except to impeach the testimony of the brother in case a proper foundation had been laid.</p> <p>3. Same—complaint by the prosecutrix to her family, of the alleged rape—of proof thereof. The fact that the prosecuting witness, immediately after the alleged rape, made complaint to her father, may be shown to sustain her testimony that she did make such complaint, but not as to the fact who committed the rape. It would be proper, in such case, to instruct the jury, that her telling her father of the assault was a circumstance tending to sustain the truth of her statement on the trial that such an assault was made.</p> <p>4. On a trial for rape, the court instructed the jury, that if they believed, from the evidence, that the prosecuting witness told her father of the assault alleged to have been made on her, at the earliest opportunity, then that was a corroborating circumstance, tending to sustain the truth of her statements: Held, that while the instruction was, strictly, too broad, in its use of the term “statements,” there was no substantial error in it, and that it was not open to the charge of singling out a part of the facts, and thereby giving them undue prominence.</p> <p>5. Same—instruction as to act being against the will. On such a trial, it is prope'r to instruct the jury that the question of the act being against the will of the prosecutrix is to be determined upon consideration of all the facts and circumstances proved on the trial. But if some of the circumstances, of but little force or weight, are named, as, the acquaintanceship of the parties, or their relative physical strength, this will not render the instruction erroneous.</p> <p>6. Instruction—on question of reasonable doubt. As what is a reasonable doubt is liable to be misconceived by a jury, an instruction telling them what it is, at some length, may be excused, when the several propositions are correct.</p> <p>7. Sew trial — newly discovered evidence. A new trial will not be granted on the ground of newly discovered evidence which is merely cumulative, and which is not decisive, or when there has been a want of proper diligence to procure the evidence on the trial.</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. Joseph E. Gary, Judge, presiding.</p>

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

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

Lyman Lacey, Judge, presiding. This case was before this court in 1879, and is reported in 91 Ill. 471. Since then it has been four times in the Appellate Court for the Third District,—7 Bradw. 227, 13 Bradw. 352, 21 Bradw. 43, and 26 App. Court Rep. 416,—and reference need only be made to the printed volumes for statements -of the case, as presented on these several occasions.

<p>1. Criminal law—enticing away an unmarried female for purpose of prostitution or concubinage—elements of the offense. Under section 1 of the Criminal Code, making it a crime to entice or take away an unmarried female of chaste life and conversation from her parents’ house, or wherever she may be found, for the purpose of prostitution or concubinage, or to aid or assist therein, the gravamen of the offense is the purpose or intent with which the eñticing or taking away is done.</p> <p>2. The offense, if committed at all, is complete the moment the subject of the crime is removed from the power and control of her parents, or of others having lawful charge of her, whether any illicit intercourse ever takes •place or not. Subsequent acts are only important as affording reliable evidence of the original purpose or intent of the accused.</p> <p>3. Same—concubinage—whether the relation exists. Where a single woman consents to unlawfully cohabit with a man generally, as though the marriage relation existed between them, without any limit as to the duration of such illicit intercourse, and actually commences cohabiting with him in pursuance of that understanding, she becomes his concubine,—or, in other words, hie “kept mistress.”</p> <p>4. No great length of time or long continued illicit intercourse is necessary to the establishment of the relation of concubinage. That relation, like marriage, may be contracted or assumed in a day as easily as in a year. Any remarks in Slocum v. The People, 90 Ill. 274, to the contrary, are not approved.</p> <p>5. Same—“prostitution”—“concubinage”—sense in which the words are used in the statute. The words “prostitution” and “concubinage” in section 1 of the Criminal Code, relating to the abduction of unmarried females for the purpose of prostitution or concubinage, were used by the legislature • in their general or popular signification.</p> <p>6. Same—determining the intent. As a general rule, the safest way of judging of one’s intention about a particular matter, is to look to his acts, rather than his professions respecting it, especially when they are found to be in conflict.</p> <p>7. Practice—time to object—obscure expressions in an instruction. Where the trial court, on its own motion, instructs the jury, if any explanation of terms used in the instruction is desired, the party should ask for it. In .the absence of any such request, a judgment will not be reversed because the court fails to define the meaning of the terms used in an instruction, and this more especially when the terms are not technical terms, but are words in common and general use.</p>

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

<p>1. Payment—effect of accepting the promissory note of a third person, or of the debtor himself. The fact that a creditor takes from his debtor the note of a third person, and enters the amount thereof as a credit upon his books, and includes the same in a subsequent statement of the account, does not afford a presumption of law that such note was received as an actual payment, and throw the burden of proof „upon the creditor to show the contrary by a preponderance of the evidence.</p> <p>2. The taking of a note, either of the debtor or of a third, person, for a pre-existing debt, is no payment, unless it be expressly agreed to take the note as payment and to run the risk of its being paid, or unless the creditor parts with the note, or is guilty of laches in not presenting it for payment in due time. And it seems that the giving of a receipt for the amount is not enough to establish such a positive agreement.</p> <p>3. Practice—improper remarles of counsel to jury. In a case where the question was raised whether a note on a corporation was given in payment on account, defendant’s counsel, against the plaintiff’s objection, was allowed to argue that a scheme had existed whereby one of the officers of the defendant had foisted the note upon the plaintiff, knowing the maker to be or about to become insolvent, so that the loss might fall upon the plaintiff, the latter asked an instruction that there was no evidence in such regard, and that the jury should disregard such remarks, which was refused: Held, that while the remarks may have been improper, and the court might well have interposed as requested, this court could not say that the refusal to do so was such error as to require a reversal.</p>

Writ of Error to the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding. This case arises under the petition of Joseph Euans for a writ of assistance to put him into the possession of a tract of land which he purchased at the master’s sale under a decree for the foreclosure of a mortgage given by John Arends, in his lifetime, and for which land he held the master’s deed, dated August 29, 1887. This petition was against Marie and Antoine Schneider.

Richabd Pbendebgast, Judge, presiding. This was an application by the tax collector of Cook county, for judgment against certain lots and lands for the taxes and special assessments due thereon. To this application the city of Chicago appeared, and filed objections as to the lands involved in this controversy. The court below sustained the objections, and refused to render judgment as asked, and the collector brings the case here by appeal.

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

<p>1. Dedication—intention, as an essential element—evidence to establish it. Long continued use of a strip of land for a street will not alone establish a dedication of it to the public. It is of the essence of a dedication that there should be the intention to make it, and the evidence should be clear, either of such actual intention, or of such acts and declarations as will equitably estop the owner from denying such intention.</p> <p>. 2. The fencing out of a strip of land by the owner affords strong evidence of its being left out for a street, and, without countervailing evidence, might be accepted as satisfactory proof of its dedication.</p> <p>3. Same—acts of municipal authorities as concluding them from claiming there was a dedication. The passage of an ordinance by a city for the condemnation of a strip of land for a street, and the filing of a petition to condemn the same, and its applying for and obtaining license of the owner to lay a sewer in such strip, will conclude the city from asserting that such strip had been dedicated by the owners.</p>

<p>1. Municipal indebtedness—constitutional limitation—-as not extending pre-existing powers. The constitutional provision that no municipal corporation shall be allowed to become indebted to an amount exceeding five per cent on the value of the taxable property therein, etc., is a limitation, upon the power of the legislature to authorize cities of the State to contract indebtedness, and does not operate as a repeal of a clause in a city charter granted prior to the adoption of the constitution of 1870, which prohibits the city from contracting an indebtedness in excess of an amount less than five per cent. It was not intended to authorize a city to become indebted to the full amount of the five per cent, without regard to the limitations in its charter as to the extent of its power to create indebtedness.</p> <p>2. Same—levy of a tax to pay interest and to provide a sinking fwnd— constitutional requirement — effect thereof on pre-existing city charters. The provision of section 12, article 9, of the constitution of 1870, that any municipal corporation incurring any indebtedness under authority of law, shall, before or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same, will operate as a repeal of a clause in a special charter of a city, that its council shall collect an annual tax not exceeding one per cent per annum on all property, etc., and that of this one per cent it shall collect not more than three mills on the dollar for the purpose of paying the interest on the bonds and providing a sinking fund, etc., when that sum is not sufficient to pay the interest and discharge the principal in twenty years.</p> <p>3. This constitutional provision, that no municipal corporation shall incur any indebtedness without providing for the collection of an annual tax sufficient to pay the interest as it matures, and to discharge the debt within twenty years, is self-executing, as, of itself, it supplies a sufficient rule by means of which the duty imposed may be enforced. No supplemental legislation is necessary in order to make it effectual.</p> <p>4. Same—remedy to compel the levy of taxes to meet the constitutional requirement. Where a city organized under a special charter has incurred an indebtedness since the adoption of the constitution of 1870, it is its duty, no matter what are the limitations of its charter, to provide for the collection of an annual tax sufficient to meet the interest thereon, and to liquidate the debt within twenty years; and if it fails to do so, and allows the debt to mature, the courts will compel it to levy a tax sufficient to pay the same, with the arrears of interest, at once.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Dobbance Dibell, Judge, presiding.</p>