Volume 125 — Illinois Reports

This is an original application to this court, by the commissioners of highways of the township of Edwardsville, in Madison county, for a writ of mandamus, against the board of supervisors of that county.

<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>1. Contest of a will—testamentary capacity. A witness called by the contestants of a will, stated, on his direct examination, that he could make a statement that would throw light on the question whether the testator was laboring under the delusion that he had no property, and that he and his wife would eventually go to the poor-house, and show that he did not have that delusion, but contestants asked no further question. On cross-examination he was asked to make that statement, and the witness stated that the testator said his daughter demanded him to make her a deed to a part of his property, which he was unwilling to do, and also that he referred to an incumbrance, etc. Contestants then offered to prove by the daughter that she had never demanded her father to make a deed, which the court refused to allow: Held, no error. Even if the testator was either willfully or ignorantly mistaken as to the fact, still his declaration showed that he knew he had the property, and hence was laboring under no delusion in that respect.</p> <p>2. On the contest of a will, the court instructed the jury, for the proponents, that no one, however nearly related, had a natural right that could be asserted against the will of the testator, and the fact a person was the son-in-law of the testator did not entitle him to be regarded as a natural object of his bounty, and although they might believe, from the evidence, that the testator was prejudiced against the son-in-law, yet, unless they believed, from the evidence, that the latter had so conducted himself as to be entitled to the gratitude of the testator, and to be regarded as a natural object of his bounty, such prejudice, though morbid, and amounting to an insane delusion, would not of itself invalidate his will, provided such insane delusion did not prevent the testator from understanding and appreciating his relation to those who had a claim upon his bounty and who were the natural objects of his bounty: Held, not open to the objection of being misleading, as introducing a question not in the case, viz., whether the son-in-law had a claim on the testator’s bounty, and because the prejudice against the son-in-law might prevent the testator from making the provision he otherwise would for his daughter. If the insane delusion did not prevent him from “understanding and appreciating” his relation to his daughter, then he knew she was not responsible for anything her husband might have done or said.</p> <p>3. Witness—competency of party contesting a will. In a suit by the heirs-at-law of a testator, contesting the will, where the purpose of the suit is, not merely to adjust rights between the heirs-at-law, but to take the estate from the legatees, some of whom are not heirs-at law, and vest it in those who are, the heirs-at-law are not competent witnesses to show the want of testamentary capacity in the testator prior to and at the time of the making of the will.</p> <p>4. Appeal—whether a freehold is involved. Where the validity of a will is contested which makes a different disposition of real estate from that by the Statute of Descents, a freehold is involved, and the case may be brought directly to this court from the trial court, by appeal or writ of error.</p>

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

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

<p>1. Exemption from execution—interest of tenant in common in personal property. The interest of a tenant in common in personal property stands upon the same footing, in respect to the exemption laws, as like interests in other property, where the possession as well as the title is several.</p> <p>2. A defendant in execution, being the head of a family and residing with the same, was the owner of an undivided half of certain personal property, not exceeding in value $300, as tenant in common with another. Upon notice by the officer holding the execution, he scheduled such property, and claimed the same as exempt, but the officer, nevertheless, levied upon and sold his interest in the property: Held, that the officer became liable to him in trespass, for double the value of such property.</p> <p>3. Error will not always reverse—must be prejudicial to party complaining. Courts of review will reverse only for such errors as may-have been prejudicial to the party complaining. Errors can not be said to be prejudicial to a party when it is clear that the judgment upon the conceded facts is the only one that could properly be rendered, and when another trial would necessarily result the same way.</p>

<p>1. Record imports verity—parol evidence. The record of a court, showing a judgment by confession in open court, imports verity, and can not be contradicted by parol evidence. The record of such judgment is the only proper evidence of itself, and is conclusive evidence of the fact of its rendition, and of all the legal consequences resulting therefrom, both as against the parties, and all others whose interests may be affected thereby.</p> <p>2. Confession of judgment—including an attorney’s fee—consideration. A stipulation in a warrant of attorney for the confession of a judgment, .by which a debtor agrees to pay the fees of his creditor’s attorney in case the creditor is compelled to resort to legal proceedings to collect his debt, is an agreement which is not only eminently just, but which rests upon a good and valuable consideration.</p> <p>3. Execution—before judgment entered. Where judgment is taken in term time, it being a part of the proceedings of the court in term time, it is not material whether the record of the same is written up, or not, at the time •an execution is issued thereon.</p>

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

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

<p>Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.</p>

<p>1. Contract—option to purchase—strictness required in its exercise. In the case of a unilateral contract, where one party has the option to purchase property, and the other is bound to sell upon the exercise of the option, by the one having the same, any delay on the part of the latter in making and giving notice of his election to buy, when called upon under the terms of the agreement to make his election, will be viewed with especial strictness. To avail of such an option, the party having the right is held to a strict compliance with the terms and conditions upon which it is made to depend.</p> <p>2. Same—the particular case—a contract construed—involving an option to purchase. The equitable owner of property leased the same for a term of five years, with the privilege to the lessee to purchase the same during the first year of the term for $9500, and it was agreed that if the lessor had an offer to purchase, ten days notice thereof should be given to the lessee, and he was to have the option of buying at the price offered, (not, in any event, to exceed $9500,) and if he did not decide to purchase within ten days, the lessor might sell the property, but if the lessee elected to purchase, he was to have thirty days to close the purchase. It was also agreed, that in the event the lessor should have an offer for the property after the first year, the lessee should have the privilege of buying at that offer. About a month after the execution of the lease, a third party offered the lessor $9500 for the property, and the latter caused a deed to be made to the purchaser, and served a written notice of the offer on the lessee, signed in the lessor’s name, his sale depending on the termination of the lessee’s option. The lessee paid no attention to the notice, but before the end of the first year offered to take the property at the price named, and tendered the proper writing for that purpose to the purchaser, and on his refusal to sell, filed a bill for the specific performance of the contract: Held, that having failed to make his election at the proper time, the lessee was not entitled to the relief sought, and that the notice by the lessor, instead of his grantee, was sufficient to call upon him to make his election.</p> <p>3. The option given the lessee was not an absolute one to purchase, at any time within the first year, at the price named, but was subject to the condition, that if the lessor should receive an offer at any time during the year, and give notice thereof, then the option- should be exercised within ten days thereafter, or be terminated. The fact the lessor had made a deed when the notice was served, could not change the result, but showed that the offer was made in good faith, and could not operate to prevent the lessee from making his election.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Alfred Sample, Judge, presiding.

Charles Kellum, Judge, presiding. This was a bill in chancery, for the specific performance of an alleged agreement, brought by Stephen A. Hall, Fitzena A. Summers and Matilda H. Plummer, children and heirs-at-law of Ophelia B. Hall, the widow of Alexis Hall, deceased, against Marion 0. Hall and others, the widow and children and heirs-at-law of Eugene A. Hall, deceased.

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

<p>Resulting trust—bill to establish, and for an accounting. This case states the evidence, facts and circumstances relied on for establishing a resulting trust for an interest in land, and for an accounting, upon bill filed many years after the trust was claimed to have arisen, from which this court is unable to say that a decree dismissing the bill is erroneous.</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 Second District;— heard in that court on appeal from the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding.</p>

<p>1. Criminal law—right of discharge for want of prosecution. A person was committed upon a criminal charge, by the coroner’s jury, on April 6, 1887, and was indicted April 27, 1887, and was arraigned on May 2, 1887, when he pleaded not guilty. He was confined in jail from the time of his commitment until his trial and conviction, on July 18, 1887. The terms of the court began on the first Monday of each month. At the July term he entered his motion for a discharge, which was overruled. The record failed to show a continuance from the June term to the July term: Held, that the proper construction of the statute is to exclude the April term, and that the July term was the third term, within the meaning of the statute, and that in the absence of any showing in the record to the contrary, it would be presumed that the cause was continued in the manner allowed by the statute, and for the reasons therein named, and that there was no error in refusing the discharge.</p> <p>2. New trial—newly discovered evidence. It is no error to refuse a new trial when testimony alleged to be newly discovered is merely in the nature of impeaching evidence.</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. 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. R. S. Williamson, Judge, presiding.</p>

<p>1. Elections—contested election—not a suit at law. A proceeding to contest an election is not a suit at law.</p> <p>2. ■ Same—jurisdiction in contest—as to county treasurer. The county court has jurisdiction of a contested election in respect to the office of county treasurer, etc., and such contest is cognizable alone at a probate term.</p> <p>3. Same—of the petition—its requisites. In a proceeding to contest the election of a county officer, in the county court, on the ground that the judges of the election miscounted the ballots or failed to count them correctly, it is not necessary that the petition shall state the names of the persons whose ballots are claimed to have been improperly counted.</p> <p>4. Same—waiver of objection to petition. It is a clear violation of the right of a secret ballot, to allow a contestant of an election, on mere suspicion, to have the ballots exposed and subjected to scrutiny, to enable him to find objections upon which to make a tangible charge. But when the defendant, instead of demurring, answers the petition generally,- and makes issues of fact, and gives evidence upon the general and indefinite, as well as the specific, allegations of the petition, he will thereby waive the objection to the general and indefinite charges.</p> <p>5. Same—of the answer—its requisites—as affecting the admissibility of evidence. In a proceeding to contest an election, less particularity is required in the answer of the defendant than in the petition. When the petitioner alleges that he was elected, and this is denied, it is competent for the defendant to show that persons voting for the contestant, whose names are not given in the answer, were not legal voters. .</p> <p>6. The burden of proof is on the contestant to show that a majority of the legal votes cast at the election were for him, and the production of the ballots cast for him raises the presumption, prima facie, that they were legal votes. But the defendant may rebut the presumption by showing that the ballots are not what they purport to be,—in other words, that they are not the ballots of legal voters; and this he may do without having stated in his answer the names of the persons so illegally voting.</p> <p>7. An allegation in the answer that in addition to the illegal votes named therein, ten illegal votes were counted for the contestant for the office, is subject to exception for indefiniteness. But if no exception is taken, objection to evidence showing such illegal votes were counted, will not avail.</p> <p>8. Same—qualifications of voter—children of alien woman who is married to a citizen. Whenever a woman, alien born, who might be naturalized, is in a state of marriage to a citizen, whether his citizenship existed at the passage of the act of Congress of February 10, 1855, or before or after the marriage, she becomes by that fact a citizen also; and this citizenship is not lost by the subsequent death of her husband and her afterward marrying an alien, and the children of such a woman, under the age of twenty-one years, become citizens by virtue of her citizenship. But this acquiring of citizenship will not extend to members of the family who are not children.</p> <p>9. Same—age of voter—how shown. On the contest of an election, a person who voted for the contestee testified that before the election his father had told him that he was twenty-one years of age, and that it had always been reputed in the family that he was born February 6, 1865, and that he supposed he was of age when he voted in November, 1886. He was then asked, on re-direct examination, “What does your family record say?” which was objected to. The court overruled the objection, and he answered, “The family record says I was born February 6, 1866:” Held, that the admission of this evidence was clearly erroneous. The family record should have been produced, or if that could not be done, a proved copy should have been produced; and it should have been shown when and by whom the record was made, and parol evidence of the witness’ conclusion of what it proves should not have been received.</p> <p>10. Same—residence of voter—what constitutes. A man may acquire a domicile or residence, if he be personally present in a place and elect that as his home, even though he does not design to remain there always, but designs at the end of some time to remove and acquire another.</p> <p>11. It does not follow, however, because a man must have a domicile somewhere, and that a domicile once gained remains until a new one is acquired, that he must be entitled to vote somewhere, or that the right to vote at a particular poll being once established, is presumed to continue until the right to vote elsewhere is shown. Permanent residence is but one of the requisites of the right to vote, and it must in this State always precede the election by an extended space of time, in one respect for a year, in others for ninety and thirty days.</p> <p>12. Same—change or abandonment of residence. Abandonment of a residence is instantaneous, and if it be by a voter of a residence in one voting district, at a date too near the election for the requisite intervening time of residence to be a voter in another voting district to which he has removed, the voter will be entitled to vote in neither district.</p> <p>13. Where one leaves his residence or acquires a new one, it is the intention with which he does so that is to control. Hence the shortest absence, if at the time intended as a permanent abandonment, is sufficient, although the party may soon afterward change his intention. On the other hand, an absence for months, or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the former residence, will not be an abandonment.</p> <p>14. On the question of intention as to residence, the declaration of the party, though admissible, is not necessarily conclusive, because it may be disproved by his acts.</p> <p>15. If a person should remove his family to a particular district, there build and furnish them a home, keep his property there, return there constantly as leisure allows, and remain there with his family during sickness and unemployed times, this would constitute his residence, notwithstanding he might be employed in labor in another district, and claim that to be his residence.</p> <p>16. If a person having no family, leave, or, having a family, take them with him, and leave this State to go to another State, and there make a home, and seek to acquire rights by virtue of its being a permanent residence, such as acquiring a homestead under the acts of Congress, or exercising the rights of an elector, to which permanent residence is requisite, his subsequently testifying that he had never intended to permanently abandon his residence here, but had all the time intended at some future day to return, could not control.</p> <p>17. Since the question of the intention, as well as of the act of a party in leaving a particular abode and adopting and retaining another, is the subject of proof, it follows that evidence applicable to either is admissible. Although less weight is given to the party’s declarations than to his acts, still his declarations of his mental state, so long as that shall be the subject of inquiry, must be admissible.</p> <p>18. So it is held, that conversations and declarations in regard to present or future domicile, although not accompanying acts, still are admissible in evidence, and must be weighed with the other evidence. Although the lowest species of evidence, they are competent.</p> <p>19. Same—declarations of voter—after election—to show want of qualification to vote. The declarations of a voter, made after the election, can not be received in evidence on a contested election to show he was not qualified to vote.</p> <p>20. Same—time to assert right to vote—after refusal by election judges. If a legal voter offers his ballot, which one of the judges takes, saying he will see about it, but subsequently refuses to deposit it in the ballot-box, and the voter fails to insist on his right to vote by furnishing the evidence required by the statute to entitle his vote to be received, there will be no error in refusing to count his vote on a contest of the election.</p> <p>21. Same—recounting the ballots—as excluding further inquiry., It does not follow, from the fact that on a contest the ballots are ordered to be recounted, that all inquiry whether they have been tampered with is precluded.</p> <p>22. Nor does the mere fact that ballots are recounted, preclude all inquiry as to whether they are really the ballots cast, or that they have the same names on them as when east by the voters.</p> <p>23. Where the contestant makes a prima facie case that there is a necessity for a recount of the ballots, and that they have not been tampered with, an order for a recount will be made. After the recount has been made, the incumbent of the office may show that the ballots have been changed, or should be discredited for any other cause. In such case, the inspection of the ballots might furnish ample evidence that they have been tampered with or changed since they were cast.</p> <p>24. Same—change of ballots after being voted—evidence in respect thereto. On the contest of an election, in which the contestant claims that he has received a majority of the legal votes cast, and when a recount is had of the ballots, it is competent for the contestee to show on the trial that ballots cast for him have been changed by a paster so as to read as a vote for the contestant, and also that ballots, after being cast, have been destroyed and different ballots put in their place, even though no fraud is alleged in the answer against the officers conducting the election. And for this purpose the contestee may prove, by the voter, that the ballot bearing his number is not the one cast by him.</p> <p>25. Before the recount of the ballots returned from a certain poll, the contestant stated that if any question was made as to the identity of the ballots cast at such poll with those about to be counted, he wanted a judge or clerk of such district present, and the.contestee making no question as to such identity, the recount proceeded without the presence of such judge or clerk. This admission was relied on by the contestant as preventing the contestee from showing that any of the ballots recounted were not genuine: Held,, that the admission, being for the mere purpose of dispensing with the preliminary proof to authorize the recount, did not preclude the contestee from showing that certain of the ballots recounted were forgeries, and were not in fact those cast by the voters.</p> <p>26. Same—missing ballots—evidence. On a contest of an election, the contestee offered to prove by a legal voter that he voted a ballot of a certain number in favor of contestee, and, by other evidence, that at the time of the recount no such ballot was found and counted, which the court refused to allow, on the ground the answer failed to charge the abstraction of any ballots, or of any misconduct on the part of the judges of election: Held, that the court erred in excluding the proposed evidence, and that it was competent, as rebutting the contestant’s evidence tending to show his election. As the contestee could not have known the ballot was missing before the recount, he was not required to state that fact in his answer.</p> <p>27. Same—no ballot corresponding with number on poll-book. Where the poll-book of an election precinct showed that twenty-five persons voted at an election, the contestee offered to prove that such persons were legal voters of that precinct, and that they all voted for him, and that no ballots were returned bearing the numbers set opposite their names, which the court refused to admit: Held, that the court erred in refusing the evidence, and that contestee was entitled to have their votes counted for him.</p> <p>28. It will be presumed that election officers discharge their duty by numbering each ballot cast, with the number set opposite the voter’s name, and when no ballot is found corresponding with the number of the voter, it will be presumed that such ballot has been lost or abstracted, in the absence of any proof showing a mistake or ballots without any number, and such vote should be counted on a recount.</p> <p>29. Same—unnumbered ballot—how disposed of. The statute requires that before an unnumbered ballot shall be destroyed by the judges of the election, it shall be ascertained that the number of the ballots in the box exceeds the number of names entered on each of the poll-lists. On a contest of the election it will be presumed that the judges of the election discharged their duties, and when an unnumbered ballot is not destroyed by them, it is reasonable to suppose the two poll-lists did not agree.</p> <p>30. On the recount of the ballots of a certain election precinct upon the contest of an election, the court found two unnumbered ballots, and by examining the poll-list returned with the ballot-box, it was determined that there was one more ballot than there were names on the poll-list, whereupon the court destroyed one of those ballots, without finding whether the poll-lists agreed: Held, that the action of the court was erroneous.</p> <p>31. If it be conceded that an unnumbered ballot was actually cast by a legal voter, it should not be destroyed, but the statute contemplates that the ballots shall be correctly numbered, and hence that every ballot, as cast, will have the number of the voter indorsed upon it, and this being done, and the whole number of ballots being in excess of the number of the voters as shown by the lists, it must follow that the unnumbered ballot is improperly in the box, and it should be destroyed.</p> <p>32. Same—two ballots folded together. Where two ballots are cast folded together, the outside one alone numbered, it is proper to reject both. The statute requires the names of the candidates voted for shall be written or printed on the same piece of paper, and the inclosing of one ballot within another, with the names of the candidates upon each, is plainly an attempt to vote twice, and is therefore such a fraud upon the rights of other electors as to require that the voter’s ballot shall not be counted.</p> <p>33. Same—ballot giving the names of several for the same office. Where a voter has a ticket given him which has the names of two persons for one and the same office, the one printed and the other written therein, and he votes the same, the statute is imperative that it shall not be counted for either candidate.</p> <p>34. Same—ballot with a name erased. Where it appears that there has been an erasure of a name of a candidate, it may be shown that it was not done by the voter, or that it was the result of an accident, and not of intention; but the fact of an erasure being conceded to have been the deliberate act of the voter, it can not be explained that by it he intended a different result than what the law implies from it.</p> <p>35. Same—name not properly given in ballot—evidence, etc. On the contest of an election, it is not competent to prove by the voter that he intended a ballot plainly for a particular name, for one having no such similarity of sound as that one might reasonably be intended for the other; hut it is competent to prove by him what he understood the names of the candidates to be, and how he reads his ballot.</p> <p>36. If the elector has used the letters of a foreign language to express the name of the candidate, it is competent to prove by him, or by some one else versed in that language, what word or words they make. If the characters are so complex in their formation, or so imperfectly formed, or so obscurely impressed, as to make it difficult to read them, it is competent to prove, by any one understanding them, what they are.</p> <p>37. Where it is shown that there were but three candidates for the office of county treasurer, John B. Kreitz, the democratic nominee, Charles F. A. Behrensmeyer, the republican nominee, and B. L. Dickerman, the prohibition nominee, and that Kreitz had a brother named John M. Kreitz, who was not a candidate, and that John B. Kreitz was ordinarily known and called John Kreitz, while John M. Kreitz was ordinarily known and called Matt Kreitz, it was held, that some tickets bearing the name of John M. Kreitz for county treasurer were properly counted for John B. Kreitz.</p> <p>38. In the same case it was shown that there were several other persons in the county by the name of Behrensmeyer, but that no other person of that name was a candidate for that office. The court counted many ballots for Charles F. A. Behrensmeyer which had merely “Behrensmeyer” on them for treasurer, without any designation of the Christian name: Held, that such ballots were properly counted for Charles F. A. Behrensmeyer.</p> <p>39". On a contested election by Behrensmeyer against Kreitz, there was evidence that some persons pronounced the contestant’s name “Benmire,” and that others pronounced it by a still shorter name: Held, that any evidence proving that the voter had intended and attempted to express contestant’s name as he understood it, was properly admissible.</p> <p>40. At an election, John B. Kreitz and Charles F. A. Behrensmeyer were candidates for the office of county treasurer. In certain ballots the name written after treasurer was “John B. Knirs,” and in certain others the name was “Dehbsumeyer:” Held, that the ballots could not be aided by extraneous proof, for the reason there was no similarity in sound between the latter names and the names of the candidates.</p> <p>41. Same—voter testifying for whom he did vote. It is true that a voter can not be allowed to testify that he voted for one person when he admits he cast a ballot, which has not since been changed, showing that he voted for another; but this rule does not apply where the ballot purporting to be his is not genuine, but is a forgery. A ticket which has been changed by a paster to read as a vote for a man for a particular office different from the ■man for whom it read as a vote in the condition in which it was when cast, is a forgery; and the same is true when the ballot, after it is cast, is destroyed, and another and different ballot is put in its place. In such case the voter may testify for whom he, in fact, did vote.</p> <p>42. Same—for what office the ballot was intended. Where the name of a candidate for the office of county treasurer is erased, and the name of the opposing candidate is written above the words “For county treasurer,” the ballot may be fairly construed as a vote for the candidate whose name is written above the designation of the office.</p> <p>43. Where the ticket reads, “For county treasurer, Charles F. A. Behrensmeyer,” after which is written “John Jimison," above the printed words “For county superintendent of schools,” and the name “Newton J. Hinton,” under those words, is erased in pencil, it will be considered as a vote for Jimison for county superintendent, and not as two votes for county treasurer.</p> <p>44. At an election a few ballots cast had the printed name of the candidate for county treasurer, and no name was written immediately above or below the designation “For county treasurer,” but the name of one of the candidates for county treasurer was written below the designation “For county superintendent of schools,” and below the.name of the candidate for that office: Held, palpably no vote for county treasurer, and two ballots for county superintendent of schools, and that no other evidence of the intention of the voter was admissible.</p> <p>45. Where the name of the office is completely cancelled, and the name of one of the candidates is written beneath the cancelled name of the office, the ballot will not be counted for such candidate.</p> <p>46. But when in a ballot the name of a candidate is written into the title of the office, obscuring and partially obliterating the letters designating the name of the office, it may be explained, and shown whether this was accidental and unintentional, and hence no cancellation.</p> <p>47. Same—torn ballot, whether to be counted. Where a ballot is found in the box torn in two from top to bottom, across all the names of the candidates, one part of which bears the ballot number, in the absence of any proof to the contrary a cancellation of the ballot will not be presumed, but on the contrary, it will be presumed the tearing was accidental. It may, however, be proved that the tearing was by the voter, and intentional, and upon such proof the ballot will be held to be cancelled.</p> <p>48. Naturalization—proof by secondary evidence. Records of naturalization are in nowise different from other records. When destroyed, secondary evidence of their contents may be given, the same as of the contents of any other record.</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. Oliver A. Harker, Judge, presiding.</p>

<p>1. Boundary—western boundary of East St. Louis and of St. Clair county. The western boundary of St. Clair county and of the city of East St. Louis is identical with the western boundary of the State.</p> <p>2. St. Louis bridge—within what jurisdiction—where taxable. All that part of the St. Louis bridge which lies east of the middle thread of the Mississippi river, as it now is, is within the State of Illinois, and being so, is subject to taxation by the State, St. Clair county, and the city of East St. Louis.</p> <p>3. Municipal taxation—for sewerage purposes—and herein, in what consists the establishment of a system of sewerage. By statute, the legislative authority of any city which has established a system of sewerage is invested with power annually to levy and collect a sewer tax, not exceeding one mill on the dollar, for the extension of sewers therein, and the maintenance of such sewers, provided the board of public works, if any, or the head of the sewer department of such city, shall first certify to such legislative authority the amount necessary for that purpose.</p> <p>4. Where the legislative authority of a city created by special charter has assumed control of the sewerage of the city, and created a department of the city government charged with the location, extension, construction and maintenance of sewers, and has accepted plans and estimates for the extension of the sewerage already under its control, this will be an establishment of a system of sewerage, within the meaning of the statute; and such authority, upon the report of the sewer department of the amount necessary for the purpose of constructing and maintaining the same, will be authorized to levy and collect a sewer tax.</p> <p>5. In such case, it is not necessary that the system of sewerage adopted shall extend to all parts of the city. What sewerage is necessary for the welfare of the city and health of its inhabitants is a political question, and is to be determined by the legislative authority of the city.</p>

<p>1. Amendments—as to record of a judgment—verity of record. Where the record shows the entry of judgment by confession in open court, the game will not be amended or changed on the motion of the defendants in the judgment, on affidavits, so as to show the judgment was not in fact entered in open court.</p> <p>2. Where the record showed that the court convened for the term on June 7, 1886, and continued in session until after the 17th of the same month, on which last named day a judgment was entered by confession, but failed to show at what hour on that day the court resumed its session, it was held, that it would be presumed the court took the usual recess from one day to the next, and over Sundays, and that it was in session when the judgment was confessed, and that this presumption could not be contradicted by affidavit showing the court did not open before ten o’clock, and that the judgment was in fact entered before that hour, upon the direction of the judge made “outside of the court room.”</p> <p>3. The theory of the law is, that during the term of a court all proceedings rest in the breast of the judge, and he can amend the record according to the facts within his own knowledge.</p> <p>4. It can not be shown by parol evidence that a judgment was in fact rendered at an hour earlier than the time appointed for the convening of the court, simply by an order of the judge “at chambers,” in opposition to the record to the contrary.</p> <p>5. Judgment by confession—setting aside for cause—attorney exceeding his powers. A judgment entered in term time upon cognovit will not be set aside at the same term, on motion, and the execution thereon quashed, except upon some equitable ground shown. The fact that the attorney confessing the same exceeded his power by waiving the defendant’s right to an appeal or writ of error, will not furnish ground for setting the same aside, when the defendant in fact has the benefit of a writ of error.</p> <p>6. Same—presumptions. Where the record shows a judgment was rendered in term time, though upon a cognovit, the same presumptions will be indulged in its favor as in the case of ordinary judgments of courts of general jurisdiction.</p>

<p>1. Lease—duration of term—a lease construed, in connection with a prior lease. The trustees of the Illinois and Michigan Canal leased to a hydraulic company certain land and water power, for twenty years, with the right to renew the lease in periods of twenty years each, on the same terms, or at such higher terms as might be offered by the highest responsible bidder. The hydraulic company leased the water power and premises to a starch company for nine hundred and ninety-nine years, which latter company, in and by its lease, covenanted to pay rent quarterly, and to keep and perform all the covenants of its lessor to the canal board, and such lease contained a clause that “it is understood and agreed between the parties, that all the conditions, limitations and restrictions contained in the lease of the trustees * * * to the hydraulic company, bearing date * * * are to apply to and constitute a part of this lease, and that the starch company, its lessees and assigns, are to be governed, limited and restricted by them,” etc.: Held, that the two leases were to be taken and construed together, and that it was not intended that the leasehold interest granted by the second lease was for nine hundred and ninety-nine years absolutely, but for that term in the event the first leasehold interest was not terminated prior to the expiration of that period.</p> <p>2. Strict foreclosure—whether allowable. As a general rule, a strict foreclosure of a mortgage or other lien will not be permitted where there are other creditors, or other incumbrances upon the property, or purchasers of the equity of redemption; but there are exceptions to such rule.</p> <p>3. A starch company leased certain premises and water power at a certain rental per annum, payable quarterly, and the lease made its covenants to pay, etc., a lien on the demised premises and improvements thereon. The company allowed the improvements to run down and become almost valueless, ceased to occupy and use the premises, failed to pay any rent or interest thereon for several years, and suffered its equity of redemption to be sold; and it appeared that the property was of considerably less value than the rent due, as found in the decree, and was liable to destruction from fire: Held, that a decree of strict foreclosure, in default of payment within one hundred days, was proper, under the peculiar circumstances of the case.</p>

<p>Appeal from the Circuit Court of Effingham county; the Hon. William C. Jones, Judge, presiding.</p>

<p>1. Criminal law—several counts for the same offense. The joinder of several counts in one indictment for the purpose of stating in different ways a single offense occurring in the same transaction, is allowable, and such joinder is no ground for quashing the indictment.</p> <p>2. Same—-joining counts for distinct offenses. The fact that two distinct offenses are joined in separate counts in the same indictment, or two defendants are tried for separate offenses, affords no ground for the arrest of judgment after verdict. In such case the defendants should plead in abatement, or move the court for separate trials. If this is not done, and the evidence is not preserved in the record, it will be presumed that the evidence justified the verdict.</p> <p>3. Same—verdict finding the value—in case for receiving stolen goods. On the trial of one for receiving stolen goods, in case of a conviction the jury must find in their verdict the value of the property, or the judgment will be arrested.</p> <p>4. Bill of exceptions—presumption in its absence. Where the bill of exceptions shows only the instructions given and refused, and the rulings thereon, it will be presumed that the rulings of the trial court upon every point of practice not embraced in a motion to arrest the judgment and the rulings upon the instructions, was correct.</p> <p>5. So unless the evidence is preserved in the record, this court can not pass upon the correctness or propriety of the instructions given.</p>

<p>1. Will—whether a will was completed. A person being desirous of making a will, made a writing purporting to be his will, by which he devised a farm and a horse and buggy to a son, making no mention therein of his other heirs, from whom he was in no way estranged, and leaving the personal estate undisposed of. The scrivener, on the day he was called to write the will, only proceeded so far as to write a devise of the farm to the son. The decedent, when asked what disposition he wished to make of his personal property, said “he had not made up his mind about that,” and that he “would like to think that over,” and asked if he “could do that to-morrow or any other day.” On the next day, the scrivener asked the decedent if he wanted to go on with the will, to which he replied that he wanted “to finish it up,” and when asked what he wanted to do, said he wanted to give his son the farm,—“you have got that; I want to give him the horse and buggy.” That being written he said nothing more until again asked what disposition he wanted to make of his personal property, when he replied, as before, that he had not determined on that yet, and again inquired if he could not fix that hereafter. He was advised that it could be done by a new will or codicil. At the suggestion of the scrivener an executor was named, and the paper signed and witnessed: Held, in a suit contesting the will, that these facts were sufficient to, warrant the jury in believing that the will was never, in fact, finished.</p> <p>2. Same—contesting a will—of the burden of proof. Where a bill in chancery is filed, under the statute, to contest a will, the law in the first instance casts the burden of proving the will upon the proponents alleging its validity.</p> <p>3. Same—an instruction construed as not relating to burden of proof as to undue influence. On the trial of an issue as to the validity of an alleged will, an instruction which declares that before the jury can find the paper read in evidence is the will of the decedent, it must appear, from the evidence, he was “of sound mind, and did not execute the paper read in evidence as his will under undue influence at the time he signed the paper,” is not open to the charge that it casts on the proponents the burden of proving the will was executed without undue influence on their part.</p> <p>4. Same—testamentary capacity—evidence in respect thereto. In this case, upon the question as to the testamentary capacity of a person whose alleged will was being contested, the evidence is reviewed, and the finding that the paper presented as the will of the decedent was not his will, is sustained.</p> <p>5. Same—of the decree, setting aside a will. A decree setting aside an alleged will, which declares that the probate of such will in the county court, and the proceedings thereunder, are set aside and declared null and void, is not erroneous, as being too broad.</p> <p>6. Same—new trial—on contest of will. The finding of the jury on the contest of a will, by bill in chancery, is conclusive, unless clearly against the weight of the evidence, the same as in cases at law.</p> <p>7. Where there is an irreconcilable conflict in the testimony touching the facts upon which the validity of a will depends, this court will not reverse the decree of the lower court, if the evidence of the successful party, when considered alone, is clearly sufficient to sustain the verdict.</p> <p>8. Costs—against executor—on contest of will. Where a decree is entered setting aside an alleged will, there is no error in requiring the parties defending, including the executor, to pay the costs.</p> <p>9. Same—former decision. The decree for costs against the person claiming to be the executor in the will which was set aside, is sustained by the case of Shaw v. Moderwell, 104 Ill. 64; and so far as there may appear to be a conflict in the rule stated as to costs in such cases, the decision in Pingree v. Jones, 80 Ill. 177, must be regarded as having been modified by the decision in the later case of Shaw v. Moderwell.</p> <p>10. Practice—waiver of objection to evidence—where both parties avail of it. Where both parties on the contest of a will, by bill in chancery, give in evidence the statements and conversations of the decedent made by and with him long before the making of the alleged will, neither party will be heard to insist that such statements and conversations were not competent evidence.</p>

<p>Pharmacy act—making complaint—whether a prerequisite to bringing suit for penalty. The making of complaint is not a prerequisite to the bringing of a suit before a justice of the peace for the penalty prescribed for a violation of any of the provisions of the Pharmacy act. It is only mandatory on the State’s attorney to prosecute upon proper complaint being made.</p>

<p>1. Plea in abatement—time of filing. Four terms after an amendment of the declaration in an action at law, by adding two new counts, the defendant, without withdrawing his plea of the general issue to the original declaration, and without leave of court, filed a plea in abatement, setting up the non-joinder of another party defendant, which was stricken from the files on plaintiff’s motion: Held, that the plea was properly stricken from the files, for the reason it was not filed at the earliest practicable time.</p> <p>2. Parties—several liability of tort feasors. In an action on the case to recover for a personal injury resulting from the negligent conduct of the defendant’s servant in the management of an elevator, the defendant pleaded in abatement that the building and property mentioned in the declaration is not, and never was, the property nor in the possession of the defendant, but is, was, and always has been, the joint property of the defendant and another person named, who is still living; and also that the servant mentioned in the declaration is not, and never was, in the employ of the defendant, but is, and was at the time mentioned, etc., in the joint employ of the defendant and such other person: Held, that the plea presented an immaterial issue. If the two were liable, each was, and the action was maintainable against either wrongdoer.</p>

<p>1. Delivery of deed—how far essential. As a rule, to render a deed operative as a conveyance, an unconditional delivery is requisite, or if the delivery is conditional, or to take effect on the happening of some event in the future, it must appear that the condition has been performed or that the event has happened.</p> <p>2. Same—what constitutes a delivery—and of evidence in respect thereto. It is not essential to a delivery that the deed shall pass from the hand of the grantor to the grantee. Any disposition of the deed by the grantor, with the intention thereby to make delivery of it, so that it shall become presently effective as a conveyance of title, will, if accepted by the grantee, constitute a sufficient delivery.</p> <p>3. The intention to deliver, on the one hand, and of acceptance on the other, may be shown by direct evidence of the intention, or may be presumed from acts or declarations, or both acts and declarations, of the parties, constituting parts of the res gestæ, which manifest such intention. In like •manner the presumption of a delivery may be rebutted and overcome by proof of a contrary intention, or of acts and declarations from which the contrary presumption arises.</p> <p>4. It is not competent to control the effect of a deed by parol evidence when it has once taken effect by delivery, but it is always competent to show that the deed, although in the grantee’s hands, has never in fact been delivered, unless the grantor, or those claiming through him, are estopped in some way from asserting the non-delivery of the deed.</p> <p>5. In 1863 the grantor, before going into the army, made a deed of his land to his wife, and placed it in his trunk, to be taken by her only in case of- his death while in the army. The grantor returned in 1865, but never afterward saw the deed, and the grantee took no manual possession of it until in 1883, when she took it from the trunk, and on advice that it was ineffectual to convey title, she destroyed it: Held, that the deed never took effect for a want of a delivery.</p> <p>6. Estopped—as to ownership in land. A person offered a contractor $300 for the building of a house on land occupied by him and his wife. The contractor, after consulting as to the cost, informed the husband that the building could not'be made for that price, and he replied that $300 was all the money he had, and that if it cost more, to let the work alone. The contractor then said that if it cost any more than that sum he would look to the wife for the balance, and that she could pay the excess by boarding hands, and this was assented to. The husband paid the $300, and a decree in a proceeding to enforce a mechanic’s lien was obtained against the wife for $64, the husband not having been made a party, upon which the wife’s supposed interest in the land was sold: Held, in ejectment against the husband and wife, that the former was not estopped from showing that the title was in him alone.</p> <p>7. Parties—of a decree as to one not a party. A decree for a mechanic’s lien against a wife, in a proceeding, in which the husband is not made a party, is not binding on him.</p>

<p>1. State Board of Health—revoking certificate to practice medicine —power of ■the board. Under section 10 of the act of 1877, to regulate the practice of medicine in this State, the State Board of Health had the power to revoke certificates issued to individuals to practice medicine, for the same reasons it might refuse to issue such certificates, viz., for “unprofessional or dishonorable conduct.” But the board can not, from mere caprice, or without cause, revoke a certificate fairly issued upon sufficient evidence of the holder’s qualifications.</p> <p>2. Same—revocation—for cause only. The right of the citizen to practice his profession is too important to be taken away from him without some reasonable cause. It must be for some act or conduct that would, in the common judgment, be deemed “unprofessional or dishonorable.”</p> <p>3. A revocation of such certificate by the State board can not be sustained, when it does not appear, from the record of their proceedings, that' such board, from any evidence submitted to it, or otherwise, ever found the holder guilty of any act or conduct that was unprofessional or dishonorable.</p> <p>4. Same—what is unprofessional or dishonorable conduct. If the holder of a certificate to practice medicine makes statements and promises with reference to the treatment and cure of the sick and afflicted which are calculated to deceive and defraud the public, that will be unprofessional and dishonorable conduct.</p> <p>5. Same—notice—before revocation, of certificate. Whether the right to practice medicine or law is property, in the technical sense, it is a valuable franchise, and one of which a person can not he deprived without an opportunity, by timely notice, to defend against the charges preferred against him.</p> <p>6. So where a physician having a certificate of the State Board of Health to practice medicine, had a charge made against him of making statements and promises calculated to deceive and defraud the public, of which charge he had no notice, and of which he was never found guilty upon any evidence of its truth, it was held, that an order of the board revoking his certificate was unauthorized, and void.</p>

<p>1. Acknowledgment of deed—of evidence to overcome the certificate. Where a lost or destroyed deed is satisfactorily shown to have had attached to it a certificate of acknowledgment by the grantor and his wife, by an officer authorized to take acknowledgments of such instruments, it was held. that that fact of itself, after the lapse of twenty-eight years, was sufficient to overcome the denial of the wife that she ever released her dower, by the deed or otherwise.</p> <p>2. Secondary evidence of contents of lost deed—preliminary proof. For the purpose of laying the foundation for the introduction of secondary evidence of the contents of a deed, the party proved that the deed, when last seen, was most probably in the possession of a person named, and that the latter had made the most diligent search for it in everyplace where there was the slightest probability it would be if still in existence, but without success. The witness also stated facts showing, beyond reasonable doubt, that the deed must have been destroyed by the fire which occurred in Chicago in 1871, and which destroyed all record of prior deeds, as this one was: Held, this was a sufficient foundation for the introduction of secondary evidence of the contents of the deed.</p>

C. S. Conger, Judge, presiding. This was an action of ejectment, in the Clay circuit court, by Clara Barker, Henry Barker, Harvey Barker, John Barker, Ella Barker and Matilda Barker, against the Ohio and Mississippi Railway Company.

<p>1. Appeal—interlocutory order—what is a final order—of cm order to produce books of account. An appeal or writ of error will not lie to review a mere interlocutory order of court, or an order which is not final.</p> <p>2. An order of court upon the defendants in a suit at law, to place certain books in which the business transactions of the defendants with the plaintiff and other persons are recorded, in possession of the clerk of the court, -that they may be inspected by the plaintiff and his attorney, in order that they may prepare for the trial of the cause, is not such a final order as may be reviewed on appeal or writ of error.</p> <p>3. If the court attempts to enforce obedience to such an order by the imposition of a fine in a sum of money, with an order for an execution, or by a definite term of imprisonment, as for a contempt of court, the judgment of the court imposing such fine or imprisonment will be final, and one from which an appeal may be taken or to which a writ of error will lie. In such case, the propriety of the interlocutory order may be considered.</p>

Joseph E. Gary, Judge, presiding. This suit was brought by Homer E. Sargent, in the Superior Court, against Annie E. Nichols, on a written lease from defendant to plaintiff, and signed by both parties. On the trial before the court, without a jury, plaintiff recovered a judgment against defendant. That judgment, on the' appeal of defendant, was affirmed in the Appellate Court for the First District, and defendant now brings the case to this court on her further appeal.

<p>1. Specific performance—as to land out of the State. Where the court has acquired jurisdiction of the person of the defendant, it may compel him to specifically perform his contract for the conveyance of land, although the land may lie in another State. The decree in such case will operate upon the person of the defendant.</p> <p>2. Statute of Frauds—verbal agreement to convey land. An oral agreement for the conveyance of land can not be enforced, either at law or in equity, when the objection that it is not in writing is made. The entire contract must be in writing, to satisfy the statute. It will not suffice that the greater part of it is in writing.</p> <p>3. A complainant wrote the defendant a proposition to furnish the materials and carpenter work for a house, for a conveyance of a tract of land by defendant. The latter replied, in writing, stating he could not accept the offer, but saying, if the former would do certain other things in addition to his offer, he would convey the land. Instead of accepting this offer in writing, complainant made a different offer, proposing to furnish, in addition, two thousand brick for the flues, and this last proposition was verbally accepted by the defendant: Held, that all that preceded the last offer, and its acceptance, were mere matters of treaty, and that the agreement to convey the land was within the Statute of Frauds.</p> <p>4. Same—performance to take case out of the statute. The mere doing of some work and furnishing some building material by the complainant for the defendant, pursuant to a verbal contract for the conveyance of land by the defendant, and the taking of possession of vacant land, without being put in possession by the defendant, is not a sufficient part performance to take the case out of the Statute of Frauds.</p> <p>5. Same—how availed of. Where it appears upon the face of a bill for specific performance that the agreement to convey is oral, the Statute of Frauds may be taken advantage of by demurrer to the bill.</p>

<p>1. Master and servant—liability of the master for acts of the servant—generally. Where the relation of master and servant exists between a railway company and the person whose act is the cause of injury to another person, the company will not be liable if the servant causing the injury is not acting within the scope of his employment; hut on the other hand, the master is responsible, when the servant acts within the general scope of his employment, for acts done while engaged in his master’s business, with a view to the furtherance of that business, by which injury is caused to another, whether negligently or wantonly committed.</p> <p>2. SAME—engine-driver permitting persons to ride upon the locomotive. It is the duty of an engineer in charge of an engine, to not permit any unauthorized person to get on or ride upon the same, and if any stranger gets upon the engine, even if by his invitation, it is his duty to put him off, and in doing so he will be acting within the scope of his employment, and if, in the discharge of that duty, he negligently or wantonly inflicts an injury upon such person, the master will he liable. It is the duty of the engineer to observe reasonable care in putting a person off the engine, even when wrongfully there.</p> <p>3. So if the engineer invites a person to ride with him on his engine, this, act will not be within the scope of any duty he owes to his employer, and if any injury happens to such person on account of such act of the engineer himself, whether negligently done or not, the master will not be liable.</p> <p>4. But where the engineer invites a boy of the age of seven years to ride on his engine, without authority, or in violation of his duty, and then directs the boy to get off while the engine is in motion, and the latter is injured in getting off, the company will be liable for the injury. It is negligent conduct in the engineer to direct a child of that age to get off while the engine is in motion, for which the company is liable in case of a personal injury caused thereby.</p>

<p>1. Conveyance—when a deed takes effect. A deed or conveyance of land takes effect from its delivery, or not at all. In this respect it- differs from a will, which speaks from the death of the testator, and operates on property of the testator then on hand.</p> <p>2. Same-—as to certainty required in respect to the property to be conveyed. A deed made to a trustee, of the undivided half of the real and personal estate the grantor might leave at his death, after the payment of his just debts, in trust for the heirs of the grantor’s wife, and which provided that if the grantor should survive his wife the deed should become void, was held inoperative as a conveyance of any property, for uncertainty as to the property the grantor might leave at the time of his death.</p> <p>3. Trust—when the legal title passes to the cestui que trust. A conveyance of land to one person in trust for another, imposing no act or duty upon the trustee, will, under the Statute of Uses, operate to pass the legal as well as the equitable title to the cestui que trust.</p> <p>i. Same—declaration of trust—testamentary disposition. "Where one, for a valuable consideration, attempts to make a conveyance of property to another, and by some casualty or inadvertence the instrument is defective and inoperative as a conveyance, á court of equity will, in a proper case, treat the instrument as a declaration of trust or as a contract for a conveyance, as the circumstances may require.</p> <p>5. The owner of lands and personal property executed an instrument in writing, which purported to grant and convey to a trustee named, the undivided half part of all the real and personal estate of the 'maker which he might leave at his death, after the payment of his just debts, t-o be held by the trustee for the heirs of the maker’s wife. The instrument reserved to the maker the absolute control and disposal of the property during his life, and provided that if he should survive his wife it should become void. It was not attested as required by the Statute of Wills: Held, that the instrument could not be sustained as a declaration of a trust, but was in the nature of a testamentary disposition, and therefore void for want of proper attestation.</p> <p>6. Same—certainty as to subject matter. An existing property right in or to some distinct subject matter is essential to the existence of every trust, and any instrument, however perfect otherwise, which fails to disclose this, can not properly be established as a declaration of trust.</p>

<p>1. Jury—challenge to the array—grounds therefor—presumption. Although a jury may have been irregularly obtained, a challenge to the array will not be sustained where it is not shown that a positive injury has resulted in consequence of the refusal of the court to quash the panel.</p> <p>2. On objection to the array of jurors in a case, the clerk testified that the panel was obtained upon an order of the judge made on a preceding day, directing the issuance of a special venire for twenty-four men, and that upon that order he issued the writ to the sheriff: Held, that the evidence did not rebut the presumption that the clerk performed his duty by repairing to the county clerk’s office, and there drawing the names of the jurors.</p> <p>3. Practice—directing what the verdict shall be. Where there is not sufficient evidence to support or justify a verdict for the plaintiff, it is correct practice to instruct the jury to find a verdict for the defendant.</p> <p>4. Mandamus—of the petition—its requisites. The statute doing away with the alternative writ of mandamus, and requiring the defendant to answer, plead or demur to the petition, has not modified or dispensed with the common law requirement resting on the relator to set forth and show a clear right to the relief demanded. It must appear from the petition that the defendant is under a legal obligation to do and perform the act sought to be coerced, and every material fact to show such legal duty must be averred.</p> <p>5. Same—of the burden of proof. Where the petition of the commissioners of highways for a mandamus against the county board to compel a county appropriation for the construction of a bridge, makes a prima facie case, and issues of fact are formed thereon, it becomes necessary for the relators to maintain, by competent testimony, the truth of every material averment, taking upon themselves the burden that rests upon the plaintiff in an ordinary action at law, when the averments of the declaration are put in issue.</p> <p>6. Commissioners or highways—record of proceedings. The commissioners of highways are a quasi corporation, powerless to act except together and as a body, and they are required by law to keep a record of their proceedings at all meetings.</p> <p>7. Evidence—parol evidence—as to matters which ought to be of record. Where the law requires records of proceedings to be kept, they are the only lawful evidence of the action to which they refer, and such record can not be contradicted, aided or supplemented by parol.</p> <p>8. Same—as to proceedings of commissioners of highways. On a proceeding by mandamus by the commissioners of highways against the county board, to compel an appropriation in aid of the construction of a bridge, the relators offered to prove, by parol, that at a certain meeting they determined to build the bridge, that it was necessary, that its construction would be an unreasonable burden on the town, and that a tax was levied by them to raise half the estimated cost. They also offered parol evidence in respect to their estimate of the sum needed for making and repairing bridges for the year, including the cost of the proposed new bridge; that an estimate of the cost of such bridge was procured from the county surveyor, of which no record was kept; of the rate per cent of the levy for bridge purposes, and of the amount collected and turned over to the commissioners, and what part of it was for the new bridge,—to all of which the court sustained objections: Held, that the ruling was correct, as all the facts offered to be proved were or ought to have appeared of record.</p> <p>9. The same rules of law apply to the commissioners of highways, in respect of their corporate action, as are applied to other municipal corporations; and the record of their action required by law to be made and kept, becomes the best, and if in existence and capable of being produced, the only evidence thereof.</p> <p>10. Bridges—county aid-prerequisites. Commissioners of highways, to avail of the provisions of section 110 of the Road and Bridge act, giving them a right to demand county aid in the construction or repair of a bridge, must make it appear, first, that a necessity exists for its construction or repair; second, that its construction or repair will be an unreasonable burden on their town; third, that the cost thereof will exceed such sum as can be raised in any one year by ordinary taxation for bridge purposes in the town; and fourth, that one-half the necessary funds therefor has been provided by the town. These facts are jurisdictional, and without their existence and concurrence the county board has no power to appropriate funds from the county treasury under this section.</p> <p>11. Same—who to ascertain and determine the existence of these jurisdictional facts. The determination of these jurisdictional facts is, by the statute, left to the commissioners of highways. They must, when acting together as a board, determine that the construction or repair of a bridge in their town is necessary; that its construction or repair would be an unreasonable burden on the town; that the cost thereof will exceed the sum that can be raised in one year by ordinary taxation for bridge purposes, and that they, by means within their control, have provided one-half of the necessary expense thereof. Of this determination they must keep a record.' It can not be shown by parol evidence.</p> <p>12. Same—granting partial aid, as an estoppel to refuse the residue. The fact that a county board, when applied to by the commissioners of highway's for an appropriation of one-half the cost of a bridge, makes an appropriation of a less sum than demanded, can not be held to estop the board from refusing the balance, when it appears that it was under no legal obligation to appropriate any sum whatever.</p> <p>13. Same—evidence of requisite facts. The fact that the county board was petitioned for county aid may be shown by the petition itself, but such petition, though made and signed by' the commissioners, can not be regarded as proof of the facts therein recited, so as to supply the absence or take the place of the record of the commissioners’ action required by law to be kept.</p>

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

<p>Practice in the Supreme Court—taking cause for decision, without service or appearance. Errors were assigned upon a very imperfect record, and an order was made taking the cause for decision, without service of process upon the defendant in error, or joinder in error, or appearance of the defendant. The order taking the ease was set aside at the next term, and the cause placed upon the docket, with the understanding that if it was not ready for submission by the term following, it would be stricken from the docket.</p>

<p>1. Measure of damages—in action on appeal bond. In an action on an appeal bond given on an appeal from a judgment of a justice of the peace, when the appeal is dismissed, the real amount of the recovery sought is the amount of the justice’s judgment, with interest thereon, and costs. The judgment for the penalty of the bond would be satisfied by the payment of that amount.</p> <p>2. Appeal bond—discharge by payment of judgment appealed from. Payment of the judgment appealed from, with interest and costs, will discharge the surety’s liability on the appeal bond.</p> <p>3. Limitation—of action on appeal bond. An action on an appeal bond given on appeal from a judgment of a justice of the peace, brought to recover the amount of the judgment of the justice, after dismissal of the appeal, is not barred after the lapse of five years from the time an action on the judgment accrued. Whatever may be the limitation as to an action on the judgment, an action on the bond will not be barred until ten years after the cause of action thereon accrued.</p> <p>4. The undertaking of a surety upon an appeal bond is not a collateral one, but an absolute covenant that the principal shall pay the judgment appealed from, upon the dismissal of the appeal, with interest and costs, and an action thereon is not barred by any period short of ten years.</p>

<p>Appeal—whether a freehold is involved—claim of exemption from levy and sale on execution. In bill in chancery to enjoin the sale of a lot levied upon by the sheriff under an execution, on the ground it was, and had been, the homestead of the complainant, and was therefore exempt, no question of freehold is involved, and no appeal or writ of error will lie, to enable the bringing of the case to this court in the first instance.</p>

<p>1. Insurance—estoppel—as to condition relating to matters known to exist—knowledge of the agent as knowledge of the principal. An insurance company that takes a premium for a policy under conditions in respect to matters known to exist, that would render the policy invalid, will not be permitted to say that it is not a binding contract for that reason; and the company will be held as having the same knowledge of the condition and situation of the property as that possessed by the agent transacting the business for it.</p> <p>2. A policy of insurance contained a condition that the contract should be void if the property insured was on leased ground, unless that was specially agreed to in writing in or upon the policy. The agent of the company, when he filled up the application for insurance, knew that the property was so situated, and answered the questions from his own knowledge, and a policy was issued containing no mention of the property being on leased ground: Held, in an action on the policy for a loss, that the company was estopped from setting up the omission to state the condition of the premises in that regard, as a defense.</p> <p>3. Practice—refusing unnecessary propositions of law. Where the Court, on the trial of a case without a jury, is asked to hold certain propositions of law to be correct, it will not be bound to hold every proposition asked. It will be sufficient if those which are held to be correct, state every principle of law necessary to be considered in the decision of the case.</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>Contract of investment—evidence as to transfer and ownership of securities. A deposited with a loan broker about $1800 for investment, who had in Ms hands a bond for $2000, then past due, belonging to another, and indorsed in blank. The broker entered upon his books a charge to A of $2000, and a credit of $1800, and also a credit of $80 interest, and extended the time of payment to the debtor, taking coupon notes for the interest, payable to himself, and an agreement to pay the bond to him, and about two months thereafter sold and transferred the bond and coupon notes to B, to whom.he afterward paid the interest: Held, on a review of all the evidence, that as between A and B, the latter was the owner of the' bond and coupon notes.</p>

<p>1. Limitation—as between tenants in common. Where one tenant in common undertakes to establish an adverse possession of lands as against a co-tenant, in order to constitute a disseizin there must be outward acts of exclusive ownership, of an unequivocal character, overt and notorious, and of such a nature as to impart information, and give notice to the co-tenant that an adverse possession and an actual disseizin are intended to be asserted against him.</p> <p>2. Same—under act of 1839—color of title by will. A will purporting to devise lands described, when properly probated, is color of title in the devisees, under section 8 of the Limitation law of 1839. The statute does not require that color of title shall be based upon a money consideration.</p> <p>3. Same—color of title—good faith presumed. In the absence of evidence showing bad faith on the part of the holder of color of title, good faith will be presumed.</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>1. Fencing railroads—duty and liability in respect thereto. By the statute every railroad corporation is required, within six months after any part of its line of railway is open for use, to erect and thereafter maintain fences on both sides of its right of way, so far as the railroad has been opened for use, except at certain designated places, suitable and sufficient to prevent stock from getting thereon.</p> <p>2. The failure of a railway company to perform the statutory duty to fence its roadway after the expiration of six months, renders the corporation liable, prima facie, for stock killed or injured by its agents, engines or cars. The company may, however, avail itself of the whole six months in which to perform the duty, and if, prior to the expiration of that time, stock gets upon the railroad and is killed or injured, the owner can not recover without proving negligence on the part of the company.</p> <p>3. Before the time has elapsed in which a railway company is required to fence its road, it will be liable only for injuries to stock resulting from its failure to properly construct its road, or to manage and operate its locomotives and cars in a reasonable and prudent manner.</p> <p>4. Eminent domain—elements of damages—inconvenience or injury from throwing open farm lands, leaving them unfenced. The inconvenience of having a man’s farm or pasture land thrown open during the construction of a railway through the same, and for six months after the road is open for use, may be a material element of damage, and may be considered by the jury in the assessment of damages to the land not taken.</p> <p>5. While it would be clearly incompetent and improper for the jury to enter upon conjecture as to the probable injury to stock, or the damages that may result therefrom, during the time the company is not required to fence its road, yet if, in consequence of the appropriation of the land by the company as a right of way, the present market value of the land through which the road is located, either for sale upon the market, or the value of the use of the land for the purposes to which it is appropriated or to which it is adapted, is depreciated, such depreciation in value, or loss to the land owner, is an element of damages proper to be considered by the jury in determining the compensation to be paid for the land damaged but not taken.</p> <p>6. Same—of an instruction on that subject. On an assessment of damages in a proceeding to condemn land for a right of way by a railway company, the court instructed the jury that “railroad corporations are not required to fence their roads for six mouths after said roads are open for use, and the damages attending the keeping open of the farm for that length of time may properly be considered by you as an element of damages:” Held, that the instruction was faulty, in assuming there would be damage attending the keeping open of the farm. That question, and whether the farm would be left open, should have been submitted to the jury; but in the absence of any stipulation to erect fences so as to prevent injury to the land owner, and there being no conflict in the evidence as to the location of the road and its injurious effect on the uses of the land, it was held that the error was harmless.</p> <p>7. Same—danger from fire, as an element of damage. If by reason of the proximity of buildings, fences, and the like, to the track of the railroad, the market value of the farm it crosses, as a whole, is depreciated, or if, from the ordinary and usual manner of the operation of the road, the danger from fire has a tendency to lessen the value of the premises for sale, or for the use to which they are appropriated by the owner, or to which they are adapted, that fact becomes an important element in fixing the damages to the owner.</p>

<p>"1. Will—power in executors to sell and convey property given in trust— by implication. Authority in executors to sell and convey property devised to them in trust, may arise by implication, as, where duties are imposed upon the trustee by the will or instrument creating the trust, which he can not perform without making a sale, the law will imply the necessary power to prevent a failure of the purpose of the trust. The law will not permit a trust to fail because it may be inartificially declared or expressed.</p> <p>2. Same—direction for investment—whether power of sale to be implied—a devise construed. A testator, after making certain specific devises and legacies, directed that the residue and remainder of his estate, both real and personal, be and remain in the care and control of his executors and trustees, “well and safely invested, until the decease of the last survivor of the life annuitants” named in his will, when the residue, with the accumulated interest thereon, should be divided, etc.: Held, that the direction to keep the property “well and safely invested,” gave no power, by implication, to the executors, to sell the same, but meant that the property was to remain invested as it was at the time the will took effect.</p> <p>3. To sustain the doctrine of equitable conversion by executors, the provisions of the will must be so clearly written as to leave no doubt of the intention of the testator to have his real estate converted into personalty.</p> <p>4. SAME—residuary clause—what will pass thereby. A testator domiciled in Massachusetts, owning a large estate in that State, and lands in Hew York and in this State, after making various life bequests and legacies, by his will provided that the residue and remainder of his estate, not therein otherwise disposed of, should be and remain in the care and control of his executors and trustees, and their successors, well and safely invested, until the decease of the last survivor of the life annuitants named, when such residue should be equally divided between his grandchildren, per stirpes, etc.: Held, that the residuary clause of the will was broad enough to include all the property of the testator, no matter where situated, and was a valid disposition under the laws of this State.</p> <p>5. Same—perpetuity defined—whether a devise is within the rule. A perpetuity in this State is defined to be a limitation, taking the subject thereof out of commerce for a longer period of time than a life or lives in being, and twenty-one years beyond. A will postponing the final disposition of a part of an estate until after the death of certain life annuitants, which may not occur for forty or even sixty years, is not invalid, as contravening any rule of public policy existing in this State.</p>

<p>1. Appeal—reviewing the facts. Where there is evidence tending to prove the averments of the declaration in an action at law, this will preclude this court from investigating the controverted questions of fact.</p> <p>2. Same—negligence as a question of fact. In an action to recover damages for the death of plaintiff’s intestate, on the ground of negligence in the construction of an elevator, whereby the death was caused, the question whether the defendant was guilty of the negligence charged, is a question of fact, as to which the finding of the Appellate Court is conclusive.</p> <p>3. Instructions—refusal to repeat. A judgment will not be reversed for the refusal of the court to give an instruction, when the law is stated with sufficient fullness, and the substance of the refused instruction, in a large measure, is embodied in those given.</p>

<p>1. Gift—of an executed gift, as distinguished from a mere promise to make a gift. Where a husband and wife conveyed lands of the former to a third person, at the request of the latter, under a promise of the grantee to pay off certain liens on the premises, and then to convey the same to the wife, and the grantee paid off the liens, such payment will constitute an executed gift to the wife, and not a mere promise to make a gift.</p> <p>2. Trust—by implication—Statute of Frauds. Where husband and wife, on the request of another, convey land to the latter, to be by him conveyed to the wife, although without any express agreement that a trust shall be created, the law, by construction, will raise a trust in the grantee in favor of the wife, which a court of equity may enforce. In such case, the Statute of Frauds will not apply.</p> <p>3. Subrogation—discharging incumbrances—whether the right of subrogation will exist. It is only when the payment of incumbrances is necessary to protect the rights of the payer, or when they are paid pursuant to an agreement with the debtor that the payer shall hold them as security for the money advanced, that the payer will be subrogated to the rights of the holders of such liens, and the liens will be kept alive for his benefit.</p> <p>4. Where the demand of a creditor is paid with the money of a person not himself a creditor, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, the demand will be absolutely extinguished, and more especially so when the payment is made as a gift to the debtor.</p> <p>5. Landlord and tenant—lease by a trustee—in what relation the cestui que trust stands. Where a mere naked trustee, with the consent of the cestui que trust having the beneficial title and right to the possession, leases the trust property, the leasing will be regarded as the act of the cestui que trust, and he will be entitled to whatever rights belong to the landlord.</p>

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

<p>1. County officers—duty to report fees, etc.—at what intervals. The clerk of the Probate Court, and certain other county officers of Cook county, are required by law to make semi-annual reports of all fees, etc., on the first days of June and December, respectively, in each and every year, to the chairman of the county board, and after their accounts have been audited, to pay the balance found in their hands, above their compensation, to the county treasurer.</p> <p>2. The clerk of the Probate Court of Cook county is not required by law to make monthly reports of the affairs of his office, nor is he required to pay over the balance found in his hands, except after his semi-annual reports shall have been audited by the county board. That board has no authority of law to require him to make monthly payments into the county treasury, and he may rightfully disregard any such order.</p>

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

John J. Glenn, Judge, presiding. This hill was exhibited by Mary Griffin, against Amelia Griffin, widow, and Rettie Griffin, Oliver Griffin and Sarah Griffin, minors, children and heirs-at-law of George Griffin, deceased.

<p>1. Homestead—what embraced in the exemption. Where, at the time of the rendition of a judgment against a party, he was occupying, as his homestead, four contiguous lots, inclosed together, not exceeding in value §1000, they will be exempt from sale under such judgment, he continuing to occupy the same, and being the head of a family.</p> <p>2. Same—acquiring a new homestead—as to intervening judgments. Where the head of a family has sold his homestead, and secured another lot of ground and erected thereon a dwelling, with the manifest intention of making it a homestead, and actually does move upon it within a reasonable time, and its value is not in excess of $1000, he will be protected in the same against a judicial sale upon an intervening judgment.</p> <p>3. At the time of the recovery of a judgment against a party, the head of a family, residing with the same, he had sold a former homestead and purchased lots for another, which he had in possession, upon which he was erecting a dwelling house, which was, within a reasonable time thereafter, completed, and he then, with his family, moved into the same, and occupied it until his death. The whole property did not exceed §1000 in value. The property so constituting the new homestead was sold upon execution under the judgment, and a sheriff’s deed made: Held, that the property was exempt from sale, and that the sale and sheriff’s deed were void.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. W. H. Snyder, Judge, presiding.

Henry M. Shepard, Judge, presiding. This was a petition under the Burnt Records act, (Rev. Stat. chap. 116,) by Patrick Caraher, against appellants and others, to establish and confirm his title to lot 3, in block 9, school section addition to Chicago, and lot 21, in Gurley’s subdivision of block 10, canal trustees’ subdivision of the south-east quarter of section 17, town 39, range 14 east, in Cook county, Illinois.

George W. Stipp, Judge, presiding. Late on Saturday night of March 19, 1881, the Chicago, Rock Island and Pacific Railway Company started a train, consisting of a sleeper, passenger car and baggage car, to pass' on its road from Bureau Junction to Chicago. There was at the time a violent storm of wind and snow, which had begun some twenty-four hours earlier.

William Marsh, Judge, presiding. This was an action of assumpsit, brought by Cornelia B. Grimshaw, against Albert W. Jansen, Frederick G. Jansen and Charles C. Jansen, to recover the amount of a promissory note executed by the defendants, under the firm name of F. W. Jansen & Son.

<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. John P. Altgeld, Judge, presiding.</p>

<p>1. Eminent domain—right of entry pending petitioner’s appeal. Where-a railway company prosecutes an appeal from the assessment of compensation and damages, and gives the bond provided for in section 13 of the Eminent Domain act, conditioned for the payment of such compensation as may be finally adjudged in the case, it will have the right to enter upon the use of the property pending the appeal, and it will be error in the trial court to refuse the petitioner an order authorizing such entry and use.</p> <p>2. Same—conditional acceptance by land owner of compensation money deposited as a condition to granting'right of entry pending appeal—effect upon the appeal itself. Where a railway company seeking a condemnation, for right of way and for depot grounds, appealed from the assessment of compensation and damages, and was required to deposit the amount of the assessment with the county treasurer before the court would make an order giving a right of entry pending the appeal, and the land owner, before the trial of the appeal, received the condemnation money of the treasurer upon condition he would return the same to the company in case of a reversal of the judgment, it was held, that the receipt of the money under such circumstances was not such a satisfaction and extinction of the judgment as that no appeal would lie from it, and consequently no ground for dismissing the appeal. In such case, the payment was not intended by the parties as a payment of the judgment appealed from.</p> <p>3. Same—damages as to land not taken—burden of proof—evidence in rebuttal. The petitioner, in seeking to condemn land for railway purposes, is not bound to assume that land not taken will be damaged, and go on and make proof in respect of it, nor, in the absence of proof by the land owner tending to show such damage, is it bound to assume the burden of proving a negative.</p> <p>4. On the assessment of the compensation for land sought to be condemned for a railroad depot and right of way, the petitioner gave evidence as to the value of the land sought to be taken, but none as to damage to-land not taken. The land owner gave evidence on the question of compensation, and also as to damages to the land not sought to be taken, and the court refused to allow the petitioner to give evidence in rebuttal on the question of such alleged damages: Held, that the court erred in excluding the evidence offered in rebuttal in relation to the damages claimed as to the land not taken.</p>

<p>1. Construction or statutes—-whether to be given a retrospective operation. While the legislature has the power to pass statutes of a retroactive effect, yet, as a general rule, they are intended to operate in futuro, only, and a retrospective effect will not be given unless it clearly appears that such was the intention of the legislature, particularly if the rights of the public or of individuals may be injuriously affected thereby.</p> <p>2. Drainage law—discharging lands from, assessment—time within which to file petition. Section 43 of the Drainage act of 1883 limited the filing of petitions for amending the assessment roll so as to discharge lands not subject to overflow, to one year after the confirmation of the assessment. By the act of «1885 this section was re-enacted, giving additional grounds of discharge, and providing.that.the petition “for the correction of any assessment heretofore made” should be filed within one year-after the latter act should take effect: Held, that the act of 1885 applies only to that class of cases where the bar of the prior statute was yet incomplete when the later act took effect.</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. Elliott Anthony, Judge, presiding. Mr. Francis A. Riddle, for the plaintiff in error.

<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>1. Chancery—rule to answer, after amendment of bill. After the submission of a cause for hearing, upon the pleadings and proofs, the court, against the defendant’s protest, allowed an amendment of the bill asking relief not before sought, refused to continue the cause, and entered a decree embracing the new matters: Held, that the court could not properly proceed to hear the case made by the amendment, without first laying a rule upon the defendant to answer.</p> <p>2. Assignment of error—must be upon the record. Cross-errors, to be considered, must be written upon or attached to the record, as required by rule 15 of this court. It is not sufficient that they are written upon a separate piece of paper.</p>

John V. Eustace, Judge, presiding. Shortly before his death, Charles Medler, of Carroll county, made and published his last will and testament, in these words: “In the name of God, amen: I, Charles Medler, of the age of sixty-nine years, of the city of Mount Carroll, in the county •of Carroll, and State of Illinois, being of sound mind and memory, do make, publish and declare this my last will and testament, in the manner following,—that is to say: I will and direct that all…

<p>Writ of Error to the Circuit Court of Fulton county; the Hon. John C. Bagby, Judge, presiding.</p>

<p>1. Sectarian schools—public aid thereof—constitutional inhibition —whether a school is sectarian. The fact that an institution.of learning teaches the doctrines of a particular church or religious sect, and that all exercises of a religious character are of those of such church, will render the institution sectarian, within the meaning of section 3, of article 8, of the constitution, prohibiting the payment from any public fund of anything in aid of any church or sectarian purpose, although all its pupils may not be instructed in such sectarian doctrines.</p> <p>2. The refusal to admit a judge of a court having the power to commit dependent girls to an industrial school, into the place where such school is alleged to be kept, unless he should first obtain a permit from a bishop or member of the Roman Catholic church, is a strong circumstance tending to show that such school is controlled by that church.</p> <p>3. Same—industrial school for girls—delegating its charge to other institutions which are sectarian in character—county aid,. The Chicago Industrial School for Girls, a corporation having no building of its own, placed all girls committed to it by the county court, in the House of the Good Shepherd and St. Joseph’s Orphan Asylum,—institutions under two orders of the Roman Catholic church,—which furnished them with clothing and tuition, and received all the pay allowed therefor by the county. It also appeared that the officers of the industrial school were also officers of the two institutions named, and that the doctrines of the Roman Catholic church were taught therein to some of their pupils: Held, in a suit by the industrial school against the county, to recover for the price of tuition and clothing of dependent girls committed to its charge and custody, that the money sought to be recovered would be a payment in support of schools controlled by a church, and in aid of a sectarian purpose, and that the action would not lie.</p> <p>í. The constitutional prohibition against the appropriation of public moneys in aid of any church or sectarian purpose, is not confined to gifts ■or donations, but applies equally to cases where the payment sought to be made is for services rendered.</p> <p>5. The design,of the act of 1879, relating to industrial schools for girls, is, that each of such schools shall maintain a home or place of its own, and superintend the training of its own scholars. They can not surrender the care and guardianship which they are themselves required to exercise, or intrust to others the instruction and training they are required to give, and if they do, they can not compel the county to pay for the instruction and services furnished by other agencies. They can not delegate the duties imposed on them to other institutions.</p> <p>6. The county board is required to pay for the tuition, etc., of dependent .girls, to the industrial school to which they may in fact be committed. It is not enough that the county judge orders their committal, but they must be actually taken to the school and placed within its buildings. If the county board finds that the girls have never been taken to any industrial school, but that they have been taken to and kept and maintained by other institutions that are not industrial schools, and to whose care and keeping no industrial school has any power to transfer them, it becomes a serious question whether there is any authority for allowing the accounts rendered, and ordering them paid out of the county treasury.</p> <p>7. Same—action of the county court—its extent. ' The adjudication of the county court involves no other questions than that the girl is dependent, and should be committed to a certain school. Its judgment does not determine that the county must pay for her maintenance. The obligation of the county to pay, is derived from the language of the law itself.</p> <p>8. Constitutional law—wrongful application of a statute. The prohibition of a county, by the constitution, to pay money to a school under the control of a church, must prevail over a statute requiring such payment; and when an attempt is made to apply a statute to a given state of facts that will give rise to a violation of such provision, the prohibition will apply the same as though the statute, on its face, were in conflict with the organic law.</p> <p>9. Same—when constitution is self-executing. Section 3, of article 8, of the constitution, prohibiting the appropriation, payment or gift of public moneys for any sectarian purpose; is self-executing, and applies without the aid of any legislation on the subject.</p> <p>10. Appeal—directly to this court—in respect to the validity of a statute, or construction of the constitution. Under section 88 of the Practice act, an appeal lies directly to this court when the validity of a statute is involved, or when the construction of the constitution is involved. A statute may be invalid from the uncertainty of its provisions, though ordinarily it is valid if it conforms to the constitution, and invalid if it does not.</p> <p>11. Same—construction of constitution—when the question is involved. The question of the construction of the constitution may be involved in the question of the validity of a statute. A provision of the constitution may be of such doubtful import that a statute will be in conflict with it if given one construction, and not in conflict with it if given another construction.</p> <p>12. A question of the construction of a self-executing clause of the constitution will generally arise when it is applied to a given state of facts. If the meaning of a prohibition contained in such a clause is perfectly plain, there is nothing to construe; but if there is a doubt as to the meaning of any word or phrase when applied to the proven facts, then a case for construction has arisen.</p> <p>13. Where a proposition presents the hypothesis that certain proven circumstances constitute a sectarian purpose, for which an appropriation or payment of public funds is sought, there is involved the construction of the word “sectarian,” as used in the constitution.</p> <p>14. To determine whether or not an indirect method by which money is to be taken out of the county treasury in the name of a corporation, and passed into the hands of sectarian schools, comes within the prohibition of section 3, article 8, of the constitution, involves a construction of that section as to the meaning of the words “in aid of,” used therein.</p>

N. W. Green, Judge, presiding. Christian Zehr brought an action of trespass quare clausum fregit against John M. Pearson and others, in the circuit court of Tazewell county, for breaking and entering his close, with force and arms, and killing certain horses and destroying certain harness of the plaintiff.

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

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

<p>Appeal from the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding.</p>

<p>1. Eminent domain—measure of damages—of an instruction in respect thereto. In a proceeding for the condemnation of land for right of way for a railroad, the court instructed the jury, that in considering the compensation to be paid for the land about to be taken, they should fix the actual cash value of the land taken, and that they were not to consider the price at which the property would sell for under special or extraordinary circumstances, but its fair cash market value if sold in the market under ordinary circumstances, for cash, and not on time, and assuming that the owner is willing to sell and a purchaser is willing to buy: Held, that there was no error in the instruction. Such an instruction does not make a distinction between the market value and the cash value of the property.</p> <p>2. Same—evidence on the question of value of property. On the hearing, in 1887, of a proceeding to condemn land for a right of way by a railway company, the land owner stated that he bought the property in 1880, and then proceeded to state what improvements then existed in its vicinity and what have since been made there affecting its value, and what other considerations, in his opinion, affected and enhanced its present value. On cross-examination, he was asked what he paid for the land when he bought it, which was objected to: Held, there was no error in allowing the question. The original cost, though not a very material circumstance, was a proper one to be considered, as tending, in a slight degree, to affect the question of value.</p> <p>3. SAME—existence of corporation seeking condemnation—how questioned. In a proceeding by a railway company to obtain a right of way, the county court has no jurisdiction to determine whether or not the petitioner is a bona fide corporation, within the meaning and spirit of the law. That can be done only on quo warranto.</p> <p>4. Same—location of line of railway—admission of land owner. "Where the land owner, by his cross-petition for damages to land not sought to be taken, alleges that the petitioner has located its right of way over and across the premises, describing them, this will be regarded as an admission that the petitioner has located its line of road, within the meaning of the law.</p> <p>5. Same—practice—time to object that location of line of road has not been shown. The objection that a railway company seeking to condemn for a right of way, has not located its line of road, should be addressed to the court before evidence is given to the jury, when the court would have required satisfactory proof in that regard. The objection comes too late on appeal or error.</p> <p>6. Witness—impeachment—laying the proper foundation. In order to prove the prior statement or admission of a witness by way of impeachment, it is only necessary to call his attention to the substance of such statement or admission.</p> <p>7. In a proceeding to condemn land claimed to be valuable for dock purposes, the owner, on cross-examination, was asked if he did not say to A, about a year before, in the office of the former, that the land was worth $300 an acre as it lay, and it would not pay to improve it with docks. The owner answered: “No, sir; we were talking about this property and land in the 0. farm—not about this property.” A was called, who, after stating he had the conversation referred to, was asked what property was the subject of the conversation, and answered that he understood it to apply to the property, generally, on the 0. river, and said: “But in our conversation we were referring to the A. property. What brought about our conversation was that, but we were talking about the river front, generally,—as to its personal value and cost of improvement. ” He was then asked, “What did Mr. B. (the owner) say on that occasion,” and replied: “He said there was no river property that was worth to exceed $300 an acre. Says he, ‘It cost me $4000 an acre to fill it:’ ” Held, that a proper foundation was laid for the inquiry as to what the owner did say in the conversation referred to.</p> <p>8. Evidence—-proof of admission of party in interest—preliminary proof. It is always competent to prove an admission of a party in interest, to his prejudice, when it relates to a matter material to an issue being tried, without previously examining him in reference to it.</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. Murray F. Tuley, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of De Witt county; the Hon. Cyrus Epler, Judge, presiding.

<p>1. Master and servant—respondeat superior. Where the plaintiff has been injured by the gross misconduct of the defendant’s servant while engaged in the service of his principal in driving a wagon and team along a street, in driving into and colliding with the wagon and team of the plaintiff passing along the highway, and the plaintiff, at the time of the injury, was observing due care for his personal safety, the master will be liable for the injury.</p> <p>2. Appeal—whether damages are excessive, as a question of fact—the rule of damages, a question of law. Whether the damages awarded in a case are excessive or not, is a question of fact, not reviewable in this court. The amount of damages a party may have sustained from a personal injury, is a question of fact, but the rule for ascertaining the damages is a question of law.</p> <p>3. Instruction—omission in one cured by another embodying the principle. In an action to recover for a personal injury caused by the misconduct and negligence of the defendant’s servant, it was objected that the first and second of the plaintiff’s instructions omitted to present the question whether the plaintiff exercised ordinary care to avoid the injury. The third instruction of the series, however, contained the principle which was wanting in the two preceding ones, and this was held to obviate the objection, and that there was no occasion for stating the doctrine insisted upon in the first and second of the series.</p>

<p>1. Assignment on error—as to matters favorable to the party alleging error—absence of cross-errors. On bill to forclose a mortgage, the defense of usury was interposed and sustained, thereby reducing the amount to be paid below that expressed on the face of the obligation- On appeal, however, the decree was reversed, but upon grounds other than that involving the question of usury. On remandment, the mortgagor set up that the clause upon which the defense of usury had been predicated, was improperly inserted in the instrument after its execution and delivery. On this second hearing that contention was not sustained, but it was again decided that the transaction was usurious, and decree accordingly. On appeal from that decree by the mortgagor, it was considered unnecessary to inquire whether the finding upon the question of usury was right or not, because the appellant could not complain of it, as it operated in his favor by reducing the amount of the decree against him, and because the appellee had assigned no cross-errors.</p> <p>2. Admission—interposing one lime of defense, as admitting the nonexistence of another. On foreclosure, usury was interposed as a defense. At a subsequent stage of the cause, by amended answer, the defendant alleged that the clause in the contract in respect of which the question of usury arose, was an unauthorized alteration of the contract after its execution and delivery. But it was considered that the defense of usury impliedly admitted the execution of the contract with that clause in it.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding. Plaintiffs in error, by their next friend, brought their action in the Coles circuit court, against the defendant in error.

Writ of Error to the Circuit Court of McDonough county; the Hon. Charles J. Scofield, Judge, presiding. This was an indictment against William Butler, Franklin Butler, William Simkins and George Stuckey, in which they were charged with the murder of John Butler, on the 4th day of June, 1887, in McDonough county.

<p>1. Limitations—act of 1839—as against claim for dower. The remedy to enforce the right of dower is embraced within the provisions of section 6 -of the Limitation law; and a widow must pursue her remedy within the seven years therein prescribed, or her claim will be effectually barred, as against a party who has been in adverse possession for seven successive years, under claim and color of title acquired in good faith, and has also, during that time, paid all taxes assessed on the land.</p> <p>2. Same—color of title-what constitutes—administrator’s deed. A deed having a grantor and grantee, and containing a description of the land intended to be conveyed, and also apt words of conveyance, is good as color of title under the Limitation act of 1839. It makes no difference that the deed fails to pass an absolute title, because the grantor had none to convey, or had no authority to convey one, or whether such want of authority appears on the face of the instrument or aliunde.</p> <p>3. An administrator’s d§ed of the land of his intestate, making no reservation of the widow’s dower, is good color of title to the entire estate in the land, according to the purport of the deed upon its face, under section 6 of the Limitation law.</p> <p>4. One holding under a deed as color of title, is not obliged to go back to the proceedings which precede the deed, to see if there was proper authority for its execution. So although the petition of an administrator for an order of sale of lands to pay debts, states that the widow has dower in the premises, and the decretal order finds the allegations in the petition to be true, that will not impair the administrator’s deed, which contains no reservation of the dower right, as color of title to the land free of any burden of a claim of dower.</p> <p>5. Same—good faith—the elements of it. The knowledge by the holder •of a deed which is color of title, of an adverse claim to or lien upon the property, does not, of itself, indicate bad faith in the holder, and is not even evidence of it, unless accompanied by proof of some improper means to defeat such claim or lien.</p>

John V. Eustace, Judge, presiding. This was a bill in chancery, in the Carroll circuit court, filed by appellant, Schwass, against Hattie E. Hershey, Andrew H. Hershey, L. Sherman Bowen and Thomas Skipper, alleging that he purchased of Hattie E. Hershey and said Bowen a lot of ground, now included in L. S. Bowen’s addition to the city of Savanna, in said county, and being all of lot 7 and part of lot 5 in the plat of said addition, for $125, and that only lot 7 was conveyed…