Volume 130 — Illinois Reports

William Brown, Judge, presiding. John Allison filed his bill against I. N. Perry and M. D. Hathaway, setting forth, among other things, the purchase of about six hundred acres of land, known as the “O. J. Booth land,” by the three parties to the suit, in equal shares, and as partners, and charging that Perry promised the complainant to take into the partnership, as assets, the “Royal lands,” (about one hundred and ten acres belonging to him, Allison,) at $55 per acre, or as…

William H. Snyder, Judge, presiding. All laws exempting property from taxation will be strictly construed, and all doubts solved in favor of the State. In re Swigert, 123 Ill. 267; 119 id; 83; People v. Seamen’s Friend, 87 id. 246; Cooley on Taxation, 54; Theological Seminary v. People, 101 Ill. 579. Under the tax exemption laws of Illinois, private schools or institutes are not exempt from taxation, nor are educational institutions, when conducted with a view to profit.

Joseph E. Gary, Judge, presiding. This is an action of assumpsit, by appellants, against ap-pellee, begun in the Superior Court of Cook county. The original declaration consisted of eight special counts. The first four and the sixth were withdrawn.

M. F. Tuley, Judge, presiding. The town of Lake was incorporated under a special charter, approved March'26, 1869, and by the act it was given power “to control and regulate the streets, alleys and other public places, and abate any obstructions, encroachments or nuisances thereon.” The Chicago Municipal Gas Light and Fuel Company became incorporated on March 24,1884, under the general law, and on March 25,1884, at nine o’clock A. M., its certificate of organization was…

Wbit of Ebbob to the County Court of St. Clair county; the Hon. John B. Hay, Judge, presiding. Held: that the whole of the land constituted a part of the company’s right of way and its railroad track, and as such could not he legally assessed by the local township assessor.

<p>1. Contest of will—testamentary capacity — evidence—burden of proof. On the trial of an issue as to the testamentary capacity of a person deceased, on bill to contest his will, the burden of proof, in the first instance, devolves upon the proponents of th§ will to show such capacity; but alter they give in evidence the will, and the testimony of the subscribing witnesses given on the probate, the burden of proof no longer rests on them,—then it is the duty of the jury to determine whether the testator possessed the requisite testamentary capacity, from the weight of all the evidence introduced by the respective parties.</p> <p>2. On the contest of a will in a case where the proponents of the will had given in evidence the original will, with the testimony of the subscribing witnesses taken in the county court, the trial court, on behalf of the contestant, gave this instruction: “The court instructs the jury, that the burden of sustaining the will in this case is, by law, cast on defendant, who avers its validity; and unless the defendant has shown, by the burden of proof, that said A. P., at the time he executed said will, was of sound mind and memory, you should find said will not to be the last will and testament of said A. P.Held, that the instruction was clearly erroneous.</p>

Joseph B. Gary, Judge, presiding. This was an action of assumpsit, brought by appellees, to recover a balance of $1368.92 alleged to be due them from appellants, and also for damages for the failure of appellants to deliver 80,000 bushels of wheat, which they had bought, as brokers, for appellees. The declaration contains two special counts and the common counts.

Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. The rule of comity is never extended to real estate. Burrill on Assignments, (4th ed.) sec. 308; Westlake on Private International Law, 177; Wharton on Com. Am. Law, see. 299; Insurance Co. v. Commercial Bank, 68 Ill. 348; Gardner v. Nat.

<p>Wbit of Erbob to the Circuit Court of Crawford county; the Hon. C. C. Boggs, Judge, presiding.</p>

Henry M. Shepard, Judge, presiding. When the court, by its receiver, took charge of the assets of the Montello Granite Company, it held them for… Held: that even in the ease of a naked trust the trustee must be a party in order that a decree may affect the trust estate, (McGraw v. Bayard, 96 Ill. 146, Bennitt v. Mining Co. 119 id. 9,) and that where a party comes in by amendment, the suit is pending as to him from the date of the amendment, only. Crowl v. Nagle, 86 Ill. 437.

This is an original petition for mandamus, filed in this Court by Maurice F. Tissier against Philip Bhein, the County Clerk of St. Clair County, to compel the latter to issue to the petitioner a certificate of election, certifying to the election of petitioner as a justice of the peace in the town and city of East St. Louis in said county.

William Bbown, Judge, presiding. This was an action on the case, brought in the Ogle circuit court, by appellee, Elliott Lane, a minor, by his next friend, Gilbert Lane, against the Chicago and Iowa Railroad Company, appellant. The injury complained of resulted from a collision between a passenger train on appellant’s road and a team and wagon driven by appellee, in the city of Rochelle, at a street crossing, on the 29th day of July, 1887.

John P. Altgeld, Judge, presiding. Upon the death of an ancestor, the real estate he may leave undevised.descends at once and vests in the heir, subject to the lien of his ancestor’s debts, if personal property is insufficient to pay them; and such a title is deemed worthier in law than a title by devise. Smith v. McConnell, 17 Ill. 135; McCoy v. Morrow, 18 id. 519; Bishop v. O’Conner, 69 id. 431; Kennedy v. Northup, 15 id. 148.

John P. Altgeld, Judge, presiding. This court may review the evidence to see if it justified the rulings of the trial and Appellate courts. Holmes v. Railroad Co. 94 Ill. 444; Union Ry. Co. v. Shacklet, 119 id. 232 ; Railroad Co. v. Thompson, 116 id. 159; Launtz v. People, 113 id. 144; City of Mattoon v. Fallin, id. 250 ; Fitch v. Johnson, 104 id. 119. Not only must negligence be shown, but this negligence must be shown to have caused the accident.

Geoege W. Wall, Judge, presiding. The words “public highway,” in the statute requiring the sounding of a bell or whistle on a train approaching a crossing, refer only to public roads in the country, and not to streets in the limits of cities and villages. Cleaves v. Jordan, 34 Me. 9; Waterford v. Oxford Co. 59 id. 450; Railroad Co. v. State, 51 Miss. 137. See, also, Starr & Curtis’ Stat. chap. 114, secs. 67, 68, 71, 99.

Bichard Prendergast, Judge, presiding. The owner of land objecting can not be specially assessed for a local public improvement to be located upon his private property. Railway Co. v. Alleghany City, 92 Pa. St. 100; People v. Haines, 49 N. Y. 587; In re Rhinelander, 68 id. 105 ; In re Cheesehrough, 78 id. 232. A special assessment can not be levied for an improvement the use of which contemplates a continuing trespass. In re Rhinelander, 68 N. Y. 105.

John Y. Eustace, Judge, presiding. Any act, either of a corporation or any of its officers, inconsistent with its charter, is void. Abbott v. Hard Rubber Co.. 33 Barb. 578; Railway Co. v. Bowser, 49 Pa. St. 29; Rollins v. Clay, 33 Me. 132; Cass v. Iron and Steel Co. 9 Fed. Rep.. 640; Polar Star Lodge v. Polar Star Lodge, 16 La. Ann. 53. The property of a corporation is a trust fund for the payment of its debts.

Amos Watts, Judge, presiding. A railway company may be compelled to perform its public duties by mandamus. Morawetz on Corp. sec. 487. Mandamus is a proper action to compel a railroad company to deliver grain at a particular warehouse. Railway Co. v. People, 56 Ill. 365. It will lie to compel a railroad company to so build its track, level and grade the streets, as to render the use of the streets and the crossings of the track convenient for the public.

<p>1. Bill to remove cloud upon title—parties claiming under a common source—which shall prevail. If both parties in a bill to quiet title and set aside the assumed title-of the defendant, claim from a common source, and the title of the complainant is subsequent and subordinate to that of the defendant, which is held under a valid sale under trust deeds given to the person under whom the respective claims are derived, the bill will fail.</p> <p>2. Evidence—as showing under whom one claims title. A person holding a conveyance of land, accepted a quitclaim deed containing this clause, after the description of the property: “Being the same property described in the deed heretofore made by us to G. W. 0., dated * * * This deed is made to clear away certain objections made to said last named deed, or to the abstract thereof, and is made to confirm the title of said grantee claimed under such deedHeld, the grantee in the later deed admitted, by his acceptance of it, that he claimed title under C. W. 0., and under a deed made by the grantors to 0. W. C., and that such quitclaim deed was procured by the grantee merely in confirmation of such title.</p> <p>3. Same—writings given in evidence generally—effect to be given them ■—whether party concluded by their contents. Where a party puts certain instruments in writing in evidence generally, and not specially for a particular and limited purpose, they will be in evidence to prove any fact material to the issues which they may tend to establish. But by giving them in evidence generally, the party will not be estopped from contradicting any statement contained in them.</p> <p>4. Deed of tbtjst—bill to foreclose—whether a waiver of right to sell under power in the deed. The doctrine that a mortgagee can not, during the pendency of his bill to foreclose, advertise and sell the mortgaged property under the power contained in his mortgage, has no application to a case where a creditor of the mortgagee, during the pendency of a suit against the latter, takes an assignment of the mortr gage debt, which he is to collect with reasonable diligence, and is to apply the proceeds of the collection on his claim against the mortgagee.</p> <p>5. Same—bill to set aside sale—prior suit pending, as tending to prevent competition. A filed a bill against 0 to establish an equitable lien on certain real estate, which the latter had sold and conveyed to D and E, taking their notes for the price, secured by two trust deeds. After C’s death, his heirs and legal representatives, for the purpose of settling the suit, transferred the notes given by D and E, to be collected and applied on A’s debt, which was conceded, and it was agreed that A’s suit should stand until the collection of these notes. A caused a sale to be made on the trust deeds given by D and E, whereby most of his claim was satisfied. It was claimed by H and S, who also claimed title under 0 to the property sold, that the sale under the trust deeds, while A’s bill was still pending, prevented competition. The property was sold for the amount due on the trust deeds, with the costs and expenses, and H and S’s title was subject to such deeds of trust. The sale under the trust deed did not pay the entire demand of A by about $3000: Held, that the failure of A to dismiss his bill before the sale under the trust deeds of D and E, afforded, no ground for setting aside the sales under the trust deeds, nor did the failure to announce on the day of sale that the proceeds of the sales were to be applied on A’s demand.</p> <p>6. In such case, the payment of the trust deeds of D and E would have worked the release of the land from A’s lien, and it was the negligence of H and S, or their willful repudiation of the trust deeds as constituting liens upon their title, after they had in terms assumed to pay them, that prevented them from redeeming their own property, and getting the benefit of the arrangement which the heirs of their cove-nantor had made for their protection.</p> <p>7. Same—claimant of lien—buying in adverse title. And pending the bill of A to establish his equitable "lien on the land, and before the arrangement by the heirs of 0 for payment to him, there would be no impropriety in his buying in an adverse title, and seeking to avail of it in furtherance of his efforts to enforce his own lien.</p> <p>8. Same—sale under trust deed—as to the mode of payment by the purchaser. A sale of land under a trust deed for no greater sum than is due on the debt secured, and the costs and expenses, will not be invalidated by the fact that the holder of the debt takes the notes of the piu'chaser for most of the purchase money secured by his deed of trust. In such case no one is injured by so giving credit to the purchaser.</p> <p>9. The fact that a purchaser at a trustee’s sale of a lot gave his notes for $900 in excess of his bid, for a deed to him by a third person having a claim on the property, whereby a cloud on the title is removed, will not render the sale invalid, or afford ground for avoiding the same.</p> <p>10. Chaucert—incompetent evidence—presumption that it was not considered. Where there is sufficient competent and proper evidence in a chancery suit to sustain the decree, the admission of improper evidence will not be material, as it will be presumed that the court, on the final hearing, rejected the same, and decided the case only upon the legal testimony.</p> <p>11. Same—amendment of bill after hearing and decision announced. After the hearing of a bill filed to remove certain deeds of trustees, made under deeds of trust, as clouds upon title, and the decision of the court was announced, complainants asked leave to file an amendment of their bill, offering to redeem from the trust deeds, which was denied: Held, that the allowance of the amendment at that stage of the case was a matter resting in the sound discretion of the chancellor.</p> <p>12. .Same—disclaimer by a defendant—in what way to be disposed of. A defendant in chancery filed a disclaimer of any interest whatever as to the" subject matter of the suit or the result thereof, denying all manner of unlawful combinations, etc. There was also filed a stipulation of the other defendants, releasing him from any and all liability. His answer under oath was waived, and no discovery was sought from him and no relief was asked against him. Upon this, the chancellor dismissed the bill as to him, to which action no objection was made at the time : Held, that while the proper practice would have been to have him stand as a defendant until the hearing, the dismissal as to him was not such error as to require a reversal of the decree.</p>

John P. Altgeld, Judge, presiding. This is an action of replevin to recover the possession of 17 pianos, valued in the affidavit for the writ at $6000.00.

<p>Appeal from the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding.</p> <p>This court will take judicial notice of the Superior Court of Cook county. Railroad Co. v. Lynch, 67 Ill. 150 ; Hearson v. Graudine, 87 id. 115; Harmon v. Chicago, 110 id. 400; Bruner v. Madison County, 111 id. 11; Railivay Co. v. People, 116 id. 401; Russell v. Sargent, 7 Bradw. 98.</p> <p>Section 2, chapter 116, of the Revised Statutes, can not be used or made to subserve any purpose beyond supplying a record, or part thereof, which has been lost or destroyed. This is its end and purpose, and any order beyond this, upon an application made under it, is void. Culver v. Colehour, 115 Ill. 558.</p> <p>The finding in an order or decree that due legal service of process has been had on the defendant, can not be contradicted in a collateral proceeding, dehors the record. Reddick v. State Bank, 27 Ill. 145; Osgood v. Blackmore, 59 id. 261; Barnett v. Wolf, 70 id. 76; Searle v. Galbraith,, 73 id. 269; Logan v. Williams, 76 id. 175; Turner v. Jenkins, 79 id. 228; Harris v. Lester, 80 id. 307; Fahs v. Darling, 82 id. 142; Andrews v. Bernhardi, 87 id. 365; Wenner v. Thornton, 98 id. 156; Matthews v. -Hoff, 113 id. 90.</p> <p>And such finding can not be impeached by the oath of the person on whom the service purports to have been made. Hunter v. Stoneburner, 92 Ill. 75.</p> <p>The summons was void, and the defendants were not in court. Bunn v. Thomas, 2 Johns. 190; Hitchcock v. Haight, 2 Gilm. 603; Calhoun v. Webster, 2 Scam. 221; Elee v. Wait, 28 Ill. 70; Miller v. Handy, 40 id. 448; Hildreth v. Hough, 20 id. 331; Grant v. Baggs, 3 East, 128; Rev. Stat. 1874, chap. 22, sec. 9.</p> <p>Upon such a summons the court had no jurisdiction. It could not enter judgment that defendants were in default, because it had not summoned them to appear,—and this appears by the record in the case itself. Smith v. Smith, 17 Ill. 483.</p> <p>Notice to defend is, by all law, necessary to jurisdiction. The King v. Chancellor, 1 Strange, 557; The Queen v. Archbishop, 1 E. & E. (108 E. C. L.) 545; In re Brook, 111 E. C. L. 416; 2 Coke’s Inst. 35 ; Cooper v. W. B. of W. 14 C. B. (N. S.) 108; E. C. L. 180; Dr. Bentley’s case, 1 Strange, 557; People v. Speer, 7 N. Y. 431; 2 Ld. Eaym. 1334; 8 Mod. 148; Fortesque, 202; Botsford v. O'Conner, 57 Ill. 76; Hayiuood v. Collins, 60 id. 332; Vail v. Iglehart, 69 id. 332.</p> <p>Where the service is by summons, the only knowledge the court can have of the summons and service is by the summons and return, which go before the judgment order on the roll, and are the foundation for it. Botsford v. O’Conner, 57 Ill. 78; Barnett v. Wolf, 70 id. 78; Hams v. Lester, 80 id. 316; Sloan v. Graham, 85 id. 28.</p> <p>If the requisite notice has not been given to or process served upon a party, then the court has no more authority to adjudicate upon his rights than a stranger or a private individual; and all the court does, and all its findings, are absolutely void,— as well the finding that the notice has been given or process served, as the others. Goudy v. Hall, 30 Ill. 116; Starbuck v. Murray, 5 Wend. 158; People v. Cassels, 5 Hill, 168; Canal Bank v. Judson, 8 N. Y. 259; Sears v. Terry, 26 Conn. 280.</p> <p>No case can be found in which a judgment order has been held good, where it has been solemnly adjudged in the same court, in the same record, upon fair and full trial, that jurisdiction was'assumed on a particular summons that on its face appears to be wholly void, and that did not sunimon the party to appear at that term or at any term. Orendorff v. Stanberry, 20 Ill. 89; Gill v. Hoblit, 23 id. 473; Botsford v. O’Conner, 57 id. 77; Pardon v. Dwire, 23 id. 572; Fell v. Young, 63 id. 108 ; Haywood v. Collins, 60 id. 334; Whitney v. Porter, 23 id. 447; Morris v. Hogle, 37 id. 153.</p>

<p>Writ of Error to the Circuit Court of Johnson county; the Hon. Oliver A. Harker, Judge, presiding.</p>

Lobin C. Collins, Judge, presiding. Is the excessive use, for over two years, of any narcotic substance which intoxicates its victim, sufficient ground for a divorce under the statute permitting divorce for habitual drunkenness for the space of two years ? Bishop on Marriage and Divorce, (6th ed.) 813; Barber v. Barber, 14 L. B. 375.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding. This was an action on the case, brought by Carrie Culver against the city of Streator, to recover damages for a personal injury. A demurrer having been sustained to the plaintiff’s original declaration, an amended declaration was filed, consisting of four counts.

<p>Practice in the Supreme Court—transcript of record—authentication. The statute (Eev. Stat. chap. 110, sec. 73,) requiring an authenticated copy of the records of decrees, judgments and orders appealed from to be filed in the office of the clerk of the Supreme Court on or before the second day of the succeeding term of that court, is not complied with by filing within the proper time what purports to be a transcript, but which contains no certificate of the clerk of the trial court that it is a transcript of the record in the case appealed from.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Criminal Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.</p> <p>The constitutional prohibition against special legislation applies only to the legislature, and not to cities, etc. People v. Harper, 91 Ill. 370; Covington v. East St. Louis, 78 id. 548; Baldwin v. Philadelphia, 99 Pa. St. 164.</p> <p>As to the power of cities to regulate the speed of cars and trains within their limits, see Redfield on Railways, 577, 578 ; Dillon on Mun. Corp. sec. 713; Cooley’s Const. Lim. (5th ed.) 575; Railroad Co. v. Haggerty, 67 Ill. 113; Fertilizing Co. v. Hyde Park, 70 id. 646.</p> <p>An ordinance may make discriminations as between places. East St. Louis v. Wehrung, 46 Ill. 392; Railroad Co. v. City of Richmond, 96 U. S. 151; Barber v. Connelly, 113 id. 27; Railway. Co. v. Dill, 22 Ill. 265; Merz v. Railway Co. 88 Mo. 872.</p> <p>The ordinance is void because it discriminates between the two competing railway lines. An ordinance which is partial or makes unjust discriminations is void. Cooley’s Const. Lim. 393; Tugman v. Chicago, 78 Ill. 405; Dillon on Mun. Corp. secs. 253-256, 261; Railway Co. v. Jacksonville, 67 Ill. 37; Meyers v. Railway Co. 57 Iowa, 555.</p>

<p>Writ of Error to the Circuit Court of McLean county; the Hon. Owen T. Reeves,.Judge, presiding.</p>

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

Frank Baker, Judge, presiding. This is an information in the nature of a quo warranto filed by the Attorney General of the State in the Circuit Court of Cook County against The Chicago Gas Trust Company, summoning the latter to answer to the People of the State by what warrant it exercises certain powers, privileges and franchises therein described.

Cyrus Epler, Judge, presiding. There is a variance between the allegations in the bill, and the proof. The bill charges that the transaction between appellants and appellee was a loan of money. The evidence clearly shows that it was a sale. It is a principle of chancery practice that a party “must recover, if at all, according to the case he has made in his bill.” He can not state one case in his bill and make out a different case in proof.

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

C. B. Smith, Judge, presiding. By written lease, March 11, 1884, Daniel Wampler became the tenant of appellant for three years, at a yearly rental of $500 and taxes assessed upon the premises rented. The rent, by the terms of the contract, fell due on the first day of January each year. Wampler occupied the farm rented, and raised crops thereon in the years 1884 and 1885.

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.

This was a petition filed in this court by George J. Sayer, against Gwynn Garnett, Thomas A. Moran and Joseph B. Gary, judges of the Appellate Court, for a writ of mandamus to compel the respondents to vacate an order dismissing an appeal.

Cyrus Bpler, Judge, presiding. This was a bill in equity, brought to reform a policy of insurance issued by the German Fire Insurance Company to one Fred Gueck, on the ground it purports to insure his interest in certain property, when it should have insured the interest of the complainants, whose agent they claim Fred Gueck was, and on the further ground that a mistake was made in the description of the land on which the building was erected.

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Adams county; the Hon. S. P. Shops, Judge, presiding. William T. Savage filed his hill in chancery, in the circuit court of Adams county, against Charles A. Savage and others, to foreclose a certain mortgage, which was in form a deed of trust.

Jesse J. Phillips, Judge, presiding. This was a bill filed in the circuit court of Montgomery county, by appellees, Mary E. McCambridge, Blair McCam-bridge and Jeremiah Sullivan, against appellant, Hobson, to set aside a levy, sale, certificate of purchase and sheriff’s deed to an eighty-acre tract of land, and to restrain Hobson from further prosecuting an action of ejectment therefor.

C. B. Smith, Judge, presiding. The words, “departs from and resides out of the State,” in the Limitation law, mean an actual and not an apparent residence. Prior to the amendment of the section, merely departing from the State stopped the running of the statute. In addition to being out of the State, there is engrafted by the amendment the additional idea of an actual residence out of the State.

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

George W. Herdman, Judge, presiding. As to the facts necessary to the probate of a will, see Dickie v. Carter, 42 Ill. 376. If the attesting witness swears only to his signature, this will not he sufficient. 10 Am. Dec. 237; Burwell v. Corbin, id. 495. When an appeal is taken from an order admitting a will to probate, the testimony of the subscribing witnesses must alone be sufficient to show due execution. Walker v. Walker, 2 Scam. 291; Andrews v. Black, 43 Ill. 259.

Writ op Error to the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding. The mere offer to sell property at a given price is incompetent evidence of the value of similar property in close proximity. Dickinson v. Inhabitants, 13 Gray, 546; Davis v. Railroad, Co. 11 Cush. 506; Tufts v. Charlestown, 4 Gray, 537.

This is a petition for a writ of mandamus, filed in this court hy the Board of Education of the city of Bloomington, against the mayor and city council of the same city, for the purpose stated in the opinion of the court.

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.</p> <p>This was an action upon the bond of J ames N. Longan, as school treasurer of a township, William Atteberry and Joseph F. Fisher being sureties. The bond was dated June 2, 1886, and contained the provision that the principal should account for all property that came to hand “after the date of this bond.” The defense was that Longan had fully accounted for all that was in his hands when the bond was made, or that came to his hands afterward, and that the liability for shortage should fall on the prior bondsmen who were such when it occurred.</p> <p>The principal question is, what effect shall be given to the entries in Longan’s books and the report made by him on the last day of his office.</p> <p>The sureties are liable only for what was actually, not constructively, in Longan’s hands. The terms of the condition are that he shall account for what “comes to his hands from the date of this bond up to the time that his successor shall qualify.”</p> <p>The change in the condition was made in 1879, after the Metamora case, 78 Ill. 394, was decided. (See Laws of 1879, p. 305, sec. 58.) It is to be presumed that this change means something. That change would be naturally interpreted to mean something like this: The courts have decided that sureties are liable for what is constructively in the principal’s hands; we will now make the bond so that they shall be liable only for what actually comes to his hands, and to that end the bond shall show that they are liable only for what he receives after the bond is made. To construe so plain a provision as meaning that the sureties are liable for what was not in the principal’s hands after the date of the bond, is to disregard those well known rules that implications are always in favor of sureties, and that they have a right to stand upon the very terms of their bond. No unlearned man would even imagine that those words would bea? such construction. It looks like the height of injustice to construe them to mean exactly the opposite of what they say, and to make the legislature appear to have set a trap for plain, honest, unsuspicious men, who ought to be protected, instead of injured, by judicial decisions. Farrar v. United States, 5 Pet. 373; United, States v. Boyd, 15 id. 187; United States v. Irving, 1 How. 250; Bruce v. United States, 17 id. 437; Miller v. Stewart, 9 Wheat. 702.</p> <p>When an officer makes entries in his books, or in a report which the law requires him to make, both he and the sureties' on his bond are estopped to deny the correctness of those entries. City of Chicago v. Gage, 95 Ill. 626; Fogarty v. Reame, 100 id. 369; Morley v. Metamora, 78 id. 394; Roper v. Samgamon Lodge, 91 id. 518.</p>

Lobin C. Collins, Judge, presiding. ■ Inadequacy of price, in order to constitute a defense to a bill for specific performance, must be so gross and palpable as to amount to fraud. Held: that on the refusal of the wife to join in the deed, the vendee could elect to take a deed without her signature, and could compel the execution of such a deed by bill for specific performance: Jefferson v. Jefferson, 96 Ill. 551; Litsey v. Whittemore, 111 id. 267; Hall v. Hall, 125 id. 95.

Cyrus Epler, Judge, presiding. David Hart died seized of certain lands, and leaving him surviving, his widow, Elizabeth, and eleven children, to whom the land descended in equal parts, incumbered with the dower of said widow.

Writ of Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. While the appeal was pending the court of chancery had no jurisdiction to entertain a bill to set aside the will. As soon as the appeal was perfected the order of the county court was vacated and set aside, and the matter would be heard in the circuit court de novo.

Alfbed Sample, Judge, presiding. This was a bill in equity, brought by Edward C. Gray, against L. S. Holderman and George H. Edwards, and others, heirs-at-law of Charles H. Wyman, (alias Edwards,) deceased, to enforce a conveyance of lots 1, 2, 3 and 4, block 60, in Mix’s addition to Paxton. It appears from the testimony heard on the trial, that the lots originally belonged to'James-Mix, who sold them, by contract for deed, to J. R. Francis.

John C. Bagby, Judge, presiding. Possession, to defeat the legal title, must he hostile, and continue uninterruptedly for twenty years. Bolden v. Sherman, 101 Ill. 483. While color of title is not necessary, still such possession is not sufficient unless accompanied by a claim of ownership. Weber v. Anderson, 73 Ill. 439; Kerr v. Hitt, 75 id. 57.

Writ oe Error to the Circuit Court of Macon county; the Hon. James E. Hughes, Judge, presiding. In cases of felony, at arraignment and all subsequent proceedings in the case, the accused must appear in person. 1 Archbold’s Crim. Pr. and Pl. 351; Sperry’s case, 9 Leigh, 623; Sailer v. State, 1 Harr. 357; Dunn v. Commonioealth, 6 Barr, 384.

Writ of Error to the Circuit Court of Jersey county; the Hon. George W. Herdman, Judge, presiding. Dr. C. W. Enos, being the executor named in the will, and being specifically charged in the bill with fraudulent action in obtaining the pretended execution of the will, was properly made a defendant. Being interested in the object of this suit, he was a necessary party. Story’s Eq. Pl. 76, 76 a. Enos being originally a proper party defendant, was not a competent witness.

Owen T. Beeves, Judge, presiding. This is a petition filed in the McLean circuit court, by Abraham Brokaw, to compel the commissioners of… Held: “When an indictment will lie for obstructing a public highway, and will afford a remedy convenient, beneficial and effectual in its nature, as, a mandamus to compel the opening of the highway, a mandamus will not be awarded; and when it appears that a highway has been obstructed after having been opened and traveled by the public,…

James A. Creighton, Judge, presiding. This was a bill in chancery, filed in the circuit court of Sangamon county, to contest the validity of the will of Catherine McDonald, deceased.

Gwynn Gabnett, Judge, presiding. This was an action of assumpsit, brought by George and John H. Leslie, in the Superior Court of Cook… Held: as a legal conclusion, that a judgment in favor of the defendants, upon the merits, in the suit brought in the State of Ohio, against them, by the assignee, was no bar to the action by the payees, and therefore the plaintiff was entitled to recover.” On appeal to the Appellate Court the judgment of the Superior Court was reversed.

<p>1. Drainage law—the different systems—“combined drainage,” and '"individual drainage”—of their respective qualities. There is a distinction between the “system of combined drainage” and that of “individual drainage.” Under the latter, an individual may drain his own land, if necessary, through the lands of others, whether the latter are benefited or not, by making compensation therefor as the law provides. This system requires no district organization.</p> <p>2. Where there are lands so related that the same system will benefit all of them, more or less, and it is proposed to construct the system at the expense of all the owners, in proportion to the benefits to their respective lands received, they may proceed to accomplish it without resort to condemnation, in the mode prescribed; and this is the system of combined drainage.</p> <p>3. The combination referred to is not of ditches, though that will generally be required, biit of contribution to the expense of constructing, extending, improving and maintaining them; hence, organization is necessary, since a number of persons have a commpn, though not necessarily an equal, interest. All who are so concerned have a right to be heard, and may favor or oppose the proposition.</p> <p>'4. Same —formation of district—what lands a district may include. If the requisite proportion, in number and interest, of the owners of lands petition for it, a district may be formed, which is by the law intended to embrace the lands to be benefited, and none other. The lands are required to be classified according to the relative benefit they receive, and assessments are made upon them in that proportion for the necessary means to carry on and complete the work.</p> <p>5. A drainage district was attempted to be organized, embracing all the lands of a township, and the commissioners divided the same into four areas of land or districts, one of which embraced sixty-four sections of land, and included an incorporated village having independent powers of its own in respect to drainage, and much land requiring no drainage. The ditch for one shed was about five miles long, and did not and could not, by any connection or combination, be made to aid in draining an acre of either of the other areas or districts: Held, that the districts so attempted to be formed were not such, as is contemplated by,the law, the owners of land in any one of the sheds not being -taxable for the ditches or drains in either of the others.</p> <p>6. Ail the lands in the township could not be embraced in one district, because so small a portion of them would be benefited by the same work or system of works; and as the affairs of such a district could not be administered according to the provisions of the act of 1879 or that of 1885, the formation of such a district would not be validated by the later act.</p>

James H. Matheny, Judge, presiding. The first question is, does the ordinance make a special tax levy. Held: in terms, that the apportionment of a special tax levy, in proportion to the feet of abuttal, is a “just and equitable mode” of securing practical equality and uniformity in the distribution of a tax levy. The burden of proof was on the city to show the assessment was right, and the report is only prima facie evidence of that fact.

Cyrus Epíer, Judge, presiding. This was a bill for partition, brought by Ann Harris and Mary Frances Byers,-in which they claim the undivided one-half of the ferry crossing the Illinois river opposite the town of Beardstown, Cass county, with all and singular the here-ditaments and appurtenances thereto belonging, including all ferry landings belonging to the same situated both in Cass and.

Geobge W. Hebdman, Judge, presiding. This was a proceeding in the Logan county court, purporting to he an attachment against the appellant, as administrator of the estate of W. H. Young, deceased, for a contempt of court by appellant in failing to pay the trustees of schools $812.10, in pursuance of an order of the court made July 23, 1868.

James A. Creighton, Judge, presiding. This is a mandamus proceeding to compel the payment of money alleged to be in the State treasury belonging to the petitioner.

<p>1. Negligence—competency of engineer—evidence on that question. In an action by a widow against a mining company, to recover for the death of her husband through negligence, the plaintiff showed, by the engineer of defendant, that he had run the engine connected with the hoisting apparatus at the mine, for two months prior to the accident, and, over defendant’s objection, he was allowed to testify to his want of experience and competency at the time of his employment, and as to what proficiency he had attained as an engineer in that time, the injury having resulted from the alleged incompetency of the engineer: Held, that the evidence was proper, as tending to show, from his previous training and experience, or want Of it, whether the engineer was competent and experienced at the time of the injury.</p> <p>2. Same—instruction varying from the pleadings—presumption. In the same case, an instruction for the plaintiff, after correctly stating the duties of mining corporations under the statute, told the jury, that if they believed, from the evidence, that the defendant had willfully failed to comply with its duty, or willfully violated the provisions of the statute, as alleged in the declaration, the defendant was liable, if the other necessary facts, which were named, concurred. Two counts of the declaration were faulty, and did not state defendant’s duty correctly, but no evidence was heard under such counts: Held, that while the instruction was not to be commended, there was no prejudicial error in giving it, as it woul d be presumed the jury looked to the breach of duty stated in the instruction, and not to that alleged in the faulty counts.</p> <p>3. Measure of damages—death from negligence—instruction. In an action to recover damages occasioned by the death of a person from negligence, an instruction for the plaintiff, after having left it to the jury to be found, from the evidence, whether the deceased had children, and the plaintiff was his widow, told them, that if they further believed, from the evidence, “that if the plaintiff had been damaged by reason of the loss of the life” of her husband, “then the jury will find the defendant guilty,” and in “establishing said damages the jury may take into consideration that the deceased left surviving, said children, in addition to the plaintiff, his widow.” In the next instruction the rule of law as to the measure of damages was correctly stated, and limited the recovery to the pecuniary loss sustained by the plaintiff: Held, that, taking the two instructions together, there was no prejudicial error. The first was not intended as an instruction upon the measure of damages.</p> <p>4. Practice—submitting special questions of fact to the jury. On the trial in an action to recover damages from a mining company for causing the death of the plaintiff’s husband, the plaintiff, by evidence introduced by her, and by instructions, abandoned all other charges in her declaration except that of defective hoisting machinery and want of lights in the shaft where the injury was received. The defendant asked the court to submit to the jury certain special questions as to whether the death of the plaintiff’s husband was caused by certain other omissions of this defendant, which was refused: Held, as no recovery was sought on the grounds upon which the special questions were based, there was no error in refusing the motion.</p> <p>5. Same—sending jury bach to consider further of their verdict. After a cause had been submitted to a jury, it was agreed that they might, when they should agree, seal their verdict and separate, and meet the court on the following morning. On the reconvening of court the jury were present, and answered to their names, and the verdict was handed to the judge, who, on finding they had failed to answer certain questions, directed the jury to retire and further consider of their verdict, and return answers to the questions submitted to them. Upon their return their verdict and answers were read, and the court polled them, and each answered, “these were their verdictsHeld, no error in sending the jury back to return a proper verdict.</p>

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

Benjamin F. Berrian, Judge, presiding. The court house, together with the grounds on which it was erected, not exceeding four acres, was exempt from taxation under the ordinance. 2 Starr & Curtis’ Stat. 2027; Const. art. 9 ; art. 9 of the act of 1872, to provide for the incorporation of cities and villages; People v. Pierce, 90 Ill. 85; Leindecker v. People, 98 id. 21; Potwin v. Johnson, 106 id. 532; People v. Springer, id. 542; Herhold v. Chicago, id. 547; Chicago v.…

Kirk Hawes, Judge, presiding. The paper in this case is not “other evidence of indebtedness in writing,” within the meaning of the Statute of Limitations. It is not a contract, for want of mutuality. Derickson v. Krause, 4 Bradw. 510; Olney v. Howe, 89 Ill. 560; McKinley v. Watkins, 13 id. 142; 1 Parsons on Contracts, (5th ed.) 449, 582; Waggeman v. Bracken, 52 Ill. 469; Railroad Co. v. Johnson, 34 id. 389; Dunning v. Price, 56 id. 338 ; Jassoy v. Horn, 64 id. 379; Boards.

Lorin C. Collins, Judge, presiding. The action of the park board should correspond with the proposition to which the consent referred. Dwight v. Springfield, 4 Gray, 107. There was no power in the city to alienate control of these streets to the park commissioners. Kreigh v. Chicago, 86 Ill. 407; People v. Walsh, 96 id. 232. The power to select and take streets is given to the park commissioners under the conditions in the statute prescribed.

This is an original suit in this court, wherein James S. Pollard and Milton A. Goff, partners, under the firm name of Pollard & Goff, filed a petition for a writ of mandamus to compel the Auditor of Public Accounts to register certain bonds. The Auditor answered the petition, and the questions involved in the case arise upon a demurrer to his answer.

<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>

Bichard S. Tuthill, Judge, presiding. As the appellees were in possession, under their written lease, for one year, and not under their equitable claim, their possession was notice to Miner, Beal & Co. only of the title 'under which they entered. McMahon v. Griffin, 3 Pick. 154; Matthews v. Demeritt, 22 Me. 215; Grundies v. Reid, 107 Ill. 304; Pickerell v. Morss, 97 id. 220.

Owen T. Beeves, Judge, presiding. The plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of the defendant’s. The plaintiffs can not recover, for the reason… Held: “that where several persons, without privity of estate,' successively enter on land as disseizins, their several possessions can not be tacked so as to make a continuity of disseizins.” See, also, San Francisco v. Fulde, 36 Cal. 349; 2 Smith’s Lead.

Geobge W. Stipp, Judge, presiding. This is an action of assumpsit, commenced in the Circuit Court of Will County, on September 4,1885, by the appellant, a corporation organized under the laws of New Jersey and engaged in the manufacture and sale of galvanized fence wire at Trenton in that State, against the appellee, a corporation organized under the laws of Illinois and engaged in the business of making and selling barbed fence wire at Joliet in the latter State, to recover…