Volume 132 — Illinois Reports

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

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

<p>Writ of Error to the Circuit Court of Cook county; the-Hon. Lorin C. Collins, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Frank Baker, 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. Joseph E. Gaby, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on writ of error to the Circuit Court of Kendall county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Lee-county ; the Hon. William Brown, Judge, presiding.</p> <p>William Long died intestate July 4, 1877, leaving William B. Long, John Long, Alexander Long, Elizabeth Coleman,. Catherine McBurney and Margaret Chandler, his children, William Jennings, John Jennings, Amanda Fisher and William P. Long, his grandchildren, heirs-at-law. No widow survived him. The grandson, William P. Long, is the son of a-deceased son, James Long. Amanda Fisher, William Jennings and. John Jennings are the children of a deceased daughter, Julia Ann Jennings.</p> <p>The appellant was duly appointed administrator. On the 17th of November, 1879, he filed in the county court of said Lee county, and again on the 13th of September, 1880, an amended final report, duly sworn to, in which he*states, among other things, that the intestate had, in his lifetime, paid to certain of his heirs large sums of money, which he intended to be considered as advancements from his estate; that the amounts of such advancements received by said heirs were, to William B. Long, his share of said estate in full; to Alexander Long, $1000, and that he (the administrator) had paid him from said estate the further sum of $5401.18; that John Long had received his share of said estate in full; that Elizabeth Coleman had received about $350, and that he had paid her the sum of $6001.18, in full of her share of said estate that Catherine McBurney had received her share in full, except the sum of $50, which he had paid her; that Margaret Chandler had received her share in full, except the sum of $200, which he had paid her; that William P. Long had received his entire share, and executed to the said William Long, in his lifetime, an acknowledgment thereof; that Julia Ann Jennings had received as an advancement about the sum of $1100; that said Amanda Fisher, by agreement with the heirs of said deceased, had received a certain residence as a portion of her share in said estate, at a valuation of $800, and that he had paid her $1017.52, which she accepted in full payment of her interest in said estate; that he has paid to William Jennings, father and guardian of William Jennings and John Jennings, $3635.04, in full of their share in said estate. In the amended report it is stated that said William P. Long had received his share of said estate in full, by a conveyance of certain real estate -from his said grandfather,. setting out particularly the facts and circumstances under which the alleged advancement was made, and averring that the same was sufficiently expressed in writing by certain deeds of conveyance therein set forth. He also states in the said amended report, “that the advancements made to all the other heirs of William Long were not in writing, but the whole matter was so well understood between themselves that they "have been willing to stand to and abide by the well known wish and desire of said William Long, deceased;” that he has ■settled with all of the heirs of the estate of William Long, and received full receipts from them, except the said William P. Long.</p> <p>To this final report William P. Long filed exceptions, and, among other objections, alleged that the statement therein that he had received his share of said estate in full, is false, ■averring that he had received no advancement from his said grandfather whatever. The estate to be distributed was found to be $20,960.00. On a hearing, the said exceptions were •sustained by said county court, and the administrator was ordered to pay to said William P. Long the sum of $5240. From that order the administrator appealed to the circuit court of said Lee county. None of the other heirs of the deceased filed objections or exceptions to said administrator’s report, but while said appeal was pending in the circuit court, Alexander Long, Elizabeth Coleman, Catherine McBurney, "William Jennings and John Jennings filed their bill in chancery in the circuit court of Lee county, against said William P. Long, and the administrator, William B. Long, and obtained an injunction restraining said administrator from paying said order, and said William P. Long from further prosecuting his ■said exceptions. On a hearing, that bill was dismissed and the injunction dissolved, and the decree was affirmed by the Appellate Court for the Second District, and re-affirmed here. (118 Ill. 638.) Thereupon the ease pending in the circuit court on appeal from the order of the county court was tried, and the judgment of the county court sustained. From this last judgment the administrator prosecuted an appeal to the Appellate Court for the Second District, and now brings the case to this court by further appeal.</p>

<p>1. Appead—whether a freehold involved—hill for partition—and to remove aloud upon title. Bill was filed for partition, and to set aside a tax deed. The decree granted the prayer of the bill. A freehold was therefore involved, and decided by the trial court on two issues. An appeal from that decree to the Appellate Court was properly dismissed for want of jurisdiction.</p> <p>2. Costs—on dismissal of appeal for want of jurisdiction. Where an appeal is improperly taken to the Appellate Court, and is dismissed for want of jurisdiction, it is proper to give judgment for costs against the appellant.</p>

<p>Appeal from the Appellate Court for the Second District;— ."heard in that court on appeal from the Circuit Court of Kanhakee county; the Hon. N. J. Pillsbury, 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. O. H. Horton, Judge, presiding.</p>

Wbit op Ebbob to the Circuit Court of Cook county; the Hon. T. A. Moban, Judge, presiding.

<p>Appeal from the County Court of Cook county; the Hon. Richard Prendergast, 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. Julius S. Grinnell, 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. O. H. Horton, Judge, presiding.</p> <p>On the 18th of October, 1884, Edward C. Huling, appellee, Henry S. Farwell and Stephen Laskey formed a co-partnership, in the city of Chicago, for the purpose of carrying on the business of “manufacturing and jobbing men’s furnishing goods,” with a capital of $60,000, $40,000 of which was to be furnished by Farwell, and $20,000 by Huling,—Farwell and Huling each to have forty-five per cent, and Laskey ten per cent of the profits, the firm to continue until January 1,1890. The business was continued less than nine months, the firm -dissolving by mutual consent July 29, 1885. Huling sold his interest to Farwell, the parties agreeing that -the price to be paid therefor should be fixed by an arbitrator then agreed upon. In pursuance of that agreement an award was made, but it proved unsatisfactory to Huling, and on August 12, 1885, he filed this bill to set the same aside, and for an ae•counting and settlement of the partnership business. By an interlocutory decree the award was set aside, and the cause referred to a master to state the account between the partners as of July 29,1885, and to find the value of Huling’s interest in the assets and good will in the business at that date.</p> <p>On the 28th of October, 1888, the master made his report. As to the value of Huling’s interest in the assets, exclusive of good will, this report shows that he was indebted to the firm •on July 29, 1885, in the sum of $3403.30, but that the value •of his good will at that date was $5000, making a balance in his favor of $1596.70. Objections to this report were filed by both parties before the master, and afterwards renewed, by way of exceptions, in the circuit court. Those filed on behalf •of Huling are as follows: First, the said master found that the value of Mr. Huling’s interest in the good will of the firm was $5000 on July 29, 1885, whereas he should have found bis interest therein at the time was $25,000; second, that said master took into consideration, in making up his report, testimony of witnesses taken before the court on behalf of said defendants as to the value of the good will of the business at the date of the dissolution, and prior thereto, based upon certain figures which were afterwards found by the court expert to be incorrect; third, that the master permitted fragmentary statements gathered from the books of the firm by the defendants themselves; fourth, that said report is against the weight of evidence; fifth, that the master considered statements taken from the books of the firm by said defendants which were unreliable, inaccurate and entirely untrustworthy; sixth, that said master erred in the admission of testimony on behalf of said defendants. Also the following: “Complainant further excepts to the master’s report on the ground, that whereas the master has found that there was a loss in the business of said firm on the 29th of July, 1885, he should have found that there was a gain and profit in said business on that date.” This exception was filed nunc pro tunc after decree rendered.</p> <p>Those filed on behalf of defendants Far well and Laskey, which were renewed as exceptions, were: First, that the-master found that the complainant was entitled to be credited in his account with the sum of $5000 as the value of his good will in the firm, when, in fact, said ■ good will had no value; third, that said master found that complainant was entitled to recover $1596.71, instead of finding that the defendants were entitled to recover from the complainant not less than the sum of $4000; fourth, that the finding of the master with reference to the good will of the business of said Farwell, Huling & Co., and the right of complainant to recover against defendants, are not sustained by proofs taken or submitted to him.</p> <p>Upon a hearing on these exceptions, in the' circuit court,, all were overruled, except those filed on behalf of defendants questioning the correctness of the master’s finding as to the (value of the good will of complainant in the firm business, which were sustained, and a decree rendered in favor of defendants for $3403.29. On appeal by complainant, the Appellate Court for the First District held that all the exceptions filed were so indefinite and uncertain that neither party could be allowed to question the correctness of the master’s report, and declined to consider the case as there presented, but reversed the decree of the circuit court for error in failing to overrule each of said exceptions, because of their insufficiency, and remanded the cause, with directions to the circuit court to overrule those exceptions which had been sustained, as well as all others, and enter a decree for complainant against defendants for $1596.70, with costs. The defendants below prosecute this appeal, and assign for error said judgment of the Appellate Court.</p>

Lobin C. Collins, Judge, presiding. The Merchants’ National Bank of Chicago, appellee herein, exhibited its bill in chancery in the circuit court of Cook county, against Sarah L. Peck, appellant’s testate, to recover from her certain dividends on one hundred shares of the capital stock of the Chicago City Railway Company received by her, and ninety-nine additional shares of stock in said company subscribed for and issued to her as the holder of the said one hundred shares,…

Bichard Prendergast, Judge, presiding. On the 13th day of May, 1889, Henry Bahe, the appellant, filed a petition in the county court of Cook county, against John Balston, to contest his election to the office of constable in the town of West Chicago, which election was held on the 2d day of April, 1889.

<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. Julius S. Grinnell, Judge, presiding.</p>

<p>1. Insukanoe— benefit society—who may become beneficiaries. ""Where the statute of a State under which a benefit or fraternal society ■.is incorporated, provides that such corporations may be formed “for the ■purpose of assisting the widows, orphans or other relatives of deceased members, or any persons dependent upon deceased members,” the so- ■ ciety or corporation will have no authority to create a fund for other persons than those included in the classes named. In such case, the power of the corporation to issue the certificate, and the power of the member to designate the beneficiary, are controlled and limited by ■.the statute.</p> <p>2. A lawe of a mutual benefit society provided that a benefit might-be made payable to the following classes of persons: First, to a member’s wife, children, grandchildren, father, mother, brother, sister or grandparents; and second, to any person dependent upon the member ■ for maintenance, food, clothing, lodging or education. A member had a certificate issued, in which the benefit was made payable to “A B, affianced wife,” but died before marriage, leaving two brothers as his next • of kin and only heirs: Held, that under the law of the society, the ■ “affianced wife” was not entitled to the benefit named in the certificate, .she not being a person of either of the classes named.</p> <p>3. By another law it was provided that no benefit should be payable ■to a person or persons of the second class, unless the dependency re•quired should exist at the time of the member’s death, and that if, at . such death, the dependency shall have ceased, then the benefit should be payable to the persons named in the first class, if living, in the order ■ of precedence therein stated : Held, that those named in the first class would take the benefit, though not mentioned in the certificate, if there existed no dependency of the beneficiary named at the time of the member’s death, whether the dependency had ceased to exist or had .never existed at all.</p>

This was a proceeding instituted in the circuit court of Cook county, by A. M. Pence, against George W. Miller, and Caroline K. Miller, his wife, and others, under the Burnt Records act, to restore and confirm his title to a certain tract of land in Cook county.

<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. Frank Baker, Judge, presiding.</p>

<p>1. Contract—after-performed services—whether under the terms of the original contract—presumption. If one person employs another for •a certain time at an agreed price per month, and the services are continued after the expiration of the time agreed upon without any new -agreement as to price, it will be presumed that the parties understood that the original rate of compensation is also to be continued. In such -case the recovery of wages by the employe will not be upon the quantum meruit, but upon the contract implied by law, and for the compensation originally fixed by the parties.</p> <p>2. If the nature of the service required to be performed be not different from that required by the original contract, the fact that the •services rendered after the original term had expired were at a different. place, or may have been of a slightly different character, will not •destroy this presumption, if it can be said that such service was a continuation of the original service, and within the scope, generally, of the original employment.</p> <p>3. It can not be said that the presumption necessarily arises, from the fact that, subsequent to the termination of service under a special contract, the employer requested the employe to do certain other work at a different place, that the parties intended that the same price should be paid for the subsequent services as was agreed to be paid under the original contract of employment, especially when such request is made .any considerable time after the completion of the service under the express agreement. The presumption is only warranted when the service can be said, as a matter of fact, to be continuous.</p> <p>i. Same—subsequent service—whether of the same character—as a ■question of fact. Whether the service rendered after the original term -of employment has expired, is of the same nature and of the character contemplated by the original contract, is a question of fact, and, as .such, is proper to be submitted to a jury.</p> <p>5. In this case, it appeared the plaintiff was employed to manage the defendant’s ranch in Kansas, at certain stipulated wages per month. ■On the sale of the ranch the service ended, and the plaintiff returned to this State. About two weeks after his return the plaintiff claimed he was requested by the defendant to perform other services, without any agreement as to compensation, but this was denied. On the trial ■of an action to recover for such services, the court instructed, for the plaintiff, that “if the jury believed, from the evidence, that the defendant employed the plaintiff, at an agreed sum per month and expenses, to proceed to Kansas and take charge of a farm, the property of defend••ant, for an indefinite period, and that subsequently defendant requested the plaintiff to return to Chicago, and proceed to Oak Park, to do certain other work for defendant, and that plaintiff did both, with no other •or different arrangement as to salary and expenses, then plaintiff is entitled to recover for the full time he so remained in defendant’s employ, .at the rate agreed upon in the first instance : ” Held, that the instruction was erroneous.</p> <p>6. By the instruction, the jury were not left at liberty to determine whether the “certain other work” was within the scope of the original ■employment or not, or whether the service rendered at Oak Park by the plaintiff, if any, was a continuation by him in the original employment under the original contract. It was improper to assume by the instruction that if the plaintiff was “subsequently” requested to do certain other work, such other work was a continuation of the service under .the original employment.</p>

Egbert Jamieson, Judge, presiding. This is a bill filed in the Superior Court of Cook County on ■July 20, 1886, by James G. Brown of St. Louis, Missouri, to foreclose a deed of trust, dated March 14, 1884, executed by Frederick W. Krause and Josephine M. Krause, his wife, to 'Thomas E. Ralston of St. Louis, Missouri, as trustee, to secure five notes, dated April 1, 1884, made by Frederick W. Krause to the order of James Gr.

<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>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by A. B. Stickney and James J. Hill, for the use of James J. Hill, against William C. Goudy, to recover damages for an alleged breach of ' contract. The declaration contained two special counts. Each count of the declaration sets up three contracts in writing, all ■executed on the 28th day of May, 1880.

<p>Writ of Error to the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.</p>

N. J. Pillsbury, Judge, presiding. This is an appeal from a judgment of the Appellate Court, affirming a judgment of the circuit court of Livingston county. The facts which led to the litigation, so far as they are material to a proper understanding of the case, are, in substance, as follows: On the 21st of February, 1888, Sylvanus Mitchell made a voluntary assignment of his property to Y. I. Aaron, for the benefit of his creditors.

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Jesse J. Phillips, Judge, presiding.</p>

<p>Practice—enforcing stipulation between counsel. Agreements between counsel, made in open court, or even verbally, out of court, if acted on by them, may be enforced by the court. So where the appellant’s attorney, in consideration of an extension of time to file his brief, agreed with appellee’s attorney, that if, when the cause was reached on the call, the appellant’s brief should not have been on file ten days the-judgment should be affirmed, the court enforced the stipulation, notwithstanding appellant’s counsel, before judgment, but after the time stipulated had expired, filed a paper withdrawing his agreement, but offering no excuse for his failure to file his brief in time.</p>

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

. Edward P. Vail, Judge, presiding. This is a bill filed on May 23, 1889, in the Circuit Court-of Macon County, by Anna Hamsher, in her own right, and Anna Hamsher and Milton Johnson, executors of the will of David F. Hamsher, deceased, against William Hamsher, Josephine Eingland, George Lacey Eingland, Allen Park, and the “Board of Directors of the Young Men’s Christian, Association of Decatur, Illinois, ” for the assignment of homestead to- ■ said Anna Hamsher, widow of…

George W. Herdman, Judge, presiding. This was a hill for partition, filed by William G. Bates, D. H. Harts and Robert Humphrey, in the Logan circuit court, April 12, 1887, against John D. Gillett and others. The facts out of which this controversy arises, not sufficiently stated in the opinion of the court, are in substance as follows: In 1846, John Lorence, being possessed of a large estate in land, made and published his last will, under which both parties claim title.

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

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

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. John D. Crabtree, 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 Douglas county; the Hon. C. B. Smith, Judge, presiding. This was an action by John Goff, sheriff of Douglas county, against that county, for moneys paid by him to a person appointed by him to exercise the duties of jailer. The case is stated in a special count in the declaration.

A. N. Waterman, Judge, presiding. John V. Farwell and his co-partner brought suit in the Superior Court of Cook county, against Samuel Kitson, and filed their declaration, in substance, as follows : That on September 19, 1885, the defendant, desiring to obtain goods of the plaintiffs on' credit, applied to plaintiffs for that purpose, and to induce the plaintiffs to believe that he was solvent and worthy of credit, and to induce plaintiffs to sell and deliver goods to him on…

<p>1. Ejectment—equitable title—in defense. In ejectment, the equitable title of the defendant to the land can not be shown in defense. The rulé is well settled that a trustee may recover, in ejectment, the lands affected by the trust, even as against the cestui que trust. Therefore, proof on the trial that the defendant paid all the purchase money for land, and had the deed made to the plaintiff, is wholly immaterial.</p> <p>2. Same —proof of legal title—by parol evidence. On the trial of an action of ejectment, the defendant, as a witness, was asked whether the plaintiff, at any time, was in fact the owner, and in possession of the property, to which the court sustained an objection : Held, that it was incompetent to prove the legal title to land by parol evidence.</p> <p>3. Same—impeaching deed for fraud—parol evidence. In ejectment, to recover the possession of a lot, the defendant may defeat a recovery by showing that the plaintiff’s deed was made to him for the purpose of hindering, delaying and defrauding the'creditors of the defendant, or for any other illegal purpose.</p> <p>4. Fraudulent or illegal contract—all remedies withheld. It is a general rule, subject to some exceptions, that when parties are concerned in illegal agreements, they will be left without remedy against each other, provided they are in pari delicto. The law refuses to aid either party, but leaves them where it finds them. This rule is applied to executed transactions as well as to executory, and is enforced" by courts of law as well as courts of equity.</p> <p>5. So where one purchases land with his own money, and, for the purpose of hindering or delaying his creditors, enters into a fraudulent arrangement or conspiracy with another to have the land conveyed to the latter, which is done, leaving the purchaser in possession, the transaction will be illegal, and the courts will aid neither party, and the holder of the legal title thus acquired can not recover the possession of the land by ejectment against the original purchaser, and the latter can not compel an execution of the trust.</p> <p>6. Fraud—between husband and wife—title of wife’s land put out of reach of the husband. It is no fraud on a husband for his wife to have land purchased with her separate means, or derived from sources other than her husband, conveyed to a trustee, for the sole purpose of placing it beyond his control, and having it held for her separate use.</p> <p>7. Under our'statute, if land is conveyed to a wife directly, it will ■ vest in her husband no right or interest except an inchoate right of ■ dower, and it is no fraud on him. if the wife, in purchasing real estate, has the title conveyed to a trustee, for the express purpose of preventing such right from attaching.</p>

Elliott Anthony, Judge, presiding. This is an appeal from a judgment of the Superior Court of Cook county, confirming an assessment levied to raise the amount necessary to pay the compensation and damages awarded for property taken or damaged for the extension of South Canal street, from the southerly line of Lumber street to the northerly line of Archer avenue.

<p>Writ oe Error to the Circuit Court of Greene county; th& Hon. Albert G. Burr, Judge, presiding.</p>

<p>Wbit of Ebbob to the Circuit Court of DeWitt county; the Hon. Geobge W. Heedman, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Fulton county; the' Hon. John C. Bagby, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Logan county; the Hon. George W. Herdman, Judge, presiding.</p> <p>This was a bill in chancery, in the Logan circuit court, by Polly Quisenberry and Elizabeth Quisenberry, against James W. Burt, John Burt, Louisa Bowles and Sallie Britt, to set aside certain deeds of conveyance, and for partition of the lands purporting to be thereby conveyed.</p> <p>It is, among other things, alleged in the bill, that complainants and defendants are the children and heirs-at-law of one William Burt, who died testate on the 21st day of July, 1883; that by his last will and testament, which was duly admitted to probate in Tazewell county, Illinois, and a copy of which is made an exhibit to the bill, he bequeathed only a small part of the personal property and real estate of which he was possessed and seized, describing the real estate thereby devised; that at the time of his death he was seized in fee of certain lands in Tazewell county, known as the “home farm,” amounting to three hundred and eighty acres, and certain lands in. Logan county, amounting to ninety-six acres, all of which. were undisposed of by the will; that James W. Burt has a deed to the lands in Tazewell county, which was a cloud upon the title of the heirs-at-law, dated July 9, 1881, and describing the south half of section 39, and the south half of the south-west quarter of section 38, town 32, range 2 east, and reserving the north rooms of the house, board and fuel, during the life of William Burt, and after his death, a charge of $500 to each of his heirs, to be paid by the grantee, said deed expressing the further consideration of $6000, and that no consideration was paid for said deed, and that it is void in law, and a cloud on the title of the heirs; that William Burt was eighty-three years old at the time of his death, a physical and mental wreck, incapable of transacting any business, or of understanding the legal effect of a deed to land; that the grantor was completely under the control of James W. Burt; that twenty years before his death, when he lost his mind, William Burt was the owner of the land in question, and also the owner of the stock on the farm, worth $10,000, and notes worth from $10,000 to $15,000; that James W. Burt took possession of the land and of all the stock, and has converted the same, and the notes, to his own use, until, in 1881, William Burt had only one note,—$2000,—which the said James had not been able to collect; that with the aid of John Burt, the said James procured the said deed to be drawn and executed; that the said James holds the said lands in trust for the heirs-at-law; that the said property was worth $23,000; that the grantee never paid anything therefor; that said deed was void, and obtained by and through the undue influence of James W. and John Burt; that said deed is void and should be cancelled, and the lands held subject to partition among the heirs; that about 1850 the said William Burt conveyed a large quantity of land to John Burt by way of advancement, and gave him about $10,000 in personal property, also as an advancement; that Louisa Bowles, about 1863, received about two hundred and forty acres of farm land and twenty-five acres of timber land from her father, at the value of $6500, as an advancement ; that the complainant Polly Quisenberry received thirty acres of timber land, and $1000 bequeathed by the will; that Elizabeth Quisenberry received fifteen acres of timber land, valued at $10 an acre, and $1000 bequeathed by the will. The bill prays that the parties named as defendants be required to answer, but not under oath; that the two deeds be cancelled, as a cloud upon the title of orators; that James W. Burt be . declared to hold the proceeds of the personal property converted by him, in trust, for the heirs, and to pay into court the money found to be owing by him to the estate of William Burt, and that an accounting be had as to the amounts received by John Burt and Louisa Bowles as advancements, and that said lands and lots may be partitioned, and for general relief.</p> <p>Joint answer was filed by the defendants, putting in issue the material allegations of the bill. It admits the death of William Burt; admits the heirship as stated in this bill; admits the will, but denies all the other allegations in the bill with reference to the lands deeded to James W. Burt; denies that William Burt, Sr., was incapable of making the deeds in question; denies that undue influence was used to procure the making of said deeds; avers that in addition to the lands described in the bill, ninety-six acres of land in Logan county was also deeded by William Burt to James Burt, but by a mistake of the person drafting the deed, the words “north range 2” were left out. All of the defendants except James Burt disclaim any interest in the land deeded to him, and all the defendants except Louisa Bowles disclaim any interest in the land conveyed to her; denies that any land was deeded or personal property given as advancement to any of the defendants; sets up the statute of Illinois as to advancement.</p> <p>The cross-bill filed by James W. Burt sets forth, that on the 8th day of January, 1884, Polly Quisenberry and others filed their bill of complaint, in the Logan county circuit court, for partition, amongst other things, of ninety-six acres of land in the county of Logan, and State of Illinois; to part of the west half of the north-east quarter of section 32; also, the north-west . quarter of the north-west quarter of section 33, town 22 north, range 2, west of the third principal meridian; that William Burt, Sr., on the 9th day of July, 1881, was the owner of said land in fee, and sold the said land to complainant for a good and valuable consideration; that he intended and attempted to convey said land to the complainant, but by mistake "of the scrivener who drew said deed, the said land intended to be conveyed thereby, as aforesaid, was misdescribed, and no range was stated in the deed; that possession of said land was delivered to complainant, and that he has been in the peaceable .and exclusive possession, and has paid taxes thereon ever since the making of said deed. The complainants in the original bill answered the cross-hill, re-asserting the allegations of the original bill so far as pertinent to the question presented by the cross-bill. There'were replications to the several answers.</p> <p>The cause was heard, and thereupon the court found that William Burt died on the 21st day of July, 1883, leaving a will and testament, which was duly admitted to probate in the county court of Tazewell county, Illinois; that by said will he bequeathed only a small part of the personal property and real estate of which he died seized; that in July, 1881', he was seized in fee of the land described in the bill; that on the 9th day of July, 1881, the said William Burt executed a deed to all of the lands in Tazewell county above described, not including the lots in the village of Armington; that said William Burt attempted to execute a deed to the lands in Logan county; that the deed to the Logan county land did not properly describe it; that all of said lands were deeded or attempted to be deeded, in consideration of the sum of $6000 paid by James W. Burt to the said William Burt in his lifetime, and $500 each to the heirs of the said William" Burt, to be paid within one year after his decease, making a total of $8500 ; that the , said William Burt left surviving him, as his heirs-at-law, John Burt, Elizabeth Quisenberry, Louisa Bowles, Polly Quisenberry, Sallie Britt and James W. Burt; that said William Burt was induced to make said deeds by reason of the undue and improper influence exercised over him by the said James W. Burt; that as to complainants, Elizabeth and Polly Quisenberry, said deeds are invalid and void; that Elizabeth Quisenberry and Polly Quisenberry are each entitled to the undivided one-sixth interest in the lands above described; that John Burt, Louisa Bowles and Sallie Britt having filed written disclaimers of any interest in said suit, or in the lands in question, and each held to have waived any right thereto as heirs of William Burt, deceased, the court finds that said James W. Burt is entitled to an undivided two-thirds of the real estate, and dismisses the bill as to the lots in Armington; that in 1864, the said William Burt, in his lifetime, gave to his son, James W. Burt, the personal property, including the stock and farming utensils on the farm, and also the use, rents and profits of the land above described, up to the time of the death of the said William Burt, and that James W. Burt, by reason of such gift, (which the court finds to be a valid one,) has received the proceeds thereof, and has continued in possession of said land, enjoying the rents and profits thereof; that since the death of William Burt, the said James W. Burt has continued in possession of said lands, enjoying the rents and profits thereof, and should be charged with rents to the extent of the interests of the complainants since the death of said William Burt; that he has sold timber from the said land since the death of William Burt, and has removed a building therefrom, and has built certain fencing, and constructed certain tile ditches and other improvements; has paid taxes on said land; and the court finds, from the proof,- that James W. Burt should be allowed, as a charge against the complainants, one-third of the $6000 paid by him for said lands; that by agreement between the parties adjusting the rents, profits, etc., the said Elizabeth and Polly Quisenberry are entitled each to an undivided one-sixth of all the improvements so made,—said agreement being subject to the right of appeal from this decree, and to test, in the Supreme Court, the validity of the decree of this court setting aside the de'eds above mentioned and described, from William Burt to James W. Burt, so far as relates to the interests of said Elizabeth and Polly Quisenberry, or to any other matter in the decree not covered by said agreement. It is therefore ordered and decreed that Elizabeth and Polly Quisenberry are each entitled to the undivided one-sixth interest in said lands; that the deed from William Burt to James W. Burt is, as to the complainants in the original bill, can-celled arid held void; that the interests of said Elizabeth and. Polly Quisenberry in said lands are subjected each to the lien of one-half of the sum of $370.95, the balance found to be due James W. Burt, as entitled to the undivided two-thirds of all the said lands.</p> <p>Partition of the lands was decreed, and commissioners appointed, etc. The case comes to this court by the appeal of James W. Burt, and he has assigned numerous errors, raising; all the questions discussed in the opinion.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of' DeWitt county; the Hon. Lyman Lacey, Judge, presiding.</p>

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

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

<p>Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Champaign county; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Piatt county; the Hon. J. F. Hughes, Judge, presiding.</p>

•Cyrus Epler, Judge, presiding. This was a suit in equity, brought by John W. Crum against •John S. Sawyer, George O’Bear and Leanah M. Thomas, for partition.

Writ or Error to the Circuit Court of Tazewell county; the Hon. N. W. Green, Judge, presiding.

Charles J. Scofield, Judge, presiding. This is an action of assumpsit, brought by appellee, against appellant, in the circuit court of Hancock county, to recover for work performed and materials furnished in the erection of certain buildings, and for freight charges on material shipped from Chicago to the place of building; also, for damages sus- tained by reason of being delayed in the completion of said buildings; also, for a breach of a contract for the erection of a…

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

<p>Appeal from the County Court of Cook county; the Hon. Francis E. Clarke, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Greene county; the Hon. George W. Herdman, Judge, presiding.</p>

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

<p>1. Contested election—evidence—ballots—poll-lists—tally-sheets. On a contest of an election the court may properly admit the ballots cast, with the poll-lists and tally-sheets, in evidence, when properly identified.</p> <p>2. Same—numbering the ballots. If there are more ballots found on the canvass of an election than are shown upon the poll-lists, the officers are required to reject the ballots not numbered, and if the ballots still exceed the names on the poll-lists, the ballots are to be shaken up again and ballots drawn therefrom and destroyed, without opening, until the ballots and lists correspond.</p> <p>3. The number of a voter at a town election was 547, and he voted, but his ballot, by mistake, was marked 548, making two ballots of that-number, and there was no ballot found numbered 547. The voter identified one of the ballots marked 548 as the one east by him : Held, that the vote of the voter whose number was 547 should be counted for the person named therein as voted for.</p> <p>4. The statutory requirement that the judges of election shall indorse on each ballot offered, the number corresponding with the voter on the poll-lists, is directory, only. So are those enactments which touch the recording and return of the votes received, and the manner of conducting an election in detail. While the officer may be liable for willful failure to discharge the duties imposed by the statute, the citizen is not thereby disfranchised.</p> <p>5. Same—of the right to vote—presumption. A person whose vote is received by the officers in charge of an election, in the absence of contrary evidence, will be presumed to have been a legal voter. The burden of proof lies on the party objecting to such vote to show that it is illegal.</p> <p>6. Same—ballot for two persons for the same office. A ticket cast at a town election, had, under name of the office “Bor assessor,” the printed name of one of the candidates, and under his name was written the name of another candidate, but there was no erasure of either name : Held, that the ballot could not be counted for either candidate.</p> <p>7. Same—residence of voter—removal. The question of residence is largely a question of intention. If a person, on his removal to another State, intends to remain there, and takes his family there with him, he will have lost his residence in this State.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Madison county; the Hon. J. B. Dunne&an, Judge of the Alton •City Court, presiding.</p>

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

<p>Writ of Error to the Circuit Court of White county; the Hon. C. C. Boggs, Judge, presiding.</p>

Wbit of Ebbob to the Circuit Court of Clay county; the Hon. C. S. Congee, Judge, presiding. Mr. Rufus Cope, and Mr. Gebshom A. Hoff, for the plaintiffs in error: The intent to murder is essential. If this element is wanting, the charge is not made out. The intent requisite is not merely to make an assault or to commit an offense, hut an intent to take life.

• Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. W. H. Snyder, Judge, presiding.

<p>1. Municipal subscription—to capital stock of railroad—on condition of locating shops—legality of the vote. An election in a township was ordered by the town clerk and supervisor, to vote on the question whether such town should subscribe $10,000 to the capital stock oí a railway company named, payable in bonds issuable when the company should have located and constructed its machine and other shops within the town at an expense of not less than $25,000: Held, that a vote in favor of the proposition was legal, and authorized a subscription to the capital stock of the railway company, but not one to aid in the erection of shops.</p> <p>2. The fact that in such case the vote was upon the condition that the machine and other shops should be located and erected in the town, and the subscription may have been made on that condition, did not affect the right to subscribe to the capital stock of the railway company.</p> <p>3. Municipal bonds—on vote after July 2, 1870. Municipal bonds of a town issued upon a subscription to the capital stock of a railroad company, under a vote of the people at an election held after July 2, 1870, are void.</p>

<p>Appeal from the Appellate Court for the Fourth District;_ heard in that court on appeal from the Circuit Court of Marion county; the Hon. W. H. Snyder, Judge, presiding.</p> <p>Mr. H. C. Goodnow, and Messrs. W. & E. L. Stoker, for the appellant.</p>

Writ of Error to the Circuit Court of Alexander county; the Hon. Oliver A. Harker, Judge, presiding.

B. S. Organ, Judge, presiding. This was an application by Samuel J. Wilson, collector of the revenue of White County to the Coufity Court of that county for judgment against delinquent lands and lots for the taxes of 1888.

<p>Appeal from the Circuit Court of Franklin county; the Hon. George W. Young, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;— beard in that court on appeal from the Circuit Court of Franklin county; the Hbn. B. H. Canby, Judge of the City Court of .East St. Louis, presiding. -</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Wayne county; the Hon. C. S. Conger, Judge, presiding. This action was begun in the circuit court of Wayne county, by plaintiff in error, against defendant in error. The declaration is in assumpsit, containing two counts.

ZBgbebt Jamieson, Judge, presiding. This was a bill in chancery, brought by John R. Stuyvesant against James B. Close, for the specific performance of the following contract: “Stuyvesant, July 22, 1887. “ James B. Close—I will exchange my Osborne county ranch, consisting of four thousand three hundred and twenty (4320) acres, clear of all incumbrances, for your equities in Wabash .avenue, Congress street and Lytle street properties in Chicago, incumbrances as follows: On…

Wbit of Ebbob to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Pike county; the Hon. Chables J. Scofield, Judge, presiding.

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

Lorin C. Collins, Judge, presiding. The pleadings in this case are quite voluminous, consisting of bills, amended bills, supplemental bills, cross-bills, answers and replications; but it will serve no useful purpose to enter upon a detailed statement of the pleadings.

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

Kibe Hawes, Judge, presiding. This was an action on the case, brought by Edwin H. Ellett, administrator of the estate of William E. Walkup, deceased, against the Pennsylvania Company, and the Union Stock Yards and Transit Company, railroad companies operating in this State, to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the Erst named company while using the track of the other compiany, with its consent and…

<p>1. Evidence—decree in partition—u-hat matters established thereby-In an aclion of ejectment, it xvas held that a decree in partition which finds the allegations of the petition to be true, among which is that of the death of a person and the heirs he left, is prima facie evidence of the death and heirship.</p> <p>2. Tenancy in common—possession of one—as the possession of all-The possession of one of several tenants in common is the possession of all. All acts done by a co-tenant relating to or affecting the common property, are presumed to have been done for the common benefit of all the co-tenants.</p> <p>3. Ejectment—recovery upon prior possession. In an action of ejectment, proof of a prior possession in the plaintiff under claim of ownership is prima facie evidence of ownership and seizin, and is sufficient to authorize a recovery, unless the defendant shows a better title.</p> <p>4. Jurisdiction—courts of general jurisdiction—presumption. Nothing is presumed to be without the jurisdiction of courts of general jurisdiction except what specially appears to be so. Therefore, when the record on a petition for partition, and the decree, failed to show service of process upon the minor defendants, it was held, that service on the minors, in the absence of record evidence to the contrary, would be presumed.</p> <p>5. Guardian’s sale—error in decree—not going to jurisdiction. The fact that a decree or order of court authorizing a guardian’s sale may fail to fix a time and place of sale, may be erroneous, but this does not affect the jurisdiction and render the sale void.</p> <p>6. Notice of tax sale—of its requisites—to authorize tax deed. A notice of tax purchase served on a party in possession, stated that the sale was June 1, 1885, and that the time of redemption would expire on June 2, 1887: Held, that the notice was fatally defective, in failing to-give the day on which the redemption would expire, and that the misstatement in the notice rendered the' tax sale and deed void.</p> <p>7. Practice—specific objection—when necessary. Where a general objection, only, is made to the introduction in evidence, of an order of court authorizing a guardian’s sale of land, its admission in evidence can not be assigned for error on the ground that the record in the case, showing the jurisdiction of the court, was not first offered. A specific objection to evidence that might be obviated comes too late on appeal or error.</p>