Volume 133 — Illinois Reports

<p>1. Negligence—combustible materials on right of way—d/uty of railroad, companies. Under section 2 of the act of 1874, in relation to fencing and operating railroads, making it the duty of all railroad corporations to'keep their right of way clear from all dead grass, dry weeds and other dangerous combustible material, a failure of a railway company to keep its right of way clear of combustible material other than dead grass and dry weeds can not be held to be negligence per se, unless such combustible material is dangerous; but a failure to perform a duty commanded by statute may be properly denominated negligence per se.</p> <p>2. In an action against a railway company, to recover for the burning of the plaintiffs property by fire communicated by an engine to the right of way, the court, for the plaintiff, instructed the jury, “that if the right of way was not clear of dry weeds and combustible materials, but that the fire took on said right of way in consequence of such combustible material being there, and was thus communicated to the plaintiff’s property,” then, in the law, the defendant would be liable, without regard to the condition of the engine: Held, that the instruction should properly have used the word “dangerous” before the words “combustible materials;” but as the only combustible materials shown to have been upon the right of- way were dead grass and dry weeds, the omission of that word was harmless error.</p> <p>3. Same—escape of fire from, locomotive engine—use of proper appliances. To overcome the prima facie inference of negligence, which arises from the mere fact that damage has been caused by fire communicated from a locomotive engine, it must appear, not only that the engine was provided with the best and most approved appliances, but also that they were at the time in suitable order and repair, and that there was no negligence in their use and management.</p> <p>4. Pbactice—special questions to the jury—failure to return proper answers. The mere failure of the jury to answer a question submitted to them, or the return by them of an irresponsive or unintelligible answer, will not entitle the party at whose instance the question was submitted, to have judgment in his favor. That is required by the statute only when the special finding is inconsistent with the general verdict.</p> <p>5. The failure of the jury to answer, or their returning an insufficient answer, ordinarily, at least, will not entitle the party asking the same, to a new trial. He should object before the jury is discharged, so that, . if the objection be well taken, the court may send them back to perfect their verdict.</p> <p>6. In an action against a railway company for the loss of property by the negligent escape of fire from a locomotive, it was charged in the declaration that the fire was communicated first to dry grass, etc., on the right of way, and from thence to plaintiff’s premises; and in another count, that the fire communicated from the locomotive to plaintiff’s premises. The proof showed clearly that the fire originated in one or the other of these ways, but left it in doubt, there being evidence supporting each count. It was held, that the jury were justified in returning a verdict for the plaintiff, without determining decisively whether the fire originated in one or the other of these places. In such case it is immaterial whether the fire started on the right of way or on the plaintiff’s land.</p> <p>7. Bum of exceptions—motion for continuance. If a party wishes to assign for error the refusal of the court to grant a continuance on the ground of an amendment of the declaration, he must preserve the motion for the continuance, the decision of the court denying the same, and his exception to such ruling, in a bill of exceptions. If he does not so preserve these matters, the ruling can not be reviewed by this court.</p> <p>8. Pleading and evidence—in case of an amended declaration. Where a declaration to recover damages for the loss of property by fire through negligence is amended, so as to show the loss of a shed instead of a barn, and the amendment is properly made, it will be clearly competent for the plaintiff to support his amendment by proof of the loss as alleged.</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. Richard W. Clifford, 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. Egbert Jamieson, 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. Frank Baker, Judge, presiding.</p>

<p>1. Tax title—service of notice on the owner—excuse that owner could ■■not be found—sufficiency of affidavit—diligence required. An affidavit ■of the service of notice of a tax purchase showed that the affiant was unable to find the names of any of the owners of the land except the estate of D. L. Gregg and two other persons: Held, that this impliedly • amounted to an assertion that the estate of D. L. Gregg was one of the owners, and the tax purchaser was required to serve notice upon the representatives of that estate, or show that upon diligent inquiry they -could not be found in the county.</p> <p>2. An affidavit to procure the issue of a tax deed, stated as an excuse for not personally serving notice' of the time when the redemption would expire on the owners, that affiant was unable, on diligent search •■and inquiry, to find the names of any of said owners except A B and the estate of D. L. G.: Held, fatally defective in failing to show that . affiant was not able, upon diligent inquiry, to find in the county those who represented the estate. It was not sufficient to search and inquire for the names of the owners. It was necessary to make diligent search -■and inquiry for the owners themselves.</p> <p>3. Same—notice by publication—whether allowable. Publication of notice of a tax purchase is only made necessary, and can only be regarded as a substitute for personal service, when the owner can not, upon diligent inquiry, be found in the county. Unless this is shown, •there is no authority to publish the notice.</p> <p>4. Practice in the Supreme Court—changing the record—by stipulation. The parties, on appeal or error, can not, by stipulation or consent, change the record of a cause by showing a different state of fact than that acted upon by the court below, and thus procure the judg.znent of this court upon different or new facts.</p>

Loein C. Collins, Judge, presiding. The following is a sufficiently full and accurate statement of this case, prepared by the Appellate Court, and the opinion of that court thereon: “Appellants filed a creditor’s hill, in which, after alleging the recovery of a judgment against said appellee Nilsson, and the return of an execution issued thereon, no part satisfied, it is further alleged, that April 5, 1888, and for some time prior to that date, the defendant, Nilsson, was…

<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. Fbank Bakeb, Judge, presiding.</p>

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

<p>1. Negligence—travelers along right of way—care required of railway company. A railway company owes a trespasser traveling along its tracks no duty to furnish a flagman or to ring a bell on the approach of a train. These warnings are for the benefit of those about to cross railroad tracks.</p> <p>2. Those who travel on foot upon railroad tracks as highways, are themselves guilty of gross negligence, and the railway company is only responsible for willful or wanton injuries to them, or for injuries resulting from a degree of negligence equivalent thereto.</p> <p>3. Practice—directing what the verdict shall be. Where there is no evidence to support an alleged cause of action in favor of the plaintiff, it-is proper for the court, after the plaintiff has closed, to instruct the jury to find for the defendant.</p>

<p>Appeal from the Appellate Court for the Se'cond District;— heard in that court on appeal from the Circuit Court of Boone county; the Hon Charles Kellum, 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. Elliott Anthony, 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. Frank Baker, Judge, presiding.</p>

Writ oe Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court -of Jo Daviess county; the Hon. William Brown, Judge, presiding.

Isaac Gr. Wilson, Judge, presiding. The following statement of facts taken from the opinion of the Appellate Court in this case is accurate… Held: the agent of the appellant went in person to the race track and had a consultation with the owners and those in charge of the horses, and asked them to ship to Freeport over the Chicago and Northwestern railway, and promised them that if they would ship their horses and baggage over his road he would give them a special train for…

<p>Writ of Error to the Criminal Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

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

Oliveb H. Hobton, Judge, presiding. This was a bill in chancery, brought by Peter McGurn, Frank B. Metzinger and Daniel Sullivan, against the Board of Education of the city of Chicago, and George Howland, the superintendent of schools of said city, to restrain them from assuming jurisdiction over school districts 4, 6 and 10, of township 38, north, of range 14, east of the 3d principal meridian, in Cook county, and from attempting to take possession of the school property,…

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

Lorin C. Collins, Judge, presiding. In 1882 appellee Addison R. Gilmore filed in the circuit court of Cook county, against the other appellees and Frederick Ayer, a bill for partition of certain real estate. By virtue of such proceeding, the premises sought to be partitioned were sold to Ayer. By agreement of all the parties to that proceeding, the court constituted $32,000 of the proceeds of the sale a trust fund.

<p>Appeal from the Circuit Court of Cook county; the Hon. Oliveb H. Hoeton, 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. Frank Baker, Judge, presiding.</p>

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

Richabd S. Tuthill, Judge, presiding. This was a proceeding by scire facias, brought by Frank L. Stevens against Carter Smith, to revive a judgment in ejectment, and to obtain an order for a writ of possession.

<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. Bollin S. Williamson, Judge, presiding.</p>

<p>Appeal from the Circuit Court of DuPage county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>1. Mortgages—assignment—what interest passes—negotiability. A mortgage of real estate is not negotiable or commercial paper, either at common law or under our statute, and an assignment of it does not convey or transfer the legal ownership. The right thereby acquired is equitable, only.</p> <p>2. Same—mortgage with power of sale—who may execute the power. Where the power of sale given in a mortgage is to the mortgagee, or to his heirs and assigns, if there is no transfer of the debt secured by the mortgage, so as to pass the legal title thereto, the power can be executed only by the mortgagee; but if the debt or note secured has been” legally assigned, the assignee, as the legal holder, is the one authorized to make the sale.</p> <p>3. A mortgage given to A to secure a promissory note payable to him, provided that on default of payment of the principal or interest of the debt, or any part thereof, the mortgagee, “his heirs or assigns,” might sell the premises, and, in the mortgagor’s name, make a deed to the purchaser. A indorsed the note to B, who transferred the same to 0, by delivery, only. The mortgage was by A indorsed in blank. On default of payment, 0 sold the premises:. Held, that the sale by 0 (he not being the legal holder of the debt) was unauthorized and void.</p> <p>4. Usury-—broker’s commissions—in case the lender advances his own money. A broker negotiating loans in good faith from others, may charge the borrower commission, without rendering the loan at full rate of interest usurious. But he may not make such charge when he himself advances the money loaned, for the purpose of afterward selling the note and mortgage given to him.</p> <p>5. Deed by married woman—subsequently acquired title. The warranty deed of a married woman, of land claimed by her, will pass to her grantee a subsequently acquired title; but when she unites in a warranty deed with her husband, of his land, merely for the purpose of releasing her inchoate right of dower, she will not be estopped from acquiring a subsequent title and asserting the same in her own favor.</p>

George W. Stipp, Judge, presiding. This was a bill in equity, brought by Francis Biggins, to establish an alleged trust in certain real estate in Will county.

Kirk Hawes, Judge, presiding. This was a suit in assumpsit, brought by Daniel E. Little, Willys G-. Peck and Omar H. Simonds, copartners under the firm name of Little, Peck & Co., against the Allemania Fire Insurance Company of Pittsburg, Pennsylvania, to recover the amount of a loss by fire under a policy of insurance issued by the defendant to the plaintiffs.

John P. Altgeld, Judge, presiding. This is a suit by the First National Bank of Emporia, doing business at Emporia, Kansas, against William and Simeon F. Hall, partners, etc., to recover upon the alleged promise by the Halls to accept and pay drafts drawn on them by Greer & Way, and which had been discounted by the bank.

<p>Writ of Error to the Criminal 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. Joseph E. Gary, Judge, presiding.</p>

<p>1. Master and servant—whether the relation exists. A person employed by a mill company to assist in moving railway ears on a scale platform, and in unloading grain therefrom into the sheds of the mill company, and who is injured while so engaged, by the negligence of a railway company, is not the servant of the latter company, and the rule protecting the master from liability for the ordinary risks of the service has no application.</p> <p>2. ' Same—risks of the service. If a servant, knowing the hazards of his employment as the business is conducted, is injured while engaged therein, he can not maintain an action against the master for the injury, merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.</p> <p>3. Same—care required of the master. Vet while it is true that a servant undertaking to work for a corporation on its side-tracks, used also by a railway company, assumes all the risks of injury which exist while the business is carried on in the usual and ordinary way, yet the master, and those acting under him, owe the servant a duty not to injure him recklessly or through gross negligence. They should conduct their business with reasonable caye in respect to the safety of their servant.</p> <p>4. Negligence—duty of railway company using a private track. A railway company in the use of a private track from its road to a mill, by pushing cars of grain to the mill to be there unloaded by the servants of the mill owners, owes such servants, while moving the cars on such track and unloading the same, the duty to exercise ordinary care to prevent injury to them.</p> <p>5. General verdict — evidence sustaining one of several counts. Where there is a general verdict under a declaration containing several counts, it will be sufficient if the evidence sustains any one of the counts.</p> <p>6. In an action to recover for injury resulting from the alleged negligence of the defendant, the declaration contained four counts, show- ' ing negligent acts. The court instructed the jury, that if they believed, from the evidence, that the plaintiff, without fault or negligence on his part, was injured by the wrongful acts of the defendant, as alleged by the plaintiff in his declaration, they should find the defendant guilty: Held, that the instruction was good if a recovery was proper under any count, and that it was not misleading. If three of the counts in such case are not sustained by proof, the defendant may, by instruction, call the attention of the jury to the different allegations of the several counts.</p> <p>7. It is sufficient if the law, as given at the instance of the plaintiff, is correct and applicable to the case under either one of several counts. If not erroneous as to any particular count, it will be proper.</p> <p>8. Instbuction—construed—whether partial to one side of the case. In an action against a railway company to recover damages as the result of negligence of defendant, the' court instructed the jury, in substance, that if they found, from the evidence, that defendant, by its employes, propelled a freight car, or car loaded with coal, in and along a certain street, on, etc., by giving it a considerable rate of speed and then detaching or cutting it off from the locomotive, without any one on board thereof, and that defendant, by its employes, so propelled the car in a negligent and reckless manner, and if they found, from the evidence, that the moving and propelling of said coal car in the way and manner they found it was moved at the time and place and under the circumstances shown in the evidence, was an act of negligence on the part of the defendant, and further, that plaintiff was, while on said street, without negligence on his part, injured through and by means of the negligence of defendant in moving and propelling such coal car, etc., they should find defendant guilty: Held, that the instruction was not liable to the charge of being “one-sided,” and contained nothing calculated to prejudice the jury.</p> <p>9. Same—based upon the theory of the party ashing an instruction. An instruction may properly embody the theory of the party asking the same. It is not error for the court, at the request of a party, to state his theory upon which the case is tried, and then announce the law applicable to such theory.</p> <p>10. Appead—affirmance by Appellate Court—determining the facts— presumption. The law requires the Appellate Court to pass upon questions of fact as well as questions of law, and in the absence of anything in the record showing otherwise, it will be presumed that the court has discharged its duty. So where the Appellate Court affirms the judgment of the trial court, it will be presumed, in the absence of anything appearing to the contrary, that the facts were all duly considered, passed upon, and found sufficient to support the judgment.</p> <p>11. Pbactioe—directing what the verdict shall be. An instruction that the plaintiff is not entitled to recover should not be given, unless, admitting all that the evidence tends to prove, it is insufficient in law to sustain the action.</p>

Henry M. Shepard, Judge, presiding. This was a bill in chancery, filed in the Superior Court of ■Cook county, by William T. Wenzel & Co., for themselves and the creditors of the Papillon Manufacturing Company, against said company and its stockholders, to collect its assets and wind up the corporation, under the act relating to corporations.

John.D. Crabtree, Judge, presiding. This is a chancery proceeding which originated in the circuit court of Whiteside county on bill to foreclose a mortgage, appellee Adam Smith-, being complainant, and appellants, with their wives, and appellee John Martin, defendants.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding.

<p>1. Witness—competency—wife for the husband. In an action against one of the makers of a note, who is a surety, the wife of the principal maker is not a competent witness for the defendant, for the reason that her husband is directly interested in the result of the suit.</p> <p>2. Same—former decision. The case of Gravel Road Oo. v. Madaus, 102 HI. 417, on this point is overruled.</p> <p>3. Instruction—giving undue prominence to 'evidence on one side. An instruction which recites the facts testified to by one party, almost in his language, and thus singles out those facts and gives them prominence over the testimony of the other party, and also gives prominence to an act of the latter, but ignores his evidence explaining the reason of his action, is erroneous.</p> <p>4. Same—accuracy required—evidence conflicting. In a case where the evidence is very evenly balanced, it is essential that the instructions, shall be accurate. '</p> <p>5. Practice—directing what the verdict shall be. In a suit upon art indorsed note by the assignee, the declaration had a special count on the note, and also the common counts, to which payment was pleaded. The evidence as to a settlement and payment was conflicting, and evenly balanced. The court instructed the jury to find for the plaintiff on the several claims made under the common counts, unless the defendant had proved, by a preponderance of the evidence, that they had been fully paid. There was no .pretense that the defendant was ever indebted to the plaintiff in any sum or on any account, except the note described in the first count, and the plaintiff testified that he had no other claim: Meld, that the instruction was erroneous, as under it the jury were bound to find for the plaintiff, even though they were satisfied of the payment of the note, and as being calculated to divert the attention of the jury from the merits, and confuse rather than enlighten them.</p>

<p>1. Tax deed—affidavit of notice. Where the affidavit required.for the issue of a tax deed, since the amendment of section 216 of the Bevenue act, in 1879, shows nothing in regard to the service of notice on the owner of the land or the party interested, a tax deed issued thereunder will be unauthorized and void.</p> <p>2. The amendment of section 216 of the Bevenue law, approved May 27, 1879, controlled sales of lands for taxes made in June of that year, as respects notice to be given to the owner or party interested.</p> <p>3. Limitation—act of 1889—when the statute begins to run—and when the ban- is complete. The seven years’ Limitation law does not commence to run before the party acquires color of title; and when seven years do not intervene between the issue of a tax deed to him and the bringing of a suit against him, there can be no bar under the law known as the act of 1839.</p> <p>4. Bemoving cloud upon title—setting aside a tax deed—upon terms. Where the owner seeks, in a court of equity, to set aside a tax sale and deed of his land, he will be required, as a condition to the relief sought, to pay the amount for which the land was sold, all subsequent taxes, and interest thereon at six per cent, whether he has offered to do so in his bill or not. A party seeking equity must do equity.</p> <p>5. So where a person owning land adjoining a tract sold for taxes, by mistake paid the taxes on the latter tract, supposing he was paying the taxes on his own land, and upon the discovery of the mistake the holder of the tax title repaid him the amount so paid, and the tax receipt was altered so as to show payment by the holder of the tax title, it was held, that it was the duty of the person seeking to have the tax title set aside, to pay such tax, with interest, as a condition to the relief sought.</p> <p>6. Same—extent of the relief granted. A court of equity, on proper bill, has the power to set aside a tax sale and deed, on the ground that the sale and deed may be void for the reason the law has not been complied with; but it is error for it also to set aside a deed, from the holder of the tax title to the defendant.</p> <p>7. Beactioe — specific objection — variance between allegations and proofs. If deeds offered in evidence by the complainant in a bill to remove a cloud on tire title to land, do not convey the same premises described in the bill, the proper course for the defendant to pursue would be to object to the introduction of such deeds, on the ground they do-not convey the premises involved.</p> <p>8. Where an objection to the introduction of a deed in evidence is such that it may be obviated by other evidence, or amendment of the bill, so as to avoid a variance, it must be taken on the hearing, or it will be considered as waived. If the complainant fails to show title to land, that objection may be urged in this court.</p>

<p>1. Contracts—time of the essence of the contract. Time is originally of the essence of a contract, in the view of a court of equity, whenever it appears to have been part of the real intention of the partiés that it should be so, and not to have been inserted as a merely formal part of the contract. This intention may be expressed, or it may be implied from the nature or structure of the contract. Time may be of the essence as to any one or more of the terms of the contract.</p> <p>2. The materiality of time may be implied when hardship will result from considering time immaterial, as, when delay in performance would involve one of the parties in serious liability or loss; or where the subject matter of the contract is, from its nature, subject to considerable and frequent variations of price; or where the object of the contract is a commercial enterprise, and the property purchased, whether land or goods, is for the prosecution of trade; or when the contract is for the purchase of property for immediate use, as of a house, with the intention of immediately occupying it as a residence; or when the contract contains stipulations in favor of one party, and not of the other, or is in anywise unilateral, and in a great variety of other cases-involving similar equitable principles.</p> <p>3. A letter containing an offer to sell land, concluded with a clause for the making of a deed “as soon as the above terms are complied with, but not later than ten days from the date hereof, except at the option of the undersigned:” Held, that such clause, if it had not been modified, would have made time of the essence of the contract.</p> <p>4. But when the person to whom the offer of sale was made, objected to the clause limiting the time for his performance to ten days, the proposition to sell was modified by a subsequent letter, so as to give a reasonable time for examining the title, etc., which was accepted: Held, that the offer was to convey the land to the defendant upon his compliance with the terms proposed, but not later than the expiration of a reasonable time for the examination of the title, etc., and that time was material.</p> <p>5. Same—notice to perform,—within a fixed time—extension of time by agreement. Where time'is not originally made of the essence of a contract, such provision may be in effect engrafted upon the contract when there has been unnecessary delay or default in performance, by notice from the other party insisting upon performance at a fixed time, which is a reasonable time, under the circumstances of the case.</p> <p>6. The vendor and purchaser not having closed their contract for the sale of land by making deed and payment, the vendor tendered a conveyance and demanded payment, and the purchaser, being unable to pay on that day, asked until noon of the following day to get the money, and agreed that if, at that time, he was unable to perform, he would surrender his fights under the contract and execute a quitclaim deed to the vendor. The latter thereupon served upon him a notice to pay by noon of the following day, and that upon failure to do so his rights under the contract would terminate : Held, that as the time for performance named in the notice had been expressly assented to, the reasonableness of the notice could not be fairly questioned.</p> <p>7. If the purchaser of land agrees with the vendor, in consideration of the postponement of the time of payment until the next day at noon, that if he fails to perform at that time he will abandon and surrender his rights under the contract, or, in other words, will assent to a rescission, such agreement will be binding, and on his failure to perform at the time fixed, his assent to the rescission will become operative.</p> <p>8. Bemovtug- on otto tjpoit title—requiring a quitclaim as to opposing title. It is proper, on bill to remove an apparent title standing upon the records, as a cloud on the title, to require the defendant to give the complainant a quitclaim deed for the land, and on his failure to do so to direct the clerk of the court to make one for him, and to cancel the opposing interest of the defendant.</p>

Kibe Hawes, Judge, presiding. This is an action of .trespass, begun in the Superior Court of Cook county. By the amended declaration the suit is by Joseph F. Ives, who sues for the use of Massey, Geddes and Bobert F. Graff, and against George W. Kretzinger, Joseph T.. ¿retzinger and Seth F. Hanchett, the latter being sued as. sheriff of. Cook county.

<p>1. Trustee and cestui que trust—debtor and creditor—when the different relations exist. A widow continued the business in which her husband had been engaged in his lifetime, using the property, in conducting the business, which was left by will to her and her children. It was held, that long as the property of the children was employed in the business it was a trust fund in the hands of the mother. But upon a settlement between her and her children, in respect to their shares in the estate, she gave them her obligation for their respective portions, and they gave in return a release to her from any further liability to them. This was regarded as an extinguishment of the trust, at least so far as concerned any subsequent indebtedness, and thereafter the legal relation between the mother and the children was that of debtor and creditor.</p> <p>2. Partnership—marshaling assets—os to debts of the firm, and debts of individual partners. The equitable rule which requires the assets of a partnership to be first applied to the payment of firm debts, and vice versa, is founded, not upon the equities of the creditors, but upon the equities as between the partners. Each-partner has the equitable right to have partnership assets applied, in the first instance, to the satisfaction of partnership debts, so that his individual property may be relieved; and so the members of the firm have each an equitable right to have the individual property of each partner first exhausted in satisfying his individual debts, in order to the exemption of the joint estate, as far as possible, from seizure for individual debts.</p> <p>3. But firm creditors whose debts have not been reduced to judgment have no specific lien, either legal or equitable, upon the property of either the firm or of the individual partners, and their right to have the firm assets so marshaled as to satisfy their debts first, can only be worked out through the equities of the partners.</p> <p>4. So a sale made in good faith by one partner to a co-partner, or to a third person, of all his interest in the firm, is as valid to transfer the interest of the seller to the vendee as a sale between individuals, although the buyer and seller are insolvent, and such sale may defeat their creditors; and as the firm creditors have no lien, the buyer can dispose of the property as his own, and pay his separate creditors, to the exclusion of joint creditors, and vice versa.</p> <p>5. Debtor and creditor—preference among creditors. Trade creditors are not entitled to preference over other creditors. A debtor may legally apply his stock of goods to the payment of his obligation given for a debt due to another, to the exclusion of trade creditors, and the payee or holder of such obligation may take steps whereby to obtain a lien on the debtor’s property.</p> <p>6. So where one engages in mercantile business with funds belonging to another, there will be no equitable right, as between them, to have the stock of goods applied in the first instance to the payment of the trade creditors. Such creditors, having no judgment, are entitled to no preference.</p> <p>7. Insolvent debtors—preference among creditors. After a debtor has made up his mind to make an assignment of his property for the benefit of creditors, all conveyances, transfers, and other dispositions of his property or assets, made in view of his intended general assignment, whereby any preference is given, will, in a court of equity, be declared void.</p> <p>8. To render a lien acquired by confession of judgment and the issue of execution before the making of a general assignment by a debtor, fraudulent, it must appear, first, that at the time the judgment was entered, execution issued and levy made, the'debtor had made up his mind to make an assignment for the b.enefit of creditors; and second, that he had some agency in bringing about the entry of the judgment and the seizure of his property on execution. When the lien of the execution is apparently superior to the assignment, the burden will rest upon the party seeking to defeat such lien, to establish both of the foregoing propositions.</p> <p>9. In this case, a debtor gave his judgment notes, to which were attached warrants of attorney for the confession of judgment at any time. Some months afterward, the payees of the notes learned from the debtor’s business manager, in response to an inquiry, that the debtor was unable to pay all his debts,'and they, without any consultation, and without his knowledge, had judgments confessed on the notes, and execution issued, and levied on the debtor’s stock of goods. The debtor on the next day consulted with the same attorneys who procured the judgments, execution and levy, and by their advice made a general assignment for the benefit of creditors. The proofs showed that the steps taken by the payees of the notes were of their own motion, uninfluenced and unaided by. the debtor or his business manager, and that there was no collusion or co-operation between them: Held, that the executions and levies did not constitute an illegal preference.</p> <p>10. Consideration—sufficiency—settlement and release of a demand. The transfer of trust property to a trustee of the trust estate, by the cestui que trust, and the release and discharge of the trustee from all liability for the use of the trust property for several years, is a sufficient-consideration for the making of notes by the trustee to the cestuis que trust.</p> <p>11. Pabent and child—duty of the former—as to the support and, education of his children. As a general rule, a father must, if he can, maintain as well as educate his infant children, whatever their circumstances may be, and no allowance will be made to him out of their property while his own means are adequate for such purpose.</p> <p>12. So if the mother, after her husband’s death, voluntarily takes it upon herself to maintain and educate her children, she can not be compelled, even in the interest of creditors, to charge her children with the expense of that which she has thus elected to do for them gratuitously.</p>

<p>1, Master and servant—taking the risks of the service—employment ■of a child■—duty of the master. The master is not liable to his minor ¡servant ior risks, if the latter has sufficient capacity to take care of himself, and knows and can properly appreciate the risk. The minor ■servant may recover from his master for injuries suffered from any .peril the nature of which he did not know, or could not properly apprecíate if lie did nominally know, and to which a prudent and right-minded master would not have allowed him to be exposed. ■</p> <p>2. Where a child is employed, the employer must look out for the ■ child, and must see that it is not exposed to danger, arising from the structure of building or machinery, which an operative of ordinary intelligence and experience would perceive. Notice of danger is not. enough,—the child must have .sufficient instructions to enable him to»avoid danger.</p> <p>3. Same—evidence on the question. On the trial of an action brought-by a minor servant against the master, to recover for a personal injury-received while engaged in a dangerous service by the order of his. foreman, the fact that the servant had done the same work for sometime prior to the accident, and the number of times he had done so, are proper facts to be considered by the jury in determining whether- or not it was negligence in the foreman to require the servant to continue to do so, and also for the purpose of determining whether or not-. the injury resulted from inexperience and want of judgment, or from his own negligence. But such proof is not conclusive against his right, to recover.</p> <p>4. Same—in the case of fellow-servants. In a suit by a servant against-his master, to recover for an injury caused by negligence of a fellow-servant, in order to defeat a recovery the master must not only show' that the injury was caused by the negligence of the fellow-servant, but-also that the master had used ordinary care and prudence in employing-such fellow-servant. If the injured child was incapable of comprehending that risk, the rule exonerating the master from liability for-, the negligence of a fellow-servant does not apply.</p> <p>5. Appeal—reviewing the facts—affirmance by Appellate Court. Unless this court can see there is no evidence tending to support a material element of a case, it must accept the judgment of affirmance in the-■Appellate Court as settling the facts necessary to make out the plaintiff’s case in his favor.</p> <p>6. Practice —- oral statement by the court — to the jury — as to facts admitted. A statement by the court to the jury, that certain facts were-admitted by the counsel, is in no sense an oral instruction to the jury,, and will not constitute error, where no objection was made to it either as a statement of the agreement or as an oral instruction, and where the facts were not disputed.</p>

<p>1. Agency—acts of agent binding on principal. A person acting as the financial agent of an insurance company, who is entrusted with the management of the company’s loans, securities and real estate, when acting within the scope of the apparent power, will bind his company by his acts.</p> <p>2. Same—ratification by principal—by accepting benefits of agent’s acts. A principal can not be allowed to accept and hold a deed made by a party under a contract with his agent, and at the same time repudiate the agreement made by his agent. By retaining such deed, and the rights thereby obtained, he will ratify the acts of Ms agent, and be compelled to perform the contract on his part. •</p> <p>3. Redemption—sale under mortgage—redemption of a part—extension of time. Where a tract of land has been sold for a specified amount of money, in satisfaction of a mortgage, and the mortgagor seeks to redeem, in the absence of any agreement between him and-the mortgagee to the contrary, the mortgagor will be required to redeem the entire tract sold, and pay the whole mortgage debt. But it is competent for the parties to agree to extend the time of redemption, or to give the privilege to redeem a part, only, of the mortgaged premises.</p> <p>4. Same—agreement for redemption or re-purchase—validity. After bill filed to foreclose a deed of trust upon several tracts of land belonging to a married woman, including her homestead and that of her husband, a settlement was had with the holder of the mortgage, by which it was agreed that the mortgagors (the husband and wife) should make a quitclaim deed for all the property to the mortgagee in payment of the debt, and in consideration of the sale to the wife, of the homestead, and certain other property, for a sum stated, a stipulated • amount to be paid annually: Held, that the agreement for the repurchase or redemption by the wife was valid and enforcible.</p> <p>5. Considebation—named in a deed—whether conclusive. The consideration named in- a deed has never been regarded as conclusive on the parties thereto. While parol evidence is not admissible to vary or contradict the terms of a deed or other written instrument, yet such evidence may be introduced to show the true consideration of a deed, although it may be different from that named in the deed.</p> <p>6. A quitcl aim deed given by a mortgagor and wife to the mortgagee, recited, “this conveyance is given and accepted in satisfaction of certain indebtedness.” The grantee insisted that this recital estopped the grantors from showing that the consideration was the right to redeem a part of the premises: Held, that the recital related to the consideration of the deed, and as it was not conclusive there could be no estoppel.</p>

<p>Writ of Error to the Circuit Court of Kankakee county; -the Hon. N. J. Pillsbury, Judge, presiding.</p>

Wbit of Bbbob to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Julius S. Gbinnell, Judge, presiding.

Henry M. Shepard, Judge, presiding. This is a bill filed by the appellants who are the administrators of the estate of Amos J. Snell, deceased, and his children and heirs at law, against the appellees, the City of Chicago and George B. .Swift, commissioner of the department of public works of that city, to enjoin the latter from removing a toll-gate and toll-house on Milwaukee Avenue at or near its intersection with Fullerton Avenue, and from interfering with the use thereof…

Oliver H. Horton, Judge, presiding. This was a hill for an injunction.

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

Richard S. Tuthill, Judge, presiding. This was a petition for mandamus, in the circuit court of Cook county.

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

Charles Blanchard, Judge, presiding. This was an action of debt, brought by John W. Nadelhoffer against Andrew Dillman, Andrew H. Shreffler and Henry A. Sanger, upon the following bond: “Know all men by these presents, that we, Andrew Dillman & Edward B. Knowlton and Andrew H. Shreffler & Henry A. Sanger, of the county of Will and State of Illinois, are held and firmly bound unto John W. Nadelhoffer in the penal sum of ten thousand dollars, for the payment of which, well and…

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. A. N. Waterman, Judge, presiding. This was.an action brought by Emma T. Healey, against the Mutual Accident Association of the Northwest, on a policy of accident insurance, or certificate of membership, issued by the company to John Healey, the husband of the plaintiff. The declaration contained three counts.

Julius S. Gbinnell, Judge, presiding. This was an information, in the nature of a quo warranto, filed by Joel M-. Longnecker, state’s attorney for Cook county, against Murry Nelson, John A. King, Richard Prendergast, Frank Wenter, William H. Russel, Arnold P. Gilmore, John J. Altpeter and Henry J. Willing, alleging that the defendants have usurped and are now unlawfully holding the office of trustees of the Sanitary District of Chicago.

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

. Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding. This appeal is from a judgment of the Appellate Court for the First District, affirming a decree of the circuit court of Cook county, dissolving a temporary injunction enjoining the collection of a judgment at law and dismissing the bill.

<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. 'G-rinnell, Judge, presiding.</p>

<p>Appeal from the County Court of Effingham county; the Hon. Sylvester F. Gilmore, Judge, presiding.</p>

<p>1. Eminent domain—of the petition—the necessity for it—and its requisites. To put the court in motion, and give it jurisdiction in condemnation proceedings, a petition is, in general, necessary, and must be in conformity with the statute granting the right of condemnation. It should set forth, by appropriate averments, all such facts as are necessary to authorize the tribunal to act.</p> <p>2. The petition should show the use or the purpose for which the property is desired, and that it is within the statutory powers conferred. It should show a clear right to condemn the property described. The petition must not only show that the property is wanted for a public use, but also that it is for a use that is within the particular statute under which the proceedings are had.</p> <p>3. A petition by a railroad company to condemn land stated that the land sought was “needed by said company for their right of way, and for the alteration of River street, in said town of S.,” etc. The company, by its charter, was authorized to condemn only for railroad purposes,— not for streets: Held, that under such a petition the court could not condemn the whole or any part of the land for right of way, the use for which the property was sought being indivisible.</p> <p>4. So where a proceeding to condemn land shows upon its face that it is for two distinct uses or purposes, one of which is lawful and the other not, and the two purposes are so inseparably blended in the petition and orders as not to be capable of severance, it can not be sustained.</p> <p>5. Same—/or the particular purpose, only—as, for railroad purposes— railroad company laying out a public street. A provision in the charter of a railway company, that it “may, by its agents, engineers and surveyors, enter upon and take possession of and use all of such land and real estate as may be necessary and indispensable for the construction and maintenance of such railroad, and the appendages and accommodations requisite and appertaining thereto,” gives power to take and condemn land for railroad purposes only. It gives no authority to condemn land for a public street.</p> <p>6. Under such a provision of law, a proceeding by a railway company to condemn land for the purpose of making a public street in an incorporated town, in the place of one appropriated by the company , for its right of way, is without authority of law, and the court in which the proceeding is had will acquire no jurisdiction. The company has no power to lay out a public street or to change the, location of one already established, and an attempt to do so is abortive, and a nullity.</p> <p>7. Same—strict construction — effect of irregularities—presumption. The power to force a man to give up his property against his will, and for a price -to be fixed by others, is in its nature harsh and against common right, and such power, to be effectual in its exercise, must be strictly pursued.</p> <p>8. The jurisdiction in condemnation cases is of a special character. It is a jurisdiction to proceed to a final determination in the mode provided by law, and any material departure from that mode will be fatal to the proceedings.</p> <p>9. A proceeding to condemn land is summary, and in such cases no presumptions are indulged in by the courts in favor of the regularity and validity of a proceeding to divest the citizen of his property without his consent.</p> <p>10. SAME'—payment of compensation and damages—as essential to the right of possession. As the corporation seeking a condemnation for a public use may abandon the proceeding after the assessment of the compensation and damages, its right to the possession of the property depends upon proof of the payment of the damages. Payment in such a case will not be presumed after the lapse of twenty years, as in the case of ordinary judgments for money, unless possession under the judgment was taken and kept for that length of time.</p> <p>11. Jubisdiction—presumption—as,in case of special statutory jurisdiction. In respect to special statutory jurisdiction, the court or judge exercising it may be regarded as an inferior tribunal, and possessing no power not given by the statute, and therefore irregularities in the proceedings may be taken advantage of collaterally.</p> <p>12. At common law, the record of courts of inferior jurisdiction, or of any court exercising a special statutory power, was required to show affirmatively all the facts necessary to give jurisdiction, and that the proceedings were according to law.</p> <p>13. Limitations—of the possession required—to defeat the title of the owner of land. An adverse possession sufficient to defeat the title of the true owner, in the absence of color of title, must be hostile in its inception, and continue uninterruptedly for twenty years. It must be of such character as to notify the true owner of an adverse claim and invasion of his rights.</p> <p>14. Mere acts of trespass upon vacant and uninclosed land, not amounting to an exclusive appropriation thereof, and not made under a bona fide claim of ownership, or under circumstances indicating such a claim, do not constitute an adverse possession, within the meaning of the Limitation law. Such adverse possession can not be inferred, but must be proved.</p>