Volume 138 — Illinois Reports

■ Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.

<p>Appeal from the Circuit Court of Moultrie county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Williamson county; the Hon. O. A. Harree, Judge, presiding.</p>

<p>1. Practice—evidence admitted subject to examination as to correctness—effect of stipulation. Where counsel for defendant in ejectment admits in open court that the plaintiff is entitled to recover unless a copy of a plat is found to be incorrect or the original is not genuine, and the court takes a verdict for the plaintiff with the understanding that a new trial shall be awarded if the copy is not correct and the original not genuine, and time is given for investigation of the matter, and on the day appointed ño objection is urged to the original map or the copy, there will be no error in rendering judgment in favor of the plaintiff and refusing a new trial.</p> <p>2. Where a party stipulates, on the trial of a cause, that the plaintiff is entitled to recover unless a certain other fact is found to exist, he will be held as admitting the plaintiff’s. right to recover his claim or demand in full on the contingency named, and can not afterward raise any question as to the extent of the recovery.</p> <p>. 3. Same—trying case out of its order—sufficient cause—discretion of court. The statute relating to the order in which cases shall be tried or disposed of, not attempting to determine what shall constitute sufficient cause for trying or disposing of a cause out of its order on the docket, that matter is left to the sound discretion and judgment of the court in which the suit is pending, and the action of the court can not be assigned for error except when its discretion is abused.</p> <p>4. As ground for trying an ejectment suit before it was reached in its order, it was ¡Shown that the city of Chicago was the real plaintiff in interest, and that it had purchased the premises to be used as a part of a site for important public works which it was in the process-of constructing, and that until the possession of said premises could be obtained the construction of said works would be delayed, etc.: Held, that the facts showed ample grounds for the court to award a prompt and speedy trial.</p> <p>5. Same—withdrawal of juror—discretion of court—whether error. The withdrawal of a juror where a party is surprised after going into trial, is usually, if not uniformly, a matter resting in the sound discretion of the trial court, and a refusal to permit a juror to be withdrawn can not usually be assigned for error. When a party otherwise gains all the benefit sought by the motion to withdraw a juror, he will have no ground to complain of the refusal of such motion.</p>

Wbit ob Ebbob to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court, of- Champaign county; the Hon. C. B. Smith, Judge, presiding

<p>Trade secrets—bill to enjoin using or divulging—what will sustain. A bill in equity will not lie to enjoin the defendant from using or divulging trade secrets conveyed to him by the complainant, and from claiming that complainant has gone out of business, etc., when the proof fails to show that the defendant is using or threatening to use any trade secret belonging to complainant, and it appears that the latter had, more than a year before suit, sold a part of the plant, and ceased to do business as a manufacturer in connection with the plant. It must appear that complainant, at the time of the filing of the bill, was in such a position that it could have been injured by the acts complained of.</p>

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

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

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

<p>Appeal from the Circuit Court of Tazewell county; the Hon. N. W. Green, Judge, presiding.</p>

<p>1. Partnership—compensation for the services of one partner—how charged. Where the court, on bill to settle a partnership account, finds that one of the partners is entitled to compensation for services, and the amount thereof, it is proper to render a decree against the other partner for one-half of such compensation, instead of charging the .gross sum to the firm, and then decreeing that such other partner pay half of it.</p> <p>2. Master’s report—should show the items allowed and disallowed. The master to whom a cause is referred to take and state a partnership account, should state the items allowed and disallowed. If he fails to .do so, it is the duty of the court, on proper exception, to recommit the master’s report to him, with instructions to conform to the proper practice.</p> <p>3. Same—exhibits before master—shown in record. Where a master’s report of his statement of an accounting refers to exhibits or accounts filed by the parties, as showing the items of the accounts of each party, .such exhibits should not be omitted from the record sent to this court. If left out of the transcript, the record should be amended; and if detached from the report and lost, they should, on application to the court below, be supplied, and then shown in the record.</p> <p>4. Same—exception to master’s report—should be specific. A party objecting to the allowance of any item of an account by the master should except specifically to the items complained of. An exception to the aggregate amount of the items contained in certain exhibits, .and “to any part thereof,” is too general, as it would require the court to restate the account, the same as if no accounting had been had before the master.</p> <p>5. Same—form of master’s report—contents. Where the respective parties make out and file with the master their itemized accounts, the master may state the result of the accounting, with the items rejected, in the body of his report, and refer to the schedules or accounts filed therewith, for the particular items entering into the account. Whatever mode is adopted by the master, the items of the account should in some way be designated, and his ruling thereon be made to appear.</p> <p>6. Practice—time to object—admission of evidence. Where the parties to a bill for the adjustment of partnership accounts try the case on the question of the right of the complainant to compensation for his-services, and the defendant makes no objection to the admission of evidence on such question, on the hearing or otherwise, it will be too-late on appeal or error to object to the decree that it allows compensation when it is not asked for in the bill. If a bill is not sufficiently specific to admit evidence, objection should be made, so that it maybe obviated by amendment.</p>

<p>Writ of Error to the Circuit Court of Macon county; the Hon. James F. Hughes, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. O. H. Horton, 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 an order of the board of supervisors of Sangamon county, holding that the property of the Wabash Hospital is exempt from taxation.</p>

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

<p>1. Criminal practice—separation of jury in a felony case—right of Jury to correct verdict. The record, of the trial of two defendants for larceny contained this recital: “The court directed, with the consent of the defendants given in open court, that the jury be permitted to seal their verdict when arrived at, and return the same into court at the opening of the session of the day following.” 1 On the same afternoon the jury separated and went to their respective homes, returning into court next morning what purported to be a verdict finding the defendants guilty, but failing to fix the punishment of one of the defendants. The court directed the jury to again retire and complete their verdict, to which the defendants objected: Held, that the court erred in sending the jury back to complete the verdict, after the separation of the jury,</p> <p>2. The agreement of the defendants, on trial for a felony, made in-open court, that “the jury be permitted to seal their verdict when arrived at, and return the same into court at the opening of the session of the day following,” will not dispense with the necessity or duty of placing the jury in charge of a sworn officer; and if such agreement amounts to a consent that the jury may separate, it will not authorize the sending out of a jury the second time, after they have separated and mixed with other people, to pass, upon the guilt of the defendants, or to fix the punishment to be inflicted on them.</p> <p>3. Under our statute, as at common law, the jury trying a defendant on a charge of felony, upon retirement to consider of their verdict, must be placed in charge of a sworn officer, whose duty it is to keep them together to prevent others from speaking to them, and not to speak to them himself except to ask if they have , agreed upon their verdict, and when they have so agreed, return them into court.</p>

<p>1. Criminal law— evidence. On the trial for the larceny of a diamond ring, the proof showed that defendants came into a jewelry store and examined some rings, but left without purchasing. Directly afterward a diamond ring was found missing from the tray, and a cheap imitation ring found in its place. The supposed thieves were followed and arrested, and the stolen ring found near where they were overtaken. In their possession, in a valise at their room, were found other similar imitation diamond rings, which the court admitted in evidence: Held, that the imitation diamond rings were properly admitted in evidence, as corroborative of the theory of their guilt, and as tending to show their ability or means of committing the crime.</p> <p>2. Same—corpus delicti—identification of defendant—burden of proof. If the prosecution, under an indictment for larceny, proves the corpus delicti as charged, and introduces evidence which, in the absence of contradiction or explanation, identifies the defendants as the perpetrators of the offense beyond a reasonable doubt, this is all that is required, and then it will devolve upon the defendants, either to prove that some one else committed the theft, or raise a reasonable doubt whether they or some one else committed it, or in some other way either show their innocence or raise a reasonable doubt of their guilt.</p> <p>3. On the trial of parties for larceny, the burden of proving everything essential to a conviction is on the prosecution, and it is not sufficient for a conviction to show that the property was stolen, without identifying the defendants as the perpetrators of the crime.</p> <p>4. Searches and seizures—constitutional limitation—evidence. Sections 6 and 10, of article 2, of the State constitution, are limitations upon the powers of the State government, and have no reference to or bearing upon the unauthorized acts of individuals. Those constitutional restrictions do not prohibit all searches and seizures, but only such as are unreasonable, and the plain implication therefrom is, that a search warrant may issue if it is for a reasonable search and seizure, and is based upon probable cause supported by affidavit particularly describing the place to be searched and the persons or the things to be seized.'</p> <p>5. Where a party, without any search warrant, or other authority of law, enters the rooms of another, searches the same and seizes therein evidences of the commission of crime, the act "will be in violation of" the civil rights of the latter, and a trespass, for which the former maybe held liable in a civil action.</p> <p>6. Unlawful seizure—evidence procured by — whether admissible.</p> <p>The fact that evidences of the commission of a crime are found by a. mere private detective on an unauthorized search of a party’s rooms,, will not, of itself, render the evidence thus found incompetent against the party in whose possession the articles are found, if such evidence .is otherwise competent. The court will not take notice in what manner such evidence has been obtained.</p> <p>7. Though papers and other subjects of evidence have been illegally taken from the possession of the party against whom they were offered,. or otherwise unlawfully obtained, this is no valid objection to their - admissibility, if they are pertinent to the issue. The court will not form an issue to determine that question.</p> <p>8. Evidence—source of, immaterial—when objected to. Courts, in the ■ administration of the criminal law, are not accustomed to be over- . sensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent, and not subversive of some constitutional or legal right.</p> <p>9. Practice—time to object—testimony illegally obtained. If articles ■ in the possession of one charged with crime are illegally seized, and ; introduced in evidence against him, unless he objects at the time to- - their admission the question of their competency will not arise.</p>

<p>1. Negligence of municipal corporation—unsafe bridge—notice,, actual or constructive. In an action against a city for an injury from a defective bridge or culvert, the declaration alleged that the insufficient and unsafe condition of the bridge or culvert had for a long time prior thereto been well known to the municipal authorities of the city, which the evidence proved. The court instructed the jury, that if they believed, from the evidence, that the bridge or culvert had been out of repair for such a length of time that by the use of ordinary diligence the defendant might have known the fact, or did in fact know that the same was out of repair, and the plaintiff was injured by reason of such defect, he was entitled to recover. It was objected that the instruction should have placed the right to recover upon proof of actual knowledge by the city authorities of the unsafe condition oí the bridge or culvert: Held, that the instruction was not erroneous in this respect.</p> <p>2. Where the unsafe condition of a bridge in a city exists for such a length of time before an injury results therefrom that the proper authorities might have discovered it by the use of reasonable diligence,. tbe city will be liable for the injury, and will be chargeable with notice of the condition of the bridge.</p> <p>3. Same—duty of officers to examine bridges. It is the duty of municipal officers to use ordinary care in keeping its bridges, culverts, etc., in a safe condition for public travel, and this involves the anticipation of defects that are the natural and ordinary result of use and climatic influences; and so, whenever there is neglect on the part of the proper officers to make a sufficiently frequent examination of a particular structure, a municipality will not be relieved from liability, although the defect may not be open and notorious.</p> <p>4. In an action against a city for an injury caused by suffering a bridge to become unsafe, an instruction is properly refused which assumes that the city authorities owe no affirmative duty of observation and inquiry to ascertain whether its bridges, culverts, etc., are in fact safe for public travel.</p> <p>5. Instetjctions constbtjed—damages proved. In an action for a personal injury, an instruction told the jury what was competent to be considered as elements of damages, after which were the words, “provided the jury believe, from the evidence, that the plaintiff has been damaged in the regards aforesaid.” It then told the jury, that if they found the defendant guilty, the plaintiff was entitled to recover, not' the amount or sum of damages laid in the declaration, but “all damage alleged in the declaration which they may believe, from the evidence, he had sustained by reason of said injury:" Held, that the instruction was not open to the objection that it did not restrict the jury to the damages proved, or contained an intimation that the jury might give the full amount of damages claimed in the declaration.</p> <p>6. An instruction told the jury that they should “give him (the plaintiff) such damages as will reasonably compensate him for the injury the evidence shows he has sustained:” Held, that the instruction could not be understood as assuming that the jury must award some amount of damages. Under it, if the evidence showed no injury, the jury would understand they were to give the plaintiff no damages.</p> <p>7. Same—time of injuries. An instruction told the jury that the question of damages was for them to determine, from the nature and character of the injuries received, if any. There was no proof of any 'injuries received by the plaintiff other than those received in consequence of the negligent act complained of: Held, that the instruction was not subject to the charge that it did not confine the jury, in assessing damages, to injuries received at the time of the accident.</p> <p>8. Pleading—declaration cured by verdict. In an action against a city to recover for a personal injury from the breaking down of a ■ bridge or culvert, an ambiguity in the declaration in respect to the cause of the injury will be cured by verdict.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon» Richabd Tuthill, Judge, presiding.</p>

<p>1. Tbxjsts—pursuing a trust fund—identification. Where a trust fund, .has been wrongfully converted into other property, if its identity can be traced it will be held, in its new form, liable to the rights of the cestui que trust, except as against a bona fide purchaser without notice. But the right of pursuing it fails when the means of ascertainment fails, which is always the case when the subject matter is turned into money, or mixed and confounded in a general mass of property of the same description.</p> <p>2. The principle upon which a trust fund is pursued and its proceeds held subject to the trust is, that the trustee has wrongfully, and contrary to the intention of the owner, converted it, and when there has been a commingling of funds or property, that it has been done without the consent of the cestui que trust.</p> <p>3. If any property, in its original state and form, is covered by a trust in favor of the principal, no change of that state and form can divest the property of such trust, or give the agent or trustee converting it, or those who represent him in right, (not being bona fide purchasers,) anymore valid claim in respect to it than they had before such change. ■It matters not in the slightest degree into what other form different from the original the change may have been made, for the product of a substitute for the original thing still follows the nature of the thing itself, so long as it can be ascertained to be such.</p> <p>4. On bill by one partner against another for the appointment of a receiver and settlement of the partnership affairs, a bank, by leave of court, was made a defendant, and filed a cross-bill, in which it was alleged that the firm, by fraudulent representations of its financial condition, borrowed of the bank $15,000, which was laid out in the purchase of merchandise, which was so mixed and commingled with other goods ' as to be incapable of identification, and asking a prior lien on the goods, as to such debt: Weld, that the cross-bill was bad on demurrer, and could not be maintained.</p> <p>5. Where a merchant procures the loan of money to be used in his business, by a false and fraudulent representation of his financial condition, and invests the same in the purchase of goods, which are mixed with others so as to be incapable of identification, a court of equity will not hold the borrower as a trustee of the lender, for the reasons that the relation between the parties is simply that of debtor and creditor, and that the identity of the goods purchased with the money can not be determined.</p> <p>6. Same—to prevent fraud or injustice a court of chancery will raise a trust. Where the acquisition of a legal estate is tainted with fraud, actual or equitable, or where the trust depends upon some equitable rule independently of the existence of fraud, courts of chancery, in order to prevent injustice, will raise a trust, and fasten it upon the conscience of the legal owner, so as to convert him into a trustee for the parties who, in equity, are entitled to the beneficial enjoyment. But this is a rule of necessity, to prevent fraud.</p>

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

<p>1. Special assessments—ordinance construed. An ordinance for a public improvement, “that said improvement shall be made and the cost thereof paid by special assessment, to be levied upon the property being benefited thereby, to the amount that the same may be legally assessed therefor, and that the remainder of the cost shall be paid by general taxation,” is in accordance with the statute, and its purpose is merely to declare that the improvement shall be in part paid for by special assessment, and is not invalid.</p> <p>2. Same—sewage—outlet on private ground. "While the fact that a proposed system of sewerage in a village has no outlet except a drain over private ground, may be a reason for enjoining proceedings to assess benefits until the right to use the ground is obtained by condemnation or otherwise, it is no reason for declaring the ordinance void.</p> <p>3. Same—commissioners presumed to do their duty. Section 24, article 9, chapter 24, relating to special assessments by cities and villages, relates only to the duties of commissioners appointed to make the assessments, and in the absence of proof to the contrary it will be presumed that they have obeyed its directions.</p> <p>4. Same—waiver of jury. Where a judgment of confirmation of a special assessment by default was set aside and leave given to file objections, the record showing the waiver of a jury and a hearing by the court, it was held, that the objectors could not urge for error that they were deprived of a trial by jury.</p> <p>5. Construction—“until the 19th” construed. On application to confirm a special assessment, the court made an order on February 10 that objections to the confirmation should be filed by February 19. No objections being filed by the 19th, the court entered a default: Held, that the default was not premature. “Until the 19th” did not extend beyond the last moment of the 18th.</p> <p>6. Practice—limiting witnesses. In general it is within the discretion of the trial court to limit the number of witnesses on the different subjects involved in cases of special assessments, and like cases. But the discretion must be reasonably exercised, so as to deprive the parties of no material rights, and its abuse in this respect is reversible error.</p> <p>7. Same—error in limiting witnesses should he urged for new trial. If the court trying a case without a jury errs in limiting the number of witnesses, this should be urged as one of the grounds for a new trial, otherwise it will be presumed that the ruling of the court worked no injury.</p> <p>8. Same—setting aside default—court may impose terms. The court, in setting aside a default as a matter of favor, may impose terms upon the defendant, and may, in its discretion, let the default stand until satisfied, from such evidence as it may deem necessary to hear, that a different judgment should be rendered. In such ease the court may limit the number of witnesses it may hear, and the defendants will not have the right to a trial by jury.</p>

<p>1. Warranty—measure of damages for breach. The measure of damages for a breach of -warranty on the sale of property is the difference between the value of the property as warranted and its actual ;value at the date of the breach. It is immaterial how much the purchaser may have realized from the property.</p> <p>2. Same—retaining possession after known breach—whether waiver. The mere fact that a purchaser retains possession of the property bought niter a known breach of warranty, while it may bar him from a rescission of the contract, will not constitute an abandonment of his remedy by cross-action, or by a counter-claim in the vendor’s action for the price.</p> <p>3. Same—breach interposed in defense to action for price. In an notion upon a note given for the price of a horse, or one in renewal of such note, it is competent for the defendant to interpose in defense a breach of the warranty of the soundness and speed of the horse.</p> <p>4. Renewal note—consideration. Where a promissory note is given in renewal only of a prior one, the real consideration for which it is given is that for which the prior note was given, and it is competent, in a suit upon the subsequent note, to show that the consideration has failed.</p> <p>5. Same—renewal or payment. Whether a subsequent note is given in payment of or only in renewal of a prior one, is not a question of law, but one of fact, to be determined by the jury.</p>

<p>1. SliANDEB—malice, implied — exemplary damages — mitigation of damages. In slander, when the proof shows that the actionable words were spoken by the defendant and that the slanderous charge contained in them is untrue, the law will imply malice, and the jury may give exemplary damages, and not merely actual or compensatory damages. Express malice, or malice in fact, is not required to authorize exemplary damages.</p> <p>2. Proof that the defendant acted without actual malice, and merely repeated or reported what he had heard from others, may be competent as mitigating the damages, but not as barring the right of the plaintiff to recover exemplary damages.</p> <p>3. The statements of a defendant made after suit brought against him for slander, to the plaintiff’s father, as to the motives that influenced his conduct toward plaintiff in trying to procure her indictment, as, that it was a grudge against the father, are competent testimony to show malice on defendant’s part.</p> <p>4. Pacts tending to show there was no actual malice may be proven in mitigation of damages, but evidence of such facts can not have the effect of withdrawing the question of exemplary damages from the jury.</p> <p>5. Same—evidence against third person—whether admissible. On the trial of an action for slander, for charging plaintiff with a theft of money, she endeavored to prove certain circumstances which pointed to another person as the thief, among which was the return through the post-office, in an anonymous way, by such other person, of such part of the stolen money as the owner was willing to take in settlement of the matter: Held, that such conduct of the third party, amounting almost to a confession of guilt, might be shown, as tending to prove the falsity of the charge that plaintiff was the thief.</p> <p>6. Where the gravamen of the charge, as laid and proved in an action for slander, lies in the words, “has confessed * * * that she stole the money,” it is of no consequence whose money it was, for the reason that it is impossible that a charge of stealing or of confessing a theft can be aggravated or mitigated by reference to the person whose money is stolen.</p> <p>7. Same—proof of. On the trial of an action for slander, for charging, the plaintiff with having confessed to a witness that she had stolen money, unless the plaintiff shows, in the first instance, that no such confession had been made, the defendant’s statement that it had been made can not be regarded as slanderous.</p> <p>8. In slander, for charging the plaintiff with having confessed to a person that she stole the money of another, when the defendant seeks to justify, there is nó error in allowing the plaintiff to prove by such person that no such confession was made, before the defendant had offered any evidence in reference to the alleged confession.</p> <p>9. If, under his plea, the defendant had offered evidence to show a confession of theft by the plaintiff, the latter would have been entitled to show that she had not so confessed, and the introduction of her ' negative proof before the affirmative proof of the defendant would be</p> <p>an advantage rather than an injury to him.</p> <p>10. Same—damages fixed,—aggravation. The jury, in an actioh for slander, may take into consideration, in fixing the damages, the pecuniary circumstances and standing of the defendant, and any effort which he may have made to have the plaintiff indicted.</p> <p>11. In an action for slander the plaintiff may prove a repetition of the slander, even after the commencement of the suit, in aggravation of damages.</p> <p>12. New teiaii—waiver of grounds not stated. Where the reasons given for a new trial fail to show any objection to any of the instructions given, the party can not in this court question the correctness of such instructions. A party will be held to have waived all causes for a new trial not set forth in his written grounds therefor.</p>

<p>1. Injunction—partial dissolution—whether releases surety. By an original injunction the defendant was prevented from making or procuring to be made any transfer or assignment of property, patents, contracts or business, but afterward, by an order of court made pursuant to a stipulation entered into without the knowledge or consent of the surety on the injunction bond, the defendant was only thus prevented when it was not to carry out any contract then in existence for the manufacturing and laying of conduits, and to close any negotiations then pending for the purpose of issuing licenses to parties in cities for the right to use said conduit under the patent, and to receive money and stock on such contracts: Held, that such order was, in effect, a partial dissolution of the injunction, but as it failed to change or enlarge the liability of the surety, it did not release him.</p> <p>2. An injunction maybe dissolved by a series of orders, one dissolving as to one part one day, and" afterward another, by consent of the-parties; and so long as the liability of the Surety is not made different or more onerous thereby than it would have been by a single dissolution embracing the entire subject matter of the injunction, he will not be released.</p>

<p>1. Mobtgage-—mistake in description —liability of purchaser with notice—inadequate consideration. A, the owner of the south half of a quarter of land, worth $3550, borrowed of B $1000, and attempted to give a mortgage thereon to secure the loan, but by mistake the mortgage described the north half of the quarter. 0, with knowledge of the mistake, bought the land intended to be mortgaged for $1000, and, for the purpose of concealing his purchase, took the deed from A in the name oi D, who also had notice of the mortgage, and C, or O and D, sold the land to E, an innocent purchaser without notice, for $3550, and A and his wife, for the consideration of $50, quitclaimed to E to pass the dower of A’s wife. On bill by B to reform and foreclose the mortgage against the other parties, it was held, that O and X) were bound to account to B for all the purchase money received from E, and interest thereon, except the $1050 paid by them, or one of them, to A, with lawful interest from the time of payment, and that E was liable with them for such portion of the purchase money as he had paid to either of them since he was served with process in the suit.</p> <p>2. Where, by a mistake, a mortgage is given,J on a wrong tract of land, and a party having notice of the mistake buys the land intended to be mortgaged, advances the purchase money,—about one-fourth the value of the land,—and takes a deed in the name of another who has notice, and makes a sale to an innocent purchaser, who receives a deed, a court of equity will require such party who procures the deed from the mortgagor to account to the mortgagee for the profits made on his purchase, over and above what.he has paid for the land.</p> <p>3. In cases of mistake in written instruments, courts of equity will not only interfere as between the original parties, but also as against voluntary grantees and purchasers.</p> <p>4. Where the fraudulent purchaser of .land on which another is in equity entitled to a mortgage lien, disposes of the property to an innocent purchaser, so that the land can not be reached, a court of equity will treat the purchase money realized by the fraudulent purchaser over and above the sum actually paid by the latter, as subject to the payment of the mortgage.</p> <p>5. Where the consideration paid is small in comparison with the real value of the property, and when the circumstances of the case are extremely unfavorable to the fairness of the transaction, though not sufficient to establish absolute fraud, the conveyance will be regarded as a voluntary one to the extent of the difference between the actual consideration and the real value of the property, and to that extent will be treated as fraudulent and void as to existing creditors.</p> <p>6. Same—■ lien on surplus from sale under prior incumbrance. A mortgage lien will attach to the surplus arising from the sale of the premises under a prior incumbrance.</p> <p>7. Same—correcting erroneous description. Where a party secures a loan by mortgage or deed of trust, intended by the parties to be upon the south half of a quarter owned by the debtor, but which, by mistake, is described as the north half of the quarter, to which he had no title or claim, as between the parties thereto the creditor will be entitled to have the trust deed reformed and foreclosed against the land intended to be described, but not as against a subsequent bona fide purchaser without notice of the mistake.</p> <p>8. Agent—knowledge of, when notice to principal. It is a general rule, that when an agent has acquired information before the commencement of his agency, the principal will not be charged with constructive notice thereof. One reason of the rule is, that no man can be supposed always to carry in his mind the recollection of former occurrences. Another is, that where the agent is an attorney or counsel, it might tie contrary to his duty to reveal the confidential communication of his client.</p> <p>9. The English rule is, that if the agent, at the time of the purchase, has knowledge of any prior lien, trust or fraud affecting the property, no matter when he acquired such knowledge, his principal is affected thereby. The Supreme Court of the United States has approved this rule, subject to the qualifications that the knowledge of the agent is present to his mind at the time of effecting the purchase, and that the agent is at liberty to communicate Ms knowledge to Ms principal, and that it is Ms duty to do so.</p> <p>10. But the rule that the knowledge of the agent must be acquired during his agency, and in the course of the same transaction from which the principal’s rights and liabilities arise, in order to affect the latter with notice, has no application when it is clear from the evidence that the information obtained by the agent in a former transaction was so precise and definite that it is or must be present to his mind and memory while engaged in the second transaction, and when the agent is at liberty to communicate his information to the principal.</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>1. Bum ob beview—when it will lie—decree by consent. Where a will is set aside, on bill to contest its validity, by consent of all the parties, two of whom were minors, incapable of consenting, and under the decree setting aside the will they get the same estate precisely as they would under the will, a bill by an adult party to the prior suit to review and vacate the decree so entered will have no merit, and is subject to demurrer.</p> <p>2. H a decree appearing on its face to have been entered by consent is erroneous as to the infant parties to the suit, it is nevertheless valid and binding as to all the parties who at the time were sui juris. As to the latter the validity of the decree can not be called in question by a bill of review or otherwise.</p> <p>3. A bill of review does not lie to vacate or review a decree entered by consent, unless the consent of the par.ties was obtained by fraud or mistake.</p> <p>4. Same—requisites. It is indispensably necessary to the sufficiency of a bill of review that a copy of the bill, answer, replication and decree in the proceedings sought to be reviéwed should be given. A mere synopsis of those papers is not sufficient.</p> <p>5. Do web—failure of widow to renounce under will—will set aside impart. Where a widow fails to renounce under her husband’s will, which contains bequests and devises in her favor, her dower will be barred under the statute, although the will may be subsequently set aside by a decree entered by consent, in respect to a part of the lands devised.</p>

<p>1. Mechanic’s lien—waived by tailing other security. The taking of other security, either on property or that of individuals not parties to. •the transaction, will discharge or waive a mechanic’s lien. So where the party entitled to the lien accepts the debtor’s note with a guaranty of its payment by a third person, the lien will be waived.</p> <p>2. Promissory note—indorsed by third party—presumption of guaranty. The signature of a third party on the back of a note in the hands of the payee, is presumptive evidence that it was placed there as a guaranty at the time of the execution of the note. But this presumption may be rebutted by proof of the real agreement between the-parties.</p>

Owen T. Beeves, Judge, presiding. This was assumpsit in the McLean 'circuit court upon a policy of insurance.

C. B. Smith, Judge, presiding. John V..Farwell & Co. filed, in the county court of Vermilion county, a petition, verified by affidavit, wherein it was stated that they were creditors of George Silverman, of that ■county, and that he was indebted to them, for goods sold and delivered, in the sum of $1498.58, and that on December 18, 1887, said Silverman executed and delivered to Daniel Cohen an instrument of writing, as follows : “Know all men by these presents, that I,…

This is a proceeding commenced in this court by the Auditor of Public Accounts under section 97 of the Revenue act. The facts are stated in the opinion of the court.

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

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

<p>1. Chancery—relief upon answer—adjusting priority of liens—on foreclosure. A mortgagee, on foreclosure, has the right to have the priority of the liens upon the property determined under his bill, and .a decree of their payment in their order, without any cross-bill by the other lienholders, as a necessary incident to the relief sought by the mortgagee.</p> <p>2. Same—affirmative relief on answer of creditor. On bill to foreclose a mortgage against the mortgagor and a judgment creditor, wherein the latter, by his answer, claimed priority of lien, the court, on decree of foreclosure, directed a sale, and the payment, first, of the costs; second, the sum due on the notes secured® by the mortgage; third, the amount due on the judgment; and lastly, the sum due the mortgagee for advances made under the mortgage : Held, that the relief to the judgment creditor was only incidental to and inseparable from the relief to the mortgagee, and was therefore necessarily allowable upon his answer alone.</p> <p>3. Homestead—commissioners to set off, how appointed—oath administered. Where a court of equity, in a suit to foreclose a mortgage, appoints commissioners to set off a homestead, it will have the power to direct that they take an oath for the performance of their duties before any officer empowered by law to administer oaths.</p>

<p>Ejectment—writ of possession—after seven years. A judgment in ejectment, by analogy to other judgments, becomes dormant after the lapse of seven years, and can only be executed after that time by being revived by scire facias. After the lapse of seven years the court has no power to issue a writ of possession without a revival of the judgment.</p>

<p>1. Special assessments—/arm land—when subject to. Farm lands in a village will be benefited by the construction of a sewer near the same, if its construction will increase their value for any use for which the; property is adapted. If such lands for agricultural uses are worth $100> an acre, and will bring from $400 to $1000 an acre for suburban residences, with a sewer which is capable, with laterals, of draining the territory, the lands will be benefited.</p> <p>2. Local imps o vement—how paid for—power of municipal authorities. The statute gives to village authorities the exclusive power to determine whether a proposed local improvement shall be made by special assessments, by special taxation or by general taxation, or in part by special assessments or special taxation and in part by general taxation.</p> <p>3. Where a public local improvement is ordered to be made in part by special assessments and in part by general taxation, on a proceeding to confirm the special assessments it will be wholly immaterial what proportion of the total cost will benefit the public. The courts have no power to review the determination of the local authorities in respect to that matter.</p>

<p>1. Municipal corporation—powers beyond its limits. A municipal. corporation, as a general rule, can not exercise its powers beyond its territorial limits. If it lias power to do so it must come from a statute which directly or impliedly confers the power.</p> <p>2. The section of the statute conferring authority on villages to make local improvements by special assessments was intended to confine the improvement within the corporate limits. Under it a village has no power to make improvements in territory outside of its limits.</p> <p>3. "Where it becomes absolutely necessary, in the construction of a sewer in a village, to get an outlet beyond the corporate limits, the •sewer or drain may extend beyond such limits, in order to make the : sewer of any practical utility, without violating the statute. Such a sewer is to be regarded as an improvement within the village.</p> <p>4. Same—local improvements—sewer beyond corporate limits—obtaining right over property of others. The fact that a village has not obtained the right to occupy and use a highway outside its limits before the passage of an ordinance or the assessment is made for a sewer, will not .invalidate the proceeding. The statute does not require that the ordinance for the construction of a sewer by a city or village shall make .any provision for acquiring the right to make the improvement upon .the property of others. That may be done afterward.</p> <p>5. Ordinance—whether sufficiently definite—location of man-holes in ■ a sewer. An ordinance for the construction of a sewer provided that the sewer should be two feet inside diameter, and should be constructed of the best brick and cement, in the best workmanlike manner, “with necessary man-holes and inlets for surface drainage of the street and .adjacent propertyHeld, that the ordinance was sufficiently certain .in giving the location of the man -holes.</p> <p>6. Commissioners of highways—consent to sewer along highway. While there is no specific act authorizing the commissioners of highways to consent that village authorities may construct a sewer or drain •in a highway as an outlet, the general powers conferred on such road authorities is broad enough to authorize them to consent to any act which may benefit the highway, such as the construction of a sewer ¡therein.</p> <p>7. Practice in Supreme Court—assigning errors. Where a cause is-tried by the court without a jury, and no exception is taken to the finding of the court or to the rendering of judgment, and preserved in a bill of exceptions, the finding and judgment can not be assigned for error.</p>

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

<p>1. Taxation—personal property-—where taxable. Personal property-•is required to be listed and assessed for taxation in the town, city or •village where the owner resides.</p> <p>2. The report of the collector, on his application for judgment for ■taxes, is prima facie evidence of the legality of the personal taxes assessed against a party.</p> <p>3. Same—fraudulently listed by owner in wrong town. If a party is lawfully assessable on his personal estate, moneys and credits in a particular town, and he procures its assessment in another town, his former residence, because taxes there are not so high, for the purpose of avoiding assessment in the town of his actual residence, he will take nothing by his payment on the assessment he has fraudulently caused to be made.</p> <p>4. Pbactioe in Supbeme Coubt — assignment of error. Unless an •exception is taken to the ruling of the court in excluding evidence it •can not be assigned for error.</p>

<p>Appeal from the County Court of Christian county; the Hon. V. E. Foy, Judge, presiding.</p>

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

Charles Blanchard, Judge, presiding. This was an action in the circuit court of LaSalle county, in the name of the People of the State of Illinois, seeking to recover from the Ottawa Gas Light and Coke Company, a corporation, the sum of $3043.89 taxes due and unpaid on the capital stock and personal property of the corporation, for the years 1881 to 1887, inclusive.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Warren county; the Hon. T. M. Shaw, Judge, presiding.

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

<p>1. Negligence—of parent, not imputed to child. Where a child of tender years is injured by the negligence of another, the negligence of his parents, or others standing in loco parentis, can not be imputed to , the child, so as to support the defense of contributory negligence to his suit for damages.</p> <p>2. But where the action is brought by the parent, or for the parent’s own benefit, the contributory negligence of such parent may be shown i in bar of the action. .</p> <p>3. Same—contributory—when child incapable of—matter of law or ' fact. It has been held that up to a certain age, the precise limit of which is not and can not be well defined, a child is incapable of such conduct as will constitute contributory negligence, and that the court .may so hold as a matter of law. It has been held that children of eighteen months, of two years, of two years and ten months, of four 1 years, under five years, of five years, of six years, under seven years and e.v0n seven years of age, are incapable of such negligence, and this rule : seems .to have been recognized in this State in several cases.</p> <p>i. It has also been held that young children are bound to use such care, and such care only, as is usually exercised by children of the same age and degree of intelligence, and that it is always therefore a - question of fact, to be determined by the jury, whether in a given case , the child was in the exercise of proper care, his tender years, Ms intel- . ligence or want of it, and all the circumstances by which he was surrounded, being taken-into account. Under this rule, it is claimed it can never be laid down, as a matter of law, that a child, however young, js incapable of contributory negligence, it always being a question of fact.</p> <p>5. Practice in the Supreme Court—error will not always reverse. Where the evidence, taken in connection with a plaintiff's age, he being only six years old, fails to warrant the inference of Ms negligence as contributory to his injury, and the defendant is found guilty of negligence causing such injury, an instruction holding, as a matter-of law, that negligence could not be imputed to the plaintiff, even if incorrect in such holding, can not do the defendant any injury, and is no ground of reversal.</p> <p>6. A party has no just ground of complaint against an instruction which incorrectly assumes the plaintiff's age, at the time of receiving an injury, to be one year more than it was, when this is more favorable to the defendant.</p> <p>7. If it can be seen that an instruction given, though embodying an incorrect proposition of law, could not, in view of the evidence and all inferences which may properly be drawn from it, have materially prejudiced the party complaining of it, the judgment will not on that account be reversed.</p> <p>8. In an action by an infant to recover for a personal injury from negligence, the court, on behalf of the plaintiff, gave an instruction which tacitly assumed that under proper circumstances the rule of imputed negligence might apply, which accorded with the defendant’s contention: Held, that the error was one of which the defendant could not complain.</p>

<p>1. Statute of Fbauds—express trust. Where a husband buys land and has the title conveyed to his wife, under an express trust that the title shall be held for his benefit and subject to his disposal, the trust will be utterly void, unless it is declared in writing.</p> <p>2. Same—resulting trust. A resulting trust is not within the Statute of Frauds, and may be proved by parol.</p> <p>3. Witness—against defending heir—competency of complainant. On bill by a father against his daughter, to have a conveyance procured by him to be made to his wife, who in the meantime had died, declared to have been made in trust for him, the defendant being the heir of the deceased wife, the complainant is an incompetent witness to prove the trust.</p> <p>4. Trust—burden of proof—presumption of advancement. The general rule is, that a purchase of land by a parent in the name of his child,, or by a husband in the name of his wife, will be presumed to be an advancement, and not a trust, and the burden is on the party claiming a trust to prove it. This may be done by such proof of facts and circumstances as clearly show that the intention was not to make an advancement, but to accomplish some other lawful purpose.</p> <p>5. Infant—failure of guardian to object to incompetent evidence. In suits against infants, the failure of the guardian or guardian ad litem to object to incompetent evidence will not authorize such evidence to be admitted or considered, and its admission maybe assigned for error.</p> <p>6. Evidence—witness’ understanding. The statement of a witness that he always understood from a person, who afterward died, who was his sister, that certain property held in her name was that of her husband, is a statement of no fact, and proves nothing.</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. John P. Altgeld, Judge, presiding.</p>

<p>1. Intoxicating liquors—power to regulate the sale. The statute confers upon municipal corporations the power to license, regulate and prohibit the sale of intoxicating liquors, those powers being given, not in the alternative, but cumulatiyely, and to be exercised concurrently whenever the municipal authorities, in their discretion, see fit to exercise them.</p> <p>2. The power to license, regulate and prohibit the sale of intoxicating liquors must be exercised by a city or village by means of an ordinance passed by the proper municipal authorities. The mere legislative grant of this power does not, of itself, authorize the corporate authorities to issue licenses. The power is dormant until called into exercise by appropriate municipal legislation.</p> <p>3. Same—ordinance licensing the sale, in part of village—whether reasonable. An ordinance of a village which authorizes the grant 6f licenses to keep so many dram-shops, etc., outside of prohibted districts as the board may think the public good requires, and which creates certain districts within which no licenses shall bp granted, is not unreasonable, and is not obnoxious to the charge of creating monopolies. Partial prohibition within the limits of a village or city will not render the ordinance invalid. By subdivision 46 of section 1, article 5, of the general Incorporation law for cities and villages, the city council or board of trustees is empowered to provide by ordinance for granting licenses to keep dram-shops in a part of the territory of the city or village, and at the same time prohibit the keeping of dram-shops in the residue of the territory.</p> <p>4. By passing a general ordinance, municipal authorities may determine when, to whom and under what circumstances licenses may be granted, and if such ordinance is not unreasonable, the power of the executive officers of the city or village to issue licenses will thereafter be controlled and measured by its terms. If no discretion is reserved in relation to the number or location of the dram-shops to be licensed, then none can be exercised, and the duty becomes mandatory upon the executive officers to issue licenses to all applicants who comply with the prescribed terms.</p> <p>5. Same—right to sell—policy of prohibition—how enforced. The right to engage in the business of selling intoxicating liquors by retail can no longer be claimed as a common law right, but is a right which can be exercised only in the manner and upon the terms which the-statute prescribes. Hence, the refusal to license deprives no man of; any personal or property right, but merely deprives him of a privilege-which it is in the discretion of the municipal authorities to grant or withhold. It also follows that the policy of prohibition requires no-affirmative act on the part of the authorities authorized to provide for licensing.</p> <p>6. Same—authority to issue license to sell. Where the ordinance of a city provides that the mayor shall grant licenses to all persons applying therefor, upon their furnishing sufficient evidence that they are-persons of good character, and offering to give the required bonds and to pay the prescribed license fee, the mayor will have no discretion to-refuse a license to any applicant who is able to comply with the terms-of the ordinance.</p> <p>7. If, on the other hand, a discretion is reserved as to the number or location of the dram-shops to be licensed, such discretion may be exercised by the officers charged with the duty of issuing licenses; and if the ordinance restricts the location of dram-shops to certain portions-of the city or village limits, said officers will have no power to issue licenses except in obedience of such restrictions.</p> <p>8. The reservation of a discretion in an ordinance as to the number-of licenses to be granted is valid, and is clearly a reasonable exercise of the power over that subject given by statute to municipal boards ;- but the court is not to be understood as holding that a board of trustees may, by resolution, merely, license one person and refuse to license-another having precisely the same qualifications and local surroundings. The refusal to license must not be the offspring of mere caprice..</p> <p>9. SXme—after annexation—ordinances relating to dram-shops in annexed territory. The law providing for the annexation of the territory of a village to a city saves in force the ordinances of the village relating to dram-shops, until they are done away with by a vote of those living in the annexed territory, and such law is a valid enactment.</p> <p>10. In the absence of countervailing legislation, on the annexation of a village with an adjoining city, the ordinances of such city will,. eo instanti, of their own vigor, extend to and become operative over the annexed territory; but if the city, before the annexation, passes an ordinance restraining the effect of its existing ordinances in relation to-licensing dram-shops, so as not to grant licenses in such village where it is prohibited by the ordinances of such village, such restraining-ordinance will control.</p> <p>11. Municipal obdikabces—presumption of reasonableness. Munic-¡ ipal ordinances, to be valid, must not be unreasonable. The presumption, however, is in favor of their validity, and it is therefore incumbent on those seeking to have them set aside as unreasonable, to point out or show wherein such unreasonableness consists.</p> <p>12. Same—impeachment for fraud—motive in passing. The judicial department of the government will not inquire into the motives of the legislative department in the enactment of laws; and this rule applies also to ordinances and other legislative acts of municipal corporations, with, perhaps, the qualification that municipal ordinances may be impeached for fraud, at the instance of persons injured thereby.</p>

<p>Bankrupt—right of redemption. Upon an adjudication in bank■suptcy, all the bankrupt’s right of action for property, real or personal, . and all his redemption rights as to real property, pass to his assignee in bankruptcy; and the bankrupt can not thereafter assert any such right by bill to redeem, by bill to enforce a trust, or for specific performance.</p>

<p>Appeal from the Appellate Court for the Third District;— Beard in that court on appeal from the Circuit Court of McDonough county; the Hon. Charles J. Scofield, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Douglas county; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>1. Divorce—■desertion — what constitutes. Under our statute, the desertion or absence -which will justify a divorce must be “without any reasonable cause,” and it has been held that “reasonable cause” which justifies a wife’s desertion must be such as will entitle her to a divorce, and that the mere refusal of marital intercourse without sufficient reason will not justify desertion.</p> <p>2. The refusal of a wife, without good cause, to have sexual intercourse with her husband for a period of two years or more, is not such conduct as amounts to willful desertion, within the meaning of the statute relating to divorce. The willful desertion which is made a. ground of divorce means the abnegation of all the duties of the marital; relation, and not of one, alone.</p> <p>3. The refusal of sexual intercourse alone can not be construed to mean willful desertion without reasonable cause, under our statute relating to divorce.</p> <p>4. Same—extreme and repeated cruelty—what constitutes. On a bill by a husband for a divorce, on the ground of extreme and repeated cruelty, it is not sufficient to show slight acts of violence on the wife’s part toward him, so long as there is no reason to suppose he will not be able to protect himself by a proper exercise of his marital powers.</p> <p>5. One act of force and violence, preceded by insult and abuse, does not constitute that extreme and repeated cruelty which will' justify a divorce. No one act of personal violence, although coupled with abusive and derogatory language, constitutes a cause of divorce.</p>

<p>1. Wmns—undue influence. While it is true that the undue influence which will invalidate a will must be present and exercised over the mind of the testator at the time the will was made, yet it is competent to prove previous conduct of the one charged with procuring it to be made, as tending to show his influence over the testator at the time of its execution.</p> <p>2. Where a will was contested in chancery on the ground of undue influence by a son of the testator, as well as upon the ground of want of capacity to make a valid will, it was held, that proof which tended to-show anxiety by the son to have his father make a will, and that he desired such will to be favorable to his interest, taken in connection with evidence that on the day the will was executed he took the testator from his home in a village to a justice of the peace, a distance of three miles in the country, where the will was written, and that he was-present and assisted in some degree in its execution, was clearly competent on the issue of undue influence.</p> <p>3. Same—reading before signing-—evidence admissible on issue of fraud and undue influence. While the reading of a will to a testator before signing the same is not necessarily essential to its validity, an omission to do so may strongly tend to show that it was not understood, by the testator, or that it was the will of another rather than of himself. On the issue of fraud and undue influence in procuring a will to be executed, all that was said and done by the parties present at the time of the execution is-relevant and proper.</p> <p>4. Same—when set aside—testator not understanding the contents. Where a will is sought to be set aside on the grounds of a want of a sound and disposing mind, fraud and undue influence, if it is shown that the testator did not know its contents because of the fraud or undue influence of others, or because his mental condition was such that he could not intelligently understand it, the will may be avoided, and there is no error in submitting to the jury the question whether the testator knew its contents when he executed the same.</p> <p>5. Same—contested—guardian ad litem for infant defendant—paid from estate. On the contest of a will by bill in chancery, the court appointed a guardian ad litem for an infant defendant, and after the will was set aside allowed the guardian $300 for his services in the case, tobe paid out of the estate of the deceased testator. It was contended that the proponent of the 'will should have been required to pay the charges of the guardian. It did not appear that he was guilty of fraud in procuring the will: Held, that there was no error in the ruling of the court.</p>

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

<p>1. Bridge company—liability for negligence—duty to exercise care. It is the legal duty of a bridge company to exercise reasonable and or- • dinary care and prudence in the construction, management and super'vision of its bridge, for the safety and protection of persons using it,; and to make reasonable provision for the prevention of injuries from-■-causes likely to arise in the ordinary use of the bridge, although no ■specific expedient for the prevention of such injuries may have been .required, either by the law or defendant’s charter.</p> <p>2. If the construction of a railing or other barrier between its car'riage road and foot-way is the most obvious and appropriate expedientdor preventing injuries which, in the ordinary use of the bridge, are likely to happen to foot passengers, it is the duty of the bridge company to construct and maintain such railings or other barriers.</p> <p>3. A bridge company is liable for an injury resulting from negligence in the construction and maintenance of its structures, notwithstanding other parties or agencies not controlled by it may also have contributed to the injury. A person contributing to a tort, whether his fellow contributors are men, natural or other forces, or'things, is re-, sponsible for the whole, the same as though he had done all without, .help.</p> <p>4. Same—toll-bridge—higher degree of care. A bridge company, authorized to construct and maintain a toll-bridge, and to collect and' receive tolls of such persons as may make use of it, should be held to a higher degree of diligence in caring for the safety of passengers crossing the bridge than a corporation performing that service for the public gratuitously would be.</p> <p>5. In an action against a bridge company for the personal injury of the plaintiff while crossing an approach, from the stampede of a drove, ■of mules, the jury may consider the fact of the plaintiff's payment ofi toll, when it is alleged and proved, in passing upon the defendant’s] negligence.</p> <p>6. Negligence—as matter of law. While the use of an approach to •a bridge, knowing of its improper or dangerous construction, may be, evidence of negligence on the part of one injured while passing over, the same, yet it can not be pronounced negligence per se, or as matter] •of law. An instruction containing the proposition that such act is-negligence per se is properly refused.</p> <p>7. Same—action for personal injury—right to a rule on plaintiff to submit to a personal examination. In an action to recover for personal injuries, the defendant will have no right to a rule on the plaintiff to submit to an examination of his or her person, for the mere purpose of ascertaining the extent and permanency of the injuries complained of, when it is not sought for the purpose of obtaining evidence to be used on the trial, and no necessity is shown for the evidence sought by such examination. 1</p> <p>8. If the defendant is entitled to a personal- examination of the plaintiff by experts, for the purpose of ascertaining the nature and extent of the injuries complained of, he should make proof of the necessity of the evidence to be derived from such examination. In the absence of any showing the court will have the right to presume that the defendant has other evidence as to the same facts at hand, and is in no way dependent upon the results of a personal examination to make out his'defense.</p> <p>9. Same—concurrent act of two—liability for. The fact that an injury could not have happened without the wrongful or negligent act of one, is not a test of the non-responsibility of another. A tort may be such as to require for its perpetration the concurrent action of several, so that if either one fails in his part the tort is not committed. The fact that but for .the wrongful act of either of two tort feasors the injury would not have occurred, can not be urged in favor of the other. They are all liable jointly and severally for the entire tort.</p> <p>10. Instruction—ambiguity cured by other instructions. In an action based on the negligence oí the defendant, a clause in an instruction for the plaintiff, that if the jury believe, from the evidence, the plaintiff “was injured as alleged in the declaration,” is ambiguous, in being liable to be understood to mean that the plaintiff received the injury alleged, without reference to the allegations of negligence, or that he received the injury in the manner and by the causes alleged in the declaration. But such ambiguity is cured by other instructions of the defendant, making a right of recovery to depend upon proof of defendant’s negligence, and that such negligence was the cause of the injury.</p> <p>11. Appeal—reviewing the facts. Where the Appellate Court affirms the judgment of the trial court in favor of the plaintiff, in an action to recover for personal injuries from negligence of the defendant, the fact that plaintiff was injured in the manner and to the extent, and that his injuries were of the character and permanency, alleged, will not be open to controversy in this court. The same.is true as to the negligence charged against the defendant, and of the fact that the plaintiff’s injuries were caused thereby, and that the plaintiff exercised ordinary care.</p>

<p>1. Statute oe Limitations — adverse possession for twenty years. Adverse possession of land for the period of twenty years, even without any deed or other muniment of title, will bar an action by the owner for its recovery.</p> <p>2. Same—bar to bill for partition by tenant in common. The open, visible and adverse possession of land by one tenant in common, under claim of ownership, for over twenty years, is a bar to a bill by another tenant in common for partition, when such possession was so hostile in its character as to put the Statute of Limitations in motion against the complainant.</p>

Dorrance Dibble, Judge, presiding. This is a bill filed on July 2, 1886, in the Circuit Court of Will County by the appellee, Robert Pilcher, against Edward C. Hagar, trustee, Lorenz Reitz, Sheriff, Maria E. Dillman, Frederick H. Riebling and his wife, the First National Bank of Joliet, George W. Hyde, William Adam, and Joseph Whittier and George Whittier, composing firm of J. Whittier & Co., to foreclose two trust deeds, executed by said Riebling and wife to said Hagar, as…

<p>1. Municipal corporations—power to determine character of street improvements. Under the statute, the city councils in cities and the boards of trustees in villages, and they alone, are clothed with power' to determine what the nature and character of the improvement of streets shall be.</p> <p>2. Special assessment—evidence as to quality of improvements inadmissible, on application for confirmation. On an application for the confirmation of a special assessment for paving a street, evidence that the street might be better improved by the use of other materials, and at less cost and expense, is inadmissible.</p> <p>2. Same—application for confirmation—questions involved. On such application, if the proper steps have been taken, the only question to be determined is, whether the premises of the objector are assessed more or less than they will be benefited, or more than their proportionate share of the cost of the improvement.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit -Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.

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

<p>Taxes—time for return of collector's books—date fixed by the county collector. Section 169, chapter 120, of the Eevised Statutes, confers .authority upon the county collector to fix upon any day he may determine, within twenty days after the 10th day of March, upon which he will require the town collector to return his tax book and settle, and ■the town collector must return his book and settle on the day so appointed. He will not have twenty days from the 10th of March, where the county collector fixes upon an earlier day.</p>

<p>1. Statute oe Limitations—equitable remedy, when barred—mort- ■ gage foreclosure. Where there is a legal and an equitable remedy in respect to the same subject matter, the latter is under the control of the same statutory bar as the former. If, therefore, an action at law on a note would be .barred by the statute, a bill to foreclose a mortgage given to secure the same will also be barred.</p> <p>2. Same—construed—notes executed within or without the State. The first section of the act of 1849, limiting actions upon promissory notes, etc., to sixteen years after the cause of action has accrued, applies to notes executed within or without the State, alike.</p> <p>3. Evidence—in avoidance of Statute of Limitations—allegations in the bill. On a bill to foreclose a mortgage, to which the Statute of Limitations is interposed as a defense, the complainant can not give in evidence a new promise or evidence of the absence of the mortgagor from the State in avoidance of the bar, unless such matter of avoid-A anceus alleged in the bill.</p> <p>4. Chancery pleading—avoidance of bar of Statute of Limitations. The rule in chancery cases, where the Statute of Limitations is interposed as a defense, and it is ihtended by the complainant to rely upon grounds of exception which prevent the bar of the statute, is to allege those grounds in the bill. This may be done by an amendment to the . bilk</p>

Charles J. Scofield, Judge, presiding. This is an appeal from a judgment of the court below ousting. appellants from the exercise of a ferry franchise on the Illinois : river.

<p>1. Radqboad aid bonds—issued by a township, are a town charge.. The indebtedness incurred by a town in aid of a i’ailroad before the adoption of the constitution of 1870, and town bonds issued for the purpose of funding the town indebtedness, which are registered in the office of the Auditor of Public Accounts, are a towh charge under section 125 of the Township Organization law.</p> <p>2. Town supebvisob—duty to receive a/nd disburse town tax—liability on official bond. A town tax levied by the town auditors to discharge1 a town liability, by the payment of some of the bonds of the town when collected, is money directed by law to be raised for a town purpose, which it is the duty of the supervisor to receive and disburse, and for which he and his sureties are liable On his official bond.</p> <p>3. Where town taxes are levied and collected for the payment of registered town bonds, and paid over to the supervisor of the town, and he delivers the money to the county treasurer, who fails to apply the same in payment of such bonds, the supervisor and the sureties on his bond will be liable to the town for such money.</p> <p>4. Same—estopped from questioning the levy and collection of tax received by him. After the levy and collection of town taxes by the town authorities for the purpose of paying town liabilities, and receipt by the supervisor as such, he and his sureties will be estopped from calling in question the regularity of the steps taken by the town authorities to levy and collect the money.</p> <p>5. Supebvisob’s bond—condition in conformity to statute. The condition of a supervisor’s bond, that if he shall faithfully discharge the duties of his office, as supervisor, required of or enjoined upon him by the laws of the State in relation to the town revenue, to the best of his skill and abilities, then the obligation to be void, otherwise to remain in full force, is in substantial conformity with the statute, and binding upon the officer and his sureties.</p> <p>6. Regustebed bonds—power to levy tax for payment of. The power-given the Auditor of the State to levy and collect a tax for the payment of the registered bonds of a town, does not take from the town authorities their power of making provision, by taxation, for raising money to pay such bonds. The levy by the State Auditor, and the collection which follows such levy, when town bonds have been registered, are an ■■additional remedy for the benefit of the creditor, leaving in full force and effect the other remedy vested in the town authorities, which may •still be pursued.</p> <p>7. Notwithstanding the act of 1869, and the amendments thereto, which provide for the registry of town and other municipal bonds by the State Auditor, and that he may levy taxes for their payment, which shall be collected as other State revenue, and be paid to the State Treasurer, still the board of town auditors have the power, and it is their duty, to make provision, by the levy and collection of taxes, to pay and discharge a debt incurred for railroad purposes by the town, •although such debt maybe evidenced by bonds registered in the Auditor’s office.</p>

A. N. Waterman, Judge, presiding. Appellee, being the owner of a number of tracts of pine timber lands in Michigan, together with certain buildings, a saw-mill, etc., pertaining to the business of lumber manufacturing, on the 8th of September, 1883, entered into a contract with appellant for the sale of the same.

<p>1. Wnms—devise construed. A testator, by a clause in his will, devised a tract of land to his son John A. and to his daughter Mary Ann, as tenants in common, “to be in full of their portion of my estate, both real and personal, to be theirs, their heirs and assigns, forever.” After making other devises to his children, the will directed that all the residue of his real estate, and his personal estate, be sold by his executor, and from the proceeds he should first pay all the testator’s debts, etc., and divide the remainder among his heirs, as follows: “To my wife, Sarah A., one-third part thereof, and the remainder to my children in equal portions, share and share alike, to be theirs, their heirs and assigns, forever, absolute:” Held, that the land specifically devised to John A. and Mary Ann was the full measure of all they should take of the estate, and that they took nothing under the residuary clause.</p> <p>2. Same—construction—intention of testator. The construction of a will depends upon the intention of the testator, to be ascertained from a full view of everything contained therein, giving just weight ■and operation to each clause and word employed, unless there is some invincible repugnance, or some portion of it absolutely unintelligible.</p> <p>3. In order to enable the court to uphold all the provisions of a will,</p> <p>it is permissible to resort to every reasonable intendment,—to reverse the relative order of the devises or bequests, and to transpose the different provisions of the will, if it be possible thereby to render them consistent and give effect to each. • '</p> <p>4. And so, repugnant words, in whatever portion of the will they ■occur, which contravene the evident general purpose and intention of the testator as clearly expressed, maybe rejected or transposed, or limited or controlled by other and prior provisions, and by the general purpose and intent thus clearly manifested.</p> <p>5. Same—general and specific provisions. It is a familiar rule in the •construction of wills, that general provisions therein must give way to specific provisions, and that where there is a general devise of property in one part of the will and a specific disposition of the same property in another part, these are to be regarded, generally, as excepted out of the general devise.</p> <p>6. Same—irreconcilable clauses. The rule is well established, in this State and elsewhere, that where the clauses of a will are irreconcilable and the repugnance invincible, the later clause will generally prevail. In such case it will be presumed that the testator, after writing the first clause, changed his mind, and that the subsequent clause gives expression to a later intention formed.</p> <p>7. The presumption of fact that the testator has changed his mind while writing the will, will never be indulged or the rule applied until it is found, by the application of all other rules of construction, that the difficulty is unsolved and the clauses remain invincibly repugnant. Such presumption and rule are never applied where a contrary intention of the testator is apparent from the whole will.</p> <p>8. Same—residuary clause. A general residuary clause, being ordinarily introduced by the testator-to prevent intestacy as to any part of the estate, will generally be construed as intended for nothing more than a disposition of those portions of the estate not previously disposed of. In such case the presumption of a change of purpose in the-testator’s mind while preparing his will can not arise.</p> <p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>1. Partnership—sale of assets to one partner—of his becoming trustee—trust fund for payment of debts. Where, on a sale of the partner- , ship assets by the firm to one of the members of the firm, xvho agrees to pay the partnership debts, a large sum of money of the firm assets' withdrawn! is placed in his hands, to be used by him in the payment of the amount due irom the firm to the estate of his deceased son, he will become a trustee of the money so placed in his hands as a trust fund, andVill have no right to appropriate it to any purpose other than that in respect of which he received it.</p> <p>2. Same—lien of outgoing partner for payment of firm debts. Where one partner sells to another all his interest in the partnership estate ■ and assets, he loses his lien to have the assets applied to the payment of partnership debts.</p> <p>3. Same — trust fund for the payment of debts—rights of creditors. Where property is assigned by one partner to another expressly in trust to pay the partnership debts, the trust may be enforced by the partnership creditors; and if the partner so taking in trust applies the trust fund or property in the purchase of land in his wife’s name, a court of eqhity will pursue the fund, and subject the property so acquired to the debts of the firm.</p> <p>4. Where surviving partners admit that they owe the estate of a deceased partner, but fail to account with the estate as required by the, statute, and all tlie survivors .but one sell tlieir interest in the firm assets to that one, and place in his hands a sum of money to pay the indebtedness due the estate of the deceased partner, and the partner so receiving the money perverts the same to his own use by investing it in his wife’s name, the representatives of the deceased partner will have two remedies: either to follow the money into the property in which it was invested, or to call upon the surviving partners for a settlement and payment of the sum due the estate.</p> <p>5. Same—surviving partners continuing business. "Where the surviving partners, after the death of one partner, continue the business, and from the profits credit his estate with a definite sum of money, the survivors by such act will be concluded from afterward questioning their liability to the estate of the deceased partner.</p> <p>G. Same—misappropriation of firm trust funds by one partner to the injury of the others—right of subrogation. "Where one partner receives from the firm money with which to discharge a firm liability,"whereby he becomes a trustee, if he, in violation of the trust, uses such money in the purchase of property for his own use, and the other partners are compelled to pay the firm debt, the partner so receiving the money to pay the debt will be regarded, in equity, as the principal debtor, and the partners so paying as sureties will be subrogated to the securities of the creditor, and may, in equity, subject the property purchased with the trust fund to the payment of the debt, for their use and reimbursement.</p> <p>7. Subrogation—rights of surety. Where a surety pays off a debt of his principal, he will, under the equitable doctrine of subrogation, be entitled to stand in the place of the creditor, and to use all the means for the purpose of enforcing collection which might be resorted to by the creditor.</p>

<p>1. Mortgage—executed in another State—validity, as to wife’s land in Illinois. A mortgage executed, by a husband and wife in the State of Texas, on the wife’s land situate in this State, to secure the debt of her husband, being a contract to be.wholly performed in this State, is sufficient if it is valid by the laws of this State.</p> <p>2. Same—land in this State—acknowledgment in another Stale. A mortgage of land in this State acknowledged in another State in conformity with our laws is admissible in evidence in our courts, and the uncorroborated testimony of the mortgagor that he or she did not acknowledge the same in the manner recited in the certificate of acknowledgment is not sufficient to overcome such recitals.</p> <p>3. Same—by married woman—to secure debts of her husband—executed in another State. Under the laws of this State a married woman may mortgage her separate property situate in this State, to secure the indebtedness of her husband; and such a mortgage, though executed in another State, is valid, if executed and acknowledged pursuant to the laws of this State.</p> <p>4. Accord and satisfaction—accepting less sum secured, for larger sum unsecured. The agreement of a creditor with his debtor to accept a less sum secured, for a larger sum unsecured or differently secured, is a good accord and satisfaction.</p> <p>5. - Mistake—materiality. Where a mistake in a mortgage of real estate corrected by a decree of the court, consists only in the use of certain repugnant terms after a sufficiently accurate description of the property, which would he rejected by the courts in construing tho ■ mortgage, the correction is one which can work no harm.</p>

<p>Waebanty deed—whether a mortgage. In this case the complainant gave the defendant two deeds of trust, on two tracts of land of twenty acres each, to secure two notes, of $7000 each. On September 10, 1877, the complainant and wife, by warranty deed, conveyed these lands to defendant for the expressed consideration of $20,000, which was about the sum due under the deeds of trust. Complainant being indebted to defendant in another note of $7000, secured by trust deed on another twenty acres of land, on September 24,1877, made his warranty deed to defendant for $10,000. On December 7, 1877, this last deed was recorded, and complainant’s notes and deeds of trust delivered to him. The lands were not worth anything more than the incumbrances thereon. Thirteen years afterward complainant filed his bill to have his first deed declared a mortgage, claiming that his Jast deed was made in satisfaction of both notes : Held, that under the facts the bill was properly dismissed for want of equity.</p>

<p>1. Partnership—power of partner to contract and discharge debts. ■Each member of a firm may, in due course of business, contract debts in the name of the co-partnership, and in the absence of dissent by a co-partner may rightfully, out of its assets, discharge the firm liabilities.</p> <p>2. Same—preferring creditors—powers of partner. A debtor, whether an individual or a partnership firm, may, while retaining dominion over the estate, and not contemplating an assignment under the Voluntary Assignment act, use his or its property in discharge of his or its liabilities, paying one or more creditors to the exclusion of others. So a partner acting for the firm may apply the firm assets in payment of one creditor without being guilty of fraud as to other creditors, and it makes no difference whether the payment be made in money, or in goods and chattels or other assets.</p> <p>3. A partner, in the absence of fraud on the part of the purchaser, has the complete jus disponendi of the whole of the partnership interests ; and a creditor of the firm has a right to seek and obtain from his debtor a preference for the payment of his debt, to the exclusion of other creditors,—and that without the imputation of fraud upon either party.</p> <p>4. Same—partner dissenting. But if one partner dissents, or forbids the transfer of the firm property before it is complete, and notice thereof is given to the purchaser, the sale will not be binding upon the dissenting partner. In such case the member of the firm would cease to act as the agent of his co-partner in respect to such transaction.</p> <p>5. A sale or transfer of the firm assets made by one partner in payment of a bona fide existing firm debt to a creditor without notice, is valid. But a fair sale, in good faith, to an existing bona fide creditor, made by one partner without the consent of the other, may, under circumstances of notice to the purchaser, be questioned by the non-assenting partner, but it will be good as to all third persons.</p> <p>6. Former adjudication—replevin—suit on bond. Where the plaintiff in replevin submits to a non-suit, he withdraws the cause from the court, and the judgment awarding a return of the property is not conclusive upon his right to the property. When sued on his replevin bond he may plead title in himself, and show that the merits were not tried in the replevin suit.</p>

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

<p>1. Homestead—sale under foreclosure—redemption. "Where a mortgage of lots contains a proper release of the homestead estate therein, the failure of the mortgagor to redeem from a sale of the premises, under a decree of foreclosure, within twelve months, will deprive him1 •of his homestead rights.</p> <p>2. Same—rights of judgment creditor redeeming from mortgage sale. A redemption from a foreclosure sale by a judgment creditor of the mortgagor, and his purchase under his execution, will place the cred-1 itor so redeeming in the same position in respect to the property as the • first purchaser, and he will take the property, including the homestead rights of the mortgagor.</p> <p>3. The redemption of property by a judgment creditor does not •obliterate the prior sale so as to restore the debtor to his homestead. rights, but simply substitutes the party redeeming, and gives him all the rights of the original purchaser. If the first purchaser takes free of the homestead rights of the debtor, so will the redeeming creditor.</p> <p>4. Redemption ebom eobecdosube sade—how effected. The right of redemption from sale on judgment and decree of foreclosure is purely statutory, and it can not be exercised except within the periods •of time and in the manner substantially as pointed out in the statute.</p> <p>5. Redemption—from second sale—by judgment creditor. "Where more is bid at a sale under a redemption from a prior sale than the .amount of the redemption money paid to redeem, and such last sale is perfected by the purchaser, a redemption from it by a judgment creditor can be had only by suing out his execution, placing it in the hands •of the sheriff, and paying him the redemption money within sixty days .after such sale.</p> <p>6. Where a creditor fails to obtain his judgment until after sixty days from the last sale on redemption, in which more than the redemption money is bid, it is not possible for him to redeem from such sale, ns no levy and redemption can be made within the time required1. Such a creditor can not object that a sale in favor of a judgment creditor was not perfected, as such fact can not injure him.</p> <p>7. If no more is bid than the amount paid in redeeming, and the sale is perfected by the purchaser, the sheriff is required to make him a deed at once, and no other redemption will be allowed.</p> <p>8. Execution sale—failure to perfect purchase—duly of sheriff. If a judgment creditor fails to perfect his purchase, it is competent for the sheriff to offer the land levied upon by an execution, for sale, from time to time, until it is sold.</p>

<p>1. Tax SAM—under judgment including illegal taxes or improper costs. If a judgment against land for taxes includes an illegal tax or improper costs, and there is no appearance of the owner on the application for judgment, a sale of the property thus wrongfully charged will be void.</p> <p>2. A judgment for taxes on a lot contained a charge of two cents for selling the lot, two cents for making delinquent list on precept, and fifteen cents for attending sale and issuing certificate of sale: .Held, that such items were improperly included in the judgment, and rendered the tax sale thereunder void.</p> <p>3. Judgment fob taxes—proof of no appearance of lot owner. For the purpose of showing that the owner of a lot sold for taxes made no appearance to resist the entry of judgment, the record of the proceeding in the county court was produced, which failed to show his appearance, and a witness was produced who testified that he was familiar with the tax judgment records, and that he had made diligent search for and was unable to find in the files any papers showing such appearance : Held, that, conceding the burden of proof was on the lot owner, the evidence was sufficient to show that there was no appearance.</p> <p>4. Tax deed—failure to serve required, notice. Where, at the time of the service of notice of a tax purchase, a tenant under a verbal lease was in possession of a part of the premises sold, a failure to serve the tenant with the notice required by the statute will render the tax deed void, although service, of notice is made upon his wife, whose money in part was used in payment of the rent.</p> <p>5. Service of notice of a tax purchase on the wife of a tenant in possession of the premises, although intended for a service on the husband, will not be sufficient to meet the requirement of the statute, and entitle the purchaser to a deed.</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 S. Tuthill, Judge, presiding.</p>

<p>1. Change oe venue—admissibility of counter-affidavits. An application of the defendant in a criminal case for a change of venue on account of the prejudice of one or more of the judges of the court in which the case is pending, which conforms to all the requirements of the statute, can not be defeated by counter-affidavits.</p> <p>2. Where the petition for a change of venue in a criminal case, and the accompanying affidavits, comply with the statute, and the affidavits purport to be made by reputable persons, residents of the county, not of kin to the defendant, the right to a change of venue is absolute.</p>

<p>1. Pbactice—in the absence of bill of exceptions, ruling on motions presumed correct. Where a motion for leave to amend an objection to-the rendition of judgment for delinquent special assessments is overruled, and a motion to strike the objection from the files is sustained, and no bill of exceptions is taken showing the grounds on which the motion was made or upon which the court acted, it will be presumed that the rulings were proper. In such case every intendment will be indulged to sustain the action of the court below.</p> <p>2. Same—exceptions to ruling on motions, how preserved. There is no mode by which an exception to the decision of the court below on motions can be properly preserved, so as to make the action of the court reviewable on appeal, except by bill of exceptions.</p>

<p>1. Conveyance—deed construed—as to who shall take the legal title. A deed to “A, B and C, trustees of the United Brethren Church, and • "their successors in office, of the city of Moline,” as parties of the second part, conveying a lot to the said party of the second part and their “successors in office and assigns,” to have and to hold the same to said second party “and their successors and assigns, forever,” with covenants to the second party and their “successors in office and assigns,” as not a conveyance to the corporation, but to the individuals named .as trustees. Such deed does not convey the lot to the grantees in trust ■for or to the use of the church, and does not even convey it to them as •trustees.</p> <p>2. Same—section 3 of act relating to, construed—feoffment to A for ■use of B. Section 3 of chapter 24, relating to conveyances, applies only to express trusts, and not to implied or constructive trusts, or trusts created by operation of law. Under this statute a deed in the form of a bargain and sale must be regarded as having the force and effect of ■a feoffment; and under the Statute of Uses a feoffment to A, for the use of or in trust for B, will pass the legal title to B.</p> <p>3. So a deed to “A, B and 0, trustees of a church, and their successors in office,” conveying to them a lot, to have and to hold the same to them and their successors in office and assigns, forever, creates no express trust, and the Statute of Uses will not pass the title to the church.</p> <p>4. Ejectment—plaintiff must show title. In ejectment, unless the plaintiff can show a legal title in himself, he can not recover.</p>

<p>, Appeal from the Circuit Court of Jersey county; the Hon. Geoege W. Hebdman, Judge, presiding.</p>

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

<p>1. Plats—power of vacation. The owner of lots 46 and 47, in block 11, of an addition to a city, by his deed duly executed, declared that he vacated the plat of such lots, and a strip thirty-three feet wide lying immediately south of such lots, which had never been laid out as a public street by the corporate authorities, and it also appeared that he owned the lots lying immediately south of such strip : Held, that the deed operated as a vacation of the plat of such lots, and the strip lying on the south of them.</p> <p>2. Under sections 6 and 7 of chapter 109 of the Revised Statutes, any part of a plat may be vacated by the owner of such part before any lots therein are sold, or, after lots are sold, by all the owners in such part joining in the deed of vacation.</p> <p>3. Same—rights of proprietors. The rights or privileges of the proprietors in a plat, which section 7 of chapter 109 protects, are legal! rights and privileges, and such parties can not therefore be affected by the closing of streets not adjacent to their property, nor directly-affording access thereto and egress therefrom.</p> <p>4. Statute construed—section 7, chapter 109—“laid out according to law" construed. The words in section 7 of chapter 109, “laid out according to law,” plainly include the doing of those things by the proper local officers which are essential, in creating a public highway, to, authorize it to be worked and traveled, and especially the surveying, marking the corners and boundaries, and ordering it established as a highway. The affirmative action of the public authorities is indispensable in such case.</p>

<p>New tbial—on the evidence. In case of a conflict in the evidence in =& suit in chancery, the chancellor hearing the witnesses testify is better able to determine who told the truth than this court, and a decree will not be disturbed by this court which finds there was a contract between the parties, and its terms, notwithstanding a conflict in the evidence, if there be enough to justify the finding.</p>

<p>1. Will—intention, of testatoi—ascertained from the language of the entire will. In arriving at the intention of a testator it is necessary to-consider each and every provision of his will. The intent must be determined from the language of the whole will, and no construction should be adopted which does violence to the language of any provision, so long as the different provisions can be harmonized and construed together.</p> <p>2. Same—life estate—devise construed. Where a testator, by his will, shows an intention to give his widow a life estate in all his real estate, that intention will not be defeated by a devise of certain lots in the next succeeding clause to a son or daughter in fee simple, but the widow will take a life estate in such lots, and the son or daughter the remainder.</p> <p>3. A testator devised to his wife all his estate, real and personal, for life, “to have and to hold the same for her sole and separate use * * * during her lifetime,” subject to certain burdens annexed thereto in subsequent clauses, and then devised certain real estate to her in fee, and also certain other lots to his son and daughter in fee : Held, that the devise of the life estate to the wife was not destroyed or in any manlier set aside by the subsequent devises in fee to her and to the son and daughter of the testator, and that the latter took no interest in the property devised to them until the death of the wife.</p> <p>4. A testator, by the second clause of his will, devised to his wife a life estate in all his property, real and personal, and after her decease, then to his son and daughter the certain shares thereafter set forth. The devise to the wife was upon the condition that she was to continue his business then carried on, and from the profits thereof, and from the rents derived from all the property, pay the taxes and certain incumbrances on the land, and provide for the welfare and comfort of her mother. The wife paid the taxes and incumbrances and obtained a release from her mother: Held, that the wife, upon the satisfaction of the liens upon the property, and such release, did not hold the property, or any part thereof, in trust for the son and daughter, but took a life estate, free from the burdens annexed thereto.</p>

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

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

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