Volume 141 — Illinois Reports

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

<p>Appeal from the County Court of Union county; the Hon. M. C. Crawford, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. Charles J. Scofield, Judge, presiding.</p>

<p>Appeal from the County Court of Coles county; the Hon. L. C. Henley, Judge, presiding..</p>

B. R. Bubboughs, Judge, presiding. The Jacksonville Southeastern Railway Company was organized under the statute of Illinois, in the year 1879, and was empowered to construct, build and own a line of railway from the city of Jacksonville to Centralia.

Lorin G. Collins, Judge, presiding. On the 1st day of February, T886, Emma Jenkins, with her husband, Thomas Jenkins, entered into a contract in writing with appellee for the sale of lots 3 and 4, in block 5, in Stewart’s subdivision, etc., except the right of way of “Vincennes road” across said lots. The purchase price was to be $300, $45 being paid in cash, and the balance to be paid, $100 in one year, $100 in two years, and the balance, $55, in three years.

<p>Writ op Error to the Criminal Court of Cook county; the "Hon. Henry M. Shepard, Judge, presiding.</p>

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

Henry M. Shepard, Judge, presiding. This was a suit in chancery, commenced April 13, 1891, by-Anthony J. Drexel against the city of Chicago, for the purpose of quieting the complainant’s title to a strip of land bordering on Lake Michigan, and lying between the margin of said lake and the easterly line of block 12, in Hundley’s subdivision of lots 3 to 21 and 33 to 37, inclusive, in Pine Grove, being a part of fractional section 21, township 40, north, of range 14, in the…

Elliott Anthony, Judge, presiding. This action was brought by appellants, against appellee, in the Superior Court of Cook county, on the 21st day of September, 1888. The declaration is in assumpsit, with one special count and certain of the common counts.

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. A. N. Watebman, Judge, presiding. This was an action of assumpsit, brought by the Plankinton Bank, against Albert Schultz, as indorser of a promissory note, which reads as follows: “Milwaukee, June 18, 1888. “Ninety days after date I promise to pay to the order of Albert Schultz two thousand dollars, payable at the Plankinton Bank.

Bichard Prendergast, Judge, presiding. On the 24th of May, 1889, Peter B. McLeod made a voluntary assignment for the benefit of creditors, naming Anton Fougner, one of the appellants, as assignee, who duly qualified. The First National Bank of Chicago presented to the assignee a claim for $20,818.26, of which $15,000 was evidenced by a promissory note made by said McLeod, payable to appellee Ferguson, and by him pledged to said bank after said assignment was made.

<p>Appeal from the County Court of Vermilion county; the Hon. John G. Thompson, Judge, presiding.</p>

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

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

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

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

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. James H. Cartwright, Judge, presiding.</p>

<p>1. Construction—of a decree—use of the word "said.” A decree in a suit for partition found that Solon W. Montgomery purchased the land from the United States in 1838, and that afterward “the said John "W. Montgomery”- and wife, by warranty deed, conveyed the land sought to be partitioned, to one Hunt, and then the decree gave a chain of conveyances to the parties to the suit: Held, that the name “John” was written by mistake, and the word “said” preceding the name “John W. Montgomery” was intended to identify the person whose name follows that word with the Montgomery before mentioned: Held, also, that the decree was prima facie evidence of title in the parties to that suit.</p> <p>2. Municipal corporation—power of village to raise money for salaries of town assessor and collector. An incorporated village has no authority of law to levy a tax to raise money with which to pay the salaries of the town assessor and collector.</p> <p>3. Tax title—where judgment includes illegal costs or taxes—attached collaterally. A judgment against land for taxes which includes any illegal tax, however small it may be, or illegal costs, as, fees for services unearned at the date of the judgment, is void, and may be attacked collaterally if there has been no personal appearance of the owner objecting to the rendition of judgment. In such case the sale of the land and the tax deed will also be void.</p> <p>4. 'Where a judgment for taxes includes either illegal taxes or illegal costs, and the land owner does not appear and contest the entry of judgment, these objections may be raised by way of a collateral attack upon the title to lands claimed through a sale under such judgment-The judgment in such case is no estoppel.</p> <p>5. Same—burden of establishing estoppel of land owner tó aver illegal taxes or costs. If the land owner is estopped from showing the illegality of the judgment against his land, by his appearance to the merits, before judgment, or otherwise, the burden will rest upon the party claiming the tax title to set up such estoppel by his pleadings, and to ' establish the same by proof.</p> <p>6. Evidence—judgments and decrees—when admissible as to third parties or strangers. In general, judgments and decrees are evidence only in suits between the parties thereto and their privies; but this rule does not apply to a case where the judgment or decree is not introduced as per se binding upon any rights of one, but as tending to establish a link in the chain of a party’s title.</p> <p>7. A judgment or decree may constitute a part of a chain of title to real or personal estate, or, though not amounting to title, it may show the character of the possession of one of the parties to the suit. In either case it is admissible in evidence for or against strangers, as well as for or against the parties to the original suit-. When a judgment transfers title, or is the foundation of a claim to possession, it is admissible on the same principle as a voluntary conveyance.</p> <p>8. On bill to set aside tax deeds as a cloud upon the title, a decree in a suit for the partition of the land, which includes the land in controversy, is admissible to show title in the party in that suit, under whom the complainant derives,title.</p> <p>9. Costs—in chancery. Ordinarily, in chancery, costs are within the-discretion of the court, and the disposition made of them by the court will not be disturbed on appeal.</p> <p>10. Same—on bill to set aside tax deed—tender of taxes, costs and interest. On bill to set aside a tax deed, if the complainant desires to place the owners of the tax title in the.wrong, so as to relieve himself from the payment of costs, he must make a tender of the taxes, costs and interest, and keep such tender good by bringing the money into court, or offering to do so in his bill.</p>

Henry M. Shepard, Judge, presiding. It is shown by the pleadings and evidence in this record, that on August 26, 1878, appellee, being the owner in fee of lot 5, in block 5, Cleaverville addition to Hyde Park township, executed and delivered a trust deed thereon to Isaac H. Price, trustee, to secure the payment of a promissory note made by herself and husband on that day to William Harty for $240, due one year after date, with ten per cent interest, payable semi-annually.

Writ of Error to the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.

Frank Scales, Judge, presiding. This was a petition in the county court of Cook county,, brought by the Mutual Accident Association of the Northwest,. in which it was alleged that on the 4th day of October, 1890, petitioner deposited with Samuel A. Kean the sum of $6000 as a special deposit, to be held by Kean to indemnify himself and one Jesse H. Cummings from any liability that might be1, incurred by them, or either of them, by reason of their having signed an appeal bond,…

<p>Writ of Error to the Circuit Court of LaSalle county; the Hon. Charles Blanchard, Judge, presiding.</p>

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

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

George Driggs, Judge, presiding. This is an action of assumpsit, begun, on April 16, 1889, in the Circuit Court of Cook County, by Amelia Beak and Alfred Bucher, late partners under the firm name of Beak & Bucher, suing for the use of Wight Bros., a firm composed of Louis Wight and J. Franklin Wight, against Sidney Guy Lea, Belden Seymour Jr., W. T. Moore, Frank Conover an Everett House, composing the firm of Lea & Co. Of the defendants, Lea and House alone were served with…

George W. Brown, Judge, presiding. This is an appeal from a judgment of the county court of Cook county, confirming a special assessment levied for the purpose of paying the cost of a drain to be constructed on Thatcher avenue, in the village of River Forest, in the county of Cook. The appellant’s property was assessed $1150.50.

<p>Appeal from the Circuit Court of Cook county; the Hon. E. W. Clifford, Judge, presiding.</p>

Lobin C. Collins, Judge, presiding. Charles T. Yerkes, a stockholder of the Chicago Hansom Cab Company, filed his bill in chancery in the… Held: on the 15th of April, Needham had bought up all the certificates of shares of stock except those standing in the names of Yerkes and Pullman, having paid Springer’s money therefor, and Pullman had at that time given Springer an option for the purchase of his stock at thirty-five cents on its par value, for which Springer paid him,…

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

<p>1. Municipal corporations—power to establish the grade of streets, a continuing power. The powers given to cities and villages to alter, grade, pave or otherwise improve their streets are continuing powers, and are not exhausted by their first exercise, and ordinances adopted under such powers fixing the grades of streets are not in the nature of compacts or contracts with owners of abutting lots.</p> <p>2. Same—liability for damage caused by changing the grade of a street. In respect to the legal liability of a municipal corporation for damage done in grading its streets, it is wholly immaterial, from a legal standpoint, whether such grading is done under an ordinance establishing a grade in the first instance, or under an ordinance changing the grade theretofore established. So a city, with or without a prior ordinance, is free to establish, by ordinance, any grade it sees fit, subject only to the qualification that such grade is not so wholly unreasonable as to render the ordinance void,</p> <p>3. Since the adoption of the constitution of 1870, a city, in making a public improvement, such as changing the grade of a street, is liable for the damages thereby caused to private property, which may be recovered by an action at law at the suit of the owner of such property.</p> <p>4. Same—immunity prior to adoption of the constitution, not continued by section 1 of the schedule. If an ordinance of a city for the grading of a street, passed before the adoption of the constitution of 1870, carries with it immunity from the burden of compensation to private property that may be damaged for public use, it will not be continued in force by section 1 of the schedule of the constitution, which provides that all laws in force at its adoption, as such a law, (if the ordinance be one,) is inconsistent with section 13, article 2, of the constitution.</p> <p>5. Same—liability determined bylaw in force when the injury is in fact done. An ordinance of a city for the grading of a street, passed before the constitution of 1870, merely establishes the grade of the street, and the question of the liability of the city for an injury that might or might not thereafter be occasioned by bringing the street to such grade is a matter wholly dehors the ordinance itself, and the question of immunity or liability depends exclusively upon the law in force at the time the grading is in fact done.</p> <p>6. Same—changing grade of street—measure of damage. On the trial of an action brought by a lot owner against a city for an injury to his lot by raising the grade of a street, the court allowed the plaintiff to prove the amount paid by him as a special tax on his premises for the improvement of the street, and in respect to the measure of damages instructed the jury, in substance, that the plaintiff, in the event he proved his case, was entitled to recover the amount that his property was damaged by the raising of the street, less the benefits, if any, that accrued to the property by the making of the improvement, but that before making such reduction they should first subtract from the benefits the sum paid by the plaintiff as a special tax for the making of such improvement: Held, that there was no error in the admission of such evidence or in the giving of the instruction.</p> <p>7. Where an improvement is made in a street which works an injury to private property, and no special tax therefor is levied on the property, then the measure of damages is the difference or depreciation in market value, or, that which is the same thing, the damage less the benefits; but where the improvement so made is paid for in part by the owner of the property injured, by way of special taxation, then another element necessarily enters into the computation of damages to be assessed in favor of such owner, for unless the amount paid in order to secure the benefits set off against damage is taken into consideration and deducted from benefits, by exactly that amount the damages recovered will fall short of being just compensation.</p>

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

<p>Appeal from the County Court of Wabash county; the Hon, S. C. Widgett, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Mercer county; the Hon. John G. Glenn, 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>

George Driggs, Judge, presiding. Suit was brought in the circuit court of Cook county by Joseph Daggitt, against Mary Mensch and Charlotte A. Baker, upon an appeal bond executed in an action of forcible entry and detainer.

<p>Appeal from the Circuit Court of Livingston county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

Kirk Hawes, Judge, presiding. This was a bill brought by the Chicago and Calumet Rolling Mill Company, against Daniel B. Scully, for the purpose of setting aside a deed executed by the company on the 17th day of March, 1890, in which it conveyed to Scully the east half of section 10, township 38 north, range 12, east, in Cook county. The ground relied upon in the bill to impeach the deed is, that it was obtained by fraud, and without consideration.

<p>1. Estoppel—by conduct—knowledge of facta essential. It is an essential element of an estoppel by conduct, that the representation or concealment of material facts must have been with a knowledge of such facts.</p> <p>2. Levy op execution—fraudulent transfer by debtor—mixture of goods—notice—estoppel—trust. A party to a scheme to defraud creditors, who purchases goods and takes them into his possession, occupies the position of trustee for the benefit of the defrauded creditors; and if he voluntarily mingles his own goods with the trust goods, it will be his duty, primarily, at least, to inform the officer seeking to levy attachments against his fraudulent vendor, that he has made additions to the stock of goods of his own derived from another source. If he fails to make known the fact that he has other goods mixed with those he claims under his fraudulent purchase, which he and his employes can identify, and permits the officer to levy his writs upon all the goods, in ignorance of the facts, the party so claiming the goods will be estopped by his conduct from afterward asserting that a part of the goods levied upon was not subject to the levy.</p> <p>3. A party who stands by and allows his property to be levied upon as the property of another, and makes no disclosure of his ownership, will by his silence be estopped from afterward asserting ownership. In such case, as to third persons, in order to prevent injustice, the law of estoppel in pais will be applied.</p> <p>4. In this case, S. & M., an insolvent firm, made a sale of a stock of goods to G. & Co., which proved to have been made with intent to defraud the creditors of the vendors. Some little time after, G. & Co. bought and paid for fifty-eight bales of silk goods of F. & Co., and placed the same with the goods obtained from S. & M., whose creditors sued out writs of attachment to be levied on the stock first bought as the goods of S. & M. The sheriff, under the writs, levied on all the goods, including those bought from F. & Co., in the presence of the members of the firm of G. & Co., but intended to levy only on the S. & M. stock. G. & Co. replevied the goods. On the trial the court instructed the jury: “Even though the jury shall believe, from the evidence, that part of the goods seized by the sheriff and in controversy in this suit, were bought by G. & Co. from F. & Co. after the purchase of the S. & M. stock, yet if the jury further believe, from the evidence, that G. and R. were present when such levy was made, and knew that the sheriff intended to levy on the goods which composed the S. & M. stock, and that G. and R. knew that the goods levied upon were those bought from F. & Co., and permitted said sheriff to make such levy under the supposition that said goods were the S. & M. stock, and that they did not then tell the sheriff that such goods had been by them purchased from F. & Co. and were not a part of the S. & M. stock, then the jury are instructed that they are estopped to claim said goods so levied on were not the S. & M. stock Held, that there was no error in the instruction.</p> <p>5. Same—fraudulent mixture of goods—whether the question arises. Where a party purchased a lot of silks under a contract in fraud of the vendor’s creditors, and afterward bought other silks and intentionally mingled them with the fraudulently purchased stock, and thereby rendered the identification of such stock difficult, and concealed from the creditors for whose debts such stock was liable, and from the officer armed with process in their favor, the fact of such mingling, and thereby misled them, and suffered such officer to levy on the subsequently purchased stock without informing him of the fact that such stock was not liable to seizure under the writs in his hands, it was held, that these facts were sufficient to justify the court, on the trial of an action of replevin by the purchaser, to. submit, by instruction to the jury, the question whether there was a fraudulent mixture of the goods.</p> <p>6. Appeal—reviewing the facts—for what purpose. In cases where the judgment of affirmance of the Appellate Court conclusively settles all controverted questions of fact, this court may still examine the evidence so far as to determine whether its tendency is such as to present a fair question of fact for the considerate"on of the jury, to which mooted points of law, embodied in or omitted from the instructions, are applicable.</p>

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

Writ of Error to the Appellate Court for the First District; heard in that court on writ of error to the Circuit Court of Cook county; the Hon. A. N. Watebmae, Judge, presiding.

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

Kirk Hawes, Judge, presiding. This was a hill for the specific performance of a contract for the sale of real estate, brought by the appellant, against Joseph K. Tyler, Emma J. Tyler and C. H. Hood.

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

<p>Writ of Error to the County Court of Montgomery county; the Hon. Louis Allen, Judge, presiding.</p>

B. B. Hannah, Judge, presiding. This was an application to the county .court of Jasper county, at its May term, 1891, by the collector of that county, for judgment against the property of appellant, for delinquent taxes for the year 1891. The claim was for $52.46 road and bridge tax for the town of Wade, in said county, and $75.77 town tax for that town. An objection to the first item was sustained by the county court, and is no longer an issue in the ease.

<p>1. Eminent domain—mode prescribed by law for exercise of the power must be strictly pursued. The exercise of the right of eminent domain being in derogation of the common right of property, the mode prescribed for its exercise must be strictly pursued.</p> <p>2. Same—courts having jurisdiction. The several city courts of this State having concurrent jurisdiction with the circuit courts within the cities in which they are established, in all civil cases except appeals from justices of the peace, have jurisdiction in proceedings under the Eminent Domain law arising within the territorial limits of such cities. The practice in such city courts is the same as in circuit courts.</p> <p>3. Same—condemnation proceedings—elements of damage. In a proceeding to condemn a part of the defendant’s land for a railroad right of way, the court instructed the jury, that in cases of this kind, damages were recoverable by the owner for such injuries as depreciate the value of the property, when by taking a portion of it the portion left is rendered less useful,—in case of a corporate body, less capable of transacting its business; for such hindrance and inconvenience as occasion loss or diminish and limit its capabilities to transact its business, by decreasing its power to transact as much business, or by necessarily increasing the expense of what may be done, although not diminished, and the jury were told to consider all such matters. They were also told to take into consideration not only the value of the land taken, but all facts shown that contribute to produce damage, as, that the land a part of which is taken is put in a worse shape for use or for the purposes for which it was designed to be used; that some portions of it are more dangerous in consequence ; the damage from fire; the inconvenience of access to the balance of the property not taken; increased inconvenience of ingress and egress to and from the property, and all actual inconvenience and damages the property might sustain in its use, not only for the present, but for the future: Held, that the defendant had no cause to complain that the jury were confined to the depreciation in the market value of his property.</p> <p>i. In a proceeding to condemn land for a public use it is proper to prove the value of the land per acre, as it may afford one means of determining the compensation to be paid, and in many cases perhaps the only one. But the land owner will have no cause to complain when evidence of its value for all purposes is allowed to be shown by him.</p> <p>5. The value of land sought to be condemned is an element proper to be shown and considered for any purpose to which it is devoted or is susceptible of being devoted. Evidence of its value as land, merely, independent of the purposes to which it is or may be appropriately used, will not be of controlling importance. If the property has a special value for any cause, the owner is entitled to compensation for that value; but still, evidence of the value of the land, as such, is competent.</p> <p>6. Same—condemnation proceedings—application to the judge in vacation. Where the application for the condemnation of land for a public use is to the judge in vacation, more than the mere filing of the petition is required. By section 3 of the act the petition must be presented to the judge, and he is required to note thereon the day when it is presented, and also a day when he will hear the same, and order summons to residents and publication to non-residents, returnable accordingly.</p> <p>7. If the application is made to the judge in vacation, he may note a day when he will hear the cause, and order a jury as provided in section 6 of the act, and proceed with such special jury although a term may have intervened, or the date noted be one of the days of a term of his court.</p> <p>8. It is the order of the judge in vacation, in fixing a day for the hearing, etc., that determines the character of the proceeding as in vacation. When the petition is filed with the clerk in vacation, and no order is made by the judge fixing a time for the hearing, it is correct practice for the clerk to issue summons returnable to the ensuing term of court, as in other cases. The application is then treated as made to the judge in term time, and stands for hearing upon the docket of the term at any time not less than ten days after due service of process.</p> <p>9. Same—obtaining jury. There is no provision made in the Eminent Domain act for obtaining a jury where the cause is to be heard in term time. The provision in section 6 for the obtaining of a jury applies only to a hearing in vacation. If the hearing is in term time, the jury must be selected from the regular panel for the term.</p> <p>10. Same—jurors not freeholders. If jurors from the regular panel, called to try the cause, are not freeholders, it will, at most, amount to a cause for challenge of the individual juror.</p> <p>11. Same—personal view—conclusive as to this court. Where the jury in a condemnation proceeding have had a personal view of the premises to aid them in understanding the other evidence, and to enable them to judge of the weight of the evidence, this court will not disturb the finding of the jury as to the amount’of the compensation and damages awarded, unless it is palpably against the weight of the evidence.</p> <p>12. Same— objections to summons and service—waived by defending generally and filing a cross-bill. Where the record shows that a cause was continued by agreement of the parties, and that the defendant appeared and defended generally, and filed a cross-petition in the case, any objection to the summons, or its service, will be held to have been waived by the defendant.</p>

Oliver H. Horton, Judge, presiding. This is a bill to cancel and set aside an agreement for the sale of real estate.

D. B. Sherwood, Judge, presiding. This is an appeal from a judgment of the county court of Cook county, confirming a special assessment against the Illinois Central Railroad Company for the sum of $3665.80, assessed for the purpose of improving Madison avenue, in Chicago.

<p>Redemption—from sale under trust deed—computation of amount of redemption money. On bill to redeem from a sale under a trust deed, this court, on appeal, reversed the decree below, and directed the circuit court to enter a decree allowing the complainant to redeem on payment of the note secured by the trust deed, and the interest due thereon. Thereupon the circuit court added to the amount due on the note the taxes paid by the holder under the trust deed, and required payment of both sums as a condition to redeem. On a second appeal this court reversed the decree of the circuit court, holding that the appellant was entitled to redeem, according to the terms of its judgment, without the payment of the taxes, and remanded the cause. On the return of the case the circuit court found the sum due under the mortgage, and entered a decree of redemption on its payment: Held, that this last decree was in strict accordance with the judgment of this court.</p>

O. H. Horton, Judge, presiding. The J. L. Began Printing Company, a private corporation of this State doing business in Chicago, became indebted to James J. West in a series of transactions, so that, on the 27th of October, 1887, West held the judgment notes of the company for something over $40,000.

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

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

Henry M. Shepard, Judge, presiding. This was a bill in chancery, filed September 23,1890, in the Superior Court of Cook county, by Charles S. Albee against Mary W. Albee, for a divorce, on the ground of desertion. The defendant appeared and answered, and a replication being filed, by agreement of the parties, a jury was waived, and the-cause was submitted to the court for a trial.

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

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

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

<p>Appeal from the Circuit Court of Winnebago county; the . Hon. James Shaw, Judge, presiding.</p>

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

<p>1. Chattel mortrage—securing debt not maturing within two years. On August 1, 1887, a chattel mortgage' was given to secure a debt of $1941.25 from the mortgagor to the mortgagee, evidenced by five notes, all of the same date with the mortgage, the first for $250, payable December 1, 1887; one for $425, payable December 1, 1888; one for $428, payable December 1,1890, and one for $416.25, payable December 1,1891. The mortgage gave the mortgagor the right to retain possession until default of payment, but the mortgagee might take possession if he should feel insecure, etc. The mortgage was recorded October 3, 1887, and the two first notes were paid on August 1, 1889. An execution against the mortgagor was levied upon the mortgaged chattels: Held, that the mortgage was invalid and fraudulent in law as against the execution creditors making the levy.</p> <p>2. Under the Revised Statutes of 1845, a chattel mortgage securing a note or other evidence of indebtedness which did not mature until after the expiration of two years from the time of recording the mortgage, was good and valid for two years, though it authorized the mortgagor to retain possession of the mortgaged property until default in payment.</p> <p>3. But under the Mortgage act of 1874, as amended in 1887, which provides that a chattel mortgage shall be “valid from the time it is filed for record until the maturity of the entire debt or obligation, provided such time shall not exceed two years,” a different rule must prevail. The words “such time,” used in the proviso, refer to the period between the time of filing the mortgage for record and the maturity of the entire debt or all the notes secured by the mortgage, and the proviso-qualifies the statement that the mortgage shall be valid for the period aforesaid, and restrains or limits the generality of such statement to-cases where such period shall not exceed two years.</p> <p>4. The length of time during which the mortgage shall be valid is the period that may elapse between the filing of it for record and the maturity of the whole debt, if such period shall not exceed two years. If some of the notes secured do not mature until after two years from the recording of the mortgage, it will be invalid, as against creditors and purchasers of the mortgagor, even as to those falling due within the period of two years.</p> <p>5. Where a mortgage secures several notes, some falling due within and some after two years, it is not valid as to those notes maturing before the lapse of the two years, because “the maturity of the entire debt” means the maturity of all the notes. The fact that the mortgage may give the mortgagee, in certain contingencies, the right to declare all the notes due, will not change the result, as the maturity referred to in the statute is that fixed by the terms of the note or other obligations.</p> <p>6. Where a part of the debt secured by chattel mortgage does not mature until after two years from the recording of the mortgage, section 4 of the act of 1874, as amended in 1887, providing for an extension of the mortgage, has no application.</p> <p>7. Statutes—office of a proviso. One of the offices of a proviso in a-statute is to qualify or restrain the generality of the enacting clause.</p>

<p>1. Eminent domain—petition to condemn land—no answer required. Neither the statute nor the rules of practice require the defendants, in a proceeding to condemn private property for a public use, to file any answer to the petition, in order to enable them to appear at the hearing and introduce evidence, and otherwise participate in the trial.</p> <p>2. Same—granting new trial at term subsequent to judgment. On a proceeding to condemn three tracts of land, a new trial was awarded at the second term after verdict and judgment by consent of the parties, and thereupon the court, on its own motion, entered an order granting a new trial as to the other party who objected thereto : Held, that it was error to grant the new trial as to the party objecting, but that the error was cured by his subsequent election to proceed in the second trial.</p> <p>3. Vacating judgment—power of court after adjournment of term. After the term of the court has expired at which a judgment is entered, as a general rule, subject to some exceptions, the court has no longer power to set aside or review such judgment, or entertain a motion for a new trial of the cause in which it is rendered.</p> <p>4. Same—exceptions to the rule. One exception to the rule is in the action of ejectment, when, by statute, the unsuccessful party may have a new trial within a year, upon payment of the costs. Another exception is when the successful party consents, in open court, to the setting aside of a judgment at a prior term, and the granting of a new trial.</p>

Kirk Hawes, Judge, presiding. This was a bill in chancery, brought by Charles W. Rigdon against Alfred F. Walcott, to obtain a rescission and cancellation of an agreement, by which the complainant had assigned and relinquished to the defendant, a certain contract theretofore existing between said parties, and for an accounting, and an adjustment between them of the matters embraced in said contract.

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