Volume 143 — Illinois Reports

0. T. Reeves, Judge, presiding. This was a bill in equity, brought by George P. Davis, Sarah D. Swayne and Oliver E. Noris, against the commissioners of highways of township 12, north, range 3, east, in McLean county, and others, to enjoin the commissioners from removing or interfering with a certain tile drain constructed by the complainants partly in the highway between section 13, in Normal township, and section 18, in Towanda township.

<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>

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

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

<p>Expebt testimony—admissible to show laws of alluvial streams, eta. In an action against a railway company to recover damages to crops by flooding the plaintiff’s lands, expert testimony is admissible to show the laws of alluvial streams, the cause and manner of the growth of deposits of sediments, and the effect of such deposits upon streams in a long course of years, in a case where the channel of the stream has -been obstructed.</p>

Elliott Anthony, Judge, presiding. The first count of the declaration in this Case charges that a certain specified railroad track was used and operated hy the defendant company and the Pittsburg, Cincinnati and St. Louis Eailroad Company, towards and at, to-wit, the intersection, junction and connection of the tracks of the railroad of the defendant with the tracks of the railroad of the Pittsburg, Cincinnati and St. Louis Eailroad Company; that Martin A. O’Sullivan, the…

<p>1. WmiiS—devise to trustees—title acquired. A testator devised certain of Ms estate, real and personal, to three persons, as trustees, to collect the rents, etc., and safely to invest the personal estate to be held by them during the life of his daughter, giving her the income free from the control of her husband. On her death the trustees were to convey and transfer the principal to her issue surviving her, in such shares as she should direct by will, and in case she should make no will, then to her issue in equal shares, per stirpes, and in case of her death without issue, the trustees were to convey all the estate, except $400,000, to such person as the daughter might by will direct, and in default of such direction then to her heirs-at-law by the laws of New York. The trustees were also empowered to lease and sell and convey any of the real estate : Held, that the trustees took the legal title in fee, and that upon the death of the daughter her issue could not take the legal title without a conveyance to them by the trustees, and that such trust was not a passive one, the trustees being required to perform active duties after the death of the daughter.</p> <p>2. Same—devise to trustees without the word “heirs”—enlarging the estate devised. If land be devised to trustees without the word “heirs,” and a trust is declared which can not be fully executed but by the trustees taking an inheritance, the court will enlarge or extend their estate into a fee simple, to enable them to carry out the intention of the donor. Thus, if land is conveyed or devised to trustees without the word “heirs,” in trust to sell, they will take the fee, otherwise they can not sell; and also, if an estate is limited to trustees and their heirs,, in trust, to sell, mortgage or to lease, at discretion, or if they are to convey the property in fee, or to divide it equally among certain persons, as to do any of these acts requires a fee.</p> <p>3. While in conveyances and devises of real estate in trust, wox’ds of inheritance will not necessarily pass the title in fee, they will have that effect unless it appears that the tiust can be discharged by the trustees taking a less estate. Prima facie the absolute title in fee passes.</p> <p>4. Same — will construed — estate devised—parties. Where land is devised to trustees in trust, to collect the rents, etc., and pay the same to a daughter of the testator during her life, and at her death to convey the same to her issue in such manner and shares as she mayodirect by will, and in the event she leaves no issue then to certain other persons at her death, the legal title will not vest in her children, and they will not become necessary parties to a bill by a third person to have a part of the land sold, but it will be sufficient to make such trustees parties.</p> <p>5. Chancery—parties. In suits in chancery all persons who are legally or equitably interested in the subject matter and result of the suit must be made parties. The interest, however, must always be a present substantial interest, as distinguished from a mere expectancy or future contingent interest.</p>

<p>1. Negligence—mining law—liability for f ailure to fence coal shaft. The law makes It the duty of every operator and owner of a coal mine to securely fence the top of the shaft by gates properly protecting the shaft and the entry thereto, and if he fails willfully to so fence the same, and by reason of such failure a person employed about the mine is killed, the owner or operator will be liable to the widow of the person so killed for damages, not exceeding $5000, even though the person so killed may be chargeable with contributory negligence.</p> <p>2. Same — compliance with the statute. But if the statute has been complied with by the operator or owner of the mine, or the injury is not occasioned by the willful violation or willful failure denounced by the statute, but by some other alleged negligence of the mine owner, and the person killed or injured has failed to exercise ordinary care for his safety, there will be no right of action.</p> <p>3. The statute requires that the top of the shaft in a coal mine shall be securely fenced by gates properly covering and protecting the shaft and the entrance thereto. Providing a flat car, so that it can be placed over the shaft when not otherwise used, making its safety as to being covered depend upon the exercise of due care in operating such car and a movable block acting upon a pivot, is not a compliance with the statute.</p> <p>4. Same—fencing coal shaft—object of the statute. The very object to be attained by the statute requiring the shaft in a coal mine and the entrance thereto to be fenced, is to prevent injuries to persons employed in a coal mine, so that negligence on their part in the manner of doing their •work shall not prove fatal to a recovery for an injury suffered by them.-</p> <p>5. Same—instruction as to willful violation of the statute. In an action by the widow of a miner killed by falling into a shaft not properly ■fenced, against the owner of a coal mine, it was held no error to refuse to instruct the jury that if they believed, from the evidence, that the defendant, in good faith, for the protection of the entrance, boarded and fenced it, and arranged a car, and for its operation, to act as a gate or covering for the shaft, and that such provision was sufficient to protect one in the exercise of the care that a person of ordinary prudence would, under the circumstances, exercise, from falling into the shaft, then the act of the defendants was not willful and the plaintiff could not recover.</p> <p>• 6. In an action against the owner and operator of a coal mine to recover damages for the death of the plaintiff’s intestate, caused by a failure to properly fence a shaft and the entrance thereto, it is not error to instruct the jury that by a willful violation of the law is meant' a violation of its provisions, knowingly and willfully committed.</p> <p>7. Same — master and servant. Where a miner, after quitting his employment and being paid off, again went to work at the mine, and was killed by falling into a shaft not properly fenced by gates, it was held, in an action by the widow of the deceased, that it was not error to instruct the jury that if he so went to work with knowledge of and without objection on the part of the superintendent of the mine who was in charge of the work, then the relation of employer and employe existed as between the owners of the mine-and the deceased; nor was it error to refuse to instruct the jury that if he went to work without the knowledge of the defendants, then the defendants were not liable. The knowledge and implied consent of the superintendent in charge of the work was the knowledge and consent of the defendants.</p> <p>8. Statutes construed— re-enactment. Where the legislature reenacts a section of a law in almost the same words as the original, which has been judicially construed, it will be presumed that such section was re-enacted in view of such construction.</p>

Writ ok Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding. The Monmouth Printing Company was organized on February 1, 1886, as a limited partnership, for the purpose of publishing the Monmouth Atlas, a weekly newspaper, and the Evening Gazette, a daily newspaper, and doing a general printing business, at Monmouth, in Warren county, Illinois.

Geoege Wole, Judge, presiding. The city council of the city of Freeport passed an ordinance providing for the grading, curbing and paving of parts of certain streets of the city. The cost of making the contemplated improvement was provided for by the third section of the ordinance, as follows: “Sec. 3.

<p>X. Insueance—forfeiture of policy by additional insurance—estoppel. If notice be given to an insurance company, or its agent, of additional insurance on tbe property insured, or if actual knowledge is brought home to the company that other insurance exists or has been obtained, and no objection is made, the company will be estopped from insisting on a forfeiture because its consent was not indorsed on the policy.</p> <p>2. Same—evidence tending to prove' waiver of condition against a further insurance. The general agent of an ^insurance company, which had given a policy on a dwelling house, the policy prohibiting the taking of a further insurance without consent indorsed thereon, on being informed that an additional insurance had been taken in another company, wrote in reply that his company could not consent to the second insurance without further information. The desired information was given, to which no reply was made, and the agent retained the policy without cancelling it, until after a loss: Reid, that these facts tended to prove a waiver of the prohibition against a further insurance.</p> <p>3. Appeal—reviewing the facts. All matters relating to the character, force and effect of the testimony are settled by the judgment of the Appellate Court affirming the judgment of the trial court, and are not open to review in this court on appeal or error.</p>

<p>1. Cobpobations—dissolution under sec. 26, chap. 82, of the Revised. Statutes. Section 25 of the act relating to corporations is intended to afford a remedy in the nature of a creditor’s bill, and is designed to aid creditors in the collection of their debts; and a court of equity, in a suit by creditors, has full power, for cause shown, to close up the business of a corporation or dissolve it.</p> <p>2. It was not intended by the legislature, by the enactment of section 25 of the act in regard to corporations, to make either the State or the Attorney General an agent for the collection of debts or claims against corporations organized under that act. The Attorney General is, therefore, not authorized by law to file a bill or information in equity, under that section, for the purpose of dissolving a corporation for a forfeiture of its charter. •</p> <p>3. Same—dissolution under the common lav*. The doctrine of the common law is, that a corporation can not be dissolved at the instance of an individual, and that the State, or the Attorney General, as the representative of the State, is a necessary party to any suit to dissolve a corporation for a forfeiture of its charter. But it is competent for the legislative power to provide by statute for the absolute and final dissolution of a corporation at the suit of an individual, even though that is no part of the usual or general jurisdiction of either a court of law or a court of chancery.</p> <p>4. It is not only the rule that, without authority from statute, a corporation can not be dissolved at the suit of an individual, but it is also the rule that without statutory authority a court of chancery has no jurisdiction to decree the dissolution of a corporation. Without such authority the mode of proceeding to enforce a dissolution for cause of forfeiture is by scire facias, or an information in the nature of quo warranto, in a court of law.</p>

heard in that court on appeal from the Circuit Court of St„ Clair county; the Hon. W. H. Snyder, Judge, presiding. This is an action on the case begun on May 2, 1889, in the Circuit Court of St. Clair County by the appellee against the appellant company. The trial below resulted in a verdict and judgment for the plaintiff, and said judgment has been affirmed by the Appellate Court, whence it is brought here for review by appeal.

<p>1. Lien—under a creditor’s bill. The filing of a creditor’s bill and the service of process create a lien, in equity, upon the effects of the judgment debtor and upon the lands fraudulently conveyed by him. When the plaintiff has no lien on the property sought to be reached, it is the filing of the bill in equity, after the return of execution, which gives the plaintiff a specific lien. In such case the Us pendens is an equitable levy, and secures a lien to the complainant, and it is wholly unimportant that the final decree establishing the lien is not rendered until long after the judgment at law has ceased to be a lien, by force of the statute, upon the real estate of the judgment debtor.</p> <p>2. Same—on lands fraudulently conveyed. The statutory lien of a judgment is on the real estate of or belonging to the person against whom it is recovered. When the debtor mates a conveyance of his lands in fraud of the rights of creditors, but which is valid between the parties to such conveyance before the rendition of judgment against him, such judgment will be no lien on such lands by operation of law.</p> <p>3. Same—lost by neglect—no relief in equity. Where the statute prescribes the time during which judgments shall have the force of liens on the lands of judgment debtors, as in this State, one who has neglected to enforce his judgment lien in proper time will not, in equity, be relieved from the consequences of his neglect.</p> <p>4. Creditor’s bird —filed in apt time. Judgment against a debtor was obtained September 19,1881, execution was issued thereon November 3, 1881, and a creditor’s bill was filed February 7, 3883, and the summons issued in the cause was served on the defendants on February 9, 1883. The judgment lien expired in September, 1888, and the decree for complainant was not rendered until December 16, 1889, it was held, that under any theory this bill was filed in due and ample time.</p> <p>5. Same—raising defense to original judgment. On creditor’s bill to set aside a fraudulent conveyance of the debtor and subject the property so conveyed to the payment of the judgment, the debtor and his fraudulent grantee will be precluded from setting up any defense against the judgment that might have been interposed to the suit in which the judgment was rendered.</p> <p>6. Fraud —fraudulent conveyance. One can not transfer his property in consideration of an obligation for his support during his natural life, unless he retains enough property to satisfy all existing debts. In such case, the fraudulent intention to hinder and delay creditors in the collection of their debts follows necessarily, as a conclusion of law, wholly regardless of what the parties to the transaction in fact intended.</p> <p>7. If a debtor, under the honest belief that the debt has been satisfied under'an arrangement made, whereby it was to be collected from the estate of a joint debtor, conveys all his available property to another, in consideration of an obligation of the grantee for his support for life, such conveyance will be fraudulent in law, though no fraud was intended.</p> <p>8. Consideration—for release of a debt. Where the holder of a joint note agrees with the surviving maker, on payment of one-half the, debt, to look to the estate of the deceased maker for the other moiety, such agreement will be void for want of consideration to support it.</p> <p>9. Defense—failure to interpose. If an agreement of a creditor amounts to a release of his claim, the debtor, when sued on the debt, should interpose the same as a defense, and if he fails to do so, the judgment will settle the fact of the continued existence of the debt, and also the amount of the indebtedness.</p> <p>10. Chancery—relief under general prayer. A decree on creditor’s bill seeking to impeach a conveyance of the debtor made to defraud creditors, before the recovery of judgment, is not erroneous in directing a sale of the property by the master in chancery, for the reason, that is not the specific relief asked for in the bill. Under the general prayer the court may decree any relief that is consistent with and justified by the facts alleged in the bill.</p>

<p>1. Chancery—jurisdiction-complete remedy at law. If a county treasurer, at the end of his term, fails to pay over to the county all fees and emoluments, including interest on public moneys loaned by him, in excess of his salary, the remedy, if he is liable at all, is ample and complete in an action on his bond. If he has received funds not within the contract obligation of his bond, for which he is alone liable to the county, an action at law against him will afford complete relief, and a bill in equity seeking to enforce such a purely legal demand will be bad on demurrer, for want of jurisdiction.</p> <p>2. - On bill to enforce a¡ purely legal demand, unless some special and substantial ground of equitable jurisdiction be alleged, and, if necessary, be proved, such as that a lien exists for a money demand which can not be adequately enforced at law, or that discovery is necessary to a recovery, or other like equitable considerations affecting the adequacy of the remedy at law, courts of equity will decline to interfere.</p> <p>3. Where a court of law is competent to afford an adequate and ample remedy, courts of equity will remit the parties to the courts of law, where the right to trial by jury is secured to them.</p> <p>4. In actions cognizable at law, the mere fact that an accounting is necessary, even when there are cross-accounts, is insufficient to give a court of equity jurisdiction, the general rule being that a proper case is presented when the remedies at law are insufficient.</p> <p>5. It is well settled that if a court of equity acquires jurisdiction on any equitable ground, it will retain the cause and afford complete relief, although it may become necessary to enforce purely legal rights. But if the allegatidns of a bill creating equitable cognizance are not sustained, the jurisdiction will fail.</p> <p>6. Same—discovery giving jurisdiction. In bills for account, when a discovery in aid of the complainant’s case is material to a correct accounting, the jurisdiction of a court of equity may be invoked. But in such case, as the equity jurisdiction depends upon the discovery sought, the bill must be so framed as to require it.</p> <p>7. In bills for discovery in aid of suits at law, it may not be necessary to allege that the facts sought to be discovered are incapable of proof in any other way, as it seems that such bills may be sustained for the discovery of evidence cumulative in its character. But such is not the rule on bills framed for discovery and relief, and which seek to withdraw from the jurisdiction of courts of law, matters of purely legal cognizance, by reason of the arbitrary rules of law pertaining to the production of evidence.</p> <p>8. In such cases the bill must show the discovery to be indispensable to the attainment of justice. It must, by apt words, show that the facts sought to be discovered are material to sustain the complainant’s cause of action, and that such facts are incapable of proof in a court of law, and can only be established by discovery from the defendant. Without these allegations the plaintiff can not avail himself of the doctrine, and obtain relief as a consequence of such discovery. The jurisdictional facts must be alleged and proved.</p>

<p>1. Special assessment—by city for paving street—sufficiency of ordinance, An ordinance of a city directing the curbing and paying of an avenue between two points, which fails to state where the curbing is to be set and the width of the pavement, is insufficient to form the basis of a special assessment for the cost of the proposed improvement; and the proceeding is not aided by the passage, at the same time, of an ordinance providing for the width of certain roadways at thirty feet, when it does not appear that a roadway is in the avenue proposed to be curbed and paved, or that the attention of the committee estimating the cost was called to such other ordinance, and when neither ordinance refers to the other.</p> <p>2. Same—what ordinance must contain. To authorize the making of local improvements by special assessments, an ordinance must be passed “specifying therein the nature, character, locality and description of the improvement.” Erom this description the commissioners are to estimate the cost, and if the ordinance fails to give a sufficient description of the proposed improvement, so that a correct estimate of the cost can be had, the ordinance will be void. Such ordinance will not be aided by the report of the committee, when it also contains the same indefiniteness.</p>

<p>1. Statute op Fbauds—performance of verbal contract to take case out of the statute. A parol agreement for the purchase of land, when the purchase money is paid and possession is given and taken under the contract, and the purchaser makes lasting and valuable improvements thereon, will be specifically enforced, as such part performance is sufficient to take the case out of the Statute of Frauds.</p> <p>2. Where the vendor of land for a railroad depot accepts the amount raised by subscription, when collected, in full satisfaction of the contract of purchase, the exact amount agreed to be paid will be a matter of no importance, especially when the vendor has the land surveyed and staked off, and removes his fences from the land, and gives possession.</p> <p>3. Specific pebfobmance—relief based on offer in bill, though not proven to be a part of the contract. Although the vendor of a tract of land for a railroad depot is not shown to have been entitled to a railroad pass for himself and family, yet if the successor of the company with whom the contract was made, by his bill, offers such a pass, a decree for specific performance predicated on such offer, and making provision for its enforcement in the future, may be regarded as proper.</p> <p>4. Laches — not attributable to party in possession of lands sold. Laches can not be imputed to a person who is in possession of the property in dispute under a contract for a deed. Until such possession is sought to be disturbed, the vendee is not required to bring suit „to enforce the making of a deed.</p>

<p>1. Evidence—tending to magnify damages—proof of dependence of plaintiff’s family in action for personal injury. In an action by tbe injured party against a railway company, to recover damages for a personal injury, the fact that the plaintiff has a family dependent on him for support is wholly immaterial, having no relevancy to any point in issue; and the admission of such fact in evidence is erroneous, as being likely to excite sympathy and magnify the damages.</p> <p>2. Same—proof of dependence of family proper when action is for death of plaintiff’s intestate, caused by negligence. But in an action by the administrator of a deceased person to recover damages for causing the death of such person, it is not competent for the plaintiff to show what the pecuniary circumstances of the widow, family or next of kin are or have been since the death of the intestate, but it is competent to show that the wife, children or next of kin were dependent upon him for support before and at the time of his death.</p> <p>3. Negligence—in suit against railway company for negligence of its servants, the liability of the latter to the company is not involved. In an action against a railway company to recover damages for negligence, the court refused an instruction asked by the company, to the effect that the engineer and fireman of the train inflicting the injury were personally liable to the defendant for any negligence which the jury might believe was committed by them at the time mentioned, in the case, and for all damages, if any, which should.be allowed by the jury on account of such negligence : Held, that the instruction was properly refused, as presenting a matter wholly foreign to the issues involved.</p> <p>4. Pbactioe—finding of facts by Appellate Court. A judgment of affirmance by the Appellate Courtis a finding that the facts of the case are the same as they were found to be by the verdict of the jury or finding of the court at the trial in the trial court.</p> <p>5. Pbactioe in Subeeme Codbt—what will reverse judgment of Appellate Court. This court can not' reverse the judgment of the Appellate Court simply because that court may -have given bad reasons for its judgment. It can reverse only for erroneous judicial acts.</p>

<p>1. Appeal—reviewing the facts. Where this court finds that there is evidence tending to prove the cause of action charged in the declaration, its sufficiency will be conclusively settled by the judgment of the Appellate Court affirming the judgment of the trial court, and is not open to review.</p> <p>2. Evidence—to show extent of a personal injury—tending to prejudice plaintiff’s case. In an action by a woman to recover damages for apersonal injury, the defendant introduced evidence tending to prove that after the alleged injury the plaintiff had been guilty of adultery, and attempted to follow it up by other proof to the same effect, which the court refused. It was claimed to be competent for the purpose of disproving the nature and extent of plaintiff’s injuries, as testified to by her and her physicians: JEteld, that as the defendant had the benefit of the evidence, without objection, to the extent of proving the act, the offered evidence was properly refused, as it could only have the effect of prejudicing the plaintiff’s case.</p> <p>3. Practice — improper remarks of counsel — when no ground of reversal. In his closing remarks to the jury, plaintiff’s counsel, in commenting upon the evidence of two of defendant’s witnesses, said: “But they have the blackest hearts of any two who ever appeared as witnesses in a court of justice. Why is not this man here to-day, I ask you? Well, because he committed larceny last night and was locked up in the calaboose.” The court at once rebuked the counsel for making the remarks, and told the jury to treat them as untrue, and to give them no attention whatever: Held, that the remarks were highly improper, but as the court promptly interfered, and they did not appear to have worked any harm to defendant, they did not in this case require a reversal.</p> <p>i. Same—ordering plaintiff to submit to a private examination of her person by a physician. ' On the trial of an action to recover for personal' injuries, and before the examination of plaintiff’s witnesses, the defendant asked the court to order the plaintiff to submit to a private exami- , nation by physicians to be appointed, which motion was refused. The motion was wholly unsupported by proof of any kind that the examination asked was necessary for the proper presentation of the defense: Held, that for the want of such showing the motion was properly overruled. But it seems the court has no power to require a party to submit to such an examination.</p>

<p>1. Negligence—when and out of what arises actionable negligence— person to whom a duly is owed. Actionable negligence, or negligence which constitutes a good cause of action, grows out of a want of ordinary care and skill in respect to a person to whom the defendant is under an obligation or duty to use ordinary care and skill.</p> <p>2. Same — owner of building as against a mere licensee. The owner of land and of buildings assumes no duty to one who is on his premises by permission only, and as a mere licensee, except that he will refrain from willful or affirmative acts which are injurious. Therefore a person who enters on premises by permission only, without any enticement, allurement or inducement being held out to him by the owner or occupant, can not recover damages for injuries caused by obstructions or pit-falls.</p> <p>3. The members of a fire patrol forced open the door of a building then on fire, and entered the main floor and basement, and while using an elevator the rope broke, and the counter-weight, which was not suitably secured in its place, fell and injured one of them. The owner of the building was not present and did nothing to induce the entry: Held, that the owner of the building was not liable to the party injured, although the elevator and its appliances were not safely constructed and maintained.</p> <p>4. Same — must be the cause of the infury complained of. It is well settled rule of law, that when the breach of duty or negligence alleged is not the cause of the injury complained of, there can be no recovery. So when the breach of a city ordinance does not cause, or contribute to cause, a personal injury by an elevator in a building, no action will lie on account of such breach.</p> <p>5. Same — as against a mere licensee. It is the well settled doctrine that a mere naked license or permission to enter premises does not impose an obligation on the owner or person in possession to provide against the damages of accident. This applies equally to cases where the license is given by law. The statute (chap. 142) giving fire patrols the right to enter buildings to put out fires therein and save property, is but an enactment in express terms of the common law applicable in such case, and confers no power.</p> <p>6. Same—of owner of elevator—under ordinance—in whose favor action is given. An ordinance of a city provided that “in every factory, work-shop, or other place or structure where machinery is employed, the belting, shaftings, gearing, elevators and every other thing, when so located as to endanger the lives and limbs of those employed therein while in discharge of their duties, shall be, so far as is practicable, so covered or guarded against any injury to such employes.” Held, that such ordinance was intended for the protection of employes, only, and that one not an employe, but a mere licensee, who was injured in consequence of the neglect of the owner of an elevator to have the same properly guarded, could not recover damages on account of such neglect.</p> <p>7. Same—parties—who may sue for an injury—who may avail of remedy. Where a statute gives a remedy, only such persons as are intended to be benefited or protected by it can rely on its violation as giving a cause of action. So if a statute prohibits a thing for the benefit of a certain class, as, employes, persons of that class can alone maintain an action under the statute.</p> <p>8. License — when law gives one to entera building to put out fire. Where a building in a city is on fire, the members of a fire patrol, in an effort to extinguish the fire and save property therein, may force open doors, in the absence of the owner or occupants, and they may do this even in the teeth of an express prohibition on the part of the owner, and in so doing they will not be trespassers. In such case the law licenses the action. This permission to enter a man’s premises has no necessary connection with the owner’s interest, and is always given on public grounds.</p> <p>9. Where a fire breaks out in a city, the public authorities, and even private persons, may forcibly enter upon adjacent premises, as they may find it necessary or convenient, in their efforts to extinguish or arrest the spread of the flames. In such a case, though they had no permission from the owners, they will have an implied license by law to enter to save the property.</p>

Henry M. Shepard, Judge, presiding. Appellants filed their bill in the Superior Court of Cook county, against the Pullman Iron and Steel Company, the Pullman Palace Car Company, the Pullman Loan and Savings Bank, George M. Pullman, and others, alleging, in substance, that in October, 1883, Frank B. Felt, James P. Perkins, George M. Pullman and John W. Doane were equal owners of a certain patent for the making of railway spikes; that such persons, for the purpose of…

M. F. Tuley, Judge, presiding. This was a bill in chancery, brought by the American Live Stock Commission Company against the Chicago Live Stock Exchange and H. D. Rogers, for an injunction. A preliminary injunction having been issued, the Chicago Live Stock Exchange appeared and demurred to the bill, and the demurrer being overruled, it filed an answer and entered its motion to dissolve the injunction.

Frank Baker, Judge, presiding. This was an action on the case, by appellee, against appellant, to recover for a personal injury alleged to have been received through the negligence of appellant. For several years before the accident appellant had been engaged in burning brick, and appellee worked as its servant in that business.

<p>Appeals and writs op error—when appeal lies from the Appellate Court—separate maintenance. No appeal lies from the judgment of the Appellate Court affirming the decree of the circuit court in a suit by a. wife for separate maintenance, where the sum decreed the wife is less-than $1000,—following Umlauf v. Umlauf, 103 Ill. 651. In Jenkins v. Jenkins, 104 Ill. 134, and in Johnson v. Johnson, 125 id. 510, the question, of jurisdiction was not raised or decided.</p>

<p>1. Limitations—-proof of payment of taxes—presumption as to payment of special assessments. Where a party proves that hq paid all State, county, city, town, school, road, park and corporation taxes for seven successive years, under color of title, while the lots were vacant and unoccupied, and before his taking possession, it will be presumed, in the absence of evidence to the contrary, that no other tax or assessment was imposed upon the property, and that he had paid all taxes thereon during the seven successive years.</p> <p>2. Where a party, for the purpose of showing title acquired under the seven years Limitation law, proves the payment of all general taxes for seven successive years, it will devolve on the party disputing his title to show, if such is the case, that the property had been specially assessed for some one of the years, and then the former will be required to prove payment of such special assessment, in order to establish his title.</p> <p>3. Sake—when the statute runs against a city, as to lands held by it. Where a city holds lots in trust for the public, or has devoted them to a public use, the seven years Statute of Limitations will not apply to cut off the rights of the city. But where the property is not so held, and is used by the city for no purpose whatever, and has not been purchased with any special fund, it will hold the same like any private person, subject to the same duties and liable to'the same obligations, and the Limitation law will apply against the city.</p> <p>4. Sake—application to municipal corporations. Municipal corporations, in all matters involving mere private rights, as distinguished from public rights strictly so called, are subject to limitation laws to the same extent as private individuals.</p> <p>5. Sake—title thereunder—available for attach as well as for defense. A party may show title to land by proving col or of title and seven years’ payment of taxes while the property is vacant, and possession after the completion of the tax payment; and such title is thereafter as available for attacking as for defensive purposes. The holder of such title may maintain a bill to remove a cloud on the title.</p>

Writ of Error to the Circuit Court of Woodford county; the Hon. T. M. Shaw, Judge, presiding.

<p>1. " Kemahtdeb—whether a vested or contingent interest. Where land Is conveyed to A in trust, to receive and pay the rents and profits thereof to B, to her sole and separate use, as her separate estate, independent of the control of her husband, during her natural life, and after her death then to transfer and convey the same to the children of B, if any should survive, the children of B will not take a vested interest in the land, but a contingent interest, depending upon their survivorship.</p> <p>2. Same—contingent or executory, defined. Contingent or executory remainders are when the estate in remainder is limited to take effect either to a dubious person or upon a dubious and uncertain event. Such a remainder is limited so as to depend on an event or condition which is dubious and uncertain, and may never happen or be per - formed, or will not until after the termination of the particular estate. It is not the uncertainty of enjoyment in futuro, but the uncertainty of the right of that enjoyment, which makes the difference between a vested and contingent remainder.</p> <p>3. An interest in land may be contingent, because limited to a person not in esse, as, a child before it is born. In such case the interest can not vest till such child is born, or because the person, though bom, is not ascertained, as, the survivor of several persons, or the heirs of a person who is living, or a class of persons who shall attain twenty-one years of age, or the like.</p> <p>4. Where land is conveyed to a trustee, in trust for a married woman, for her life, with remainder to her children who may survive her, and she has two children living at the time of the execution of the deed, one of whom dies and two others are afterward bom, her children will take in her lifetime only a contingent interest.</p> <p>5. PabTies—in chancery—holders of contingent remainder not necessary parties. On creditor’s bill to set aside a deed of land to a trustee in trust, to collect and pay rents to a married woman during her life, and at her death to convey to the children she might leave surviving, on the ground that such deed .is in fraud of creditors of the grantor, the children of such married woman are not necessary parties. In such case the trustee represents the contingent interest of the children, and a decree setting aside the deed of trust is binding on them, the same as if made parties.</p>

Writ of Error to the Circuit Court of Cass county; the Hon. Lyman Lacey, Judge, presiding. Mr. R. W. Mills, for the plaintiffs in error: The testator had the power to devise an interest in his lands to a child, which is not subject to alienation by sale under execution against such child. Rhoads v. Rhoads, 43 Ill. 239; Waldo v. Cummings, 45 id. 421; Pool v. Blake, 53 id. 494.

<p>1. Building and loan association—amount of premium. Where a member of a building and loan association bids twenty-five per cent premium for a loan of $10,000, if the association, by the report of its committee to whom the application for the loan was referred, and by its computation of the interest charged, and its bill to foreclose a mortgage given to secure the loan, treats the net amount of the loan at $8000, it can not claim in the foreclosure that the premium was to be $2500.</p> <p>2. Same—when sum advanced is less than note and mortgage. In such case, when only $3100 of the amount of the loan is advanced to the borrower, the mortgage should be held as security only for a sum bearing the same ratio to the $10,000, for which the bond and mortgage were given, as the $3100 advanced bears to the full amount which the borrower was entitled to receive as the net amount of the loan.</p> <p>3. Same — statute allowing member to withdraw and receive amount paid by him, construed. It is doubtful whether section 6 of the act relating to building and loan associations, which provides that any stock holder wishing to withdraw from the association shall have power to do so on giving certain notice, and that on such withdrawal he shall be entitled to receive the amount paid in by him, and such interest thereon, or such proportion of the profits thereon as the by-laws may fix, less fines and other charges, has any application to members who are borrowers. But if such association accepts of a borrower a surrender of his stock upon certain terms, it will be bound by those terms.</p> <p>4. Same—section 10 of the act construed. Section 10 of the act relating to building and loan associations, which authorizes a borrowing stockholder to pay fiis loan before it matures,—that is, before his stock becomes par,—and provides that if such payment be within less than eight years from the issue of his series of stock he shall be entitled, on payment of his loan, to be refunded one-eighth of the premium paid for every year of said eight years then unexpired, does not apply to a ease where the association is compelled to foreclose a mortgage securing a loan for a failure to pay installments and interest.</p> <p>5. Appeals—presumption in favor of action of lower court. The Appellate Court being a court of superior jurisdiction, its judgments, on appeal or error, will be supported by the same intendments which prevail in ease of other superior courts. Error, to be availed of, must appear affirmatively upon the face of the proceedings, and if it is not so shown it will be presumed not to exist.</p> <p>6. In order to sustain an assignment of error that the Appellate Court refused a motion to affirm the judgment or decree appealed from, for a failure of the appellant to file briefs in the time limited by a rule of the Appellate Court, it must appear, upon the record of that court, that the briefs were not filed in proper time. That fact can not be shown by affidavits filed in this court.</p> <p>7. Same—record tried by itself, alone. A court, in its exercise of appellate jurisdiction, can act only upon the record duly certified by the clerk of the court from which the appeal is taken. Original evidence can not be heard. The record of the court from which the appeal is taken must be tried by itself, and by itself, alone.</p>

<p>1. Limitations—proof of payment on note to take debt out of statute. Where tbe proof is insufficient to prove a payment upon the specific indebtedness sued on, sucb payment can not be held to waive the debt and take the case out of the Statute of Limitations.</p> <p>2. Same—payment as reviving debt—period of limitation after such revival. A note was executed while the Limitation law of 1849 was in force, limiting actions to sixteen years. After its repeal by the act of 1872, which fixed the limitation on notes at ten years, payments were made, which were relied on as constituting a new promise and as reviving the debt: Held, that an action on the note after the new promise was barred in ten years.</p> <p>3. Same—effect of new promise before the bar of the statute attaches, and one made after the repeal of statute by a law fixing a shorter period. The provision of the act of 1872 reducing the period of limitation from sixteen to ten years, which provided that the repeal of the old law shall not be construed to affect rights existing at the time the repeal took effect nor to stop the running of any statute, prevents a. creditor by note or bond from being barred in the collection of his. debt by suit, which had not run sixteen years after its maturity when the repealing act was. passed, and gives him until the expiration of sixteen years from the time his cause of action accrued to bring his-suit; and so, also, if any payment was made on the note after its maturity and before the repeal of the statute, the right of action will not be barred until sixteen years from the time of such payment. But a payment after the repeal takes effect will not extend the period of limitation for sixteen years thereafter, but only for ten years thereafter.</p> <p>á. Same^—statute merely affects the remedy—no part of contract. The Statute of Limitations does not enter into and form a part of a contract. So the time within which suit shall be brought relates solely to the remedy to enforce the contract, and it may be shortened or lengthened, and changed from time to time, at the pleasure of the legislature, so long as the creditor is not denied a reasonable opportunity to enforce collection of his debt.</p> <p>5. Where an action barred by limitation is revived by a new promise to.pay, an immediate right of action will arise therefrom, and the Statute of Limitations in force at that date wall apply and fix the time within which such right of action may be enforced by the courts.</p> <p>6. Witness—competency of party — against one defending as heir. The complainant in a bill to foreclose a mortgage is not a competent witness where the defendant defends as heir of a deceased person.</p>

heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. George W. Stipp, Judge, presiding. This was assumpsit in the LaSalle circuit court, brought by appellee to recover compensation, fees, etc., alleged to be due him from LaSalle county, and earned as sheriff thereof.

<p>1. Chancery—reversal of decree for insufficiency of evidence—witnesses examined orally. Where the witnesses are examined orally before the chancellor, and there is a direct conflict and contradiction in the testimony, to authorize a reversal for error in the findings of fact such error must be clear and palpable.</p> <p>2. Rescission or contract—setting aside deed for failure of consideration. The doctrine is well established in this State, that where one conveys real estate and property to another person, in consideration that such other person will support and maintain the grantor during his life, and the grantee afterward refuses to perform his contract, a court of equity will grant relief by rescinding the contract and cancelling the deed.</p> <p>3. Witness — competency of wife. Where a bill in chancery against a, husband and wife is dismissed as to the latter on the hearing, she will not thereafter be a competent witness in behalf of her husband.</p> <p>4. Parties — in chancery — when wife is a proper party in suit to set aside deed to her husband. On bill to set aside a conveyance of land, the wife of the grantee having only an inchoate right of dower, is not a necessary party. It is otherwise when her right of dower is consummate by the death of her husband.</p> <p>5. Dower — nature thereof—defeasible title in the husband. The right of dower that a married woman has in the real estate of her husband is not a vested right, but a mere intangible, inchoate, contingent expectancy; and when there is a defeasible title in the husband, and that title is defeated, the right of dower of the wife also terminates.</p>

<p>1. Negligence—of a city—allowing opening in sidewalk. It is negligence on the part of a city to permit the owner or occupant of premises to make an opening in 'the adjoining sidewalk, and to permit a trapdoor for such opening to be left open, so that pedestrians may fall therein.</p> <p>2. Same—care required of injured party. A pedestrian upon such sidewalk may ordinarily assume that the same is in a reasonably safe condition for travel. He is not absolutely bound to keep his eyes constantly fixed on the sidewalk, in search of possible holes or other defects therein.</p> <p>3. Same—due care, a question of fact. A person passing along a sidewalk in a city is required to use ordinary and reasonable care and diligence to avoid.danger, but what is such care depends upon the circumstances of each particular case, and is a question of fact for the jury.</p> <p>4. Pleading—matter of defense arising after suit brought. It is a general rule of the common law that it matter of defense which arises after suit brought, and before plea, must be pleaded to the further maintenance of the action, and that a defense which arises after plea filed, and either before replication or after issue joined, must be pleaded puis darrein continuance.</p> <p>5. An action on the case is an exception to this rule. In such an action the defendant is permitted, under the general issue, to give in evidence a release, a former recovery, a satisfaction, or any other matter ex post facto which shows that the action has been discharged, ,or that in equity and conscience the plaintiff ought not to recover. To this last rule there are some exceptions, such as the Statute of Limitations, justification in slander by alleging the truth of the words, and the retaking, on fresh pursuit, of a prisoner escaped,</p> <p>6. Parties—in case of several tort feasors. In the case of several tort feasors, the party injured may, at his election, sue one, or several, or all; and when the suit is against one or some of them, but not against all, the person or persons sued have no right to complain. And so, also, when there is a suit against several tort feasors, the dismissal of the action against one does not bar the action against the others.</p> <p>7. Aoooed and satisfaction—agreement not to sue one of several tort feasors. Where a person who is injured by the negligence of two or more persons receives a sum of money in consideration of his agreement not to sue the party paying,—not in satisfaction of the damages, but only in part payment of the same,—the transaction will not amount to an accord and satisfaction, and will be no bar to a suit against the other parties; and the sum paid will go in reduction of the damages recoverable against them.</p> <p>8. Same—with one of several tort feasors. A release to one of several joint tort feasors is a release to all, and an accord and satisfaction with one of them is a bar to an action against the others.</p> <p>9. Covenant not to sue—effect of covenant not to sue a tort feasor. The legal effect of a covenant not to sue is not the same as that of a release. A covenant not to sue a sole tort feasor is, to avoid circuity of action, considered in law a discharge, and a bar to an action against him. But the rule is otherwise when there are two or more tort feasors, and the covenant is with one of them not to sue him. In such case the covenant does not operate as a release of either the covenantee or the other tort feasors, but the former must resort to his suit for breach of the covenant, and the latter can not invoke the covenant as a bar to the action against them.</p>

Dokkance Dibell, Judge, presiding. This was an action brought by Samuel P. Dickson, against the Chicago, Burlington and Quincy Eailroad Company, to recover for an injury alleged to have been received on the 13th day of November, 1888, while the plaintiff was a passenger on one of the defendant’s freight trains going from Sheridan, in LaSalle county, to Chicago, caused by collision of the defendant’s trains at or near Downer’s Grove.

<p>X. Chattel real—defined. Chattels- real are interests which are annexed to or concern real estate, as, a lease for years of land. The duration of the lease is immaterial, provided there be a certainty about it, and a reversion or remainder in some other person.</p> <p>2. Same — mortgaged as real estate. A grain elevator built by a party upon the right of way of a railroad company under a lease for one year, which was subsequently renewed in writing for two years, and which lease provided that the lessor might terminate the same at #ny time, upon sixty days’ notice, and that the lessee might remove the buildings thereon at any time before the lease should expire, where the lessee holds over after the end of the term by the acquiescence of the lessor, is a chattel real; and a mortgage or deed of trust on the same is properly executed and acknowledged as a conveyance of real estate, and the recording of such a mortgage is notice to subse-quent creditors and purchasers.</p> <p>3. Estoppel — when an equitable one arises. An equitable estoppel only arises where there has been a representation concerning a material fact to a party ignorant of the truth of the matter, with an intention it should be acted upon, and it has been acted upon. If the element of fraud is wanting there is no estoppel. If both parties are equally cognizant of the facts, and the declaration or silence of the one produced no change in the conduct of the other, he acting solely upon his’own judgment, there can be no estoppel.</p> <p>4. Same—to deny that property granted is personalty. A party, by taking a deed of trust, which, after describing various tracts of land as the subject of the grant, purports to convey “also the grain elevator and the leased ground upon which it is erected, owned by the grantor, and situate upon the right of way” of a railway company named, and is acknowledged as a chattel mortgage, and entered as such on a justice’s docket, will not thereby be estopped from denying that the elevator is personal property, as against subsequent attaching creditors of the grantor.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. N. J. Pillsbury, Judge, presiding.

<p>1. WniiiS—fund liable for debts and general legacies. In the administration of testate estates the personal property is the primary fund for the payment of debts and general legacies, unless a contrary intention on the part of the testator satisfactorily appears. But such intention need not be shown by express words,—it may be implied from the whole will, taken together.</p> <p>2. Where a testator gives legacies, and so disposes of all his personal property that it can not be made available for the payment of the legacies, it will be presumed that he intended to charge his land with the payment of the legacies, as a different rule would attribute to him a purpose to make a gift in appearance and not in reality.</p> <p>3. A testator devised to his wife certain real estate and all his personal property of every description, after which he gave his niece $3000. He then devised certain other land to charitable associations, and by a residuary clause devised “all the rest, residue and remainder of all my (his) real estate, without any exception, tb” certain relatives named: Held, that the devise to his niece was a charge upon and payable out of the residuary devise, although it was of realty.</p> <p>4. Same—bequest of personal estate—whether liable for payment of legacy. While it is true that a bequest of all the testator’s personal estate is ordinarily treated as a"general legacy, yet when an intention to give it, discharged of its primary liability for debts and general legacies, clearly appears, it must be treated as a special bequest, and exonerated accordingly.</p> <p>5. The express gift of all of the testator’s personal estate to his wife is in effect the expression of an intention that no one else shall have it, or any part of it; and unless a legacy given in another clause of the' will is to be paid out of residuary property, it must abate, and the intention of the testator must be defeated.</p> <p>6. Same—rule of construction to give effect to intention. It is an elementary rule in the construction of wills, that effect must be given to the intention of the testator, if it can be done consistently with the rules of law. So a special bequest will not be allowed to abate, unless, by no fair interpretation of the entire testamentary devise, can it be ascertained from what part of his estate the testator intended it should be paid.</p>

<p>1. Appeals—reviewing questions of fact. Whether the evidence fails to show that the defendant was guilty of negligence, or shows the want of ordinary care and such contributory negligence on the part of the plaintiffs intestate as will preclude a recovery of damages on account of his death, are questions of fact, which are conclusively settled in favor of the plaintiff by the judgments of the trial and Appellate Courts finding for the plaintiff.</p> <p>2. Same—question of sufficiency of the evidence — how raised in this court. Where the defendant, at the close of the plaintiff’s case, enters a motion to exclude the evidence and to instruct the jury to find for him, if he, on the denial of his motion, introduces evidence to overcome the case made by the plaintiff, and fails, after the close of the evidence on both sides, to renew such motion, this court will not, on appeal or error, be required to pass upon the question whether the evidence is sufficient to establish a cause of action or justify a recovery by the plaintiff.</p> <p>3. Same—assignment of errors—must be on some ruling, and not on reasons given by Appellate Court. Assignments of error made in this court, not based on the judgments of either the circuit or Appellate Courts, or any ruling made by either court, but which are predicated upon the reasons given in the latter court for the affirmance, are not authorized, and can not be considered.</p> <p>4. Practice — exceptions to instructions must be taTten on tr\al. At the close of the evidence in an action against two defendants, the court, on motion of one of the defendants, instructed the jury to find in his favor. The other defendant failed to object to the instruction, or to except to the action of the court in giving the same: Held, that on appeal he could not be heard to complain of such instruction.</p> <p>5. Instructions—when properly refused. Where the legal principle incorporated in an instruction refused is fully and fairly stated in other instructions given, and there is no evidence fairly tending to prove the facts on which the instruction is based, and it assumes that certain acts ■constitute negligence per se, such instruction is properly refused.</p> <p>6. Negligence — contributory—one suddenly placed in a position of peril. Where a person is involuntarily, through the fault or negligence of the defendant, placed in a situation of apparent peril to life or limb, and by reason thereof is confronted with sudden danger, then the law does not require of him the same degree of care and caution that it does of a person who has ample opportunity for the full exercise of his judgment and reasoning faculties.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. Ebbdinand Bookwalteb, Judge, presiding.</p>

Writ oe Error to 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.

A. K. Vichees, Judge, presiding. This is a petition for a mandamus, filed on April 17,1891, in the Circuit Court of Alexander County in the name of the People by the State’s Attorney of that County, against the Illinois Central Eailroad Company to compel that company to cause all of its regular passenger trains coming into the city of Cairo to be brought down to the passenger station at the intersection of Second and Ohio Levee streets in that city, and there stopped a…

<p>1. "Wills—execution of power of sale by executors of a foreign will— statute construed. Section 34 of tbe act concerning conveyances, providing for tbe recording of foreign wills wben properly certified, and which further provides that “wben, in pursuance of due power vested by will executed and proved out of tbis State, deeds conveying lands in tbis State heretofore have been or hereafter shall be executed by executors or administrators with the will annexed, duly appointed and qualified in any State of the United States, the same shall be evidence of title in the vendee or grantee to the same extent as was vested in the testator at the time of his death, whether such will has been proved in this State or not, unless, at the time of executing such deed, letters testamentary or of administration upon the estate of the deceased have been granted in this State and remain unrevoked,” applies in cases where the trustees and exeeutors are natural persons, and not where one of the executors so executing a deed under a power is a foreign corporation which has failed to take out license and qualify according to the laws of this State. Such foreign corporations are subject to all the restrictions and duties that are imposed upon like corporations organized under the laws of this State.</p> <p>2. Same—rule of construction. The construction that is to be placed upon any particular clause in a will depends more or less upon the plan or scope of the will as a whole.</p> <p>3. Same—interpretation — resort to paper not attested as a will. A memorandum in the handwriting of a testator, found in his papers, not signed and attested as required by the Statute of Wills, can not be received or regarded for the purpose of changing or interpreting his will. In case of a supposed ambiguity appearing upon the face of a will, parol evidence is not admissible to supply or contradict, or enlarge or vary, the words of the will, or to explain the intentions of the testator.</p> <p>4. Same—whether particular lands are excepted from power of sale. By item 18 of a will the testator devised all the residue and remainder of his estate, both real and personal, to his trustee and executors in trust, to hold the same, and as soon as practicable convert it into money, and pay over to a hospital a given sum, and pay over the balance of his residuary estate, after deducting special bequests, to five persons designated therein. In item 19 he gave to the trustee and executors power to sell and dispose of all or any of his real estate within the States of Pennsylvania, Ohio, Kentucky and Illinois, not speeific"ally devised, at public or private sale, and to execute deeds therefor, and also gave them power in the meantime, and before sale, to lease such real estate, adding that it was his wish that as soon as it might be for the best interest of the estate, his trustee and executors should convert his unproductive real estate into money, excepting those parts before specially devised, and also excepting such portions as, in the opinion of his executors, would be likely to enhance in value in the near future, and also excepting an eight acre tract in Pittsburg for a hospital, and his real estate in and adjoining the city of Chicago : Held, that the exceptions were not intended to take from under the power to sell all the residuary estate which his executors might think likely to enhance in value in the near future, nor'the land adjoining the city of Chicago.</p> <p>5. Same—construed as to property to he sold. Where a testator, after making various specific legacies, devised all the residue of his estate to a trustee and three executors, in trust, to hold the same, and as soon as practicable convert it in into money and pay the special bequests and the balance to five devisees, and gave them power to sell and convey any and all his lands in certain States, not specifically devised, at public or private sale, for cash or on credit, including a tract in this State, and to rent the same before such sale, and directed that they should, as soon as might be for the best interest of his estate, convert his unproductive real estate into money, excepting the portions spedaily devised and such parts thereof as in 'their opinion would be likely in the near future to enhance in value, and except the land in Illinois : Held, that 'the effect of the exception was, that both the reaL estate in regard to which the trustee and executors might be of the opinion would enhance in value in the near future, and the Illinois tract, were to be excluded from the direction of immediate conversion, but that there was a distinction between the two kinds of property, as the sale of the first was left to the discretion of the trustee and executors, to determine whether it should be sold at once, or, if not, then when it should be sold, while in respect to the Illinois land the testator had himself determined that it should not be sold immediately, and that as it was not left to the discretion of the executors to determine when and upon what contingency or under what circumstances it might be sold and conveyed under the power, a decree of a court of equity was necessary in order to work a valid sale and conveyance.</p> <p>6. Power under wild—execution by surviving executor. Section 97 of chapter 3 of the Eevised Statutes, relating to the execution of powers *of sale in a will, manifestly contemplates the execution of the power by a surviving executor or by surviving executors in two contingencies, only, viz., when one or more executors depart this life before sale, and when one or more executors shall fail or refuse to qualify. Where neither of the executors dies or refuses to qualify, all must join in the execution of the power.</p> <p>7. Same—joint powers conferred by will — when all the donees of the power must act. Where a testator, devises land to a trustee and executor, and to three others as co-executors, with power to sell and convert the land into money, and they all qualify by taking letters testamentary, such power is vested in them jointly, and not severally, and can not be legally exercised or well executed except by the joint action of the four executors.</p> <p>8. The powers vested in trustees must be executed strictly, and when a trust or power is delegated to two or more jointly, for mere private purposes, the concurrence of all who are intrusted with the power is necessary to its due execution; and this rule applies as well to trusts coupled with an interest as to cases of mere naked powers. So when power to sell land is conferred by will upon several executors, all who qualify and are living must join in the execution.</p> <p>9. One of several executors to a will can not exercise a power of sale under it, unless it is shown that the others refused to act; and such refusal must be shown positively and affirmatively, and some unequivocal manifestation by the executors named must be given, in order to divest themselves of the rights, duties and powers conferred, not by the law, ■but by the act and will of the testator.</p> <p>10. Where the power to sell and dispose of real estate, and to execute deeds of conveyance therefor, and to convert the same into money, has been delegated by will to four executors, jointly, one of whom is a foreign corporation, and they all accept the trust and qualify as executors, a deed made by the three, only, of the executors who are natural persons, the other not being authorized to act, under our.laws, by reason of its having failed to comply with such laws, will not be a good execution of the power, and no title will pass by it, it appearing that the other trustee, the corporation, still exists, and has not resigned or been removed from office.</p> <p>11. Same—-title, how obtained under such power. In such case, in order to convey a good title to land in this State, the trustee and executor which is a foreign corporation must either procure from the Auditor of Public Accounts a certificate of authority stating that it has complied with the requirements of the statute of this State, and then join with its co-executors in the execution of a deed of conveyance, or else in some proper way shake off the trust, and absolutely divest itself of the title, discretion and power that the will gives it in respect to the land in this State, thus leaving the co-executors in a position, as surviving executors, where they can lawfully act in the premises.</p> <p>12. Cobeobation—foreign corporation placed on same footing as domestic. Where the general laws of this State provide for the organization of corporations, foreign corporations of like character doing business in this State shall exercise no greater or different powers, and shall be subject to the same restrictions, liabilities and duties.</p> <p>13. Same—what is the doing of business in this State. A foreign corporation, by receiving land in this State by devise, with power to sell and dispose of the same, and with power to lease it and to collect the rents and profits therefrom, and the assertion in this State of ownership of such land, and assuming to sell and convey it, and bringing suit in the courts of this State in respect to such land and such alleged ownership, and for the enforcement of contracts in regard to the same, must be held to be doing business in this State, within the meaning of section 26 of the act concerning corporations.</p> <p>14. Pabties—to bill requiring construction of will. The heirs of the testator are not necessary parties to a bill filed for the construction of a will as to the residuary estate, when, after special bequests, all the residue of the estate is given to certain devisees, but the latter are necessary parties.</p>

<p>1. Instbuotion—need not be repeated. It is not error to refuse instructions when all the legal principles stated therein are sufficiently expressed in the instructions given by the court on its own motion and at the instance of the party complaining.</p> <p>2. Evidence—of persons, not experts, to show general state of health and physical condition. Eelatives, neighbors and acquaintances of one are competent to testify to his state of health, hearing, eye-sight and ability to work and walk, and to use his arms and legs naturally and without trouble, during a given past period of time, even though they are not scientific experts in matters relating to the human anatomy. They are competent to testify as to what they know from their own personal observations, and so it is not error to allow witnesses not experts to testify that immediately after an accident the plaintiff was unconscious, and was so, off and on, and most of the time, for three weeks thereafter.</p> <p>3. Same—error in sustaining objection to question—cured by answer. Where questions to which objections have been improperly sustained are substantially answered in response to other interrogatories, the error is rendered harmless, as no substantial injury is inflicted.</p> <p>4. Same—proper answers to objectionable interrogatories. Although a question objected to may be technically inaccurate, yet if the answer elicited is competent and proper evidence, the error in the question will not call for a reversal.</p> <p>5. Practice—latitude in examination of witnesses. In the examination of witnesses much latitude must be allowed in the sound discretion of the trial court, and courts of review will not interfere unless it is manifest that.such discretion has been abused and injustice done to the rights of a party litigant.</p> <p>6. Same—remarks of counsel. On the trial of a case many things were said by plaintiff’s counsel discourteous to opposite counsel and the court, and some statements were made in the hearing of the jury which were improper; but the court frequently admonished the jury to disregard remarks made by counsel, and at the close of the trial, in an instruction given of its own motion, told the jury that any comment made by counsel for either side, not supported by the evidence, should have no influence on their minds. It also appeared that defendant’s counsel were not faultless in their bearing : Held, that the remarks of counsel did not require a reversal of a judgment for the plaintiff.</p> <p>7. SAME'—directing what the verdict shall be. Where the defendant, at the close of the plaintiff’s evidence, moves the court to instruct the jury to find for the defendant, as in case of a non-suit, and upon refusal of the motion introduces evidence to overcome the case made by the plaintiff, and after the close of all the testimony fails to renew his motion or ask that the evidence may be excluded from the jury, the question whether the evidence, as matter of law, establishes a right of action will not arise on the record, as plaintiff’s case may be strengthened by the evidence of the defendant and that of the plaintiff in rebuttal.</p> <p>8. Pbaotioe in the Supreme Court—briefs should show grounds of objection. The briefs of counsel are required by a rule of court to contain a short, clear statement of the points, and the authorities in support thereof. When the grounds of objection to the rulings of the trial court are not so stated in the briefs, this court may properly decline to consider such objections.</p> <p>9. Same—error will not always reverse. Although proper questions to a witness may be disallowed and proper ones allowed, yet if no competent and material evidence is excluded from the jury and no competent evidence that could materially affect the result is admitted, the judgment will not be reversed. Trivial errors committed on the trial will not wort a reversal.</p>

<p>1. Evidence—of the order in which introduced. The order in which a party shall offer his evidence is for his counsel .to determine, unless it is made to appear to the court that some undue advantage of the opposite party is thereby attempted.</p> <p>2. Negligence—leaving hole in sidewalk—defense that city is liable. In an action against the owner of a building in a city for a personal injury, caused by a defective sidewalk in front of his premises, by leaving a hole therein in an unsafe condition, the fact that the city may be liable to the plaintiff for the injury is no defense. In such case, if a recovery was had against the city, the defendant would be liable over to the city.</p> <p>3. Practice in Supreme Court—points not urged in the Appellate Court. After the appellee has filed his brief in this court in an appeal from the Appellate Court, the appellant can not, by filing a supplemental brief, have this court consider and determine matters not presented to the Appellate Court, and to which the appellee has had no chance to reply.</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. This is an action of assumpsit, begun on January 3, 1890, in the Superior Court of Cook County, by the Union National Bank of Chicago against The Manistee Lumber Company, The State Lumber Company of Michigan, William Wente and B. B. Blacker.

<p>1. Attorney at law—lien for fees earned. In this State, in the absence of an express contract out of which an equitable assignment arises, an attorney at law has no lien for his compensation upon the judgment or decree rendered in a suit prosecuted by him, or upon the real estate, moneys, fund or other property recovered by means of his legal services and skill.</p> <p>2. Equitable assignment — what constitutes. An equitable assignment is such an assignment as gives the assignee a title which, though not cognizable at law, a court of equity will recognize and protect. There must be an actual appropriation of the fund, or of some designated part, proportion or per cent of it, to operate as an equitable assignment.</p> <p>3. An agreement of a party to pay his attorney and counsel a reasonable compensation for his legal services out of the proceeds of the litigation, is one depending upon the mere personal responsibility of the employér, and creates no equitable lien in favor of the attorney. Such a case differs from one where there is a fund in charge of a chancery court which is administering on such fund.</p> <p>4. Chancery jurisdiction—remedy at law. Where parties agree to pay their solicitor or attorney a reasonable compensation for his legal services, and promise to pay it out of the sum realized from the litigation, the question of what is a reasonable compensation is purely a question of fact, upon which the clients have a constitutional right to take the verdict of a jury, and the attorney’s only remedy is in an action at law for a breach of the promise to pay.</p>

<p>1. Attorney at law—amount of compensation where the same is not fixed by contract. If the amount of compensation be not fixed by the terms of the contract by which an attorney or solicitor was employed, he will be entitled to be paid such reasonable fees as have been usually paid to others for similar services. In such case there will be a contract implied by the law, which will entitle him to recover such reasonable compensation as his services may be worth.</p> <p>2. Same—contracts with client—before and after retainer. Before an attorney undertakes his client’s business he may contract with reference to his services and compensation therefor, for the reason no confidential relation exists, and the parties deal with each other at arm’s length. The same is true in regard to dealings which take place after the relation has been dissolved.</p> <p>3. Same—contracts with client voidable. Where the title to property is so involved in litigation that the ownership thereof depends upon the decision as to such title, a contract made during the pendency of the litigation, to compensate the attorney for his legal services with a part of the property involved therein, is voidable at the election of the client, irrespective of the fairness or unfairness of the contract, if such ©lection is exercised within a reasonable time.</p> <p>4. Same—purchase by—presumption against the validity of the transaction. In the case of a purchase of the subject matter of the litigation, or of a part thereof, by an attorney from his client, the transaction is presumptively fraudulent, and the burden is on the former to show affirmatively the utmost good faith, the absence of undue influence, a fair price, knowledge, intention and freedom of action by the client, and also that he gave the client full information and disinterested advice.</p> <p>5. Same—validity of client’s deed—pending the litigation. Where an attorney employed to manage a litigation without any express contract as to his compensation, pending such litigation procures an agreement of his client to give him half of the property in dispute, and afterward a deed in execution of the agreement, whereby the attorney secures a larger compensation for his legal services than such services are really worth, the client may, by bill filed within a reasonable time, have the deed set aside.</p> <p>6. Evidence—to show value of real estate. To prove the value of city lots, actual sales of similar property in the vicinity and near the time of the inquiry are competent evidence as far as they go. But while such sales may be the most satisfactory evidence of value, yet they are only one of the modes, and not the only one. Purchases made in 1879 are not an exact criterion of values of 1884 in the same vicinity.</p> <p>7. ' Laches — in filing hill to set aside deed for land. Where a client, during the relation of client and attorney, conveys to the latter a part of the property in a litigation which proves successful, in payment of legal services, and where the client has knowledge that the part conveyed is of greater value than the services of the attorney, a delay of six years and eleven months in filing a bill to set the deed aside will be such laches as to bar the suit.</p> <p>8. A party entitled to set aside his deed on equitable grounds can not be charged with delay, or with acquiescence or confirmation, unless there has been full knowledge of all the facts and perfect freedom of action. Acts which might appear to be acts of acquiescence will not be held such if the cestui que trust is ignorant of the facts, or under the control of the original influence, or otherwise so situated as not to be free to assert his rights.</p>

<p>1. Appeals and writs op eeeob—remandment by Appellate Court. Where a judgment is reversed by the Appellate Court on account of an erroneous ruling on any question of law that arose on the trial, the cause should be remanded for a new trial.</p> <p>2. Same — recital of finding of fads by Appellate Court. But where the Appellate Court reverses a judgment on the ground that the evideuce does not sustain the same, it is required by the statute to recite in its final order, judgment or decree the facts as found by it, and such finding is made final and conclusive.</p> <p>3. Same— finding of facts by Appellate Court—remandment—former decision overruled. Where the Appellate Court finds the facts, either wholly or in j>arfc, different from the trial court, and enters judgment of reversal, and does not incorporate such finding in its final judgment, and it- fails to remand the cause, this court, on appeal, will remand the cause to the Appellate Court, with directions to that court either to> remand the same to the trial court, or incorporate in its final judgment a finding of the facts. ’ The case of Thomas v. Fame Ins. Co. 108 Ill. 95, holding differently from this case, is overruled.</p>

<p>1. Chancery—when motion to dismiss bill is proper. Under the chancery practice of this State a motion to dismiss a bill may be properly made by the defendant whenever he denies the right of the complainant to file it, as, where a bill of review has been filed without leave of the court; or the motion maybe based upon the failure of the complainant to comply with some order of the court made after the bill has been filed, as, the failure to give bond for costs. The motion may also be made on the ground that there is no equity apparent upon the face of the bill, or that the court has no jurisdiction. In such cases the motion is treated as a general demurrer.</p> <p>2. Same—dismissal of bill on motion. A bill will never be dismissed upon motion, for want of equity, unless it is clear that no amendment will help it. This is a necessary result of treating the motion as a demurrer.</p> <p>3. A motion to dismiss a bill on the ground no equity appears on its face, must be held to admit all the facts well pleaded by the bill.</p> <p>i. Same—bill bp infant to impeach decree. It is the well settled law of this State that an infant who has been wronged by a decree of a court of chancery can maintain an original bill for relief. Unlifce an adult, he may question such decree without applying for a rehearing or filing a bill of review. This right may be exercised at any time by the infant before he attains his majority, or afterward, within the time in which he could successfully prosecute a writ of error to reverse the erroneous decree.</p>

<p>1. Cahokia VmnAGE —power to hold lands. By virtue of an act of Congress, the inhabitants of Cahokia village were, as a community, by implication, constituted an artificial or corporate body for the purposes of receiving and holding the lands donated, for the benefit of the community as a body of people, but for no other purpose. But the act of Congress did not necessarily clothe that body with power to convey or otherwise dispose of such lands, and it was competent for the legislature to authorize them to make such disposition.</p> <p>2. Same—power of supervisor to survey and lease lands therein. By the act of 1841 the supervisor of Cahokia was authorized to cause the commons to be surveyed and platted, and to lease the lots at public auction to the highest bidder, and l5y the amendatory act of 1857 he was authorized to lease at private sale. The term for which the lease might extend, in either case, is limited to ninety-nine years, and according to the well-settled rule of law this authorizes leases in possession, and not in reversion or in futuro.</p> <p>3. A lease by the supervisor of Cahokia village for ninety-nine years, in strict accordance with the law, will be good, and any subsequent lease by the supervisor, so far as it affects the prior lease, or any part of the land covered thereby, is wholly unwarrantable and absolutely void. By a former decision of this court this ruling has become a rule of property.</p> <p>4. Same— lease of lands — burden of showing validity of lease. The respective powers of the village of Cahokia to lease and convey, are purely statutory powers; and the rule in such cases is, that those who> claim by virtue of the execution of such powers must affirmatively show that they were executed as the statute enacts they shall be. What the statute says can be done, and that only, may be done, and in the manner that it directs.</p> <p>5. Same—right of lessee to purchase the fee — a properly right. By section 5 of the act of March 21, 1874. persons holding any portion of such title by existing leases had the right to acquire the fee simple title thereto by paying a sum which, at three per cent per annum, will produce annually a sum equal to the rent due yearly under the lease proposed to be extinguished by the purchaser. This is such a property right that the lessee can not be divested of it, without his consent, by any act of the village, or any one representing it, nor can it in anywise be encumbered, or abridged by a subsequent lease.</p> <p>6. Accretions—to lots leased, bounded on the west by the Mississippi river—who entitled to. Alease of lots which are described therein as “bounded on the west by the present bank of the Mississippi river,” etc., will include the accretions formed on the west ends of such lots.</p> <p>7. Estoppel—of grantee by acts of grantor. The privies of a grantor who is estopped are not estopped if they are subsequent purchasers for value and have no notice that he is estopped. So the fact that the holder of a lease for lots whose west ends were bounded by the Mississippi river, so that he was entitled to the accretions to the west ends thereof, may have, while in possession thereof, actively participated in procuring a plat of the accretions as separate lots, will notestop his grantee for value, and without notice of such acts, from claiming the accretions, as against another claiming the same but who was not in possession.</p> <p>8. Bill to remove cloud—essential allegation in. An allegation in a bill to remove a cloud from the title to land, that the complainant is in possession, or that the premises are vacant and unoccupied, is essential to give the court jurisdiction.</p> <p>9. Appeal — to Supreme Court direct — when freehold is involved. Where the decision upon a bill to set aside a deed as a cloud upon title must either give or deny to the defendants a title in fee, a freehold is involved, and an appeal lies directly from the trial court to this court. Thus, where the defendants claim the fee to so much of certain lots as falls within the deeds under which they claim, and such deeds are set aside as clouds on the complainants’ title, a freehold will be involved.</p> <p>10. Chancery pbaotioe—preserving evidence to sustain the decree. Where the decree fails to find the facts upon which it is founded, the complainant can only sustain his decree by preserving the evidence on which it is based, in the record, and on an appeal or writ of error, if he has failed to do so, the decree' will be reversed.</p> <p>11. Where a material allegation in a bill is not supported either by the finding of the court in its decree or evidence preserved in the record, the decree can not be upheld, and it will be reversed.</p> <p>12. Practice in Supreme Court — motion to strike evidence from record. This court will not pass upon a motion to strike from the record certain evidence as improperly included therein, when it appears that the court below decided correctly, even if that evidence be regarded as not properly included in the record.</p>

<p>1. Jury—when clerk may draw jurors to fill regular panel. If, for any reason, during tbe term, tbe regular panel of jurors shall not be full, the clerk may draw as many jurors as the court may direct to fill the panel, and the jurors so drawn are required to be summoned. When the regular panel is full, but is exhausted by challenges in a case on trial, the clerk is not authorized by the statute to draw jurors from which to complete the jury in the case. In such case it, is the duty of the court to direct the sheriff to summon a sufficient number of persons having the qualifications of jurors, to fill the panel for the trial of the pending cause.</p> <p>2. Same—irregularity in selecting—when no reversible error. On the trial of one for murder, after the regular panel ol' jurors was exhausted, the court ordered the clerk to draw one hundred jurors from whom to fill the trial panel, instead of directing the sheriff to summon a sufficient number of persons to fill such panel: Held, as no prejudice to the defendant was shown to result from the mode of selecting the jurors, the irregularity was not such an error as to require a reversal of the judgment of conviction.</p> <p>3. Evidence—competency of medical expert. A licensed, practicing physician who is shown to be a graduate of a regular medical college, and to have practiced his profession for many years, is competent to give his opinion, upon an hypothetical question setting forth the symptoms of a person immediately prior to his death, whether the death was from the effects of arsenical poison, although he may not be shown to have had any case of such imisoning. A medical witness, in giving his opinion as an expert, is not confined to opinions derived from his own observation and experience, but may give an opinion based upon information derived from medical books.</p> <p>4. Same—admission of improper evidence — when no ground of reversal. Where there is ample proper evidence to establish a fact, the admission of improper evidence which is merely cumulative and which works no harm is not sufficient ground for a reversal.</p> <p>5. Same—letters and papers of a party unlawfully obtained. Although letters or papers may be unlawfully, and by artifice and deceit, obtained by a detective from the possession of a party charged with crime, this will afford no valid objection to their admissibility in evidence against him, if they are otherwise competent and pertinent.</p> <p>6. Same — hearsay — declarations of a deceased person. On the trial of a wife and her paramour for the murder of her husband by administering to him poison, declarations of the deceased made at different times within a year before his death, and prior to his last sickness, that he intended to take his own life, not accompanied by an act of the deceased which they might explain, being mere hearsay, are not admissible on the part of the defense.</p> <p>7. Same—offer of vial and box embraces contents. Where a vial and box containing poison are offered in evidence and admitted, the manifest object of offering them in evidence being to get the contents to the jury, an instruction to the jury not to consider the contents is prop.erly refused.</p> <p>8. Former decisions—as to the credibility of party as a witness in a criminal case. The case of Purdy v. People, 140 Ill. 46, in passing upon the rule for testing the credibility of a defendant in a criminal case when he becomes a witness in his own behalf, was not intended to overrule the cases of Hirsahmanv. People, 101 Ill. 568, and Rider v. People, 110 id. 11, and there is no conflict in the Purdy case and the others named.</p> <p>9. Practice — remarks of counsel in closing argument. On a trial of two persons for murder, committed by poison, the State’s attorney, in his closing argument, told the jury that they had frequently heard it said, and perhaps so said themselves, that crime goes unpunished in this country, and called their attention to other poisoning cases in the same city, and said that the defendants thought they could “repeat that operationthat they could remove the deceased by arsenic just as those other persons had done; that you can not convict in such cases; that they thought they could get the deceased buried before any one could discover what was the matter with him, etc.: Held, that the remarks were not such as to call for a reversal of a judgment of conviction.</p> <p>10. In such a case, the State’s attorney has the right to call upon the jury to sustain the laws, and if it is a matter of notoriety in the community that crime had gone unpunished, he may properly speak of that fact. As a general rule, the argument to the jury should be confined to the evidence, but by way of illustration known facts may be referred to in argument.</p> <p>11. Instructions—calling attention to a part of the evidence. On the trial of a wife and her paramour for poisoning her husband, it appeared in the evidence that the defendants, for several years before, had been guilty of adultery. The court instructed the jury that the evidence of adultery was admissible, not for the mere purpose of proving that the man had been guilty of adultery with the wife of deceased, but such proof was admissible on the question of motive: Held, that the instruction did not improperly call the attention of the jury to a particular part of the evidence.</p> <p>12. Same— abstract proposition—no evidence to call for it. On the trial of a man and woman for the murder of the woman’s husband, an instruction as to the law relating to principal and accessory, not objectionable. as an abstract proposition of law, may be properly given where there is evidence which might lead the jury to believe that one of the defendants administered the poison to the deceased, and the other stood by aiding and encouraging the act.</p> <p>13. Criminal law—instruction as to reasonable doubt. On the trial of a criminal case it is not error to instruct the jury that it is not necessary to prove each link in the chain of circumstances relied on, or every fact in the case, beyond a reasonable doubt, but it is sufficient if, taking the evidence as a whole, they are satisfied, beyond a reasonable doubt, of the defendant’s guilt.</p> <p>14. Witness—credibility of party as witness in criminal case. Where the defendants in a criminal case become witnesses in their own behalf, it is proper to instruct the jury that they become the same as other witnesses, and their credibility is to be tested by and subjected to the same tests as are legally applied to any other witnesses, and that in determining the degree of credibility to be accorded to their testimony the jury have the right to take into consideration the fact that they are interested in the result of the prosecution, as well as°their demeanor and conduct upon the witness stand, and the jury are to take into consideration the fact, if such is the fact, that they have been contradicted by other witnesses.</p> <p>15. Same—impeachment—instruction. Where the defendants in a criminal case testify in their own behalf, it is not error to instruct the jury, that if, after considering all the evidence in the case, they find that the accused have willfully and corruptly testified falsely to any fact material to the issue in the cause they have the right to disregard their testimony, excepting in so far as it is corroborated by other eredble evidence or facts and circumstances proven in evidence in the case.</p>

Henry M. Shepard, Judge, presiding. On the 7th day of February, 1888, Ernest A. Schoyer filed his bill in chancery, in the Superior Court of Cook county, against Ferdinand Hoffmeyer, alleging that the complainant and defendant had for several years been engaged as copartners in the business of buying and selling tea, coffee and other merchandise at wholesale, under the firm name of E. A. Schoyer & Co., said business having been carried on by them partly on their own account…

<p>1. Partnership—burden of proof. The burden of proving the existence of a partnership devolves upon the party alleging the same, when it is denied.</p> <p>2. Same — whether partners or tenants in common. An agreement between two persons to purchase a tract of land and erect buildings thereon for their joint benefit does not necessarily, give rise to the presumption that they are partners. As such transaction is equally consistent with the relation of tenants in common, the parties thereto may or may not be held to be partners, depending, as between themselves, upon their intention, legally ascertained.</p> <p>3. Where land is bought by two persons, taking the title in the name of one, who is to advance the entire purchase money, the other to devote his services as an architect in the erection of buildings thereon, and the first to borrow money on the property with which to pay the price and cost of the buildings, and it is agreed that the grantee shall hold the title for them jointly until the buildings are completed, and then convey the undivided half thereof to the other, subject to the incumbrauce thereon, this, in the absence of proof of any other or inconsistent intention, will fail to show the existence of a partnership as to the enterprise.</p> <p>4. Resulting tbust— when it arises. It is well established that no parol agreement, and no payments, whenever made, will create a resulting trust, unless the transaction is such, at the moment the title passes, that a trust will result from the transaction itself. But while a parol agreement will not aid or extend the trust, it will not prevent one from resulting, if the facts are present that produce the implication of law from which it arises.</p> <p>5. Same—created by payment by one—and title in another. Where the trust is claimed to have resulted from the payment by one and the taking of the title in another, it must be clearly shown that the money of the cestui que trust entered into the consideration for the purchase, and if the trust is asserted to attach to less than the whole, it must appear that the sum contributed was for some aliquot share or part of the estate. General contribution toward the purchase is not sufficient.</p> <p>6. While the trust results from the acts of the parties, and not by contract, it is proper to say that it arises from the acts, accompanied by proof of the intention in making the payment, which may be shown by proof of the agreement under which it is made.</p> <p>7. The principle upon which the rule is based is, that the beneficial estate follows the consideration and attaches to the party from whom it comes, and is founded on the natural presumption that he who supplies the purchase money intends the purchase for his.own benefit and not for a stranger, and that the conveyance is taken as a matter of convenience to the purchaser. It attaches because the party claiming the beneficial interest has actually paid the consideration from his own funds, or from funds for which he is absolutely liable.</p> <p>8. Same—not created by contract. A and B bought real estate, taking the title in the name of B, who was to pay the purchase money and the cost of erecting buildings thereon, and A was to devote his services as architect in superintending the work. B raised all the money by his own mortgage upon the property: Held, that no resulting trust was created in favor of A as to one-half of the land or any other part thereof, as none of his money was used by B. Such case is clearly distinguishable from that class of eases where the lender of money for the purchase of land takes title in his own name as security for its repayment. In such eases the money is treated as the money of the borrower.</p> <p>9. Same—degree of proof to establish. And the rule is uniform that in all cases where a resulting trust is sought to be established and enforced, the trust must be clearly proved, and the facts set forth out of which the trust is claimed to arise must be proved with clearness and certainty.</p>

<p>1. Tax title—parties to be served with notice of sale. The owners or parties interested, in land sold for taxes, who are entitled to notice of the tax sale under article 9, section 5, of the constitution, and section 216 of the Revenue act, are those who are such at the time the notice is served or published ; and the affidavit of the service of such notice must show that the persons served were the “owners or parties interested” at that time.</p> <p>2. Neither the constitution nor the statute contemplates the service of notice upon persons who have ceased to be owners or parties interested in the land at the time-of the service. Purchasers and persons otherwise acquiring rights in the land sold for taxes after the giving of such notice, occupy the position of purchasers pendente lite.</p> <p>3. An affidavit made to entitle the party to a deed for iand sold for taxes is fatally defective if it fails to show service of the notice of sale upon those interested at the time of giving the notice.</p> <p>4. Same—occupants entitled to notice of sale for taxes. The constitution, in requiring that occupants shall in all cases be served with personal notice before the time of redemption from a tax sale expires, and the statute to the same effect, refer to such persons as are occupants at the time of the service of the notice.</p> <p>5. An affidavit showing notice of a tax sale, and when the time of redemption will expire, which states that the service of the notice was upon the persons interested in and occupying the land when it was sold, is fatally defective, and a tax deed based on such an affidavit will be void.</p> <p>6. Same—who may not acquire tax title—agent. A party while employed as an agent of the owner of land, or of a mortgage thereon, to have the mortgage foreclosed and to pay taxes and collect the rents thereon, can not, by allowing the land to be sold for taxes, acquire a tax title on the same. Whatever interest he thereby acquires will be held by him in trust for his principal.</p> <p>7. Same—defects therein—notice to purchasers. A party holding under the grantee in a tax deed, either by purchase or mortgage, can not be regarded as a bona fide purchaser without notice of defects in the tax title. He will take the tax title subject to its existing infirmities.</p> <p>8. Names—whether the doctrine of idem sonans applies. A person who served a notice of a tax sale, made his affidavit, in which he described the person served, as “Fred Meyers,” but failed therein to show that Fred Meyers was in possession, etc., at the time of the service. An affidavit of another person who did not make the service was made; in which the person served as in possession was described as “Fred Meyer,” and there was no statement in the affidavit that Fred Meyer and Fred Meyers were the same person : Held, that the latter affidavit could not cure defects in the former. The doctrine of idem sonans could not be made to apply to two such distinct names.</p>

<p>1. Municipal corbobation— effect of annexation. Under the Annexation act of 1889, when a town is annexed to a city, as therein provided, the jurisdiction of the city will extend over the territory which had been within the corporate limits of the town, and the latter will cease to exist as a municipal corporation capable of exercising corporate powers and functions.</p> <p>2. Same—annexation of town to city —rights continued. Where an incorporated town, after the recovery of a judgment of condemnation of land for a street, becomes annexed to an adjoining city, such judgment may, notwithstanding the annexation, be enforced with like force and effect as though no annexation had taken place.</p> <p>3. Same — enforcing judgment in favor of town after its annexation. By the annexation of a town to a city the former will cease to have corporate officers and agents of its own, and cease to exist as a corporate body having capacity to act; and the enforcement, of a judgment of condemnation, by paying the compensation awarded and taking possession of the land condemned, and opening a public street over the same, can be accomplished at the election and by the act of the city, and not otherwise.</p> <p>4. The statute relating to the annexation of towns and villages to cities, in effect authorizes the city to which the annexation is made, to enforce any judgment obtained for or on behalf of the city, town or village which is subsequently annexed to it, and to use the name of the corporation annexed in so doing.</p> <p>5. As a city to which a town is annexed has the right to avail of a judgment in favor of the town in a proceeding to con'demn a strip of land for a street, it follows that all the obligations and burdens that the judgment imposed upon the town will be shifted to the shoulders of the city,—in other words, the city will stand in the shoes of the town, and the act of the town in obtaining the judgment of condemnation will be regarded as the act of the city.</p> <p>6. Eminent domain—abandonment after judgment of condemnation. A municipal corporation seeking to condemn real estate for public use, may, after the assessment of damages and judgment of condemnation, abandon the enterprise in aid of which the condemnation is sought, and unless, within a reasonable time, the damages are paid and possession taken of the property condemned, the proceeding wiil be regarded as abandoned.</p> <p>7. To relieve a city from the payment of the compensation and damages in a proceeding to condemn land for a street, on the ground of abandonment, there must be an abandonment, in good faith, of the improvement contemplated, or a change of location or route, or an abandonment of the design of taking the particular property involved for public use.</p> <p>8. Same—judgment of condemnation a bar to second proceeding, A municipal corporation can not ignore an assessment of damages made at its instance and a judgment of condemnation of land procured by it, and by the filing of a new petition obtain a re-assessment of ’damages by another jury. A second petition after judgment of condemnation will be dismissed on affidavits showing the prior judgment.</p> <p>9. Same—right to second proceeding to condemn, how contested. If a city seeks a second condemnation of the same land for the same purpose, the right may be contested by a preliminary motion, supported by affidavits, and certified copies of the judgment of condemnation rendered, and of the ordinances upon which such judgment was based. The remedy at law being complete in such ease, a bill in equity to enjoin.the second proceeding will not lie for want of jurisdiction.</p> <p>10. Same—pleadings in condemnation proceedings. In a proceeding by a city for the condemnation of land for a street it is not competent for the defendant to either answer or plead to the petitioner, as the only question that can be tried by the jury is the question of compensation or damages. But the courts are clothed with ample power to prevent any abuse of the right to condemn.</p> <p>11. Chancery jurisdiction—to enjoin condemnation proceeding. A court of equity has no jurisdiction of a bill to enjoin a city or municipal corporation from taking a second proceeding to condemn land for a street, when the lands sought to be condemned and the purposes of the second proceeding are the same as in the first, for the reason that the land owner’s remedy, by motion and affidavits, is ample and complete in the proceeding at law.</p>

<p>1. EbadduiiENT conveyance—burden of proof as to fraud. On bill to set aside a conveyance as having been made to defraud creditors of the grantor, the burden of proof to establish fraud is upon the complainant.</p> <p>2. Same—-fraud may be shown by circumstances. Where nothing appears upon the face of the deed tending to impeach it for fraud as to creditors, the question of its validity must depend upon the circumstances attending its execution, as shown by the testimony of the witnesses.</p> <p>3. Same—earnings of wife of debtor—not liable for his debts. Where a man allowed his wife to receive and collect money for taking boarders, before the act of 1869, or to receive her earnings, it was held, that if this should be regarded as a gift by him to her, no one but a creditor of the husband at the time could complain, and that it was no fraud upon subsequent creditors, so long as such money so received by her was invested by the husband in real estate in her name and for her benefit, before any lien of his creditors had attached to such money.</p> <p>4. A married woman, with her husband’s consent, boarded his father and brothers for a period of twenty-five years, from 1852, for which she received $14,000. which was kept separate for her by the husband, together with $3770 which she received from her mother’s estate. The wife bought real estate, for which the husband paid, out of her money thus acquired, the sum of $6000: Held, that such land was not subject to the payment of a judgment against the husband, and that the wife might make a sale of any part of such land without making the same, or the proceeds thereof, liable to her husband’s creditors, and that a gift of another part by her to a child was no fraud upon such creditors.</p> <p>5. Same—gift of debtor to his wife—presumption. Where a judgment debtor procured an assignment of a certificate of purchase of his land under an execution to be made to his wife, without her knowledge, and the evidence failed to show the consideration on which the assignment was made, it was held, that the consideration would be presumed to have been furnished by the husband out of his own means, and that the assignment was fraudulent as to his creditors.</p> <p>6. Evidence—of party called by his adversary. A party to a bill in chancery who calls the adverse party as a-witness to testify as to the facts can not call in question the credibility of the latter; and that part of his tesimony which makes in favor of such witness must be considered, as well as that against him, and where there is no countervailing testimony it will be taken as true.</p> <p>7. Husband and wife—right of latter to her earnings. By the act of 1869 married women were given the right to receive, use and possess their own earnings, free from the interference of their husbands or their husbands’ creditors. Whatever sum a married woman may realize by keeping boarders subsequent to that act, must be regarded as her earnings.</p> <p>8. Same— earnings of wife prior to act of 1869. The act of 1869 did not entitle a married woman to her earnings; but whether such earnings, and the property into which they were converted, belonged to her husband, and were liable for his debts, must be determined by the rules of the common law, wholly uninfluenced by the provisions of said act.</p> <p>9. Chancery—admission by bill of a clearee. Where a bill in chancery seeking to attack the appointment of a successor of a trustee in a deed of trust, admits the entry by the court of a “pretended decree” in the case, this will amount to an admission of a prima facie decree, and the burden will be on the complainant to show that such decree was invalid.</p> <p>10. Trust deed — burden of proof to impeach sale thereunder. On bill to impeach a sale of land under a power in a deed of trust, on the ground that there is no legal evidence of a decree appointing a successor to make the sale, the burden of showing the invalidity of the sale is upon the complainant.</p>