Volume 145 — Illinois Reports

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

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

<p>Appeal from, the Appellate Courtf or the ThirdDistrict;— heard in that court on appeal from the Circuit Court of Schuyler County; the Hon. Charles J. Scofield, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Vermilion County; the Hon. F. Booicwalter, Judge, presiding.</p>

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

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

<p>Appeal from the Appellate Court for the Third District;— heard in that court on Appeal from the Circuit Court of Fulton County; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>Appeal from the County Court of Jefferson County; the Hon. W. T. Pace, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Massac County; the Hon. E. W. McCartney, Judge, presiding.</p>

<p>1. Specific Performance—inability to perform—a sufficient defense. The owner of the land being desirous of a speedy sale of it, authorized two separate agents to sell the same, and each made contracts for that purpose. The owner conveyed to the prior purchaser, and the other purchaser filed his bill for the specific performance of his contract: Held, that the owner could not be compelled to convey to the complainant, and that the bill was properly dismissed.</p> <p>2. When it is out of the power of the defendant toperform his agreement, such fact necessarily constitutes a sufficient reason why the court should refuse to decree specific performance, that is, to enter a decree which would be nugatory because of the impossibility of its execution.</p> <p>3. And this is the case, although the defendant may have been in a situation to carry out the contract when he entered into it, but afterward deprived himself of the ability to do it by his own voluntary and wrongful act. If, for instance, A, after entering into a valid agreement to sell and convey land to B, should convey it to O, who is a bona fide purchaser for value without notice, A, by depriving himself of the power to fulfil his agreement withB, deprives B of the right to a decree for specific performance.</p> <p>4. And it is equally true, that where the incapacity to perform arises from a conveyance to another party, who, having notice of the complainant’s contract, has the prior right to a conveyance, a decree of specific performance will not be made.</p> <p>5. Same—retaining bill for the assessment of damages. It is well settled that when the defendant’s incapacity to perform the contract, though caused by his own. act, as by his conveyance to a bona fide purchaser, is known to the complainant at the time of bringing suit, the bill will not be retained for the assessment of damages, but will be dismissed, leaving the complainant to his legal remedy.</p>

<p>Appeal from the Circuit Court of Monroe Countv; the Hon. A. S. Wilderman, Judge, presiding.</p>

<p>1. Partnership—to practice law—duty of a partner to account for commissions as executor or administrator. The articles of partnership between two attorneys at law, for the practice of the law, required each member to give his time, talents and strength to the prosecution of the interest of the firm, and that neither should become a candidate for any political office, except by mutual consent, and provided that any omission to keep and perform such agreement should justify a dissolution of the firm. One of the partners, during the existence of the firm, received several sums for commissions, as executor and administrator of estates, and performed the duties of such offices without objection by the other: Held, that the commissions so realized constituted no part of the earnings and profits of the firm.</p> <p>2. In the absence of any agreement to the contrary, fees and commissions received by one member of a law firm for the settlement of estates as executor or administrator, will not constitute partnership assets, for which he is liable to account to the firm. Accepting an appointment as executor or administrator of a deceased person, and acting a,s such, does not, as that term is ordinarily understood, pertain to the practice of the law.</p> <p>3. Same—right of partner to engage in other business. It is a well, settled rule, that a partner will not ordinarily be permitted, for his own profit, to enter into business in competition with his firm. Thus, he cannot, without the consent of his co-partners, embark in a business that will manifestly conflict with the interests of his firm; nor can- he clandestinely use the partnership property or funds in speculating for his own private advantage, without being required to account to his co-partners for the property and funds thus used, and for the profits.</p> <p>4. Same—duty to account for profits—and bear losses. The general rule being that each partner shall devote his time, labor and skill for the benefit of the firm, he can not purchase for his own use, and for the purpose of private speculation and profit, articles in which the firm deals, and if he does so, the profits derived therefrom may be claimed by the co-partners as belonging to the firm. If a partner speculates with the firm’s funds or credit, he must account for the profits, and bear the whole losses of such unlawful adventures.</p> <p>5. If a partner gets into a competing business, depriving the firm of the skill, time and diligence or fidelity he owes to it, he must account to the firm for the profits made in it; and a managing partner will be enjoined from carrying on the same business for his own benefit. But where a partner carries on a business not connected with or competing with that of the firm, his partners will have no right to the profits he thereby makes, even if he has agreed not to carry on any separate business.</p> <p>6. SAME—continuing after expiration of term. Where a partnership business is continued after the expiration of the term fixed by the articles, and no new ones are adopted or new arrangements made, the partnership will be continued subject in all respects to the terms of the articles of partnership, except as to the right of each partner to terminate it at pleasure.</p> <p>7. Practice of Law—does not include execution of trusts. The execution of trusts, as the settlement of estates by executors and administrators, is not a part of the duties peculiarly pertaining to the legal profession, and does not constitute what is ordinarily understood as the practice of law.</p> <p>8. Appeals and Writs of Error—chancery—presumptions in support of the finding of facts. When the evidence in’a chancery suit is conflicting, and the witnesses are examined orally in open court, the finding of the facts by the trial court must, on appeal or error, be accepted as conclusive, unless it clearly appears to be against the weight of the evidence.</p>

G. W. Wall, Judge, presiding. The county of Franklin issued to the Belleville and Eldorado Railroad Company 149 bonds of the county, of the par value of $1,000 each, 49 of which purported to be issued by the county under an act of the general assembly of the State of Illinois, approved November 6, 1849; and 100 of such bonds purporting to be issued by the county under an act of the general assembly of the State, entitled: “Ah act to incorporate the Belleville and Eldorado…

<p>Appeal from the Circuit Court of Greene County; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>Appeal from the Circuit Court of DeWitt County; the Hon. Geo. W. Herdman, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of St. Clair County; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion County ; the Hon. Francis M. Wright, Judge, presiding.</p>

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

Writ of Error to 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 appeal, coming through the Appellate Court, from an order of the Superior Court of Cook county, distributing certain funds in the hands of the sheriff of that county.

Jonas Hutchinson, Judge, presiding. This was an action of debt brought by John Manion, the appellee, in the Superior Court of Cook county, against The Northwestern Brewing Company, on a lease, to recover several installments of rent claimed to be due thereon. To the declaration the defendant pleaded nil debet and several special pleas upon which issue was formed.

<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. Theo. Beentano, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Circuit Court of Cook County; the Hon. B. W. Clifford, Judge, presiding.</p>

Appear from the Appellate Court for the First District; —heard in that court on appeal from the Superior Court of Cook County; the Hon. H. M. Shepard, Judge, presiding. This proceeding was begun in the Superior Court of Cook County by appellee, against appellants, to foreclose a real estate mortgage, and brought to this court by appeal from the Appellate Court for the First District.

S. P. McConnell, Judge, presiding. This was a suit in assumpsit, brought by the Union National Bank of Chicago, against the Louisville, New Albany and Chicago Bailway Company, a corporation existing under the laws of the State of Illinois. To the declaration, which consisted of the common counts, including a count for interest, the defendant pleaded non assumpsit, and two special pleas.

<p>1. Chancery—power to re-docket foreclosure suit and enter new orders. A court of equity has the power to re-docket a suit for the foreclosure of a mortgage as against the parties thereto, and enter such order as may be necessary to execute its decree by the delivery of possession of the premises to the purchaser on his serving a copy of the decree and making proper demand, where no new rights have been acquired by the defendants since the entry of the original decree.</p> <p>2. Writ of Assistance—application for, not anew suit. An application by the purchaser of land sold under a decree of foreclosure, for the writ of assistance to put him in possession of the land, is not the institution of a new suit, but is auxiliary or incidental to the decree previously entered, whereby the rights of the parties have become fixed and determined.</p> <p>3. Same—not ban'ed by forcible entry and detainer suit. A suit of forcible entry and detainer, brought by the purchaser of land at a foreclosure sale for possession, and judgment therein, constitute no bar to an application for a writ of assistance afterward made upon compliance with the decree of the court requiring him to serve on the occupant a copy of the decree, which had not been served at the time of the institution and trial of the forcible detainer suit.</p> <p>4. Judicial Cognizance—as to judges and organisation of courts. The Appellate Court, as well as this court, will take judical notice of who are the judges of the various courts of record of the State, and of their terms of office, and the organization and jurisdiction of such courts. The court of its own motion will advise itself, so as to verify matters of which it is required to take judicial notice.</p> <p>5. Appeals and Writs of Error—leave to file amended record. Leave to file an amended record on suggestion of a diminution of the record, is proper without notice to the opposite party or the issuance of a writ of certiorari. Parties in the Appellate Court, the same as in this court, are bound to take ¡notice of the steps taken in the cause; and when an amended record is made and properly certified and ready to be filed, the issuance of a certiorari is unnecessary.</p>

H. M. Shepard, Judge, presiding. This is a bill, filed on September 23d, 1889, by the appellant against the appellee, in the Superior Court of Cook county, to enforce a lien for work done and materials furnished upon a lot and building in Chicago.

<p>1. County Treasurer—his duties—liability of sureties on his bond. The sureties on the bond of a county treasurer are obligated to see that he shall perform all the duties which are or may be required by law of him. One of these duties is, that he shall keep proper books of account, and another is that he shall report to the county board at each regular term thereof.</p> <p>2. Same—he and his sureties bound by his entries and reports. Where a county treasurer on coming into office charges himself with a sum of money upon his books as received from his predecessor, and reports the receipt thereof to the county board, both he and his sureties, when sued on his bond, will thereby be concluded from denying that fact, and from showing that such sum was not paid to and received by him from his predecessor. The rule is the same whether the officer is his own successor or he succeeds another person.</p> <p>3. In an action upon the official bond of a county treasurer, the obligors are estopped from impeaching and falsifying the books of account and entries therein of sums coming into his hands, belonging to the county, and his sworn reports made to the county board.</p> <p>4. Same—sureties calling on county board to correct false entries and reports. If a county treasurer, on assuming his official duties, enters upon the books of his office the receipt of a certain sum of money from his predecessor, and reports to the county board the receipt thereof, when in fact he has not received such sum, and the entry in the record and report is false, his sureties may call upon the county board to examine their principal under oath, and may thereby be relieved from liabilty as to such false receipt and report.</p> <p>5. An attempt by the sureties on a county treasurer’s bond to challenge the official record and reports of their principal, made for the first time after suit on the bond, comes too late.</p> <p>6. Evidence—report of expert accountant—oral testimony to same matters. In an action on a county treasurer’s bond, an expert was employed by the county board to examine that officer’s books and accounts. The expert was examined as a witness by the defendants, and in his evidence went over the whole ground embraced in his report to the county board, and the court admitted in evidence for the plaintiffs, the witnesses’ statement or report of the account, which was objected to: Held, that whether such report was competent evidence was immaterial, as the defendants had proved before the jury substantially all that it contained.</p> <p>7. Same—refusing to admit evidence—harmless error. When there is ample other evidence of the receipt of money by a county treasurer from his predecessor, the refusal of the court to allow evidence showing that a receipt found in the treasurer’s office, given by him for such money, was not delivered and was never in the flies of the office, if error, is harmless.</p>

<p>Appeal from the Circuit Court of Morgan County; the Hon. C. Epler, Judge, presiding.</p>

Writ of Error to the Circuit Court of Champaign County; the Hon. F. Bookwalter, Judge, presiding.

Cyrus Epler, Judge, presiding. This was a bill in chancery, brought by Mary J. Self against Samuel W. Dinwiddie, to reform a certain deed executed by him to her.

<p>1. Life Insurance—use of alcoholic stimulants—question and answer construed. An application for a certificate of life insurance made by a member of a benefit society, stated that the answers made by the insured to the questions of the medical examiner of the lodge attached to the application were true. To the question, “to what extent does the person use alcoholic stimulants?” the answer was, “none:” Held, that a reasonable construction of the question and answer implied more than an occasional use of alcoholic stimulants, and that to invalidate the contract of insurance there should be, to some extent at least, a habit or custom as to such use.</p> <p>2. Same—application—rule of construction. The language used in an application for a certificate of life insurance should receive a fair, reasonable construction, one within the contemplation of the parties at the time the contract of insurance is consummated.</p> <p>3. Practice—improper remarks of counsel to jury—preserving exceptions. If counsel make improper remarks in argument to the jury, objections should be made to the court and its ruling had. In the absence of any showing in the record that the court was called upon to rule on the question, or that any ruling was made, and an exception preserved, the question of the propriety of such remarks is not presented on appeal or error.</p>

G-eo. E. Cooper, Judge, presiding. The city of Litchfield, incorporated under a special charter, on the 6th of November, 1890, adopted article 9 of the general act for the incorporation of cities, towns and villages.

<p>Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Christian County, the Hon. Jacob House, Judge, presiding.</p>

Writ op Error to the Circuit Court of Cook County; the Hon. M. F. Tuley, Judge, presiding.' This was a bill brought by Charles L. Hutchinson, Allison W. Harlan, James Mullen, George W. Chamberlain, and Alice M. Lawton, against Eussell Ulrich and W. Irving Beman, to enjoin the erection of a “flats” building, or apartment house, on the corner of Greenwood avenue and 44th street, Chicago.

J. Fouke, Judge, presiding. This was trespass, originally brought before a justice of the peace, to recover damages done by stock of appellant to the crops of appellee.

<p>Writ of Error to the Circuit Court of Adams County; the Hon. Oscar P. Bonnet, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Henderson County; the Hon. Arthur A. Smith, Judge, presiding.</p>

H. M. Shefakd, Judge, presiding. On the 19th day of December, 1890, two separate petitions, which were afterwards consolidated, were filed by Archibald Campbell against Fannie Jacobson, Morris Jacobson, Solomon Freehling and others, for the establishment and foreclosure of mechanics’ liens upon two adjoining lots, known as 3142 and 3144 Shields avenue, Chicago, for labor and material furnished by Campbell in the construction of buildings thereon.

<p>Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Circuit Court of DeKalb County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Promissory Note—construed as to interest—“int. a 6% p. a.” A promissory note reading as follows: “$1,836.40. Chicago, Nov. 27, 1891. Twenty-one days after date I promise to pay to the order of A. 3. Beatty & Sons, eighteen hundred and thirty-six and 40-100 dollars, payable at my office; value received; int. a 6% p. a." and signed, will call for interest at the rate of six per cent per annum.</p> <p>2. The word “Int.,” inserted after the words “value received," in a promissory note, is an abbreviation of the word interest, and should be construed the same as if the entire word was written out. The letter “a,” when used in a note as above, standsfor the word “at," and “6%" when used as here,stands forsixper cent, and the letters'“p.” and “a.” when used in the connection here used, mean “per annum.”</p> <p>3. Practice—trying ease on short cause calendar—waiving objections. If after the overruling of defendant’s motion to strike a cause from the short cause calendar, and exception taken, he appears when the case is called and proceeds to trial without objection, and waives a jury, he will, by going into trial without objection, waive the irregularity, if any occurred, in placing the case on the short cause calendar. It is not enough that defendant excepted to the refusal to strike the cause from that docket. He should, when the cause is called for trial, object to the trial, and save an exception to the ruling of the court.</p>

<p>Appeal from the Appellate Court for the First District; <—heard in that court on appeal from the Circuit Court of Cook County; the Hon. B. W. Clifford, Judge, presiding.</p>

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

This is a petition filed in this court by Adam Einard against the town of Mt. Morris, and the town auditors of such, town, praying for a writ of mandamus to compel the defendants to perform the acts named in the opinion of the court.

Writ of Error to the Circuit Court of Cook County; the Hon. M. F. Tuley, Judge, presiding. This is a bill of review for errors apparent upon the face of the decree sought to be reviewed, and also seeking to impeach the decree for fraud.

Edward P. Vail, Judge, presiding. This was a bill in chancery to set aside three deeds made by one James Hopkins in his life time, on the ground that Hopkins at the time he executed the same was mentally incapacitated. The bill sets up that on the 25th day of March, 1884, James Hopkins deeded 160 acres of land to his daughter, Louisa J. Ashmore, and 140 acres to his son, Samuel L. Hopkins.

M. F. Tuley, Judge, presiding. This was a bill by appellants, in the Circuit Court of Cook county, representing that in 1870 appellant Gregsten was the owner of a leasehold interest in lot 16, block 142, school section addition to Chicago, expiring on the 1st day of April, 1880; that there was, on the 12th day of May, 1870, a building upon said lot, under the control of and owned by Gregsten; that said lot fronts on Dearborn street in said city, and in its rear was a fifteen…

<p>1. Insurance—power of agent to waive conditions. When a general agent of an insurance company has- the authority to issue a policy with or without certain conditions, such agent may, by contract with one assured, waive the performance of such conditions for such time as he may think proper.</p> <p>2. Where a policy of insurance had been issued by the general agents of an insurance company, to which was attached certain conditions, that, unless certain appliances should be placed on the premises within sixty days to guard against fire, and to be used in extinguishing fire, the policy should be void, the insured, before acceptance of the policy, informed the agents of the insurer that it was impossible to provide the appliances within the sixty days, and the latter replied that the assured should go on and do the best they could, whereupon the policy was accepted, and a loss occurred before the conditions were fully performed: Held, that the agreement amounted to a waiver of the time of performance of the conditions, notwithstanding the policy contained a clause that no waiver of any condition should be valid unless written upon or attached to the policy, which was not done.</p> <p>3. Same—waiver of forfeiture. A provision in a policy of insurance that it shall become void in a certain event, will not render the policy absolutely void upon the happening of such event; such a provision being for the benefit of the insurer, it may be waived by the latter, and when this is done, neither the insured nor third parties can claim that the insurance is void.</p> <p>4. If an insurance company, through its general agents, with the knowledge that the assured have not complied with the condition of the policy in regard to making improvements for the protection of the property insured, recognizes the policy as in full force, and leads the assured to believe that they are protected, it will be estopped from relying on a breach of the condition as a defense to an action for a loss. In such case, if the company does not regard the policy as in force, it is its duty to notify the assured, cancel the policy, and return the unearned part of the premium.</p> <p>5. Any acts, declarations or course of dealing by the insurers, with a knowledge of the facts constituting a breach of a condition of the policy, recognizing the policy as still valid, and from which the insured might fairly infer that he was protected, will amount to a waiver of such breach, and estop the insurers from setting it up in defense.</p>

<p>Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Circuit Court of Cook County; the Hon. S. P. McConnell, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Circuit Court of Cook County; the Hon. R. S. Tuthill, Judge, presiding.</p>

Dorrance Dibell, Judge, presiding. On the 26th day of January, 1889, George A. Drake filed his bill in chancery, in the Circuit Court of Grundy county, against John Allison and Davina Davis, to review a certain former decree of that court, to set aside an execution sale and subsequent conveyances of certain lands of the complainant, and for an accounting.

<p>Writ of Error to the Circuit Court of Adams County; the Hon. Charles J. Scofield, Judge, presiding.</p>

Kirk Hawes, Judge, presiding. This was a bill in the Superior Court of Cook county, brought by the appellee against appellant and others, under what is known as the Burnt Records act of this State, for the purpose of confirming the title to the property herein involved in the appellee.

<p>1. Evidence—calling out a conversation on cross-examination of plaintiff. Where a defendant calls out of the plaintiff on cross-examination a part of a conversation, this will not entitle him to go into the whole of the conversation on such cross-examination.</p> <p>2. The rule is familiar that the cross-examination of a witness should be confined to matters to which he has testified on his direct examination, and there is no reason why the rule should not apply to the examination of a party as a witness the same as to other witnesses.</p> <p>3. Appeals and Writs op Error—:finding of Appellate Court—assigned as error in the Supreme Court. Where a cause is tried by the court without a jury, and no propositions are submitted to be held as the law, the finding of the trial and Appellate Court upon the evidence can not be assigned for error in this court.</p> <p>4. Same—assigning errors in Supreme Court—not assigned in Appellate Court. Where the ruling of the trial court in sustaining an objection to a question on cross-examination is not assigned for error in the Appellate Court, it can not be considered by this court. The Appellate Court is required to pass upon only such errors as are assigned on the record before it, and its judgment can not be impeached for a failure to sustain an error which was not assigned.</p> <p>5. Same—questions not raised in the trial court. Where the trial court is not called upon to rule as to the law of the case tried therein without a jury, as to the holding of propositions of law or the admission or exclusion of evidence, there will be no ground upon which this court can hol'd that any error was committed.</p>

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

E. W. Clifford, Judge, presiding. The appellee, seventy-eight years old and infirm, being a partial paralytic, standing at a street corner, signalled to appellant’s cars to stop and take him on.

<p>1. Evidence—to show boundary—general reputation. When the location of a private boundary depends upon showing a public boundary, the latter maybe shown byproof of common or general reputation. So, when in ejectment to fix the boundary between two lots it becomes a question whether the center of a street is the south line of a quarter section, it is proper to admit evidence tending to show that the center line of the street has been for many years prior recognized and reputed to be line of the quarter section.</p> <p>2. Estoppel—by silence of party. When an estoppel is sought to be established from the silence of a party who in equity and good conscience should have spoken, if there be any ground of estoppel, it is essential that the party should have bad knowledge of the facts, and the other party have been ignorant of the truth, and have been misled into doing that which he would not have done but for such silence. If the means of knowledge of the facts are open equally to both parties, the mere silence of the one will not estop him from asserting the facts.</p> <p>3. Boundary Line—adopted by the parties, binding. This court has frequently held, that when there is an agreement as to the boundary line between two lots or tracts of land, and occupation according to such adopted line, with the making of improvements, each party will be estopped from asserting against the practical location of the line, notwithstanding the bar of the statute of limitation is incomplete. So, also, without proof of such agreement, after the lapse of more than twenty-years’ uninterrupted acquiescence in a line, the parties will be estopped thereby.</p>

<p>1. Pleading—failure of consideration as against assignee—notice of defense. A plea to an action brought upon a promissory note by the assignee before due, alleged that the note was executed by the defendant and placed in the hands of a third party, to be used by him in the purchase of certain shares of stock for defendant, and was never intended to be and never was delivered to the payee, but was wrongfully obtained by him from said third person, and was never applied as intended, or in any manner for the benefit of the defendant, averring generally that plaintiffs had notice of the premises, but failed to state that they had such notice at or before the time the note was assigned to them: Meld, that in respect to the allegation as to notice the plea was defective.</p> <p>2. Same—striking pleas from the files. The fact that a plea is defective is no ground for striking the same from the files. It is only ground of demurrer.</p> <p>3. Same—amendment to avoiddefects. It is the duty of courts to reasonably exercise their power to allow amendments of the pleadings. It is the policy of our statute relating to amendments, that parties shall not be deprived of any substantial right through defects or omissions in pleadings, if they will use reasonable diligence to avoid the result by applying to the court for leave to amend or supply the omission.</p> <p>4. Practice—leave to file further pleas. When the defendant has once availed himself of the right to plead, by filing the general issue, he can only file other pleas by leave of the court. When the defense set up is not available under the general issue, and there is no unreasonable delay in asking leave to file special pleas so as to present the defense, it will be error to refuse leave to file such pleas.</p> <p>5. Same—extension of time for filing pleas. When leave is given the defendant to file special pleas within a given time, and his counsel is prevented from filing the same on the last day allowed, by reason of •the clerk’s office being closed, it would be unreasonable to refuse leave to file his pleas on the morning of the next day.</p> <p>6. A defendant obtained leave to file special pleas setting up a defense, by the ISth of the month. On that day his counsel was engaged in trying another suit until 5 o’clock, p. M., at which hour the office of the clerk of the court was closed. On the morning of the 19th defendant’s counsel appeared in court and stated these facts, and asked leave to file his pleas as of the ISth', which the court allowed to be done in the absence of plaintiff’s counsel. Afterward, on motion of plaintiff, based on affidavits, the court, in the absence of defendant’s attorney, struck the several pleas from the files: Held, that it was error to strike from the files the pleas so filed by leave of court.</p> <p>7. The fact that an order is given for leave to file pleas as of the preceding day, without notice to opposing counsel, is no ground for striking them from the files. That fact will entitle the plaintiff to come in afterward and show, if he can, that the order should not have been made.</p> <p>8. Same—as to leave id file pleas—when plea must accompany the motion for leave. When a defendant is in default and asks the court to allow him to file certain pleas, he will be required to present with his motion good pleas. This rule does not apply where general leave to plead is given. If pleas filed thereunder are defective, the defect can be reached only by demurrer.</p> <p>9. Same—affidavits on motion to strike pleas from the files. Affidavits Showing that a defendant has no valid defense to-an action, and is only seeking for delay, are not admissible on plaintiff’s motion to strike defendant’s pleas from the files. The defendant has the right to a trial by jury as to the controverted facts.</p>

This is an original proceeding for mandamus to compel the respondent, Thomas C. Williams, to accept, assume and take upon himself and execute the office of town clerk of the town of Mount Morris, in the county of Ogle, in this State, to take and subscribe the oath of office, and to file bond, as required by law.

<p>1. Partnership—in the purchase of land—what constitutes. A verbal agreement was entered into by A, B and O that they would purchase a single tract of land, and erect a building thereon, the three to share equally in the net profits. The land was bought in the name of A, a deed made to him, and a building was erected thereon by A, but neither of the others advanced a single dollar in payment of the purchase money, or the cost of the building, A paying all the money for the land and the cost and expenses of the building: Held, that the transaction failed to show any partnership.</p> <p>2. Statute op Frauds—1-parol trust within its provisions. A parol agreement entered into by three persons for the purpose of acquiring land for the erection of buildings thereon, to the effect that the title should be taken in the name of one of them, who should execute a declaration of trust showing the joint interest of all, is within the statute of frauds, and can not be enforced.</p> <p>3. Same—how availed of in pleading. When the statute of frauds is set up and relied on in the answer as a defense to a bill in chancery, and no exception is taken to the manner in which it is pleaded, the defendant may rely on such defense on the hearing and, also, on appeal in this court.</p> <p>4. Resulting Trust—when it arises. A resulting trust, which may be shown by parol, is where the purchase is made in the name of one person with the money belonging to another. It does not arise when the person in whose name the purchase is made furnishes all the purchase money. In such case his verbal agreement to advance the money and hold the property in trust for himself and others, is void under the statute of frauds.</p> <p>5. Same—resulting from fraud. Where all the persons in interest know that a purchase of land is made in the name of one of them, and agree that the title shall be conveyed to him, he can not be charged as a trustee on the ground of bad faith or fraud in procuring the title. If he fails to convey to his associates, his action amounts only to a refusal to perform a verbal agreement which is void under the statute of frauds.</p> <p>G. Contract—not enforced after abandonment. On a bill to establish a trust and compel a conveyance, the proofs showed that the complainant and defendant entered into a verbal agreement to purchase a tract of land for the purpose of erecting a building thereon, and took tiie title in the name of the defendant, who furnished all the purchase money, and that the complainants, after several fruitless efforts to borrow money with which to build, abandoned the undertaking, leaving the defendant to save himself as best he could. He then of his own means, and by a loan on the property, erected a building thereon: Held, that after such abandonment of the enterprise the complainants-had no claim on' the defendant, and that the relief sought was properly refused.</p>

<p>Appeal from the County Court of Hancock County; the Hon. John D. Miller, Judge, presiding.</p>

<p>1. Witness—party contradicting his oum witness. A party who calls the adverse party as his witness is not bound by the mere conclusion of such witness, and only by his statement of facts in so far as he is entitled to credit, taking into consideration the reasonableness of the testimony, and all other proper tests of the credibility of witness and the weight of the evidence. A party is not concluded by the evidence of a witness introduced by him, whether á party or not.</p> <p>2. If a witness state facts against the interest of the party calling him, another witness may be called by the same party to disprove those facts, as such facts are evidence in the case; and the other witnesses are not called directly to discredit the first, but the impeachment of his credit is incidental only, and consequential.</p> <p>3. Fraudulent Conveyance—sale to bona fide creditor. A conveyance of a debtor’s land to a bona fide creditor, at a reasonable price, and without any intent to hinder, delay or defraud other creditors of their demands, will not be set aside as fraudulent. In such case the relationship existing between the parties to the deed, that of mother and son, is to be considered in connection with all the other facts and circumstances in the case, but is not a controlling fact.</p>

<p>"*"Notice—publication—and proof thereof . Section 1, ch. 100, of the statutes provides that when any notice shall be required by law to be published in any newspaper, and no other mode of proving the same is provided, the certificate of the publisher, with a written or printed copy of such notice annexed, stating the number of times the same has been published, and giving the dates of the first and last papers containing the same, shall be evidence of the publication therein set forth.</p> <p>2. Same—certificate of publication. A certificate of the publisher of a daily newspaper in a city, certified that a notice of which the annexed is a true copy, had been published five successive days in the Chicago Mail, a daily newspaper printed in the city of Chicago, in said county, and that the date of the first paper containing the said published notice was the 5th day of February, A. D. 1892, and that the date of the last paper containing the same was the 10th day of February, A. D. 1892: Held, that this certificate was a compliance with the statute.</p> <p>3. A publisher of a daily newspaper certified that an annexed notice was published in such paper for five succesive days. The paper containing the first insertion was issued February 5, 1892, and the last paper containing the same was issued February 10,1892, but the certificate was dated February 8, 1892: Held, that the certificate was fatally defective, as it was impossible for the publisher to certify on the 8th of February that the notice was published in his newspaper on the 9th and 10th days of the same month, and the court could not know whether the error was in the date of the certificate or in the date of the last publication.</p> <p>4. Same—publication—Sunday not counted. When a notice is required to be published five successive days in a daily newspaper, a Sunday intervening, the publication on that day will not be counted, as it is dies non juridicus.</p> <p>5. Same—jurisdiction by publication. To obtain jurisdiction by means of publication of notice, it must affirmatively appear that the statute has been strictly pursued and its provisions complied with.</p> <p>6. Special Assessments—duty to make assessment roll. By sec. 26, art. 9, chap. 24, B.. S., the commissioners appointed to make a special assessment are required to make and return an assessment roll, which shall contain a description of each Jot, block, tract or parcel of land, the amount assessed as special benefits, and the names of the owners so far as known.</p> <p>7. Same—notice of final hearing before confirmation. The next section requires the commissioners to give notice of the time at which a final hearing will be had upon such roll, and they are required to mail to each owner of premises, when name and place are known to them, a notice thereof, the form of which is given in the statute. They are also required to give notice by posting the same in at least four public places in the neighborhood; and if a daily paper is published in the city or village, by publishing the same at least five successive days in such daily paper, the form of which is given.</p> <p>8. The next section requires that one or more of the commissioners, on or before the final hearing, file an affidavit that the notices were sent by mail, as required in the preceding section, and also an affidavit of the person who posted the notices, that they were posted as required therein; and that a certificate of the publication of said notice be filed in like manner as required in other cases.</p> <p>9. Same—jurisdiction—to enter judgment of confirmation. The mailing, posting and publication of the notices required by the statute are necessary to confer jurisdiction upon the court to render judgment of confirmation of special assessments.</p>

<p>Appeal from-the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p> <p>Appellee recovered judgment against appellant in the Circuit Court of. Sangamon county for $30, being the amount of payments made by him as a stockholder in the appellant corporation, holding a charter from the State of New Hampshire, authorizing it to transact in that, and other States, the business of a homestead and loan association. The cause was appealed to the Appellate Court, where said judgment was affirmed, whereupon appellant appeals to this court.</p> <p>It appears, that pursuant to the charter and by-laws of the appellant corporation local clubs or branches might be formed, whenever a sufficient number of shareholders could be obtained. Such a club was formed in Springfield in the year 1890. The appellee subscribed for five shares of stock in that club and made the first payment of one dollar per share thereon, through one Charles Werner, who assumed to represent the appellant. A certificate of stock was furnished him by appellant through said Werner, and he made five subsequent, monthly, payments thereon. It appears that there was upon the back of the certificate of stock this condition. “Section 28; The certificate of any member is redeemable in cash, after twenty-four payments thereon have been made, the shareholders being entitled to receive the amount paid in on his shares, together with 6 per cent interest.”</p>

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

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will County; the'Hon. George W. Stiff, Judge, presiding. June 22, 1891, defendant in error, Wear & Boogher Dry Goods Company, commenced suit in attachment in the Circuit Court of Will county against John J. Ducker.

<p>Writ of Error to the Superior Court of Cook County; the Hon. H. M. Shepard, Judge, presiding.</p>