Volume 146 — Illinois Reports

Writ of Error to the Circuit Court of Will county; the Hon. George W. Stipp, Judge, presiding. The defendants in error began attachment suits in June and July, 1891, in Will County against John J. Ducker, and levied the writs of attachment upon “all the right, title and interest of John J. Ducker” in certain real estate in that county. The appellants, Jennet Ducker and George A:.

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.</p> <p>This was a bill in chancery, brought by Henry G. Gleyre and Ferdinand A. Gleyre against Elizabeth Winstanley, Josephine Fuchs, John W. Benshaw and Caroline Benshaw. The bill alleges that, on the 25th day of January, 1890, the several parties complainant and defendant, with the exception of Caroline Benshaw, entered into an agreement in writing, under their respective hands and seals, and duly acknowledged by them, the provisions of which were as follows:</p> <p>“This agreement, made and entered into this 25th day of January, 1890, by and between Elizabeth Winstanley, of the county of St. Clair, and State of Illinois, party of the first part, and Josephine Fuchs, John W. Eenshaw, H. G. Gleyre and F. A. Gleyre, parties of the second part, Witnesseth: That whereas the said party of the first part is desirous of selling the land hereinafter described, and the said parties of the 'second part have agreed to' make the efforts, undertake the management and incur the expense relative to said sale hereinafter mentioned: Now therefore, the said parties of the second part, in consideration of the power of attorney hereinafter given them for the sale of the land hereinafter described, and their interest therein as hereinafter expressed, do covenant and agree, to and with the said party of the first part, that they will have surveyed, subdivided and platted into lots, with appropriate streets and blocks, duly recorded in the proper office of the county, a plat of the subdivision thereof, all the land hereinafter described, and will also, with promptness and dispatch, as soon as the land is properly laid off, which they undertake shall be done with all reasonable speed, advertise said land for sale. The advertisements shall be by public notice in appropriate newspapers, by hand-bills, pamphlets and other usual methods of attracting public attention to contemplated sales. The said parties of the second part further covenant and agree to use their best efforts in the management for its sale and the disposal of said property. All expenses of every sort connected with the surveying, subdividing, platting and advertising said land, and every expense connected with the sale thereof, to be borne by the said parties of the second part.</p> <p>“In consideration of the premises, the said party of the first part has constituted, nominated and appointed, and does by these presents irrevocably constitute, nominate and appoint, the said parties of the second part, her true and lawful attorneys, for her and in her name and stead, to grant, bargain and sell, convey and confirm, in fee simple absolute, to such parties and their heirs forever, as to them may seem fit, on the terms hereinafter stated, all the following real estate, lying in the county of St. Clair and State of Illinois, more particularly described as follows, to-wit:</p> <p>“Lots nine, ten, sixteen, seventeen, eighteen, nineteen, and lot lettered ‘A’ of the first subdivision of Cahokia; except two.acres in lots nine and ten, upon which her residence now ■stands, which she reserves for her homestead.</p> <p>“The said parties of the second part are authorized and empowered to sell said land or any part thereof in such quantities or areas as to them may seem best, with* the restriction only, that none of said land shall be sold at a less .rate than three hundred dollars for every acre, and in that proportion for every fraction thereof. Sales to be made for ■cash, or one-third in cash and the remainder secured by mortgage in the usual form, and payable in one, two and three .years, or sooner, with interest on the reserved payments at not less than six per cent per annum.</p> <p>“Before any of the parties herein mentioned, except the said party of the first part, shall be entitled to any of the proceeds of the sale of said land, the said party of the first part shall be paid, out of the said proceeds, the sum of $50,000. After the said party of the first part shall have been paid the sum •of $50,000, then all the surplus over and above the sum of $50,000, shall be divided equally as follows : One-fifth to said party of the first part, and one-fifth to Josephine Fuchs, one-fifth to the said John W. Renshaw, one-fifth to Henry G. Gleyre and one-fifth to the said Ferdinand A. Gleyre.</p> <p>“The said party of the first part, until she shall have been paid her full $50,000, shall be entitled to all cash received from such sales, and if she shall so elect, shall be entitled also to all notes for reserved payments, until her full $50,000 shall have been so paid her in money or in notes; but if she declines to receive the notes arising from any such sales, then it is agreed by the parties hereto, that said notes shall be held by John W. Renshaw for the parties herein mentioned, in proportion to their respective interests as herein set forth.</p> <p>“All said notes taken for the reserve payments on the purchase money of the land herein described shall be made payable to the order of John W. Renshaw. When said notes shall be collected, the amounts arising therefrom shall be applied to the payment of any amount due the said party of the first part on the sum of $50,000 hereby secured her on said land, if said land shall realize the sum of $50,000, and the remainder shall be paid, one-fifth to said party of the first part, one-fifth to Josephine Fuchs, one-fifth to the said John W. Renshaw, one-fifth to the said Henry G. Gieyre, and one-fifth to the said Ferdinand Gieyre.</p> <p>“The said parties of the second part are hereby authorized to deliver to the purchasers from them under this power of attorney, deeds with the ordinary statutory or other covenants of warranty, and the said párty of the first part- hereby ratifies and confirms all that the said parties of the second part may do in the premises, under the powers hereby conferred upon them, and the said party of the first part binds herself by this instrument, to execute any deed desired from her by any party purchasing from said second parties, confirming sales made by them under these powers.</p> <p>“The election of said party of the first party to accept any notes above referred to, as contemplated to be taken for the reserved payments, shall be evidenced by her accepting any of said notes from said John W. Renshaw, by his endorsement and delivery thereof-to her.</p> <p>“It is agreed that the powers hereby conferred upon the parties of the second part can be exercised by the majority of them, and any two of said parties are authorized and empowered to execute all deeds and to make all sales, with the same force and effect as if all the said parties of the second part were acting.”</p> <p>Subsequently, on the sixth day of February, 1890, a supplemental agreement was executed by the same parties, under their hands and seals, and duly acknowledged, which provided as follows:</p> <p>“Whereas, the party of the first part agrees and firmly binds herself to sign all deeds for lots or parcels of land presented to her: Now, therefore, the parties of the second part hereby waive their right and power given them in the power of attorney in the said foregoing contract, as far as relates to the signing of deeds, except in the case of serious illness or death, the said foregoing contract with full force and effect as if this supplementary agreement had not been written.”</p> <p>The bill sets out the foregoing contract and supplemental contract in extenso, and alleges, in substance, that the complainants have in all respects carried out the contract, so far as they could without the co-operation of all the parties thereto, and have expended large sums of money in laying out the tracts of land therein described, and have advertised the land for sale in a most profuse manner and at large expense, and, amongst other things tending to bring the land to public notice, they have caused a colored map thereof to be prepared, of which 2500 copies have been -printed and circulated ; that since the making of the contract, Elizabeth Winstanley, with the assistance of defendant John W. Benshaw, has sold and conveyed a large portion of the land, but how much the complainants can not state, and has received in payment therefor a sum in excess of $50,000; that Benshaw, who has managed the property for Elizabeth Winstanley, has neglected and refused to furnish the complainants a statement of the amount of land sold and the sum realized therefor, although often requested so to do; that the complainants have at different times negotiated sales of different portions of the land at favorable prices, but that Benshaw and Mrs. Winstanley have refused and failed to cause deeds to be executed in accordance with the sales thus negotiated.</p> <p>That Mrs. Winstanley has made sales without consulting the complainants, at less than could have been obtained for the land; that combining and confederating with John W. Benshaw and Caroline Benshaw, she being the wife of John W. Benshaw and the sister of Mrs. Winstanley, Mrs. Winstanley has made conveyances of portions of the land to Caroline Benshaw, that is to say, on August 18, 1890, she conveyed to. her three certain blocks of the land subdivided for a pretended consideration of $3600; and on June 9, 1890, she also conveyed to Caroline Benshaw another block for a pretended consideration of $3500; and also January 22, 1891, she made to her a pretended' conveyance of seven blocks and parts of two other blocks in the subdivision for a pretended consideration of $15,000; that those conveyances were not made in good faith, and were without consideration, and that the value of the land thus conveyed was much in excess of the pretended considerations named in the deeds, and they were made for the purpose of defrauding the complainants and of depriving them of their just profits arising from the sale of the lands at their true value; that Mrs.' Winstanley also, on August 18, 1890, conveyed to defendant .Josephine Fuchs, who is also her sister, for a pretended consideration of $4500, two and one-half blocks in the subdivision, and it is also charged that such conveyance was made without sufficient consideration, and in fraud of the rights of the complainants.</p> <p>The bill prays for an accounting, and that the pretended sales to Caroline Benshaw and Josephine Fuchs be set aside; that Mrs. Winstanley be enjoined from conveying any more of the lands except with the consent and approval of the complainants ; that a receiver be appointed to take charge of the business of the parties covered by the agreement, with directions to sell such portions of the land as have not been sold, and such as have been conveyed but not in good faith, and for such other and further relief as the nature of the case may require, and as to equity may appertain.</p> <p>The defendants answered, admitting the execution of the contracts as alleged, but otherwise denying the equities of the bill. At the hearing, which was had on pleadings and proofs, evidence was introduced tending to prove performance of the contracts on the part of the complainants as alleged, and among other things, that they, together with defendants Benshaw and Fuchs, caused the land in question, consisting of about 200 acres, with the exception of 65 acres thereof which was omitted by consent of all the parties, to be subdivided and platted, under the name of “Winstanley Parkthat they also caused maps of the subdivision, showing the blocks, lots, streets and alleys, to be made and distributed as advertisements, and that by sign-boards, newspaper advertisements and otherwise, the lands were offered to the public for sale and that they also advanced a portion of their shares of the expenses; that Mrs. Winstanley afterward, with the assistance of Benshaw, but without consulting the complainants, sold and conveyed the 65 acres not platted and various portions of the land embraced in the subdivision, to various parties, for the aggregate sum of $49,946; that she had also entered into a contract with her two sisters for the sale to them of three lots in the subdivision for $600, a contract which the court by its decree confirms, making the total amount with which Mrs. Winstanley is chargeable $50,546; that she has also made to her sisters the several conveyances charged in the bill, and that such conveyances were not in good faith nor for an adequate consideration; that Caroline Benshaw and Josephine Fuchs have each sold and conveyed to hona fide purchasers some portions of the lands so conveyed to them, the sums thus realized by Josephine Fuchs being $2086.50, and those realized by Caroline Benshaw being $5400. It also appears that Caroline Benshaw has erected a dwelling house and placed other improvements on certain'of the lots conveyed to her, the value of the lots so improved being $800, and she was accordingly-charged in the decree with that sum, and her title to the lots improved was confirmed. The total amount with which Mrs. Winstanley and her two sisters are thus shown to be chargeable is $58,832.50. It also appears that Mrs. Winstanley has advanced the sum of $1000, towards defraying the expenses of platting, and advertising,:for which she is entitled to credit.</p> <p>The decree finds, in substance, that the contracts in question constituted the parties thereto partners in the enterprise of platting, subdividing, advertising and selling the lands, Mrs. Winstanley to receive the first $50,000 realized from sales, the other four contracting parties to pay the expenses incident to platting, advertising and selling the land, and the five to share equally in the net profits, after the $50,000 were paid. It is accordingly decreed that the partnership thus created be dissolved, and that the assets of the firm be distributed between the partners according to their respective interests. The sales from which the $58,832.50 had been realized, having been made to innocent purchasers, were confirmed, and the conveyances to Caroline Eenshaw and Josephine Fuchs, except as above indicated, were set aside. Caroline Eenshaw and Josephine Fuchs are each ordered to pay to the partnership the sums in their hands realized from sales, and Mrs. Winstanley is also ordered to pay over the amount in her hands after deducting $50,000. Out of the moneys thus paid in, Mrs. Winstanley is to be paid the $1000 advanced'by her for the payment of expenses, and that amount is charged to the other parties, after crediting them with the sums advanced by them respectively for the payment of expenses. The surplus on hand collected from Mrs. Winstanley, Mrs. Eenshaw and Mrs. Fuchs, after adjusting the account for expenses, is ordered to be divided equálly between the five partners, and the master is ordered to sell the lands and lots undisposed of, and distribute the proceeds one-fifth to each of the parties to the contracts.</p> <p>From this decree the defendants to the bill have appealed' to this court.</p>

<p>Appeal from the County Court of Jefferson county; the Hon, William T. Pace, Judge, presiding.</p> <p>This was a petition in the county court of Jefferson county,, by Charles H. Judd, administrator de bonis non of the estate of Patrick Boss, deceased, against Frank P. Boss and others, children and heirs-at-law of Patrick Boss, deceased, for leave to sell real estate to pay debts. It was set out in the petition that Patrick Boss died intestate in Jefferson county, April 8, 1864; that petitioner was appointed administrator de bonis non, October 5, 1892; that James Sherley, former administrator, was discharged January 4, 1868, leaving no personal assets undisposed of; that the debts allowed and unpaid amount to $660.91, besides interest, and other claims will be limited to expenses of administration; that decedent died owner of certain real estate in said county, all of which was-sold by the former administrator to pay debts, except what was set off to the widow as dower, viz., the north-west quarter of the north-west quarter of section 22, and the east half of the south-west quarter of the north-east quarter of section 27, all in township 4, south, range 4,"east of the third principal meridian, containing sixty acres. The deceased left him surviving, Minerva A. Boss, widow, now deceased, and children and heirs-at-law, all now living, as follows, viz.: Eliza J. Wilkey, Bachael Lovin, Margaret Sherley, Luia Heck, Luta Easley, Anna Fisher, Frank P. Boss and Patrick B. Boss; prays for an order to sell the real estate above described to pay the debts of the intestate. Exhibit “A” is a list of claims filed and allowed as of the fourth class, amounts paid thereon by former administrator, and balance of principal due thereon, as follows: Allowed, total, $1404.40; paid, $743.50; balance of principal unpaid, $660.90.</p> <p>The defendants, children and heirs of Patrick Boss, deceased, answered the petition, admitting the death of Patrick Boss and the pretended appointment of James Sherley as administrator, and the filing of an inventory, appraisement bill and sale bill, as alleged; defendants deny that the court had jurisdiction to appoint Sherley, or he to act; aver that Boss left enough personal estate to pay his debts; aver the claims filed were fraudulent, barred by the Statute of Limitations when filed, and are now barred by statute; aver the claims were never made judgments against the estate; that the land in the petition described might have been sold, subject to dower, more than seven years before the petition was filed ; that the dower lands were abandoned by the widow in 1882, and have since been in open and notorious possession of the defendants.</p> <p>On the hearing, on the pleadings and evidence, the court entered a decree dismissing the petition, and the administrator, the petitioner, appealed.</p>

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

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county.</p>

<p>Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Contract—when ehampertous. A party claiming title to a tract oí land in this State, entered into a contract with a real estate agent to convey to the latter one-half of such interest in the land as he should finally recover, upon condition that such agent should take possession of the property, employ attorneys, perfect the title, and pay all expenses and attorney’s fees: Held, that the agreement was ehampertous and void. But the question of its legality and validity is immaterial, ex-cep|in a suit between the parties to it. .</p> <p>2. Limitations—seven years’ payment of taxes. To constitute a bar under either section 6 or 7 of the Limitation law, it must be shown that all the taxes on the land have been paid, under color of title, for seven successive years while vacant and unoccupied, or that the party so paying was in possession of the premises during such period of seven years for which he has paid such taxes.</p> <p>3. In order to create a bar under the first section of the .act of 1839, or section 6 of the present Limitation law, seven years must elapse between the date of the first payment, when the statute begins to run, and the commencement of the suit.</p> <p>4. Same—color of title. Any deed which purports, on its face, to convey title, may be used as color of title, under section 6 of the Limitation act, which provides for possession and payment of taxes for seven years, and under section 7 of the same act, which provides for payment of taxes for seven years while the land is vacant and unoccupied. A tax deed may be good color of title under those sections, even though the judgment and precept upon which it is based are absolutely void.</p> <p>5. Same—when prima facie title is necessary. Under section 4 of the Limitation act something more than color of title is required to constitute a .bar. That section requires a prima facie title, which is not shown by a tax deed, without the judgment and precept upon which it is based.</p> <p>6. Same—section 4 construed. By the terms of section 4 of the act the officer must be “authorized”, to sell the land for the non-payment of the taxes, and unless the judgment and precept are produced no authority to sell is shown. It can not be said that the language of the section refers to any deed which a public officer may make without pretence of authority. On the contrary, the deed must be one which is-made in pursuance of the authority conferred by law.</p> <p>7. In order to show a prima facie title under section 4 of the Limitation law, notice, by personal service or by publication, to the owner must be shown before a tax deed of his land can be lawfully executed by a public officer. Such-a deed is made without authority unless the notice prescribed by the statute is first given. The affidavit showing the tax purchaser’s right to a deed is a necessary part of the prima facie title, and, if it does not show a compliance with section 216 of the Revenue law, the tax deed is not such a prima facie title as is required by section 4 of the Limitation law.</p> <p>8. Same—of the possession required under section 4. The actual residence specified in section 4 of the Limitation law is not an unlawfully acquired possession. When it is obtained by either forcing or persuading the tenant of the owner to attorn to the party claiming under the section, it can not avail him. •</p> <p>9. Same—as to assignee in bankruptcy. The right of an assignee in bankruptcy, or his grantee, to file a bill to set aside a tax deed as a cloud on title, is barred in two years from the time the right of action ” accrues.</p> <p>10. Bankruptcy—when title of bankrupt passes to his assignee. The property of a bankrupt passes to his assignee by the execution of the assignment by the register, conveying the estate of the bankrupt. Such assignment relates back to the commencement of the bankruptcy proceeding, and by operation of law vests the title to all the bankrupt’» property in the assignee.</p> <p>11. Same—property not received or disposed of by the assignee. The assignee is not bound to take possession of or claim all of the property named in the bankrupt’s schedule. • He may reject such of the assets as may be a burden rather than a benefit to the estate. He may decline to receive property which is so heavily incumbered as to make it injudicious to receive it.</p> <p>12. The Bankrupt law makes no provision for the reconveyance of the. property undisposed of by the assignee, to the bankrupt; but as the assignee takes no title as an individual, but only as an officer, the title reverts-to the bankrupt when the trust is ended and the officer discharged. When the creditors are settled with and the bankrupt is discharged, and the estate is wound up, and the assignee is discharged, the bankrupt becomes reinstated in his original title to property not disposed of by the assignee.</p> <p>13. Same—when successor to assignee may be appointed. A successor to an assignee in bankruptcy can only be appointed in case of the death, removal or resignation of the former one before the settlement of the bankrupt estate. But when the trust is closed, and the assignee has done his duty and has been discharged, a new assignee can not be appointed without the institution of a new proceeding in bankruptcy in accordance with the provisions of the act.</p> <p>14. Mobtqage—conveyance by mortgagor in extinguishment of right of redemption—intention. In order that a conveyance made by a mortgagor to the mortgagee shall operate as an extinguishment of the right of redemption, it must appear that the parties intended such conveyance to be a payment of the debt.</p> <p>15. The intention to pay the debt by a deed of the mortgaged property will not be inferred when the creditor retains the evidences of the indebtedness and the securities pledged for its payment.</p> <p>16. The deed will not be regarded as a release of the equity of redemption unless it is made for a consideration which is adequate, and which would be deemed reasonable if the transaction were between other parties. If the value of the mortgaged property greatly exceeds the debt secured by the mortgage, that fact will tend to show that a release was not intended.</p> <p>IV. A subsequent recognition by the mortgagee, of the continued existence of the relation of debtor and creditor between the mortgagor and himself, will be a circumstance tending to show the absence of Such an intention.</p> <p>18. A mortgagor, at the request of the mortgagee, made to the latter a conveyance of the property, then in litigation with other parties, for which no co'nsideration was paid. Neither the mortgage, nor the notes secured thereby, nor notes pledged as collateral security, were surrendered or canceled, and the circumstances showed that the deed was made to cure a supposed defect in the mortgage, in accordance with the mortgagor’s agreement to make further assurance and deeds when requested, and the mortgagee, after the delivery of the deed, recognized the continued existence of the relation of debtor and creditor, by its pleadings in a suit relating to the mortgaged premises: Held, that the conveyance by the mortgagor was not an absolute deed, but a further security for the mortgage debt.</p> <p>19. Same—duty of mortgagee to pay taxes. As a general rule, the mortgagee not in possession is under no obligation to pay the taxes upon the mortgaged premises.</p> <p>20. Same—right of mortgagee to recover for expenses in protecting the security. Where the mortgagee, being clothed with the legal title by the mortgagor, succeeds in setting aside tax titles for the benefit of the mortgagor as well as himself, the mortgagor, on being restored to the legal title, may be required to reimburse the mortgagee his outlays in removing the adverse titles and incumbrances, such as taxes, tax titles, redemption money and reasonable attorney’s fees.</p> <p>21. Same—foreclosure—failure of consideration. A sold and conveyed forty acres of land by warranty deed to B, for the sum of $12,000, of which $3000 was paid down, and the remainder was secured by notes and mortgage. B, by like deed, conveyed the premises to C, and he to D, who mortgaged the same to a bank to secure a debt of his own. A transferred the notes given to him, to W, who filed his cross-bill to "foreclose the mortgage given by B. It appeared that there was due on the notes only $6000. The title to the undivided one-fourth of the land failed: Held, that B and his grantees had the right to set up the failure of the warranty as to an undivided fourth of the land as a defense, pro tanto, to the collection of the notes.</p> <p>22. Same—defense, in equity, against the assignee. Where the assignee of notes secured by deed of trust seeks to enforce collection by foreclosure of the trust deed, the mortgagor and his grantees may set up the same defense against the assignee as against the original payee.</p> <p>23. Same—parol evidence to show right of redemption. The relations between the parties, and other facts and circumstances of a nature to control the deed and establish such an equity as would give a right of redemption, may be shown by parol evidence.</p> <p>24. Jurisdiction—unknown heirs — ancestor living. A decree rendered in a cause against the unknown heirs and devisees of a person supposed to be dead, when he, in fact, is living, is void as to such person, and can not affect his rights to property. During his life he can have no heirs and devisees capable of being sued as unknown heirs, etc.</p> <p>25. Parties — statute relating to unknown heirs, construed. In authorizing the heirs of a deceased person who has been interested in land, to be made parties under the name of unknown heirs, when their names are unknown, the statute presupposes that the death of such person is an established fact. It was never designed to cut off the rights of such a person while in life, even as against innocent purchasers for value. It has reference to deceased persons, and not to live persons.</p> <p>26. On bill against the unknown heirs and devisees of each of two former claimants of a tract of land, to enforce the specific performance of a contract of sale, in .which the proceedings were regular in form, the court, by its decree, found that such claimants were both dead, and that their heirs and devisees were unknown. Many years after, one of such claimants was found to be living : Held, that the decree was a nullity as to such person, but was valid as to the other, there being no evidence to impeach the decree as to him or his heirs.</p> <p>27. Decree—when final as to the unknown heirs. A decree against the unknown heirs and devisees of a deceased person, who are notified by publication, only, of the pendency of the suit, does not become final until after the lapse of three years, and parties purchasing during that time will do so subject to the contingency that the decree may be set aside. But when the three years have passed and no steps are taken by such defendants to open the decree, it will have the same effect as though there had been personal service.</p> <p>28. Same—impeaching for fraud. There are two kinds of fraud in respect to judicial proceedings,—fraud in obtaining a decree by false evidence, and fraud which gives the court a colorable jurisdiction over the defendant’s person. In case of a fraud of the former kind a decree can not be impeached in a separate and independent proceeding, though it is otherwise in the case of a fraud of the latter kind.</p> <p>29. Recording- daw—protection against unrecorded deed. Although the legal title passes by an unrecorded deed, as between the parties, yet, by force of the recording laws, it is postponed in favor of a subsequent deed to a bona fide purchaser which is recorded; and this rule applies as well to bona fide subsequent purchasers from heirs, as to purchasers from the ancestor. It also applies to subsequent purchasers at judicial sales.</p> <p>30. Where a deed is not recorded the title is, apparently, still in the grantor, and the law allows purchasers who are ignorant of the conveyance to deal with him as the real owner. In case of his death the heir becomes the apparent owner of the legal title, and the public may deal with him as the real owner. And when the facts authorize a statutory proceeding against the unknown heirs holding the apparent title, the prosecution of such a proceeding to the end, and the securement of a title thereunder, amount to a dealing with such heirs as the real owners, just as much as would be a' purchase from heirs whose names are known.</p> <p>31. In 1836, A, the owner of an eighty-acre tract of land, conveyed to B and C an undivided half thereof, who, by their unrecorded written contract, agreed to reconvey the same to the grantor in payment of what they each owed him. In 1848 B conveyed his interest in the land to C, by a deed which was lost without being recorded. In 1869 A and other parties claiming title under him filed their bill in chancery against the unknown heirs and devisees of both B and C, for the specific performance of the contract of sale made by B and 0 to A, which resulted in a decree, in 1870, requiring such unknown heirs to convey to the complainants, in severalty, the north half to one and the south half to the other, in accordance with a partition made between them, and in default of such conveyance requiring the master to make the same for them. In 1871 or 1872 C made a conveyance of the eighty acres to P and H, who filed their bill for partition : Held, that the decree of 1870 was absolutely void as to 0 for the want of jurisdiction of the court over his person, but that it was binding upon the heirs of B, and that the persons acquiring their apparent title to the undivided one-fourth'of the land without notice of the prior unrecorded deed of their ancestor, took the title thereto the same as if such deed had never been made.</p> <p>32. Same—mortgagee protected against a secret interest in land. The holder of a writing showing that another holds the legal title for their joint use and benefit, can not enforce his right to one-half of the land, as against a mortgage given by the latter to one who has no notice of the equities of the former or of his interest in the premises.</p> <p>33. Tax tithe—notice of tax sale—service and publication. The statute requires the person in whose name the land is taxed shall be personally served with notice of the sale for taxes, if, upon diligent inquiry, he can be found in the county, and if he can not be so found, then the notice must be published in a newspaper three times. The inquiry and its result must precede the publication. Inquiry after the first publication is not sufficient. The statute does not permit the holder of the tax certificate to postpone his diligent inquiry until after he has published his notice.</p> <p>34. Same—service of notice of sale on the occupant. The statute, by requiring notice to be served upon every person in actual possession or occupancy of the land, never contemplated that the purchaser at the tax sale should himself create an occupancy, and then hand a notice to the occupant of his own creation. Such a service is not a compliance with the law. The possession or occupancy specified in the statute is one which is held adversely to the holder of the tax certificate.</p> <p>35. Where the affidavits filed with the county clerk for the purpose of getting a tax deed, fail to show that the publication of the notice was preceded by the preliminary conditions required,—that is to say, they fail to show that before publication was made no person was in possession or occupancy of the land, or that there had been diligent inquiry for the persons in whose name the land was taxed and those interested therein,—the tax deed made under the same will be void.</p> <p>36. Notioe—through agents—knowledge of facts. The knowledge of an agent must be acquired during his agency, and in the course of the same transaction in which the principal’s rights and liabilities arise, in order to affect the principal with notice, unless it is clear, from the evidence, that the information obtained by the agent in a former transaction is so precise and definite that it is or must be present to his mind and memory while engaged in the second transaction.</p> <p>37. Purchaser—from, one without notice by one having notice. It is well settled that a' purchaser with notice may get a good title from a bona fide purchaser without notice of prior equities.</p> <p>38. Specific performance—joint obligors—failure of jurisdiction •as to one. A decree for the specific performance of an agreement for the conveyance of the undivided half of a tract of land, made by two persons, each of whom held an undivided one-fourth, will not become invalid as to both the vendors, merely because it is subsequently shown that the court had no jurisdiction as to one of them, but the decree and conveyance thereunder will be good and binding as to the person over whom the court had jurisdiction, and will pass his undivided one-fourth of the land.</p> <p>39. Same—decree, whether void for want of parties. The proceedings in a bill by the vendee against his vendor for the specific performance of a contract of sale of land made in 1843, will not be void, as to the vendor’s interest, merely because a subsequent grantee of the vendor, to whom the latter had conveyed in 1848, is not made a party, where the original vendee filing the bill had no knowledge of the conveyance to the second vendee; and when the decree finds that such vendor has not conveyed any interest in the land to any one, a bona fide purchaser will have the right to rely upon the correctness of such finding.</p> <p>40. Bes judicata—judgment of Supreme Court. Where an opinion of this court directs the decree of the circuit court to be reversed and the cause remanded without directions, what is said in such opinion ■in regard to the weight of evidence must be understood as applying to the facts disclosed in the record then under consideration, and only the legal principles therein announced are binding on the inferior court. In such case it by no means follows that other facts may not be proved within the principles announced or not inconsistent therewith, ■<or that amendments may not be made which obviate objections to granting the relief sought or the allowance of a defense interposed.</p> <p>41. Same—estoppel to interpose. Where a complainant, after a reversal of a decree dismissing his bill, files a supplemental bill making new parties and introducing new facts, and making new issues and attacking the validity of a decree in a former suit for want of jurisdiction, and new evidence is introduced, never before brought forward on the main issue, he will thereby be estopped to say that the issues thereby tendered can not be considered by this court on the ground that such issues have already been decided.</p> <p>42. Estopped—to assert title by owner. Where the equitable owner ■of an undivided half of a tract of land, holding under an unrecorded contract, by his acts represents the apparent legal owner as the real owner, and others deal with the latter as the owner, on the faith of his being the owner, the former will be estopped from setting up his interest in the land as against others acquiring rights from the apparent owner.</p> <p>43. Cdoud on titde—who may file bill to remove. A mortgagee may maintain a bill in equity to set aside a tax deed as a cloud on the title to the mortgaged premises. The rule applies also when the mortgagee holds under a deed absolute in form.</p> <p>44. Practice in Supreme Court—affidavits—on motion for reheating. Affidavits of newly discovered evidence will not be considered in this court on petition for a rehearing, and, on motion, will be stricken from the files.</p>

<p>1. Intoxicating diquobs—the proximate cause of death. In an action by a widow against a saloon-keeper, to recover damages caused by the sale or gift of intoxicating liquors, which produced the husband’s intoxication and death, the court instructed the jury, for the plaintiff, as follows: “And if a person sells him intoxicating liquors, so as to produce intoxication sufficient to cause the person so intoxicated to lose his life, then the wife of the deceased has a right to demand and recover,” etc.: Meld, that the instruction, in effect, makes the death, the proximate result of intoxication, necessary in order to entitle the plaintiff to recover.</p> <p>2. If an intoxicated person should fall into a stream and be drowned, or should go on a railroad and be there run over by a locomotive and killed, by reason of being incapable of exercising proper caution or taking proper care of himself, the proximate cause of his death would be his intoxication.</p> <p>3. Mixed question—of daw and fact—proximate cause of an injury —finding of Appellate Court conclusive. Whether an act is the proximate cause of an injury is a mixed question of law and fact, which must be submitted to the jury under proper instructions. And the finding of the Appellate Court as to mixed questions of law and fact is final, and not subject to review in this court.</p>

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

John J. Glenn, Judge, presiding. This was a bill in chancery, brought by George Wagner against the city of Bock Island, to have a certain ordinance ■of the city fixing the rates or taxes to be paid by persons using water from the city water works held invalid and set aside, and for an accounting as to the water rates or taxes justly payable by the complainant, and also for an injunction restraining the city and its officers from shutting off the complainant’s water supply…

H. M. Shepard, Judge, presiding. John F. Starr, owning a tract of land bounded on the north by an eighteen foot alley, on the east by Oakley street, on the south by Washington street, and on the west by other land in the city of Chicago, November 4, 1858, subdivided said tract into fourteen lots, numbered from 1 to 14 inclusive, acknowledged a plat of said subdivision, and filed the same for record.

<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>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Ogle county; the Hon. John D. Crabtree, Judge, presiding.

<p>Appeal from the Appellate Court for the First District;— heard in that court on writ of error from the Circuit Court of Cook county; the Hon. R. S. Ttjthill, Judge, presiding.</p> <p>This was an action of debt, brought by the People of the State of Illinois against Henry E. Seelye, upon a guardian’s bond, of which the following is a copy:</p> <p>“Know all men by these presents, that we, Henry M. Curtis, ¡George F. Bissell, of the county of Cook and State of Illinois are held and firmly bound unto the People of the State of Illinois, for the use of Stanley B. Sexton, minor, in the penal sum of one hundred and twenty thousand dollars, current money of the United States, which payment, well and truly to he made and performed, we bind ourselves, our heirs, executors and administrators, jointly, severally and firmly, by these presents. Witness our hands and seals, this 3d day of January, A. D. 1873.</p> <p>“The condition of this obligation is such, that, if the above bounden Henry M. Curtis, who has been appointed guardian of Stanley M. Sexton, shall faithfully discharge the office and trust of such guardian according to law, and shall make a true inventory of all the real and personal estate of the ward that shall come to his possession or knowledge, and return the same into the County Court at the time required by law, and manage and dispose of all such estate according to law, and for the best interest of said ward, and faithfully discharge his trust in relation thereto, and to the custody, nurture and education of said ward, and render an account on oath of the property in his hands, including the proceeds of all real estate that may be sold by him, if any, and the management and disposition of all such estate, within one year after his appointment, and at such other time as shall be required by law or directed by the court, and upon removal from office, or at the expiration of his trust, settle his accounts in said court, or with the ward, or his legal representatives, and pay and deliver all the estate, title papers and effects remaining in his hands, or due from him on such settlement, to the person or persons lawfully entitled thereto, then this obligation shall be void, otherwise to remain in full force and virtue.</p> <p>Henry M. Curtis, [Seal.] George F. Bissell, . [Seal.]</p> <p>J. P. Brooks, [Seal.]</p> <p>H. E. Seelye. [Seal.]”</p> <p>The declaration consists of two counts, which are in all material respects identical in their phraseology. Said counts, after reciting the bond and its condition, allege that, upon the execution and delivery of the bond, to-wit, on the 3d day of January, 1873, said Henry M. Curtis took upon himself the office and trust of guardian of Stanley B. Sexton, as in said condition mentioned, and immediately thereafter, as such guardian, assumed and took full possession, control and management of all real and personal estate of Sexton, and thenceforth was and acted as such guardian until Sexton attained his majority, and until the settlement of his guardianship accounts in the Probate Court of Cook county, on or about •March 4, 1880. Yet the plaintiff in fact saith, that the said Curtis did not faithfully discharge his office and trust as guardian'of said Sexton according to law, or according to the condition of said writing obligatory, but neglected and refused so to do, to the injury of said Sexton.</p> <p>“And for assigning a breach of said condition, the said plaintiffs say, that after the said appointment of said Curtis as such guardian, and the making of the said writing obligatory as aforesaid, and before the day last mentioned, divers sums of money and other property belonging to the said Stanley B. Sexton, amounting to a large sum, to-wit, the sum of one hundred and twenty thousand dollars, came to the hands of the said Henry M. Curtis, as such guardian, and that in the Probate Court of said Cook county, in the February term thereof, A. D. 1880, to-wit, on the 4th day of March, 1880, the said Henry M. Curtis, guardian as aforesaid, settled his accounts as such guardian, and that on such settlement, on the day last aforesaid, by the consideration and order of said Probate Court, there was found due from said Henry M. Curtis, as such guardian as aforesaid, to the said Stanley B. Sexton, the sum of fifty-five thousand one hundred and forty-one dollars and ten cents, on account of moneys and property that had come into the hands of said Curtis, as such guardian, and thereupon the said Probate Court, on said March 4, 1880, ordered the said Henry M. Curtis, as such guardian, to pay said Sum to the said Stanley B. Sexton, within thirty days thereafter, which said order of said Probate Court still remains in full force, unreversed, unsatisfied, and no appeal was ever taken therefrom: Yet the said Henry M. Curtis, guardian as aforesaid, has not paid the same or any part thereof to the said Stanley B. Sexton, but has hitherto neglected and refused so to pay the same, although often requested to so do.”</p> <p>To said declaration, the defendant pleaded, 1. non est factum,- 2. the ten years statute of limitations; 3. nul tiel record, and upon these pleas issues of fact were taken. The defendant also pleaded a fourth plea as follows:</p> <p>“And for a further plea in this behalf, by leave of the court first had and obtained, said defendant says actio non, because he says, that after the execution of the said bond by him as surety, and after the said Stanley B. Sexton became of full age, to-wit, after the 2oth day of August, A. D. 1874, the said Stanley B. Sexton and Henry .M. Curtis, the guardian for whom the said bond was given, entered into a secret agreement, without the knowledge or consent of this defendant, by means of which the funds and estate in the hands of said Curtis, as guardian, and belonging to the said Sexton, were withdrawn from the guardianship, and before the time the said Curtis, as guardian, rendered his account in the Probate Court of Cook county, and were, by the mutual agreement of the said Curtis and the said Sexton, invested in their private business, and thereby became lost, whereby this defendant ceased to be and become a surety for such funds so held by said Curtis, as such guardian, and became from thenceforth wholly released and discharged from any and all liability as surety upon said bond, and this the said defendant is ready to verify,” etc.</p> <p>To this plea a general demurrer was sustained, and the defendant having duly excepted to the decision of the court sustaining said demurrer, elected to abide by his said plea.</p> <p>At the trial, which was had before the court and a jury, the plaintiffs read in evidence the guardian’s bond and the order of the Probate Court of Cook county referred to in the declaration, and rested their case. Said order bore date March 4, 1880, and was as follows:</p> <p>“This day came Henry M. Curtis, guardian of the above named minor, in his own proper person, and also came said Stanley B. Sexton, in person and by B. W. Pike, Esq., his attorney, and the said guardian presented to the court his account with his ward filed herein on the 22d day of May, A. D. 1876, and the-court having examined the same, refused to approve said account, and thereupon the court restated the said account, showing receipts amounting to $69,595.79, and disbursements amounting to $14,454.69, leaving a balance in the hands of said guardian amounting to $55,141.10, which account as restated is approved by the court and ordered to be recorded; and it appearing to the court that said Stanley B. Sexton has arrived at full age, it is. ordered that said guardian pay over to the said Stanley B. Sexton the said balance, amounting to $55,141.10, in his hands, within thirty days from this date, and the said guardian being now present in court, no further notice hereof is required to be given to him.” '</p> <p>The defendant then read in evidence the petition of Stanley B. Sexton, filed in the County Court of Cook county December 26, 1872, praying for the appointment of Henry M. Curtis as his guardian; and also the order of said County Court, entered July 18,1873, in pursuance of said petition, appointing Curtis guardian of the person and estate of Sexton, and requiring of him a guardian’s bond in the penal sum of $120,000, with at least two sufficient sureties, to be approved by said court, conditioned and payable as required by law. Said order also recited the presentation to said court and the approval of said bond, and ordered that letters of guardianship issue to said Curtis.</p> <p>The defendant also read in evidence a petition by said Sexton, filed in said County Court October 21, 1875, representing, among other things, that the petitioner attained his majority August 25, 1874; that said guardian had made no report and had rendered no account, and that the petitioner had been unable to obtain from him a statement of his accounts as guardian, and praying that he be cited before said court to render his account in the matters pertaining to his guardianship. Also a citation issued by said court in pursuance of said petition, and served on said guardian October 26, 1875.</p> <p>The defendant also read in evidence a statement by said guardian of his accounts with his ward, verified by his affidavit, and filed in said County Court May 22, 1876, showing that his total receipts were $7452.32, and his total expenditures and disbursements $10,491.29, thus showing a balance in his favor of $3038.97; also certain objections to said account filed in said County Court, on behalf of said Sexton, at the May term, 1876, of said court.</p> <p>' The defendant then produced from the files and records of the Probate Court of Cook County, and read in evidence, the restatement of the accounts between said guardian and ward, made and approved by the Judge of that court and signed by him, said document purporting to be the re-statement of said accounts made March 4, 1880, and on which the order of the Probate Court of that date was based. The accounts, as thus restated, consist of two parts or divisions, one covering transactions from the date of the appointment of the guardian to August 25, 1874, the day his ward attained his majority, and the other covering transactions from the last named date to the date of the re-statement of the account. Thus, the first statement charges the guardian, under various dates between the date of his appointment and August 25, 1874:</p> <p>Dr.</p> <p>To sundry items received.................... $9,311.04</p> <p>1872.</p> <p>Oct. 4....Claim against H. E. Seelye, estate moneys in his</p> <p>hands........................................... 9,500.00</p> <p>Compound interest on same to March 4, 1880, 7 years and 5 mos., deducting $500 for value of</p> <p>house turned over to Sexton Mar. 24, 1879....... 4,473.61</p> <p>To 6 per cent compound interest on balance of ward’s income in the guardian’s hands, $3,046.13,</p> <p>Oct. 4,1873, from that date, 6 years, 5 months and</p> <p>9 days, to March 4,1880.......................... 1,389.29</p> <p>To 6 per cent compound interest on balance of ward’s income in guardian’s hands Aug. 25, 1874,</p> <p>received by him after Oct. 4, 1873, and included in amount last above mentioned, $3,402.70, to</p> <p>Mar. 4, 1880, 5 years, 6 months and 9 days........ 1,294.07</p> <p>To amount of penalty and interest paid to redeem</p> <p>from tax sale of ward’s property................. 275.88</p> <p>To interest on same to Mar. 4,1880 ................ 102.77</p> <p>$26,346.66</p> <p>In the same statement, the guardian is credited, under various dates during the same period, with sundry disbursements, amounting to $3253.95.</p> <p>In the second part of the accounts, as restated, the guardian is charged as follows:</p> <p>1874.</p> <p>Sep. 4. To cash from sale of 83 ft. on Indiana avenue.....$21,700.00</p> <p>1875.</p> <p>Mar. 7. Loan from Sheldon and Waterman................ 12,000.00</p> <p>Mar. 6 to May 20. Items of cash received.................... 953.84</p> <p>To 6 per cent interest from Sept. 4,1874, to March 4, 1880, 5 years, 6 mos., $17,800, the same being balance of amount received from sale of Indiana avenue property, after deducting amounts paid to and for account of Sexton, from Aug. 25,</p> <p>1874, to Jan. 1, 1875.............................. 6,735.02</p> <p>To compound interest on $5,500, balance of $12,000 loan for 5 years.................................. 1,860.24</p> <p>$43,249.13</p> <p>The guardian was also credited in said second statement with sundry disbursements, and payments made to his ward, between August 25, 1874, and December 30, 1875, amounting to $11,200.74.</p> <p>A recapitulation of the two accounts was then made in which the totals of the debits of the two accounts were added together, and the two totals of credits deducted, leaving $55,-141.10, as the sum due from said guardian to his ward, that being the identical sum found by the judgment of the Probate Court to be due from said guardian to his ward, and which said guardian was ordered to pay over to said ward. Said recapitulation was as follows:</p> <p>RECAPITULATION..</p> <p>Henry M. Curtis, guardian. Dr.</p> <p>To amount of receipts from Oct. 4, 1872, to Aug. 25, 1874, as</p> <p>per minority account...................................... $26,346.66</p> <p>To amount of receipts from Aug. 25, 1874, to March 4, 1880... 43,249.13</p> <p>Total debit................•............................$69,595.79</p> <p>Cr.</p> <p>By amount disbursed from Oct. 4, 1872, to Aug. 25,</p> <p>1874............................................. $3,253.95</p> <p>By amount disbursed from Aug. 25,1874, to March</p> <p>4, 1880..............•............................ 11,200.74</p> <p>Total credit................................. 14,454.69</p> <p>Balance due March 4,1880................................... $55,541.10</p> <p>The foregoing being, in substance, all the material evidence adduced at the trial, the court, at the instance of the plaintiffs, instructed the jury as follows:</p> <p>“The court instructs the jury, that it is their duty, upon the evidence, to' render their verdict for the plaintiffs, for the use of Stanley B. Sexton, for $120,000 debt, and damages $55,-141.10, with interest at the rate of six per centum per annum from March 4, 1880, to this date.”</p> <p>The defendant asked the court to give to the jury various instructions presenting his theory of the law applicable to the several defenses sought to be interposed by his pleas, all of which instructions were refused. The jury thereupon, in obedience to the instruction thus given them, found a verdict in favor of the plaintiffs for $120,000 debt and $85,468.70 damages, and the court, after denying the defendant’s motion for a new trial, rendered judgment in favor of the plaintiffs for their debt and damages as found by the verdict and for costs. On writ of error to the Appellate Court, said judgment was reversed, no order being entered remanding the cause to the Circuit Court for a new trial. Said judgment of reversal is now brought to this court by appeal.</p>

<p>Writ oe Error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. A. S. Wilderman, 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. S. P. McConnell, Judge, presiding.</p> <p>Between the 1st and 15th days of January, 1891, appellee, as sheriff and ex officio jailer of Cook county, furnished sundry supplies necessary for dieting the prisoners in the common jail of said county, the cost of the same aggregating $1267.72. The board of county commissioners having refused to allow the same, appellee brought suit therefor.</p> <p>December 26, 1890, said board adopted the following resolutions :</p> <p>“Resolved, That the sheriff, ex officio keeper of the jail, be and hereby is directed to make application to the superintendent of public service for such supplies for the feeding of the prisoners at the jail at such time, of such quality and in such quantity as he deems necessary and expedient, in the same manner as he now applies for their clothing, bedding, etc., and under the same rules as are applicable to the other public institutions of the county; and be it further</p> <p>“Resolved, That the superintendent of public service be and is hereby directed to ascertain the kind, quality and quantity of food necessary to enable the sheriff to serve such prisoners in the county jail with sufficient food, of a good quality, three times each day, and that the superintendent of public sérvice thereupon advertise for bids for such food, in the same manner as is now required by law for other institutions of the county; and be it further</p> <p>■ “Resolved, That the sheriff be and is hereby instructed to make application to the board for the necessary help to well prepare and to serve the food in sufficient quantity to serve the prisoners at the jail.”</p> <p>The cause was tried by the court, by consent, upon the following agreed statement of fact: “That the amount sued for is $1267.72, being the actual cost and expense of keeping, maintaining and furnishing the jail of Cook county, Illinois, between the 1st and 15th days of January, 1891, and was expended by the plaintiff, as sheriff and ex officio jailer of said county, for the articles mentioned in the bill of particulars attached to the declaration herein; that the plaintiff entered into the office of sheriff of said county on the first Monday in December, 1890, and had not, at any time prior to the passage of the resolution of December 26, 1890, applied to the county board for supplies, clothing, bedding, etc., by requisition or otherwise, for the use of said jail; that during the time the plaintiff furnished the articles mentioned in said bill of particulars, the county board of said county had fixed no compensation to cover the actual cost of dieting each prisoner, nor had made any other provision therefor, nor for the furnishing of said jail, other than that contained in the resolution of December 26, 1890, which resolution, as set out in the defendant’s additional plea, is admitted to be a true copy of the resolution as passed by the county board; that the plaintiff presented his bill to the county board in due form, which was by the said board disallowed, oh the ground of non-compliance with the said resolution of December 26, 1890,”</p> <p>The court found for "the defendant and entered judgment against the plaintiff for costs. On appeal to the Appellate Court this judgment was reversed and the cause remanded, with instructions to enter judgment for plaintiff for the amount stipulated. The county prosecutes this appeal,</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Jefferson county; the Hon. E. D. Youngblood, Júdge, presiding. ■</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. B. R. Burroughs, Judge, presiding.</p> <p>The original bill in this case was filed in the Circuit Court of Cook County on July 31, 1890, by the appellee, The Mutual Union Loan and Building Association of Chicago, against Augusta M. Spies and John Spies, her husband, and Daniel Corkery, trustee, to foreclose a trust deed, dated October 15, 1888, executed by said Augusta M. and John Spies to said Corkery, as trustee, conveying lot 69 in Waller’s subdivision, etc., in Cook County, (being a lot 25 feet front by 100 feet deep in Chicago, known as No. 71, 22d Place) for the purpose of securing their bond of the same date for the payment of §4200.00 to said Association. It appears that on July 1,1889, Augusta M. Spies obtained a divorce from her husband, John Spies, and was allowed to resume her former name, Augusta M. Lagger; that the said Augusta M. Lagger had intermarried with said Spies on April 7, 1888; that, at the time of said marriage, said Augusta was the widow of Joseph E. Lagger, deceased; that said Joseph E. Lagger died intestate on June 28,1887, leaving him surviving his widow, the said Augusta, and six minor children, William B., Minnie M., Frank J., Joseph S., Lucy K., and Bosa P. Lagger, the oldest son, William, having been born September 24, 1867, and the oldest daughter on April 12, 1872; that, at the time of his death, the said Joseph E. Lagger was the owner in fee of said lot 69; that, when he died, said lot was free from liens and" there were upon it a small brick house in front and a small frame cottage in the rear; that said premises were at the time of his death, and had been prior thereto, the homestead of said Lagger and his family, and, after his death, his widow and children continued and still continue to occupy the same as their homestead.</p> <p>The original bill was amended by changing the name of Augusta M. Spies to Augusta M. Lagger; and the latter answered the bill, admitting the execution of the bond and trust deed. Upon their petition the said children were allowed to be made defendants; a guardian ad litem was appointed and answered for the minors, and said William B. and Minnie M., having become of age on November 28, 1890, filed their answer, alleging that they were strangers to the transactions between complainant and said Augusta, as set up in the bill, denying that said premises described in the trust deed were ever owned in fee by said Augusta, or that she had any estate therein except one of homestead, or that complainant was entitled to any relief, and charging that the children of Joseph E. Lagger, deceased, were the owners in. fee, as tenants in common, of said premises by inheritance from their father, that said Augusta derived her pretended title thereto through a sale by her as administratrix under certain proceedings in the Probate Court of suit County, but that said sale and proceedings were irregular and void as to said children.</p> <p>The said children filed a cross-bill in the case against said Association and said Corkery and Augusta M. Lagger and John Spies, praying that said proceedings and sale be set aside, and that the deeds based thereon and said trust deed be set aside and declared to be void as against them and clouds upon their title.</p> <p>The cross-bill was taken as confessed against Corkery and John and Augusta Spies. The Association answered it denying the material allegations, and alleging that the administratrix’ sale was valid, and that Augusta M. Spies was the bona fide owner in fee of the premises when the trust deed was made; that its claim is for money expended for improvements upon the premises which have enhanced the value thereof; and denying that it knew of the matters and things alleged as to fraud against cross-complainants.</p> <p>The decree of the Court below, after setting forth the death and heirship and the Probate Court proceedings, finds that the premises were sold on July 16,1888, by the administratrix to her husband for an alleged consideration of $1650.00, subject to the dower and homestead rights of the widow, but that no consideration was paid by John Spies or Cora B. Hirtzel or said Augusta for the deeds so made to them j that said Augusta gave the estate of Joseph E. Lagger a receipt for $1650.00 which was credited on her widow’s award; that the administratrix was the real purchaser at said sale; that no provision was made at said hale or by any order for setting aside to the children their homestead rights in the premises nor for the release of the same j that said Association, when it took the trust deed, had constructive notice that the land had been sold by the administratrix to her own husband, and upon inquiry would have learned that she was the purchaser at her own sale; that said premises when so sold were worth §2840.10 and that said Augusta and her children had an estate of homestead therein of the value of $1000.00; that almost all the money borrowed of said Association and secured by said bond and trust deed, was used in erecting a building on said premises whereby the same have been improved in value at least $2500.00; and it was thereupon ordered in said decree that said Augusta and John pay said Association $4777.30 with interest and costs, etc., within 30 days, and in default that said premises be sold by a master free of all liens by the parties to this proceeding, and that, out of the proceeds, the master pay the costs, next pay to said Association $4340.10 to be credited on the amount due to it as aforesaid from said Augusta and John, being the amount of the equitable interest of said Augusta in said premises, the balance to be paid to the cross-complainants in equal shares.</p> <p>The present appeal is prosecuted by the said cross-complainants, the children of said Joseph E. Lagger, deceased, who assign errors. Cross-errors are assigned by the appellee, The Mutual Union Loan and Building Association.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the City Court of the City of Aurora; the Hon. A. H. Barry, Judge, presiding.</p> <p>This was a citation, originally, in the county court of Kendall county, against Gilbert D. Henning, guardian of Gilbert • Eldridge, to require an accounting and settlement as such guardian. The county court having entered its order, the case was taken, by appeal, to the circuit court. That court found the amount due to the ward, in the hands of the guardian, at $1396.80, and entered its order accordingly. The guardian appealed to the Appellate Court, where the order was reversed and the cause remanded, generally. At the June term, 1887, of said circuit court, the cause was referred to a special master, to take the proofs and state an account between the parties, etc. The special master reported, stating the amount due from the guardian to his ward to be $2627.11. By stipulation the venue of the cause was changed to the City court of the city of Aurora. Both parties filed exceptions to the master’s report, which were disallowed, and, on hearing, an order or decree was entered requiring the guardian, within a time fixed, to pay to said ward $2627.11, and costs of suit. On appeal by the guardian to the Appellate Court, this order of the City court was reversed, and the cause was remanded, with specific directions to the City court to strike out an item of $311.50, and all accrued interest thereon, included by the master in his report and charged to the guardian.</p> <p>The order of fhe Appellate Court, filed December 8, 1891, is as follows: “The order of the court below is therefore reversed, and the cause remanded to that court, with instructions to the court to strike out the account of $311.50 charged against appellant, and all accrued interest charged thereon, by the master, and disallow to appellant the above item of $252.06, the one being intended to offset the other.” The court then said: “We find no other error in the record.” The judgment followed the order.</p> <p>On filing the remanding order, the City court struck out the items named, and entered the judgment following: “This cause coming on to be heard in open court, and the said ward being represented by,” (attorneys,) “and the said Gilbert D. Henning being personally in court and represented by his attorney, * * * and the court being fully advised in the premises, * * * doth, in pursuance of the order and mandate of the Appellate Court which reversed and remanded this cause for further consideration, and in obedience to the instructions of said court, strike out the account of $311.50 charged in the report of the special master against the said Gilbert D. Henning, appellant, and all the accrued interest charged thereon by the special master, and doth, in further pursuance of the order and instructions of said court, disallow to said guardian the item of $252.06 referred to in said special master’s report, and after striking out said sum of $311.50, and all accrued interest charged thereon by the said special master, the court doth hereby find, in accordance with the decision and order of the Appellate Court, that there is now due to the said Gilbert Eldridge, from the said Gilbert D. Henning, as guardian, on a true and faithful accounting, the sum of $1719.50.” Then follows the usual order of payment of said last named sum. From this order the guardian again appealed to the Appellate Court, where the judgment of the City court was affirmed, and the guardian again appeals.</p>

<p>Appeal from the Circuit Court of Lawrence county; the Hon. Cabkoll C. Boggs, Judge, presiding.</p>

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

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

<p>Appeal from the County Court of Cook county; the Hon. Frank Scales, 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. E. W. Cliefobd, 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. Tulby, Judge, presiding. The following statement by the Appellate Court sufficiently presents the questions involved: °</p> <p>“ One Annie M. Miller filed in the circuit court her bill for an injunction restraining William J. Arkell and Lucy W. Drexel from interfering with her possession of certain premises, she claiming an interest therein by virtue of an alleged lease by Joseph W. Drexel to her of certain premises described as block 5, in certain subdivisions of the north half of section 19, township 38, range 14. Ellen P. Vail was made a party defendant, the only allegation as to her being that she claimed some interest in the premises. No relief against her was asked.</p> <p>“The defendants, Arkell and Drexel, answered the bill, denying that complainant had any such lease, or any interest, equitable or otherwise, in the said premises, and filed a cross-bill, alleging that the said Annie M. Miller and Alexander Miller, being unlawfully in possession of lots in said block 5, exercise acts of ownership over the whole block of which they allege they are the owners, and trespass upon the rights of complainants in said cross-bill, and that said Annie and Alexander Miller threaten and intimidate the tenants of orators on said premises, and threaten to commit further trespasses, and to drive off, with force, orators’ tenants, and prevent orators from taking possession of said premises by tenants. The cross-bill asked for an injunction against the said Annie and Alexander Miller, restraining them, etc. Ellen P. Vail was made a party defendant to 'this cross-bill, but the bill set up no title in her and asked for no relief as against her.</p> <p>“Ellen P. Vail answered the bill of Annie M. Miller, the cross-bill of Drexel and Arkell, and filed her cross-bill, alleging that on the 14th day of July, 1883, she was the owner of an equal undivided half part of the lots and lands in said bill and cross-bill described, and of the north half of section 19, in the town of Lake, in the county of Cook and State of Illinois, subject to the payment of certain purchase money to one Joseph W. Drexel; that in March, 1875, Joseph W. Drexel filed his bill to foreclose the agreement of purchase under which she, said Ellen P. Vail, claimed title, making her and other parties defendants thereto; that a decree was entered decreeing the payment of the money found due on such contract, within sixty days; that she sued out a writ of error to reverse said decree, and It was reversed by the Appellate Court and ordered to be set aside and wholly for nothing esteemed; that said cause was redocketed in the circuit court, and the bill, against the protest of her, the said Ellen P. Vail, amended, but that the amendments did not materially alter the allegations of the bill as passed upon by the Appellate Court; that said bill was without equity; that the only order the circuit court was authorized to make was an order dismissing the bill, but notwithstanding this, the circuit court entered a pretended decree inconsistent with the opinion and decree of the Appellate Court; that by said decree the defendants thereto were ordered to pay the sum of $135,842.45, with interest, and costs, and thereupon the complainant, Joseph W. Drexel, was to execute and deliver a warranty deed of said premises. The cross-bill further sets forth that said decree was in direct violation of the order of the Appellate Court, and of the law of the case as determined by the Appellate Court; that notwithstanding the order of the Appellate Court, said decree ordered that in default of such payment the said land should be sold by the master, and that out of the proceeds the master should pay to said Drexel the amount found due as aforesaid, with interest,- etc.; alleges that said decree was illegal and void, because it contained .no provision for redemption; that said decree was amended October 9, 1883; further alleges that the master gave public notice, for three weeks, that he would sell said premises; alleges that no' valid notice could be given until the expiration of thirty days from the date of said amendment to said decree; that the date of the first publication of notice was October 13, 1883, and of the1 last, October 27,1883; alleges that said notice was premature, illegal, unauthorized and void; that said decree was placed upon the record of said circuit court at the September term, 1883, of said court; "alleges that complainant and her co-defendants were entitled to thirty days from and after the expiration of said September term of said circuit court in which to pay said sum so found due, as aforesaid; that on the 5th day of November said master pretended to offer said premises for sale; that there was no bidder save said Drexel, and that he became the purchaser; alleges that while said decree and sale are void, yet complainant offers to pay the amount of said decree, together with interest and costs; that the master has not made to said Drexel any valid conveyance of the said premises, or any part thereof, and that no valid conveyance can be made, and that she and her co-defendants have the right to redeem said premises; waives answer under oath, and prays for a discovery as to all sales of any portion of said premises, an accounting, and, after payment by her of the amount so found due as aforesaid, with interest and costs, a conveyance of said premises by the defendants to complainant and her co-defendants.”</p> <p>A demurrer to this cross-bill by the executors of Joseph W. Drexel and Lucy Drexel was sustained and the cross-bill dismissed. On appeal to the Appellate Court from such order the decree was affirmed.</p>

<p>Eminent domain—evidence of the value of land taken. In a proceeding by a railway company to condemn land for a right of way, evidence of the prices paid by the petitioner to other property owners for right of way along its line is incompetent, and not admissible.</p> <p>2. Evidence of sales of other similar property in the neighborhood, at or about the same time, tends to show the fair market value of the property sought to be condemned; and such sales, when made in a free and open market, where a fair opportunity for competition has existed, become material and important factors in determining the value of particular property. But to have that tendency they must have been made under circumstances where they are not compulsory, and where the vendor is not compelled to sell, at all events, but is at liberty to invite competition among those desiring to purchase.</p> <p>3. Same—evidence of amount of damages. On the trial of a proceeding to condemn land for a public use, the court instructed the jury that they were the judges of the credibility of the witnesses, and the value of their testimony in relation to the compensation and damages; and if, after full consideration of all the testimony in the case, with their own inspection of the premises, they might conclude their inspection was a more reliable basis for the estimate and assessment of compensation and damages, then they had the right, under the law, so to do, but that they should not arbitrarily and without reason reject any of the testimony: Held, the instruction was erroneous.</p> <p>4. Same—personal view—in the nature of evidence. The results oE a personal view of the premises by the jury in condemnation cases are in the nature of evidence, and may be taken into consideration by them in passing upon the testimony of the witnesses, and when the evidence is conflicting they may be resorted to by the jury as bearing upon the weight to be given to the variant and conflicting estimates given by the various .witnesses. But the jury should be required to act upon all the evidence, and not upon the evidence furnished by their personal view.</p> <p>5. An instruction in a condemnation proceeding which authorizes the jury to base their estimate of compensation and damages solely upon their own inspection of the premises, provided, only, they are of opinion such inspection furnishes a more reliable basis for an assessment than the evidence of the witnesses, is erroneous.</p>

<p>1. Evidence—waiver of preliminary proof. Where the conduct of a defendant is such as to induce the plaintiff's counsel and the court to act upon the assumption that further preliminary proof was waived, the defendant can not be heard, on appeal or error, to complain of the failure of the plaintiff to make preliminary proof of the execution of notice to terminate a tenancy, and of a demand for possession.</p> <p>2. Same—waiver of notice to determine tenancy. On the trial of an action of-forcible detainer, the plaintiff sought to prove the service of the landlord’s notice to terminate the tenancy, and the defendant’s counsel stated to the court that the lease was terminated by such notice, whereupon the notice was admitted in evidence without further preliminary proof: Held, that by such course the defendant waived his right to have the full preliminary proof of the notice, and could not assign for error the ruling and action of the court.</p> <p>3. In such case, the admission that the notice terminated the tenancy will be held to admit its termination before suit brought, and the admission will be treated as made for the purpose of the trial, and defendant’s counsel can not thereafter gainsay his admission.</p> <p>4. Foroibde detainer—party plaintiff—grantee of lessor. The devisee or grantee of a lessor, by express statute, may maintain an action of forcible ¡detainer in his own name.</p> <p>5. It is undoubtedly true that when entry is made upon the possession of the tenant, he will have the right of action against the party so entering from the moment of such entry.</p> <p>6. But the same right to terminate a tenancy for non-payment of rent, and upon its termination to proceed for the unlawful detention of the premises, will exist in the grantee of the lessor as in the original landlord.</p> <p>7. Where the right of immediate possession is in .the tenant, an action for the forcible entry must be brought by him. But that by no means interferes with the right of the landlord to bring the action of forcible detainer, upon the determination of the tenancy, for any of the causes named in the statute.</p> <p>8. Where a landlord is in possession through his tenant, the tenancy will not be terminated by the intrusion of a third person, by collusion, into the premises, but such tenancy will be determined by notice thereof, and demand made by the landlord upon both the tenant and the intruder.</p> <p>9. Same—against whom action lies. A landlord, upon the termination of the tenancy, has the right to maintain forcible detainer against the tenant, or any person in possession by, through or under him, who may hold over.</p> <p>10. The second clause of section 2 of the act of 1874, relating to forcible entry and detainer, which provides that persons entitled to the possession of lands or tenements may be restored thereto in the manner specified in the act¡ when a peaceable entry is made and the possession unlawfully withheld, does not apply to tenants holding over after the determination of the lease under which they entered. It is not necessary that the relation of landlord and tenant, or other contractual relations, should exist, to authorize restoration to the possession of the party entitled to it, under such second clause.</p> <p>11. The purpose of the provision is to protect possessory rights in lands and tenements from invasion without force, and the detention of the premises from the person possessing such rights, and to compel resort to legal proceedings to obtain possession of lands or tenements in possession of another, although peaceable entry might be made.</p> <p>12. The question of the title to land is not involved in an action of forcible entry and detainer. In such case the right of possession, only, is in controversy.</p> <p>13. Same—when possession becomes unlawful. Every detention of premises after demand duly made, by persons who have intruded into the possession of another, becomes an unlawful detention, wijhin the meaning of this statute, however peaceably the entry may have been made.</p> <p>14. Where the possession of a tenant is invaded by an unlawful entry, he may maintain trespass, or forcible entry and detainer. But a right of action by the landlord for the detention of the property will not accrue until his right of entry into the premises arises upon termination of the tenancy. When that terminates the landlord’s right of restoration to his possession of the demised premises becomes complete, and after demand for possession upon the intruder, the detention by him becomes unlawful, and a right of action will accrue, under this clause of the statute, for the unlawful detention.</p> <p>15. It is well settled that no rights can be acquired to the possession of land by open violence, or by intrigue with those who take possession from the landlord. All such stand in the shoes of the tenant.</p> <p>16. During the term of a lease, a third person, by force, or intrigue with the tenant, went into the possession of the premises. Thereupon the landlord terminated the lease, by notice, for non-payment of rent, and made a demand in "writing upon the intruder for possession, which was refused: Held, that after such demand and refusal the detention of the premises became unlawful, and that the landlord might recover possession by forcible detainer.</p>

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

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.</p> <p>This was a hill in chancery, brought by George Husser and others against William Schweiker and others, to restrain the defendants from interfering with complainant Husser, in acting as pastor of/fet. John’s Society\known as Noble Street Church, Chicago, of Evangelical Association of North America.^ The bill alleges that complainant Husser is the lawful pastor of the society; that defendant Schweiker is now acting as such pastor, but is not “legally entitled to dn.so. and that the other.dgfendants, w.ho_are_the trustees of the-society, support defendant_Sflhwaiker jn his unlawful occupation of the pulpit, church and parsonage of the society, and exclude complainant .JHusser therefrom, and also exclude the other complainants, ^yho are members of the society, and adhere to Husser as the lawful-pastor, from worshiping in the church, with Husser as their pastor. "</p> <p>The Evangelical Association of North America is a religious denomination originally organized about the year 1800, among the German-speaking people of the State of Pennsylvania, by Jacob Albright. Since that time it has extended into various portions of the United States, including the State of Illinois, and to some extent to foreign countries, so that it now embraces twenty-five annual conferences, and has about 150,000 communicants. Albright had formerly been connected with the Methodist Episcopal Church, and the form of doctrine, discipline, organization and church government adopted by him and his associates for the religious body formed by them were to a very great degree patterned after those of the denomination of which he was formerly a member.</p> <p>The Evangelical Association, as the bill alleges and as the evidence tends to show, is organized under the assoniated-or connectional form of church government, having a formulated consIrtútioiT oi\co.d.e_ftfjiil&srfkpowm-aa--jih.e.--.l)iscipline^.and having a system of graded ecclesiastical executive, legislative and judicial bodies a,nd officers, for the administration of its church laws and its internal affairs, in and by which rules and system of government, each local society or congregation is a subordinate member of the general organization, and all such bodies, officers and societies, as well as the individual members of the denomination, are subject to the provisions of the Discipline.</p> <p>The various bodies, supreme and subordinate, which constitute the denominational organization, stated in the order of their priority, are, a General Conference, Annual Conferences, Quarterly Conferences, Societies or Congregations and Classes. The General Conference, in which is vested the supreme legislative, judicial and executive authority of the denomination, is a representative body, convening quadrennially, and being composed, in addition to the Bishops and certain other denominational officers who are ex officio members, of delegates selected by and representing the several Annual Conferences, the_ basis of representation being, one delegate for every fourteen members and for every fraction of seven or over, of the Annual Conferences. An Annual Conference is held each year in each of the several districts into which the territory occupied by the denomination is divided, and is composed of all the itinerant preachers within the respective districts who, by ordination, are in full connection with the ministry. In the selection of pastors for the various Societies or Congregations, the itinerant system is adopted, and the pastors are appointed each .year at the Annual, Conferences, the power of assigning pastors to their respective fields of labor being by the Discipline vésted in the Bishop and presiding elders. It will thus be seen that the government of the denomination is essentially ecclesiastical, the laity, as such, having no seat or voice, by representation or otherwise, in either the Annual Conferences or the General .Conference, and no control of the appointment of their pastors.</p> <p>At each meeting of the General Conference Bishops are appointed to serve for the term of four years, their number being fixed each time at the discretion of the Conference. The Discipline provides that, at the General Conference, a Bishop shall preside, but if no Bishop is present, a presiding officer shall be elected by the Conference, and that Bishops present who are not in the chair shall be ex officio members, and that two-thirds of the aggregate number of delegates shall constitute a quorum. Also, that “at Annual Conferences, a Bishop shall act as president. If there be no Bishop present, the Conference shall elect one of the elders chairman.” Sections 73_and 74 of the Discipline are as follows:</p> <p>“Sec. 73. The General Conference shall have power to make rules and arrangements for our church, under the following restrictions:</p> <p>“1. The GeneraLCpnference shall havgjuo power to alter, detract from, or add to any of our Articles of Faith; except with regard to the governments of other nations.</p> <p>“2. It shall have no power to" alter ajny rules or forms of our Church Discipline (the rules of our temporal economy being excepted), unless such alterations are previously recommended by two-thirds of the members ..of (all\the Annual Conferences, who may be present at the sessions of the same; whereupon the General Conference shall have power, by a majority of three-fourths of their votes, to alter any of our rules and forms, excepting the Articles of Faith. It_shall also have power, by three-fourths of its votes, to recommend ‘tp the. Annual Conferences an alteration of any of said rules and forms; and after such alteration shall have been approved by'two-thirds of the members present at the sessions of all the Annual Conferences, it shall by our Bishops be declared a law, and introduced as such into our Church Discipline.</p> <p>“Sec. 74. The General Conference is the supreme court of law in the church. It shall decide upon the legality of all acts of the Annual Conferences, and upon all such cases as may arise between the Annual Conferences, and such as may arise between any incorporated society of the church and its officers, or any Annual Conference; and in its judicial capacity, it shall decide, render verdict and declare judgment, only in such cases as are lawfully brought before it for adjudication.</p> <p>“It shall have power to make such rules and regulations .as will enable it to execute the powers conferred upon it.”</p> <p>Section 71 of the discipline is as follows:</p> <p>“Sec. 71. The time and place of the General Conference shall be appointed by the Bishops, with the consent of a majority of the Conference; and if there be no Bishop present, the General Conference shall do it by a majority of votes, or the oldest Annual Conference, who then shall give the other Annual Conferences due notice of the time and place.” __</p> <p>It is further provided by the Discipline, that the Bishops shall be amenable for their conduct to the General Conference, which shall have power, if circumstances require, to depose the Bishop from office, or expel him from the church. Also, that if a Bishop shall be accused, during the interval between the sessions of the Conference, of immoral conduct, three of the elders shall meet and examine him, and if they shall actually be of the opinion that he is guilty of the alleged crime, they shall call one or two presiding elders, and as many preachers standing in full connection as they may deem necessary, yet so that they be not less than seven in number, whereof at least one shall be a presiding elder. These are constituted a conference, who shall examine the charge alleged against the Bishop, and if two-thirds of the members thus called shall find him guilty of the charge brought against him, they shall have power to suspend him from office until the next General Conference, which shall then determine the whole matter. But a charge against a Bishop must be preferred in writing, and subscribed by those who are willing to substantiate the alleged crime, and the accused Bishop is to have a copy of the same.</p> <p>A meeting of the General Conference was held at Buffalo, New York, in October, 1887, and no question is made by either party as to the regularity or validity of that body as the lawful General Conference. At that time three Bishops had been appointed and were in office, viz., Bishops Esher, Bowman and Dubbs, and all three were present and took part in the proceedings of the Conference, each presiding during portions of the session. It had been usual on former occasions for different societies belonging to the denomination who desired to have the next session of the General Conference held with them, to present to the Conference invitations to that effect, and tender their hospitalities to its members. These invitations were considered by the Bishops and Conference in determining the place for the next meeting. At the Conference held at Buffalo in- October, 1887, but one invitation of that character was received, and before the place for holding the next meeting was finally selected, that invitation was withdrawn. The Conference thereupon, by a unanimous vote, passed the following resolutions :</p> <p>“Resolved, That the next meeting of the General Conference shall begin on the first Thursday of October, 1891.</p> <p>“Resolved, That the matter of appointing the place of the next General Conference be referred to the Board of Publication.”</p> <p>The Board of Publication named in the second of these resolutions is an official board of the denomination, having charge of its book and publication department, and consisting of the Bishops, and eight other members, selected from the members of the Annual Conferences, one from each of eight districts into which the territory covered by the denomination was for that purpose divided. The adoption of these resolutions received the unanimous assent of all the members of the conference, including the three bishops, and at the close of the session, all the members caused their names to be signed to the minutes of the proceedings, in token of their assent to and approval thereof.</p> <p>In October, 1890, the Board of Publication, in pursuance of the authority vested in them by the above resolution, fixed and appointed the place for the next meeting of the General Conference at Indianapolis, Indiana, and at once gave notice of their action in the newspapers of the denomination. Bishops Esher and Bowman were present at the meeting of the Board at which this action was taken, and both assented thereto.</p> <p>In the meantime, serious controversies had arisen in denomination, especially involving the three Bishops, and two parties were formed, one under the leadership of Bishop Dubbs and the other under that of Bishops Esher and Bowman./ These controversies became quite bitter, and in the early part of the year 1890, they resulted in the preferring of accusations against each of the Bishops, and their trial and suspension from office, until the next meeting of the General Conference. Bishop Dubbs, upon his suspension, ceased to discharge the duties of his office of Bishop, but in the cases of Bishops Esher and Bowman, there seem to have been previous examinations by three elders as to the same accusations, and on such examinations the conclusion was reached that the accusations were unfounded, and Esher and Bowman, thereupon, assuming the position that there was no authority for a second examination upon the same charges, refused to submit to further examinations, or to obey the summons of the conference organized to try them, and they therefore failed to appear at their trials, and subsequently refused to recognize the validity of the judgments of suspension pronounced against them, and continued to perform the duties of their office.</p> <p>The East Pennsylvania Conference, which claims to be the oldest Annual Conference, met in February, 1891. At that meeting Bishop Bowman appeared and applied for admission, but was forcibly excluded by the majority, whereupon about forty members, being a minority, protesting against Bishop Bowman’s exclusion, amTmsTstíñg t'Mt"™no^vali"d~Conference could be held without a Bishop so long as one was present, withdrew to another place and held a session with Bishop ..Bowman in the chair. The majority remained and passed resolutions, which set forth., that , the General Conference in 1887 had neglected to fix the place for its next meeting, and that thereby the duty of fixing such place devolved, by the provisions of the Discipline, upon the East Pennsylvania Conference, as the oldest Annual Conference, and fixing and appointing Philadelphia as the place for the next meeting of the General Conference.</p> <p>t~ Prior to October 1, 1891, the date fixed for the meeting of [the General Conference, eighteen of the Annual Conferences had expressed their disapproval of the proceedings against Bishops Esher and Bowman, and had recognized them as V.being unaffected thereby. In fivejq£ the remaining seven Annual Conferences, the Illinois Conference being one, Bishop Esher or Bishop Bowman, havingpresented himself to.the Conference and being excluded, a large number of the preaphers left the Conference and proceeded to hold sessions elsewhere, under the presidency of one or the other of these Bishops. Only two of the Conferences adhered without division to the party of Bishop Dubbs.</p> <p>Elections of delegates to the General Conference took place at the meetings of the Annual Conferences held in 1891. Eighteen of the Conferences were unanimously of the opinion that Indianapolis was the lawfully appointed place for holding the General Conference, and they accordingly elected and sent their delegate's to the Conference to be held at that place. The total number of delegates selected by those eighteen Conferences was sixty-eight. In the five divided Conferences, delegates to the Indianapolis meeting were in like manner elected by those members who convened as Conferences under the presidency of Bishop Esher or Bishop Bowman. The total number of delegates thus elected was twenty-four, making in all ninety-two delegates elected to Indianapolis, and representing or claiming to represent in all twenty-three of the twenty-five Annual Conferences. Bishops Esher and Bowman, and all the other General officers of the church which by the Discipline were ex officio members of the General Conference, recognized Indianapolis as the proper and legal place for the meeting, and a sufficient number of them attended the Conference held at that place to make the total membership of that Conference one hundred.</p> <p>The two Conferences which sent no delegates to Indianapolis-elected fourteen delegates to Philadelphia, and thirty-one delegates were sent to Philadelphia from the five divided Conferences, mailing forty-five in all. None were sent to Philadelphia from the eighteen*other Conferences. Bishop Dubbs also attended, thus making a total membership of forty-six.</p> <p>The two rival Conferences met on the same day and held their sessions. ' At both; the matter of the proceedings against the three Bishops resulting in their suspension from office, and also the divisions in the five divided districts, came up for adjudication. At-Philadelphia, Bishop Dubbs’ suspension was declared wrongful and" was set- aside, and the proceedings against Bishops Esher and Bowman were approved and affirmed, and they were declared expelled from the church. The preachers in the divided districts who had excluded Bishops-Esher and-Bowman and organized Annual Conferenees with presiding officers of their own selection, were recognized as the legal_Annnal. Conferences. At Indianapolis, on the other hand, the proceedings against Bishops Esher and Bowman were reviewed.at length, and declared to be void ab initio, and the Annual Conferences in the divided districts which had "convened under the presidency of those Bishops were adjudged to constitute the only lawful Annual Conferences for those districts.</p> <p>The decision of the Indianapolis Conference that the proceedings against Bishops Esher and Bowman were not only irregular but absolutely void ab initio, was based, among other things, upon the ground that the same charges against them had already been examined thoroughly and in good faith, by a committee of three elders, and that upon such examination, the charges were all ascertained to be wholly unfounded, it being declared as a law of the denomination, that such examination and finding made it unlawful for any other committee to re-examine them upon the same charges, and also made it their duty to refuse to submit to any further examinations * and as the committee of elders who attempted to make the second examination, as well as the tribunal who assumed to try them, had full knowledge of the former examination and its result, their prosecution was wholly unauthorized and without jurisdiction. The proceeding against Bishop Esher was held to be without jurisdiction and void for the further reason, that the committee of elders who undertook to examine him, instead of going to Chicago, where the Bishop resided, and holding the examination there, as required by the laws and usages of the denomination, summoned him to appear before them at Beading, Pennsylvania, some 800 miles from his home, and where he was not bound to go. It was therefore held that the proceedings against these Bishops which resulted in judgments of suspension being void from the beginning, such judgments had in no way disqualified them for performing the duties of their office and that the Annual Conference had no power to exclude them from presiding. On this subj ect, the report of a committee to which the matter was referred was adopted by the Conference as embodying its views in relation thereto, the material parts of the committee’s report being as follows:</p> <p>“In the Conferences of Des Moines, Oregon, Illinois, Platte Biver, East Pennsylvania, Central Pennsylvania and Pitts-burg, being seven in all, there have been divisions of greater or less magnitude, arising in each case from a refusal on the part of certain members of said Conferences, respectively, to recognize and treat Bishops Esher and Bowman as lawful Bishops of our church. In some cases such refusal has resulted in excluding the Bishops from the place appointed for the Conference, so as to necessitate their holding a Conference elsewhere; in other cases it has resulted in a withdrawal of the members so refusing to recognize the presiding Bishop,, and an attempt by such seceding members to hold an Annual Conference without participation of any Bishop.</p> <p>“Under our church laws a Bishop, if present, is a necessary constituent element of every Annual Conference, not only as such, entitled to hut bound by duty to participate in its proceedings as its chairman. The Bishop, at the Annual Conference, is the primary authority, with the power of final decision, in the matter of appointing and assigning preachers of the Conference to their respective fields of labor. For one constituent part of 'the body, viz., the preachers, to exclude the other part, the Bishop, is an act of usurpation. No Annual Conference in our church has ever had the power do pass upon the personal or official status or qualifications of our Bishops. No sentence or alleged sentence against a Bishop of our church is, or ever has been, subject to review or reconsideration in any form by an Annual Conference. The only reason alleged in the cases above referred to for the failure to recognize Bishops Esher and Bowman as lawful Bishops, entitled to preside over said Conferences, was, that they had respectively been suspended from office by proceedings at Chicago, (as to Bishop Bowman), and at Beading, (as to Bishop Esher). This Conference has already, at its present session, pronounced said proceedings, respectively, to have been not only irregular and unjust, but as absolutely void. If so, we do not see how any action based thereon can stand. Any one, whether preacher or layman, whether in his personal or official capacity, who may have undertaken to act upon the assumption that said proceedings were valid, did so at his peril, so far as legal consequences are concerned. Every member and preacher of this church is bound to know that such alleged sentences were of no legal force.</p> <p>“Whatever excuse ignorance of the law may afford from a moral stand-point, such ignorance can furnish no ground whatever upon which to base the legality of any act. If these suspensions, so called, were absolutely void, they could not be made valid by any act or declaration of or by any Annual Conference, or any majority however considerable, of the members thereof. When we consider further, that the exclusion of a Bishop from an Annual Conference upon any ground whatever, must practically result in putting into the hands of the preachers themselves, (or those who are elected by the Conference and from the Conference, and who are directly under the influence of their constituents), the power of appointing themselves pastors over the laity, it is obvious that to entrust to an Annual Conference the power, by majority vote or otherwise, of determining the validity of such suspensions, would be subversive of those fundamental principles of our church constitution, which puts the appointment of pastors in the hands of an agent who is as far as possible independent of the Annual Conference itself.</p> <p>“It is plain, therefore, that those of our brethren in the Conferences hereinbefore named, who attempted to organize without a Bishop, when a Bishop was present and ready and able to act, were proceeding unlawfully from the beginning, and are not and were not entitled to recognition by the church, .whether clergy or laity, as constituting Annual Conferences of the Evangelical Association. All the proceedings of such bodies, so unlawfully organized, their appointment of pastors, their election of presiding elders, their selection of time and place for any succeeding Conferences, etc., necessarily fall to the ground, as having no legal force or effect.”</p> <p>On adopting the foregoing report as a correct exposition of the laws and usages of the church, and of the judgment of the General Conference in relation to the proceedings against the Bishops, and the nullity of the judgment of suspension pro-flounced against them, a resolution was adopted, in substance, mat the Annual Conferences held in the district of Illinois fender the presidency of Bishop Esher in 1890 and 1891, and) tin the other divided districts under the presidency of Bishops (Esher and Bowman, were respectively the lawful and regular, and the only lawful and regular, Annual Conferences in and for those districts during those years; that the acts and pro■seedings of those bodies were lawful and regular, as the acts and proceedings of the Annual Conferences of the church, and that the appointments of preachers made by the Conferences 89 organized under the Bishops, are and were-the only regular and valid appointments in and for those districts.</p> <p>At the meeting of the Illinois Conference held in April, 1890, Bishop Esher presented himself, but was refused admisslon, whereupon a portion of the preachers present repaired with the Bishop to another place, where an Annual Conference/ was organized and held under the presidency of the Bishop. Those remaining also organized as an Annual Conference, with a chairman of their own selection. In April, 1891, the same thing in substance was repeated, and two Annual Conferences were held, one presided over by Bishop Esher, and the other organized with a chairman selected from their own number. At„ the Conference^ thus presided over by Bishop Esher in April, 1891, complainant Husser was appointed preacher and pastor of St. John’s Society, and defendant Schweiker was at the same time ,apppinted,,preacher and pastor of the same society by_the_rival.Annual Conference held in the absence .ojLaJBisho-p.</p> <p>The cause being heard on pleadings and proofs, the court found and held, that the General Conference held in Indianapolis in October, 1891, was the true and only lawful General Conference of the Evangelical Association held during that year ¡ that the Annual Conference held in Illinois in April, 1891, under the presidency of Bishop Esher, was the true and lawful Illinois Annual Conference of the Association for that year, and that the appointment of complainant Husser by that Conference as pastor of St. John’s Society, was the true and only lawful pastoral appointment to that society for the year. A decree was thereupon rendered, perpetually enjoining and restraining defendant Schweiker from interfering with complainant Husser in the discharge of his duties as the duly appointed pastor .of that society, or in the occupancy, as such pastor, of the church edifice of the society, and from attempting to act himself as pastor, and perpetually enjoining all the defendants from interfering with the free access of the other complainants to the church edifice.</p> <p>On appeal to the Appellate Court, the decree was affirmed, and this appeal is from the judgment of affirmance.</p>

<p>1. Statute op Frauds—sale of land—memorandum to take case out of the statute. This court has held, in a number of cases, that in order to ascertain what sort of writing is sufficient to meet the requirements of section 2 of the Statute of Frauds, no form of language is necessary, if only the intention can be gathered, and that any kind of writing, from a solemn deed down to mere hasty notes or memoranda in books, papers or letters, will suffice.</p> <p>2. But the writings, notes or memoranda must contain on their face, or by reference to others, the names of the parties, vendor and vendee, a sufficiently clear and explicit description of the property to render it capable of being identified from other property of like kind, together with the terms, conditions (if any) and price to be paid or other consideration to be given.</p> <p>3. And such writing, note or memorandum must be signed by the party to be charged, or, if signed by an agent, the authority of such agent must be in writing, signed by the party to be charged, and the contract, memorandum or note thereof made by the agent must also be in writing.</p> <p>4. Same—whether an undelivered deed may he a sufficient memorandum of a contract for the sale of land. Where the husband of the owner of a lot, without any authority, written or parol, from his wife, made a written contract for the sale of her lot on certain terms, which was not shown to her, and she afterward made a deed to the purchaser, which made no reference to the contract and failed to express its terms, and which she deposited with her husband to be delivered on certain conditions, but it was destroyed without delivery, it was held, that such deed could not be regarded as such a memorandum or note of the original contract as to take the case out of the Statute of Frauds.</p> <p>5. It is true that an undelivered deed is sometimes resorted to for the purpose of helping out the requirements of the Statute of Frauds, but if such a deed can be regarded as meeting the requirements of the statute, it must be a memorandum or note of the contract, or, in other words, must refer to the terms and conditions of the contract. If it is silent as to the terms of the contract pursuant to which it is made, it is no evidence in writing of such contract.</p> <p>6. An undelivered, deed executed in pursuance of an oral agreement of sale can not be regarded as a sufficient memorandum to satisfy the statute, unless it is shown to contain a memorandum of the oral agreement.</p> <p>7. Where the owner of land has signed a written contract of sale, or some writing amounting to such a contract, but has failed therein to describe the property, a deed executed by him, but not delivered, may be looked to as a part of the transaction, and may be made to aid the prior agreement, and secure its enforcement by supplying the defect in such description.</p> <p>8. Where the owner of land, without making a valid executory contract to convey it, deposits a deed of the land with a third person, to be delivered to the grantee upon certain terms, he may revoke the instructions given to such third person and recall the deed at any time before the specified terms have b.een complied with; nor can such deed, invalid as a conveyance for want of delivery, be considered as a memorandum in writing signed by the owner, agreeing to convey the land therein described, so as to authorize a decree of specific performance. A deed which has not been delivered is not by its own force, and aside from any contract to which it may be related, a sufficient writing to meet the requirement of the statute.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. 0. H. Horton, Judge, presiding.</p>

<p>Wbit of Ebeoe to the Appellate Court for the First District; —heard in that court on writ of error to the Circuit Court of Cook county; the Hon. E. S. Tuthill, Judge, presiding.</p> <p>This was an action brought by Edward M. Kelly, against John F. Neagle, on an appeal bond executed upon an appeal from a justice of the peace to the circuit court, in an action of forcible detainer. The bond upon which the action was brought was as follows :</p> <p>“Know all men by these presents, that we, Simon Stafford and John F. Neagle, are held and firmly bound unto Edward Kelly, in the penal sum of $1000, lawful money of the United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs and administrators, jointly and severally and firmly by these presents.</p> <p>“Witness our hands and seals this 26th day of November, 18 90.</p> <p>“The condition of the above obligation is such, that whereas, the said Edward Kelly did, on the 30th day of July, 1890, before H. B. Brayton, J. P., of Cook county, recover a judgment against Simon Stafford for the restitution of Lot 5, S. 9 feet of L. 6, B. 4, Newberry’s addition to Chicago, and the buildings thereon, situated in Chicago, in said county, and costs of suit, from which said judgment the said Simon Stafford has taken an appeal to the circuit court of Cook county, State aforesaid. Now, if the said Simon Stafford shall prosecute his appeal with effect, and pay all rent now due and that may become due before the final termination of the suit, and all damages and loss which the said plaintiff may sustain by reason of the withholding of the premises in controversy, and by reason of any injury done thereto during such withholding, together with all costs, until the restitution of the possession thereof to the plaintiff, in case the judgment from which the appeal is taken is affirmed or the appeal dismissed, then this obligation to be void, otherwise to remain in effect.</p> <p>Simon Stanford, (Seal.)</p> <p>John F- Neagle. (Seal.)”</p> <p>On a trial in the circuit court',' before a jury, the plaintiff recovered a judgment for $1000, which was affirmed in the Appellate 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. 0. H. Horton, Judge, presiding.</p>

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

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p> <p>On March 15, 1884, appellee executed a written lease of certain premises to appellant for the period, extending from April 1, 1884, to April 1, 1894, for $30,000.00, payable in monthly installments of $250.00 each. The premises are described in the lease as follows: “all those premises situate * * * in the city of Chicago * * * known and described as follows, to-wit: The basement of the building known as Nos. 201, 203 and 205 So. Canal street, Chicago, being a space 50 feet by JO feet, more or less; also the store floor Of part of said building, and known as Nos. 201 and 203 So. Canal street, being a space 50 feet by 50 feet, more or less; also a space in the yard at the rear of said building, commencing at the N. W. quarter of said building, then west 25 feet, then south 25 feet, then east 25 feet to building, together with steam power not to exceed ten horse power, said steam power to be furnished ten hours per day, Sundays and holidays excepted; said premises hereby leased to be used and occupied as a marble works and kindred business, and in no manner as to damage or interfere with tenants of adjoining property.” v</p> <p>The lease contained, among others, the following provisions, towit: “Party of the ^rst part (Springer) shall not build at the rear of said premises nearer than twenty-five feet, and no obstruction higher than six feet shall be placed in such manner as to obstruct light to said premises; and party of the second part shall at all times have the use and free access through all now existing alleys leading to rear of said premises.” Appellant occupied the premises under the lease from its date until July 17, 1888, when he left them. The building was a two story and basement frame building, fronting east on Canal street between Van Burén street on the south and Jackson street on the north, and having a depth of 50 feet. It had windows in the front and rear and on the north and south sides. The territory around it was practically vacant at the date of the lease. There was then no building .to the south of it nearer than 40 or 45 feet, except, perhaps, a small shed; none in the rear or to the west of it nearer than about 60 feet, and none to the north nearer than 30 feet or more. There were some sheds and platforms to the north and some rubbish to the west, but nothing to obscure the light needed for cutting and polishing marble. In the space on the south there was an alley running west from Canal street to Clinton street, connecting with which was.another alley running north and south in the rear of the premises in question.</p> <p>In 1885 appellee erected a large brick building, called the Springer building, having-five stories above the basement, fronting 26 feet on Canal Street and having a depth of 75 feet. Its north wall was immediately against the south wall ■of appellant’s building, called the Keating building; and it extended 25 feet further west than the Keating building, the extension of 25 feet being south of the space in the rear of the Keating building, as described in the lease. The proof tends to show, that appellee dug excavations on the lines of the alleys, and built boiler and machine shops in the rear of the Keating building, and placed obstructions of various kinds in the alleys and in the space to the rear of the Keating building. From the differences growing out of these transactions various suits have resulted.</p> <p>Appellee brought against appellant a suit in assumpsit for the use and occupation of said premises, to which non-assumpsit was pleaded; a suit upon a note alleged to have been given for rent, to which pleas of non-assumpsit and set-off were filed; three proceedings of distress for rent, in which the general issue, and certain special pleas of set-off, and general replications to the latter, were filed; and appellant brought an action in case against appellee to recover damages for cutting off his light by the erection of the Springer building and other obstructions, to which the plea of not guilty was filed. The said special pleas set up violations of the covenants of the lease by alleging, that the light was shut off on the south and in the rear by the Springer building and its extension to the west, and by the erection of shafting and machinery and other obstructions more than 15 feet high, and that the alleys were closed up by the placing therein of iron boilers, castings, engines, building material, etc., and that steam power was not furnished, etc.</p> <p>The suit for use and occupation was begun in the Circuit court of Cook County; of the other suits, one was begun in said Circuit court, one in the Superior court of said county, and three in the county court of said county. The four suits last named were transferred by proper orders to the Circuit court, and an order was entered by the latter court in the suit for use and occupation consolidating the other suits with it. A stipulation was entered into between counsel, that there should be one trial, which should determine the matters in controversy in all the suits. A jury was waived and by agreement the consolidated cause was submitted for trial before one of the judges of the Circuit court without a jury.</p> <p>Upon the trial the plaintiff, Springer, introduced the written lease and proved the amount of unpaid rent due thereon from October, 1887, to July 17, 1888. A large mass of evidence was introduced by the defendant Keating, principally in support of the contentions, that buildings and obstructions were erected in the rear of the premises nearer than 25 feet, and that the use of the alleys and free access through the same ■were interfered with and cut off. In contradiction of this evidence a large number of witnesses were examined by the plaintiff. At the close of his testimony thus introduced, the plaintiff offered in evidence and the court received, over defendant’s objection and exception, the proceedings in a forcible entry and detainer suit begun by Springer against Keating before a justice of the peace on April 25, 1888, wherein the complainant alleges that Springer was entitled to -the possession of said premises and that Keating unlawfully withholds the same; wherein judgment was rendered in favor of Springer on May 8, 1888, and an appeal was taken and perfected to the Superior Court, which appeal was dismissed on July 9, 1888, and a further appeal was taken and allowed to the Appellate Court upon filing bond and bill of exceptions within twenty days.</p> <p>On October 3, 1891, judgment was entered by the Circuit Court in favor of Springer for $2907.50 against Keating, and in the suit of Keating against Springer the latter was found not guilty. This judgment has been affirmed by the Appellate' Court, and the case is brought here by appeal.</p>

<p>1. SpeoiaIi assessment—right to have objections to confirmation sub~ mitled to a jury. On application for confirmation of a special assessment, made for the purpose of raising money to pay the compensation for lánd condemned for a street, an objection that the description of the land condemned was illegal and void, presents a mere question of law, not proper to be submitted to a jury.</p> <p>2. In such case, whéther the description of the land sought to be condemned, in the verdict of the jury, is so imperfect and uncertain that no valid judgment can be rendered upon it, is a matter for the court to determine, which is to be decided by an inspection of the records in the condemnation proceedings, the interpretation of which is purely a matter of law.</p> <p>3. On application to confirm special assessments for a local improvement, only such objections as question the amount of benefits returned against the objector’s premises should be submitted to a jury.</p> <p>4. On a proceeding to confirm a special assessment levied to raise money to pay the compensation awarded the owners of land condemned for a street, an objection that the land had been dedicated to the public for a street by the owners thereof, and hence the condemnation was improper, does not present an issue which the property owner is entitled to have submitted to a jury.</p> <p>5. In such case, when the court, in the presence of the jury, hears the evidence of a previous dedication of the land sought to be condemned, and it falls far short of showing the dedication, the refusal of the court to instruct the jury to pass upon the objection and find that a dedication has been proved, is not error.</p> <p>6. Eminent domain—sufficiency’ of description of the land sought to be taken. Land sought to be condemned for a street was described as “lots B and 0, (except the east 66 feet of the west 248.95 feet thereof,) •of Auburn Park, being a subdivision of,” etc. The jury described this property as follows: “In Auburn Park, a subdivision of” (describing the subdivision), “to the owner or owners of (except E. 66 feet, W. 248.95 ft.) out-lot B of said subdivision,” and “to owner or owners of (except east 66 feet of west 248.95 ft.) out-lot C of said subdivision.” The only objection to the description was the omission of the word “of” before “248.95 ft.,” in that part of the description of out-lot B embraced in the parenthesis: Held, that there was no material uncertainty as to the land intended to be described by the jury, and that the description was sufficient to justify the judgment on the verdict.</p> <p>7. Same—questions determined 6y condemnation. The propriety of a condemnation of land for a street, and the power to make it, are matters necessarily passed upon by the court in a proceeding i/o condemn; and the court, by entering judgment of condemnation, necessarily determines that the property may properly be condemned.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Ebancis M. Weight, Judge, presiding.</p> <p>The facts found in this voluminous record, necessary to a determination of the questions involved, are as follows:</p> <p>On August 21, 1875, Arthur W. Windett, being the owner of lot 98, in Ellis’ east addition to Chicago, together with his wife, Eliza D., conveyed the same by trust deed, waiving and releasing the homestead, to Oliver S. Carter in trust, to secure the note of Windett to appellee Ruggles for $12,000, due in five years from date, with nine per cent per annum interest. On August 10, 1882, J. Henry Westover, as attorney in fact for the trustee, Carter, published a notice of sale of the premises under the power in the trust deed, to take place on the 16th day of September, 1882. On the 15th day of that month Windett filed his bill in chancery in the circuit court of Cook county, against Carter, Ruggles and Westover, setting up that said notice of sale was irregular and insufficient, and praying an injunction to restrain the sale, and he be allowed to redeem from the trust deed. An injunction issued as prayed, and the writ was served on the defendants prior to the sale. On the 16th day of September a sale was made notwithstanding the injunction, and the premises struck off to Horace A. Hurlbut, and a deed duly executed and delivered to him. Hurlbut acted for Mrs. Ruggles, and whatever rights were obtained under that sale and deed accrued to her.</p> <p>On June 1, 1883, Windett filed an amendment to his bill, setting up that the sale was made on an improper notice, after the writ of injunction had been served; that no actual sa,le of the premises was made by the trustee; that the deed to Hurlbut was made in fraud and violation of the trust deed and in fraud of the order for an injunction, and praying that the sale be set aside and he be allowed to redeem. On June 4, 1883, the defendants to that amended bill filed their joint answer thereto, denying all the material allegations thereof, and alleging that the sale was in all things regular, and the title to the premises, by virtue of the trust deed and sale, and the deed executed in pursuance thereof, became and was vested in Hurlbut.</p> <p>On January 2, 1884, on a hearing, a decree was entered allowing a redemption of the property upon the payment by Windett to Mrs. Buggies of the sum of $11,690.29, with interest, etc., within ninety days from December 10, 1883, it being provided in the decree that “if complainant should not pay the said sum of money within the time limited, the said sale of the said property, and the said deed to said Hurlbut, should stand confirmed and unimpeached by any matter or thing contained in the said decree, and the complainant’s bill should be dismissed with costs.”</p> <p>On March 10, 1884, a further decree was entered in said cause, as follows: “This cause again coming on for hearing, on the petition of the complainant, for an extension of the time in which to make payment of the sum of money required to be paid by the complainant within ninety days from the 10th of December, 1883, as provided by the decree of this court heretofore and on the 2d day of January, 1884, entered herein, and the complainant having filed a release of all errors in the proceedings up to this date, and hereby agreeing not to prosecute a writ of error or appeal from said final decree or from this order, and after hearing counsel for the complainant and for the defendants, and the complainant appearing in person and moving for an assenting to this order in open court, it is now ordered and adjudged by the court, that the time within which said principal sum of eleven thousand six hundred and ninety dollars and twenty-nine cents ($11,690.29), with interest thereon from the 10th day of December, 1883, until the day of payment, as in said former decree is provided to be paid, be and the same is hereby extended until and including the 4th day of June, A. D. 1884; and if said principal sum and interest are not paid by the said last mentioned date to the clerk of this court, the said sale of said property in said decree mentioned, to-wit, lot 98 in Ellis’ east or second addition to Chicago, by the defendant J. Henry Westover, as attorney in fact for the defendant Oliver S. Carter, trustee, to the defendant Horace A. Hurlbut, on the 6th day of September, 1882, under a trust deed made by the complainant Arthur W. Windett and wife to said Carter, and the title of said Hurlbut to said property, as derived from and through said sale, shall stand-confirmed and unimpeached, and the complainant’s bill shall stand dismissed with costs, without further order herein.” It is admitted by all parties that the terms of this decree were never performed by Windett, or any one acting for or on his behalf, at any time.</p> <p>On November 28, 1881, the Sawyer-Goodman Company had obtained a judgment against Windett in the Superior Court for $856. On April 1, 1882, Francis Salter also recovered a judgment in the same court against Windett for $167.39, on which judgments executions were duly issued, and returned no property found. Thereafter, on December 20, 1882, the Sawyer-Goodman Company filed an ordinary creditor’s bill against Windett, describing no particular property, and making no mention whatever of said trust deed or sale. No action seems to have been taken under that bill until September 15, 1887/when appellant Burgess appeared in the case under the following circumstances: On the 14th of said September he entered into an agreement with the Sawyer-Goodman Company, through its attorneys, as follows:</p> <p>“In the Superior Court of Cook County.</p> <p>The Sawyer-Goodman Go. 1 No, §0,683.</p> <p>v. > Confession. Judgment, $856 and costs.</p> <p>Arthur W. Windett. 'j Nov. 28,1883.</p> <p>“For value received, the Sawyer-Goodman Company, plaintiff in the above case, doth assign the above judgment to William T. Burgess and his assigns, authorizing and empowering him to have, use and take all lawful ways and means, in the name of said company or otherwise, but at his own costs and charges, to collect it. He is to give the said company one-half of whatsoever he may realize on said judgment, provided that when said company shall have received one-half full payment of said judgment, with interest and costs, said Burgess is to have all the surplus thereafter. The said Burgess hereby agrees to indemnify and save harmless said company of and from all costs, expenses and damages arising out of the use of said judgment by him, and may compromise said judgment, but not for a less sum than $400, without the consent of said company.</p> <p>“Dated this 14th day of September, A. D. 1887.</p> <p>W. T. Burgess, [Seal.]</p> <p>Sawyer-Goodman Co., [Seal.]</p> <p>By James B. Goodman, Sec’y."</p> <p>It seems that,, upon the making of this contract, the former attorneys of the company agreed to withdraw their appearance in said creditor’s bill, and on the 15th day of September, 1887, Burgess appeared, ostensibly for it, but, as the facts subsequently showed, for himself, and filed an amendment to the creditor’s bill, making Carter, Buggies, Hurlbut and other parties connected with the trustee’s sale, parties defendant, setting up substantially the same irregularities in making the sale which had been alleged by Windett in his bill to redeem, and praying that said company be allowed to redeem. On May 12, 1888, he paid to the attorneys of the company $200, informing them that he had compromised the judgment in the company’s favor, against Windett, for $400, and requesting them to withdraw their appearance from the cause, which they afterwards did.</p> <p>On November 9, 1887, the premises in question were sold by the sheriff of Cook county upon executions issued upon the judgments in favor of said company and Salter, and struck off to one B. A. Paul for $1441.41, which amount was receipted on the executions by Burgess, and the same returned satisfiecL The evidence clearly shows that the execution under which that sale was made in favor of the Sawyer-Goodman Company, was issued without its knowledge or consent, or that of its attorneys, and there is nothing in the record to show how the one in favor of Salter came to be issued, or whether he received anything from the sheriff’s sale. After that sale, and before the time of redemption expired, Paul assigned his certificate of purchase to Burgess, and he, on February 11,1889, took a deed from the sheriff for the premises.</p> <p>On February 12, 1889, Burgess, without the knowledge or consent of the Sawyer-Goodman Company, again amended said creditor’s bill, setting up that by reason of the sheriff’s sale and deed he had become the owner of lot 98, the allegations as to his ownership being as follows: “And said Burgess claims under the said Salter judgment, and execution, levy and sale thereunder, the said land and premises; avers that the facts, matters and things touching said debt to said Buggies, trust deed and pretended sale, and trustee’s deed thereunder, in said original bill of complaint, as amended, set forth and charged, are true as therein stated. By means of the said several premises, etc., said land and premises have become and are the property of said Burgess, subject only to the title of said trust deed in favor of Anna M. Buggies, for what shall appear to be due her on an account to be taken in the premises; and said Burgess, claiming said land under said Sawyer-Goodman Company judgment, bill filed in aid thereof, execution, levy an'd sale thereunder, is entitled to further prosecute said bill to the relief thereby and therein prayed for, in like plight and condition, and to the same extent, as the Sawyer-Goodman Company could prosecute and recover therein and thereby.” The prayer was, that Burgess be decreed all the rights and relief the Sawyer-Goodman Company could have to the lot under its bill, and he be allowed to redeem upon an account to be taken, making all due and proper allowances, and that the sale to Hurlbut be declared a nullity •and no bar to his right to redeem. To this bill Arthur W. Windett was also made a defendant, with Buggies, Carter and ■other defendants'to the bill as formerly amended.</p> <p>On the 4th of March, 1889, Windett was defaulted, and Hurlbut, Garter, Buggies and Westover filed their joint answer, insisting upon the regularity of the trustee’s sale and the validity of the title in Hurlbut in pursuance thereof, and charging that the amended bill was filed in the interest of Windett, by collusion between him and Burgess, for the purpose of avoiding the former decree against Windett on his bill to redeem.</p> <p>On April 9, 1889, the default of Windett was set aside, and he filed his answer, alleging that the lot in question was his homestead, and setting up, at great length, various transactions between himself and Burgess, most of which had no connection whatever with the lot or the litigation previously had, growing out of the trustee’s sale; charging Burgess with a breach of confidence and fraud in and about those matters, and also charging him with gross misconduct in and about procuring said sheriff’s sale and deed, concluding as follows: “This defendant insists and charges that each and all the said several steps, proceedings and actions taken, done and had by said Burgess in the premises, whether in the name of said Sawyer-Q-oodman Company, or said F. Salter, or his own, ■or any whatever other name he may have used, were illegal, fraudulent, null and void, and that said pretended levies, sales and deeds set up. in said bill, original, amended and supplemental, as aforesaid, were and are, all and singular, utterly illegal, null and void, and he insists that the same should be so held and adjudged by this honorable court, and that said hill asserting and claiming title by virtue of' said executions, levies, sales and deeds be dismissed for want of equity.”</p> <p>On the coming in of this answer Burgess again amended his bill, alleging that the trust deed to Carter contained a waiver and release of the homestead by Windett and wife, and averring that ¡íon the 5th day of June, 1884, the said Windett not having complied with the terms of said order and paid the money necessary to redeem the said lands and premises from said trust deed, his bill of complaint aforesaid was, by final decree of said court, dismissed out of court for want of equity, and the title of said Hurlbut, under the trustee’s sale and deed to him aforesaid, became absolute and irredeemable by him, said Windett, whereby the said Windett became and was barred of all right, title and interest in said lands and premises, including the right of homestead therein, and said Windett has ever since, with his family, resided elsewhere than on said land, and abandoned his homestead therein.” This amendment is signed by Burgess himself, for complainants. The answers of the several defendants theretofore filed stood to this amendment, Windett filing a further answer, charging that said sheriff’s sale was fraudulently conducted and the property sold for a grossly inadequate price, and that Burgess obtained the Sawyer-G-oodman Company claim by fraud and false representations made to the attorneys of said company.</p> <p>On the 21st day of June, 1889, a decree was rendered allowing the prayer of the bill, the concluding part of which is as follows: “From all which the court finds that the said complainant, Burgess, notwithstanding the sale made by said J. Henry Westover, as the attorney of said Carter, to said Hurlbut, and the deed aforesaid thereon made to said Hurl-but by said Carter, through and by said Westover, as the attorney of said Carter, dated the 16th day of September, A. D. 1882, and recorded the same day in the recorder’s office of said county, in book 1097 of records, page 361, conveying said lands and premises"to said Hurlbut in pursuance of said sale, and notwithstanding the tax titles acquired by him, Hurl-but, as aforesaid, is entitled to redeem said lands and premises from the said trust deed and tax titles, on the payment of what, on an account being taken, shall appear to be justly due the said Anna M. Ruggles in the premises. And to that end, before entering a final decree herein, it is ordered that it be referred to Penoyer L. Sherman, one of the masters in chancery of this court, to take and state such account, in which the said Ruggles shall be credited with the amount due on said judgment, as shall appear from evidence to be taken before him, and taxes paid, with interest at six per cent per annum, and charged with the rents, issues and profits of said lands and premises received, or which, by the exercise of ordinary diligence, might have been received, and otherwise making all due and proper allowances and charges, and that he report with all convenient speed.”</p> <p>On May 13,1890, Windett filed a cross-bill, making Burgess and others defendants thereto, praying that all the rights so decreed to Burgess he transferred to him, and on November 5, 1891, a decree was entered in his favor, according to the prayer of that cross-bill.</p> <p>On July 16, 1892, the cause came on for hearing before the Hon. F. M. Wright, upon the report of the master made under the order of reference by said decree of June 21,1889, whereupon it was decreed that there was due Anna M. Ruggles the sum of $16,553.10, and upon the payment to her of that amount, within five months from that date, “by the party or parties hereinbefore by the interlocutory decrees and orders of the court found entitled to make redemption of said premises, with interest thereon at five per cent per annum, from the 13th day of July, 1891, (the date of said master’s report,) until the time of such payment, and the costs of this suit taxed in favor of said Ruggles, that then the said Oliver S. Carter, Anna M. Ruggles and Horace A. Hurlbut do join in and execute, duly acknowledge and deliver to the parties so making such payment, a release deed, releasing to him, her or them the said lot 98, in Ellis’ east or second addition to' Chicago, the land described in the bill of complaint and decree of June 21, 1889, in this cause, from all right, title, estate or interest acquired or held by them, or any of them, under said trust deed from Arthur W. Windett and Eliza D. Windett, his wife, in trust to said Carter for said Buggies, or under the trustee’s deed from said Carter to said Hurlbut, made thereunder, or the tax title or deed obtained thereon by John Carne, Jr., and by him conveyed and transferred to said Horace A. Hurlbut, mentioned in the pleadings and evidence in this cause, or otherwise howsoever, and also quit and surrender, upon notice and order of court to be obtained therefor, to him or them, the quiet and peaceable possession of the said premises, or in case of the failure of them, or any of them, for the space of five days thereafter, to make such deed, then that Alexander E. Stevenson, a master in chancery, be and he hereby is appointed special commissioner, under the statute, to make the same for them and on their behalf. And it was further ordered, that in case the said party or parties so adjudged by said interlocutory decrees and orders as entitled to redeem, shall not, within the time herein above limited for that purpose, pay said sum of $16,553.10, interest and costs, as herein above provided, then the original and supplemental bills, the cross-bill of Arthur W. Windett, and the cross-bill of Eliza D. Windett and Philisky E. Stanley, in the case of Sawyer-Goodman Company against Arthur W. Windett et al and the bill of said Arthur W. Windett against Horace A. Hurlbut et al., consolidated therewith, be dismissed out of court for want of equity, so far as these proceedings relate to the redemption of said premises, at the costs of the respective complainants therein. It is expressly declared by the court that the only adjudication intended to be made by this decree is to fix the basis and terms upon which said premises may be redeemed by the parties or party heretofore by the court, in its interlocutory decrees and orders, adjudicated to have that right. All other rights and remedies, if any, involved in these proceedings, are to be and remain without prejudice by reason of this decree, the parties, respectively, having reserved to them all such rights, if any such he involved herein, and the right to pursue the same either by action at law or suits in equity, or, if appropriate, by supplementary proceedings herein.” The parties each and separately except.</p> <p>This appeal is prosecuted by Burgess, who, claiming that the entire record, including said decree in favor of Windett, is before the court, seeks to have the same reversed and set aside. He also questions the correctness of said last decree fixing the amount to be paid Mrs. Buggies in order to redeem. Anna M. Buggies, Oliver S. Carter and Horace A. Hurlbut file their joinder in error, and also file cross-errors, by which they seek to have reversed and set aside the decrees in favor of both Burgess and Windett. Windett files a motion to dismiss the appeal, and assigns many causes, none of which are of a substantial character, unless it be that no final decree has been rendered in the ease. He also insists upon the validity of the decree in his favor, questioning, however, the correctness of the finding in the final decree as to the amount due Mrs. Buggies.</p>

<p>Appeal from the Appellate Court for the Second District heard in that court on appeal from the Circuit Court of JoDaviess county; the Hon. J. H. Cartwright, Judge, presiding.</p> <p>This was an action of assumpsit, brought by Matthew M. Miller, against Robert R. Wilson, to recover a balance due on the purchase price of certain lots in Clay Center, Kansas, under an alleged contract of sale made by Miller to Wilson.</p> <p>The declaration contained two special counts and the common counts. The first special count was, in substance, as follows: That on the 21st of October, 1887, at Clay Center, Kansas, plaintiff sold defendant lots 5, 6 and 7, block 1, Miller’s addition, in consideration of $1000, as follows: $100 down, and $900 to be paid January 21,1888; that defendant paid plaintiff $100, and the plaintiff made the following memorandum in writing of the sale, in the defendant’s presence and at his request, and signed and delivered it to defendant, who accepted and received it as a true memorandum of the contract; that the name of the defendant was written in the body of said memorandum, and adopted as his signature thereto, which memorandum is as follows, to-wit: ■</p> <p>“Law Office of M. M. Miller,</p> <p>Clay Center, Kan., Oct. SI, 1887.</p> <p>“Received of R. R. Wilson $100 in cash, in consideration of which, and a further payment of $900, to be paid on or before 21st of January, 1888, I agree to convey to him, by warranty deed, lots five (5), six (6) and seven (7), in block one (1), of M. M. Miller’s addition t.o Clay Center, Kansas.</p> <p>M. M. Miller.”</p> <p>That though plaintiff was, on, etc., at, etc., ready and willing, and tendered and offered, to deliver to defendant a warranty deed conveying to defendant the lots aforesaid, and requested defendant to pay plaintiff said $900, yet defendant refused to accept the deed or pay the said sum of $900.</p> <p>The second count set out more fully what was alleged to be a written memorandum of the contract, but it will not be necessary to set out the. count here.</p> <p>The defendant pleaded the general issue and several special pleas, among 'which was the second, “that the supposed contract mentioned in the declaration was made concerning the sale of lands and tenements, and that no memorandum or note thereof was made in writing and signed by the defendant, of any other person lawfully authorized in writing to sign the same, according to the statute in such case made and provided.” To the second plea plaintiff replied "that the several contracts and writings in said declaration were signed by the defendant according to the form of the statute in such cases made and provided, etc.</p> <p>On a trial of the cause before a jury, the plaintiff recovered a judgment for the amount claimed. The defendant appealed to the Appellate Court, where the judgment was reversed, and as the court found the facts different from the finding of the circuit court, it recited in its final judgment the facts found, as follows:</p> <p>“First—That the only cause of action on which a recovery is sought by appellee is the breach of an alleged contract of appellant for the purchase of real estate.</p> <p>“Second—We find that such contract was not in writing, and that there was no memorandum or note thereof in writing, signed by appellant.</p> <p>“ Third—We find the only memoranda in writing signed by appellant were a letter written on the 24th of October, 1887, and a note written by him on the 23d of January, 1888, and that they were insufficient to charge and render liable the appellant under the Statute of Frauds; that the said letter is as follows:</p> <p>“ ‘Windsor Hotel, Omaha, Neb., Oct. 24, 1887. “‘Col. M. M. Miller:</p> <p>“ ‘Dear Sir—Should I take a notion to buy the lot adjoining the three I bought, what would be your lowest price for it ? I feel that I paid a pretty good price for the three lots, and would like a back lot if you can let me have it low enough. 120 by 140 is a small farm for $1000. Please advise me at Hanover, and oblige.</p> <p>“ ‘Tours respectfully, B. B. Wilson.’</p> <p>“That the said note is as follows:</p> <p>“ ‘Monday Morning, 6:80, Jan. 28, 1888.</p> <p>“ ‘On account of sickness and disappointment in not having received funds ordered to meet this, Saturday, I forfeit the above $100, and relinquish all claim in the above lots.</p> <p>B. B. Wilson.’</p> <p>“Which note was attached to the following receipt, executed by appellee:</p> <p>“ ‘Clan Center, Kan., Oct. 81,1887.</p> <p>“ ‘Received of R. R. Wilson $100 in cash, in consideration of which, and the further payment of $900 to be paid on or before the 21st of January, 1888, I agree to convey to him, by warranty deed, lots 5, 6 and 7, of block 1, in M. M. Miller’s addition to Clay Center, Kansas. ^ m Miller.’</p> <p>“Fowi'th—We find that the parol evidence in the record was incompetent to connect and aid the said receipt, letter and note, to make out a valid contract under the Statute of Frauds, and also insufficient, and we reject the same as evidence.”</p>

<p>This was an original proceeding instituted by Allie J. Hambel, against S. P. McConnell, one of the judges of the circuit court of Cook county, for a mandamus to compel the respondent to decide a motion for a new trial in another case tried in the circuit court by Judge Driggs, shortly before his death. The facts appear in the opinion.</p>

Fbancis Adams, Judge, presiding. This was an action on the case, brought by Michael Scherman against Libby, McNeill & Libby, a corporation, to recover damages for a personal injury. The declaration originally consisted of two counts, but the first count was dismissed, and the trial was had upon the second count alone.

<p>Appeal from the Circuit Court of Cook county; the Hon. 0. H. Hobton, Judge, presiding.</p> <p>This is a petition to establish title under the Burnt Records Act, filed on April 26, 1890, in the Circuit Court of Cook County by appellee against the appellants, and “all whom it may concern.” It is conceded that John 0. Ure is the common source of title. The deed, under which appellants claim, is a deed, dated April 27, 1871, and recorded May 16, 1871, executed by John C, Ure to Mary Whittaker and Sarah Ellen Henderson, (said Whittaker having subsequently conveyed her undivided half to Edward Henderson), and conveying the following premises: “All the following described lot, piece or parcel of land situate in the county of Cook and State of Illinois, known and described as follows, to-wit: that certain piece or parcel of land commencing on the south-west corner of lot nine (9), of Ure’s subdivision of part of the south-east quarter of section thirty (30), township forty-one (41), north of range fourteen (14), east of the third principal meridian, running thence north-easterly along the Indian Boundary Line four (4) chains and thirty-three (33) links, thence running north one hundred and eight and sixteen one-hundredths (108.16) feet, thence running west two hundred and thirty-two and ninety-eight one-hundredths (232.98) feet, thence running south two hundred and sixty-five and eighty-eight one-hundredths (265.88) feet to the place of beginning, meaning and intending hereby to convey one (1) acre of land, without reference to metes and bounds as above described.”</p> <p>The deed, under which appellee claims, is a deed dated May 1, 1871, and recorded May 9, 1871, executed by said Ure to Augusta Mary Ducat, wife of Arthur C. Ducat (said Augusta having conveyed to a third person, who conveyed to said Arthur, the grantor of appellee) and conveying the following premises: “The north four and fifteen one-hundredths (4.15) acres of lot nine (9) of Ure’s subdivision of that part of the south-east quarter of section thirty (30), township forty-one (41) north, range fourteen (14), east of the third principal meridian, according to plat recorded in Cook county registry of deeds, in book 173 of maps, page 31, being the north four and fifteen one-hundredths (4.15) acres of a tract of five and fifteen one-hundredths £5.15) acres lying west and adjoining the east eight (8) acres of said quarter section, and being north of Indian Boundary Line, the south line of said four and fifteen one-hundredths (4.15) acres being bounded on the south by an east and west-line.”</p> <p>The following is the plat, dated April 27, 1871, of the subdivision made by said John G. Ure:</p> <p>[[Image here]]</p> <p>The decree of the Court below finds, that the petitioner and the defendants hold under Ure as above stated; that said Ducat obtained title from the Government; that the records have been destroyed by fire, etc.; that Dúcat, although his deed from Ure was recorded before the deed to Whittaker and Henderson, had notice of the latter deed, and his title to that portion of the north 4.15 acres of lot 9, included in the description in the deed to Whittaker and Henderson, is subject to the latter deed, and he has no title thereto; that the description in the latter deed is by metes and bounds and the starting point of said lot is taken on the “Indian Boundary Line;” that the metes and bounds must control as to petitioner ; that the measurement of the land in said latter deed, whether it be more or less than one acre, is and shall be from the “Indian Boundary Line” on the south-easterly side and from the center line of the 60 feet street on the west side of lot 9; that petitioner has title to all that part of lot 9 except the portion thereof in the south end thereof described as follows : “Commencing at the intersection of the center line of the street running north and south, west of said lot nine (9), and the Indian Boundary Line, being the center of the Indian Boundary Line road, and running north-easterly along said Indian Boundary Line 4 chains and 33 links, thence running north along the east line of said lot nine (9), 108,16 feet, thence west 239.32 feet, or to. the center line of said north and south street, thence south to the place of beginning; ” that defendants were in possession of a portion of said premises and that petitioner was entitled to the possession of all said lot except the said portion in the south end; that petitioner’s title thereto be established and that the defendants surrender-possession, etc. The case is brought to this Court by appeal of the defendants below. No cross-errors have been assigned upon the record by the appellee.</p>

<p>Writ of 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.</p> <p>This was a bill in chancery, brought by Mrs. S. S. Benton against the Brotherhood of Railroad Brakemen, to recover the sum of $1000 and interest, claimed to be due her upon a certain instrument, in the nature of a policy of insurance, issued by the defendant-to Fletcher D. Benton, the complainant’s son, and by his indorsement thereon, made payable to her. The instrument or policy in question was dated May 8, 1888, and the material portions of it were as follows:</p> <p>“This policy of insurance witnesseth: That the Brotherhood of Railroad Brakemen, in consideration of the. grand dues to them duly paid, in accordance with the provisions of the constitution of said brotherhood, by Fletcher D. Benton, and of the annual payment of such grand dues every year, during the continuance of this policy, do insure the life of said member, Fletcher D. Benton.</p> <p>“And the said brotherhood do hereby promise and agree, to pay the amount of insurance that may, at the time of the death of said insured, be justly due and owing, according to the provisions of said constitution, as well as the like sum in case of disability of said assured, in accordance with the terms and conditions further provided in said constitution; the said sum or sums to be paid as stipulated therein, to and for the sole use of such person or persons to whom this policy shall be made assignable by said assured, and if such person or persons shall, at the death of such assured, be not living, then to the nearest heir or heirs, on receiving proof of the death of said assured, and the identity and proof of right in claimant to inherit the same, according to the requirements of said constitution, any indebtedness to the brotherhood on account of this policy being first deducted therefrom.</p> <p>“In every case when this policy shall cease and terminate, or shall be null and void by reason of immoral or other misconduct, and the assured shall forfeit his membership in this lodge, according to the provisions of the constitution of this brotherhood, then all payments thereon shall be forfeited to the brotherhood, and this'policy shall be cancelled.”</p> <p>On the back of the instrument appears the following indorsement, which was placed there by Fletcher D. Benton on the day the instrument was executed:</p> <p>“Payable to Mrs. S. S. Benton. Relationship, mother. Residence, Dalton, N. Y. I hereby direct the payment of the within policy to the above named person.</p> <p>F. D. Benton.”</p> <p>The case was heard in the Circuit Court on pleadings and proofs, the facts all appearing by stipulation of the parties, and being, in substance, as follows:</p> <p>Fletcher D. Benton joined the Brotherhood of Railroad Brakemen May 8, 1888, and remained in good standing as a member of Mt. Kilbourne Lodge until his death, which occurred November 27, 1888. He took out a certificate on May 8, 1888, the material portions of which are given above, and which was duly countersigned and delivered, and became binding May 11, 1888. On receiving his certificate, he designated Mrs. S. S. Benton, his mother, the complainant herein, as his beneficiary, in case of his death, by a proper indorsement then and there made, the foregoing being a copy of such indorsement. On the 5th day of October, 1888, he married Minnie A. Osgood, who survives him as his widow.</p> <p>The Brotherhood of Railroad Brakemen, at a convention, the sessions of which extended from October 17 to October 27, 1887, adopted a constitution and by-laws for the government of the order, which constitution and by-laws were in full force at the date of Benton’s certificate of membership. On the 17th day of October, 1888, the brotherhood again assembled in convention, the sessions of that convention extending to and including the 26th day of that month, and at that convention the brotherhood adopted an amended constitution and by-laws. Copies of the constitution and by-laws,-both of 18S7 and 1888, are exhibited in evidence.</p> <p>By both constitutions, the amount payable on the death or disability of a member was fixed at $1000. The most material change in the organic law of the brotherhood made by the revised constitution of 1888, resulted from the adoption as a part of that constitution of the following section:</p> <p>“Any brother desiring to make a transfer of his benefit policy, can do so in writing on the back of his policy, and in the form prescribed for that purpose, to be attested to by the secretary of the lodge, under the lodge seal. Should a second transfer be desired, a duplicate policy shall be issued by the grand secretary and treasurer, upon the return of the old policy. Where marriage is contracted after the issuance of policy, and said policy becomes payable through death, it shall be paid to the widow, or in the event of her death, to their joint issue, if any, unless otherwise ordered. All transfers of benefit policies shall be recorded in the membership and policy register of the subordinate lodge and in the grand lodge.”</p> <p>Proof of the death of Fletcher D. Benton was made and served January 1, 1889, and Mrs. S. S. Benton demanded of the brotherhood payment to her, such demand being made March 1, 1889. On the 1st day of May, 1889, the brotherhood having learned that the deceased member left a widow surviving him, paid the amount of the policy to her. It is admitted that payment was due either to the complainant or to the widow.</p> <p>On the foregoing facts, the court found that the equities were with the defendant, and entered a decree dismissing the bill, at the complainant’s costs, for want of equity. On appeal by the complainant to the Appellate Court, the decree was affirmed, and the present appeal is from the judgment of affirmance.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McDonough county; the Hon. Charles J. Scofield, Judge, presiding.

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

<p>Writ of Error to 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>

Writ oe Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding. At the November term, A. D. 1892, of the Morgan county circuit court, an indictment was returned into open court of that county by the grand jury, charging the plaintiff in error with an assault with intent to commit murder, and at the same term he was arraigned, tried and convicted, and his punishment fixed at imprisonment in the penitentiary for the term of five years.

<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. Dorranoe Dibell, Judge, presiding.</p>

James A. Cbeighton, Judge, presiding. ■ This is an action on .the case brought by appellee against the appellant company to recover damages for a personal injury. The appellant owned two mines numbered 9 and 10. Appellee was a blacksmith, employed by appellant, and worked in the blacksmith shop at mine No. 10.

<p>Writ of -Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

George W. Herdman, Judge, presiding. This was a bill filed by appellants, in the Jersey circuit court, against appellees, to declare a resulting trrfst in their favor in forty acres of land, described as the north half of the south-east quarter of the south-east quarter of section 7, and the north half of the south-west quarter of the south-west quarter of section 8, all in township 6, north, range 11, west of the third principal meridian, in Jersey county.

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

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

<p>1. INstbttctions—requiring the jury to find from the evidence. It has been frequently held by this court that it is not necessary that all of the instructions given 'by the court shall, in express terms, confine the jury to the evidence, in their deliberations and findings.</p> <p>2. On the trial of one for burglary, the court, after defining the crime, told the jury that while the indictment could only be found on evidence, still it was not, of itself, any evidence in the case, of the defendant’s guilt of the crime, but that the prosecution must have shown to their satisfaction, beyond a reasonable doubt, that the defendant was guilty. This was immediately followed by an instruction that a defendant charged with a criminal offense is presumed to be innocent until his guilt is established, by the evidence, beyond a reasonable doubt: Held, that the failure of the court to call the attention of the jury, in the first instruction, to the evidence, could not have been injurious to the defendant.</p> <p>3. Cbiminah haw—instruction as to credibility of defendant as a witness. On a trial of one for burglary, in which the defendant testified in his own behalf, the court instructed the jury, that “under our present •statute, parties on trial for criminal offenses are permitted to testify in their own behalf in all cases, but the law makes the jury the sole judges of the credibility of the testimony, and if they should deem it untrustworthy they may disregard it altogether, except such portion of it as may be corroborated by other credible testimony:” Held, that there was no reversible error in the instruction.</p> <p>4. It is recognized by the statute which permits a defendant in a criminal case to testify, that his interest may be regarded, for the purpose of affecting his credibility. While the jury may not disregard his testimony from mere caprice, they are not bound to believe his testimony any further than it is corroborated by other credible evidence. It has been the uniform practice in this State since the adoption of the statute, to give instructions which have application only to the evidence given by defendants on trial.</p> <p>5. Same—instruction as to degree of proof required to convict. In a criminal prosecution the defendant asked the court to instruct the jury “that the degree of evidence required to convict a defendant in a criminal case must be such as to remove all doubt from the mind of a reasonable man,” which was refused: Held, no error, as the instruction was misleading. It is not every doubt that may exist in the mind of a reasonable man that rises to the dignity of a reasonable doubt, such as would govern him in the graver affairs of life.</p> <p>6. Same—circumstantial evidence—instruction as to such evidence. It is not error to refuse to instruct the jury, in a criminal case, that where the evidence is purely circumstantial, then, if there is any reasonable theory by which the defendant may not be guilty, the jury are bound to acquit. The instruction is bad, as wholly ignoring the requirement that the theory or hypothesis of innocence shall be consistent with all the evidence in the case.</p> <p>7. Same—of the presence of defendant when sentenced. If the prisoner’s presence in court at the time the verdict is returned into court and the sentence is pronounced, can, by any fair intendment, be collected from the record, that will be sufficient; and this conclusion may be aided by the recitals in the bill of exceptions, which is a part of the record.</p> <p>8. Same—verdict fixing defendant’s punishment on a conviction for burglary. A verdict fixing the punishment of the defendant on an indictment for burglary and larceny, by simply stating, “we fix his punishment in the penitentiary for the term of one year,” will be sufficient to authorize judgment thereon. The necessary implication would be that such punishment was imprisonment in the penitentiary for one year.</p> <p>9. Evidence—circumstantial—to show a burglary and larceny. On the trial of one for burglary and the larceny of boxes of cigars, evidence of the fact that the defendant had the opportunity to place the cigars where they were found shortly after the larceny, is a circumstance which, taken in connection with other circumstances in proof, tends to establish his guilt, and the further fact that other persons had like opportunity only weakens the force of such circumstance, but will not render it incompetent as criminating evidence.</p>