Volume 147 — Illinois Reports

<p>Appeal from the County Court of Schuyler county; the Hon. H. C. Schultzs, Judge, presiding.</p>

<p>1. Partnership—power of partner to bind firm by seal. At common law one partner can not bind the other partners by an instrument under seal, unless they gave him express authority under their seals. Under this rule it has been held that where one partner executes an instrument under seal, without authority under seal, he alone is bound by it.</p> <p>2. The general weight of authority is in favor of the position that at common law one partner has no implied power to bind the firm by an instrument under seal.</p> <p>3. The American courts hold to the doctrine that where one partner executes an instrument under seal in the name of the firm, it will be regarded as binding upon the firm, where an express or an implied authority or confirmation can be justly established, not under seal, whether it be verbal or in writing, or circumstantial. And the prior assent or subsequent ratification may not only be by parol, but may be implied from declarations, or from acts and circumstances.</p> <p>4. Same—when partner may bind firm by sealed contract. Under the American doctrine, the liability of the partners will not be confined to the one who signs the sealed instrument in the name of the firm, if it appear that the prior assent or subsequent ratification of the other partners can be implied from their acts and declarations, or from other proper evidence tending to show such assent or ratification.</p> <p>5. Same—when seal to firm name may be disregarded. While one partner can not bind his co-partners by deed, yet if the instrument executed by him, though under seal, would have been valid without a seal, and within the scope of the partnership business, and within the powers belonging to each partner, then the seal may be disregarded, and the instrument may be ratified as a simple contract.</p> <p>6. Where the covenants or other obligations in a bill of sale of personal property, as well as the transfer of the interest in the property itself, are within the ordinary scope of the partnership business and within the powers of each partner, the non-executing partners are not relieved from liability upon such obligations by the mere fact that the partner signing the partnership name affixes a seal.</p> <p>7. Same—powers of partners to sell and warrant. Where a partnership is formed for the sale of stallions, and each partner has the power to make sales, such power involves the further power to warrant the quality of the animal as to its fitness for the purpose for which it is to be sold.</p> <p>8. Partners are considered as sanctioning the contract which they singly enter into. Each partner is made the general agent of his co-partners as to the firm'business.</p> <p>9. Agency—power of general agent to warrant. Where a general agent is employed to carry on a business, the authority to sell, which is conferred on him, may carry along with it the power to warrant, if it is usual to give a warranty when making a sale in such business.</p> <p>10. Sealed instruments—form of action thereon. Under section 19 of the present Practice act, assumpsit may be maintained upon sealed instruments. That section has abolished the distinction between sealed and unsealed instruments.'</p> <p>11. A general agent employed to carry on the business of horse dealing for his employer, has an implied authority to warrant soundness when making sale of a horse.</p> <p>12. Sale — implied warranty. Where a dealer contracts to sell or supply an article in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment of the dealer, there is an implied warranty that it is fit for the purpose to which it is to be applied.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

Jesse J. Phillips, Judge, presiding. The executors of the last will of Adrain W. Loper, deceased, presented their petition to the county court, praying for an order of distribution, etc. The cause having been there heard and determined, an appeal was taken to the circuit court, where an order of distribution was entered, from which an appeal was prosecuted to the Appellate Court, where the order of the circuit court was affirmed, and an appeal therefrom is prosecuted here.

E. D. Youngblood, Judge, presiding. A bill was filed by appellant for specific performance, and substantially alleges that complainant, in consideration of certain personal property and a certain amount to be paid in cash, purchased a house and lot occupied by J. McKendree Crane and wife.

S. Z. Landes, Judge, presiding. This was an action brought by Martin Walter, administrator of the estate of William S. Reed, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, to recover damages resulting from the death of William S. Reed, who was killed while in the discharge of his duties as a brakeman on a freight train of the defendant, on July 5, 1891.

A. B. Gordon, Judge, presiding. The appellant was tried before a justice of the peace, and found guilty of violating an act of the legislature entitled “An act to provide for the weekly payment of wages by corporations,” approved April 23, 1891, and the penalty of fifty dollars imposed, for which, and costs, judgment was rendered accordingly.

<p>Appeal from the Circuit Court of Lawrence county; the Hon. W. G. Jones, Judge, presiding.</p>

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

A. S. Wildebman, Judge, presiding. The following statement of the case by the Appellate Court is a sufficient presentation of the facts: “Appellant William Frank became administrator of his brother, Frederick Frank, and filed his bond as administrator December 19, 1876, with his co-appellant as surety.

<p>Writ of Error to the County Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p>

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

<p>This was an original petition filed in this court for a mandamus against the respondents.</p>

James A. Creighton, Judge, presiding. This was a bill in chancery, brought in the Circuit Court of Sangamon county, by Edward T. Robinson, executor of the last will and testament of James R. Robinson, deceased, against the Railway Passenger and Freight Conductors’ Mutual Aid and Benefit Association, to enforce the payment by the association of the money claimed to have become payable upon the death of the complainant’s testator.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Francis Adams, Judge, presiding.</p>

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

Egbert Jamieson, Judge, presiding. The following statement of the facts of this case appears in the opinion of the Appellate Court: “The proof in this case shows that for some time prior to January 1, 1884, Caleb Clapp and Thomas Davies were partners in the wholesale jewelry business in Chicago, under the firm name of Clapp & Davies.

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. W. H. Snyder, Judge, presiding.</p>

<p>Appeal from the County Court of Montgomery county; the Hon. George E. Coopee, Judge, presiding.</p>

<p>1. Election law—domestic animals running at large. The act of June 22, 1891, to regulate the manner of elections and to enforce the secrecy of the ballot, repeals the act of July 1,1874, entitled “An act to revise the law in relation to permitting animals to run at large,” in respect to the manner of conducting elections.</p> <p>2. Same—voting upon a public measure. Since the passage of the act of 1891, a vote upon any public measure, such as allowing domestic animals to run at large, must be had in pursuance of section 16 of that act. The ballots must designate the measure to be voted on, and must contain the words “Yes” or “No,” and the elector must designate his vote by a cross marked to the left of the word “Yes” or the word “No,” as he may see fit to vote.</p> <p>3. Same—statute construed. The words “or other public measure,” following the words “whenever a constitutional amendment,” etc., is proposed to be voted on, in section 16 of the Election law of 1891, are not limited to measures affecting the whole territory of the State.</p> <p>4. Statutes—rule of construction. Where general words follow an enumeration of particular cases, such words will apply only to cases of the same kind as those expressly mentioned,—or, in other words, the word “other,” following an enumeration of particulars, embraces enumerated particulars of like nature only, unless a broader sense is obviously intended. A construction should not be given that will render the general words meaningless. All that is required by the rule is, that the general words be restricted to a sense analogous to the less general.</p> <p>5. Where things inferior are enumerated, general words will not embrace those which are superior; but there is no authority for the converse of this rule.</p>

<p>1. Mabbiag-e—previous marriage existing. A second marriage is-void when either of the parties to it has a husband or wife by a former marriage, who has never been divorced and is still living.</p> <p>2. Same—presumption in favor of its validity. Where a marriage has-once been solemnized according to the forms of law, every presumption will be indulged in favor of its validity. This presumption is so strong that a former husband or wife will be presumed to be dead after an absence of less than seven years. The ordinary presumption in favor of the continuance of human life is made to give way to the presumption in favor of the innocence of a second marriage.</p> <p>3. ' Same—presumption of a divorce prior to a second marriage. A previous divorce will often be presumed in order to sustain a second marriage. So when two marriages of a man, and the existence of his-first wife, are established by proof, a presumption will arise in favor of a divorce from his first wife, in order to sustain the second marriage, and the burden of proof will rest upon the party asserting the illegality of such marriage to show that no divorce was had before the last marriage.</p> <p>4. Same—subsequent divorce will not legalize second marriage. Where a man, at the time of marriage, has a wife living and undivorced, a subsequent divorce obtained by his first wife will not legalize his second marriage.</p> <p>5. Same—evidence rebutting presumption of a divorce. In 1872 a man- and woman were married in St. Clair county, where they both resided all their lives, and on November 14, 1876, he filed his bill in that court for a divorce against his wife, and on the same day he was married to-an other woman and suffered the bill to be dismissed: Held, that such bill was evidence that at the time of his second marriage he had.no-divorce from his first wife.</p> <p>6. In the same case, the parties questioning the validity of the second marriage not only gave in evidence the bill for divorce filed by the husband, and the proceedings thereunder showing a dismissal-without a decree, but they also proved that he and his first wife had resided in St. Clair county, and had been residents thereof all their lives, and that from an examination of the records of the circuit court from March, 1872, to September, 1881, no entries appeared in any suit between the husband and his first wife, except the bill before st-atqd: Held, that the evidence was sufficient to so far overcome the presumption in favor of a divorce obtained by the first wife, as.to shift back upon the parties affirming the validity of the second marriage the burden of showing that there had been a divorce.</p> <p>7. Although the burden was upon the complainants of proving the negative contention that a divorce had not been obtained before the last marriage, yet it is well settled that a party is not required to make plenary proof of a negative averment. It is enough that he introduces such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming that the allegation is true, and when this is done the onus probandi will be thrown on his adversary.</p> <p>8. Evidence—admissions of bill in chancery. Although a bill in chancery, so far as it may be taken as the suggestion of counsel, is but feeble evidence against the complainant of the admissions which it contains, it is yet some evidence of the same.</p>

O. H. Hobton, Judge, presiding. This was a bill for specific performance, filed April 21,1892, by Alice J. Crow, against appellants, in which it is alleged that complainant sold to appellants, and they agreed to purchase, at the price of $8250, certain lands.

<p>1. Pellow-servants—whether the relation exists. Whether the relation of fellow-servants exists between employes of a common master is a question of fact. It is not enough, to make them such, that they are servants of the same master, employed in the same enterprise.</p> <p>2. If they are not associated together in the performance of their, duties, or their employment does not require co-operation, or bring them together or into such relations that they can exercise an influence upon each other promotive of proper caution, they are not fellow-servants, within the rule which exempts the master from liability for-injury to one through the negligence of the other.</p> <p>3. The employment of one as a member of a fence-gang does not, as a matter of law, bring him into co-operation with a locomotive engineer, or into such association or personal relation with the latter as that the former can exercise an influence over him promotive of proper caution in respect to their mutual safety.</p> <p>4. Where a person employed by a railroad company to unload fence-posts from a freight car attached to the locomotive, is injured by the-engineer starting the train suddenly and without notice or warning,, the servant so injured and the engineer can not be held, as a matter of law, to be fellow-servants, or as co-operating in a particular business..</p> <p>5. Pleading—action against employer*—for personal injury—denying that the injury was caused by a fellow-servant. In an action by a servant of a railway company to recover for a personal injury resulting; from the negligence of the engineer, the declaration averred that the plaintiff was a fence builder, and that he was injured by the sudden starting of the train while the plaintiff was attempting to get on a freight car to unload fence posts, and that the employe who carelessly-injured him was a locomotive engineer: Held, that the declaration stated facts showing that the negligence of the servant who caused the accident was not the negligence of a fellow-servant.</p> <p>6. Appeals—reviewing questions of fact. All matters relating to the character, force and effect of the testimony are conclusively settled by the judgment of the Appellate Court affirming the judgment below-■This court can not review the facts of every case for the purpose of determining whether or not a correct conclusion has been reached, even though there may be no conflict of the evidence.</p>

Louis; the Hon. B. H. Caney, Judge, presiding. Held: and where all its records and books of account and papers have been and are produced for the inspection of any stockholder, or his attorney, or other person interested, whenever requested by such person, and that the said charter and its privileges were sought and procured for the purpose of being exercised in the State of Illinois,…

<p>Appeal from the City Court of East St. Louis; the Hon. B. H. Caney, Judge, presiding.</p>

<p>Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the City Court of;' East St. Louis; the Hon. B. H. Oanby, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on writ of error to the Circuit Court of ■St. Glair county; the Hon. B. B. Burroughs, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court-of St. Clair county; the Hon. W. H. Snyder, Judge, presiding. This was an action of forcible entry and detainer, brought by plaintiff on the fifth day of December, 1887, before a justice of the peace, for the recovery of a certain coal mine, with the machinery and appurtenances thereof, known as the mine of the Freeburg Coal Company.

Writ oe Error to the Circuit Court of Champaign county; the Hon. Francis M. Wright, Judge, presiding. This was a bill in chancery, brought by George W. Varney ■and five others, children of Lydia M. Varney and Bowman Varney, her husband, against John Hagan and Amelia Hagan, his wife, to. assert the equitable title of the complainants to a certain tract of land in Champaign county, and to compel a conveyance of the same from the defendants to them.

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. M. F. Ttjley, Judge, presiding.

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

<p>1. Assault with intent to murder—evidence of appearance of wound on post mortem examination. On the trial of a party for an assault with intent to murder, it appeared that the defendant struck the person named in the indictment on his head with a paling, and that the latter died within two months after the assault. The court admitted in evidence the testimony of the witnesses who made a post mortem examination of the deceased,"as to the appearance and condition of the skull fracture on the deceased, for the sole purpose, as stated by the court, of showing the appearance of the wound, but not for the purpose of showing that the defendant was responsible for the death that followed: Held, that the'evidence was proper for the purpose for which it was admitted.</p> <p>2. Same—malicious intent necessary. Malicious intent is a necessary element of the crime of assault with intent to commit murder, for if the killing would have been less than murder if death had resulted, the act can not be deemed an assault with intent to commit murder. Malicious intent must therefore be proved. This need nót- be done by direct testimony, and may, under certain circumstances attending the act, be presumed, but not from the mere fact that a deadly weapon was used.</p> <p>3. Same—proof of malice necessary. On a trial of one for an assault with intent to murder, proof that the defendant struck the person assaulted with a deadly weapon, with no other evidence, either as to the circumstances of the assault or otherwise tending to prove the intent with which he struck, is not sufficient to justify a conviction.</p> <p>4. Same—words as a provocation. On a trial of one for an assault with intent to murder, an instruction to the effect that words, however provoking, will not amount to considerable provocation, was held not erroneous.</p> <p>5. Mubdeb—when malice is presumed. In cases of murder, malice may be presumed when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart. When the act is committed deliberately, and is likely to be attended with dangerous consequences, the malice requisite to murder will be presumed.</p> <p>6. It is the deliberation with which the act is performed that gives it character. It is the opposite of an act performed under uncontrollable passion, which prevents all deliberation or cool reflection in forming a purpose. If, therefore, a person deliberately uses a deadly weapon on another, it will be presumed that it was malicious. If there is fixedness of purpose in its use it can only be from malice. It is not the use of the weapon that shows malice, but its deliberate use.</p> <p>7. Criminal law—presumption of felonious intent—from the use of a deadly weapon. On the trial of one for an assault with intent to kill and murder, the court instructed the jury, “that every man is presumed to intend the natural and probable consequences of his act unless a different intent be proved, and the use of a deadly weapon in making an assault will be presumed to be with felonious and malicious intent unless a different intent be provedHeld, that the instruction was clearly erroneous, and calculated to mislead the jury to defendant’s prejudice.</p> <p>8. Such an instruction, in effect, tells the jury that the People’s case is made out by proving the assault with a deadly weapon, and by it every man is presumed to intend the natural and probable consequences of his act, without reference to the circumstances under which the act is done, which is an incorrect statement of the law. A person may do an act without intending to do it.</p> <p>9. Same—presumption that parly intends the consequence of his acts. Every sane person must be supposed to intend that which is the ordinary and natural consequence of his purposed acts. To hold him criminally responsible for the consequence of his act, it must be the result of deliberation or purpose. He can not be held to intend the ordinary consequence of his every act.</p>

M. Shaw, Judge, presiding. This is a bill filed in the Circuit Court of Peoria County on November 2, 1889, by appellant against appellees and one Clinton for the specific performance of a contract, by which appellee, Baltheus F. Seibold, agreed to sell to appellant* Morse, six acres of land. The defendants answered the bill* denying the material allegations and charging laches on the part of the complainant. Clinton filed a cross-bill.

<p>1. Eminent domain—setting off benefits against damages. Eor land taken for a public use no benefits to the land not taken can be set off, but payment of the compensation for the damages accruing to the land not taken may be made in benefits to the property not common to other property affected,—that is, the special benefits accruing to the particular property may be set off against the damages done to land not taken by the improvement.</p> <p>2. Same—compensation for damages to property not taken. If the special benefits equal or exceed the damages, the owner can receive nothing as damages to property not taken; if less, he will be entitled to receive the difference, only. In some one of the modes prescribed, compensation must be made for damages to property not taken, arising from the improvement.</p> <p>3. Same—evidence of benefits to property not taken. Where an ordinance for the opening of a street across a marshy tract of land bordering on a river, and upon which is a pond used for freezing and taking ice, fails to state the nature and character of the improvement, further than the mere opening of the street, and no grade is established, and there is nothing to bind the petitioner to do more than to open the street, there will be no sufficient basis for the introduction of evidence of benefits to accrue to the land owner to the part of his land not taken, or for an instruction based upon the estimate of benefits to be derived from a street giving the land owner access to all parts of his land.</p> <p>4. Same—estímale of benefits to land not taken—that may never accrue. An estimate of benefits upon the basis that a proposed street is to be improved through or over a tract of land which is low, wet and marshy, so as to give ready access to all parts of it, and thereby make it desirable for the location and operation of manufactories, without even a proposal on the part of the city to so construct it, and without any legal obligation whatever resting upon the city to do more than open it, is improper, and can not be received as a set-off to the damages resulting to the part of the land not taken.</p> <p>5. The benefits sought to be set off against the damages to the land not sought to be condemned must be real and not chimerical, otherwise the constitutional safeguard is rendered of no avail to protect the citizen in the enjoyment of his property free from being damaged for a public use without just compensation.</p> <p>6. Section 19 of article 9 of the City and Village act does not control in proceedings purely for condemnation of private property for public use. Ordinarily the opening of a street, and such improvement thereof as is usually made by a city from its general fund, may furnish sufficient basis for estimating the benefits to accrue therefrom to adjoining property.</p> <p>7. In such cases no further description of the nature and character of the improvement would seem to be required. But when the benefits to flow from the making of the improvement necessarily depend on the manner in which it is to be made,—its nature and character,— data should be furnished from which an intelligent estimate of benefits can be made. In no other way can the testimony of witnesses be of value, or the view of the jury aid them in arirving at just compensation.</p> <p>8. It is not necessary to hold that the data must be furnished in the ordinance, or specifications thereunder, although, by analogy to the proceedings in cases for the assessment of special benefits, it would seem to be the appropriate mode. But whatever mode be adopted should be so far specific and binding that the judgment in condemnation would.not be conclusive upon the owner unless the improvement is made in substantial conformity with the data furnished.</p> <p>9. In a proceeding by a city for the condemnation of land for a street it will not be presumed that the city will make a sufficient improvement of the land taken, where no improvement has been and may never be ordered to be made.</p> <p>10. Special assessment—ordinance therefor—its essentials. "Where an ordinance for the opening of a street through a pond and across a river makes no provision whether the street is to be filled to any particular grade, or whether, through the pond and thence to the river, the roadbed is to be raised above the level of the water, by embankment- or stone walls or trestle-work, or whether an embankment between the pond and the river will be removed and the roadway made upon the natural level of the soil, or otherwise, it will be fatally defective in failing to give the nature and character of the improvement, and no special assessment can be made under the ordinance.</p> <p>11. An ordinance which gives no basis or data from which an estimate of the cost of the proposed improvement can be made, in accordance with the statute, to be apportioned among and upon the property benefited, is fatally defective.</p> <p>12. Stbeets—improvement—discretion of municipal authorities. The opening of the streets of a city, and the nature and character of their improvement, are matters resting solely in the discretion of the municipal authorities, when they have proposed no plan of improvement, and have done nothing to estop them from dealing with the streets according to their discretion.</p>

Samuel P. Weed, Judge, presiding. This was an action of forcible entry and detainer, brought by Randolph, against Phelps, before a justice of the peace, where a judgment was rendered for the defendant. Randolph appealed to the county court, and on a trial a verdict was returned for the plaintiff, and judgment entered thereon against defendant. Prom this judgment the defendant appealed to the Appellate Court, where the judgment was affirmed.

M. F. Tuley, Judge, presiding. This was a hill in chancery, brought hy Charles A. Street, trustee, etc., against Sanford B. French and others, for the specific performance of a contract for the sale and conveyance of land. A demurrer to the bill for want of equity having been sustained, a decree was entered dismissing the bill at the complainant’s costs, and from that decree he now appeals to this court.

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

B. S. Tuthill, Judge, presiding. Appellee brought trespass against the appellant, and filed an affidavit, upon which he procured an order for a capias, holding appellant to bail under the statute. The affidavit was sworn to on the same day the order for the writ was made and on which the suit was commenced. The appellant was arrested, entered into bail as required, and upon the trial of the cause was found guilty, and appellee’s damages assessed at $400.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Kankakee county; the Hon. C. R. Starr, Judge, presiding.

<p>Appeal from the Circuit Court of Stark county; the Hon. T. M. Shaw, Judge, presiding.</p> <p>This is a bill filed on the 2d day of September, A. D. 1886, by .Charity Francis of Kansas, Rachel Curfman of Kansas and Nancy Cox of Stark County, Illinois, daughters of Solomon Wilkinson, deceased, formerly of Stark County, Illinois, against Sylvester Wilkinson, Alonzo Wilkinson and Newton Wilkinson of said county of Stark, sons of said Solomon Wilkinson, deceased, and Frances Leffler of said county, also'a daughter of said Solomon, and John Leffler, of said county, a son of said Frances Leffler and grandson of said Solomon, to set aside certain deeds executed to the defendants by the said Solomon in his life-time, and for partition of the lands, described in said deeds among the said children of the said Solomon. Answers were filed.by said defendants denying the material allegations of the bill. Since the beginning of the suit Rachel Curfman, Frances Leffler and John Leffler have died and their representatives have been made parties. After hearing had upon testimony oral and documentary and upon evidence submitted in the form of depositions, the Circuit Court dismissed the bill for want of equity, and the present appeal is prosecuted from said decree o'f dismissal.</p> <p>Solomon Wilkinson came from Ohio to Stark County, Illinois, in 1849, being at that time about 60 years old. He brought some money with him, and at once purchased a farm of 200 acres, on which he lived until his death. He died on April 2, 1885, leaving seven children, the four daughters and three sons above named, towit: Rachel, Charity, Nancy, Frances, Sylvester, Alonzo and Newton. His wife died in the spring of 1871. The oldest daughter, Frances, married in 1850, but her husband died in about six weeks leaving her one child, John Leffler. She never left her father, but kept house for him and managed the household affairs after her mother’s death; and she and her son, John, who became of age in 1872, lived with the old man on the home place until his death. Charity married in 1853, Rachel in 1856, and Nancy in 1857 or 1858, each leaving home at the elate of her marriage. It is in evidence, that the last three daughters assisted in the work of the farm up to the dates of their respective marriages. Sylvester became of age in 1863, Alonzo in 1865 and Newton in 1868. The three sons remained on the home farm, Alonzo until his marriage in 1875, Sylvester until his marriage in 1876, and Newton until his marriage in 1881. Up to the latter date, and longer, they and John Leffler “worked” the home farm and adjoining farms purchased by their father. The deeds sought to be set aside are the following: a deed of 160 acres, executed on January 5, 1869, by Robert B. McChance to Sylvester Wilkinson; a deed of 80 acres, executed on February 16, 1870, by James A. McChance and his wife to Alonzo Wilkinson; four deeds executed by Solomon Wilkinson, all dated May 27,1873, one of 133 acres to Sylvester Wilkinson, one of 187 acres to Newton Wilkinson, one of 111 acres to John Leffler, and one of 169 acres to Frances Leffler; a deed, dated May 27, 1873, executed by said Sylvester to said Alonzo conveying one half of the 160 acres conveyed to Sylvester by Robert B. McChance; a deed of 160 acres, dated October 21, 1874, executed by Davis Low-man and wife, and Daniel Burge and wife, to said Sylvester, Alonzo, Newton and John. The first two deeds were recorded on the respective dates of their execution. The five deeds executed on May 27, 1873, were recorded on July 28, 1876. By the above deeds there were conveyed to Sylvester 253 acres, to Alonzo 200 acres, to Newton 227 acres, to John Leffler 151 acres, to Frances Leffler 169 acres, making 1000 acres in all. The evidence shows that the sons participated in the profits and produce realized from the business of the farms and received their respective shares of such business up to 1873 or perhaps 1881.</p>

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

<p>1. Cbiminal law—separate trials—discretion of the court. A motion -for a separate trial in a criminal case is addressed to the sound legal discretion of the court, and its action in denying the motion is not subject to review, unless it appears there was an abuse of that discretion. The g'eneral rule is, that parties indicted jointly are to be tried together.</p> <p>2. Same—drunkenness as a defense. Under our statute drunkenness is no excuse for crime.</p> <p>3. Witness—credibility of party defendant in criminal case. The jury are not bound to believe the evidence of a defendant in á criminal -case, and may take the fact that he is defendant into consideration, .and give his evidence such weight as, under all the circumstances, they may think it entitled to; and an instruction which does no more than ■call the attention of the jury to that rule is not erroneous.</p> <p>4. On the trial of several for murder, in which only one of the defendants testified, the court instructed the jury, that while defendants in criminal cases are competent witnesses in their own" behalf, their •credibility is, by the statute, left to the jury, and that in considering the amount of credit or value they might give to the testimony of the defendant testifying, the jury might take into consideration his interest in the case, his desire to avoid punishment for the crime charged, and all other interests or motives that would likely surround or affect the testimony of a person similarly situated: Held, that the instruction was proper, and was not obnoxious to the objection that it singled out the party testifying, by name, and called the attention of the jury to the fact that the other defendants did not testily in their own behalf.</p> <p>5. Instructions—must be based on the evidence. Instructions are properly refused when there is no evidence upon which to base them.</p>

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

<p>Appeal from the County Court of Iroquois county; the Hon. Charles E. Starr, Judge, presiding.</p>

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

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

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

<p>Writ of Error to the Criminal Court of Cook county; the .Hon. B. W. Clifford, Judge, presiding.</p>

<p>1. Negligence—street railway company—excessive speed of cars. If the average rate of speed fixed by the schedule of a street railway company is excessive, in view of the stops necessary to be made in the route, the company will be responsible for an accident occurring from the fact that one of its servants was speeding a car in conformity with the schedule of the company.</p> <p>2. Evidence—to show rate of speed of an electric car at the time of a ■collision. In an action against a street railway company to recover for a personal injury to the plaintiff by a collision of its cars with a buggy in which the plaintiff and two others were riding, evidence of the distance of the round trip of the cars, and of the schedule time for making such trip, is admissible in behalf of the plaintiff, in connection with other testimony introduced as to the rate of speed of the car at the time of the collision.</p> <p>3. If the round trip of the cars was about ten miles, and the time, as fixed by the company in its schedule, was one hour for making the round trip, proof of this tends to establish the average rate of speed as being ten miles an hour. While such evidence is not conclusive as to •such average rate of speed, yet it is admissible as tending to prove such .average rate.</p> <p>4. In such case, it is for the jury, looking at all the evidence, to say whether the man in charge of the car which collided with the buggy was unnecessarily driving the car at an excessive rate of speed, or whether the company had, by its schedule, fixed such a short time for making the round trip that the motor-man was obliged to go at an excessively rapid rate in order to make all the required stops and pass, over the length of the line within the prescribed time.</p> <p>5. In an action for a personal injury against a street railway company, based upon a charge of negligence in operating its cars at an excessive rate of speed, resulting in a collision, proof of the schedule time fixed by the company for the passage of its cars over a specified distance is not admissible for the purpose of showing negligence in running its cars on other trips than the one in question, but only for the purpose of determining the average rate of speed, as a basis of comparison with the rate of speed at which the car colliding was traveling.</p> <p>6. Same—relevancy. Testimony not manifestly relevant should not be excluded, when its relevancy may be made to appear by proof aliunde. The question is, whether the offered proof tends to support the defense or cause of action, and all evidence tending to prove either of the material facts is admissible, although it may not, alone, establish - the whole case.</p> <p>7. Same—conclusions of witness. It is a general rule that a witness-must testify to facts, and not to his opinions. But when the witness testifies to facts showing that his opinion was the only conclusion that can be drawn from the facts, the error in allowing him to state that opinion will be harmless, and afford no ground of reversal.</p> <p>8. Where the inference to be drawn from a given state of facts is not clear or certain, a jury in whose hearing the facts are recited may be influenced by the opinion of a witness who tells them his conclusion therefrom. It is otherwise when only one conclusion, and that an obvious and necessary one, suggests itself as soon as the facts are presented.</p> <p>9. Witness—impeachment—cross-examination as to collateral matters. A witness can not be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence.</p> <p>10. On the trial of an action against a street railway company, charged with negligence in failing to stop the car before a collision, the conductor of the car testified that he applied the brake as soon as he could, and did all that he could to stop the car: Held, that it was proper cross-examination to ask him if he had not, on a previous occasion, stated that he forgot to put on the brake, and that he could have stopped the car if he had not lost his head.</p> <p>11. A witness may be asked, on cross-examination, if he has not theretofore given a different account of the matter of fact to which he has testified, in order to lay a foundation for impeaching liis testimony by contradicting him.</p> <p>12. If a witness has simply testified to a matter of fact, his previous opinion as to the merits of the cause can not be regarded as relevant to the issue. Hence the questions put to him on cross-examination, with a view of laying a foundation for his impeachment, should be directed to matters of fact, only, and not to mere opinions which he has formerly expressed. The latter are inadmissible, unless the case is one where evidence of opinion is material.</p> <p>13. Where, for the purpose of laying the foundation for an impeachment, the attention of a hostile witness is directed, on- cross-examina-</p> <p>6>tion, to a previous account given by him of the transaction, testified to on the direct examination, and in such previous account- he appears to have mingled his statement of a fact with an expression of his own opinion in reference to the character or quality of that fact, an objection that the previous account referred to contains matter of opinion as well as matter of fact should be specifically pointed out at the time the question is asked, so that the interrogatory may be so changed as to refer to the matter of fact, only.</p> <p>11. Same—opinion-effect regulated by instruction. If the matters of opinion and fact are so intimately blended in the previous account as not to be easily susceptible of separation, the objecting party can have the former excluded from the consideration of the jury by asking proper instructions to that effect.</p>

<p>1. Taxes—on exempted property, enjoined. It is well settled in this State that the collection of a tax levied upon property not subject to taxation will, on application of the owner, be enjoined. He has the right to assume that the exemption will be respected, and is not required to take notice of its illegal assessment and valuation, nor to appear before the local tribunals in that regard.</p> <p>2. Same—exemption—burden of proof. Where property is claimed to be exempt from taxation because of the use to which it is applied, the burden is upon the claimant to satisfactorily show that it is appropriated to the use specified in the law under which the exemption is claimed.</p> <p>3. Same—exemption of land used for burial purposes. Under the special charter of a cemetery company, which provides that “all estate, real and personal, held by the company, actually used by the corporation for burial purposes, or for the general use of lot holders, or subservient to burial uses, and which shall have been platted and recorded as cemetery grounds, shall be” exempt from taxation, the mere purchase of land for future use as burial grounds, and platting it, will not make it subservient to burial purposes, within the meaning of the charter, so as to exempt the same from taxation. The subserviency is not merely to cemetery uses or for general purposes of the company, but to “burial uses.”</p> <p>4. The word “subservient,” as used in the charter, may be properly construed to mean grounds not for actual burial purposes, viz., in which to deposit bodies, but useful in connection with such grounds, “serving to promote the end of burying the dead.”</p> <p>5. The court does not wish to be understood as holding that cemetery grounds are only exempt, under such a charter, when burials have been actually made upon them, or that the necessities of the corporation may not be reasonably anticipated by appropriating grounds to burial purposes before they are absolutely demanded, so as to bring them within the exemption.</p> <p>6. This appropriation may be done by the company when it “makes, up” sections, or, otherwise acting reasonably in good faith, actually devotes its grounds, as a body, to immediate use for burials. But it ■can not, by platting a large body of land and appropriating a fraction of it to actual burial purposes, escape taxation of the whole.</p> <p>7. Same—presumption against exemptions. The intention of the State to bind itself by an exemption of property from taxation, must be clear, as all presumptions are against it.</p>

<p>1. Former adjudication—judgment as a bar to a second suit—disiinclion. There is a distinction between the effect of a judgment as a bar or estoppel to the prosecution of a second suit for the same cause of action, and its effect as an estoppel when the same question is again brought in issue in another suit between the same parties upon a different cause of action.</p> <p>2. Same—identity of parties, etc. Where the former adjudication is relied upon as an absolute bar to a subsequent action, it must be shown that the cause of action or thing to be recovered is the same in both proceedings. While the particular form of action may not be important, there must be, as between the two actions, identity of parties, of subject matter and of cause of action, to constitute the first a bar to the second.</p> <p>3. Where, however, some controlling fact or question material to the determination of both of the causes has been adjudicated in the former suit by a court of competent jurisdiction, and the same fact or question is again at issue between the same parties, its adjudication in the first will, if properly presented, be conclusive of the same question in the later suit, irrespective of whether the cause of action is the same in both suits or not.</p> <p>4. This doctrine is limited to matters necessarily involved in the litigation, but it is equally applicable whether the point was, itself, the ultimate vital point, or only incidental, but still necessary to the decision of that point. The joining of a mere nominal party in the second suit will not prevent the prior adjudication from being a bar.</p> <p>5. On bill by A to compel B to assign to him certain shares of stock in a corporation, on the ground that B, the defendant, has no interest in such stock but holds the legal title for A, it appeared that prior to the filing of the bill there was an action at law between A and B, in, which the court necessarily found that the stock did not belong to'A alone, but belonged to them jointly: Feld, that the judgment at law was a -bar to the relief prayed in' the bill.</p> <p>6. Same—how matters in issue are found. Ordinarily the pleadings in the former suit will show what was within the issue tried and determined therein. But a fact or question is no less at issue, or within the conclusive effect of the verdict and judgment, because the averments of the declaration and traverse are general. The difference between cases where the issue is thus general, and those where it is limited by the pleading to a single point, is, that the matter which appears by the mere inspection of the record in the latter, must in the former be established by evidence.</p> <p>7. Same—parol evidence to show matters tried in former action. Parol evidence of what oecured upon the former trial, and what was actually decided, is always admissible in such cases.</p>

Francis M. Wright, Judge, presiding. This cause originated in the Superior Court of Cook county, by bill in chancery, by appellant, against appellee, to cancel a contract between the parties, and compel the repayment of money alleged to have been paid under it. A general demurrer to the bill was overruled, and the cause heard on the bill, answer, replication and proofs, and a decree rendered dismissing the bill for want of equity, at the complainant’s cost.

Bobebt B. Gibson, Judge, presiding. At an election held on the 16th day of April, 1892, at Spring Valley, in Bureau county, in district No. 3, for the purpose of electing a president of the board of education, and two members of the board for three years and one member for two years, as appears from the returns, G. J. Haeuck was elected president, and Peter Lauer, P. J. O’Brien and Thomas Dyer were each elected members of the board.

<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. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Vendor and vendee—stoppage in transita. The stoppage of goods in transita does not operate to rescind the contract of sale, and' hence it does not divest the vendee of his title. The stoppage only has the effect of restoring the vendor to his right to a lien, as though lie had never parted with the possession. But he can not keep the goods, and at the same time recover from the vendee the purchase price. 1 3</p> <p>2. The first duty of the vendor after regaining possession is to hold the goods until the purchase price becomes due under the contract of sale, so as to be able to deliver them upon payment. After that he may sell them, and recover the difference between the amount received at the sale and the contract price; or he can sue the vendee for the whole price, if he is ready to deliver them upon payment.</p> <p>3. If, however, after the contract price becomes due the vendor takes no steps to dispose of the goods, either by selling them after notice, or tendering them to the vendee, and, upon his failure to pay, suing him - for the price, but simply keeps them, he will, after a reasonable time, be held to have elected to take them back in satisfaction of the debt created by their purchase. But he can not keep them indefinitely, and at the same time recover the price.</p> <p>4. Where a vendor stops part of the goods in transitu, and the vendee makes an assignment for the benefit of creditors, the vendor will not be allowed to prove up his entire claim, when he does not offer to deliver the goods so stopped, but he will be entitled to recover the price for the goods actually delivered.</p> <p>5. If the vendor is not ready and willing to deliver the goods upon payment of the price, he can not recover the price, notwithstanding the insolvency of the vendee. Failing to show such readiness to deliver if the price was paid, raises a presumption that the vendor looks to the property for payment.</p> <p>6. Sale—re-sale of goods after earnest given. After earnest given, the vendor can not sell the goods to another without a default in the vendee, and, therefore, if the vendee does not come and pay and take away the goods, the vendor ought to go and request him, and then if he does not come and pay and take away the goods in convenient time, the agreement is dissolved, and the vendor is at liberty to sell them to any other person. This does not mean that thereby the contract of sale is rescinded, but that it is determined, if the vendor so elects to treat it.</p>

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

Murray F. Tuley, Judge, presiding. This was a creditor’s bill, brought August 4,1890, by Henry F. Eames, Frank A. Heeht and Alfred Cowles, against Ellen R. Dorsett and Daniel H. Dorsett, who are husband and wife. The bill is predicated on two judgments in the circuit court of Cook county, one rendered March 2, 1890, in favor of George W. Clother, againstvDaniel H. Dorsett, for the sum of §1582.50 and costs.

S. P. McConnell, Judge, presiding. • On the 25th of July, 1888, appellant shipped by appellee’s road two carloads of corn in bulk, from Lodi, Illinois, and on July 28, 1888, three carloads from Ludlow, Illinois, consigned, “Order Jos.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the County Court of Cook county; the Hon. George W. Brown, Judge, presiding.</p> <p>Appellants filed their petition in the county court of Cook county on the 29th day of June, 1892, for leave to present to the above named assignee their certain claim against the assignor, without prejudice, and that they be allowed to participate in the distribution of the assigned estate to the same extent and in the same manner as though their claim had been filed within the time prescribed for the filing of claims in such cases by section 10 of the Voluntary Assignment act. To the petition appellee filed objections, and the case was submitted to the court for trial upon the following agreed statement of facts:</p> <p>“The parties in the above entitled cause, now pending and -undetermined in said court, do hereby stipulate and agree that the facts of the matter in controversy are as follows, to-wit: That on the 23d of September, 1889, four judgments, aggregating, with costs, the sum of $7196.86, were entered in the Superior Court of Cook county, Illinois, against said Robert Larkins and in favor of certain parties, who immediately assigned said judgments to S. A. Ivean & Co.; that executions-were issued upon said judgments immediately upon their rendition, and said executions were forthwith, to-wit, on the 23d of September, 1889, levied by the sheriff of Cook county upon certain lumber in said Cook county belonging to said Robert Larkins, of sufficient value to satisfy in full all of the said executions, and that the said sheriff of Cook county took possession of said lumber under the said levy; that upon the same day upon which said judgments were entered and levies made, as aforesaid, a deed of assignment for the benefit of creditors, from said Robert Larkins to Nathaniel M. Jones, which had been executed and delivered on the 21st day of September, 1889, was filed for record in the recorder’s office of Cook county, and afterwards, to-wit, on the 27tli day of September, 1889, said deed of assignment was filed in the office of the clerk of the county court of said county of Cook, whereupon said Jones resigned his position as assignee of said Robert Larkins, and the said county court appointed one Perley Lowe as successor to said Jones; that said Perley Lowe thereupon filed his petition in said county court against the sheriff of Cook county and S. A. Kean & Co., praying that possession of the lumber levied upon, as aforesaid, by the said sheriff, should be delivered to said assignee by said sheriff; that after-hearing, upon evidence introduced by both sides, said petition was dismissed by said county court, and thereupon the said Perley Lowe, assignee, prayed and was allowed an appeal to the Appellate Court of Illinois, First District; that thereupon said sheriff advertised the said lumber for sale, but that before the sale thereof was consummated, said "assignee replevied from the sheriff and S. A. Kean & Co. all of said lumber levied upon as aforesaid; that afterwards, to-wit, on the 21st day of April, 1890, said Appellate Court of Illinois, First District, rendered its opinion in the matter of said appeal, sustaining and affirming the order of said county court dismissing said petition, and that thereupon the said assignee prayed and was allowed an appeal therein to the Supreme Court of Illinois, and that afterwards, to-wit, on the 15th day of January, 1892, said Supreme Court of Illinois rendered its opinion in the matter of said appeal, reversing the judgments of the county court and the Appellate Court dismissing said petition, and remanding said cause to said county court, with directions that the said petition of the said assignee be allowed; that thereupon said sheriff and S. A. Kean & Co., appellees therein, filed a petition for a rehearing in said cause, which petition was denied by the said Supreme Court of Illinois on the 15th day of June, 1892, and that a certified copy of said final judgment and order of said Supreme Court of Illinois was filed in said county court of Cook county on July 13, 1892; that the aforesaid replevin suit of said asignee, against said sheriff and S. A. Kean & Co., came on for hearing in the circuit court of Cook county upon the 21st day of July, 1892, and the said circuit court of Cook county, upon the hearing thereof, found the property in the lumber replevied therein to be in the said assignee, plaintiff therein, and entered judgment for the said assignee, plaintiff in said replevin suit; that by means of certain suits brought by S. A. Kean & Co. in the State of Indiana, upon said judgments, $1605.15, being over twenty-one percent of their entire claim, was realized from property of said Larkins, which should be credited upon said judgments, and that, after making the said credits, there is now actually and equitably due upon the aforesaid judgments, from said Robert Larkins, the sum of $5591.71; that on the 26th day of July, 1892, said Lowe, assignee, filed in said county court his final report, showing a cash balance in his hands, as assignee, as aforesaid, of $15,026.41, and giving a list, purporting to be a complete list, of the creditors of said Robert Larkins entitled to share in the distribution of said fund, and that S. A. Kean & Co. do not appear upon said list; and that said petition further prays for an order of said county court to make distribution of the said sum to the parties named in said list of creditors of said Robert Larkins’ estate, and that an order was thereupon, on the 26th day of July, 1892, entered, ordering the distribution of said fund to the parties named in said list of the creditors of said Robert Larkins’ estate, nisi five days; that the petition and claim of S. A. Kean & Co. herein, for $5591.71, was filed within the five days’ limitation, and that objections to said claim, and to the petition for the allowance thereof, were filed in apt time by the assignee; that the estate of said Larkins in the hands of the assignee, as shown by his final report, will not pay to Larkins’ creditors, (exclusive of S. A. Kean & Co.) who have proved up their claims, in excess of a twenty per cent dividend. It is further stipulated that said Lowe, assignee, duly gave notice of such assignment by publication, and also duly sent a notice thereof by mail to said 8. A. Kean & Co., shortly after the 27th day of September, 1889, which notice was received by said 8. A. Kean & Co., or his then attorney. It is further stipulated that Morton Culver, Esq., the attorney who represented said 8. A. Kean & Co. in the county court in September and October, 1889, and also in the Appellate Court and Supreme Court, considered the question of filing the said claim of S. A. Kean & Co. with the assignee of Larkins, within three months after the publication of notice to creditors, and decided not to do so, stating to the attorney for the assignee that he would take his chances of collecting the full amount of the judgments.”</p> <p>The county court dismissed the petition at the cost of the" petitioners, and on appeal to the Appellate Court that order was affirmed.</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. B. S. Tuthill, Judge, presiding.</p>

<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 Y. Eustace, Judge, presiding.</p> <p>This was a bill in equity, brought to enforce the specific performance of an alleged contract between plaintiff in error Anning O. Campbell and his son, Darwin H. Campbell, deceased, husband of defendant in error, whereby, it is said, the son obligated himself to provide support and maintenance for bis father, said Anning O. Campbell, and his wife, co-plaintiff in error, during their natural lives.</p> <p>In 1866 Anning O. Campbell conveyed in fee to his son, Darwin, a tract of land consisting of one hundred and sixty-six acres, in consideration of love and affection, the said Anning O. Campbell at that time being a widower. He subsequently, in April, 1867, was married to his present wife. In 1872 Anning O. Campbell alsp transferred to his said son, Darwin, a store in Byron, Ill., consisting of a stock of goods of the value of $8000, at which time, the bill alleges, it was agreed by and between the parties, in consideration of such transfer, that said Darwin H. Campbell should support, provide for and maintain the plaintiffs in error, and-that the said real estate, as well as the stock of goods, should be held bound and pledged therefor. This agreement was not in writing, nor was any written memoranda thereof made or entered into between the parties. In 1883 the said stock of goods was sold for $5000, and at that time, it is alleged, said Darwin verbally agreed to set apart and invest $2000 of the proceeds of such sale as security for the support of plaintiffs in error, which agreement was never performed, but he nevertheless kept and maintained plaintiffs in error from the time the store was transferred to him, in 1872, until his death, in January, 1887. By will, Darwin H. Campbell devised all his estate, real and personal, to his wife, defendant in error.</p> <p>The prayer of the bill was, that the rights of plaintiffs in error to maintenance and support be ascertained and declared by the court; that their rights in said estate be determined, and that said estate, or so much thereof as might be sufficient for the purpose, be set apart for their support, and that a trustee be appointed to hold and apply .the same to this end, and also that the agreement to invest the sum of $2000 for this purpose be enforced.</p> <p>Defendant in error, and the then executor of the will, who was also made a party defendant, both answered, denying the allegations of the bill, the former also pleading the Statute of Frauds, and reserving demurrer to the bill, upon the ground that for the matters complained of, an adequate remedy existed at law.</p> <p>The circuit court found the equities in favor of the plaintiffs in error, and decreed specific performance of the agreement alleged to have been made at the time of the transfer of the stock of goods in 1872; that the defendant, Florence A. Potter, now executrix of the last will of Darwin H. Campbell, deceased, within thirty days from December 29, 1891, pay to plaintiff in error Anning O. Campbell $1500, the amount due for past support of plaintiffs in error, and that on the first days of June and January, 1892, and on the first days of June and January in each year thereafter, the sum of $150 be paid during the lives of plaintiffs in error. It was also decreed that the said sums of money so adjudged to be paid should be a lien, in like manner as a judgment at law, upon the lands described, the same being the one hundred and sixty-six acres aforesaid. Provision is then made by the decree, in case of failure to pay the said sums of money as therein required, for the sale of said land, or a sufficient part thereof, to satisfy the amounts due and unpaid, etc. Upon appeal to the Appellate Court this decree was reversed and the cause remanded, with instructions to dismiss the bill. Such further facts as are necessary to an understanding of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court' of LaSalle county; the Hon. Charles Blanchard, Judge, presiding.</p>

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

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

<p>Writ of Error to the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. W. Clifford, Judge, presiding.</p> <p>This is an action of assumpsit begun on February 20, 1890, in the Circuit Court of Cook County by Henry H. Sibley against the present appellants, John B. Grommes and Michael Ullrich of Chicago, upon their contract of guaranty, that one H. C. Donnelly would pay the rents and perform the covenants as provided in a certain lease executed by said Sibley, who lived in St. Paul, Minnesota, to said Donnelly of the same place,' renting to the latter a certain building in St. Paul. • Sibley having died during the progress of the suit, his death was suggested, and the cause proceeded in the name of his executors, the St. Paul Trust Company and others, who are the present appellees. The trial in the court below was before a jury, and resulted in verdict and judgment for the plaintiffs. The Appellate Court has affirmed the judgment •of the Circuit Court, and the present appeal is from such judgment of affirmance. The lease is dated October 1,1888, and leases the demised premises from that date to December 31, 1889, that is, for a period of one year and three months, at a rental of $200.00 per month payable in advance on or before the first day of each month. The tenant is to pay all gas and water charges, and assessments for street sprinkling, and agrees not to sell or assign the lease or sublet the premises, etc., without first obtaining the written consent of the landlord, etc. The lease contains the following provision s</p> <p>“It is further agreed by and between the parties hereto, that should said party of the second part, his heirs, executors, administrators or assigns, fail to make the above mentioned payments, as herein specified, or to pay any of the rent aforesaid when due, or shall fail to fulfill any of the covenants herein contained, then, and in that case, it shall be lawful for the said party of the first part, his heirs, executors, administrators or assigns, to re-enter, and take full and absolute possession of the above rented premises and hold and enjoy the same fully and absolutely, without such re-entry working a forfeiture of the rents to be paid and the covenants to be performed by the said party of the second part, his heirs, executors, administrators or assigns, or any of the same, during the full term of this lease.”</p> <p>At the time the lease was made and before its delivery, the appellants executed under their hands and seals the said written contract of guaranty, which was endorsed on the lease, and is as follows :</p> <p>“We, John B. Grommes and Michael Ullrich, co-partners, doing business at Chicago, Illinois, under the firm name of Grommes & Ullrich, in consideration of the execution and delivery of the foregoing lease from Henry H. Sibley to H. C. Donnelly, and of the sum of one-dollar to us in hand paid by said Henry H. Sibley, the receipt whereof is hereby acknowledged, do hereby covenant,.guarantee and agree that the said H. C. Donnelly shall well and truly pay all rents and perform all other covenants and conditions to be by him paid, kept and performed, according to the'terms and conditions of said lease, for and during the entire term thereof.”</p> <p>The rent was paid up to June 1, 1889, but no rent has been paid since that date; this suit is brought to recover the rent for the last seven months of the term from May 3 Uto December 31, 1889; and such was the amount of the recovery in the court below. Demand was made in June and July for the rent due for those months. About January 1, 1889, Donnelly, who kept a saloon on the premises, sold out his saloon to one D. P. Base, who then took possession and paid the rent for the five months from January 1 to June 1. Formal written demand for the possession of the premises, addressed to Donnelly and Buse, was served upon them on June 24. On July 2, 1889, Sibley commenced a proceeding in the Municipal Court of St. Paul against Donnelly and Buse for the possession of the premises wherein judgment for restitution was rendered on July 16. The writ of restitution was served on Donnelly on July 17, and on that day the keys and possession were delivered by the sheriff to Sibley’s agent. On July 3 appellants, as guarantors, were notified in writing of Donnelly’s default in the payment of the rent for June and July, and replied by letter on July 5, referring the matter to their attorney in St. Paul. Afterwards Sibley’s attorney notified the attorney of appellants, that the sheriff had put Sibley in possession under the writ, but tendered the property to appellants to be rented by them for the balance of the term. Appellants declined to accept the keys or tlie*possession of the property. On July 23, the attorney of Sibley notified the attorney of appellants, that, in view of the refusal of the latter to accept the possession, Sibley would endeavor to procure a tenant. He did advertise the premises for rent, but no tenant was obtained, and the property remained vacant until after January 1, 1890.</p>

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

<p>Appeal from the City Court of Aurora; the Hon. Russell P. Goodwin, Judge, presiding.</p>