Volume 148 — Illinois Reports

<p>Appeal from the Circuit Court of Carroll county; the Hon. John D. Crabtree, Judge, presiding.</p> <p>This is a bill, filed, on November 24, 1890, in the Circuit Court of Carroll County by the appellee, Thomas Van Buskirk, an insane person suing by his next friend, against the appellants, Clarissa Van Buskirk, the widow, and Frank Van Bus-kirk, the adopted son and only heir, of Jesse Van Buskirk, deceased, for the purpose of having a resulting trust declared in favor of the complainant in a certain tract of 80 acres, described as the W. ½ S.W. ¼ Sec. 14, etc., for an accounting of the rents and profits of said land received by the defendants since-the decease of said Jesse, for a conveyance of said 80 acres by the defendants to the complainant, and for such other relief as equity may require, etc. The defendants filed answers-denying the material allegations of the bill, charging laches, and pleading the statute of limitations, and, also', the statute of frauds. The decree of the Circuit Court was in accordance with the prayer of the bill, and the present appeal is prosecuted from that decree.</p> <p>Jesse and Thomas Van Buskirk were brothers. They came to Carroll County in 1845 or 1846. On May 18, 1846, each entered 160 acres, Jesse the N. E. J Sec. 15, and Thomas the S.E. J Sec. 15. East of N.E. \ See. 15 was W. J N.W. £ Sec. 14, and East of S.E. J See. 15 was W. S.W. ¿ Sec. 14. On May 15, 1848, Jesse entered said 160 acres in section 14. It is claimed in the bill, that in 1848 the two brothers, who were both unmarried, were partners in the farming business ; that the 160 acres were purchased with partnership funds; that there was an agreement between them by the terms of which Jesse was to enter the 160 acres with partnership money, and the title to the north 80 acres, or W. J N. W. ¿ 14, should be taken in Jesse’s name, and the title to the south 80 acres, or the W. -¿- S. W. £ 14, should be taken in the name of Thomas; that Jesse went to Dixon on May 15, 1848, and entered both tracts in his own name, instead of entering the south 80 acres in the name of Thomas. The south 80 acres is the tract here in dispute, the defendants claiming to own the tract as heirs of Jesse Van Buskirk, deceased, and the complainant claiming that said Jesse in his life-time held the title in trust for him, the complainant, and that the defendants, as the heirs, or widow and heir, of the deceased, now hold said title in trust for the complainant.</p>

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

<p>1. Negligence—due care. In suits for personal injuries, caused by the negligence of the defendant, the plaintiff must allege and prove that he was at the time in the exercise of due care; and where the action is for causing the death of the plaintiff’s intestate, the burthen is upon the administrator to show that the deceased exercised ordinary care to avoid the injury.</p> <p>2. In an action against a railway company for causing the death of ; another, the plaintiff is not bound to show, by direct evidence, that the deceased was free from negligence; and where there was no eye-witness to the killing, the fact the deceased exercised ordinary care for his personal safety at the time of the injury may be shown by circumstantial .evidence, or proof of facts and circumstances from which that fact may be reasonably inferred. It is not necessary that the absence of contributory negligence shall be shown beyond cavil or question.</p> <p>3. In such case, proof that the deceased was a sober, industrious man, possessed of all his faculties, also tends to prove that he was, at the time of the accident, in the exercise of proper care. In the absence of direct proof the jury may infer ordinary care and diligence on the part of the deceased from all the circumstances of the case, his character and habits, and the natural instincts of self-preservation. It may also be shown that the deceased, at the time of the injury, was sober, and on his proper way home, and was at a place where he had a right to be, in connection with proof of the negligence of the defendant.</p> <p>4. Same—prima facie case. The rule requiring the plaintiff to prove care on the part of the person injured, only requires evidence of the facts and circumstances attending the injury, and if these show negligence in the defendant, from which the injury followed as a direct and proximate consequence, and do not show any contributory negligence on the part of the person killed or injured, a prima facie case for the jury is made out.</p> <p>5. Practice—directing what the verdict shall be. The refusal of a-motion, made after the close of all the evidence, to instruct the jury to find for the defendant, to which proper exception is taken, presents a question of law, which is subject to review in this court; but this is so only to the extent of determining whether there is, or is not, evidence legally tending to prove the fact affirmed,—that is, evidence from which, if credited, it may be reasonably inferred, in legal contemplation, the fact affirmed exists, leaving out of view the effect of all modifying or controverting evidence.</p>

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. E. F. Dunne, Judge, presiding.</p>

Thomas F. Tipton, Judge, presiding. This was a bill in chancery, filed by H. H. McDowell, State’s attorney in and for Livingston county, this State, on the relation of M. M. Hall and William Cowling, citizens and electors of the village of Ghatsworth, in said county, on their own behalf as well as the general public, to restrain the construction of a purpresture, consisting of an area-way, and stairs therein, in one of the principal streets of said village.

Writ oe Error to the Criminal Court of Cook county; the Hon. R. S. Tuthill, Judge, presiding. The plaintiff in error and one John Meaney were indicted by the grand jury of Cook county on the charge of robbery committed upon the person of one Andrew Schultz. The indictment charges that certain money and personal property, consisting of bank bills, treasury notes and one pocket-book, of the property of said Schultz, were taken from his person by force and intimidation.

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. S. P. McConnell, Judge, presiding.

<p>Writ of Error to the County Court of Cook county; the Hon. Frank Scales, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. E. F. Dunne, Judge, presiding.</p>

Writ of Error to the Circuit Court of Lee county j the Hon. John D. Crabtree, Judge, presiding. This was a bill in chancery, brought by John W. Barrett against John Barrett and Sarah Greisinger, to, cancel certain conveyances from John Barrett to Sarah Greisinger, and to restrain him from making further conveyances or devises of the land in controversy, and also to establish the complainant’s title thereto.

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

Francis Adams, Judge, presiding. This is a proceeding begun by the City of Chicago in the Circuit Court of Cook County to open Hoyne Avenue in that city across the right of way of the appellant company. The cause was tried by agreement before the court without a jury.

Dorranoe Dibell, Judge, presiding. On July 1, 1891, Robert Montgomery and nine other residents of Wyanet, in Bureau county, entered into a written contract with Robert Day, by which they agreed to convey to him lots 13,14,15 and 16, in block 20, in Brown’s addition to said village, and pay him $6000, and in consideration thereof Day, on his part, agreed to erect on the lots a factory building 40x100 feet, two stories high, and to put in the necessary machinery and equip the…

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

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

Frank Baker, Judge, presiding. Appellee brought suit against appellant on the covenants of a lease, which, by its terms, expired on April 30, 1889, to recover liquidated damages for holding over.

<p>1. Non-resident defendants—publication of notice—evidence of the filing of affidavit of non-residence. Where an affidavit of non-residence of parties defendant appears attached to a bill in chancery without any file mark except that on the bill, the fact that a notice of publication was made by the clerk, who also filed his certificate of mailing the notices of publication, and the fact that the publication notice purporting to be signed by the clerk was made and published, and that a copy of that notice, so signed, was mailed to the post-office address of the non-resident defendants named in the affidavit, is evidence that the affidavit came to the hands of the clerk, and that its purpose was communicated to him at the time of the filing of the bill.</p> <p>2. Where an order of court on a bill to foreclose a mortgage finds and recites the filing of due' proof of the personal service of process upon the resident defendants at least ten days before the return day thereof, and the filing of due proof of notice to the non-resident defendants of the pendency of the suit, by publication, according to the statute in such case made and provided, such finding will afford sufficient evidence that an affidavit of non-residence found among the papers or attached to the bill was filed with the clerk at the proper time, although it may not bear on its face any file mark.</p> <p>3. Same—sufficiency of decree finding jurisdictional facts. A decree recited that it appeared to the court that summons was duly served on the resident defendants ten days before the return day, and that it further appeared, from the return of such summons, that A, B and C, defendants, could not be found in the county, and that it appeared from the affidavit on file that the defendants were non-residents of the State, and that due notice of the pendency of the suit had been given, by publication, for at least four successive weeks, by notice in a newspaper named, published in the county, stating the pendency of the suit, etc., giving the dates of the first and last insertions of such notice, and also finding that it appeared from the certificate of the clerk that within ten days of the first publication of said notice he sent a copy by mail, addressed to each of said non-resident defendants: Held, that this finding by thecourt of an affidavit of non-residence, and publication thereunder, was Sufficient evidence of the filing of an affidavit of non-residence and of publication.</p> <p>4. Same—evidence contradicting. The finding of the court as to its jurisdiction, by reason of the filing of an affidavit of non-residence and by the publication of notice, can not be controverted by evidence of the register clerk, whose duty it is to make an entry upon the register of all papers and orders in cases in his court. Such finding of jurisdiction can not be impeached or contradicted by evidence outside of the record.</p> <p>5. Same—of non-resident defendant—as depending on notice by mail. A mistake in an affidavit of non-residence as to the place of residence of a defendant, when reasonable diligence has been used to ascertain the same, will not deprive the court of jurisdiction of the person of the defendant or invalidate its decree.</p> <p>6. Parties—to bill to foreclose—party holding unrecorded deed for the equity of redemption. On bill to foreclose a mortgage, the holder of the equity of redemption, as shown by the record, was made a defendant, but the holder of such equity by an unrecorded deed was not made a party, and the complainant had no notice of his interest in the land: Held, that the failure to make him a party did not deprive the court of jurisdiction, or render the decree of foreclosure and sale void.</p> <p>7. Where one not in possession has title by an unrecorded deed, the presumption in favor of a prior mortgagee may be indulged that he is without notice of such title.</p> <p>8. Judicial sale—inadequacy.of price as ground for setting aside. Mere inadequacy is never a sufficient ground for setting aside a judicial sale, unless the inadequacy is so gross as to raise a presumption of fraud, particularly when a redemption is provided by the statute or decree, and the owner has actual notice of the sale.</p> <p>9. Laches—in filing bill to set aside foreclosure sale. A delay of nearly four years before filing a bill to set aside a judicial sale of land, even if the sale is voidable, when the land has advanced in value, is held such laches as to bar the relief sought. The party complaining is required to assert his rights promptly.</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. S. Tuthill, Judge, presiding.</p>

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

<p>1. Negligence—in the construction of a crossing over a railroad—a question of fact—evidence. Where a railroad, company constructs a crossing over its track in a public street, leaving a space between the rail and the sidewalk for the flanges of the car wheels, and the exact dimensions of the space thus left, in point of width and depth, are shown by the evidence, it is a question of fact for the jury to determine, in the light of all the evidence, whether the crossing is so constructed as to be reasonably safe for persons passing over the street.</p> <p>2. Even if the opening between the rail and the sidewalk, in which & child caught its foot and thereby was injured, was no wider than was reasonably necessary for the proper movement by the railway company •of its trains, it then became a question of fact for the jury to determine whether its unequal width and its unnecessary depth did not render it unsafe for persons passing over it in walking along the street. And the fact that a person in attempting to pass over the crossing caught his foot in the opening in such manner as to be unable to extricate it, is, of itself, some evidence that the opening was dangerous.</p> <p>3. Same—of railway company—dangerous rate of speed.. Where a count in a declaration charges a railway company with negligence in running its engine at a high and dangerous rate of speed in a populous part of a city, resulting in a personal injury to the plaintiff, but which makes no reference to an ordinance of the city on that subject, and there is evidence tending to support the charge, it will be the duty of the court to submit to the jury the question, whether, independent of the city ordinance, the rate of speed was such as, under all the circumstances, constituted negligence, and it will be error to take that question from the jury by an instruction.</p> <p>4. Same—of plaintiff in crossing a railway track. It can not be laid down as a legal principle that a person attempting to go over a railway track where it crosses a street or highway, is bound, at his peril, to pursue a course at right angles to the track. His right is, in using a street or highway, to walk in any direction he chooses, and his duty is to exercise reasonable and ordinary care in crossing a railroad track, to avoid injury.</p> <p>5. Same—evidence tending to negative negligence of parents of child injured. In an action against a railway company by a child, to recover for a personal injury inflicted while it was attempting to cross a street intersection in company with an elder sister, who was killed, both sides tried the case on the theory that the negligence of the parents of the plaintiff might be imputed to it in support of the claim of contributory negligence. The father of the plaintiff testified, without objection, that he occupied a position of night car inspector, and was in the habit of working in the night time and of sleeping in the daytime. He also testified, against the objection of defendant, that at the time of the accident he had a wife and three children, viz., the plaintiff, then five and one-half years of age, a daughter seven years old, who was killed, and a son a little over two years old, and that his wife was at that time in an advanced pregnancy, and that he did not employ a servant in his house: Held, that there was no error in the admission of this evidence, as it merely tended to show that the plaintiff’s parents were so situated as to make it impracticable for them to attend the plaintiff to and from school.</p> <p>6. Practice—directing what the verdict shall be. In an action against a railway company to recover damages for a personal injury, caused by various alleged acts of negligence, an instruction which practically withdraws from the jury the grounds of recovery alleged in several of the counts of the declaration, is erroneous, and properly refused.</p> <p>7. In an action brought by a child against a railroad company, to-recover for a personal injury by having its foot caught in an opening between the rail and sidewalk while attempting to cross the street, the-defendant asked the court to instruct the jury, that if they believed, from the evidence, that as soon as the servants of defendant in charge of the engine discovered that the plaintiff could not get out of the way, they used all reasonable diligence to stop the engine before it struck the plaintiff, and that in addition to such efforts the bell of the engine was rung, as required by law, and that the engine at the time was not running ata greater speed than ten miles an hour, the plaintiff could not recover. There were other acts of negligence charged in the declaration than those referred to in the instruction: Held, that the instruction was properly refused, as taking from the jury the consideration of the other grounds of recovery relied on by the plaintiff.</p> <p>8. Same—special finding—general verdict. On the trial of an action based on the defendant’s negligence in constructing a street crossing, in consequence of which the plaintiff caught her foot in an opening therein,” the court submitted to the jury this question : “Was the plaintiff, when she got her foot caught, passing over the crossing in the usual way, and going directly across the same?" to which the jury answered, “We do not know:" Held, that such answer was no finding whatever, and therefore was not inconsistent with a general verdict for the plaintiff.</p> <p>9. If the defendant was not satisfied with an evasive answer, it should have asked the court to' have the jury sent back to their room, under proper instructions, for the purpose of agreeing upon a special finding responsive to the question put to them. If he fails to do so, he must rest content with the finding as made.</p> <p>10. A special finding upon a mere evidentiary fact, whatever it may be, is not controlling, and can not be said to be, in any legal sense, inconsistent with the general verdict.</p>

<p>Appeal from the Circuit Court of Clark county; the Hon. F. Bookwalter, Judge, presiding.</p>

Charles J. Scofield, Judge, presiding. Appellees, a firm engaged in business and residents of the county of Lee and State of Iowa, became indebted to various corporations, business firms and individuals of the State of Iowa, and on the 10th day of December, 1890, made two certain instruments in writing, by which they sought to transfer all their stock of merchandise in said county and State, and all hills receivable, judgments and book accounts owing said firm, including…

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

Writ of Error to the Appellate Court for the Second District j—heard in that court on writ of error to the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding. This was a suit in assumpsit, brought February 4, 1881, by Edgar L. Butler against William Randall, in the Circuit Court of Warren county, for work, labor and- services, the sum claimed in the declaration being $700.

<p>1. Will—probate—belief of testator's capacity, at what time. If the attesting witnesses, at the time a will is signed and attested, believe that the testator or testatrix was of sound mind and memory, that will be sufficient to admit the will to probate. The right to probate the will is not dependent upon the belief of the attesting witnesses formed after their attestation.</p> <p>2. Same—probate, a,n ex parte proceeding. The probate of wills in the county court, under our practice, is an ex parte proceeding. Th'e statute contemplates no contest, and requires no citation to the heirs, etc., and the proof necessary to' entitle the will to probate is confined to the particular facts specified by the statute, and the judgment rendered is not an adjudication which is in any degree conclusive of the right of any person interested to contest the will by bill in chancery.</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 Stephenson county; the Hon, James Shaw, 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. C. E. Starr, Judge, presiding.</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. E. F. Dunne, Judge, presiding.</p>

H. Horton, Judge, presiding. This was a bill in the circuit court of Cook county, brought by Emily Faithful Ames and Miner T. Ames, minor children of Miner T. Ames, deceased, being of the age of about four and six years, respectively, by their mother, Irene C. Ames, as next friend, against Knowlton L. Ames, Jane Bose Ames Boss and Harriet C. Ames, adult children of said Miner T„.

<p>1. Appeals—from county and probate courts—to what courts—constitutional law. Appeals from decrees of county courts and probate courts ordering the sale of real estate by administrators to pay debts, can only be taken to the circuit court, and there tried de novo.</p> <p>2. Section 12 of the Probate Court act, which provides for "appeals from decrees of the probate court for the sale of land by administrators to pay debts of the decedent, directly to this court, is unconstitutional and void.</p> <p>3. The statute relating to county courts, and giving appeals from such courts to the circuit courts from decrees authorizing administrators and executors to sell land to pay debts of the estates they represent, and section 12 of the Probate Court act, giving appeals from the latter court in such cases directly to this court, are not uniform, and section 12 of the latter act is in conflict with section 29 of article 6 of the constitution, and void.</p>

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

<p>1. Infant—disaffirmance of deed. Where an infant, after attaining majority, expressly revokes and disaffirms a deed made by him or her during minority, it may be disregarded, and the rights of the parties will be determined the same as though the deed had never been made.</p> <p>2. Joint tenancy and tenants in common—words in deed creating joint tenancy. A deed of land to a man and his wife, “not as tenants in common, but as joint tenants,” creates in the grantees an estate in joint tenancy, with the right of survivorship.</p> <p>3. Same—presumption in favor of. Where an estate was conveyed to a plurality of persons, without adding any restrictive, exclusive or explanatory words, the conveyance, at common law, was held to constitute the grantees joint tenants and not tenants in common, it being necessary, in order to create a tenancy in common by deed, to add exclusive or explanatory words, so as to expressly limit the estate to the grantees, to hold as tenants in common, and not as joint tenants.</p> <p>4. Same—act of 1821—its effect on common law rule. The act of 1821, “concerning partition and joint rights and obligations,” undertook to deal only with joint tenancies and tenancies in common, held by the tenants in their own rights or in right of their wives. It had no application to estates held by executors, trustees or others holding estates in autre droit.</p> <p>5. As to estates held by the tenants in their own rights or in right of their wives, whether held as joint tenants or tenants in common, the act gave the right to compel partition, and in cases of joint tenancies, if partition was not made, the right of survivorship was taken away, and it was provided that the part of the tenant dying first should pass by descent or devise, and be subject to debts, dower, charges, etc., and be transmissible to executors or administrators, and be considered, for every intent and purpose, in the same view as if the deceased joint tenant had been a tenant in common.</p> <p>6. The effect of this statute was to practically abolish joint tenancies when the estates were held by the tenants in their own rights or in the right of their wives, or that which is the same thing, to convert them into tenancies in common. The right of survivorship was taken away, and upon the death of the tenant without having made partition, the estate was to be treated, to every intent and purpose, as a tenancy in common.</p> <p>7. Same—act of 1827—its effect on joint tenancies. The effect of the act of 1827, entitled “An act concerning conveyances of real property,” was to restore the right to create estates in joint tenancy as known at common law, in so far as that right was abrogated by the act of 1821. It also undertook to change the rule of presumption obtaining at common law when a conveyance of lands was made to two or more persons.</p> <p>8. By section 5 of the act of 1827, which is now section 5 of the present Conveyance act, this rule, except in cases of conveyances to executors or trustees, was precisely reversed. Under that section a conveyance to two or more persons, without restrictive or explanatory words, created a tenancy in common, and in order to create a joint tenancy the estate had to be declared to pass, not in tenancy in common, but in joint tenancy.</p> <p>9. There is nothing in the act of 1827 furnishing the least indication that the legislature intended to attach to joint tenancies, when the tenants held in their own rights, any other or different incidents than those which properly belonged to the estate when executors or trustees were the tenants. It was the intention of the act that the interest of survivorship should prevail, whether the tenants held in their own rights or in the right of others.</p> <p>10. Same—joint tenancy—the statutes considered. By preserving the provisions of the acts of 1821 and 1827 in the several revisions of the statutes, these two acts still sustain the same relation to each other which existed prior to the revisions of 1845 and 1874, and are to be construed now the same as they would have been construed prior to the revision in 1845. Therefore the act of 1827 must still be regarded as repealing or modifying the act of 1821, to the extent of permitting parties to create the common law estate of joint tenancy, with its common law incidents, by expressly declaring in the deed running to two or more grantees, that the estate conveyed shall pass, not in tenancy in common, but in joint tenancy.</p> <p>11. It would seem that the re-enactment of the acts of 1821 and 1827, without change of phraseology, in the revision of 1845, and again in the revision of 1874, was intended as a re-adoption of the statutory law on the subject in precisely the same condition in which it was before any revision was made.</p> <p>12. Construction of statutes—revision—prior statutes, etc. Where there are repugnant provisions in a revised code, those portions which are transcribed from later statutes must be deemed to repeal sections adopted earlier or transcribed from earlier statutes, or to so modify them as to produce agreement between such repugnant provisions.</p> <p>13. Section 2 of chapter 131 of the Revised Statutes of 1874, which provides that “the provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such prior provisions, and not as a new enactment,” furnishes a rule of construction applicable to our present Revised Statutes. Under it, a statute gains no additional force by being included in a revision, but is only continued as a part of our statutory law, having the same force and effect as before.</p> <p>14. Section 5 of chapter 30 of the Revised Statutes, entitled ‘‘Conveyances,” and section 1 of chapter 76, entitled “Joint rights and obligations,” being in pari materia, are to be construed together, and with reference to the prior legislation on the subject therein referred to.</p>

W. Gr. Ewing, Judge, presiding. This is a bill filed on March 9,1892, by the appellant against the appellee, and the following.is a statement of the substance of the bill as set out in the abstract of the record filed in this court by the appellant -. “Bill alleges incorporation February, 1892, of appellant under the laws of this State, and that it was incorporated for the purpose of ‘collecting and publishing market quotations, and furnishing facilities for trading in…

<p>1. Mistake—correction, when mutual. On the death of a wife without issue, her brothers and sisters agreed with her husband to convey him a life estate in the land left by the deceased. The husband had a deed prepared which conveyed the fee, and the brothers and sisters executed the same without reading it, under the belief that it passed only a life estate: JBeld, that as the mistake was mutual a court of equity would reform the deed so as to make it conform to the intention of the parties.</p> <p>2. Same—induced by fraud—correction. If the grantee of land has the deed for the same prepared for execution, and a mistake occurs in making a conveyance of the fee instead of a life estate, and he knew of such mistake, and induced the grantors to execute the deed under a mistake as to its terms without informing them of the fact, his conduct will be such a fraud on the grantors as, coupled with the mistake he has led the grantors into, will authorize a decree reforming the deed.</p>

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

Chables Blanchabd, Judge, presiding. This was a bill in equity, brought by the Chicago, Burlington and Quincy Railroad Company, against the city of Ottawa, to enjoin the prosecution of certain suits brought by the city against it for the violation of an alleged ordinance requiring the railroad company to erect gates at certain street crossings, for the purpose of protecting persons crossing'the railroad track from being injured by passing trains.

John J. Glenn, Judge, presiding. Harrison W. Riggs was married in Kentucky in 1827, and in 1834 purchased and settled on the land in controversy. In the fall of 1854 he went to the State of Texas on account of his health, with the intention of getting a home there. Some of his children who were of age went with him, and some remained on the farm with the wife.

This was an application in this court for a writ of habeas corpus. The facts are sufficiently stated in the opinion of the court.

Writ of Error to the Circuit Court of Clay county; the Hon. C. C. Boggs, Judge, presiding. Plaintiff in error filed a bill in chancery in the circuit court of Clay county, seeking to set aside a deed made by him to defendants in error. By his original bill he averred the deed had been executed by him and placed on record, and there was no consideration for its execution, and it had never been delivered.

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

Writ of Error to the Circuit Court of Randolph county; the Hon. B. R. Burroughs, Judge, presiding. At the September term, A. D. 1892, of the circuit court of Randolph county, the plaintiff in error and one John Wenda were indicted for the murder of Theodore Sewell, who was shot, and his death resulted from such .shooting, on the night of the 26th day of July, A. D. 1892.

R. S. Tuthill, Judge, presiding. This is an action of debt brought by E. Nelson Blake for the use of the Metropolitan National Bank of Chicago, the appellee herein, against Cyrus Dupee, the appellant, upon a joint and several bond, dated January 31, 1884, in the penal sum of $5000.00, executed by J. C. Ferguson & Co., a firm then composed of N. M. Neeld, J. C..Ferguson and E. W. Ferguson, as principals, and George D. Baldwin and said Cyrus Dupee, as sureties, to the said E.…

<p>Writ op Error to the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.</p>

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

<p>1. Mechanic’s lien — statute construed — word “may.” The word “may,” in section 4 of the Mechanic’s Lien law, which provides that any person having filed a claim for a lien, as provided therein, may bring suit at once to enforce the same, etc., does not mean “shall,” but, on the other hand, that word, as used, allows the petitioner to bring suit at once if the debt is then due; if not then due, suit may afterward be brought when the debt matures.</p> <p>2. Same—lien arises out of the original contract. Under section 1 of the Lien law the lien grows out of the contract, express or implied, or partly expressed and partly implied, with the owner of the premises;' and the lien attaches from the date of the contract, and depends upon the provisions which the contract makes as to the time of payment, and not upon the notes which may be afterward given.</p> <p>3. After the work has been completed and the last payment becomes due, as provided in the contract under which the materials were furnished or labor performed, then the contractor has four months in which he is required to file a statement of his claim,' as declared in section 4. If the contractor has, by any subsequent agreement with the owner of the premises, extended the time of payment to some future day, that fact will not deprive him of the right to file his claim within the four months, nor does it relieve him of the duty to do so,"as the statute requires a just and true statement of the account to be filed within four months after the last payment is due.</p> <p>4. SAME—limitation. Section 28 of the act provides that no creditor shall be allowed to enforce a lien against any other creditor or incumbrancer or purchaser unless a claim for a lien shall have been filed with the clerk of the circuit court with in four months after the last payment shall have become due. This provision has reference to the time when payment becomes due by the terms of the contract entered into between the parties, out of which the lien arose.</p> <p>5. The contractor, after having filed a just and true statement of the account, is not compelled to institute a suit at once to enforce the lien, but by the express terms of the last clause of section 28 he may do so at any time within two years after filing the statement.</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. Canby, Judge, presiding.</p>

<p>1. Criminal law—forgery—aiding and abetting—without taking partinpassing forgedpaper. It is not necessary to charge a person with the forgery of notes, and a mortgage to secure the same, that he should have actually participated in uttering and passing the same. It is sufficient if he forged the.papers, or aided or assisted in their forgery, with the intent that they should be uttered as true and genuine.</p> <p>2. Same—presumption as to intent to defraud. From the intent to pass a forged promissory note as good and genuine, the law will infer an intent to defraud the person upon whom the forged note is actually passed, as well as to defraud the person whose name is forged.</p> <p>3. The indictment for a forgery may lay the intent to defraud either the person whose name is forged or the person to whom the forged instrument has been passed, and proof of an actual intent to pass it as good, though there be shown no actual intent to defraud the particular person, will sustain the allegation.</p> <p>4. On an indictment for the forgery of a note by two persons, and' passing the same as genuine, evidence of the prior hypothecation of the same as collateral to the note of the two defendants is competent to go to the jury as against the defendant not otherwise uttering the same, as tending to prove the forgery was committed by him and his-co-defendant with the intent to pass the note as genuine upon whoever would take it.</p> <p>5. The intention to defraud by means of a false and fictitious instrument is essential to the crime of forgery. There must be in the individual committing the act, what is termed in law an intent to defraud a particular person, but the law presumes such intent as to the particular person if it be shown that the intent was that the instrument forged should be used as true and genuine.</p> <p>6. Same—evidence to show intent. On a prosecution for forgery, any evidence having a tendency to prove the intent with which the particular act charged was committed is competent. And so where the-guilt of the defendant depends upon the intent or design with which the act is committed, or upon his guilty knowledge, it is permissible to examine into any matter with which he is connected which tends to establish the crime charged, showing a guilty intent, design or knowledge.</p> <p>7. This has been said to form an exception to the general rule, but evidence being admissible if it tends to prove the issue or constitutes a link in the chain of proof, although, of itself, it might not justify a verdict, it falls strictly within the rule that the evidence offered must correspond with the allegation and be confined to the point in issue.</p> <p>8. Same—evidence of other offenses of same hind. In prosecutions for forgery, and for uttering forged paper as genuine, evidence is admissible to show that the defendant had, about the same time, in his possession, or uttered or attempted to utter, other forged instruments of the same description, as tending to prove guilty intent and knowledge in the making or uttering of the particular instrument charged to have been forged or uttered.</p> <p>9. The conditions to the introduction of such evidence are, that where such instruments are offered in proof of guilty knowledge there must be strict proof that they are forgeries; and the forgery, possession or uttering must, in point of time or circumstances, be so near the commission of the alleged offense that the inference arises that the defendant must have intended, by the principal forgery, to perpetrate a fraud, or must have known that the instrument uttered was spurious.</p> <p>10. The evidence of other forgeries or uttering of forged instruments is not admissible, and can not be considered for the purpose of establishing the act of forging or uttering the instrument charged in the indictment as being forged or uttered. But the fact of the false making or the uttering of an instrument shown to have been forged having been shown, evidence of collateral forgeries and uttering of forged instruments of like description is admissible, as tending to show the intent with which the false making was done, or the guilty knowledge of the defendant in uttering the instruments named in the indictment.</p> <p>11. Same— evidence of other forgeries—when error. On the trial of several for the forgery of a note and deed of trust, and for uttering the same as genuine, it is error to admit in evidence, for the People, the declarations of two of the defendants in respect of forgeries and forged instruments, when they are not produced to the jury and shown to be forgeries in fact.</p> <p>12. Evidence of the admissions or statements of one being tried for forgery, in reference to"the note described in the indictment as having been forged, is admissible against him, but what he has said about an.other note not in evidence is not admissible to prove the charge on which he is being tried.</p> <p>13. Same—proof of forgery—testimony of person whose name is forged. The person whose signature is alleged to be forged, while a competent is not an indispensable witness to establish the forging.</p> <p>14. Instructions—not affecting party complaining. Where several defendants are tried together for forgery, and all are convicted, and two of them sue out a writ of error, they can not complain of the refusal of instructions relating alone to the connection of a defendant not joining in the writ of error.</p> <p>15. Same—repeating. Where every principle of law in instructions refused, applicable to the case and proper to be given, is fully covered - by those given, there will be no error in the refusal.</p>

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

John J. Glenn, Judge, presiding. This is an action by appellee, against appellant, on account of personal injuries caused by a defect in machinery furnished by appellant for use in its factory where appellee was employed. The injury occurred while appellee was shoveling clay out of a pan about eight feet wide and fifteen inches deep, used for the purpose of mixing and tempering the clay.

F. Tuley, Judge, presiding. Mary F. VanMatre filed her bill in chancery in the Cook county circuit court, alleging that she and others named in the bill, including Caroline C. Sankey, were the heirs-at-law of Samuel Sankey, who died intestate in November, 1886, without issue or widow surviving him, and seized of certain lots and lands in said county, of which partition was sought among said alleged collateral heirs of said decedent.

James Shaw, Judge, presiding. On May 3, 1890, Norman B. Richardson departed this life, intestate, leaving appellant, his widow, and appellees, together with William N. Richardson and Adelaide Sanford, his children by a former marriage, surviving him. He left an estate, largely in money and securities, estimated at $200,000.

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

<p>1. Partnership—whether it exists—principal and agent—division o f profits. Even where parties agree to enter into a joint enterprise and share in the profits, a partnership, as between themselves, is not necessarily the result. The intention of the parties always controls.</p> <p>2. A employed B to manage his business affairs generally, and to collect rents, debts, etc.; and to make investments, and agreed to pay the latter three per cent on all amounts collected for rents, and also to pay him out of the net income of the personal capital one-fifth of every transaction, which was to be entered in the proper accounts, said accounts to be balanced on the first of every month, “one-fifth of such balance to be charged to A and credited to B,” and the contract further provided that when B should receive any and all of such net proceeds realized from the transaction before specified, it should be upon the check of A, and by another clause in the contract B was made liable for one-fifth of the losses for any business done by him: Held, that such agreement did not constitute a partnership between the parties, but the relation created was that of principal and agent.</p> <p>3. By the fourth clause of the agreement B was required “to use the personal capital of the party of the first part (A) in all legitimate transactions, such as he shall approve, for the purpose of producing an income from said capital,” and by the seventh clause was “to receive from the net income of the personal capital one-fifth of every transaction Held, that the words “net income of the personal capital,” did not mean an increased value in real estate bought with A’s means.</p> <p>4. In such case the personal capital belonged to A, and any property purchased with it, real or personal, also belonged to him. If that property increased in value, the profit was his. While he owned it, and while the contract remained in force, B was entitled to one-fifth of the net income derived from it, and nothing more.</p> <p>5. Contract — construction — adopted by the parties. The rule of construction which permits resort to extrinsic evidence in the construction of a written contract, as showing how the parties treated the same, has no application to a contract which is clear and unequivocal in its terms as to the rights of the parties. In such case the rights of the parties are fixed and controlled by the contract.</p> <p>6. Witness—competency of party in suit against representatives of a deceased person. On bill against the executors and trustees of a deceased person, to recover for money due complainant from the estate of the testator, the complainant is not a competent witness in his own behalf to establish his claim,.</p>

<p>1. Bailment or sale—goods consigned to agent to sell. A manufacturer appointed H. as his agent to sell his wagons, and H. accepted the agency, and agreed to pay all freight and other charges and expenses, and not to sell on credit to any one except of undoubted solvency, the notes taken to be made payable to the principal in twelve months, and bearing seven per cent interest. H. was to indorse all notes, guaranteeing their prompt payment, and to transmit promptly all cash received and notes taken. For all wagons not so,ld within a year he was to give his note, on four months’ time. H. was to have all the proceeds of sales above the invoice price, in full for his commissions: Held, that the transaction constituted a bailment, and not a mortgage or conditional sale, and that the wagons consigned under the contract were not liable to levy and sale on execution against H.</p> <p>2. Appeals and writs op error—finding of facts by Appellate Court is final and conclusive on this court. Under section 88 of the Practice act, where the Appellate Court finds the facts different from the circuit court, and incorporates in and recites the facts as found, in its final judgment, the judgment of the Appellate Court is final and conclusive as to all matters of fact in controversy.</p>

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

<p>Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.</p>

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

Frank Scales, Judge, presiding. On the 29th of October, 1892, the board of trustees of the town of Cicero passed an ordinance providing for the levy of a supplemental assessment, to cover a deficiency in an assessment theretofore made, for an out-fall sewer on Ridgeland avenue, and two main sewers tributary thereto, in said town, in pursuance of an ordinance passed by said board December 5, 1891.

<p>Appeal from the Circuit Court of Winnebago county; the Hon John D. Crabtree, Judge, presiding.</p> <p>The original bill in this case was filed on September 24, 1890, by the appellant, Eliza A. Warren, the widow of Alpha Warren, who died testate on November 12,1888, against John H. Warren in his own right as the son of Alpha Warren by a former wife, and as executor of the will of said Alpha Warren. Appellant was married to Alpha Warren on June 15, 1875, and was at that time a widow having a daughter by a former husband, but never had any children by Alpha Warren, his only child being said John H. Warren. After answer filed, the bill was amended by making the children of John H. Warren defendants. Subsequently on October 4, 1892, a supplemental bill was filed by appellant against said John H. Warren and his children. The questions in the case arise upon the issues made by the answers to the supplemental bill and the replications to such answers. The supplemental bill prays for an allotment of dower and homestead, for an accounting by the trustee and executor, for a disallowance of certain payments made by him for special assessments and special taxes levied against real property of the estate in Rockford, for removal of the trustee, and for general relief, etc. The answers deny, that complainant is entitled to any of the relief asked for, and set up release and settlement by her, and payment to her and receipt by her of one third of . the balance of the rents and interest given to her by the will, etc. The decree of the Circuit Court finds that the will of Alpha Warren was admitted to probate on November 15, 1888; that John H. Warren entered upon the duties of executor and trustee thereunder; that complainant affirmed said will and did not relinquish any of the provisions thereof, and is not entitled .to either dower or homestead in the lands of her deceased husband ; that the personal estate has been and will be exhausted in payment of the widow’s award, claims allowed, and the compensation of the trustee to be allowed; that, since the testator’s death the city of Rockford has carried on proceedings by special assessment for the. improvement of public streets and the construction of public sewers; that such assessments against the lands of the testator amount to $1441.00; that complainant has been wrongfully charged with one third thereof, towit: $480.33 ; that under the will she is only chargeable with one third of the ordinary taxes and repairs; the decree orders that John H. Warren pay to complainant said sum of $480.33 with five per cent interest, and certain costs- within 40 days, etc., and have execution therefor, and that the question of the executor’s compensation be reserved, etc.</p> <p>The will of Alpha Warren appoints his son his “executor to settle and manage my estate, and also my trustee to hold and keep my estate intact during his natural lifetime,” and, after providing for the payment of debts and funeral expenses out of the personal property, it proceeds as follows:</p> <p>“I direct that the annual income of my estate, personal and real, shall be used as follows : My executor and trustee shall be entitled to and shall receive a reasonable compensation for his services. The annual taxes and insurance, and also all reasonable repairs and improvements, shall be provided for out of the annual rents and interest, and of the annual income not used for the purposes above named, one third shall belong to my wife, Eliza A. Warren, during her natural life, and also a suitable house for her residence during the same period, and two thirds of the above named income shall belong to my son, John Henry Warren, for the support of himself and family during his natural life. At the decease of my wife, Eliza A. Warren, the one third of income belonging to her as dowery shall revert to my estate, for the benefit of my lawful heirs, subject to the direction and control of the said John H. Warren, the trustee of my estate; and after the decease of both my wife, Eliza A. Warren, and of my son, John H. Warren, then my entire estate shall belong, in equal values, to the children of John H. Warren who shall survive him, said sums to be held in trust for each one until he or she shall be twenty-one years of age. My executors, after consulting with the probate judge, and both judge and executor shall decide that a sale or exchange of any of my real estate in the city of Rockford will benefit my heirs interested in said estate, such sale or exchange and re-investment may be made with the approval of the probate court, but "not otherwise. And my son, John H. Warren, and my wife, Eliza A. Warren, shall not be required to pay rent for the use of the residences that they shall occupy, which shall be suitable for their respective families, but they are not to occupy the double houses that are arranged for different families, at one and at the same time, as tenants.”</p> <p>On November 27, s1888, appellant executed under her hand and seal, an instrument by which, in consideration of the payment and approval of the award allowed her on that day, and for other good and valuable considerations, she agreed with those interested in the estate as follows:</p> <p>“First—I, widow of said deceased, do hereby covenant and agree to accept the legacy and interest given in and by the last will of said deceased, my award, and the claim of §200 filed by me in said estate in full of all claim to or right or interest in the estate, real, personal or mixed, of said deceased, of every name and nature, and any other interest is hereby expressly waived and released to said estate.”</p> <p>The appellant did not renounce the provisions of the will within one year after letters testamentary were issued. During December, 1888, and in each month in the years 1889, 1890, 1891 and 1892 she has received monies from the trustee and executor out of the income of the estate. She was paid her widow’s award, about $1200.00, and the claim of $200.00 against the estate, which is above referred to.</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>