Volume 163 — Illinois Reports

<p>Appeal from the Circuit Court of Woodford county; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>1. Fraud—when false representations as to value of property are fraudulent. Representations as to the value of property and its sufficiency as security, to constitute fraudulent misrepresentations of an existing fact material to a transaction, must be made under such circumstances as to justify the party to whom they are made in relying upon them.</p> <p>2. Same—party must use his opportunities to verify statements as to value. A party who has reasonable means of ascertaining the truth of a statement as to the value of property or its sufficiency as security must make use of his opportunities, and is charged with any knowledge he would have obtained had he made use of such means.</p> <p>3. Same—what is not sufficient diligence to verify statements as to value. One who exchanges lands for a second mortgage upon other lands does not exercise reasonable prudence in relying upon a statement as to the value of the lands or their sufficiency as security for such mortgage, where he has resided in the city in which the lands are located for many years and could easily ascertain their value, but makes no effort to learn the truth for himself.</p> <p>4. Same—conxeyance of land not set aside for fraud as against innocent purchaser. An exchange of land for a second mortgage upon other lands cannot be set aside for fraudulent representations as to the value of the lands embraced in such mortgage, as against an innocent purchaser, in good faith, of the land given therefor.</p> <p>5. Notice—facts insufficient to charge a purchaser with notice of fraud. That the abstract of title to lands shows that the consideration for the deed to the vendor is larger than that which the purchaser is to pay for the land, is insufficient to charge such purchaser with notice of fraud in the sale to his vendor, where the price to be paid by such purchaser is not such as to excite inquiry or apprehension of fraud.</p> <p>6. Vendor and purchaser—what inquiries a purchaser of land need not make. A purchaser of land is not bound to investigate property embraced in a mortgage transferred by his vendor in exchange for such land, and learn whether it is good security for the mortgage.</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. M. F. Tuley, Judge, presiding.

<p>Appeals and errors —power of trial court over order approving an appeal bond. The rule that a trial court has power over its orders and judgments during the term at which they were entered applies to an order approving an appeal bond, and the court may subsequently, during the term, set aside such order on a proper showing.</p>

<p>Appeal from the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.</p>

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

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

<p>1. Constitutional law ;validity of act of 1879 for protection of depositors due process of law. The statute making the receipt of deposits by a banker, when insolvent, embezzlement, (Laws of 1879, p. 113,) is not unconstitutional, as a deprivation of liberty and property without due process of law, as the business of banking is affected with a public interest and subject to regulation within the general police power.* </p> <p>2. Same-;statute may fix what shall constitute a prima facie case of intent to defraud. The provision of the statute (Laws of 1879, p. 113,) that the failure, suspension or involuntary liquidation of a banker within thirty days from receiving a deposit shall be prima facie evidence of an intent to defraud, is not unconstitutional, as a de- privation of life, liberty or property without due process of law.</p> <p>law. 3. Same&emdash;•criminal law&emdash;no vested right in the rides of evidence. No one has a vested right in the rules of evidence, so as to render a statute declaring the failure, suspension or involuntary liquidation of a banker within thirty days after receiving a deposit prima facie evidence of an intent to defraud, unconstitutional, as depriving such banker of the presumption that every man is innocent until proved</p> <p>guilty. 4. Same-;validity of statute as affecting right of trial by jury. A statute making the failure, suspension or involuntary liquidation of a banker within thirty days after receiving a deposit prima facie evidence of his intent to defraud, is not unconstitutional, as invading the right of trial by</p> <p>jury. 5. Statutes-;how far rule of strict construction of a penal statute controls. The rule of strict construction of a penal statute is not violated by giving its words a reasonable meaning according to the sense in which they were intended, disregarding captious ob- jections and even the demands of exact grammatical</p> <p>propriety. 6. Indictment-;of banker receiving deposit while insolvent&emdash;sufficiency. An indictment against a banker for receiving a deposit while insol- vent, in the terms and language of the statute, need not expressly aver the intent of the defendant, at the time of receiving the money, to defraud the depositor, especially where it charges that the act was corruptly, willfully, fraudulently and feloniously</p> <p>7. Same—what is a sufficient averment that money was received as a deposit. An indictment charging the receipt by bankers of moneys of the person named, “then and there not being indebted to” such bankers, sufficiently charges that the money was received as bankers and as a general bank deposit.</p> <p>8. Same—against banking partners—sufficiency of averment of insolvency. An indictment against persons doing a banking business under a firm name, for receiving a deposit while insolvent, need not charge that the partnership, as such, was insolvent, as the partnership is not a legal entity, distinct from and independent of the persons composing it.</p> <p>9. Criminal law—effect of elapsing of several terms, after indictment, on right of defendant to discharge. Defendants in a criminal case are not entitled to discharge for want of prosecution because they were not tried for several terms after their indictment, where they were out on bail and never appeared in court until the term at which they were tried.</p> <p>10. Same—verdict—when not defective as fixing a joint punishment for two defendants. A verdict finding two bankers guilty of embezzlement in receiving a deposit while insolvent, and fixing their punishment at a fine of twenty-eight dollars and in addition at imprisonment for one year, is not defective as fixing a joint instead of a several punishment, but imposes upon each the fine and imprisonment stated. (Phillips, J., dissenting.)</p> <p>11. Banks—simple act of taking deposit while insolvent does not complete statutory offense. A banker is not guilty of embezzlement, under the statute for the protection of depositors, (Laws of 1879, p. 113,) by the simple act of taking a deposit while insolvent, but, to complete the offense, such deposit, or some part of it, must, by the failure, suspension or involuntary liquidation of the banker, be lost to the depositor.</p> <p>12. Same—that portion of a deposit which is paid out on checks is not “lost.” That part of a deposit taken by a banker while insolvent, which such banker pays out upon the depositor’s checks before failure, suspension or involuntary liquidation, is not “lost” to such depositor, within the meaning of the statute.</p> <p>13. Same—loss of entire deposit not necessary to constitute crime. Loss of the entire amount of a deposit taken by a banker while insolvent is not necessary to complete the crime of embezzlement, under the act for the protection of depositors.</p> <p>14. Same—when the crime created by the statute becomes complete. The crime created by the act for the protection of depositors is complete when the insolvent banker fraudulently receives the deposit, and by his failure, suspension or involuntary liquidation, by reason of insolvency, the depositor is deprived of the whole or some portion of such deposit.</p> <p>15. Same- when. tender of deposit hy hanker is no defense to criminal prosecution. Tender by a banker to a depositor of the amount of his deposit at the time of the banker’s trial for embezzlement in receiving such deposit while insolvent, will not relieve him from liability under the statute.</p> <p>16. Evidence—deposit of money is presumed to he general unless shown to he special. A deposit of money with bankers at their banking house is presumed to be general unless it appears that the depositor makes it special, or deposits it in some particular capacity.</p> <p>17. Same—what proof supplies want of formal demand by depositor. Proof of a demand for the deposit is not essential to conviction of a banker under the statute of 1879, where it is shown that such banker suspended payment and closed his doors against depositors and creditors and discontinued banking operations.</p> <p>18. Appeals and errors— when omission of a jury to find fact will not reverse. Failure of a verdict against a banker, under the act of 1879, for receiving a deposit when insolvent, to state the value or amount of the deposit, is not cause for reversal where the line fixed by the jury is much less than it should have been under the evidence and the law. (Phillips, J., dissenting.)</p>

<p>1. Mortgages—extent of mortgagor's interest in the mortgaged premises. A mortgagor is the legal owner of the mortgaged premises against all persons except the mortgagee.</p> <p>2. Evidence—when abstract of title is properly admitted. An abstract of title is admissible to show that a conveyance appeared upon it when exhibited to a party taking a mortgage upon the premises, and as a reason for obtaining a quit-claim deed from one who appears to have made a mortgage upon the land.</p> <p>3. Same —subsequent indebtedness of husband does not invalidate voluntary deed to the wife. Evidence of indebtedness of a husband long subsequent to conveyances to his wife alleged to be voluntary is inadmissible to show his insolvency or invalidate such conveyances, or to invalidate a conveyance by a third person to the wife of land which the husband is not shown to have paid anything upon.</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 Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Executors and administrators—failure of executrix to file a report—who may complain. One who is, by the terms of the will, to close the administration of an estate upon the death of the executrix, has such an interest as entitles him to compel her to file a report, as executrix, with the county court.</p> <p>2. Same—legal status of executrix who is also legatee. An executrix who is also a legatee under the will occupies a dual relation to the administration, and her official acts as executrix are under the control of the county court, which ceases when the estate is administered and the residue turned over to her as legatee.</p>

Thomas G. Windes, Judge, presiding. The World’s Columbian Exposition, as first party, and John S.- Morris, as second party, entered into a written contract of date March 16, 1892, which, so far as material to this controversy, was as follows: “That the said party of the first part, (the World’s Columbian Exposition,) for and in consideration of the promises and agreements of the said party of the second part, (John S. Morris,) hereinafter set forth, hereby promises and…

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

James A. Creighton, Judge, presiding. Appellees, who are carpenters and contractors, obtained a decree in the circuit court establishing a lien on a certain lot owned by Mary A. Bumgartner, one of the appellants, for the amount remaining unpaid to said appellees and their sub-contractors for work performed and material furnished in and about the construction of a dwelling house on said lot.

William G. Ewing, Judge, presiding. This cause was brought before this court at a former term, but was dismissed for want of jurisdiction. (Franklin v. Loan and Investment Co. of North America, 152 Ill. 345.) A writ of error was thereafter sued out of the Appellate Court for the First District, and there the decree of the Superior Court of Cook county was affirmed.

Edward P. Vail, Judge, presiding. On July 23, 1888, Edward Swaney, of Piatt county, wrote and signed his last will, which was duly attested under the provisions of section 2 of our Statute of Wills. Afterwards he wrote an addition thereto, which is designated in this litigation as “Sheet B,” which was neither dated, signed nor witnessed, but was attached to the original will. On January 10, 1891, he executed a codicil to his will, which was properly witnessed.

Thomas G. Windes, Judge, presiding. Appellees, the children and heirs-at-law of Alonzo C. Wood, deceased, filed their bill in equity in the circuit court of Cook county to set aside as null and void the last will of said Wood, on the ground that in all its substantial provisions it violated the rule against perpetuities.

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Thomas P. Tipton, Judge, presiding.

<p>Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.</p>

.Appeal from the Circuit Court of Macoupin county; the Hon. Jacob Fouke, Judge, presiding. Held: owned, possessed and carried as assets, and now does hold, own, possess and carry as assets, real estate situate in the county of Cook and State of Illinois not necessary m which to do its banking business and the title to which it has not obtained in the collection of its debts; that said corporation claims the right so to purchase,…

<p>Appeal from the Circuit Court of Jackson county; the Hon. A. K. Vickers, Judge, presiding.</p>

<p>Appeals and errors —Supreme Court will not disturb finding of fact upon conflicting evidence. The Supreme Court will not, upon a chancery appeal, reverse a decree of the trial court upon an issue of fact and divest the title of real estate upon evidence that is conflicting and unsatisfactory, although not fully convinced of the correctness of the decree.</p>

T. M. Shaw, Judge, presiding. In June, 1889, David F. Griffin died intestate, leaving as his only children and heirs-at-law three sons, George W., Charles and David F., and three daughters, Mary Hunt, Ann M. Dillman and Caroline M. Peterson. His estate consisted of real and personal property, and Charles was appointed administrator. All the heirs except Ann M. met in Wenona in October, 1889, and attempted to agree on a partition and division of the estate.

Writ of Error to the Circuit Court of Greene county; the Hon. George W. Herdman, Judge, presiding. This is a bill, as originally filed and as finally amended, for assignment of homestead, to enforce ante-nuptial agreement, and for partition. It was filed by Victoria J. Harmon, widow of William P. Harmon, deceased, and with her were joined as co-complainants certain persons, who were nephews and nieces of the deceased.

<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. John Barton Payne, Judge, presiding.</p>

<p>1. Evidence—sufficiency of, to prove uncertified copy of a public record. The testimony of a witness that an uncertified paper, purporting to be a copy of a public record, corresponds with a copy formerly made by him, and that it was furnished him as] a certified copy by the custodian of the record, is not sufficient to prove the copy, and will not cure its erroneous admission in evidence.</p> <p>2. Ejectment—when government plat is not corrected by later surveys. Where a government plat does not show that the disputed tract was included in a certain grant, testimony that by later surveys the tract lies within the grant is insufficient to overcome the evidence afforded by the government plat and grant, unless it appears that the government has recognized or authorized such surveys.</p> <p>3. Parties—proper party plaintiff in ejectment upon consolidation of corporations. Where, after beginning a suit in ejectment, the plaintiff corporation, by consolidation, is merged in a new corporation in which the former corporation’s property is vested, the new corporation should be made plaintiff, and the fact that defendant admitted the facts and did not object at the trial will not prevent his doing so in the Supreme Court.</p>

Dorrance Dibell, Judge, presiding. The following is the statement of the case made in the Appellate Court: “On the 7th of June, 1894, appellee filed a petition for writ of certiorari, showing that on the 13th of March, 1893, the commissioners of Union Drainage District, a drainage district situated in Cook and Will counties, instituted proceedings before a justice of the peace to condemn a right of way for a ditch over appellee’s land; that he was summoned as the owner of…

<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. Alfred Sample, Judge, presiding.</p>

Charles Blanchard, Judge, presiding. This record is brought to this court seeking to reverse the judgment of the Appellate Court for the Second District, in which the judgment of the circuit court of LaSalle county was affirmed in two cases wherein a judgment was rendered in favor of appellee, against the appellants severally, for $3014.08 each.

James Goggin, Judge, presiding. A petition for mandamus in this case was filed by appellee in the Superior Court of Cook county to compel the issuing to him of a dram-shop license to keep a saloon at 5014 Cottage Grove avenue, in that part of the city of Chicago known as Hyde Park. This portion of the city, previous to 1889, was a separate municipality, and was governed by a president and board of trustees.

John J. Glenn, Judge, presiding. A bill in chancery was filed by appellees, afterwards amended, which prayed for the partition of the south-east quarter of section 30 and ten acres off the east side of the south-west quarter of section 30, both in township 8, range 1, in Warren county-.

Murray F. Tuley, Judge, presiding. The Sanitary District of Chicago, a municipal corporation engaged in building a canal between the waters of Lake Michigan and the Illinois river, is, by the provisions of the act under which it is organized, authorized to let contracts for the construction of that canal.

<p>Appeal from the County Court of Marshall county; the Hon. E. D. Richmond, Judge, presiding.</p>

<p>1. Notices—certificate of publication of notice must be signed by the publisher or his agent. A certificate of publication of notice which does not purport to be signed by the publisher or his agent, and which shows on its face that it was not so signed, is of no effect, as it does not comply with the statute. (Rev. Stat. 1874, p. 723.)</p> <p>2. Special assessment—sufficient certificate of publication of notice necessary to give court jurisdiction in. The county court has no jurisdiction to enter a'judgment of confirmation of a special assessment without a sufficient certificate of publication of the notice required, and its error in doing so may be availed of on writ of error by a party who was defaulted at the hearing.</p>

<p>1. Drainage—acts of commissioners which cannot be complained of on appeal. In view of the express provision of the Farm Drainage act, (Laws of 1885, p. 87, sec. 27,) that an appeal shall be upon the ground, only, that the tax is a greater amount than the benefits to accrue to the land by the drainage, the question whether the commissioners were entitled to lay the tile deeper than proposed by the engineer’s plans without recording the resolution cannot be raised.</p> <p>2. Same—commissioners under Farm Drainage act may change plans of engineers. Commissioners may place a drain deeper than provided for in the reported plans of the engineers they employ under section 17 of the Farm Drainage act (Laws of 1885, p. 83,) to report maps, profiles and estimates in writing.</p> <p>3. Same—effect of failure of clerk to record resolution to deepen drain. It is no defense to an assessment for a farm drain that the resolution of the commissioners to sink the tile a greater depth than that provided by the plans was not entered of record by the clerk.</p> <p>4. Same—time when plan was adopted, no defense to assessment. The time at which the plan of the work, under the Farm Drainage act, was finally determined cannot he invoked as a defense to an assessment.</p>

John J. Glenn, Judge, presiding. This was a bill filed by appellees, against appellants, asking for partition of the north-east quarter of section 10, township 8, north, range 4, west of the fourth principal meridian, in Henderson county, Illinois. The case involves the construction of the will of John Corzatt, deceased.

<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. Philip Stein, Judge, presiding.</p>

Writ of Error to the Circuit Court of Edgar county; the Hon. Ferdinand Bookwalter, Judge, presiding.

<p>1. Fraud—what representations as to price of land purchased will constitute fraud. Representations that an option has been obtained for land at a certain price, when, in fact, a rebate was to be made therefrom, upon which representations others rely in entering into an agreement for the purchase of the land jointly with those making such representations, constitute actual fraud entitling such others to an accounting, even if no partnership is formed.</p> <p>2. Same—when rights of innocent purchaser will be protected. Lots conveyed by one of the members of a joint enterprise, after a division among them, to his father in good faith, in payment of indebtedness to him, cannot in his hands be charged with a sum found due from the son upon an accounting, because of fraudulent representations to other members of such enterprise.</p>

O. N. Carter, Judge, presiding. On the 18th day of July, 1894, the Southern Hotel Company, a corporation operating the Southern Hotel in Chicago, filed in the county court of Cook county its voluntary assignment, naming one Davis as assignee. On the 24th of that month Davis resigned, and appellant, Wallace C. Clark, was appointed by the court as his successor.

Writ of Error to the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.

Writ of Error, to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding. This cause originated in the Superior Court of Cook county upon a bill by plaintiff in error, against defendants in error and Nelson Van Kirk and N. G. Miller, to settle a partnership alleged to have theretofore existed between the parties and dissolved by mutual consent.

Elliott Anthony, Judge, presiding. On the 25th day of December, 1884, the town of Lake View, since included as a part of the city of Chicago, filed its bill in chancery against appellants, alleging that Elisha E. Hundley, by his plat of what was designated as Hundley’s subdivision of a tract therein described, dedicated- the certain strip of land in question in this case as a public street or highway; that the defendants^ had entered into possession of that strip under claim…

<p>1. Evidence—statements of person mortally wounded—when admissible as res gestae. A statement of a person mortally wounded by officers from whom he was escaping, that he did no wrong, though not a dying declaration, is admissible against such officers as part of the res gestae, when made in their presence and hearing.</p> <p>2. Appeals and errors—when abstract instructions are reversible error. A conviction will be reversed for abstract instructions which tend to mislead the jury to the injury of the defendant.</p> <p>3. Same—when instructions not applicable to the facts constitute reversible error. Instructions as to self-defense and justifiable homicide in the killing of a person endeavoring to commit a felony or to offer personal violence to another in his house, constitute reversible error on the trial of officers for killing a person attempting to escape from them after arrest, in which such questions do not arise.</p> <p>4. Instructions—as to impeachment of witness by contradictory statements—when not proper. An instruction that the credibility of a witness may be impeached by statements out of court contrary to his testimony,- and that if the jury believe that any witness has made such contradictory statements they tend to impeach him, and the jury would be justified in rejecting his testimony if, from all the evidence, they believe it to be untrue, is properly refused.</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. Abner Smith, Judge, presiding.</p>

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

<p>1. Evidence—interpretation put upon contract by parties may be inquired into. Where a contract to deliver coal at a mine is silent as to which party is to furnish cars, evidence that one party assumed that duty, never asking the other to perform it, is proper to show the interpretation put upon the contract by the parties themselves.</p> <p>2. Sales—when purchaser under coal contract is in default for not furnishing cars. Where a purchaser under a contract to take a certain number of cars of coal from a mine per month assumes the duty of furnishing cars, upon which point the contract is silent, his failure to supply enough cars is such a breach of the contract as entitles the seller to recover damages.</p> <p>3. Appeals and errors—when trial court cannot take case from jury. Where there is evidence tending to prove plaintiff’s cause of action it is not error for the court to refuse a peremptory instruction for defendant.</p> <p>4. Pleading—one count may aver a contract by a reference to another count where it appears. A pleader who has set out the contract sued on in hæc verba in one count of the declaration may aver it in other counts by proper reference thereto, and thus save copying the contract into the other counts, but the practice is not approved.</p>

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

John Barton Payne, Judge, presiding. Prior to 1889 H. S. Gilbert operated several grain elevators in the vicinity of the city of Ottawa, one of which was located at Wedron, in LaSalle county. The general office where the business of the several elevators was mostly transacted in paying for grain, etc., was in the city of Ottawa, and the superintendency of the business in the several elevators was directed by Gilbert from that general office.

<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. Richard W. Clifford, Judge, presiding.</p>

Murray P. Tuley, Judge, presiding. The appellee, Dupuy, filed his bill in equity against appellant, Prince, to set aside and cancel as a cloud upon his title to a certain lot in Hinckley’s subdivision in Chicago, a certain deed of conveyance made to Prince by Luther B. Johnson. The trial court decreed as prayed in the bill, and Prince appealed. Both parties claim title from Johnson.

<p>Appeal from the Circuit Court of Peoria county; the Hon. T. M. Shaw, Judge, presiding.</p>

Dorrance Dibell, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the Second District, affirming the judgment of the circuit court of Will county The judgment of the circuit court awarded a peremptory writ of mandamus to compel the appellant, the drainage district, to deepen, alter and change a certain drain constructed by it, so as to furnish appellee, the petitioner below, a sufficient outlet for the drainage of his land located within the…

<p>Writ of Error to the Circuit Court of Kane county; the Hon. Henry B. Willis, Judge, presiding.</p>

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

<p>Appeals and errors—questions not raised below will not be considered. A question not raised and passed upon in the trial court can not be considered in the Supreme Court in a case where only legal questions can be reviewed.</p>

Benjamin E. Burroughs, Judge, presiding. This is assumpsit, brought in the Madison circuit court by Manning Mayfield, appellee, against William Eliot Smith, appellant, to recover commissions for negotiating the sale of certain street car lines, The declaration, after stating that the defendant represented to the plaintiff that he was the owner of a certain horse car line extending from the city hall in the city of Alton to the town of Upper Alton, and also of a certain other…

<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. Edward F. Dunne, Judge, presiding.</p>

<p>1. Surety—the liability of a surety is stricti juris. As the undertaking of a surety must be strictly construed, he cannot be held beyond the terms of his undertaking by implication or construction, and cases of doubt are generally resolved in his favor.</p> <p>2. Same—liability of surety on contractor’s bond for material furnished. A provision in a contract between a city and a sewer contractor that he should “furnish all materials,” does not make his sureties liable to third persons for materials furnished him, although the contractor’s proposal provided that he would furnish sureties for the payment.of materials contracted for.</p>

Theodore Brentano, Judge, presiding. v This is a bill by appellees, husband and wife, against ¡appellant, to rescind a contract and set aside certain judgments. In August, 1894, they purchased from the appellant brewing company a certain saloon stock and fixtures in the city of Chicago, agreeing to pay therefor $1100.

the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Edward F. Dunne, Judge, presiding. This wasan action by appellee, Rood, against the appellant company, to recover damages for a personal injury.

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding. This is a writ of error brought by the Ashley Wire Company to reverse a judgment of the Appellate Court affirming a judgment of the circuit court of Will county for í¡17000, recovered by defendant in error, Frank Mercier,. against said company for a personal injury.

<p>Writ of Error to the Circuit Court of Clay county; the Hon. E. D. Youngblood, 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. Thomas G. Windes, Judge, presiding.

Clair county; the Hon. A. S. Wilderman, Judge, presiding. This was a bill in equity, filed for the purpose of setting aside certain deeds for a number of lots situated in a place called Alta Sita Park, in St. Clair county. The bill alleges the facts in the case, as follows: The lots described were in the first place owned by Mrs. Dexter, one of the complainants. In the year 1893 she entered into a contract with one.

Abner Smith, Judge, presiding. This was an action on the case, brought by appellant, against appellees, to recover damages for injuries resulting to the appellant from eating an oyster stew served by appellees in their restaurant, in Chicago, on the 5th day of February, 1891.

<p>Eminent domain—second petition to condemn for same improvement —pretended abandonment. A city which prosecutes condemnation proceedings for the extension of a street across a railroad right of way to judgment fixing the amount of compensation, cannot maintain a subsequent proceeding for the same extension under the pretense of abandoning the former proceeding.</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. Francis Adams, Judge, presiding.</p>

John J. Glenn, Judge, presiding. December 4, 1889, Ira Putney, doing a mercantile business under the name of Ira Putney & Co., at Stronghurst, Illinois, borrowed §7000, for which he and one George M. Foote gave their joint promissory notes.

<p>1. Public improvements—what may be paid for by a special levy. The laying of pipes for the conveyance of water along a particular street is of special benefit, and constitutes a local improvement, which may be paid for by a special levy, while a reservoir, wells, stand-pipe, pumping works and buildings are of general utility, and must be paid for by general taxation.</p> <p>2. Same —effect of existence of private water-pipes in street. An ordinance for the laying of water-pipes on certain streets is not invalidated by the fact that pipes of a private company exist on some of the streets.</p> <p>3. Same—what not a double improvement. An ordinance providing for the construction of a system of water-works, including supply mains, reservoirs, distributing mains, fire hydrants and other necessary appurtenances, is not invalid as providing for two improvements-because it provides that the reservoirs and works shall be paid for by general taxation while the mains are'to be paid for by local assessment.</p> <p>4. Special assessments—means to pay city's portion of tax need not be first provided. It is no defense to a special assessment for water mains that the city has not provided means to pay for the pumping works and reservoirs, which the ordinance provides shall be paid for by general taxation.</p> <p>5. Same—when evidence as to benefits to property not assessed may be rejected. Evidence offered by the objectors to an assessment for public improvements that other property not assessed is specially benefited, after verdict and the overruling of a motion for a new trial, is properly rejected.</p> <p>6. Appeals and errors—failure to seal bill of exceptions—when objection comes too late. The objection that a bill of exceptions is not sealed by the judge is purely technical, and cannot be first made in the briefs in the case as taken.</p>

<p>1. Practice—construction of words “second term of court,” in Practice act. “The second term of the court” at which a declaration must be filed under section 18 of the Practice act, (Rev. Stat. 1874, p. 777,) in default of which defendant “shall be entitled to judgment,” etc., means the next tenn after that to which the summons is made returnable, where such summons is made effective by service less than ten days before the first day of that term.</p> <p>2. Same—when declaration must he filed in case of delayed service. A suit brought to the October term of a court which sits monthly, wherein summons is not served “ten days before the return day thereof,” (Rev. Stat. 1874, p. 775, sec. 8,) but is served within such ten days, thus rendering the summons effective, is properly dismissed for want of a declaration at the next or November term.</p>

<p>1. Judicial sales—when inadequacy of consideration is ground for setting aside. Inadequacy of consideration, coupled with circumstances of irregularity or fraud, may be sufficient ground for setting aside an execution sale.</p> <p>2. Homestead—sale of, on execution—when sat aside. A sale of a homestead by the sheriff will be set aside where it appears that the homestead was worth in excess of $1000, and that no steps were taken to set off the exemption to the debtor.</p> <p>3. Same—presumption that claimant is entitled to exemption. A party showing that he is the head of a family, that he occupied the premises as a homestead at the time judgment was rendered, and that he has not released the same, is prima facie entitled to his homestead exemption unless such homestead is shown to be liable to sale under the statutory exceptions.</p>

<p>Dower—effect of widow’s consent to decree reducing dower income. A widow who consents to a decree by which a fund equivalent to the value of one-third of the estate is set aside for her use as dowress, and for many years acquiesces in an order reducing the rate of interest accruing on such fund, is not entitled to an order making up the deficiency, although the original order provided that a certain sum be paid to her annually.</p>

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

Oscar P. Bonney, Judge, presiding. This is a bill filed on February 13, 1893, by Mary J. Glover and Emily Montgomery, daughters of Thomas Condell, deceased, and devisees under his will, and Winthrop Sudduth, who was appointed successor in trust under said will on May 14, 1892, by decree of the circuit court of Adams county, against Moses B. Condell and Thomas E. Condell, sons of said Thomas Condell and devisees under his will, alleging, among other things, “that by virtue of…

<p>1. Estoppel—one claiming wnder a deed cannot deny its recitals. Neither the immediate grantee in a deed nor his remote grantees can deny any fact admitted to exist by the recitals in such deed.</p> <p>2. Deeds—between husband and wife are not invalid. A deed is not invalid merely because it is made directly from the wife to the husband, or vice versa, as such deed vests all the title capable of being transferred by the instrument.</p> <p>3. Homestead—when deed between husband and wife conveying homestead does not pass title. Where the homestead property is worth less than the homestead exemption, a deed to such property made directly from the wife to the husband, or vice versa, passes no title.</p> <p>4. Same—excess above exemption passes on direct deed between husband and wife. Where the homestead is worth more than the exemption value, a deed made directly from the wife to the husband, or vice versa, vests in the grantee title to the excess over such amount, but is a nullity as to the exemption interest.</p>

Writ of Error to the Circuit Court of McLean county; the Hon. Alfred Sample, Judge, presiding. This is a bill filed to the September term, 1895, of the circuit court of McLean county, by the plaintiff in error against Nelson C. Sweeny, and his two children, Nettie Belle Newton and Cora May Sweeny, defendants in error, mainly for the purpose of construing the will of Joseph Sweeny, deceased, who died on or about December 21, 1871, leaving a will dated November 18, 1871.

<p>.1. Witnesses—when complainant is incompetent by reason of interest. A complainant in a cross-bill to establish a trust in lands is not a competent witness in her own behalf, where her adversaries defend as heirs o4 her deceased husband, and where her evidence is not within the exceptions of the statute.</p> <p>2. Same—what is not a sufficient interest to disqualify. A daughter of complainant by a former husband has not such an interest in the event óf a suit seeking to establish a trust in favor of her mother against the heirs of her deceased step-father, as to render her incompetent under the statute.</p> <p>3. Same—when sons of complainant are not incompetent. Sons of a complainant in a cross-bill to establish a trust in her favor against the heirs of her deceased husband are not incompetent, by reason of interest, where their testimony is as much against as for their interest.</p> <p>4. Evidence—competency of grantors’ testimony that their deed was intended to establish a trust. The evidence of the grantors in a deed purporting to convey a joint title to the grantees is not incompetent on the ground of impeaching the title conveyed, where such evidence tends merely to show that such title, as to a one-half interest, was held in trust.</p> <p>5. Laches—not imputed to party in possession. Laches cannot be imputed to a complainant seeking to establish a trust in lands held under a deed purporting to convey the same jointly to herself and husband, where, ever since the deed was executed, she has been in continuous possession of the land.</p> <p>6. Appeals and errors—when admission of incompetent evidence will not reverse. Evidence of a complainant seeking to establish a trust against the heirs of her deceased husband, though improperly admitted, will not reverse, when there is sufficient competent evidence to establish the case.</p>

<p>1. Schools—sufficiency of certificate of directors to authorize tax levy. A certificate by school directors that a certain amount is required for school purposes and a certain other amount for “heating and repairing purposes,” is insufficient to authorize a tax levy “for building purposes,” under the School law. (Laws of 1889, art. 8, sec. 2, p. 316.)</p> <p>2. Same—form of directors'1 certificate is mandatory. The form of certificate prescribed by statute to be made by directors as the basis of the school levy (Laws of 1889, sec. 2, p. 316,) is mandatory, the word “may” in the statute being equivalent to “shall.”</p> <p>3. Same—school tax illegal if extended without proper certificate. The certificate which school directors are empowered to make, under the School law, of the amounts to be levied for school and building purposes, is jurisdictional, and a tax extended by the county clerk without such certificate is void.</p> <p>4. Same—the words “heating and repairing purposes” defined. The words “heating and repairing purposes,” in a certificate of school directors, include such necessary incidental expenses as are embraced within the meaning of the term “educational and school purposes,” as used in the law, and not “building purposes,” for which an additional tax may be levied.</p>

<p>1. Special assessment—proper report of commissioners in, necessary to court’s jurisdiction. A proper report of commissioners appointed by a city council, as required by statute, (Rev. Stat. 1874, art. 9, sec. 20,) is a prerequisite to a valid judgment of confirmation of a special assessment.</p> <p>2. Same—when report of commissioners is not sufficient. A report by two, only, of the three special assessment commissioners appointed by the city council is not sufficient to support a judgment of confirmation of a special assessment, it nowhere appearing that the third commissioner took any part in the proceedings. •</p>

<p>Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the City-Court of Canton; the Hon, Jefferson Orr, Judge, presiding.</p>

John J. Glenn, Judge, presiding. Thomas Smith, of Galva, Henry county, this State,. died testate on February 1,1893. He left surviving him appellant, his widow, and an infant daughter, Cecil, and also appelleeg,—four adult daughters by a former wife.

Francis M. Wright, Judge, presiding. On the 17th day of March, 1871, appellant, Samuel Harshbarger, made and executed a warranty deed purporting to convey one hundred and sixty acres of land to his daughter Sylvia “and her heirs, only to take effect at the death of the grantor.” Sylvia afterwards intermarried with David Cade. In 1879 she died, leaving a daughter, Della Cade, her only heir. David Cade died in 1893.

<p>1. Appeals and errors -objections cannot be first raised on appeal. An objection that a deed offered in evidence does not sufficiently describe the premises, not made at trial, comes too late on appeal.</p> <p>2. Evidence—insufficiency of proof of deed by which plaintiff in ejectment derives title. Plaintiff in ejectment relying for title on a deed purporting to be from the widow and heirs of a former owner, must prove that such former owner died intestate, and that the parties to the deed were in fact the widow and heirs-at-law of the deceased.</p> <p>3. Taxes—payment of, by owner of paramount title—subsequent payments by others. Where the owner of the paramount title pays the taxes on a tract of land the tax is extinguished, and any subsequent payment by a person under color of title is a nullity.</p> <p>4. Limitations—defense of seven years’ possession to action of ejectment. Where a strip of land embraced in a larger tract is assessed as railroad track to a railroad company in possession under color of title, which pays the taxes thereon for seven successive years, the fact that plaintiff in ejectment made a prior payment of the taxes upon the entire tract for some of the years will not affect the company’s defense of the Statute of Limitations.</p>

Robert H. Lovett, Judge, presiding. James H. Turpin and Samuel Turpin leased from appellant a certain store room in Peoria for five years from September 15, 1891, at a yearly rental of §1900, payable in monthly installments.

Benjamin R. Burroughs, Judge, presiding. This is a bill, filed by appellee against the appellant company and one Edward Johnson, to enjoin them from in any manner using or authorizing the use of certain premises for saloon or dram-shop purposes, so long as the complainant owns the house known as the “Bluff Saloon.” Answer and replication were filed, and decree was rendered by the circuit court, granting a perpetual injunction in accordance with the prayer of the bill.