Volume 52 — Illinois Reports

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Mortgagor and mortgagee—whether the relation exists—right of redemption. At a sale of mortgaged premises, under a power in the mortgage, a third person, a stranger to the mortgage, became the purchaser. The mortgagor and the purchaser, both being uncertain as to their rights in the premises, owing to some alleged illegality in the sale, and to settle any question in respect thereto, entered into an arrangement by which the mortgagor executed a quit-claim deed to the purchaser, for a nominal consideration, and received in return a written instrument giving him the option to re-purchase, within a given time, at a price stated. Upon bill filed by the mortgagor, after the time given him to re-purchase had expired, claiming that the sale under the mortgage was illegal and void, and that he still occupied the position of a mortgagor and was entitled to redeem from the purchaser: Held,, that the transaction between the mortgagor and the purchaser was not a mortgage—the relation of debtor and creditor did not exist between them—and the former had no remaining rights as a mortgagor which would give him any right of redemption.</p> <p>2. Consideration—what sufficient. The consideration of the quit-claim deed, was the contract, which gave to the mortgagor a certain right of purchase on fair terms, in place of an uncertain right of redemption, depending upon the validity or invalidity of the sale under the mortgage.</p>

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

<p>Appeal from the Recorder’s Court of the city of Chicago; the Hon. William K. McAllister, Judge, presiding.</p>

<p>1. Possession—whether it extends to newly purchased adjoining lands. The principle that when a party purchases land adjoining a tract of which he was already in the occupancy, he will be considered as at once, in point of law, in possession of the newly acquired tract, is true only when the latter tract is vacant, or at least not held under an adverse possession.</p> <p>2. Ejectment—effect of the plaintiff showing an outstanding tide, upon his rigid of recovery. A defendant may protect his possession, in an action of ejectment, by showing an outstanding title. And so, if a plaintiff introduces proof of a title in a third person, with which he fails to connect himself, such proof will be fatal to a recovery.</p>

William A Poetee, Judge, presiding. This was an action of assumpsit, brought in the court below by Anna Spankneble against the Commercial Insurance Company, to recover upon a policy upon premises occupied as a brewery.

<p>1. Wills—of a bequest “to my heirs at law according to the statute”— who shall take under the will. A will containing no specific devises or bequests, but simply appointing the executors to administer the estate, and directing the payment of the debts of the testator, provided as follows: “ And the remainder or balance of my interest of every kind whatsoever, may be distributed to my heirs at law according to the statute of Illinois for such case made and providedHeld, that such a direction is equivalent to a devise or bequest to those who would take the estate under our statute of distributions if the estate were intestate.</p> <p>2. The rule is, if there be no words in any part of a will to control, the words or terms used must be interpreted according to their strict and technical import. So construing them, the persons appointed by law to succeed to an estate, as in case of intestacy, are the persons designated.</p> <p>3. An estate left in such a condition, as to the disposition of it, is to all intents and purposes an intestate estate.</p> <p>4. Descents—whether a widow will inherit personal property from her husband, under the 46iZt section of the statute of wills. Where a will leaves the property of the testator, which consisted of personalty alone, to be distributed to his heirs at law according to the statute of descents, thereby leaving his estate intestate, and the testator died, leaving a widow, but no child or children, or descendants of a child or children, the widow will take the entire estate, as the heir of her husband, under the 46th section of the statute of wills.</p> <p>5. Same—effect of the act of 1847 upon the rights of the widow in that respect. The act of February 11,1847, entitled, “An act to amend an act concerning wills,” was not intended to abridge the rights of the widow as an heir under the statute of descents, but to enlarge her dower rights, and did not operate to repeal the 46th section of the statute of wills, which prescribes the contingencies upon which the widow may become the heir of her husband.</p> <p>6. Merely because there may be an inconsistency between the act of 1847, in its provisions respecting the widow, and the statute of descents of 1845, will not authorize the construction that the latter was repealed by the former by implication, inasmuch as the two acts are not on the same subject, the subject of the act of 1847 being the widow’s dower, while that of the act of 1845 is not dower, but inheritance.</p> <p>7. Repeal of statutes—by implicatíon. If the rule be, as it undoubtedly is, that a subsequent act on the same subject, will not be held to repeal a former act by implication, unless the new act contains provisions contrary to, or irreconcilable with, those of the former act, with much more force and propriety may it be argued that a subsequent act, not on the same subject, shall not be construed to repeal a former act by mere implication.</p>

Writ or Error to the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding. This was an action of trespass, brought in the court below by Hill against Crandall.

<p>1. Pleading in replevin—to authorize a return of the property. In replevin, neither the plea of non eepit nor non detinet denies property in the plaintiff, and though the defendant succeed on either of them, he will not be entitled to a return of the property. To entitle the defendant to a return, he must, by a proper mode of pleading, contest the plaintiff’s right.</p> <p>3. Same—in what mode the title may be put in issue. The right of the plaintiff can only be put in issue by formally traversing his allegation of title, or by specially pleading that the right of property is in some other person than the plaintiff. If the defendant succeed upon such a state of pleading, he will be entitled to a return of the property.</p> <p>3. Same—and herein, of the burden of proof as to title. Where the defendant pleads property .in himself or a third person, and traverses the plaintiff’s right, the averment of property in the defendant or third person is only inducement to the traverse, and the plaintiff must take issue on the traverse and not on the inducement.</p> <p>4 Under such a plea, traversing the plaintiff’s right, the burden of proof as to the title to the property is upon him.</p> <p>5. But where the plea is property in the defendant or a third person, without a traverse of the plaintiff’s right, it leaves the burden of proof upon the defendant to establish the truth of his plea.</p> <p>6. Partnership—sale of one partner's interest under execution—relations of the purchaser vdth the other partner. The interest of one partner in the partnership property may be sold under execution against him for his individual debt, and that interest, whatever it may be, will pass to the purchaser, to be held, however, subject to all the rights of the other partner, so that if, upon a settlement of the partnership affairs, the debtor partner would have been entitled to nothing had no sale taken place, then the purchaser will take nothing by his purchase.</p> <p>7. Same—in what proceedings such rights may be adjusted. But in an action of replevin, where the title of a part of the property, alleged to be in a third person as a partner, is in issue, no settlement could be made between such partner and a purchaser under execution against his co-partner, and an instruction on that subject would be irrelevant.</p>

Writ of Error to the Circuit Court of Jo Daviess county; the Hon. Benjamin B. Sheldon, Judge, presiding. This was a bill in chancery, exhibited in the court below by Sehlader and Schultz against Christina Trickey, praying that she be enjoined from closing up a certain public road running through certain land of which her husband died seized. The court below granted the injunction, and this writ of error is prosecuted to reverse that decree.

<p>1. Bill op exceptions—its requisites. Where the error assigned is, that the verdict is against tjie evidence, but the bill of exceptions in the case does not purport to embody all the evidence,'this court will not regard such assignment of error as properly before it.</p>

<p>Appeal from the Circuit Court of Peoria county; Samuel Caldwell, Esq., acting Judge, by agreement of parties.</p>

<p>1. Limitations—by whom the statute to be invoiced—and under what circumstances. A mortgagee obtained a decree of strict foreclosure, a subsequent purchaser from the mortgagor not having been made a party to the suit. Afterwards, the purchaser, who held as trustee for certain creditors of the mortgagor, sought, by bill, to have the premises sold in execution of the trust, and the mortgagee decreed to have no right therein, on the ground that the statute of limitations, if pleaded in the suit to foreclose, would have barred a foreclosure, and was not pleaded: Sdd, that the statute of limitations could not thus be set up to deprive the mortgagee of > his rights .under the decree of foreclosure, which must stand, subject only to the right of the subsequent purchaser to redeem.</p> <p>2. Parties to a foreclosure—of a subsequent purchaser from the mortgagor. A subsequent purchaser from a mortgagor ought to be made a party to a suit to foreclose the mortgage; but if he be not made a party, the decree of foreclosure will not, for that reason, be void—it will be, as to him, a mere nullity, leaving to him the right which he acquired by his purchase—that of redemption—in full force, and which he may still exercise, even though the decree was for a strict foreclosure.</p>

S. L. Richmond, Judge, presiding. This was an action on the case, brought in the court below by John Darst against the Toledo, Peoria & Warsaw Railway Company, to recover for the alleged killing of a horse belonging to the plaintiff, by one of the company’s trains.

<p>1. Limitation act of 1839—when the bar of the statute can he made availing to recover possession. When the bar of the statute has become complete, under the second section of the act of 1839, by the concurrence of claim and color of title acquired in good faith, payment of taxes for seven successive years under such color of title, and the actual taking of possession of the premises, such bar cannot only be invoked as a shield to protect the holder of such color of title in his possession against every one; but if his possession be invaded, or the premises again become vacant and another shaE make entry, even if the latter hold the paramount title, the holder of the color of title may sue, and recover his lost possession.</p> <p>2. The bar of the statute having become complete, the right of the person entitled to its benefits to have and enjoy the possession is as perfect as though he were actuaEy invested with the title, and, as against him, the holder of the paramount title can not use it for the purpose either of recovery or defense, until he shall have destroyed the bar, by purchase, limitation, or by some other mode equally effectual.</p> <p>3. And as respects the right of the person in whose favor the bar of the statute, under the act of 1839, has accrued, to sue for and recover his lost possession, in an appropriate action, even against the holder of the paramount tille, there is no difference in the construction to be given to the first and second sections of that act. Although there may be a difference in the manner of acquiring the bar under the two sections, yet, when acquired under either, the rights resulting therefrom are the same.</p> <p>4. Same—in whom, the dements of the bwr of the statute may concur. It is not essential that the three elements of the bar of the statute, under the second section of the act, as, the color of title, payment of taxes, and taking possession, should all concur through the same person; but, as in this case, one may acquire the color of title and pay the taxes for the required period and then make conveyance to another, to whom all the rights of the grantor will pass, and a third person may, under a contract of purchase from such grantee, enter into possession, and thus the bar of the statute will become complete.</p> <p>5. Same—of an abandonment of the possession by a purchaser—rights of his vendor. Where a person acquires color of title to vacant and unoccupied land, and has paid the taxes for the period required by the statute, and then conveys the premises by deed, neither the grantor nor grantee having yet taken possession, if a third person, under a contract of purchase from such grantee, enter into possession, such possession of the purchaser, for the purposes of the statute, will be deemed to be that of the vendor, and his occupancy subordinate to the title of the vendor, so that if the purchaser subsequently abandons the premises, with the intention not to return, but without the knowledge or consent of his vendor, the' rights of the latter, with respect to the bar of the statute, will not be at all affected by such abandonment, and if any one, even the holder of the paramount title, subsequently enters into possession, such vendor, by virtue of the concurrence, in that manner, of all the elements of the bar of the statute, may, by an action of ejectment, recover the possession to which he had become entitled.</p> <p>6. Same—who may pay tlw taxes, so as to he availing to a subsequent grantee. A person having acquired color of title to vacant and unoccupied land, made conveyance thereof the same year, but continued to pay the taxes even longer than the seven years, and then made another conveyance to a different person, who had no notice of the former conveyance: Held, that the second grantee, being an innocent purchaser, would be protected under the statute, and the payment of taxes by his grantor would inure to his benefit as the subsequent holder of the color of title.</p> <p>7. Former decision. This ruling is not in conflict with the case of Fed v. Cessford, 36 Ill. 533.</p>

<p>1. Cbeditob’s bill—what constitutes, and when it may be maintained. A creditor’s bill, strictly, is a bill by which a creditor seeks to satisfy his debt out of some equitable estate of the defendant, which is not liable to a levy and sale under an execution at law.</p> <p>3. To maintain such a bill, the creditor must have exhausted his remedy at law, by obtaining judgment and getting an execution returned nulla bona, this being necessary to give the court jurisdiction, for otherwise it would not appear but that the party has a complete remedy at law.* </p> <p>3. Same—and, herein, of a, bill to set aside a fraudulent conveyance.—But there is another sort of creditor’s bill very nearly allied to the former, by means of which a party seeks to remove a fraudulent conveyance out of the way of his execution. This he may file so soon as he obtains his judgment, and is not required to show that he could not obtain satisfaction out of other property of the defendant.</p> <p>4. But a naked bill to set aside a fraudulent deed, which seeks no discovery of any property, chose in action, or other thing alleged to belong to the defendant, and which ought to be subjected to the payment of bis judgment, is not a creditor’s bill in the sense in which that term is understood and accepted, and provision for which is made by sections thirty-six and thirty-seven of our chancery code.</p> <p>5. And in order to maintain a bill to set aside a fraudulent conveyance, as an obstacle in the way of collecting the complainant’s judgment, it must appear the judgment was an existing lien on the property conveyed, so that where the judgment was obtained more than a year before the filing of the bill, and it did not appear that an execution had issued thereon within that time, the bill cannot be maintained.</p> <p>6. Wills—executed and proved, in other States—when admissible in evidence in this State. Where a will executed in another State, and probated there, and the record and proceedings in respect thereto are authenticated in conformity with the act of congress of May 26, 1790, providing for the authentication of the public acts, records and judicial proceedings in each State so as to take effect in every other State, such will is admissible in evidence in the courts of this State without having been probated here.</p> <p>7. Nor is it essential to support a title to land lying in this State, claimed under such a will, that the will should be recorded in the county where the land is situate.</p> <p>8. Same—of an estate for life. The owner in fee of a tract of land in this State devised his property as follows: “I leave and bequeath all the property, movable and immovable, of which I may die possessed, to my said wife; this legacy is made in usufruct and during the lifetime of my said wife, at her death the whole of whichwill revert to the children, which I have or may have from said marriage. ” Held, that on the death of the testator, the widow took under this devise a life estate in the land—a freehold, and under our statute subject to execution.</p>

<p>1. Railroads—of time liability as warehousemen for baggage of passengers. When a passenger upon a railroad purchases his ticket, and checks his baggage to the place of his destination, and such baggage arrived at its destination, and is not, from any cause, delivered to such passenger, or to his agent, it was held that it was the duty of the company to deposit such baggage in their baggage room, in which event their responsibility becomes that of warehousemen, and they must respond in damages for any neglect in that capacity.</p> <p>2. It is not necessary that such place of deposit should be absolutely fire-proof, or burglar-proof, but such a place as a man of ordinary prudence would use for the storage of his own goods.</p>

<p>1. Action on penal bond—of assigning successive breaches. The 18th section of the practice act, which provides that in actions upon penal bonds, successive breaches may be assigned and recovery had, after a trial and judgment in the same action, is not confined in its operation to actions on official bonds, but applies as well to other penal bonds, conditioned for the performance of covenants, where the non-performance of the condition is not necessarily embraced in a single breach.</p> <p>2. So where one partner purchased his co-partner’s interest in the firm, agreeing to pay the partnership debts, and gave a penal bond conditioned for their payment within a specified time, upon a breach of such condition by the neglect of the obligor to pay the firm debts, as he had agreed, a right of action upon the bond accrued to the obligee, but if the latter had not himself paid the debts, or some portion of them, he could recover only nominal damages, and the judgment for the penalty would stand as security for such other breaches as might afterwards happen by reason of the obligee paying the debts, or any portion of them.</p> <p>3. Bill oe exceptions—when it should be signed. While it is for the judge trying a cause to determine, in the first instance, whether the requirements of the law have been so far complied with as to make it his duty to sign a bill of exceptions, yet where that has not been done, the bill should not be signed. In this case, the bill was signed two years after the trial to which it related, and from the memory of the judge, without minutes, and without any exceptions having been taken at the time. The signing of the bill was disapproved.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. George W. Pleasants, Judge, presiding.</p>

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

<p>1. Contracts—who shall prepare them,. A party residing in this State, having obtained a divorce from bis wife in Indiana, proposed a settlement with her in order to prevent her attacking the divorce. An agreement was entered into, in writing, the effect of which was to create a lien on the real estate of the former husband, to secure the payment of money to the wife: Held, that in the absence of any understanding on the subject, the contract should be prepared at the expense of the party whose lands were to become encumbered by it.</p> <p>2. Attorney and client—when the relation exists. In this case, the attorney who prepared the written contract, did so at the request of the former husband, and though at the same time he was acting, in respect to the subject matter of the agreement, as the attorney of the divorced wife, yet his relations to her did not prohibit him from preparing the contract at the instance of the other party, for which the latter could be compelled to pay him.</p> <p>3. Same—of the mode of retaining counsel. It is not essential to the right of recovery by an attorney against his client for professional services, that there should be shown an express request, but if the services were rendered under such circumstances, as will reasonably imply, that they were performed with the assent and upon the request of such party, a recovery therefor may be had.</p>

S. D. Puterbaugh, Judge, presiding. This was an action of assumpsit, brought in the court below, by Merriman against the railroad company, to recover the value of a box of goods belonging to the plaintiff, shipped on the company’s road at Peoria, in this State, to be carried to Washington, in the District of Columbia.

<p>1. Mortgagee—purchasing at his own sale. A mortgagee of real estate, selling under a power, can not become the purchaser at his own sale, unless by consent of the mortgagor.</p> <p>2. Same—construction of a mortgage, on that subject. A mortgage, with a power of sale in the mortgagee, contained this clause: “ It shall be lawful for the said party of the second part, his representative or assigns, to become purchaser at said sale, or any member or members of the firm of H. A. Tucker & Co.,” (H. A. Tucker being the mortgagee), “may become a purchaser at such sale, provided his or her bid for said property, or any portion thereof:” Hdd, that it was apparent the right of the mortgagee to purchase at the sale was intended to be upon conditions, which were not fully expressed, and the language in that respect being unintelligible, the entire clause must be disregarded. The power to become a purchaser at the sale was not conferred upon the mortgagee.</p> <p>3. Construction—the rule in such cases. Where it is claimed that a mortgage confers upon the mortgagee the right to purchase at his own sale, under a power in the mortgage, the instrument, in that regard, will be strictly construed. Such a privilege the law does not give to the mortgagee, and does not favor, and if claimed under a clause in the mortgage, he must show it has been given in clear and unmistakable terms.</p> <p>4 Such a clause in a mortgage is analogous to one providing that the mortgagee may purchase the equity of redemption at a fixed price, and places the mortgagor substantially at the mercy of the mortgagee. Whether it would be void, as being extorted from the necessities of the mortgagor, or whether the mortgagee, acting under it, would be required to show, against a claim by the mortgagor to i;edeem, that the sale had been fair, and the property had brought a reasonable price, is not decided, but upon the question whether the language used does confer the right, it must receive a strict construction, being regarded with disfavor by the courts.</p> <p>5. Mortgages—of the mode of foreclosure—as to real estate and, personalty. Where a mortgage of real estate provided as the mode of foreclosure, that the property should be sold at public sale by the mortgagee, at a specified place, and after advertising for a given time, it was held, this cut off the right of private sale by the mortgagee.</p> <p>6. And if such a provision should be contained in a mortgage of personal property, it is not perceived what right the mortgagee would have to disregard it and sell the property at private sale.</p> <p>7. Realty and personalty—of a leasehold interest. A lessee of a lot of ground erected a building thereon, under an agreement with the lessor that the former might remove all the improvements placed by him on the premises, or the lessor should pay for them at their appraised value; and in case of removal, rent was to be paid upon an appraisement to be made at certain intervals, without regard to the improvements. The lessee and owner of the improvements executed a mortgage upon his interest in the premises, including the improvements, and it was held, the property mortgaged was an actual interest in real estate, a chattel-real at the common law, falling under the definition of “ real estate,” given in the first section of our statute of judgments and executions, and, because immovable, possessing none of those attributes as personal property which have shaped the law in regard to the mortgage of such property.</p> <p>8. Trustees’ sales—of the notice required on their adjournment. It has been held that a trustee in a deed of trust may adjourn a sale in his discrecretion, but when he does so, he must give a new notice for the same length of time required in the first instance.</p> <p>9. Nor is this rule in regard to the notice, affected by the fact that the deed contains a clause authorizing an adjournment; such a clause is not material, as the power exists without it.</p> <p>10. Mortgagee in possession—of his relation to the mortgagor. Although, in a limited sense and for some purposes, a mortgagee in possession for con-' dition broken, and without foreclosure, is a trustee for the mortgagor, yet he is not so in a strict sense and for all purposes, to the extent of disabling him from dealing with the mortgaged property, under any circumstances, for his own benefit.</p> <p>11. The general rule may be thus stated: if a mortgagee “ gets an advantage by being in possession, or 1 behind the back ’ of the party interested in the subject, or by some contrivance in fraud, he shall not retain the same for his own benefit, but hold it, in trust;” subject to this general rule, each case must stand on its own equities.</p> <p>13. So, if the purchase of an outstanding title by the mortgagee has been accomplished by means of a friendly possession derived by him from the mortgagor, and the latter has had no opportunity to purchase for himself, the former should hold his purchase for the benefit of the mortgagor.</p> <p>13. If, on the other hand, his possession is adverse, or his purchase has not been aided by it, or the mortgagor has had the opportunity to buy and has declined, there can be no reason for holding the mortgagee a trustee.</p> <p>14. Same—who will be deemed to hold the position of a mortgagee in possession. A mortgagee of a lease, upon condition broken, took possession. and then, under a power in the mortgage, sold the property mortgaged, and became the purchaser at his own sale without having any right so to do. He afterwards sold and conveyed his interest, his grantee taking possession and leasing the premises to a third person, the latter entering into possession under his lease. This last lessee, while thus in possession, purchased in the outstanding title for his own benefit: Held, that he was in no such relation to the mortgagor, the original lessee, as to constitute him the trustee of the latter. He was not a mortgagee, and owed no allegiance, as regarded his possession, to the mortgagor, nor was there any privity between them, but he held the title he had acquired, independently of, and adverse to, the mortgagor.</p> <p>15. The possession even of a mortgagee, after an attempt at foreclosure by sale under a power in the mortgage, would be adverse to the mortgagor, although the foreclosure be invalid at the election of the latter, by reason of the mortgagee purchasing at his own sale, and a person holding as tenant under the grantee of such mortgagee would occupy no fiduciary relation to the mortgagor which would prevent him from acquiring an outstanding title for his own benefit.</p> <p>16. Mortgagor of a lease—of Ms rights after an invalid foreclosure, as against a subsequent occupant and owner of the fee. Nor would the fact that the lease of the mortgagor provided that he might retain possession until his improvements were paid for or secured, give him an interest in the fee, or any right to purchase, or even to be restored to the possession, as against the party who had acquired the fee under the circumstances named, upon a bill filed by the mortgagor, to determine his rights in the premises, a decree was entered securing to him payment for his improvements by a lien on the ground, and that fully met all his just claims for relief.</p> <p>17. Hsury—what constitutes. A note executed in this State, payable in New York, renewable at intervals of sixty or ninety days, the maker paying the exchange, is not usurious.</p>

<p>1. Married women—whether bound by contracts made in their names by their husbands. Even if a married woman can enter into a contract .so as to be bound as a member of an association for business purposes, yet her husband can not, without authority from her, make a binding contract for her by signing her name to the articles of association.</p> <p>2. Parties—in actions at law. In a suit against the members of an association for services rendered, the name of a person which was signed to the articles of association without authority, may properly be omitted as a defendant.</p> <p>8. Joint obligation, of an individual with a body of individuals. Where an association of persons employ an individual to render a service for them, a third person, not a member of the association, may become jointly bound with them.</p>

<p>1. Parties on foreclosure—of the heirs-at-law of a person who had conveyed Ms title in his life time. The owner of real estate conveyed the same in fee, and his grantee, simultaneously with such conveyance, made a quitclaim deed to the wife'of the first grantor. Subsequently, the wife executed a mortgage upon the property, her husband joining therein. Upon foreclosure of such mortgage, after the death of the husband, the children and heirs-at-law of the latter, having no interest in the property, were not necessary parties to the suit.</p> <p>3. Assignment of error—by whom. And though the minor heirs of the husband were made defendants in the suit to foreclose, together with his widow, in whom the fee had become vested before the mortgage was made, yet, the infant defendants, having no rights to be affected by the decree, can not maintain a writ of error alone, the. rule being, that a party can not assign for error an erroneous decision which does not prejudice his rights.</p> <p>3. Where there are infant and adult defendants, and the adults alone prosecute a writ of error, they cannot assign for error the proceedings which only affect the interests of the infants; and the converse must be true, when infants alone prosecute the writ.</p>

Josiah McRoberts, Judge, presiding. The appellant, Gormley, and the appellee, Sanford, owned and occupied adjacent lots in the city of Morris, in Grundy county, in this State. It is claimed by the appellee that the appellant, by artificial means, obstructed the natural flow of the surface waters from the lot of the former upon that of the latter.

<p>1. Assignee—-after maturity. The assignee of a promissory note, after maturity, takes it subject to all the equities then existing between the original parties.</p> <p>2. Mortgages—subsequent purchaser from the mortgagor of a part of the premises—only seeondas'ily liable. Where a mortgagor conveys a portion of the mortgaged premises, retaining a portion himself, as between the mortgagor and his grantee, that portion retained by the mortgagor should be first applied to the payment of the mortgage.</p> <p>3. Same—subsequent purchaser of the remaining portion—of his rights in respect to the prior purchaser. And a subsequent purchaser of the portion thus retained by the mortgagor, with notice of the prior sale of the other portion, simply steps into the shoes of the" mortgagor, and will hold his portion subject to be charged primarily with the-payment of the mortgage.</p> <p>4. Same—assignee of mortgage, with notice of prior sale. So where the assignee of a note secured by mortgage took the assignment with notice that a part of the mortgaged premises had been sold and conveyed by the mortgagor, such assignee can hold the portion so conveyed only secondarily liable, and must first exhaust the portion of the premises retained by the mortgagor. It is, therefore, competent for the grantee of the mortgagor, in a suit by the assignee of the mortgage to foreclose, to prove the fact that he had so purchased a part of the premises after the mortgage became a lien, and that the assignee had notice of that fact.</p>

<p>Appeal from the Court of Common Pleas of the city of Aurora; the Hon. Richard G. Montony, Judge, presiding.</p>

William W. Heaton, Judge, presiding. Carpenter brought this suit against Andrus, and a trial resulted in a judgment for the plaintiff, from which the defendant appealed.

<p>1. Usury—whether pleadable by a corporation. Under the interest law of 1853, a corporation cannot interpose the defense of usury in any action. 3. Railroad directors — of their compensation. The law does not imply a promise on the part of railroad companies to pay their directors for services as such, and to enable a director to recover for such services, a by-law, or resolution, must have been adopted by the board to compensate him therefor.</p> <p>3. Parties—in suits to recover indebtedness due a firm. In all cases of indebtedness to a partnership firm, the action must be brought by the members of the firm,—one of the members cannot sue alone, and recover at law for what his co-partners may agree to be his portion of a debt due the firm.</p> <p>4. New promise—by a re-organized railroad corporation. Where the property and franchises of a railroad corporation have been sold and conveyed under a deed of trust given to secure a debt of the company, and the purchasers re-organize, to prove a new promise by the re-organized company to pay a debt owing by the company as originally organized, there must be shown some action on the part of the directors of the former from which the promise can be clearly inferred. The mere certificate of their secretary that the amount was due on specified items, would be insufficient to prove a new promise, or to bind the "company, unless it appeared he had been empowered to adjust the claim.</p>

E. S. Williams, Judge, presiding. This was an action of assumpsit, brought in the circuit court of Cook county, by Arthur W. Windett, an attorney at law, against James Hamilton, to recover for legal services. The cause came on for trial at the September term of said court, and a default was taken and final judgment rendered, for the sum of $1000.

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

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding.</p>

Writ of Error to the Superior Court of Chicago; the Hon. John A. Jameson, Judge, presiding. This was a suit in chancery, instituted in the court below, by Patrick Walsh, against Matthew J. Brennan and Thomas Walsh, by which the complainant sought to redeem a certain lot of ground conveyed by him to Thomas Walsh, and by the latter sold and conveyed to Brennan. The circumstances upon which this alleged right of redemption is based are set forth in the opinion of the court.

<p>1. Demurrer. Where a plea of the statute of limitations is interposed, the question, whether there is any statute barring the action should be raised by demurrer to the plea.</p> <p>2. Limitations—assumpsit upon a note made out of this State. An action of assumpsit was brought September 1, 1866, upon a promissory note given out of this State, bearing date February 19, 1885, and falling due in three years from date: Held, that the action was barred, under the limitation act of 1827, that act still being in force at the time the action was brought.</p> <p>8. Same—effect of acts of 1845 and 1849 upon the act of 1827. The act of 1827, was not repealed, but was re-enacted, by the Revised Statutes of 1845, and the proviso to the 4th section of the act of November, 1849, directing that in all actions instituted upon causes of action arising during the period in which the act of 1845 was in force, shall be the rule of limitation and adjudication, is construed as meaning the act of 1827; and that proviso is not affected by the act of 1851, except so far as concerns actions which accrued while the act of February, 1849, was in force, and such as accrued before the act of February, 1849, went into operation, and for the barring of which there was no previous statute.</p> <p>4. Former decisions. The language of the opinion in the case of Campbell v. Harris, 80 Ill. 395, is too broad, if it is to be construed as meaning that no promissory note given out of this State, and maturing prior to the act of February, 1849, and since the act of 1827, is barred by any act of limitation in force in this State.</p> <p>5. New promise—what sufficient to take a case out of the statute of limitations. A party against whom it was claimed some promissory notes were held in another State, was spoken to about them by a person who had been written to on the subject, who was asked by the alleged debtor if he had the notes, and he said he had not. The debtor then said there were no notes against him; that he paid his notes; that if the agent had any notes against him, or anybody, he would pay them. The agent then said: “ I will send for the notes.” The debtor answered, “You can; if you produce any notes against me I will pay them.” In another conversation, the debtor, upon being shown the notes, acknowledged he had executed them; that they had not been paid, and were still due, and when asked what he would do about them, started away and said he could not be detained then: Held, that these conversations, taken together or separately, were insufficient to show a new promise, so as to take the case out of the statute of limitations.</p> <p>6. The new promise, to be available, must be of such a character as clearly to show a recognition-of the debt, and an intention to pay it, thus waiving the protection of the statute; but where the entire language of the debtor rebuts the presumption of an intention to pay, the bar of the statute is not lost.</p> <p>7. A promise by a person to pay all the notes that could be produced against him, accompanied by an averment that he owed none, and none could be produced, does not amount to a promise to pay any particular note, or a recognition of its validity;' and the promise or acknowledgment, to be binding, must have special reference to the debt in controversy.</p> <p>8. Moreover, in this case, the agency of the person with whom the debtor had the conversation, did not clearly appear, and if he was then a stranger to the notes, it was immaterial what the debtor said to him; it could not amount to a binding promise.</p>

<p>1. Contracts—construction of a contract payable in negotiable securities. An instrument was given as follows: “Value received, in seven-thiity United States bonds, to the amount of $2400, with interest coupons due the 15th of February next, and the bonds due or convertible into five-twenty bonds on the 15th of August next, we jointly and severally promise to pay Frederick J. Fischer or order $2400 in United States bonds, or the equal value of the above described bonds at maturity, with the interest accrued on the same to this date. To be paid in five-twenty or ten-forty bonds or money, at the election of said Fischer, one year from date with interest at the rate of ten per cent per annum.” Under this contract, Fischer should make his election within the year, if he desired to receive five-twenty or ten-forty bonds,—he could not elect after the note matured. Failing to make such election, the maker could elect whether he would pay in United States bonds, and the amount to be paid, in that event, would be the value of $2400, of seven-thirty bonds, with the premium, and all interest which had accrued on them at the date of the contract, with ten per cent interest.</p> <p>2. Evidence—under the common counts. Such an instrument is admissible in evidence under the common counts, as it is either a promissory note or a contract fully executed by the party to whom the promise is made, and nothing left to be done by the maker but to pay the money.</p> <p>3. Consideration—whether necessary to be proven. It is not necessary to prove the consideration of such an instrument, as it states upon its face what the consideration was. Nor does it matter that the consideration was bonds and not money.</p> <p>4. Proof of execution of instruments—whether necessary. When an instrument is offered in evidence under the common counts in assumpsit, our statute has not dispensed with the necessity of proving its execution; but where a declaration contained a special count and the common counts, and the instrument was not admissible under the former, by reason of a variance, and was offered under the common counts, notice having been given the defendant that it would' be offered under all the counts and no other claim would be asserted under the declaration, it was held, such notice took the case out of the rule, and obviated the necessity of proving the execution of the instrument.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Silvanus Wilcox, Judge, presiding.</p>

Writ of Error to the Circuit Court of LaSalle county; the Hon. Madison E. Hollister, Judge, presiding. This is a case where George Gleim brought an attachment suit in the court below against Frederick Wilhelmi, and Frederick Haffner'was served with process as garnishee. The facts sufficiently appear in the opinion.

John A. Jameson, Judge, presiding. This was a suit in chancery, instituted in the court below by Coggswell K. Greene, against the unknown heirs of Henry Moore, deceased, and various others. The facts are fully presented in the opinion of the court.

<p>Appeal from the Superior Court of Chicago.</p>

E. S. Leland, Judge, presiding. This was an action on the case for slander, brought in the circuit court of LaSalle county, by the appellee, Charles Borchenius, against Neis Nelson and Kate Nelson, his wife, the appellants. The averments in the declaration are sufficiently set out in the opinion. The.cause was tried before the court and jury, and a verdict found for the plaintiff.

Writ of Error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding. The question presented in this case is, whether a contract executed in a State where slavery existed, for the purchase price of a negro slave, will be enforced in the courts of this State.

<p>1. Conversion—what constitutes. If one person has the property of another in his possession, and the owner makes demand of it, and the party in possession, without right, refuses to deliver it, that will constitute aeon-version of the property by the latter to his own use.</p> <p>2. Same—and herein of the respective rights and duties of a shipper and common carrrier. So, where the owner of a carriage shipped the same by a common carrier, the amount to be charged for the transportation being first agreed upon, and, upon the carriage reaching its destination, was demanded by the owner, he offering to pay the charges as agreed, but the agent of the carrier refused to deliver it except upon the payment of a larger amount: Held, this was a conversion of the property by the carrier, and the owner could maintain trover therefor. The latter discharged his duty by making a demand for the carriage immediately on its arrival, and offering to pay the freight agreed upon.</p> <p>3. The carriage, while in the possession of the carrier, and after the refusal to deliver it to the owner, was destroyed by fire, and it was held that the owner did not waive the effect of such refusal by agreeing at the time to communicate with the agent with whom the contract was made, at the place of shipment, in respect to the amount of freight agreed to be paid. If there was an overcharge for freight, it was as much the duty of the agent of the carrier to make an effort to have it corrected, as it was that of the owner.</p> <p>4. Nor was the owner under any obligation to pay the overcharge of freight, upon the verbal promise of the warehouseman to refund all over a proper charge. He was not required to put his money in such jeopardy.</p> <p>5. Interest—when recoverable, and from what time. And in such case, where the owner brought trover against the carrier, it was held the plaintiff was entitled to interest on the value of the property from the time of the demand and refusal.</p>

<p>Assignor—insolvency of maker. In an action against the assignor of a note for $1000, where it was sought to recover on the ground of the insolvency of the maker, and that a suit against him would have been unavailing, it appeared the maker had some fine oil paintings, a fine library which filled two large book cases, worth $150 to $200 each, and furniture worth $2500 to $3000: Held, the assignor was not liable, although the maker may have been heavily in debt.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gary, Chief Justice, presiding.</p>

<p>Appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Practice—time within which to object to admissibility or sufficiency of evidence. While it is the rule that the admissibility of evidence cannot be questioned, for the first time, in the appellate court, yet the sufficiency of the evidence to prove the issues may be questioned at any time and in all courts.</p> <p>2. Former decision—how far conducive. Where a case has been determined in an appellate court, and remanded for further proceedings, upon a second appeal the former decision will be deemed conclusive of the questions then presented; but if, upon the new trial below, further and material evidence be introduced, a new case is presented, so as to require the appellate court to consider the additional evidence in connection with that previously before the court, and to decide the case upon all the evidence thus appearing in the record.</p> <p>3. Pabol evidence—payment of terns. It is the settled rule of this court, that payment of taxes may be proved by parol, and receipts therefor may be explained or contradicted.</p> <p>4. Evidence—sufficiency thereof, as to payment of taxes. On the trial of a cause in which a party relied upon the bar of the limitation act of 1839, a prior owner of the premises testified explicitly that he paid all the taxes thereon every year during the time he owned it, being more than seven years. On a second trial, the same witness testified that he only remembered the amount of the several payments as shown by the receipts, nor did he know otherwise that the entire amount due was paid. But the court considered the testimony given on the second trial, in connection with that on the first trial, when the witness proved the name of the person who paid the taxes, the lot on which they were paid, and that they were paid each and every year during the time. The evidence, taken all together, was sufficient to show the payment.</p> <p>5. Even if a tax receipt is for a less sum than that extended on the collector’s warrant against the property, that is not conclusive upon the question whether all the taxes were paid; and when it appears the person to whom the receipt was given called on the collector and offered to pay all the taxes, and did pay all that was claimed to be due, and the receipt states that the full amount had been paid, a jury may reasonably infer that the whole amount assessed was paid, and that a mistake was made in stating the amount in the receipt.</p> <p>6. A mistake in the description of property on the assessment roll, will not invalidate a payment of taxes upon the proper lot, when it is correctly described in the collector’s warrant. The property being properly described in the warrant, and the taxes paid according to such description, it will be presumed, for the purposes of the act of 1839, that it was legally assessed, and that the payment conforms to the requirements of the statute.</p> <p>7. Payment op taxes—under color of title—by whom. Where a party claiming land under color of title, conveyed the same, and on the next day he paid the taxes for the current year, which had been previously assessed against him, and which he was legally liable to pay, it was held, the payment would be regarded as having been made under and subordinate to the title he had conveyed, and would enure to the benefit of his grantee.</p>

Writ or Error to the Court of Common Pleas of the city of Elgin, Kane county;the Hon. Richard T. Montony, Judge, presiding.

<p>Appeal from the Superior Court of Chicago; the Hon. William A. Porter, Judge, presiding.</p> <p>The facts in this case are fully presented in the opinion of the court.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. William A. Porter, Judge, presiding.</p>

Appeal 'from the Circuit Court of Whiteside county; the Hon. W. W. Heaton, Judge, presiding. This was an action on the case, brought under the statute, by Martin Weldon, as administrator of Christopher Weldon, deceased, for the benefit of the widow and next of kin, against the Illinois Central Bailroad Company, for wrongfully causing the death of the said Christopher.

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

<p>1. Limitations — in equity. The fact that a statute of limitations is positive in its terms, will not, under all circumstances, operate as a bar in equity. There arc cases in which a court of equity will not permit the bar of the statute to be interposed against conscience, and it will supply and administer a remedy within its jurisdiction, and enforce the right for the prevention of a fraud.</p> <p>2. So, where a bill in chancery, by which it was sought to enforce a right in respect to which the defendant had been guilty of fraud, alleged that the complainant had no knowledge of the fraud until within the time prescribed by the statute as a bar, the remedy was enforced, notwithstanding the limit of the statute had expired before the filing of the bill.</p> <p>3. Pleading in chancery—to amid the statute of limitations. In order to prevent the statute of limitations being availed of on a demurrer to a bill in chancery, if there be grounds which take the case out of the statute, they should be stated in the bill.</p> <p>4. Same—of the allegation of fraud—when sufficient. In a bill filed by the board of supervisors of a county against a drainage company, to recover the proceeds of drafts which had come to the State from the general government, for swamp and overflowed lands sold by the latter after their selection, and which had been obtained from the State by the defendants, it was alleged that the secretary of the drainage company obtained the drafts from the State by some fraudulent pretense, the character of such pretense being unknown to the complainants, and that the secretary converted the drafts into money, and paid it over to the company: Held, upon demurrer to the bill, that, although all the circumstances attending the fraud were not stated, yet the allegation was as full as it could be made, and this was admitted by the demurrer, and was deemed sufficient.</p> <p>5. Same—allegation as to time when the fraud was discovered. The bill alleged that a knowledge of the facts connected with the receipt of the drafts by the secretary of the company, and their conversion and application, did not come to the complainants until within two years before the filing of the bill, and this was regarded a sufficient allegation on that subject, without an allegation of facts and circumstances tending to explain the reason why the information did not reach them at an earlier period.</p> <p>6. Deeds—what will pass thereby. A conveyance of swamp lands by a county to a third party, will not pass the right of the county to drafts or scrip given by the general government to the State, and by the State to the county, for swamp and overflowed lands sold by the general government after they had been selected under the act of congress on that subject.</p>

William A. Porter, Judge, presiding. This was an action of trespass, m et armis, brought by Simeon W. King, against Daniel O’Hara. The facts are these: On the 6th day of April, 1868, the defendant was clerk of the recorder’s court of the city of Chicago, and in possession of a room in the court house building, where he conducted his business.

Writ of Error to the Circuit Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding. The opinion of the court contains a sufficient statement of the case.

S. D. Puterbaugh, Judge, presiding. This was an action of assumpsit, brought in the court below by Thomas Cratty, as administrator of Frederick Furch,. deceased, against George E. Ford, and others, his securities, upon a promissory note given by the defendants to the intestate in his lifetime. The circumstances under which the note was given, and the questions arising in respect thereto, are set forth in the opinion of the- court.

Josiah McRoberts, Judge, presiding. Catharine O’Connor presented a claim against the estate of Martin O’Connor, deceased, in the probate court of LaSalle' county, for services alleged to have been rendered by her son, for the deceased, in his life time, the latter being an uncle of the boy. The proceeding was taken into the circuit court of LaSalle county, on appeal, and finally, on change of venue, removed into the circuit court of Grundy county. .

<p>Writ of Error to the Circuit Court of Woodford county; the Hon. Samuel L. Richmond, Judge, presiding.</p>

S. D. Puterbaugh, Judge, presiding. This case was before the court, at the January term, 1868, when the decree of the court below was reversed, and the cause remanded for further proceedings. It is reported in 46 Ill. 359, where the facts will be found sufficiently set forth in the opinion of the court.

<p>Appeal from the Superior Court of Chicago; the Hon. William A. Pobtbb, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.</p>

This was an action of assumpsit, brought by Leander Read against Mrs. Walker, to recover for certain goods alleged to have been sold to her. A special demurrer was filed by the defendant to the plaintiff’s declaration, which was sustained, and judgment rendered on the demurrer in favor of the defendant. To reverse this judgment, the plaintiff appealed. The special causes of demurrer assigned are set forth in the opinion.

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Charles Turner, Judge, presiding.</p>

<p>New Trial—verdict against the evidence. Where the evidence was contradictory the court refused to set aside the verdict as clearly against its weight.</p>

This was an action of assumpsit, brought in the court below, by Cornelia D. Becker, as surviving administratrix of Yroman Becker, deceased, upon a promissory note, against William Wisdom and Robert H. Wisdom. The pleadings upon which the questions in the case arise are set forth in the opinion of the court. .

This was an action on the case brought by Martin against Walker and Cutting, for malicious prosecution. A sufficient statement will be found in the opinion of the court.

Joseph E. Gary, Judge, presiding This was an action of covenant, brought by Wilson against Walker and others, partners, upon a lease, in which it was sought to recover double rent, under the statute, on the allegation that the defendants, lessees, wilfully held over after the expiration of the lease. A trial resulted in a finding and judgment for the plaintiff, from which the defendant, Walker, appealed.

Writ of Error to the Circuit Court of Bureau county; the Hon. Edwin S. Leland, Judge, presiding. This was an action of ejectment brought by Prout against. Bowen and another, to recover the undivided three-fifths of the north east quarter of section seventeen, in township number fifteen north, of range six east, in Bureau county.

Benjamin R. Sheldon, Judge, presiding. Orlin H. Gillett, who was administrator of the estate of Benoni R. Gillett, deceased, presented a claim on his own behalf, against said estate, for allowance in the county court of Jo Daviess county. An administrator pro tem. was appointed to defend the estate.

<p>Appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gaby, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. Samuel L. Richmond, Judge, presiding.</p>

Joseph E. Gaby, Judge, presiding. This was a suit commenced in the court below, by Christian Jensen, against the schooner “ Norway,” to recover damages sustained by the plaintiff, in consequence of injuries received by him when employed as a sailor on board said vessel, caused by the falling of a block connected with the “ fish tackle,” upon the plaintiff, by reason of the breaking of the “fish tackle pennant,” a portion of the rigging used in “ catting ” or raising the…

<p>1. Appearance—as to several defendants, generally. In actions where there are several defendants, an appearance by an attorney for the defendants generally, must be construed as an appearance for all.</p> <p>3. Same — denial of authority of attorney to enter an appearance. Whatever the true rule may be in regard to the question, to what extent, for what purposes, and under what circumstances, a party for whom an appearance to a suit has been entered, can deny the authority of the attorney and ask relief from the court, the claim to do so is viewed with great disfavor by courts whenever innocent third parties have acquired rights under the judgment or decree.</p> <p>3. Same—to let a party in to redeem. In this case, a party became the purchaser of a tract of land under an execution sale, subject to a mortgage. Fourteen months and a half after the purchase, a bill was filed to foreclose the mortgage. The purchaser was made one of the parties defendant to the bill, but was not served with process. The appearance, however, of the defendants, was entered, generally. A decree of foreclosure was pronounced and the property was sold, the mortgagee becoming the purchaser. The purchaser under the execution took no steps to redeem, or set aside the decree, not even procuring a sheriff’s deed on his certificate of purchase, though the evidence showed he was aware of the foreclosure, but some six years afterward, sold his certificate of purchase to the complainant, who obtained a sheriff’s deed and filed his bill for redemption. The land, in the meantime, was constantly occupied under the foreclosure title, and several times changed hands, and, at the time of the purchase of the certificate by the complainant, was occupied by the defendant: Held, for the purpose of allowing a redemption under such circumstances, evidence could not be received impeaching the authority of the attorneys in entering the appearance of the purchaser under the execution, in the foreclosure suit; that it was the duty of such purchaser, if he wished to redeem, to have come forward within a reasonable time, and asked the decree of foreclosure to be opened as to him, and that the complainant’s equities were no stronger than those of the execution purchaser would be if he were complainant, being chargeable with notice of all the facts with which such purchaser would be chargeable.</p> <p>4. Right of redemption—its general character. The right of a mortgagor, or his grantees, to redeem, after condition broken, is a purely equitable right, the creation of courts of chancery. It is a right which can be asserted only in a court of equity, and when its assertion would be plainly inequitable that court will withhold its aid.</p> <p>5. Same—effect of foreclosure upon subsequent incumbrancers, not made parties. In this State, when the foreclosure is by scire facias, subsequent incumbrancers are cut off, though notmade direct parties to the proceeding.</p> <p>6. When the foreclosure is by bill in chancery, they are not absolutely barred unless made parties, but they can not be permitted to assert their equity of redemption against an equity still stronger.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Charles Turner, Judge, presiding.</p> <p>The facts in this case are sufficiently stated in the opinion.</p>

<p>1. Secondary evidence—of contents of instrument—preliminary proof. Proof of the fact that a mortgagee surrendered to the mortgagor the mortgage given to secure the purchase money of the chattels embraced therein, under an agreement that the property should be returned, after proving that such a mortgage had been executed, is sufficient to let in parol evidence of the contents of the mortgage, on behalf of the mortgagee, in a suit between him and a third person concerning the title to the mortgaged property.</p> <p>2. Same—by whom the contents may be proved. When secondary evidence is admissible to prove the contents of a mortgage, such contents may be proven by any one who can swear he knew them. The mortgagee is quite as competent as the mortgagor for that purpose.</p> <p>3. And it is sufficient to enable a witness to testify to the contents of the instrument, where he states that he saw it signed, had it in his possession more than a year, and knew its contents, without stating that he had read it.</p>

<p>Writ of Error to the Circuit Court of Kane county; the Hon. Sylvanus Wilcox, Judge, presiding.</p>

<p>1. Rescission op contracts—placing the parties in statu quo. Where parties have exchanged lands, and one of them seeks to rescind the contract, on the ground of fraud, he must restore, or offer to restore, to the other party the property received, before he can properly demand a return of that which he gave in exchange.</p> <p>2. And so, where the party seeking to rescind, has retained the possession of a portion of the lands received by him in the exchange, he will not be permitted to rescind without accounting for the rents and profits.</p> <p>3. Same—and herein of a purchaser buying in an outstanding title. A party who has exchanged lands with another, and agreed to pay off a mortgage to a third person, upon the lands he was to receive, and is seeking a rescission in a court of equity, upon the ground of fraud, he can not avoid the rule that he must restore to the other party that which he received from him, by permitting a foreclosure of such mortgage, and buying in the title under the foreclosure, for his own benefit. Whatever might have been his right to purchase in the outstanding title under the foreclosure, had he restored the property to the other party, he could not do so while in under his purchase, and still recover back the property he gave for it.</p> <p>4. Same—and herein of giving compensation instead of rescinding—rights of purchasers pendente lite. In this case, the bill filed for a rescission was dismissed upon a hearing, and the complainant appealed. He had not restored the lands he had received in the exchange, but continued in the possession and use of them. Pending the appeal a third person purchased from the defendant one of the tracts conveyed to him by the complainant, for a valuable consideration. The original decree of dismissal was reversed on the appeal, and upon a second hearing below the defendant brought into court the amountpaidby the complainant to secure the title to a portion of the property he was to receive in the exchange, but which the defendant did not own, and, in reference to the title to which the latter had'made fraudulent representations, for which the rescission was sought: Held, the court properly refused to decree a rescission of the contract, but requiring the complainant to receive the money tendered, as a settlement of all the equities between the parties. While the purchaser pendente lite could not claim protection as such, yet his position gave force to the fact that the complainant had not offered to place the defendant in statu quo, and equity favors compensation, when the law permits it to be made.</p>

E. S. Williams, Judge, presiding. This was an action on the case under the statute, brought by the appellant, Bridget Lalor, as widow and administratrix, against the appellees, the Chicago, Burlington and Quincy Bailroad Company, for the killing of her husband, Joseph Lalor. A general demurrer was interposed to the declaration, and sustained by the court.

<p>1. Pabol evidence—to explain a written contract. A vendor of certain lots of land signed a memorandum, in writing, as follows: “ Chicago, June 20th, 1868, received of James Bedican, to apply on the purchase of lots 14 and 15, block 15; 12 and 13, block 16, bought of B. P. Fowler, one hundred dollars. Price of four lots, $1170.33. If lots are not in location as represented, money to be returned to J. Bedican at his option.” The purchaser went into possession under the agreement, and made valuable improvements : Held, in a suit by the vendee to enforce the specific performance of the contract, that from the incompleteness of the memorandum in itself, in expressing all the conditions of the contract, and the location of the lots, it was evidently the intention of the parties to reserve the right to supply its deficiencies by parol proof, and it was, therefore, competent for the vendee to show by parol the character of deed to be made, when the contract was to be executed, and the description and location of the lots, without asking a reformation of the instrument.</p> <p>2. Moreover, as the partial execution of the contract by the purchaser, through his possession and improvements, and payment of part of the purchase money, would have enabled him to enforce its specific execution had it rested entirely in parol, so, this instrument not purporting to express the entire agreement of the parties, could be made complete by parol evidence of those matters which were omitted.</p> <p>8. But it seems, where the contract on its face appears to be complete in itself, but misdescribes the property sold, parol evidence would not be admissible to correct such misdescription, except in a proceeding in equity to reform the instrument.</p>

John A. Jameson, Judge, presiding. This case was before this court at the September term, 1868, and is reported in 49 Ill. 403, where a statement of the case will be found, as presented on the first trial. On the remand of the cause a new hearing was had, and additional testimony introduced, whereupon the court below found a trust existed, in favor of Smith, and decreed accordingly. Adsit appealed;

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

<p>1. Instructions—should be based upon the evidence. An instruction, in an action of trespass on the case for injuries to the person, which directs the jury that in fixing the damages the plaintiff ought to recover, if they believe from the evidence he is entitled to recover, they should consider all the circumstances surrounding the case, and then specifically points out the circumstances, is not obnoxious to the objection, that instructions should be based upon the evidence.</p> <p>2. Where an instruction was asked by the defendant, directing the jury that they are to judge of the credibility of the plaintiff as a witness, whether, taking his interest into consideration, he is entitled to belief as against other disinterested testimony which contradicts him: Held, there being no disinterested testimony contradicting him, it was properly modified by striking out the words “ as against other disinterested testimony which contradicts him.”</p> <p>3. New Trials—excessive damages. In a case sounding in damages, unless the verdict is manifestly so high as to produce the conviction that the jury were actuated by improper motives, it will not be disturbed on the ground of being excessive.</p>

Porter, Judge, presiding. This was an action of assumpsit, brought in the court below by George H. Fergus against Parker and Fagan, for the recovery of a bill for printing,… Held: under the evidence then appearing in the record, that Parker was not liable as a partner, and the judgment was reversed. On another trial below additional evidence was introduced, on the subject of the partnership, which is quite voluminous, and would serve no valuable purpose to be repeated here.

<p>Appeal from the Circuit Court of Henry county; the Hon. George W. Pleasants, Judge, presiding.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. Joseph E. Gary, Chief Justice, presiding.</p>

<p>Writ of Error to the Circuit Court of Iroquois county; the Hon. Charles H. Wood, Judge, presiding.</p>

This case comes from the Superior Court of Chicago, the Hon. Wm. A. Postee, Judge, presiding, upon a certificate of questions of law, which is set forth in the opinion.

<p>Fraudulent sales—employment of vendor by vendee as agent. Where a party sells out his business to another, while it is not a fraud per se for the vendor to be employed by the vendee as a clerk to carry on the business, it is a circumstance creating a strong presumption of fraud, and especially so when the former uses and controls the property as he did before the sale. In such a case, it requires clear and satisfactory proof, and the circumstances surrounding the transaction should clearly indicate honesty and good faith, to rebut the presumption.</p>

<p>New trial—verdict against the evidence. The judgment of the court below is reversed in this case on the ground that the evidence fails to sustain the verdict.</p>

<p>Negligence in railroads—requisites of instructions. In an action against a railroad company for killing stock, if an instruction for the plaintiff which undertakes to enumerate the facts upon which a recovery may be had, omits the essential fact that the road had been opened six months, a judgment for the plaintiff will be reversed, unless such omitted fact is shown by the evidence.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. William A. Porter, Judge, presiding.</p>

Joseph E. Gary, Chief Justice, presiding. This case was before this court at the September term, 1868, and will be found reported in 48 Ill. 453, where a full statement of the case, as presented at that time, will be found in the opinion of the court. The additional facts appearing on the second hearing below are presented in the opinion.

Joseph Sibley, Judge, presiding. This was an action of trespass on the case, brought by J ames B. Dunn, against the Chicago, Burlington & Quincy railroad company, to recover for injuries to the person of the plaintiff caused by the alleged negligence of the servants of the defendants.

<p>1. Limitations—how mailed of. The bar of the statute of limitations may be availed of, in chancery, by demurrer, where it appears from the face of the hill.</p> <p>2. Same—in equity. Equity follows the law in the application of the statute of limitations. So, where a remedy at law, in case one existed, would not be barred, neither would the remedy in chancery, in respect to the same contract.</p> <p>3. Specific pebfobmance—where a part of the conditions of a contract remain unperformed. Where parties enter into a written agreement to convey by deed, one to the other, certain pieces of real estate for and in consideration of the grantee’s execution of certain promissory notes, and of certain conditions to be by him afterwards performed, the giving of the deed and the execution of the notes, in pursuance of the agreement, does not destroy or render invalid the remaining portions of the agreement, hut the same are still binding and may be enforced. They are not like conversations which precede a written agreement, and are supposed to have merged in the same or been abandoned.</p> <p>4. Agency—ratification by the principal. Where an agent was empowered, originally, to make a contract for the conveyance of lands of the principal, upon certain conditions, and, in making the contract, the agent added other conditions favorable to his principal, not mentioned in his original authority, and which were afterwards, and before the conveyance of the lands, approved by the principal, who directed the agent to convey according to the conditions so expressed: Held, that such action of the principal was a ratification of the act of the agent, in respect to such new conditions, and their binding effect upon the other party to the contract could not be questioned for the want of authority in the agent to insert them.</p> <p>5. Same—when a pmty is estopped to deny agent's authority. And the party to whom the lands were to be conveyed under such agreement, having acceded to the new conditions by entering into the agreement containing them, and accepting the deed in pursuance thereof, would be estopped to deny the authority of the agent in respect thereto.</p> <p>6. Trust—when it a/rises in respect to swamp and overflowed lands. Where swamp and overflowed lands, granted by the general government to the State, and by the State to the several counties, are conveyed by a county to an incorporated company, on the condition that the grantees shall drain the lands, the latter take the lands burdened with the trust arising under such condition, and a court of equity may enforce its execution.</p> <p>7. Same—executing a trust ey pres. The court of chancery will, in a class of public charities and trusts, rather than permit the trust to fail, and in furtherance of the object contemplated in creating the trust, devise a plan for its execution, in the absence of any mode being prescribed by the party declaring the trust.</p> <p>8. But such jurisdiction will not be exercised in all cases; it is only when the trust can be executed by the employment of the ordinary agencies to which the court can readily and practically resort, that it will undertake to execute the trust cy pies.</p> <p>9. So, where a board of supervisors of a county conveyed the swamp lands of the county, one of the conditions of the conveyance being, that the grantee should drain the lands, so far as the same might be practicable, notwithstanding the vagueness and uncertainty as to the mode in which the grantee should execute the trust arising from such condition, a court of chancery would not devise a plan for executing the trust, by reason of the impracticability of the court employing the necessary agencies required in the accomplishment of the object of the trust.</p> <p>10. Same —failure of trustee to execute the trust—rescission. But in such case, the court will not permit the trust fund to be "wasted and misapplied. The trust remaining unexecuted by the grantees, and they having sold a portion of the lands, and divided the residue among themselves, the court will take the trust in charge and restore the fund to the former trustees, the county authorities, to be by them applied in the execution of the trust. The grantees having violated their contract in respect to the trust, it should be rescinded, and they required to account for the fund.</p> <p>11. Consideration—mutuality. Where a county conveys its swamp and overflowed lands, for a certain sum of money agreed to be paid by the grantee, and upon the condition that he shall drain and reclaim the lands conveyed, there is such mutuality of consideration, that the county may enforce the performance of the condition respecting the drainage of the lands.</p> <p>12. Parties—in chancery. Where the board of supervisors of a county entered into a contract to convey the swamp and overflowed lands belonging to the county, for a certain sum of money, and upon condition the grantees should drain the lands conveyed, such board may maintain a bill in chancery against the grantees, to assert and enforce the rights of the county concerning the subject of such condition, and the trust arising in respect thereto.</p> <p>13. And although such grantees may have sold and conveyed a portion of the lands before suit brought, yet the original grantees, or their representatives, are the only necessary parties defendant to such a bill.</p>

Erastus S. Williams, Judge, presiding. This was an action brought by. Huckberger and others, against the Commercial Insurance Company of Chicago, to recover upon a policy of insurance upon the stock of goods of the plaintiffs. A trial resulted in a verdict and judgment for the plaintiffs. The defendants appealed.

<p>1. Contracts—mutuality. An article of agreement, purporting to be made between two parties, imposing mutual obligations upon them, showing upon its face it was to be executed by both parties before it would be binding on either, but only executed by one of them, can not be given as evidence to the jury for any purpose, not even against the party executing it.</p> <p>2. Such a paper could have no other effect than that of a mere memorandum which could be used by the witness to refresh his memory.</p> <p>8. Contract—evidence of a special contract. Where a party makes a proposition to another in regard to building a house for the latter, the mere fact that the former commences the work with the assent of the latter, is not conclusive evidence of a special contract in respect thereto. The work may have been commenced under a quantum meruit.</p> <p>4. Instruction—should, pyresent the different hypotheses of the parties. In an action where the question was, whether a special contract existed as to the subject matter of the suit, an instruction was asked, by which it was sought to tell the jury that certain things would constitute a special contract between the parties, by summing up one view of the evidence, without qualification by reference to the opposite hypothesis: Held, that this was properly changed, by saying that the matters enumerated would be proper to be considered in determining the question of contract.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.</p> <p>The opinion of the court contains a sufficient statement of the case.</p>

<p>City ordinance—in relation to inspection of fish—constnction thereof A city ordinance, requiring that all fresh water fish in packages, brought into the city for sale, shall, before being sold, be inspected and branded, and imposing a penalty for its violation, does not render a person liable to the penalty for selling such fish in packages not inspected and branded, when the same are made up from other packages that have been duly inspected and branded.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. Samuel L. Richmond, Judge, presiding.</p>

<p>1. Variance—between declaration and, contract in suit for breach of warranty. In a suit for breach of warranty, where the declaration sets out the contract only in substance, and not in hrn verba, a variance, to be fatal, between the contract, as declared on, and the one offered in evidence, must be in some material matter.</p> <p>2. In a suit to recover damages for an alleged breach of warranty, in the manufacture of two steam boilers, the declaration alleged they “were intended for driving a grist mill, at Annawa, in the county of Henry, and State of Illinois,” while the contract was silent as to their purpose, or place where they were to be used: Held, there being no averment that the contract stated they were to be so used, and the declaration only purporting to set out the contract in substance, this was not a variance.</p> <p>3. Nor is there any substantial difference between the averment that the boilers “should be built and manufactured in a first class manner,” and that “ the work should be done in a first class manner.”</p> <p>4. Same—implied warranty. So, where the declaration alleged that, “ in consideration of the manufacture, sale and warranty of the boilers, plaintiffs agreed to pay $2400,” while the contract read, “ defendants were to build two steam boilers with a mud-receiver, for $2400Held, this was not a variance, as the pleader, in averring the warranty, only stated the substance of the agreement, and a mud-receiver constituted a part and necessary portion of the boilers—it being a well recognized rule of law that when a manufacturer furnishes his wares, he impliedly warrants them to be reasonably suited to the purpose for which such articles are designed, and to be skillfully and properly constructed.</p> <p>5. Nor is there a variance when the declaration avers that plaintiffs were to pay $2000, on the completion of the boilers, and $400 on June the 1st, 1867, with ten per cent interest; and, by the contract, plaintiffs were to pay $2000 cash at the shop of defendants on completion of the work, “and give a lien note for $400, payable June 1st, 1867, with ten per cent interest, payable at Second National Bank, Peoria”—the terms and conditions of the contract being only stated as inducement to the warranty, upon which the action is based, and mere inducement is not required to be set out with the same degree of particularity as the contract itself.</p> <p>6. Measure of damages—-for breach of warranty. In a suit to recover damages for a-breach of warranty, the plaintiff is entitled to recover for all damages which are the natural and proximate result of the failure of the warranty. And where a manufacturer has broken his warranty, in the construction and sale of two steam boilers, the necessary expense of repairing them, the loss of time while so engaged, as well as the increased quantity of fuel necessarily consumed to generate steam, would be considered as both natural and proximate damages.</p>

Ekastus S. Williams, Judge, presiding. This was an action of assumpsit, the declaration in which contained several counts, but substantially alike, so far as concerns the questions arising thereon.

<p>1. Highways—what constitutes, so as to im/pose upon the public authos'ities the duty to keep them in repair. The third section of article 17, of the township organization law of 1861, which requires the commissioners of highways “ to cause such roads, used as highways, as have been laid out but not sufficiently described, and such as have been used for twenty years, -but not recorded, to be ascertained, described, and entered of record in the town clerk’s office,” is construed as referring to roads which have been recognized as highways by the proper authorities, and not to every road which the owner of land may have laid out for his own use, and permitted the public to travel over.</p> <p>2. By such words as “are used as highways,” is meant those roads whose character as highways has been established by the consent of the owners of the soil, and of the proper authorities, but of which no accurate survey and record have been made.</p> <p>3. It is not enough, to bind the town or county to repair, that there has been a dedication of a public way by the owner of the soil, and the public use of it. To bind the corporate body to this extent, there must be some evidence of acquiescence or adoption by the corporation itself.</p> <p>4. Mandamus—whether the peremptory writ may he refused. The third section of the chapter of the Revised Statutes, entitled “ Mandamus,” which requires the court to award a peremptory writ in cases where a jury have found a verdict for the petitioner, refers only to cases where the petition makes a prima facie case, and the issue found by the verdict is material. The action of the court in denying the peremptory writ, notwithstanding a verdict for the petitioner, is like arresting the judgment in an ordinary action at law.</p>

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

John A. Jameson, Judge, presiding. This was a suit in chancery, brought by Robert W. Hyman against Samuel H. Kerfoot, Samuel Gehr and John C. Rives, to rescind a sale of real estate and compel the payment of money which, it is alleged, Kerfoot received while acting as the agent of the complainant.

Writ of Error to the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding. This was an action brought by Garrison against the city of Chicago. A trial resulted in a verdict and judgment for the plaintiff. The city thereupon sued out a writ of error.

<p>Appeal from the Superior Court of Chicago; the Hon. John A. Jameson, Judge, presiding.</p>