Volume 55 — Illinois Reports

<p>1. Tax title—necessity of supporting the deed by a judgment and precept. In a suit in chancery to foreclose a mortgage against the mortgagor and the grantee of the equity of redemption, the latter relied upon a tax title to prevent a foreclosure; but on the hearing produced only a tax deed, without judgment or precept: Held, the court properly decreed a foreclosure.</p> <p>2. Foreclosure—distribution of surplus. In a suit to foreclose a mortgage against the mortgagor, who has parted with his interest in the premises, it is error to order any surplus that may remain on a sale, after payment of the mortgage, to be paid over to the mortgagor. The surplus should be ordered to be brought into court, in order that its proper distribution may be directed.</p>

Clair county; the Hon. Joseph Gillespie, Judge, presiding. At the August term, 1870, of the court below, upon leave, an information was filed by the State’s attorney, in the nature of a quo.warranto, in which it was alleged that Ernest W. Wider, Henry Schall and E. L. Barrowman, were at that time the acting and duly qualified police commissioners of the city of East St. Louis, having been appointed as such under the act of February 25, 1867, entitled “an act to establish a…

<p>1. Contract—whether a sale or a bailment. When the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the title.to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed—it is a sale.</p> <p>2. Same—of a deposit of grain in a warehouse. So where grain was deposited in a warehouse, on the understanding between the warehouseman and the owner of the grain, not that the identical grain, or grain of like quality, was to be returned, but the money value thereof, to be ascertained by the market price on the day the depositor should choose to fix, the transaction was held to be sale, not a mere bailment.</p> <p>3. Usage—how far a contract is controlled thereby. Although usages of trade can not be set up either to contravene an established rule of law, or to vary the terms of an express contract, yet all contracts made in the ordinary course of business, without particular stipulations, expressed or implied, are presumed to be made in reference to any existing usage or custom relating to such trade, and it is always competent for a party to resort to such usage to ascertain and fix the terms of the contract.</p> <p>4. So where the owner of grain deposited the same in a warehouse, taking an ordinary warehouse receipt therefor, which did not explicitly state the character of the transaction—whether as a sale or a mere bailment—it is competent, in an action by the depositor against a purchaser from the warehouseman, for the latter to show that, according to the usage in such cases, warehousemen do not keep the identical grain deposited, but ship and sell it without regard to the identity of the grain deposited by any particular person, and that depositors at a warehouse do not expect to take their grain away, but to get their money at the market price on the day they demand it—and this, as tending to give character to the transaction as a sale rather than a bailment.</p> <p>5. Evidence—relevancy, when determinable. When evidence is offered which, at the time, does not appear to have any relation to the case, and the offer to introduce it is unaccompanied by a statement that its relevancy will appear in the progress of the trial, it may properly be rejected, and its exclusion under such circumstances will not become erroneous because it may afterwards become relevant in the further development of the case; in such event the rejected evidence should be offered again, when, if excluded, an exception would lie.</p> <p>6. Same—whether relevant. Where the owner of grain deposited the same in a warehouse, taking an ordinary warehouse receipt therefor, the facts showing the transaction was a sale of the grain to the warehouseman, in an action of trover by the depositor against a purchaser from the warehouseman, to recover the value of the grain, such warehouse receipt is not admissible in evidence in behalf of the plaintiff.</p> <p>7. PAnon evidence—to vary the terms of a written contract. The bill of sale for such grain, given by the warehouseman to the defendant, could not be added to, varied or enlarged by parol evidence.</p>

<p>1. Allegations and proofs must correspond. In a suit to compel the specific performance of a contract, the complainant can not obtain relief upon a contract different from that set out in his bill.</p> <p>2. Agent—parol authority to sell land. It is not doubted that parol authority to an agent is sufficient to enable him to bind his principal by a contract in writing for the sale of land; but such authority must be clear and explicit.</p> <p>3. Agent—must act within his authority. If a party authorizes an agent to make a certain contract for him, it does not follow that the agent may make another and different contract and yet bind the principal; and especially is this true where the party with whom the agent contracts knows the extent of the agent’s authority.</p> <p>4 Statute of frauds—when not necessary to he pleaded. Where a bill for specific performance sets out a contract in writing as the alleged ground of relief sought, it is not necessary the'defendant should plead the statute of frauds in anticipation of an attempt on the part of the complainant to prove a parol contract for the sale of land. It is time enough to plead that statute when it is alleged the defendant has made a contract which is within its purview.</p> <p>5. Specific performance—unreasonable delay. All contracts for the sale of lands, where time is not of the essence thereof, must be performed or rescinded within a reasonable time, and if there has been any unreasonable delay that can not be explained consistently with good faith, equity will always hesitate to enforce a specific performance.</p> <p>6. So where a party claiming to have purchased a tract of land, sought to compel a conveyance thereof, it appeared the alleged contract was made April 14, 1868, and by its terms a large part of the purchase money was to be paid at that time. When the vendor, in the latter part of that month, tendered a deed and demanded payment, the purchaser insisted upon conditions not embraced in the contract, and declined to pay unless they were complied with, and made no tender of the money until the seventh of July following: Held, there was no reasonable excuse for the delay in tendering performance on the part of the purchaser, and before equity would assist him he must himself have been diligent in his efforts to comply with the contract on his part.</p> <p>7. Same—of the good faith required. If there be any unfairness or rep-' rehensible means used in obtaining the making of a contract, equity will never enforce a specific performance.</p>

William A. Porter, Judge, presiding. This was an action of indebitatus assumpsit, brought in the court below by Hart against the First National Bank of Madison, Wisconsin, to recover the amount of a reward offered by the defendant for the arrest and conviction of a party who had drawn a large sum of money from the bank upon forged drafts, and for the recovery of the money so obtained. The reward had been offered in a circular, as follows: (private.) $2500 REWARD.

<p>Appeal from the Circuit Court of Cook county; the Hon. Ebastus S. Williams, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>1. Parol trusts respecting lands—statute of frauds. An express trust in respect to lands, resting entirely in parol, is within the statute of frauds, and void.</p> <p>2. So where a guardian of minor children succeeded in purchasing a tract of land which had formerly belonged to the father of his wards, at a less price than he could otherwise have obtained it for, on the representation to the then owner of the land that he was acting as guardian and wished to secure the land for the children, taking the conveyance, however, in his own name, absolutely, and paying his own money on the purchase, it was held, no express trust could arise in favor of the wards, based upon these representations of their guardian, because, being in parol, they were within the statute of frauds.</p> <p>3. Trusts—arising out of fiduciary relations. Nor would a constructive trust arise, by operation of law, in such case, by reason of the fiduciary relation of the guardian, because his wards, for whose benefit he pretended he wished to purchase the land, had no interest therein, or claim or expectation of interest. The title to the land, although once in the father of the minors, had become vested in another party.</p> <p>4. In order that a trust shall arise in favor of a person towards whom the fiduciary or confidential relation exists or is assumed, by reason of such relation, the person claiming the trust must have some interest, or, at least, some claim or reasonable expectation of interest, in the property claimed to be affected.</p> <p>5. Same—what will amount to a fraud in respect thereto. The mere violation of a parol promise or trust, as to an interest in land, will not; of itself, constitute such a fraud as will take a case out of the statute of frauds.</p> <p>6. Laches—delay in setting up fraud. The owner of a tract of land sold and conveyed the same in June, 1852, at a price less than he had previously offered the same to his grantee, the abatement in price being in consequence of the alleged false representations of the grantee that he desired to secure the land for the benefit of certain minor children, whose father had previously owned the land, and for whom the grantee had become guardian. In August, 1865, the grantor executed a quit claim deed for the premises to the wards of his former grantee: Held, if the grantor had the right, which these children could enforce, to have the deed to the guardian set aside by reason of such false representations, a delay until May, 1866, a period of fourteen years, in asserting such right, would bar the remedy.</p>

<p>Appeal from the Circuit Court of DeKalb county; the Hon. Theodore D. Murphy, Judge, presiding.</p> <p>The opinion states the case.</p>

William K. McAllister, Judge, presiding. The opinion of the court contains a statement of the case. Messrs.

<p>1. Bill of exceptions—when and when not necessary—confession of judgment. It has been held, that where a judgment is entered by confession, in vacation, and the proper papers are filed, they become a part of the record, without being embodied in a bill of exceptions.</p> <p>2. But where the judgment is entered in term time, as in this case, the warrant of attorney, and the note upon which judgment is confessed, can only become a part of the record by being preserved in a bill of exceptions.</p>

This was an application, in the name of the People, on the relation of Edward Hempstead and Calvin T. Wheeler, for a writ of mandamus, to compel the Chicago & Alton Eailroad Company to receive, at one of the stations upon the line of their road, a quantity of grain' in bulk, to be delivered by the company at the elevator of the relators, in the city of Chicago. The company had refused to receive the grain for transportation, because it was consigned to that elevator.

<p>1. Highways—order establishing a highway. It is not essential to the validity of an order of commissioners of highways, or of the three supervisors who may act on an appeal from such commissioners, establishing a public highway, that the surveyor’s plat, which the law requires shall accompany his report to them of his survey of the route of the road, shall appear, from such order, to have been signed by the surveyor.</p> <p>2. Same—requisites of an order establishing a highway. It is only necessary to incorporate in such order so much of the surveyor’s report as is required to clearly indicate the courses and distances of the route of the road, and the land over which it will pass. The order need not state that the surveyor’s report was signed; neither is the surveyor’s plat required to be incorporated in the order. That is to accompany the order, and be filed therewith in the town clerk’s office.</p>

<p>1. Apprentices—of a void indenture—rights of the parties—construction of the statute. An indenture of apprenticeship, which is not in conformity with the statute on that subject, is void as to the minor, but.remains binding upon the father of the minor who joined with him in its execution, and stipulated that its conditions should be performed.</p> <p>2. Same—how far the father mag avail of the services of his child. A father who is entitled to the services of his minor son, and for whom he is obliged to provide, may, at the common law, assign those services to another by contract, for a consideration to enure to himself.</p> <p>3. So where an indenture of apprenticeship was entered into by a minor, his father joining therein, stipulating that the minor was to perform certain services for a specified compensation, the father also covenanting separately that his son should do and perform what he had agreed to do on his part, it was held, that, payment being made for the services of the minor according to the terms of the agreement, a recovery could not be again had for such services in the name of the minor, on the ground the indenture was void under the statute, because, though void as to the minor, it was binding on the father, who was entitled to the services.</p> <p>4. An implied contract can not arise where there is a subsisting express contract covering the entire subject matter.</p>

<p>APPEAL from the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>1. Injunction—should not go beyond the scope of the hill. Upon bill filed to enjoin a certain newspaper in the city of Chicago from publishing the official proceedings, ordinances, etc. of said city, under a resolution of the city council designating such newspaper for that purpose, an injunction issued, restraining the publication in that paper of such proceedings, ordinances, etc. “under said, or any resolution" of the city council: Held., it was error to make the injunction perpetual, because it was not confined in its operation to the particular resolution which alone was within the scope of the bill.</p> <p>2. Same—against whom it will lie. Even though the authorities of a' city may, without the solicitation or agency of the proprietors thereof, designate a newspaper in which to publish the official proceedings of the city, which, under the law on that subject, is not entitled to be thus selected, still, that does not afford any ground of complaint against the newspaper or its proprietors, merely because they may claim the right, under that designation, to avail themselves of the benefits to flow therefrom. A newspaper can not be restrained from publishing any lawful matter, in the regular course of its business, on the alleged ground that those proposing to furnish such matter will do so in violation of their public duty and of the rights of others.</p> <p>3. And in a proceeding to restrain the authorities of the city from committing a breach of their own duty in that regard, the newspaper alleged to have been improperly selected to publish the official proceedings can not be involved, there being no privity between such newspaper and others claiming the right of such selection.</p>

<p>1. Bill to foreclose—of its sufficiency in respect to the execution of the mortgage by a married woman. In a bill in chancery to foreclose a mortgage claimed to have been executed by husband and wife, upon land, the fee of which was in the latter, the mortgage may be stated according to its legal effect, without stating in detail the various matters which are necessary to the transfer of a married woman’s title.</p> <p>' 2. So where it was alleged in the bill that the husband and wife made and executed to the complainant their certain deed or indenture of mortgage, bearing date, etc. whereby they conveyed to the complainant the premises described, to hold unto the complainant, his heirs and assigns, in fee simple forever, subject to a right of redemption by the husband paying the debt thereby secured, and that, by said deed or indenture of mortgage so made by the said mortgagors, the title to said premises in fee simple was conveyed to the complainant, subject to the defeasance therein, it was Jield, the bill was sufficient in substance to sustain a default and decree of foreclosure, as against the wife, although-it did not aver those facts in regard to the acknowledgment of the deed by her, and the certificate of the officer, which are necessary to the validity of a conveyance by a married woman.</p> <p>3. And quœre, whether the simple averment that the husband and wife executed a mortgage to the complainant, would not, after default and decree, have been sufficient.</p>

<p>1. Taxation for corporate purposes—and of the power to create a debt against a municipal corporation. The legislature ordinarily has no power to impose a debt or levy a tax upon a municipal corporation without its assent, or to authorize persons not corporate officers to create a debt against the corporation, or to levy a tax therein, either directly or indirectly, without the consent of those to be affected thereby, or of the municipal authorities.</p> <p>2. This rule, as announced in the case of Lovingston v. Wider et al. 53 Ill. 302, and applied to the action of the police commissioners of the city of East St. Louis under the act of 1867, is adhered to.</p> <p>3. Same—who are “ corporate authorities.'’ The police commissioners, the appointment of whom is provided for by the act of 1867, entitled, “ an act to establish a police force for the city of East St. Louis,” are not corporate authorities of that city, and have no power to create a debt against the municipality without its consent.</p> <p>4. Same—of the levying of a local tax by the legislature. The doctrine in reference to the possible existence of cases in which the legislature may impose a local tax without the consent of the corporate authorities—as in case of the failure of the police department of a city to provide reasonable security for life and property, and the State should undertake to supply such deficiency, and assess the expense thereof upon the city—has no application in a case where it is attempted to confer the power of creating a debt against the city, without its consent, upon police commissioners appointed under a law which was never submitted to nor approved by the people of the city or its corporate authorities.</p> <p>5. City of East St. Louis—of its power to create and pay a police force-effect of the act of 1867. Under the charter of 1869. of the city of East St. Louis, the city has the power to appoint a marshal and his deputies, who may exercise police authority in the city and receive .compensation from the city for such service, and this, notwithstanding the act of 1867 providing for the organization of a police force in that city without' the intervention of .the corporate authorities thereof. The latter act was not designed to deprive the city of the power given in its charter to maintain a police force, unless the provisions of the act should become efficient for that purpose.</p> <p>6. Same—legality of the police organization under act of 1867. The police force organized in the city of East St. Louis by the police commissioners appointed under the act of 1867, no doubt have a legal right to act in the capacity of policemen, if they choose to do so gratuitously, unless discharged or disbanded by the commissioners. To this extent the law may be upheld.</p>

Benjamin R. Sheldon, Judge, presiding. - This was an action of assumpsit, brought by Schier against the American Merchants’ Union Express Company, to recover the value of a trunk and its contents, received by the company for transportation, and not delivered by them at its destination, to the consignee.

<p>1. Attorney at law—liability for neglect of duty. A judgment, which had been recovered in the circuit court of Cook county, in this State, was placed in the hands of an attorney at law in that county, residing and doing business in the city of Chicago, to collect from the estate of the judgment debtor, the county court of Cook county having jurisdiction thereof. The claim came to the hands of the attorney after the term appointed by the administrator for the presentation and adjustment of claims against the estate, but about eighteen months prior to the expiration of two years from the granting of letters. Notice was immediately given, and the claim was presented to the county court,- but its consideration postponed-in order that an explanation might be made of a receipt which the attorney of the estate stated he had seen for a part of the claim. Several ineffectual attempts were afterwards made to bring the claim to a hearing. Finally, the county court dismissed the claim from the docket about eight days before the expiration of two years after the granting of letters, for want of prosecution, and because the claimant, who was a non-resident, had failed to give security for costs, and soon after ordered the administrator to make payment pro rata of claims already allowed, which exhausted the entire assets of the estate. The claim received very little personal attention from the attorney, he having left it almost entirely in charge of his clerk. „ It was not pretended there was any defense to the judgment, except to a small part of it included in the receipt: Held, the attorney was liable for the injury resulting from his neglect to procure an allowance of the claim in proper time to participate in the distribution of the assets of the estate.</p> <p>2. An attorney at law who assumes to exercise the duties of his office in behalf of another for hire and reward, must be held to employ in his undertaking a reasonable degree of care and skill, and if injury results to the client for the want of such a degree of reasonable care and skill, he must respond in damages to the extent of the injury sustained.</p>

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

Sabin D. Puterbaugh, Judge, presiding. This was a proceeding for the partition of two certain lots of ground, brought by the heirs of Martin Morris, deceased, against William Bergan and others. Bergan resists the partition, claiming entire ownership of the lots in question, by virtue of a conveyance from Martin Morris, Jr., who, it is claimed, received the property in fee under the will of his father, upon the termination of a life estate in his mother.

<p>Writ of Error to the Superior Court of Chicago.</p> <p>The opinion states the case.</p>

Erastus S. Williams, Judge, presiding. This was an action on the case, brought by Camp against Frankenthal and others. Held: since the wrongful levy aforesaid, and now hold wrongful possession of said goods and chattels. Wherefore,” etc. The defendants pleaded the general issue, and a trial resulted in a verdict in favor of the plaintiff.

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. W. W. Heaton, Judge, presiding.</p> <p>The opinion states the case.</p>

This was an application to this court for a writ of mandamus, the ground for which is set forth in the opinion of the court.

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. W. W. Heaton, Judge, presiding.</p> <p>The opinion of the court contains a statement of the case.</p>

Benjamin E. Sheldon, Judge, presiding. This was an action on the case, brought in the court below by Anna Williams, a colored woman, against the Chicago & Northwestern Eailway Company, to recover damages resulting to the plaintiff by reason of being excluded from the privileges of a car upon the defendants’ road, which had been designated, under the rules of the company, for the exclusive use of ladies., and gentlemen accompanied by ladies, the only reason for such exclusion…

<p>Appeal from the Circuit Court of LaSalle county ; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. William A. Porter, Judge, presiding.</p> <p>The opinion of the court contains a sufficient statement of the case.</p>

John A. Jameson, Judge, presiding. This was a suit in chancery instituted in the court below, by Orville D. Smith against Edward H. Smith, Sarah C. Broad and Sarah D. Broad, for a partition of certain real estate. Sarah D. Broad filed a cross bill, claiming the entire interest in the property. Upon a hearing, the court dismissed both the original and cross bills, whereupon the complainant in the original bill appealed.

Charles H. Wood, Judge, presiding.' This was an action of trespass on the case brought by Leonard Hogle against the Toledo, Peoria & Warsaw Railway Company, to recover the value of a colt, the property of the plaintiff, alleged to have strayed on defendants’ track, by reason whereof it was struck and killed by defendants’ locomotive and train, by and through the alleged neglect of the company to erect and keep in proper repair the fence along the line of their road, as…

Theodore D. Murphy, Judge, presiding. This was an action of assumpsit, brought by James W. Eddy, against the Aurora Fire Insurance Company, to recover upon, a policy of insurance upon a building used as a “ flax factory,” for a loss occasioned by the destruction of the property by fire.

Silvanus Wilcox, Judge, presiding. This was an action on a promissory note by an assignee against the maker, given for the purchase of some fanning mills. The defendant testified on the trial, that the mills had never been delivered to him, and that the note, at the time he executed it, contained a condition, written in pencil, as follows: “ This note is not to be paid until fourteen mills are sold,” and that the same had since been erased.

<p>1. Negligence—in railroads—keeping fences in repair. While railroad companies will be held to a high degree of diligence in keeping their fences in good repair, they are not bound to do impossible things, nor are they required to keep a constant patrol, night and day. If, where a railroad is enclosed by a sufficient fence, a breach occurs therein by reason of the unlawful act of a stranger, and through such breach stock get upon the track and are injured, in the absence of negligence on their part, the company will not be liable, unless the accident happened after the lapse of a sufficient time for the company, in the exercise of reasonable diligence, to have discovered and repaired the breach before the injury occurred.</p> <p>2. Where stock get upon a railroad track without the fault of the company, the law requires evidence beyond the mere proof that they were injured by the engine and carriages of the company on the road, to establish a liability for such injury; there must, in such case, be proof of negligence on the part of the agents and servants of the company in charge of the train at the time the injury occurred.</p> <p>3. In an action against a railroad company to recover the value of cattle alleged to have been killed on defendants’ road by their locomotive and train, it appeared the cattle could have been seen on the track by the engineer, if he had been on the lookout, for a distance of more than half a mile; there was nothing to obstruct his view, and yet, with the stock standing on the track in full view, the engineer made no effort to avoid the danger, and never slackened the speed of the train, but rushed on at a rapid rate, without any signal to give the alarm: Held, it was gross negligence on the part of the engineer not to stop the train in time to avoid the danger, for which the company should be held responsible, even though the cattle were upon the track without the fault of the company.</p>

Charles H. Wood, Judge, presiding. This was an action on the case, brought in the court below, by Bookless against the Toledo, Peoria & Warsaw Railway Company.

<p>Appeal from the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>Writ of Error to the Superior Court of Chicago.</p> <p>The opinion states the case.</p>

Joseph E. Gary, Judge, presiding. This was an action of debt, brought by Edward Barker against the Knickerbocker Life Insurance Company, to recover upon a judgment rendered against defendants in the circuit court of Milwaukee county, in the State of Wisconsin. Defendants pleaded nil debet and nul tiel record. To the plea of nil debet a demurrer was interposed, and sustained by the court, and judgment rendered on the demurrer.

<p>1. Mortgagor and mortgagee—of a release of the equity of redemption by the former to the latter. While it is true, that contracts between mortgagor and mortgagee for the purchase or extinguishment of the equity of redemption are regarded with jealousy by courts of equity, and will be set aside if the mortgagee has, in any way, availed himself of his position to obtain an advantage over the mortgagor, yet this principle does not preclude any bona fide agreement between the parties which shall operate to vest the entire estate in the premises in the mortgagee, and mere inadequacy of consideration will not, of itself, deprive such an agreement of its binding effect.</p> <p>2. Same—of ‘the mode of releasing the equity of redemption. Although the original transaction between a mortgagor and mortgagee was not in form a mortgage, but an absolute deed, with a bond to re-convey on the payment of the money at a specified time, still, it is not essential to the proper extinguishment of the right of redemption, by an arrangement between the parties themselves, that it should be done by an instrument which will operate as a technical conveyance of the mortgagor’s estate in the land; but if such transactions occur between the parties as would render it inequitable that the grantor should be permitted to redeem, that, of itself, without assuming the form of a technical release, will operate as a cancellation of the instrument of defeasance, and give to the deed the effect of an original, absolute conveyance as between the par lies.-</p>

<p>1. Tax title—time of levying a county tax under section 8 of the revenue law of 1845. That section is peremptory in requiring a county tax to be levied at the March term of the county commissioners’ court, and if levied at the June term, the levy and all subsequent proceedings under it would be void.</p> <p>2. Same—of a tern deed based upon a sale where a portion of the tax was illegally levied. It has been held that if any portion of a tax upon which a judgment was rendered, was illegal, or if the judgment was for too large a sum, even to the extent of a few cents, a sale and tax deed based upon such judgment would be void.</p> <p>3. So where a part of the tax for which a judgment was rendered, was a county tax, levied while the revenue law of 1845 was in force, and at a time other than the. March term of the county commissioners’ court, and therefore illegally levied, it was held,, a tax deed founded upon such judgment was void, and no recovery in ejectment could be had under it.</p>

<p>Widow—of her right in the personal property where the will of her husband malees no provision for her. Where a will makes no devise or bequest to the wife of the testator, but gives his entire property to his children, his estate, as to his wife, will he regarded intestate, to the extent of her legal claims, and in such case she will be entitled to one-third of the personal property remaining after the payment of his debts.</p>

<p>1. Voluntary conveyance—whether fraudulent as to creditors. It is competent for a party to create a separate estate for his wife out of his own property, if there are no creditors of the husband at the time whose rights will be affected thereby, or even if there are creditors, if the husband retains a sufficient amount to satisfy their claims.</p> <p>2. The mere fact that such an arrangement is voluntary on the part of the husband, without a valuable consideration, will not authorize a subsequent creditor to question it. If, however, the husband be insolvent, or the conveyance is made with a view to indebtedness to be contracted and with the intent to defraud creditors, it will be fraudulent and void as to them, and any creditor will be authorized to attack it.</p> <p>3. Voluntary conveyance—what constitutes. Where money belonging to a married woman was reduced to possession by the husband prior to the act of 1861 securing to married women their separate property, it became, under the common law, the absolute property of the husband, and a conveyance of land purchased with such money, to the wife, by the procurement of the husband, even under an agreement originally made between them that the wife’s money should be kept and regarded as her separate property, would nevertheless be deemed a purely voluntary conveyance, as regards such creditors of the husband as would have the right to question the transaction on that ground.</p> <p>4. And in such case the rights of the creditors of the husband would not be affected by the fact that the conveyance to the wife was made after the act of 1861 was in force. The husband having before that time reduced the separate funds of the wife to possession, he could not, after the passage of the act, restore the money so as to make it her separate estate, if the rights of creditors had intervened.</p> <p>5. Same—to what time the equities of the voluntary grantee relate. Where money belonging to the wife was reduced to possession by the husband prior to the act of 1861, so that it became his absolute property, but, under an agreement with his wife that the money should be set apart for her separate use, it was used in the purchase of land, a bond for the conveyance of which was executed to the wife: Held, the equity of the wife would relate back to the time such bond was given, and would be superior to that of a creditor of the husband, whose debt accrued subsequent to that time, though prior to the execution of a deed to the wife.</p> <p>6. Debtor and creditor—when the relation exists—covenants for title. The relation of debtor and creditor does not exist between a grantor and grantee, in respect to covenants for title contained in the deed, until there has been a breach of such covenants.</p>

<p>Witnesses—parties as witnesses, under act of 1867. In an action by an assignee of a promissory note, against the maker, the latter is a competent witness in his own behalf, under the act of 1867, on an issue upon a plea that the execution of the note was obtained by fraud and circumvention, notwithstanding the original payee of the note is dead at the time of the trial.</p> <p>3. Instructions—should apply to the case. In such an action, the court should not instruct the jury as to the plaintiff’s recourse upon his assignor in case the note sued upon should be found invalid, because no such question was involved in the suit.</p> <p>3. Fraud and circumvention—diligence required on the part of the maker of a promissory note—rights of an innocent assignee. The exercise of due diligence and attention on the part of the signer of negotiable paper, is a necessary element in his defense that the execution of the instrument was obtained by fraud and circumvention, when such defense is set up against an innocent assignee before maturity.</p> <p>4. So in an action by an assignee before maturity, against the maker of a promissory note, where the defense was that the maker signed the note supposing it contained a certain condition, which had been agreed upon, materially affecting the character of the liability he was to assume, being led so to suppose by the fraudulent misstatement of the fact by the payee, it appeared the maker could read and write with facility, but signed the note without reading it himself, permitting himself, to be deceived as to its contents by the false reading of the payee, and there were no circumstances disclosed as to the relation between the payee and the maker sufficient to throw the latter off his guard, it was hdd, there was evidence sufficient to go to the jury upon the question, whether the maker used due care and diligence in executing the note, so as to render his defense availing against an innocent holder, and an instruction on behalf of the maker, on the subject of such defense, was held erroneous, because it did not embody the hypothesis that he was not guilty of negligence in signing the paper.</p>

<p>Application for a writ of habeas corpus.</p> <p>The opinion of the court sets forth the ground of the application.</p>

<p>1. Attorney and client—when the relation ceases—in the matter of collecting a debt. It has been held that an attorney’s duty does not cease upon the recovery of a judgment on a claim put in his hands for collection, but that it continues until the expiration of the time of redemption from the sale, where laud has been sold towards the satisfaction of the judgment.</p> <p>2. So where an attorney was employed to foreclose a mortgage, and to do all acts necessary to be done, in and out of court, for the sale of the mortgaged property, and was to receive out of the proceeds of such sale a certain portion thereof for his services, it was held, a judgment of foreclosure having been obtained, and a sale had, the premises being bid off in the name of the creditor, and a purchase by the attorney from him within a year after the sale, the relation of attorney and client continued to exist, so as to subject the former to the rule which regulates the dealings between them.</p> <p>3. In such a case it appeared the attorney purchased the property from his client, during the time that relation existed between them in respect to the same, at a price much below its value, the client having no knowledge of the value except from representations of his attorney, in making which the latter failed to exercise that degree of good faith demanded by the confidential relation he held. So upon bill filed by the client it was held, the attorney should be regarded as holding the proceeds of the property, which he had sold, as a trustee for his client, and should account therefor accordingly.</p> <p>4. Same—of. the good faith required of the attorney, in dealing with his client—burden of proof. In order to sustain a purchase of property by an attorney from his client during the existence of that relation in respect to the subject matter of the contract, where the transaction is afterwards questioned by the client the burden rests upon the attorney of establishing its perfect fairness, adequacy and equity.</p> <p>5. Same—where the attorney negotiates with his client through a third, person. An attorney will not be relieved from the obligations imposed upon him by reason of his confidential relation, in dealing with his client in reference to property involved in that relation, merely from the fact that the negotiation between them is carried on through a third person, the latter being interested at the time with the attorney in the transaction.</p> <p>6. Maintenance. The fact that a third person has assumed to defray the expenses of a suit, will not operate to destroy the equities of the party in whose name the relief is sought, as they may appear in the case.</p> <p>7. Laches—in what manner availed of. Where a defendant in chancery desires to avail of any laches on the part of the complainant in asserting his remedy, he should set it up in his answer, so as to give the complainant an opportunity to amend his bill, by inserting allegations accounting for the delay.</p> <p>8. Mortgage—defective acknowledgment. A defective acknowledgment of a mortgage will not operate to impair the validity of the instrument, nor will a reversal of a judgment of foreclosure for that cause at all affect the lien of the mortgage.</p>

<p>1. Chancery—decree dismissing bill, whether conclusive. A decree rendered on the hearing of a suit in chancery, simply dismissing the bill, is conclusive, and will bar the parties from re-opening the questions litigated in that suit, in another case; but if the bill is dismissed “ upon the ground that a court of law is the proper forum in which to try the matters in controversy in the suit,” then the decree will operate only as a dismissal of the bill without prejudice.</p> <p>2. Notice—amendment of final decree—of notice to the solicitor. Notice of an application.to amend a final decree, at a subsequent term, was served upon the solicitor of the opposite part}', and it was held not to be availing as notice to the party himself, because the connection of the solicitor with the case terminated with the final decree.</p> <p>3. Same—of a verbal notice. Quaere, whether verbal notice in such case is sufficient.</p> <p>4. Same—of notice by posting. Notice of an application for such an amendment, posted on the door of the court house, in the county in which the suit had been pending will not avail.</p> <p>5. Same—to whom notice must be given. And notice in such case to one defendant would not affect the rights of another defendant, the latter claiming as purchaser from the former.</p> <p>6. Same—necessity of notice. A final decree dismissing a bill, was amended at a subsequent term so as to operate as a dismissal of the bill without prejudice, without notice to the party whose rights were to be affected by the amendment : Held, the amendment was absolutely void for want of such notice, and could be assailed in a collateral as well as in a direct proceeding.</p>

<p>1. Forfeiture of contract—in what manner accomplished. A party who held an equitable title to land, under a contract of purchase, entered into an agreement to assign that contract to a third person, upon the payment of a certain sum of money, “ to be paid in ninety days, with interest, otherwise all his right to said article of agreement shall be forfeited:" Held, the failure to pay the money within the time stipulated would, of itself, work a forfeiture of such second contract. But if anything were necessary to be done by the vendor in the second contract to produce a forfeiture, his sub* sequent sale of the premises to another would be sufficient.</p> <p>2. Same—placing the vendee in statu quo. The rule which requires a vendor to surrender negotiable notes given for the purchase money, before he can declare a forfeiture of the contract for want of prompt payment, does not apply in a case where such notes are over due, and still in the hands of the vendor, because, in such case, an assignee of the notes would take them subject to the defense which would arise to the maker by reason of the forfeiture.</p> <p>3. Laches—specific performance. A purchaser of a contract for the conveyance of land, paid cash in hand, $100, and gave his note for the residue of the purchase price, $862.56, payable within ninety days, time being made of the essence of the contract. The money was not paid, and after a delay of thirteen years, during eleven years of which the vendee gave no attention to the property, he sought to enforce a specific performance. The relief was refused on the ground of laches, independently of the fact that the contract had become forfeited by its own terms, and the rights of third persons had intervened.</p>

<p>Appeal from the Circuit Court of Peoria County; the Hon. Sabin D. Puterbaugh, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>1. Compromise—effect of a proposition to compromise, upon the rights of the party making it. A mere proposition made by a party to take a certain sum, by way of compromise or in settlement of his claim against another, is in no way binding unless accepted by the latter; nor will the fact that a party has so offered to settle his claim, operate to his prejudice in case he afterwards resorts to his action to recover the same.</p> <p>2. Same—authority of attorney to withdraw the same. The defendant in an action brought in the name of Laura A. French, offered in evidence a paper addressed to the defendant, purporting to withdraw a proposition to accept a certain sum for damages suffered by the party signing it, by reason of the negligence of the defendant, and signed “ Augusta L. French,” by a third person, “ her attorney”: Held, aside from the view that if the plaintiff made such a proposition, it was not binding upon her unless accepted, the paper did not purport to be signed in the true name of the plaintiff, nor did it appear the attorney had authority to send such a paper to the defendant, and it was, therefore, not error to reject it.</p> <p>3. New trial—verdict against the evidence. The verdict of a jury should not be disturbed, unless, upon examination of the evidence in the record, it appears to have been the result of passion or prejudice, or is manifestly agaiust the weight of the evidence.</p> <p>4. Incorporated cities—liability for injuries resulting from defective highways. Incorporated cities are liable, in this State, to a private action for the recovery of damages resulting from a neglect of duty on the part of the city authorities to keep its streets and cross walks in repair.* </p> <p>5. Excessive damages—action against a city. In an action against a city to recover damages for injuries sustained by the plaintiff in consequence of the omission on the part of the city to keep a certain street crossing in repair, it appearing the plaintiff had her leg broken, suffered great pain during a long period of time and received some permanent injury, and was to considerable expense for medical aid, a verdict of $2000 was regarded as not so excessive or oppressive in its amount, as to require a reversal of the judgment for that cause alone.</p> <p>6. Measure of damages—in action for injuries received, by a married woman, brought by her after divorce. Personal injuries wore received by a married woman by reason of the neglect of a city to keep a certain street crossing in repair. At the time of receiving the injuries the wife was living separate and apart from her husband without fault on her part, and so continued until she obtained a divorce, the husband having abandoned her, and she, in the mean time, supporting herself by her own industry: Held, in an action subsequently brought by her against the city, she could recover for the loss of her time and for money expended for medical aid, during the period of her coverture intervening between the time of receiving the injuries aud the granting of the divorce.</p>

<p>Appeal from the Circuit Court of Stephenson county; the Hon. Benjamin R. Sheldon, Judge, presiding.</p> <p>The opinion states the case.</p>

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

<p>■ 1. Labceny—by a bailee. To constitute the crime of larceny, a felonious intention is an indispensable ingredient. And under the statute making the conversion of goods and chattels by a bailee of them larceny, in the same manner as if the original taking had been felonious, the crime is not made to consist in the -mere conversion of the property to his own use by the bailee, but in such conversion with an intent to steal the same.</p> <p>2. Upon the trial of a party charged with the larceny of a lot of cattle, which, before and at the time of the commission of the alleged crime, were in the defendant’s custody, an instruction which made the guilt or innocence of the defendant, in case the jury found that he had converted the cattle to his own use, depend upon whether he was at the time a part owner of the cattle, was held be erroneous, for, although he might not have been a part owner, yet if he drove away and converted the cattle to his own use, under an honest belief that he was such part owner, the crime of larceny could no more be imputed to him than if he had actually owned the cattle in part.</p>

Charles H. Wood, Judge, presiding. This action was brought by Webster against the railroad company, to recover the value of a colt and some hogs, the property of the plaintiff, alleged to have been killed on the defendants’ road, by reason of their neglect to erect and keep in repair fences and cattle guards along their track.

Hon. Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by James C. Grant, against Jacob Esty, S. M. Waite, Joel Bullard and Beilly Burdett, upon the common counts, for labor and services of the plaintiff by him done and performed, and for materials by him furnished for the defendants, at their request.

William A. Porter, Judge, presiding. This was an action of assumpsit, brought by John J. Schwartz, against Charles Daegling, to recover for damage done to the plaintiff by reason of the falling of the walls of a brick building owned by him, and which the defendant had engaged to erect, alleged to have been occasioned by the negligence of the defendant.

<p>1. Municipal corporations—of their liability to a private action for neglect of duty in keeping highways in repair. While such corporations as villages, towns and cities, created for their own benefit, are held liable to private actions for injuries resulting to individuals by reason of the neglect of the corporate authorities to keep their streets, street crossings and sidewalks in repair, there is a distinction in that regard, between that character of corporations and .towns established by law as civil divisions of a county, merely; the latter are not liable, either by the common law, or under any statute in this State, to a private action for damages occasioned by the neglect of the town authorities to keep their public highways in repair.</p> <p>2. Former decisions. The case of The Town of South Ottawa v. Foster, 20 Ill. 296, so far as it holds the latter description of towns liable to such private actions, is overruled.</p> <p>3. In respect to that character of liability, there is no difference between the authorities of counties, and their powers and duties in regard to public highways, and towns established by law as civil divisions of counties, merely, and the doctrine of the case of Hedges v. The County of Madison, 1 Gilm. 567, declaring that counties are not liable to such private actions, applies to towns of that description.</p>

<p>Writ of Error to the Circuit Court of Kane county; the Hon. Silvanos Wilcox, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>. Writ of Error to the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>The opinion sufficiently states the case.</p>

John A. Jameson, Chief Justice, presiding. This was a suit in chancery, instituted in the court below, by Ellen Walter, to enforce the execution of an alleged trust. The complainant was the owner of the premises in controversy, subject to two mortgages, one to Joseph Peacock, for $2700, and the other to David Sears, Jr. which was assigned to the city of Chicago, for $3300. The remaining facts are presented in the opinion of the court.

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

S. L. Richmond, Judge, presiding. This was a seire facias to foreclose a mortgage executed by Horace B. Kipp and E. D. Davison, in favor of Benjamin L. T. Bourland, to secure the payment to him of two certain promissory notes.

E. S. Williams, Judge, presiding. This was an action of ejectment, commenced by Turtle against Fox, to recover lot 16, in block 1, in Carpenter’s addition to the city of Chicago.

<p>1. Negligence—in railroads—mode of switching can's. A railroad company, in transferring two empty platform coal cars from the main to a side track, employed the mode known as the “running” or “flying switch,” which is done by attaching the cars designed to be thrown upon the side track to the engine, when the train is put in motion running toward the switch, and before it is reached, and when sufficient momentum to answer the purpose has been acquired, the engine is detached and run ahead of the train, and after it passes, the switch is changed, and the cars thus detached, by the momentum thus acquired, are carried along the side track to the point intended, it was held, in thus switching their cars in a populous part of a city of ten or twelve thousand inhabitants, crossing a traveled street and along an alley used by the public, the cars thrown upon the side track having a momentum which carried them at the rate of five miles an hour, the company were guilty of a high degree of negligence, and of which the fact that signals of alarm were given from the engine employed in the switching, intended for a person crossing the side track, who was injured by the cars, would not excuse them.</p> <p>2. And it was gross negligence on the part of the brakeman on the train not to be at the brakes to respond to the signal of “ down brakes,” given by the engineer, or being there, in failing to pul on the brakes. As the company had adopted such dangerous mode of switching, it was imperative that the brakeman should have been so situated as to sec in front of his train, and to have had full command of it, so as to have guarded, as far as possible, against inflicting injury.</p> <p>3. Contributory and comparative negligence. In an'action against a railroad company to recover for the death of a person occasioned by the alleged negligence of the defendants, an instruction which directed the jury, that in case they believed, from the evidence, that both the deceased and the agents and servants of the company were guilty of gross negligence contributing to the injury, they should find for the defendants, was held, to be proper, as embodying a correct legal proposition—that where both parties are guilty of gross negligence, as a general rule, liable, it may be, to some exceptions, the plaintiff can not recover.—and it was error for the court to modify it, no circumstances appearing in the evidence that called for or upon which to base the modification.</p> <p>4. Although the deceased in such case was guilty of negligence contributing to the injury, yet, if the defendants were guilty of a higher degree of negligence, with which, when compared, that of the deceased was greatly disproportionate or slight, the plaintiff might still recover. But if the negligence of deceased was equal to that of defendants, a recovery can'not be had. Being the duty of the former to use prudence and care, if he failed to do so, and was guilty of negligence, to authorize a recovery, the negligence of the defendants must be clearly and largely in excess.</p> <p>5. Every person of ordinary intelligence is bound to know that a railroad crossing over a public highway, where cars are frequently passing, is a place of more than ordinary danger, and should use, at such place, greater precaution to avoid injury than at a place of less hazard. While all persons have a right to cross a railroad track at its intersection with a public highway, it is their duty to do so with all reasonable dispatch, and it would be negligence in an intelligent person to be on the track of a railway constantly used, unless for the purpose of crossing the same.</p> <p>6. If a person travel along a railroad track where cars arc frequently passing, even for the purpose of crossing a public highway, unless the highway is so obstructed as to render it necessary to follow the railroad’ track, he is guilty of such negligence as will prevent a recovery for any injury he may receive, unless there is a higher degree of negligence contributing to the injury on the part of the employees of the road.</p> <p>1. Damages—death resulting from, negligence. In an action under the statute to recover for the death of a person caused by the wrongful act, neglect or default of the defendant, the only question to be determined in estimating the damages, is the pecuniary loss resulting from his death to the widow and next of kin of such deceased person. The feelings of the widow and next of kin, their wealth or poverty, or any other fact than the pecuniary injury, can not be considered in assessing the damages. The fact that the widow is deformed and disabled can, in no wise, increase or diminish the amount of damages she may be entitled to recover.</p> <p>8. Same—in estimating measure of, for pecuniary loss. In such case the -support the widow would have been likely to receive from her husband, had he not been killed, is a proper and the controling element to be considered by the jury in arriving at the measure of compensation for the pecuniary loss sustained.</p>

Arthur A. Smith, Judge, presiding. This was an action of replevin, brought in the court below, by Finer against Cover. A trial resulted in a verdict and judgment in favor of the defendant. The plaintiff appealed.

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

This was an application made to the circuit court of Peoria comity, in the name of the people, on the relation of The Peoria and Rock Island Railway Co. for a writ of mandamus, against Henry C. Houston, town clerk of the town of Akron, in Peoria county, to compel such clerk to countersign certain bonds of the township, which had been executed by the town supervisor, and to which the relators claimed they were entitled.

<p>Appeal from the Circuit Court of Whiteside county; the Hon. W. W. Heaton, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>1. Married women—what constituted their separate property prior to the act of 1861. Money belonging to a married woman, coming to her from various sources other than her husband, during the years 1845 to 1848, and reduced to possession by the husband, became his property, although it was his design to invest it for the use of the wife; until so invested, it belonged to the husband.</p> <p>2. It was held, the mere fact that the money came to the husband in right of the wife, did not constitute it her separate property. So money, which came to her by distribution from her mother’s estate, was not separate property, nor money received under a will, the bequest being genera' to her, without any limitation of it as her separate estate, or for her exclusive use.</p> <p>3. In order to constitute money coming to the wife in such case, her separate property, that character must have been imparted to it by the instrument or power by which she was invested with her right to it.</p> <p>4. Same—of property held by the husband in trust for the wife. But whether money used by the husband in the purchase of an interest in land, belonged to the wife or not, such interest would become her separate property, if the conveyance thereof declared that the grantee, the husband, was to hold the title in trust for her. Except as against creditors, a husband may make a gift to his wife of property to the amount of a reasonable provision for her.</p> <p>5. Trusts—subsequent purchase by the trustee in his own nams. But where the interest so purchased in trust for the wife was a mere possessory right in the land, not derived in any way from the owner of the fee—being only a squatter claim upon canal lands owned by the State, in Cook county —and the husband afterwards purchased the fee from the canal trustees, at public sale, in his own name and with his own funds, without the reservation of any trust in respect thereto in favor of the wife, her separate interest under the former conveyance would thereby come to an end, and the entire estate in the land become vested in the husband, to the exclusion of any separate estate in the wife.</p> <p>6. The doctrine that a trustee is not permitted to deal, for his own benefit, in respect to the trust property, does not apply in such a case, because there was not any purchase of the subject of the trust, or any estate that ever liad any legal relation to it.</p> <p>7. Resulting trust—when it arises. To raise a resulting trust in such case in favor of the wife, on the ground that her money went into the purchase of the land, that fact must be clearly proved; it would not be inferred from the mere fact that the husband had in his hands sufficient money of the wife to make the purchase, at the time.</p> <p>8. A trust will not be raised by implication or operation of law, in contravention of public policy.</p> <p>9. Deed—how far conclusive upon the grantor as to the extent of interest conveyed. Where a deed purports to convey all the interest and title of. the grantor, it will be given effect accordingly, although he actually held a greater interest than either he, or tne grantee, at the time of the conveyance, supposed he owned. A party must know enough about his title, not, by his want of knowledge of it, to mislead a purchaser to his detriment.</p>

R. G. Montony, Judge, presiding. This was a suit originally commenced before a justice of the peace, in Kane county, by James Lynd, against Thomas McBride, to recover damages claimed by the plaintiff by reason of the hogs of the defendant entering his field and destroying his crops. The cause was removed into the court of common pleas, where a trial resulted in a verdict and judgment for the plaintiff. The defendant appeals to this court.

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

<p>Appeal from the Circuit Court of Lee County; the Hon. W. W. Heaton, Judge, presiding.</p> <p>The opinion states the case.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>The opinion states the case.</p>

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

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

<p>1. Homestead—whether the wife may have a remedy in respect thereto, in the life time of her husband. Where the husband has abandoned his wife, leaving her in possession of the homestead, but failing to provide her any support, if she be wrongfully ousted from the possession she is entitled to a standing in court, to maintain a suit in her own name, for the assertion of her right in respect to the homestead, even during the life time of her husband.</p> <p>2. Same—effect of a judgment in ejectment—omission of the wife to plead. Husband and wife executed a mortgage upon premises occupied by them at the time as a homestead, but there was no release of the homestead right. Afterwards, the husband abandoned his wife, leaving her in possession of the homestead, but providing her- no means of support. A sale of the premises was had, under a power in the mortgage, and the purchaser thereat subsequently brought ejectment against the husband, and recovered a judgment, and thereupon ousted the wife- from her possession by force : Held, the judgment in ejectment, so far as the right of homestead was concerned, was a nullity; and although a writ of possession issued upon such judgment would be sufficient, legally, to effect the purpose of expelling the wife from the premises, yet it would not impair or destroy the homestead right.</p> <p>3. Nor would the right of the wife, in such case, to assert her claim to the homestead, be at all impaired by her omission to plead it in the ejectment suit, as she was not a party thereto.</p> <p>4. Same—remedy of the wife in such case. In such case, the judgment in ejectment against the husband would be a bar to any remedy at law in behalf of the wife, to recover the possession under her claim of the homestead right; so she has her remedy in chancery against the party who ousted her under the judgment, to restore her to the proper enjoyment of that right.</p> <p>5. Same—of the proper adjustment of the rights of the parties. Upon bill in chancery filed by the wife, against the plaintiff in the ejectment suit, who thus expelled her from the possession of the homestead, for the purpose of asserting- her homestead right, the proper mode of adjusting the rights of the parties was determined to be, to take an account of the rents and profits received by the defendant, deducting therefrom the taxes paid by him and all necessary repairs put upon the premises; and inasmuch as the premises were worth over $1000, to make an order, in analogy with the statute, to set off the homestead in kind, and if that could not be done, that the premises be sold, unless the defendant would pay to the complainant $1000, the value of her homestead, aud the balance due for rents and profits, aud that the same should be a lien on the premises.</p> <p>6. Trust—whether it exists. A sale -was had, under a power of sale in a mortgage, of premises occupied by the mortgagors, husband and wife, as a homestead, of which, however there was no release in the mortgage. At the sale there was an agreement between the wife and the purchaser, that the former should have the right of redemption therefrom, within one year, by the re-payment of the purchase money, with twenty-five per cent interest. Other persons present at the sale, were ready and willing to secure the property for the wife, but for this agreement. Some two years after the sale the purchaser recovered a judgment in ejectment against the husband, under which he ousted the wife from possession, the husband in the meantime having abandoned the wife, leaving her without the means of support. Within the year after the sale the wife had an interview with the purchaser on the subject of the redemption, and could then have obtained the money by mortgaging the premises, which he would not permit to be done. No further effort was made by her towards redemption for six years after the sale, when she filed her bill in chancery against the purchaser, seeking thereby to establish a trust relation between him and herself in respect to the property: Held, the relation of trustee and cestui que trust did not exist. The laches on her part was inconsistent with such relation, the purchaser having for five years after the time of redemption expired, been permitted to pay taxes, and make repairs and improvements on the premises, involving a large expenditure of money.</p>

E. S. Williams, Judge, presiding. This was an action of replevin, brought by Hutt, against Bruckman and Bogue, to recover possession of a planing mill and the machinery and fixtures belonging thereto. It appears that Hutt had previously purchased the property in controversy from Bruckman, and executed therefor his three promissory notes, to secure which he also gave to Bruckman a mortgage on the property purchased.

Charles H. Wood, Judge, presiding. This was an action on the case, brought in the court below, by Miller, against the railroad company, to recover for a number of hogs and sheep, belonging to the plaintiff, and which were killed on the defendants’ road. A trial resulted in a verdict and judgment for the plaintiff. The defendants appealed.

<p>1. A release of errors, although presented in writing, signed by the parties in whose name a writ of error was sued out, can not be properly brought to the notice of the court except by being pleaded.</p> <p>2. Cross bill—whether necessary—awarding writ of possession in suit for partition. Upon bill in chancery for partition, brought by a part of several heirs against their co-heirs, to which a party in possession claiming as lessee of a portion of the premises, was also made a defendant, it is proper, upon the lease being decreed to be void, and the portion of the premises so claimed under the lease assigned to some of the heirs who were defendants in the bill, to award to the latter writs of possession against their co-defendant claiming under the void lease, without a cross bill being filed for that purpose.</p>

<p>1. Pleading-declaration in trover, to recover money lost at gaming. In an action of trover, under the statute, brought by the loser against the winner, to recover money lost at gaming, it is not essential, in order to give the court jurisdiction of the subject matter of the suit, that the declaration should set forth the special matter, or so refer to the statute as to show the action was under its provisions. The statute authorizes the declaration to be in the usual common law form of a count in trover, and such a count will support a judgment in favor of the plaintiff.</p> <p>2. But the declaration in such case should conclude, “ whereby an action hath accrued to the plaintiff, according to the form of the statute ” against gaming, and failing so to conclude, it is bad on special demurrer.</p> <p>3. Same—waiver by pleading. If the defendant, however, pleads to the declaration, he thereby waives the defect occasioned by the omission of such conclusion.</p>

Joseph E. Gary, Judge, presiding. This was an action of debt, brought in the court below by Lingle against Evans and Williams, upon an appeal bond executed by the defendants, in an appeal taken from a justice of the peace in Cook county, to the circuit court, and there dismissed.

S. L. Richmond, Judge, presiding. This was a proceeding in chancery, commenced in the circuit court of Bureau county, to set aside a decree rendered in that court, in 1855, on the ground that the decree was obtained by fraud, and taken by change of venue to Putnam county. The opinion contains a sufficient statement of the case.

Writ of Error to the County Court of LaSalle county; the Hon. P. K. Leland, Judge, presiding. On the tenth of May, 1865, Shaw executed and delivered to Bowen, a mortgage upon certain lots in the city of LaSalle, to secure certain promissory notes due to the latter.

<p>1. Partnership—application of funds of a firm, and those of individual members of a firm. It is a uniform rule that partnership property shall be applied to the partnership debts, to the exclusion of the creditors of the individual members of the firm, and that the creditors of the latter should be first paid from the separate effects of the debtor before the partnership creditors can claim anything.</p> <p>2. So where an individual member of a firm deposited with a creditor of the firm a promissory note belonging to the former, as collateral security for a particular debt owing by the firm to such creditor, and afterwards paid that debt, the party so depositing the collateral may recover the proceeds thereof, the creditor receiving it having in the mean time collected the same, notwithstanding there may remain other unadjusted claims due from the firm to such creditor, the firm being solvent at the time, and the separate property of one partner not being liable to be taken, in the first instance, to satisfy partnership debts.</p> <p>3. Sale of stocks—in hands of an agent. The owner of certain shares of stock in an insurance company, placed them in the hands of a person who was a member of. a partnership firm, and gave him a power of attorney to sell them. The stocks were transferred, for convenience, by this agent to the firm of which he was a member, and upon the question whether the firm had appropriated them to their own use so as to render them liable to to the owner therefor, as in case of a sale, it was held, upon the facts, there was no such appropriation, the firm, as such, never having had anything to do with the stocks, the transfers to and from the firm being the transactions of the individual partner, alone, who held the power of attorney.</p>

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

Charles Turner, Judge, presiding. This was a suit brought by Devore & Crittenden, against Puterbaugh, to recover the balance of an account alleged to be due the plaintiffs. A trial in the circuit court resulted in a verdict and judgment in favor of the plaintiffs for $42.50. The defendant appealed. The only question presented is, whether, under the evidence, the account was fully paid.

<p>1, Riparian owners—who so considered—of the owners of canal lots in the city of Chicago. Upon certain land situate in the original town of Chicago, which was granted by the general government to this State and which constituted a part of the canal lands, the canal commissioners laid off certain blocks and lots, some of the lots fronting on the East on Canal street, which was bordered on the side opposite these lots by the Chicago river: Reld, the owners of lots fronting on that street on the side separated from the river by the street, had no right of private property merely by virtue of such ownership, in land that might lie on the opposite side of the street immediately upon the river bank.</p> <p>2. Nor is there any act of the legislature giving to such owners an equitable right to acquire title to land lying opposite their lots, between the street and the river, to the exclusion of other persons. The legislation on that subject left it to the discretion of the common council of the city to determine to whom the wharfage lots should be conveyed.</p> <p>3. Limitation act of 1839—application as to public and private rights. Where the title and possession of a party in land claimed by him are questioned by an individual, who claims the premises as his own, and the party in possession invokes for his protection the act of 1839, the question can not arise whether the statute would run against the public, on the allegation that the premises in controversy constituted a part of a public highway, because the right against which the statute would be invoked in such case would be a mere private claim.</p> <p>4. Same—of the payment of tarns. While a defendant can not claim the benefit of the limitation act of 1839, unless he has actually paid the taxes, even though illegally assessed, because not within its spirit, yet if he has paid them for the time required, he can not be denied its protection merely on the ground that the assessment was illegal,—as that the premises were .assessed by a wrong description.</p>

<p>1. Allegations and proofs—variance. In an action against a railroad company to recover for injuries received by the plaintiff by reason of the alleged negligence of the company, it was averred in the declaration that the accident happened while the plaintiff was acting as a hrakeman on a freight train of defendants, while the proof showed he was acting as a brakeman in switching cars at a station, in making up a freight train: Held, there was no variance in respect to the character of the traiu.</p> <p>2. Negligence in railroads—relative duties of the companies and their servants. It is the duty of railroad companies to furnish to their employees safe materials and structures to be used by the latter in the performance of their duties; and although the machinery employed upon a railroad may he furnished through the servants of the company, yet that fact will not relieve the company from their liability to other employees, in different departments, who may receive injuries by reason of defective machinery.</p> <p>3. So where a brakeman upon a freight train was injured in descending a ladder on one of the cars, in obedience to a signal from the engineer, the injury being occasioned by the absence of some rounds from the ladder, it was held, the brakeman should not be prejudiced as to his right of recovery against the company, by the negligence of those servants of the company having charge of the inspection and repair of their cars, as they were superior to him in authority, aud notice to them of the defect was notice to the company.</p> <p>4. It is also the duty of the servants of the company to see that machinery used by them in the performance of their duties is in fit condition for use, aud to report defects to the company; but this is subject to the qualification that the servant so using the machinery has knowledge of its defects, or, by reasonable precaution, might have such knowledge.</p> <p>5. So if a brakeman on a freight train receives injuries in attempting to descend a ladder on one of the cars, on account of the absence of some rounds from the ladder, should it appear that the car having the defective ladder had been used while he was brakeman on the train of which it was a part, he would be presumed to know of its condition, and required to govern his conduct, in the use of the ladder, in reference to such defect. But whether the brakeman would be chargeable with such knowledge of the defect as to impair his right of recovery for the injuries, is a matter for the jury to determine from all the circumstances in proof.</p> <p>6. Excessive damages. In such a case the brakeman, in attempting to descend the ladder while the train was in motion, in obedience to a signal from the engineer, lost his hold by reason of the defect mentioned, and fell to the ground, the wheels of the cars passing over his legs and crushing them so that amputation became necessary, a verdict of §18,000 recovered by the brakeman was regarded so excessive that it should be set aside.</p> <p>7. In such an action against the company, the plaintiff is entitled to compensation, not to vindictive damages, as corporations are not liable to more than compensatory damages, unless the injury is wanton or willful.</p> <p>8. Although the plaintiff was almost unfitted for business by reason of his injuries, yet the company should not have been required to render to him a sum which would produce a greater income than he could have earned had he not been injured.</p>

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

<p>1. Agent—power to submit to arbitration. An agent can not submit the cause of his principal to arbitration without express authority from his principal so to do.</p> <p>2. Evidence—the admissions and declarations of an agent or servant do not, in general, bind the principal. To be admissible in evidence, they must enter into and form a part of the res gestee,—must be in the nature of original, and not hearsay, evidence. They must be made not only during the continuance of the agency, but in regard to a transaction depending at the time.</p> <p>3. In an action against a railroad company for the killing of the plaintiff’s cattle by an engine of the defendants, it was held, that the declarations of the engineer in charge of the engine, made subsequent to the happening of the accident, at a place distant therefrom, and at a time when the engineer was not transacting or doing any business of the company in relation thereto, were inadmissible as evidence to bind the company.</p>

John A. Jameson, Judge, presiding. This was a bill in the Superior Court of Chicago, filed August 15, 1866, by appellee, against appellants, and others as subsequent. incumbrancers, to foreclose three certain mortgages alleged to have been made by appellants to appellee, upon the south-east quarter of section 32, town 37, north range 13 east, situate in Cook county, Illinois.

<p>1. Parol evidence—to correct a mistake in a wiU. The law requires that all wills of lands shall be in writing, and extrinsic evidence is never admissible to alter, detract from, or add to, the terms of a will., '</p> <p>2. So where the testator devised a “ tract of land situate in the-town of Joliet, Will county, Illinois, and described as follows: the west half of the south-west quarter, section thirty-two, township thirty five, range ten, containing eighty acres, more or less,” and “ all that part or parcel of land described as the south half of the east half of the south quarter, section thwenty-one, in township thirty-five, range ten, containing forty acres, more or less,” it was held, that parol evidence was not admissible for the purpose of showing the testator intended to devise land situate in different sections from those mentioned in the will, and that the draughtsman of the will, by mistake, inserted the wrong numbers.</p> <p>3. In such case, the words of description being unambiguous, and the thing devised certain and specific, no extrinsic evidence was required to identify the thing intended, nor admissible to show that a different thing was intended.</p> <p>4. Partition—where improvements heme been made by one of the tenants in common. In making partition of land, where one of the tenants in common has made improvements thereon, the court should direct the portion improved to be assigned to him who made the improvements, and in case partition can not be made, to allow him a reasonable remuneration from his co-tenants who receive the benefit of the improvements in the increased value of the land, and it is error to omit such direction.</p> <p>6. Specific performance—parol promise by a parent to convey land to his child. Where the owner of land made a parol promise to his child to convey the same to him, and in consequence of such promise the latter went into- possession and made valuable improvements thereon, it was held the promise rested upon a valuable consideration, and the promisee, upon proper bill filed, would be entitled to a specific performance. There seems to be no important distinction between such a promise and a sale.</p>

<p>1. Set off—former recovery, and appeal therefrom pending. A defendant in an action of assumpsit may plead as a set off a claim upon which he has already obtained a judgment against the plaintiff, from which the latter has taken an appeal which is still pending.</p> <p>2. Same—effect of such a plea as a satisfaction of the judgment—injunction. The filing of such a plea, and offering evidence under it, will operate as a satisfaction of the judgment previously obtained by the defendant, and will enable the plaintiff to enjoin its collection, in the event of its affirmance in the appellate court. .</p> <p>3. Former recovery—presumption as to what was embraced therein. If .a judgment be recovered in a former action for want of a plea, etc. it will be considered that the plaintiff therein brought such action, and recovered, for all the causes of action that might have been recovered in that form of action, and which he knew of at the time of bringing it.</p> <p>Appeal from the Circuit Court of DeKalb county; the Hon. Theodore D. Murphy, Judge, presiding.</p> <p>The opinion states the case.</p>

William K. McAllister, Judge, presiding. This was an action of assumpsit, brought by Doolan against Queen, to recover for work and labor done and performed and materials furnished in the erection of a house by the plaintiff for, the defendant, under a contract executed by the former, as follows: “Chicago, October 3, 1868. “I agree to build and complete a dwelling house * * * the same to be a fac simile, in height, width, depth, containing the same number of parlors, * * bath…

<p>Exceptions—when necessary. Unless it appears from the record that exception was taken to the giving of an instruction in the court below, no question can be made upon it in this court.* </p>

<p>Instructions should be based on the evidence.</p>

Edwin S. Leland, Judge, presiding. This was an action of assumpsit, commenced May 25, 1868, by Frederick H. Schroeder and Thaddeus Rude, a copartnership firm, doing business under the name and style of Schroeder & Rude, against George T. Cook and Jabez C Crooker, a partnership firm doing business as Cook & Co. Defendants pleaded the general issue, and subsequently, on the fifth of November, 1868, a plea of set off and other special pleas were filed.

<p>1. Attorney at law—whether women, married or single, can be licensed as such. The ruling in the case of Carpenter et al. v. Mitchell, 50 Ill. 470, that the act of 1861, securing to married women the enjoyment of their separate property, gave to them no power to contract, except as to matters incident to, and growing out of, their right to hold and enjoy their separate property, is adhered to.</p> <p>2. So, even under the modifications of the rules of the common law on that subject, made by the act of 1861, a married woman would be bound neither by her express contracts, nor by these implied contracts which it is the policy of the law to create between attorney and client, and, therefore, if for no other reason, a married woman could not be granted a license to practice as an attorney at law in this State.</p> <p>3. But apart, from the disability arising from coverture, no woman, married or single, can be admitted, under the laws of this State, to practice as an attorney at law.</p>