Volume 57 — Illinois Reports

<p>1. Deed of trust—sale under, ty agent. Notwithstanding an agent appointed by a trustee, with a power to sell the trust property, can not legally sell it in the absence of the trustee, still, a person holding simply the legal title, without having any equitable interest whatever in the trust property, can not in equity question such a sale.</p> <p>2. Deed of trust—mortgager—judgment and sale. Where a person held real estate, and mortgaged it to secure a debt he owed, then sold the property, subject to the mortgage, and a third person recovered a judgment against the purchaser, and had an execution thereon, and subsequently the purchaser executed a mortgage to another person, and afterwards made an assignment of the mortgaged premises with other real estate to a trustee for the benefit of his creditors, and a few days afterwards the sheriff sold the property under the execution, in his hands, when the trustee holding for the benefit of creditors, had the land bid in b)r and in the name of his clerk, but the trustee, out of the trust fund in his hands, paid the bid to the sheriff by his clerk, and charged it in his account of the trust fund, and the clerk paid nothing on the purchase, but he, some eleven years afterwards, procured a sheriff’s deed for the property : Held, that he acquired no equity to or in the property by his sheriff’s deed, and had no right to question an irregular sale under a prior mortgage.</p> <p>3. Mortgage—prior lien—sale under. Where a prior mortgage falls due, and the property is sold by a trustee under a power in the deed, and a junior mortgagee becomes the purchaser at such sale, pays the money and enters into possession of the propert)r and continues the possession: Held, such a person will not be disturbed bjr a person clothed merely with a naked legal 'title, but having no equitable rights; nor can such person redeem from the sale under the mortgage.</p> <p>4. Judgment—satisfaction. Where the assignee bid in the trust property in the'name of his clerk, and paid the sheriff the amount of the judgment out of the trust funds in his hands, that operated simply as a satisfaction of the judgment, and let in the junior incumbrance next in rank to the first mortgage on the property, and if the purchaser from the first mortgagor, were to be allowed to redeem, he would be required to pay not only the bid by the second mortgagee under the sale on the first mortgage, but the amount of the second mortgage to him.</p> <p>5. Equity—relief given or refused. A court of equity gives or witholds its remedies according to the equities of the case. A suitor must not only come to the court with clean hands, but he must come as well with rights in the subject matter entitling him to equitable relief. The court will not disturb rights of others on the application of one who has no equitable interest. In administering equitable relief, the court looks through forms to the substance of transactions. .</p> <p>6. Same—right to relief. As a general rule, the holder of the legal estate under the mortgagor is a proper person to redeem, whether he holds as trustee for others or in his own right by a voluntary conveyance from the mortgagor, but when such grantee asks something more than the mere right to redeem, as to set aside a sale previously made under the mortgage, on the ground of irregularity in conducting it, but which was fair, and at which . a third party became a purchaser in good faith, and the sum paid with his own incumbrance exceeded the value of the property, such holder of the legal title must show that he has equities before he can redeem.</p> <p>7. Same—relief, to whom. It is conceded that the grantee of the mortgagor, whether claiming as trustee for others or in his own right, and wheth er a purchaser for value or a mere volunteer, has the same right to set aside such a sale as the mortgagor himself, but a court of equity would not set it aside for the benefit of one who has acquired the naked legal title as a mere formal purchaser, paying nothing, not expected by others to acquire any benefit, or intending himself to do so at the sale.</p> <p>8. Allegations and peooes—parties. Where the holder of the legal title is the trustee, and he claims the right to redeem and set aside sales in the way of his title, he should frame his bill with that view, and not claim by his bill to do so in his own right and for his own benefit. Having claimed in the bill relief for his own benefit, he can not urge that the proceedings are for the benefit of others. Relief must be granted according to the frame and prayer of the bill, and if seeking to redeem for others he should make them co-complainants, and have all persons in interest before the court.</p> <p>9. Redemption—who home the right. In such a case, the mortgagor, his assignee or the creditors through the trustees, are the only persons who can claim the right to redeem, and they are not seeking the right in this case. "Until they complain the court will not decree a redemption or set aside the sale, at the solicitation of a person having no equitable rights.</p>

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

Writ of Error to the Circuit Court of Marshall county; the Hon. Samuel L. Richmond, Judge, presiding. This was an action on the case, brought by the plaintiffs against the township of Steuben, in Marshall county, to recover for the death of Charles Doran, occasioned, as alleged, by the neglect of the defendant to keep a certain bridge in repair. Judgment was rendered for the defendant, and the plaintiffs bring the record to this court

William A. Porter, Judge, presiding. This was an action of replevin, brought by Aaron H. Foster, in the Superior Court of Chicago, against Charles W. Constantine, to recover the furniture and lease of the Pacific House, in Chicago. The facts involved appear in the opinion of the court.

The general subject matter of this controversy is, lot No. two, block fifty-one, School Section Addition to Chicago, situate upon the corner of Canal and Adams streets in said city, and being about sixty-four feet upon Canal and one hundred feet upon Adams street. The particular subject matter is the south thirty-three feet, of the sixty-four fronting upon Canal.

<p>Writ of Error to the Circuit Court of Mercer county ; the Hon. Arthur A. Smith, Judge, presiding.</p>

Writ of Error to the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding. This was. a suit in equity, brought by Thomas Wallace, in the Will circuit court, against Dudley McLaughlin, for the purpose of enjoining the further prosecution of a suit in ejectment in that court, for the recovery of a certain tract of land sold by the latter to the former.

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

<p>1. Railroad election—-for subscriptioiv—registry of voters. At an election in a township for and against subscribing stock to a rail road company, under the charter which does not require a registry of the voters, the registry law of 1865 does not apply to such an election, the presumption being that this should be held like other township elections. But if a registry was required, the court does not hold, that its omission would avoid bonds in the hands of innocent holders.</p> <p>2. Election—majority of the voters of the town—majority cast. Where the charter authorizing the election, provides that when a majority of the votes shall be for subscription, it shall be made, it refers to a majority of the votes cast, and not a majority of the voters residing in the township.</p> <p>3. Tax—levied by auditor—excessive. Where it appears that the Auditor of Public Accounts has levied a larger sum than is necessary for the payment of the annual interest on bonds registered in his office, under a specified election, and there is no allegation that no other bonds of the town are so registered in the auditor’s office, the. court will not presume the levy is excessive; that must be shown.</p> <p>4. Auditor—power to levy tax—constitution. The act of the 16tli of April, 1869, making it the duty of the Auditor of Public Accounts to ascertain the amount of interest that will accrue on town and other bonds registered in his office, and certify the amount to the county cleric, to be by him extended on the collector’s books, and collected in the manner State revenue is collected, is not violative of sec. 5, art. 9, of the constitution of 1848. The last clause of that section vests the legislature with the power to require all property of individuals in the corporate limits, to be taxed for the payment of debts contracted under authority of law. The first-clause is a limitation on the power of the general assembly’to levy a tax or create a corporate debt, or to authorize others to do so, but the latter clause is imperative, that the general assembly shall require all property within the corporation to he taxed for payment of corporate debts that have been created, and operates as an express authority to impose taxes to pay such debts, nor does it limit their power in the choice of the instruments for the purpose.</p> <p>5. That section does not provide, that the legislature shall require such tax to be levied through the corporate authorities, but they may select the agents to levy and collect the tax for the payment of the debt. There is a broad distinction between the two clauses; the first only authorizes that body to confer power to levy taxes for corporate purposes, and to create a corporate debt; but the last clause fully empowers the legislature to cause taxes to be collected for the payment of corporate indebtedness when created. This provision of the law is not unconstitutional.</p> <p>6. Taxes—when unauthorized. Under the 7th sec. of the act of 1869, it is unlawful to register bonds with the Auditor of State, until the railroad in aid of which they have been voted, shall be completed near or into the limits of the corporation, and cars are running thereon; and none of the benefits of the act can be claimed, unless the subscription or donation creating the corporate debt, was first submitted to an election of the legal voters within the corporation, under provisions of laws of the State, and a majority of the legal voters living therein were in favor of such aid, subscription or donation: Held, that where any of these requirements are wanting, the language of the act being imperative, the auditor has no power to make the assessment of the tax, and the courts will enjoin its collection.</p> <p>7. State credit—to corporations. The 38tli sec. of art. 18 of the constitution of 1848, which prohibits the State from giving its credit to or in aid of any individual, or association or corporation, is not violated by levying and collecting such a tax as this. It is not declared to be a State tax; the auditor’s certificate shows it to be a local tax, and for municipal purposes. The tax is levied on property in the township, and no portion is taken from the State revenue, general or special, to aid the railroad company, or to pay the debts of the township. It is not, directly or indirectly, giving the credit of the State in aid of this or any other road, individual or corporation. The fact that it was levied by the auditor, extended in the column of State taxes by the county clerk in the collector’s books, was mere form, and in nowise changed its nature; and it,-when collected, is kept as a separate fund, and applied to the local purpose for which it was collected. Hence, the levy of this tax did not violate the latter provision of the constitution.</p>

<p>1. Descents—posthumous heir. The true construction of our Statute of Descents, is, that a posthumous child inherits of an intestate father precisely as do his children born in his life time. On the death of a father, the title to his real estate vests in the posthumous child, although in ventre sa mere, precisely as though such child had been previously born.</p> <p>2. Same—party to suit to divest title. Such a child can not be divested of its title to lands thus inherited, by a proceeding in a court, unless made a party; nor will the form of action, whether in chancery, at law or under the statute, make the slightest difference. A person must have an opportunity of being heard before a court can deprive him of his rights, and this rule applies equally to superior and inferior jurisdictions. Such a person, not having been made a party to the bill, his rights are not cut off by the decree, the sale or the administrator’s deed, and he can recover from those claiming his title.</p> <p>3. Summons—service—return. The sheriff indorsed on a summons in chancery this return: “Served this writ on the within named Mary O’Conner and Charles It. O’Conner, the others not found in my county, the 36th day of August, 1858Held, the return of service insufficient to confer jurisdiction of the persons of the defendants.</p> <p>4. Same—return—what it must show. The return of service must show it was served by copy, in chancery, or by reading, a(t law; it must show the time, the manner and upon whom served, and for the want of these particulars the court will fail to acquire jurisdiction. There must be a legal service, and it must appear from the return that it is such service as gives the court jurisdiction over the person of the defendant.</p> <p>5. Service—;finding of the court in decree. When the court, by the decree, finds there was service, that, like any other finding of the court, can never be contradicted in a collateral proceeding, by parol or other evidence, outside of the record in that proceeding. It, however, may be by other portions of the same record. But such a finding is conclusive in a collateral proceeding, unless thus rebutted.</p> <p>6. Same—presumptions in favor of. Where a court of general jurisdiction has proceeded to adjudicate in a cause, it will be presumed that the court had evidence that there was such service or appearance as conferred jurisdiction of the person. The question is primary and must be first determined, but the presumption may be rebutted. If the same record shows insufficient service, and it fails to show the court otherwise acquired jurisdiction, then the presumption is rebutted, and it will be held the court acted on insufficient service. When the return appears in the record, and there is no finding of the court, from which it may be inferred that-the court otherwise acquired jurisdiction, it will be held the court acted on the service appearing in the record.</p> <p>7. Same—insufficient■—a nullity. Where service of summons is insufficient to confer jurisdiction, the decree as to the defendants is a nullity, and may be questioned in a collateral proceeding. Where service is by summons, parol evidence will not be heard to prove or to aid it. It is otherwise when the service is by publication.</p> <p>8. Same—service defective. The return in this case appeared in the record, and is defective, in not showing how it was made, and as parol evidence could not be received to aid it, it can not be presumed the court acted on other evidence than the return, and it rebuts the finding of the court that there was service.</p> <p>9. Jubisdiction—part of heirs—parties. Although part only of the heirs of a deceased person are made parties to a proceeding to sell real estate to pay debts of the intestate, still the court will acquire jurisdiction of the subject matter, as the statute does not require all parties in interest to be before the court before it can acquire such jurisdiction. It is the death of the party seized of real estate, the grant of letters testamentary or of administration, his indebtedness, and filing the petition, which confer jurisdiction. It is necessary to make all persons in interest parties, that their rights may be adjusted, and it may be error not to do so, but that does not defeat the jurisdiction of the court. A decree in such a case is binding on the parties to it.</p> <p>10. Admiklstbatbix—guardian. When the administratrix was also guardian of the heirs, whose property she applied for leave io sell, such fact, if illegal, would not prevent the court from acquiring jurisdiction, and the fact that she, as guardian, was not made defendant, if erroneous, did not go to the jurisdiction.</p> <p>11. Notice—administrator's sale. The omission of an administrator to re-advertise tbe property for an adjourned sale, does not render the sale void. The 106th section of the Statute of Wills imposes a penalty for failing to comply with the statute, in making such sales, but declares such omission shall not be sufficient to defeat the sale.</p>

<p>1. Pleading—before justices of the peace. Although not strictly formal, a plea of non-assumpsit, sworn to, and not objected to by the plaintiff, will put in issue the execution of a promissory note in a justice’s court.</p> <p>2. Pleading and Evidence. It is error in the circuit court to admit a note in evidence, when its excution is thus denied, without proof that it was executed by the defendant.</p> <p>3. Same. Where there was no evidence of the execution of the note sued on, but an admission by the defendant of the genuineness of a note not identified as the note in controversy, and where the evidence strongly tended to support tlie defense that the note was obtained by fraud and circumvention : Held, that it was error to instruct the jury that defendant was estopped to deny the execution of the note, and that the jury should not consider any evidence to that effect, in making their verdict.</p> <p>4. Promissory note—-fraud and ciraurmention. Where the evidence shows a promissory note was obtained by fraud and circumvention, and the defendant had used due diligence when the note was obtained, the defense is complete.</p>

Arthur A. Smith, Judge, presiding. This was an action of forcible entry and detainer, brought by Wilson M. Graham, before a justice of the peace of Henderson county, against Nathan H. Jamison, to recover the possession of the south-east quarter of section 17, township 12 north of range 4, west of the 4th principal meridian.

<p>1. Pleading and Evidence. In an action of slander, for charging the plaintiff with having committed fornication, and the plea of justification averred that plaintiff had been guilty of fornication, without averring any time, it was error in the court to restrict the proof of her having coinmittcd fornication to two years before the words were spoken by defendant. The plea not being limited as to time, the proof should not have been. Proof of the truth of the plea without reference to when the act was committed, was pertinent to the issue, and should have been admitted.</p> <p>2. It was improper to admit evidence of the fact that there was a prior personal difficulty between defendant and the father of plaintiff, as it did not tend to prove actual malice against the plaintiff, and was not pertinent to the issue.</p> <p>3. Where the plea of justification set up the fact that the plaintiff had been guilty of fornication, it was error to instruct the jury that to maintain the plea the defendant must prove the words charged were true, on the grounds that plaintiff, although an unmarried woman, was guilty of fornication, and had been delivered of a child, and it was necessary that such alleged facts, constituting the justification, should be proved by clear and satisfactory evidence, and if not so proved, the defense would fail. Nothing being in the plea in regard to the plaintiff’s having been delivered of a child, the instruction was too broad, and should not have been given. Such an instruction was well calculated to mislead the jury.</p>

<p>Appeal from the Circuit Court of Will county; the Hon Josiah McRoberts, Judge, presiding.</p> <p>. The opinion states all the facts necessary to an understanding of the case.</p>

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

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. Benjamin B. Sheldon, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. Benjamin B. Sheldon, Judge, presiding.</p>

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

<p>1. Special Assessments—whether collectible out of personal property. Where a city charter provides that all taxes and assessments shall be a lien upon the real estate upon which they are imposed, and on personal estate from and after the delivery of the warrant for the collection thereof until paid, and any personal property belonging to the debtor, may be taken and sold for payment of taxes on real estate, and all taxes and assessments, general and special, shall be collected by the collector, in the same manner and with the same powers as are given by law to collectors of State and county taxes: Held, that this provision only confers power on the collector to sell personal property for the payment of taxes; that taxes and assessments are a lien on real estate upon which they are imposed, and taxes are a lien on personal property.</p> <p>2. Although the charter confers upon the city collector the same power to collect taxes and assessments as is possessed by collectors of State and con uty taxes, the general revenue law's exjiressly authorize the collection of such taxes from personal property, and that real estate shall not be sold for, taxes while there is personal property, out of which it may be collected. And there being a plain distinction between a tax and an assessment, the one being a burden and the other an equivalent for the enhanced value of the property assessed, derived from the improvement: Held, that the general revenue law confers no power on the city collector, by the provision of the charter, to sell personal estate in satisfaction of any assessment.</p> <p>3. Statutes—construction—taxes—assessments. The act of the 1st of March, 1854, prescribing the mode of selling real estate, for the non-payment of taxes and assessments, makes a distinction between taxes and assessments, by making them distinct subjects of two sections.</p> <p>4. When a statute gives a new power and also provides the means 'of executing it, those claiming the power can execute it in no other manner, and where power to make assessments is given, their payment can only be enforced in the method prescribed by the statute.</p> <p>5. The charter having provided that on the non-payment of such assessments, the collector shall apply to the county court for judgment against the land, and that the court shall render judgment therefor and issue a precept to the sheriff to sell the land, makes it a proceeding in rem, and the only peril the owner incurs is the loss of his lot.</p> <p>6. Cobpobation—powers. A corporation must show a grant, either in terms or by necessary implication, for all the powers it attempts to exercise, and especially so when it claims the right, by taxing or otherwise, to divest individuals of their property without their consent.</p> <p>7. Equity—-jurisdiction. In a case of this character, it is too late to raise the question of equitable jurisdiction, for the first time, in this court.</p>

Edwin S. Leland, Judge, presiding. George G. McManis brought two suits in debt, in the Bureau circuit court, against John S. Miller and Jacob Chritzman., The alleged ground of recovery was for the use of a patent right, which plaintiff held for the manufacture and sale of the “ Luper Patent Corn Cultivator,” in the counties of Bureau, Knox, Henry and Stark, in this State. The claim was based on two separate contracts, the first a written, and the second a verbal contract.

<p>1. Plea in abatement—sending process to a foreign county. The defendant in an action of assumpsit commenced in the county of Cook, pleaded in abatement that, at the time of the commencement of the suit he was a resident of McDonough county, and had been ever since; that he was not found or served with process in the county of Cook, hut that he was served with process in the county of McDonough; that the cause of action arose in the county of McDonough, and not in the county of Cook; that the contract upon which the action was brought was not actually made in the county of Cook, and that the same was not, nor any part thereof, made specifically payable in the said county of Cook: Held, on demurrer, the plea negatived every material fact necessary to give the court jurisdiction of the person, and was sufficient.</p> <p>2. Same—surplusage. The clause in the plea which alleged “ the cause of action arose in the county of McDonough, and not in the county of Cook,” presented an immaterial issue, under the act of 1861, and might be rejected as surplusage.</p> <p>3. Same—middle initial letter in a name. The omission in such a plea, of the middle initial letter in the name of the plaintiff, is of no importance, it not being regarded as any part of the name.</p> <p>4. Same—whether certain facts should he negatived. Where the record shows affirmatively that there was only one defendant, and that the suit was not brought under the attachment laws of the State, it is not necessary to allege those facts in the plea.</p> <p>5. Same—whether an answer to several counts. A declaration in assumpsit contained three counts; a special count on a sight draft, and two common counts. A plea in abatement, alleging “ that the contract upon which the action was brought was not actually made in the county ” in which the action was brought, “ and that the same was not, nor any part thereof, made specifically payable in ” that county, was held sufficient as an answer to the whole declaration. The term contract, as used in the plea, could be held to apply to the contract declared on in the several counts, or to each contract in the several counts.</p> <p>6. Same-—whether aided by stipulation. However, a plea can not be aided in that regard, by reference to a stipulation that the contract embraced in the special count, was the sole cause of action relied on. The effect of such stipulation would be simply to limit the proof to that cause of action.</p> <p>7. Same—degree of strictness required. Such great strictness has never been required in pleas in abatement of this character as in pleas properly to the jurisdiction of the court.</p>

<p>1 Practice—-affidavit 'of merits. Where a plea of usury in a suit in the Superior Court of Chicago, averred that defendant had paid one hundred and fifty dollars for forbearance in the payment of §3,850, for seventy-five days, and the affidavit of merits required by a rule of that court stated that the note sued on was given for the balance due on another note and that defendant paid one hundred and twenty-five dollars for forbearance in the payment of such balance for seventy-eight days: Held, that the affidavit of merits was insufficient, inasmuch as the defense it disclosed could not be given in evidence under the plea of usury.</p> <p>2. Plea—variance. Where a plea of usury averred the payment of one hundred and fifty dollars to procure forbearance, and the evidence showed but one hundred and twenty-five dollars thus paid: Held, there was such a variance as to exclude the evidence. The defense of usury being penal in its nature the proof must be strict to sustain the defense.</p> <p>3. Non assumpsit—evidence of usury under. As usury rendered the contract void at the common law, it could be proved under the plea of non assumpsit, like any other defense which showed the contract void, released or discharged. But under our statute the creditor only forfeits the entire interest, and hence the defense does not render the contract void or defeat a recovery of the principal, and the reason for allowing the defense under the plea of non assumpsit does not apply, and the defense of usury must be made by special plea, under our statute.</p>

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

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

Ebastus S. Williams, Judge, presiding. This was a bill in chancery filed by Jesse Spaulding and Henry H. Porter, in the Lake circuit court, against James I. Mozier, Joseph F. Hubbel and George H. Bartlett, to correct a mistake in a chattel mortgage, and to enjoin the sale of the property under an execution.

<p>1. Appeal—when it will lie. Where a corporation is formed, under the general law of 1859, for the purpose of constructing plank, gravel or macadamised roads, and authorized to condemn lands therefor, by presenting a petition to a judge of a court of record for the appointment of commissioners for the purpose, and where commissioners have been thus appointed and returned their report into court, and it has been approved by the court, the order of approval becomes a final judgment, from which an appeal lies to this court, notwithstanding the act providing for the condemnation is silent as to an appeal or writ of error.</p> <p>2. A judgment before a justice of the peace is final unless the law gives an appeal. The circuit courts have no inherent power to try appeals from inferior tribunals, and can only entertain them by virtue of statutory power.</p> <p>3. In cases in which the statute declares the action of an inferior tribunal to be final, and prohibits an appeal or writ of error, such action must be held conclusive, unless it violates a constitutional right. But parties have the right of appeal from the circuit to the supreme court, where the judgment or decree is final and relates to a franchise or freehold.</p> <p>4. Judgment—;final. Where, under the statute, the petition -was presented to the court, commissioners were appointed, made their report, the clerk recorded the orders, and the court confirmed the report : Held this constituted a condemnation of the land by which the title passed to the corporation. Such a judgment relates to a freehold and is within the constitution and statute which authorizes an appeal.</p> <p>5. J cjrisdiction. In such a case the presentation of the petition confers jurisdiction.</p> <p>6. Petition. Where the statute declares “ the directors may present a petition,” it is fully complied with when the petition is signed by the corporation by its attorney. In suits by corporations, the corporate name and not the name of the directors, is used.</p> <p>7. Notice—appearance. The filing of the petition and the appearance of the parties dispensed with notice required to be given of the time and place of hearing. The presenting of the petition, properly describing the land, praying for the appointment of appraisers to assess damages, gave jurisdiction of the subject matter, and appearance, of that of the persons. After the parties appear notice is wholly unnecessary.</p> <p>8. Election of dibectobs—evidence of. A certificate signed by persons, in compliance with the statute, with the proper certificate of the county clerk appended as required by law, is evidence of the election of directors.</p> <p>9. Commissionebs—tliei/r proceedings—notice. Where the statute requires the commissioners in condemning land, to view it and hear evidence as to damages, it is held to be indispensable to their action that they give personal notice of the time and place of meeting to assess the damages, and a recital in their report that they had given notice is insufficient; it should appear in the report or the order approving the same.</p> <p>10. The record should show service of notice of the time of filing the report. Under the 13th section of the act, the court has the power to modify the assessment made by the appraisers, and for such purpose evidence may be heard, and the owner of the land should have notice, that he may be heard on the question.</p>

<p>New tbial—verdict against the evidence. In this case, the verdict of the jury being manifestly against the weight of the evidence, the judgment is for that reason reversed.</p>

<p>Writ of Error to the Superior Court of Chicago ; the Hon. John A. Jameson, Judge, presiding.</p>

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

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

Writs of Error to the Superior Court of Chicago ; the Hon. Joseph E. Gary, Judge, presiding. There were several distinct actions of replevin, all involving the same questions, which are considered in the following opinion.

John A. Jameson, Judge, presiding. . This was a petition for dower in certain premises, filed by Charlotte Noble; Charles H. Morton and Henry C. Clement, being made parties defendant. On a final hearing the court decreed according to the prayer of the petition, and the defendants appeal. The facts necessary to an understanding of the case are sufficiently presented in the opinion of the court.

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

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

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

<p>1. Gtjabdian’s bond—liability of the sureties thereon. The sureties upon the general bond of a guardian are liable for the rents of the lands of the ward leased by the guardian, notwithstanding the requirement of section 135 of the chapter of the Statute of Wills, that the guardian, before leasing such lands, shall execute a special bond, conditioned faithfully to apply the moneys to be raised therefrom to the benefit of the ward. The giving of the new bond required by that section of the statute can not be construed as a release from ultimate liability of the sureties on the general bond.</p> <p>2. So where a guardian leased the lands of his ward, under an order of court authorizing the leasing, and also requiring him to execute a bond conditioned for the faithful application of the moneys thus to be raised, to the benefit of his ward, the order being made in pursuance of section 135 of the Chapter of Wills, but the guardian failed to give the bond, it was held, the sureties on the guardian’s general bond were liable to the ward, the guardian failing to account, and being insolvent, for the proceeds of the leased premises.</p> <p>3. Same—action on—when maybe brought. Upon objection that a suit could not be maintained upon the bond, until there had been a settlement in the court of probate, an order by the court fixing the sum due and directing its payment, and a refusal by the guardian to pay, it was held, the guardian could not prevent an action on the bond by refusing or failing to rentier an account; that whenever he committed a breach of any of the conditions of the bond, he was liable to an action, and that, the declaration averring the removal of the guardian, the appointment of a successor, the making of an order by the probate court directing the guardian to pay and render to his said successor all moneys in liis hands, with a breach that he did not so render and pay as directed by said court, on which breach issue was joined that he did render and pay to his successor, &c., it was immaterial under the issue whether he had had a final accounting with the court or not.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. S. D. Puterbaugh, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by The Farmers’ National Bank of Salem (Ohio), against John D. Easter, Elijah H. Gammon and A.. T. Bates, former partners, on a promissory note, signed in the firm name of Easter, Gammon & Bates. A trial in the court below resulted in a judgment against two of the defendants, Easter and Bates, for the amount of the note, with interest, from which judgment Easter appeals.

<p>Evidence—declarations of a party, whether admissible in his favor. In an action of replevin to recover a lot of cattle taken on execution, there was evidence tending to show the cattle were owned jointly by the plaintiff, and the defendant in the execution: Held, that declarations of the plaintiff, out of court, not under oath, and in the absence of the defendant in the execution, were inadmissible as evidence to enable the plaintiff to make out title in himself to the property in dispute.</p>

Silvanos Wilcox, Judge, presiding. This was a bill in chancery, filed by Daniel B. Heartrunft and others, against Hamilton C. Daniels and Allen. C. Yundt. Upon a final hearing, the court decreed according to the prayer of the bill. The defendants appeal. The opinion of the court contains a sufficient statement of the case.

<p>1. Sheriff’s return—leave to amend. Held, the true rule of practice is, that the court should grant leave to a sheriff to amend Ms return to process as a matter of course, and without notice to the party to be affected by it, only during the term at which the cause is determined,</p> <p>2. Same—-former decisions. The cases of Turney v. Organ, 16 Ill. 43, Dunn v. Rodgers, 43 Ill. 260, Moore v. Purple, 3 Gilm. 149, and Morris v. The Trustees of Schools, &c., 15 Ill. 266, in so far as they announce a different rule, modified.</p> <p>3. Same—laches. Where the application to amend was not made until nearly twelve years after the date of the return, it was held, that after the lapse of so long a time leave to the officer to amend his return should not he granted.</p> <p>4. Same—amendment of—by whom to be made. Where the return of service, upon a summons, made hy a deputy sheriff, who had since died, was thought to be defective, it not appearing that, his principal was present at the execution of the writ, and cognizant of the manner in which the service was made, and there being no sufficient memorandum made hy the former at the time the service was had by which the amendment could be made, it was held, incompetent for the latter to amend the return.</p> <p>5. Inasmuch as the return to process can onty he amended hy the facts, the amendment should be made h)r the officer who served the writ and knows the facts, or if by his principal, then from a memorandum made hy the deputy at the time he served the writ, and which clearly and unmistakably states the facts omilted in the return.</p> <p>6. Same—presumption as to tcho served the writ. It will he presumed that the officer making a return served the writ or did what the return states was done. It can not be presumed that when a deputy sheriff says in the return the service was made hy him, that the writ was executed hy his principal, or that the latter was present and cognizant of what was done, or the manner in which the service was actual]}' made.</p> <p>7. Same—officer disqualified to amend return, by interest. The law has prohibited a sheriff from executing process in a case in which he has an interest. So where service of a summons was made hy a deputy sheriff, and the return to the process was insufficient to confer jurisdiction of the person of the defendant on the court, it was held, his principal, having after-wards become interested as warrantor of property sold under a judgment obtained hy virtue of the proceeding, his wife, having purchased from the purchaser at the execution sale, a portion of the land sold, and he joined with his wife in a warranty deed conveying the same to another, could not properly amend the return even if in possession of the requisite facts concerning the manner of the service.</p> <p>8. Same—-jurisdiction in equity to relieve against invp'open' amendment. And the sheriff, hy leave of the court, after his term of office had expired, having made such improper amendment, so as to obviate the objection as to jurisdiction, and it appearing he was insolvent, a court of equity had jurisdiction, upon bill filed for that purpose, to relieve the defendant in the original proceeding from the effect of the amended return—the same under such circumstances, being fraudulently made, and operating as a cloud upon his title, and there being no adequate remedy at law.</p>

E. S. Williams, Judge, presiding. This was a suit in chancery, brought by Margaret M. Donoghue against The City of Chicago, for a re-assignment of dower in certain premises. The defendant filed a demurrer to the bill, which was sustained by the court, and the complainant electing to abide by her bill, the same was dismissed. The complainant appeals.

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

<p>Writ oe Error to the Recorder’s Court of the City of Chicago ; the Hon. Evert Van Burén, Judge, presiding.</p>

<p>1. Res adjudicata—what so considered. When a complainant in chancery presents his canse of action before the court, he should bring forward and urge all the reasons which then exist for its support. After a determination of the suit, the controversy can not be reopened, to hear an additional reason, which before existed, and was within the knowledge of t.lie party, in support of the same cause of action.</p> <p>2. The principle of res adjudicata, embraces not only what has actually been determined in a former case, hut also extends to any other matter properly involved, and which might have been raised and determined in it.</p> <p>3. Rescission oe contracts in equity—mental incapacity of the parties. Mental imbecility alone will not authorize a court of equity to set aside an executed contract, the mental weakness of the party not amounting to an incapacity to comprehend the contract, and there being no evidence of imposition or undue influence.</p> <p>4. Solicitation, importunity, argument and persuasion to induce the party to enter into .a contract, would not of themselves affect the validity of a deed.</p> <p>5. False representations—matters of opinion merely. The purchaser of a lot of ground, in negotiating for the purchase, the lot being at the time in possession of a third person who claimed title thereto, after informing the vendor that the title was still in her, under the law, represented that it was doubtful about the recovery of the lot: Held, such representation was a matter of opinion only—the vendee's disparagement of the property, where the vendor is not presumed to trust to the vendee, but to rely upon his own judgment.</p> <p>6. Consideration—adequacy thereof. And upon the question whether the jjrice paid was grossly inadequate, it was held, the adequacy of consideration should be measured, not by the value of the lot, but by its value after deducting the cost of its recovery.</p> <p>7. Fraud—xoaiver thereof. If a party has knowledge that he has been defrauded, and yet subsequently confirms the original contract by making new agreements and engagements respecting it, lie thereby waives the fraud, and abandons his claim to equitable relief. A party defrauded can not be allowed to deal with the subject matter of the contract, and afterwards rescind it.</p> <p>8. Rescission of contract—laches. Where a party seeks to rescind a contract for fraud, he must ask the aid of the court in a reasonable time.</p> <p>9. False representations—zoithoui injury. A court of equity will not lend its aid to set aside a contract on the ground of fraud, unless the party seeking relief has been misled to his prejudice or injury. Courts of equity do not, any more than courts of law, sit for the purpose of enforcing moral obligations, or correcting unconscientious acts, which are followed by no loss or damage.</p>

Joseph E. Gaby, Judge, presiding. This was a petition filed by Francis E. Corey and others, against Abraham F. Croskey and others, to establish a lien on certain premises belonging to the defendants, to secure payment for lumber sold by the complainants to the defendants. On a hearing, the petition was dismissed, and the petitioners appeal.

<p>1. Trespass—mongful entry into the house of another—license in respect thereto. Where in an action of trespass ni et cvrmis, it was sought to recover for the alleged wrongful entry by defendant, into the plaintiff’s house, an instruction asked by the defendant which directed the jury, that if they believed from the evidence, that the defendant entered the plaintiff’s house by her leave and license, or by the leave or license of any inmate thereof, such entry was not a trespass, was regarded as erroneous, in asserting that any inmate of the house could give a license to enter, whereas a mere stranger or trespasser might have been an inmate of the house, and the right to the enjoyment of home in quietness and free from intrusion does not permit its invasion on the license of a mere stranger or trespasser who may happen to be in the house.</p> <p>2. Though it might be that such a license, acted on in good faith, would mitigate the damages for such an entry, jret it would not operate as a justification.</p> <p>3. While there may have been no facts in the case calculated to mislead the jury, had such an instruction been given, still the defendant could not complain of the refusal to give it, the same not being legally accurate.</p> <p>4. In order to constitute a license to enter the house of another, it is not j> necessary that express authority should be given; but if a person visit the ;j house of another to see him on business and is allowed to enter, or does j enter without force, that would be deemed a license.</p> <p>5. But the defendant being sued, not only for entering the house of the plaintiff with force, but for taking others with him, an instruction directing the jury that if defendant went to plaintiff’s house on business, and was allowed to enter, or did enter without force, such would be deemed a license, would be erroneous as tending to mislead the jury; for if the defendant was permitted to enter the house under an express or an implied license, that would not authorize him to take his assistants with him, and although he entered himself under a license, he might still have been guilty of a trespass, in forcing those aiding him into the house against the plaintiff’s will,—the instruction'relating only to his own entry. ^</p> <p>6. A man has no authority to enter the house of another without permission, even to take his own property.</p> <p>7. Even an officer armed with a writ in a civil case, representing the 1 majesty of the State, can not break into and enter a man’s house to seize « property.</p> <p>8. A party wishing to recover property in the house of another, has his t remedy by an action, and must pursue it unless he can gain access to the domicil of such person, either by express or implied assent. The home of ' every person is held by the law to be sacred and it will not permit intrusion 1 against the will of the owner.</p> <p>9. Exemplary damages—-for trespass. The law has, for the repose of society, authorized the jury to give exemplary damages, when a trespass is wanton, wilful or malicious, or when it is accompanied with such acts of indignity as to show a reckless disregard of the rights of others, as a punishment for the wrong and to deter others from the perpetration of such acts.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. 8. D. Puterbaugh, Judge, presiding.</p>

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

<p>Special assessment—certificate of publication. The certificate of publication of the notice of making a special assessment in the city of Chicago, and of notice of application to the Common Council for the confirmation " thereof, is fatally defective, if it omit to state the date of the last paper containing such notice, or language equivalent thereto.</p>

Theodore D. Murphy, Judge, presiding. This was an action brought by Fillmore against the Chicago & Northwestern Eailway Company, to recover for injuries to the plaintiff, occasioned by the alleged negligence of the defendants. The plaintiff recovered a verdict, upon which judgment was rendered. The defendants appeal.

<p>1. Equity of redemption—whether subject to sale on execution. The judgment debtor’s equity of redemption in land sold under execution issued against him, is not such an interest as can be taken and sold under excution, and where the land is subsequently sold under another execution, against the debtor, before the time allowed by law for him to redeem from the former sale has expired, such subsequent sale is void, and the purchaser thereat, acquires no right or title to the premises.</p> <p>2. Process dwected to coroner—presumption. Where an execution is directed to the coroner, it will be presumed, in the absence of proof to the contrary, that the clerk properly so directed it.</p> <p>3. Notice of sede on execution—who may avail of defects therein. Where land is sold under execution, and the notice of sale given by the officer is not in compliance with the law, but the defendant in the execution has submitted to it, a stranger to the record can not avail of such irregularity, in a collateral proceeding.</p> <p>4. Officer’s return upon execution—as to desc/ri/ption of the land sold— whether sufficient. Where a party claimed title to land by purchase at a sale thereof under execution, upon objection that the officer’s return upon the execution, and the certificate of sale and the deed were inconsistent and contradictory; that the return described the land as being in township 39, and the certificate and deed as in township 38, the officer in the first part of his return, stating that he levied on the land describing it as in township 38; that he had “ caused the said property to be appraised, as appears by the return of the appraisers, herewith returned and made part of my return, ” the return of the appraisers as also the warrant to them to make the appraisement, describing the land as situated in township 38, the officer in his return then stating that he sold “ the said premises,” describing them the same as in his statement of levy with the exception of naming the township as 39, instead of 38, the certificate of purchase made at the same time describing the township as 38, it was held, from the whole return there could be no doubt the land sold was in township 38, and calling it 39 in one part of the return was merely a false particular of description which did not vitiate.</p>

<p>1. Homestead—illegal sale of under execution—whether may he set aside as to part of the premises sold. Where it was sought to set aside a sale under execution, of four lots of ground, for the reason that, as claimed by the defendant in the execution, the same constituted his homestead, and had been sold without summoning a jury to set off the homestead, as required by the statute, it was held, the lots being sold separately, and the one on which his house was situated being worth more than $1000, a decree setting aside the sale as to such lot alone was proper, and gave to the complainant all the relief to which he was entitled.</p> <p>2. Though, had the lots been sold in a body, it would have been impossible to give this relief without setting aside the sale as to the other lots.</p> <p>3. Costs in chancery—against whom, should he adjudged. Where a complainant in chancery filed an amendment to his bill, for the purpose of correcting a mistake in the sheriff’s deed, under which he claimed title to the land in controversy, and the defendant filed across bill, the prayer of which was granted, but the court decreed to the complainant in the original bill partial relief, it was held erroneous to adjudge against the complainant in the cross bill the costs thereof, the same being necessary to the procurement of the relief obtained by it; and that the costs of the amendment to the original bill, although the relief sought by it was granted, should have been adjudged against the complainant therein, the error which it sought to correct not having been occasioned by the defendant, and he not resisting the correction in a way to make him chargeable with the costs.</p>

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

Edwin S. Leland, Judge, presiding. This was an action brought by Hayes against Lathrop, before one Eastlick, a justice of the peace, on a verbal contract claimed to have been made between the parties. The sum-. mons was issued by the justice on the 5th day of January, 186.7, was returnable on the 11th day of that month, and was duly served on the 7th of the same month.

<p>Wbit op Ebbob to the Superior Court of Chicago.</p>

<p>1. Slakdeb—privileged statements in legal proceedings. Whatever is said or written in a legal proceeding, pertinent and material to the matter in controversy, is privileged, and no action can be maintained upon it. So in an action on the case for wrongfully suing out an attachment, a count in the declaration which was merely a count in slander, based upon an alleged libellous affidavit filed for the procurement of the writ, was hdd bad on demurrer.</p> <p>2. Dxjbess of property—whether will amoid a contract. Where goods, requiring special care, and of a perish able nature, were wrongfully taken and kept from the owner thereof by means of a writ of attachment fraudulently obtained, and were rapidly going to destruction, and the party in possession refused to surrender the goods ou payment of the sum actually due, demanding more than twice that amount, and, iu addition thereto, a release from all damages for his wrongful acts, and the defendant in the attachment, to obtain possession of his property, paid the sum demanded and executed the release, it was held, in an action on the case for wrongfully suing out the attachment, a release executed under such circumstances could be avoided on the ground of duress.</p> <p>3. Action on the case—-for maliciously suing out a writ of attachment* An action on the case will lie for maliciously suing out an attachment and seizing the goods of the debtor, even though there was at the time some indebtedness. The party injured in such case is not restricted to a suit on the attachment bond.</p> <p>4. Same—of the averments in the declaration—whether sufficient. In an action on the case for wrongfully suing out an attachment against the goods of the plaintiff, the declaration averred that the money claimed in the attachment was paid to save the property from total ruin: Held, the payment of the money having released the property from the levy and ended the suit, this was equivalent to an averment of a termination of the proceeding in attachment. The omission of such an averment is however cured by verdict.</p> <p>5. While the averment of the want of probable cause is of the gist of such action, still the words “ without any reasonable or probable cause ” are not indispensable. Language may be used having the same meaning, and if this necessary averment of the want of probable cause is included in the sense of the declaration, that is sufficient.</p> <p>6. Where the declaration averred, substantially, that the defendants, wickedly and maliciously intending to injure and ruin the plaintiff, and extort money from him, procured the making of an affidavit and the issuance of a writ of attachment, and that they knew the statements in-the affidavit were false, it was held, upon the question as to the sufficiency of the declaration, on motion in arrest of judgment, such averments negatived the existence of probable cause, and were equivalent to the positive assertion of a want of probable cause.</p>

John A. Jameson, Judge, presiding. This was a suit in chancery, brought by Moses W. Dake, against John Donaldson, the Fifth National Bank of Chicago, and Gardner S. Chapin arid J. J. Gore, partners, doing business under the firm name of Chapin & Gore, to have two certain drafts for $1000 each, in the hands of Chapin & Gore, delivered to the complainant, in whose favor they were drawn by the Fifth National Bank of Chicago, on the Ninth National Bank of New York, and by him…

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

<p>1. Mandamus—petition for, to compel commissioners to open highway— averments therein, whether sufficient. Upon the filing of a petition for a writ of mandamus to compel the commissioners of highways of a certain township to take the necessary steps to open a road, which, as alleged, had been already laid out by a former board of commissioners of the township, and the damages to the several parties over whose land the road was to be constructed had been assessed against them, it being objected that it did not appear that the relators were citizens of the town, although it was regarded as more accurate if the petition had contained an express averment that the relators resided in the township, yet it appearing from the record that one of the relators was one of the commissioners who laid out the road, and that the other was one of the petitioners for the same, and so described in the proceeding, such allegation being nowhere in express terms denied in the return to the alternative writ, it was held sufficient in that regard.</p> <p>2. Same—wlw may institute the proceeding. The act sought to have performed by the respondents, being a public duty, in which tlie.people of the whole town were interested, any citizen of the town had the right to become a relator and institute the proceeding. It was unhecessary for the relators to show they had any other interest in the object of the writ than that of mere private citizens interested in common with the public in the performance of the act.</p> <p>3. Hishways—laying out the same—action of majority of commissioners only required. In laying out the road, the action of a majority of the commissioners thereon, was sufficient to render their proceeding valid, the statute having expressly provided that whenever the commissioners of highways shall receive a petition for a highway, that “they, or a majority of” them “ may proceed to act in the premises.”</p> <p>4. Same—assessment of damages on lands over which constructed—agreement with owners thereof. Upon objection that the commissioners never sought to agree with the several owners of land over which the road was to be constructed, before they proceeded to assess the damages that they would severally sustain, it was held, not indispensable that they should. They might lawfully proceed to assess the damage without first inquiring-of the owner of the land whether they could agree with him as to the amount of damage he would sustain, that part of the statute being- simply directory and not mandatory.</p> <p>5. Same—location thereof—mandamus—notice to remove fences. The respondents in their return, claiming they were not bound to execute the writ, for the reason it was not their duty to open the road until after the owners of land over which the road would pass had been legally notified to remove their fences, and averring that no such notice had ever been given or served, it was held, such allegation presented an immaterial issue. The object of the proceeding being to compel the commissioners to take every initiatory step and to perform all official acts necessary to open the road, if the requisite notice to remove fences had not been given as required by the statute, and the proceedings in laying out the road were in all other respects legal, it was their duty to, and they should be compelled and required to give such notice. . . :</p> <p>6. Same—of notice to owners of land over which located, to remote fences— extension of time by commissioners. As a general rule, the sixty days notice required by the statute to be given to the owners of land over which a road, has been located, to remove their fences, should be given upon the laying out of the road, if the determination of the commissioners shall not have been appealed from. But, although there does not appear to be any express authority conferred upon the commissioners to give an extension of time, that provision of the statute should have a reasonable construction, and doubtless, cases may arise where it would not be the duty of the commissioners to proceed at once to open the road; as where a road has been laid out through cultivated and enclosed lands, at a season of the year when títere are growing crops on the same, it would not be unreasonable to allow the owners sufficient time to gather their crops. Yet the mere fact that it would be impracticable, on account of the wet weather of the season succeeding the time at which the road is located, to open and put the same in repair, would not of .itself be sufficient to authorize the commissioners to give an extension of time for the removal of fences. Or where the owners of lands have planted crops after the final location of the road, it seems they should not for that reason be allowed an extension of time for the crops to mature and in which to gather the same.</p> <p>7. Mandamus—to compel commissioners to open highways—whether'the proper remedy. Upon it being insisted that inasmuch as the law imposed penalties upon the commissioners of highways, Sess. Laws 1861, page 348, section 13, for neglect of duties enjoined upon them, that therefore a person although interested in the performance of those duties could not invoke the aid of a writ of mandamus, it was held, that such was not a proper construction of that statute, the penalties there provided for being regarded as in addition to the common law remedies—that act in no wise repealing the remedies to which a party would be entitled at the common law.</p> <p>8. Nor does sec. 4, of the act of 1867, entitled “ an act to reduce the act to provide for township organization, and the several acts amendatory thereof into one act,” which provides a mode for compelling the construction and repair of bridges and roads, where the same have been neglected by the town authorities, in any wise affect the common law remedies to which a party is entitled, or have any application, in cases of this character.</p> <p>9. Same—averment and proof—what necessa/ry. It was held essential, in this case, to the awarding of the writ, that the relators should aver and prove that the damages assessed to the land owners on the route of the road, had either been paid or released, or that there was money in the town treasury with which to tender or pay the same, or that the necessary funds were otherwise under the control of the commissioners.</p>

Writ of Error to the Superior Court of Chicago; the Hon. Joseph E. Gary, Judge, presiding. This was an application for a judgment, in the court below, upon a special assessment warrant. The owner of the property against which the judgment was rendered, sued out this writ of error.

<p>1. Payment—subrogation. A mere stranger or volunteer can not, by paying a debt for which another is bound, be subrogated to the creditor’s rights in respect to the security given by the real debtor. But if tlieperson who paj’s the debt, is compelled to pa)’, for the protection of his own interests and rights, then the substitution should be made.</p> <p>2. So where a general agent of an insurance company had appointed a local agent, and taken a bond from him in the name of the company, with sureties, conditioned that the local agent should pay over all moneys received by him, and the general agent paid to the company certain premiums received by the local agent, but not accounted for by him, it was Jield, in a suit upon the bond thus given, in the name of the company, for the use of the general agent, that inasmuch as the latter had the appointment of the local agents, and was bound, not only by contract with the company, but in order to maintain his position, to pay over all moneys received through local agents, his settlement with the companyof the amount of the defalcation of the principal in the bond, before suit brought, did not operate to discharge the bond, but he had the right to be subrogated to the rights of the company in respect thereto.</p> <p>3. Notice to surety—whether required. In such case, the surety in the bond, and his principal, being equally and primarily liable to the obligee, no notice to the surety of the defalcation of his principal, was necessary in order to fix the liability upon the bond.</p> <p>4. Surrender of securities—whether necessary. The principal in the bond, the local agent, having given his promissory notes to the general agent for the amount of his defalcation, they should have been surrendered on the trial of the suit on the bond, or proof made that they had been given up, in order that a judgment could be .properly entered.</p> <p>5. Payment—hy means of other securities. If the notes, however, had been received in actual payment of the defalcation of the maker, that would operate as a discharge of the liability on the bond.</p>

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

<p>1. Mortgage—what debts wt'e embraced therein. A mortgage which recited that it was given to secure the payment of a certain promissory note described therein, “and also in consideration of the further sum of five hundred dollars,” to the mortgagor in hand paid, the receipt whereof was thereby acknowledged, he had “ granted, bargained, sold and conveyed” the premises described in the mortgage deed, was construed as a security given for the payment of the promissory note mentioned, and also the sum of §500 of other indebtedness.</p> <p>2. Same—parol proof of indebtedness secured thereby. And the §500 not being evidenced by any note or bond outside of the mortgage itself, it was competent, upon a bill to foreclose, to show by parol evidence the nature and character of such indebtedness and when contracted. That -was in no sense enlarging the terms of the mortgage, but was simply showing the true amount of the consideration of the deed, and parol evidence is admissible for such purpose.</p> <p>3. Interest—at what rate recoverable. The proof showing when the indebtedness other than that mentioned in the promissory note was contracted, and there being no special contract as to the rate of interest, it was not error for the court to decree the legal rate of interest thereon.</p> <p>4. Purchaser from the mortgagor—how far chargeable with notice. The fact that the sum of “ five hundred dollars” was named in the mortgage, was, of itself, sufficient to put a subsequent purchaser of the mortgaged premises on inquiry as to what was the true amount due under the mortgage, and if he purchased without making the necessary inquiries at the proper sources of information, he would be held to have done so at his peril. The mortgage being duly recorded in the proper office, a purchaser of the premises would be chargeable with notice of all it contained.</p> <p>5. Notice—when a party is cha/ryeaUe therewith. Where a party wilfully closes his eyes against the lights to which his attention has been directed, and which, if followed, would have led to a knowledge of ail the facts, he will be chargeable with notice of every fact that he could have obtained by the exercise of reasonable diligence.</p>

<p>1. Remedy—to vacate a judgment of a former terrm. A judgment of the circuit court can not be vacated for alleged error therein, upon motion entered in the same court at a subsequent term.</p> <p>2. Confession of judgment—upon a joint and several note. A joint and several promissory note was executed by seven persons, and made payable on the order of two of the makers, by whom it was indorsed to a third person. Under a warrant of attorney to confess a judgment upon such note, according to its tenor and effect, it was held, that the power was substantially pursued in the confession of a judgment against five of Ihemakers jointly, excluding the two on whose order the note was made payable.</p> <p>3. Same—vacating judgment—ground therefor. On a motion to vacate a judgment entered by confession, the question is not whether the judgment shall be vacated for error of law, but whether there exists any equitable reasons for opening the judgment.</p> <p>4. And the fact that the judgment was confessed against several of the makers of the note jointly, but not against all, did not afford any equitable reason for vacating the judgment.</p>

<p>1. Void and voidable—of a decree pro eonfesso, upon insufficient allegations. If a person is in court by due service, as party to a bill praying a sale of lands in payment of certain judgments, on the ground that the lands belonged to the judgment debtor, and the bill shows upon its face that sncli defendant claimed an interest which the complainant seeks to subject to sale because of its inferior equity, and was made a party that he might disclose his interest, but, neglecting to interpose any defense, a decree pro confesso is entered against him, such decree, however erroneous because the allegations in the bill as to the title of the defendant were not positive or specific, or because the bill failed to show the complainant did not have an adequate remedy at law, is not void, and a sale under its authority is not a nullity.</p> <p>2. In such case, when the decree is collaterally assailed, it is sufficient to know that the defendants were in court by service or appearance, that the decree was one which a court of equity has power to make, and that the subject matter upon which it operated was brought by the bill before the court for adjudication.</p> <p>3. So upon bill filed by a judgment creditor, to subject certain lands to sale for the satisfaction of the judgment, a third person, who had purchased a portion of the lands under another judgment against the same debtor, was made a party defendant. The only distinct allegation in the bill affecting the title of that defendant was, that at the time the complainant obtained his judgment, and at the close of the term when it was rendered, the judgment debtor owned the lands. The bill, however, charged that the defendant claimed some right or title to a part of the lands, in some way through the judgment debtor, and that he knew of complainant’s superior equity in the lands when he acquired his interest therein, and asked that he might set forth what title or claim he had. The defendant was duly served with process, but, failing to make any defense, a decree pro confesso was entered and the lands sold thereunder. Upon bill subsequently filed by such defendant, to set aside the title thus acquired, as a cloud upon his title, upon the alleged ground that as there was no specific allegation in the bill in the former suit to the effect that the title claimed by him was for any reason subject to that judgment, the default admitted nothing to his prejudice, and the decree was void for the reason his title was not before the court for adjudication, it was held, that however erroneous that decree may have been for want of sufficient allegations in the bill, it was not void. The bill brought the question of the sale of the lands before the court for adjudication, and the subject was one of ordinary chancery cognizance,—so there was no want of jurisdiction in the court over the subject matter.</p>

<p>1. Vehdob ahd Purchaser—rescission of contract by parol. Where the parties to a written contract for the sale of land agree by parol to rescind the same, one of the conditions of such agreement being that the vendee shall return to the vendor the written contract to convey, it is held, that although the vendee perfora! all the other conditions, if he refuse to surrender the written contract lie thereby keeps it alive, and refusing to release the vendor from his obligation to convey, he continues his own liability to pay the purchase money.</p> <p>2. The verbal agreement to cancel could be set up as a defense to a bill by the vendor, to compel a surrender of the written contract, as being within the statute of frauds. He is not required, in such case, to abandon his claim for the purchase money and run the risk of having to perform his. agreement to convey.</p> <p>3. And even thotigk the vendor could, under the terms of the written contract, declare a forfeiture on account of default on the part of the vendee, and thus terminate his own liability, he would not be bound to do so under such circumstances, but might still hold the vendee liable.</p> <p>4. Jurisdiction in chancery—defense at lam. Where a purchaser of land has an opportunity to defend a suit at law brought to recover the purchase money, on the ground that the contract of sale has been rescinded, but omits to interpose such defense, he will be deemed to have waived it, and can not, after permitting a judgment to be recovered against him, come into a court of chancery and set up the fact of such rescission as a gfoUnd for an injunction to restrain the collection of the judgment.</p> <p>5. A party failing to make a defense at law, will not be permitted to come into equity and have the subject matter of such defense allowed, unless he can show he was prevented from making his defense at law by accident, fraud or mistake.</p> <p>6. Sams—to enforce a judgment. A vendor of land having recovered a judgment at law for a portion of the purchase money, the vendee sought, by bill in chancery, to enjoin the judgment, on the alleged ground that the contract had been rescinded. The vendor, by cross bill, set up his judgment, and asked a decree for its payment: Held, the mere fact that he held the judgment, although it was for purchase money, did not entitle him to relief in equity, such as that sought by the cross bill.</p> <p>1. Damages—on dissolution of injunction—attorneys' fees. The statute providing for an assessment of damages on the dissolution of an injunction, was only intended to reimburse the defendant for moneys which he has paid, or for which he has become liable, on the motion to dissolve, He can not recover for attorney’s fees arising from litigation upon a cross bill in the same suit, but not connected with the injunction, or from litigation under the original bill subsequent to the hearing on the motion to dissolve.</p> <p>8. Nor, in case the defendant is himself an attorney and attends to his own case, can he be allowed a fee for his own services.</p> <p>9. In ascertaining the amount which should be allowed as attorney's fee in such proceeding, it is not enough to prove by attorneys that the sum named is, in their opinion, reasonable. The inquiry should be, what has the defendant paid, or become liable to pay, and is it the Usual and customary fee paid for such services. The chancellor should refuse to allow exorbitant and oppressive charges.</p> <p>10. In this case, the sum of $850 as an attorney’s fee for entering and trying a mere motion to dissolve an injunction, was deemed excessive.</p>

Writ of Error to the Superior Court of Chicago. This was a suit in chancery, instituted by Francis Hettinger and George Oertel, against John Donlin and Catharine Fitzgerald, by which it was sought to enjoin an action of ejectment brought by Donlin and others, as the heirs of John Donlin, ' deceased, against the complainants.

<p>Appeal from the Circuit Court of Peoria county; the Hon, Sabin D. Putebbaugh, Judge, presiding.</p>

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

<p>1. Ejectment—letting in third persons to defend. In an action of ejectment, after judgment rendered against the defendant in -possession, upon motion based on affidavit at a subsequent term other parties were permitted to defend: Held, the affidavit, it appearing from the statements therein that the title claimed by the applicants was consistent with the possession, and that there was a privity of interest between them and the original defendant, was sufficient to justify the action of the court in vacating the judgment and permitting the applicants to defend—it was not necessary that an exhibit of their title should accompany the affidavit.</p> <p>2. Construction of statutes—general rules. In the construction of statutes, the intention of the legislature is always a proper subject of inquiry. The intention is to he ascertained from the act itself and other acts in pari materna—all acts in pari materia are to he taken together as if they were one law—and this rule prevails even though some of the acts may have expired or been repealed.</p> <p>3. Execution—xoithin what time it may issue. Upon a judgment obtained in a court of record execution may issue against tiie judgment debtor if one was issued within a year and a day, and its collection be enforced against the real estate of the debtor except “as against bona fide purchasers and subsequent incumbrancers, etc.,” after the expiration of seven years, and at any time within twenty years. * </p> <p>4. Walker and Scott, Justices, hold that execution can not lawfully issue after the expiration of seven years, except upon a sevre facias to revive the judgment.</p> <p>5. Sheriff’s deed—insufficiency of retux'n of sale—its effect. In an action of ejectment, where the plaintiff claimed under a sheriff’s sale, an objection that the sheriff’s return upon the execution failed to show a sale, was overruled. It was only necessary for the plaintiff to produce the judgment and execution, to entitle his deed to he read in evidence. Ilis title could not be defeated by the neglect of the sheriff to make a proper return.</p> <p>6. Instructions—xahether proper. In an action of ejectment, where a register’s certificate of purchase was given in evidence, it was held proper to instruct the jury that the certificate was evidence of title in the person to whom it was issued, and that a judgment and execution against such person, together witli a sheriff’s deed thereunder, conveyed the title to the grantee therein. While instructions should not assume the existence of facts, still it is proper for the court to direct the jury as to the legal effect of the evidence admitted.</p> <p>7. Estoppel—admissions. The admission in open court by the defendant in ejectment, that the plaintiff had title at the time of the commencement of the suit, operates as an estoppel, and it is the province of the court so to direct the jury.</p>

<p>1. Negligence—degree of care required to prerent injury to otJiers upon one’s own premises. Tiie occupant of a building is not bound to insure the safet)r of persons who may come upon the premises. He is held to the use, not of the utmost,but only reasonable care and caution under the circumstances, to prevent others from receiving harm.</p> <p>2. In an action under the statute to recover for the death of a person, occasioned by the alleged negligence of the defendants, it appeared the defendants were large tobacco manufacturers, and in the building occupied by them, hogsheads of tobacco aud other heavy material were carried from the first floor to the different floors above, by means of an elevator running through hatchways cut iu each floor. These hatchways were situated some distance back from the front of the building, away from the office and out of the reach of persons having business to transact with the house, where no one except the inmates of the house and employees could be reasonably expected to go, and were surrounded, except when the elevator was in use, by railing from three to four feet high. The building was considered very good as to light, and in the basement, from four to six feet from the hatchway in the first floor, a gas jet was kept constantly burning. At the time of the accident, between nine and ten o’clock in the morning, the elevator was in use, carrying hogsheads of tobacco from the first to the fourth floor. Two men were engaged at the work. They would roll a hogshead on the elevator, get on with it, ride to the fourth floor, unload aud descend. While the elevator was thus in use, the deceased fell through the hatchway in the first floor, receiving injuries from which he died. It appeared the deceased, who was a cooper, furnished the defendants with kegs for packing purposes, and was in the habit of bringing them in a wagon to the front door of the building to unload. The first that was known of him about the building on the morning of the accident, was from his cries in the cellar just under the hatchway, while the elevator was at the fourth story with a hogshead of tobacco. Immediately afterward his wagon was found at the door, with a load of kegs upon it. Keeping the mouth of the hatchway unguarded while the elevator was thus in use, was the only negligence imputable to the defendants: Held, while the defendants might have prevented the injury by the emplojunent of an additional force, so as to have kept a guard stationed at the hatchway for the express purpose of protecting persons from injury by falling into it, the law imposed no such burden upon men’s conduct of their ordinary private business upon their own premises.</p> <p>3. But had the hatchway been at a place where persons were accustomed to pass and repass, or to be about, and their presence there ought to have been reasonably anticipated, a higher degree of care might have been exacted of the defendants.</p> <p>4. Evidence—credibility of witnesses when in the employment ofthepeurtyfor whom they are called. The mere fact that witnesses are in the employment of the party for whom they are called, will not justify the jury in discrediting them to the extent of rejecting their testimony entirely.</p> <p>5. Abstbacts—costs. In this case the appellants printed the entire testimony, which was very voluminous, and not being in compliance with the rule in respect to abstracts, the costs of the so-called abstract were taxed against the appellants, although the judgment was reversed.</p>

<p>1. Improvements—of allowance therefor, on setting aside the title of the party claiming them. In a suit in clianoery to set aside a sheriff’s deed, a decree being rendered granting the relief sought, and an account of rents and profits taken against the defendant, upon objection that the court erred in not allowing the defendant for the improvements placed upon the land, it was held, the improvements having been made by a tenant of the defendant, the latter paying nothing therefor and incurring no liability on account of them, the charge was properly denied. The defendant was only entitled to allowance for the necessary improvements put upon the land, for which he had paid or was liable to pay.'</p> <p>2. Evidence—whether admissible. Although an attorney’s minutes are not competent to supply the place of a lost deposition, and the witness being alive it is not admissible to prove by others what he testified to in his deposition, it does not follow because the attorney’s notes are not admissible as evidence that exhibits referred to in his notes would not be competent evidence on a subsequent trial, or that the attorney could not testify to the contents of lost exhibits, or refer to his notes for the purpose of refreshing his memory as in any other case.</p>

John A. Jameson, Judge, presiding. This was a suit in chancery, instituted in the court below by Larrabee, administrator of the estate of James Spence, deceased, against William B. Ogden and Charles Butler, for the purpose of charging Ogden in respect to a certain fund alleged to have been placed in his hands in trust for Spence, during the life time of the latter.

Appeals from the Superior Court of Chicago. The questions in these records arise upon an application for judgments upon a special assessment, in the city of Chicago against certain lots of ground. The city recovered judgment, and the objectors appeal.

<p>1. Contracts—corporations—of a combination between a portion of fhe - members of a corporation to conProl it. Three persons owning a majority of yje gtoclc of an incorporated company organized for the purpose of mining coal upon their lands, and having leased the premises, formed a partnership for the prosecution of the business, entered into an agreement, as between themselves, that they would elect the directors of the company; that they would determine among themselves as to its officers and management, and that if they could not agree, they would ballot among themselves for the directors and officers, and that the majority should rule, and their vote be cast as a unit, so as to control the election: Held, this agreement was not ■void, as against public policy; the persons owning a majority of the stock had a right to combine, and thus secure the board of directors and the management of the property.</p> <p>2. Partnership—real estate. Real estate belonging to a partnership will, in equity, be treated like its personal funds, and distributed accordingly. If the title stands in the name of one of the partners, he will he held as a trustee of the partnership, and be made to account to the other partners according to their several rights and interests.</p> <p>3. So where one of three partners purchased real estate for the partnership, each contributing his proportion of the purchase money, but the purchasing partner took the title in his own name, upon a dissolution of the partnership, and a settlement of its affairs, in chancery, it was held proper to compel the partner holding the title to convey to each of the others his proportionate interest.</p> <p>4. Same—where the purchasing partner has received an undue proportion of the purchase price. And where the partner who made the purchase, represented to his co-partners the purchase price he had agreed to pay to be greater than was the fact, and they agreed to pay, and did pay, their proportion according to such false representation, yet upon seeking to compel a conveyance, in equity, the partners so contributing more than their proper share, would not be entitled to be reimbursed for that excess. Where a conveyance of land is asked, it must be granted upon the specific terms of the agreement.</p> <p>5. Pahties—in chancery. Where a part of the members of an incorporated company form a partnership between themselves for the purpose of carrying on the business of the company, under a lease, upon bill filed by one of the partners for a dissolution and a settlement of the partnership affairs, the corporation is neither a necessary nor a proper party.</p>

<p>1. Cross bill—whether gwmane to the subject matter of the original suit. A party filed a petition to enforce a mechanics lien, making, among others, a subsequent grantee of the fee in the premises, and a mortgagee, parties defendant. After the commencement of this proceeding the mortgagee, under a power contained in the mortgage, sold the premises to a third person, to whom a deed was made. Thereupon the owner in fee filed his cross bill, charging that the sale under the mortgage was in fraud of his rights, and asking relief in respect thereto: Held, the subject matter of the cross bill was germane to that of the original suit, although it was something which did not affect the interest of the petitioner himself, in the suit.</p> <p>2. Same—time for filing cross bill. The cross bill in this case was not filed until after a final decree was entered in the original suit, declaring the rights of the parties in respect to their several liens, but as it did not propose to interfere in any way with the operation of that decree, nor tend to delay the petitioner in securing his rights under it, the cross hill was regarded as filed in sufficient time to he considered. In a case so circumstanced, it ought never to be too late to file such a cross bill, so long as the court has control of the case.</p> <p>3. Same—whether the cross bill should be retained after the original ground of suit is satisfied. After the filing of the cross bill the claim of the original petitioner was paid, but it did not follow that the court had no power after that to determine questions between co-defendants. They were still before the court, not necessarily dismissed from it by such payment of the petitioner’s decree, and the bill had not been dismissed. The cross bill in such case should be retained, for the purpose of settling the question presented by it, and it was erroneous to refuse a motion for a rule upon the defendant thereto to answer the same, at that stage of the proceedings.</p> <p>4. Exceptions—in chancery. It is not necessary to except to the ruling of the court in a suit in chancery for improperly refusing a motion for a rule upon the defendant to a cross bill, to answer the same.</p> <p>5. The rules of chancery practice do not require that exceptions should be taken to the various decisions of the court made in the progress of the cause.</p>

<p>Special assessment—certificate of publication. The certificate of publication of the commissioner’s notice of making- a special assessment in the city of Chicago, is fatally defective if it omit to state the date of the first and last papers containing such notice, or language equivalent thereto.</p>

<p>1. RailboaUs—of the right of others to connect their side-trades withi a railroad. By the rules of the common law, railroad companies can not be compelled to permit individuals to connect side-tracks of their own, with the tracks of the companies, in order to enable the latter to carry grain to warehouses or elevators which have been erected off their lines of road.</p> <p>2. Same-—averment of a custom in that regard And where it is sought to compel a railroad company to permit such connection, upon the ground of an alleged custom among the companies whose lines concentrate at the place indicated, the custom must be made clearly to appear, and to have existed so long as to have the force of law.</p> <p>3. Lessee—whether a contract passes to him. The owner of a lot of ground in the city of Chicago, having erected a grain elevator thereon, was permitted, by contract with a railroad company, to connect a side-track, extending from his elevator to the company’s line, with its track. So far as appeared, the contract was purely personal, and in no way attached to the realty: Held», a subsequent lessee of the elevator, did not succeed to any of the rights of his lessor, in respect to such contract.</p> <p>4. Same—of rights granted to the lessor by ordinance of the city. Where the city had, by ordinance, granted to the lessor the privilege of laying down a track along one of its streets, in order that he might connect his elevator with the line of a railroad, such grant of authority being made specially to the lessor, the mere leasing of his elevator to a third person would not operate to -pass to the lessee any of the rights secured to the lessor under the ordinance.</p>

<p>1. Taxes—return of the assessment—must be within the time presm'ibed. An ordinance of the city of LaSalle, prescribing the manner of assessing property for taxation in the city, provided that the assessment should be completed and returned to the city clerk’s office by a certain day, and thereupon the clerk should give notice that objections thereto would be heard by the city council on a day designated in the ordinance: Held, this requirement to return the assessment by a given day, was not simply directory to the assessor, but was mandatory, and its performance indispensable to the validity of the assessment.</p> <p>2. So, upon an application for a judgment against certain delinquent lots in that city, for taxes, the objection that the assessment was not returned within the time prescribed in the ordinance, was fatal to the application.</p> <p>3. Same—effect of act of 1853, amendatory of tlw revenue law. Nor did the act of 1853, which provided that the failure to return the assessment in time should not vitiate, cure the omission in this case, as that act had no relation to assessments for corporate purposes,—they are regulated by the revenue law of the municipality.</p>

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

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

<p>1. Jurisdiction in chancery—assignee of a contract—remedy at law. A railroad company entered into a contract in writing with a person, by the terms of which the latter was to manufacture for the company a certain number of cars. This contract was assigned by the party who was to manufacture the cars, to another, who furnished a part of the cars, and assigned his interest in the amount owing upon the contract to certain persons to whom he was indebted for materials, furnished for the construction of the cars. These creditors thereupon instituted their suit in chancery against the railroad company, to enforce the payment of the money due under the contract, to them: Meld, the complainants had no status in a court of equity. If there were any liona fide assignees of the contract, they could maintain a suit at law for their use.</p> <p>2. Splitting a cause oe action. A cause of action arising upon a contract which is an entirety, can not be severed by means of partial assignments, so as to become the foundation of several suits instead of one.</p>

William A. Porter, Judge, presiding. This was an action brought by Emma Gilbert against the American Merchants’ Union Express Company, to recover for the alleged loss by the defendant of the sum of $1000 delivered, as alleged, by the plaintiff, in a sealed envelope addressed to herself, to the defendant, at its office in Chicago, for transportation to Hew York.

S. D. Putebbaitgh, Judge, presiding. This was a proceeding for condemnation of land for a right of way for the Peoria & Bock Island Bailway Company, which was incorporated by the act of March 6, 1867. Section 16 of that act authorizes the corporation so created to condemn lands under the provisions of an act to incorporate the Mississippi Bailroad Company.

<p>1. Lien—upon reed estate of sureties of school officers—at what time it attaches. Under tlie school law, the lien upon the real estate of a surety upon the official bond of the treasurer of a board of school trustees, in case of the default of such officer, will attach, if judgment shall thereafter be rendered, from the date of the issuing of process in a suit upon the bond, without reference to the time of service.</p> <p>2. Specific performance in favor of the purchaser—delay inpayment. A court of equity will enforce the specific performance of a contract for the sale of land, in favor of the purchaser, where time is not of its essence, although the money was not paid within the time fixed by the agreement of the parties, if any reasonable excuse for such delay be shown.</p> <p>3. Rescission of contract by vendor—for default in payment. In a suit instituted by a purchaser of land, to enforce a specific performance, it appeared that in May, 1864, the complainant proposed to purchase the premises at a stated price, a portion to be paid down and the balance in one and two years. On the 12th of that month his offer was accepted and the contract closed,—the cash payment made, and the purchaser took possession. On the 16th or 17th of June following the vendor proposed to accept, in satisfaction of the contract, a less sum than the amount of the deferred payments if paid within thirty days, to which the purchaser assented. On the 17th of June a suit was instituted in the bounty in which the land was situated, against the vendor as surety on the official bond of the treasurer of the trustees of schools in a certain township therein. Within the thirty days the purchaser tendered the amount to be paid within that time, and demanded a deed, but demanded that the vendor should first remove the lien he was advised was created by the suit on the treasurer’s bond. This the vendor declined to do. In August following the vendor tendered a deed and demanded the balance of the purchase money, but the purchaser refused to pay the money until the supposed lien was removed. . Soon after, the vendor attempted to rescind the contract by a sale to other parties: Held, the vendor did not, under the circumstances, have a right to rescind the contract on account of delay in payment. The purchaser was not bound to determine whether the issuing of the summons in the suit on the treasurer’s bond, operated to create a lien to his injury. It was sufficient in such case to justify the delay in payment, that the facts cast a cloud upon the title and rendered it suspicious in the minds of reasonable men, and to some considerable extent affected its value.</p> <p>4. Same—placing purchaser in statu quo. Under the circumstances mentioned the vendor would have no right to rescind the contract, even though the purchaser did not make payment within the time agreed upon, without first returning to him the money he had paid, or offering to do so. The vendor was in fault in not removing the cloud upon the title.</p> <p>5. If there be mutual fault, the party who seeks to avail of the right to rescind must place the other party in statu quo. Or, if there be fault on the part of one party and the other party refuses to perform the contract for that reason, the former, before he can rescind the contract for non-performance, must restore whatever consideration he has received.</p>

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

Appeals from the Superior Court of Chicago. These cases arose upon proceedings had in the court below upon applications for judgments upon a certain special assessment warrant, in the city of Chicago. Judgments were rendered in favor of the city, from which the several owners took these appeals.

<p>1. Amendments of bill in chancery—when allowable. As a general rule, amendments to the pleadings in chancery are in the discretion of the circuit court, and, when permitted for" the furtherance of justice, the opposite party can not be heard to complain unless he can show his substantial rights have been prejudiced thereby.</p> <p>2. In this case the complainant was allowed to so amend his bill upon the argument of the cause as to adapt the pleadings to the proofs of the defendant already in. There being obviously no delay occasioned, and it not appearing the defendant was in any manner surprised thereby, the amendment was regarded as properly allowed. The 34th section of the chancery act provides that the circuit courts, when sitting as courts of equity, may permit the parties to amend their bills, petitions, pleas, etc., on such terms as the court may deem proper, so that neither party be surprised or delayed thereby.</p> <p>3. Ustjky—principle on which it is allowed, as a defense. Usurious transactions, from the actual or presumed disparity of condition between the parties, the borrower being generally controlled by a necessity which places him measurably within the power of the lender, have ever formed an exception to the general rule that parties shall be deemed in pari delicto, when they intentionally participate in the violation of law, the borrower being regarded as under such constraint of circumstances, such moral duress, as to take from him the character of particeps criminis.</p> <p>4. Same—parol evidence dllotmble. In regard to transactions alleged to be usurious, parol evidence is admissible, in equity, to vary or contradict written contracts, for the purpose of showing their real character, and it has been held admissible to show by parol that a contract in the form of an absolute sale, was but a security for an usurious loan.</p> <p>5. Same—what constitutes usury. In this case, a loan for $5000, was negotiated, and a note given to the lender for that amount, with ten per cent interest, the money not being paid to the borrower at the time, however, but the lender gave him a letter of credit authorizing the borrower to draw on him for the sum mentioned in the note whenever it should be made satisfactorily to appear that the security offered was sufficient. The borrower received only §4500 of the amount, and it was understood he was to receive no more, the deficiency being represented by a draft drawn by the borrower and delivered to the lender at the time the note was given, and which was never paid. The transaction was held to be usurious, the draft mentioned having been given to cover its real character.</p> <p>6. Accounts—sZiettó be referred to tlw master. Questions arising out of matters of account, Unless there has been a reference to a master to take and state the account, and. the proper exceptions taken before him and in the court below, will not be considered by this court</p>

John M. Scott, Judge, presiding. This was an action brought by Anna B. Loehr against Adlai E. Stevenson and others, upon a promissory note executed by the defendants to the plaintiff. Upon trial by the court, a jury being waived, judgment was rendered in favor of the plaintiff for the amount of the note. The defendants appeal.

Joseph Sibley, Judge, presiding. This was an action brought by Bray against the railway company, before a justice of the peace, for the alleged killing . of plaintiff’s stock by the defendant’s train. Judgment was rendered in favor of the plaintiff, from which the defendants appealed to the circuit court. A trial by jury in the circuit court resulted in a verdict and judgment for the plaintiff for $90. The defendant brings the cause by appeal to this court.

<p>Measure or damases—pecuniary ability of the parties. In an action against two or more to recover for injury to the plaintiff, wherein the plaintiff is entitled to exemplary damages by reason of the conduct of the defendants, which occasioned the injurj'-, being wilful, wanton or malicious, the pecuniary ability of one defendant should not be considered by the jury in determining the damages which a co-defendant shall have assessed against him.</p>

S. L. Richmond, Judge, presiding. This was an action on a promissory note, purporting to have been signed by Warren Coman and Marston Hefner, payable to Janies Vandolah, the plaintiff. Hefner alone was served with process, and pleaded the general issue, and also filed a special plea denying the execution of the note. The cause was tried by the court, a jury having been waived, and judgment rendered for the plaintiff Hefner appeals.

Writ of Error to the Circuit Court of Scott county; the Hon. Charles D. Hodges, Judge, presiding. This was an action brought by Puffer against Smith, on a promissory note alleged to have been executed by the defendant. As a defense, it was alleged, the signature of the defendant was obtained to the note through fraud and circumvention.

<p>Appeal from the Circuit Court of McLean county; the Hon. John M. Scott, Judge, presiding.</p>

A. J. Gallagher, Judge, presiding. This was an action of assumpsit, brought by Ginrich upon a promissory note executed in the firm name of Ulery & Hudgins, and also by Owen J. Doyle and Isaac Wilson.

<p>1. Consideration—agreement for an extension of time. If a debtor gives Ills note for an additional sum, upon an agreement for an extension of time fof the payment of the original indebtedness, but the agreement specifies no time for such payment, so that it may still be enforced presently, there will be no consideration for the new note.</p> <p>2. Usury—what constitutes. A purchaser of land being unable to meet his payments promptly, executed to his vendor a new note, payable in gold doin¡ or in United States treasury notes with a premium to be added equal to the difference between the value of gold, and treasury notes, on a certain day, which was largely more than the rate of interest allowed by law. The original contract was payable in treasury notes: Held, the new note was Usurious, as it gave to the vendor more than the legal rate of interest.</p> <p>3. Consideration—want of. Where the maker of a promissory note, which is payable in United States treasury notes, not being able to meet the same at maturity, gives another note to his creditor, payable in gold, in order to secure the latter against any loss by reason of the depreciation of treasury notes after the maturity of the original note, and before its payment, the second note given for such purpose will be without consideration.</p>