Volume 60 — Illinois Reports

<p>1. Special chartebs for towns — under constitution of 1848. The constitution of 1848, by authorizing the adoption of township organization, did not prohibit the general assembly from creating towns with special charters. In the absence of such a limitation, that body has power to create municipal corporations, as well in regal'd to a town six miles square, as to a village with less territory.</p> <p>3. Special assessments. Such a charter authorizing special assessments to be levied, is not unconstitutional because it does not require them to be made on the principle that the benefits must at least be equal to the assessment. But the'constitution of 1848 requires assessments tobe so made, and an assessment in excess of benefits would be void.</p> <p>3. An ordinance requiring a specified sum to be assessed on the property in the town, benefited by the improvement, without reference to whether the property is benefited to that amount, and without requiring it to be levied on the principle of equality of benefit and burthen, is void, and the levy of an assessment under it can not be enforced.</p> <p>4. Municipal CORPORATIONS — their powers. Under a charter creating a general municipal government, with all the ordinary machinery thereof, such a body has the power to erect a town hall in which to hold town meetings, elections, and for other corporate purposes, and whether such a building is necessary, is a question that must be left, in a great degree, to the people and the officers, and an application of the fund to such a purpose, in the absence of evidence, will not be held such a perversion of the fund as is not included in the provisions of the charter.</p>

<p>1. Equitable lien — debtor and creditor — control of 'partnership funds. Where several persons, acting together, borrowed a sum of money from a bank, and shipped a lot of cattle to market consigned to another person to sell, who, after making sale, paid the expenses and charges attending the shipment and sale, and also paid off and discharged a mortgage on the cat-' tie, and held about half of the proceeds in his hands, and one of the partners directed him to pay it to the bank, and he agreed to hold it subject to the order of the partners, and it was paid to one of the partners by his, and the direction of another, who constituted a majority: Held, that by the direction of one partner to pay to the bank, and what he said, gave the bank no lien on ,the fund, and the agent Was authorized to pay it, as he did, under the direction of the other two partners, and as he paid the money before the bank filed their bill to enforce payment out of the fund, there was nothing upon which an equitable lien could attach.</p> <p>2. Verbal promise — statute of frauds. But even had the person, to whom tlie shipment was made, promised to pay the balance to the bank, as it-was not in writing, and signed by him, the promise would have been for the payment, of the debt of another, and within the statute of frauds!</p>

<p>1. Notice — necessity thereof \ in judicial proceedings. The principle is very general, subject to few exceptions, that all persons whose rights are to be affected by an order or judgment of a court, must have notice, actual or constructive, of the pendency of the proceeding against them.</p> <p>3-, Same — in respect to an order of distribution of money of an estate. In case of a surplus remaining in the hands of an administrator from the sale of lands directed to he sold to pay debts, an order made by the probate court for its distribution, without notice to those entitled thereto, is void.</p> <p>3. Obdee of distribution — setting it-aside at a subsequent term. Where a probate court improperly made an order for the distribution of money in the hands of an administrator, without notice to. those entitled thereto, there having been no final settlement of the administration, and nothing done under the order of distribution, the whole matter was in fieri, and it was competent for the probate court, on notice to the administrator, to set aside such order at a subsequent term.</p>

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

<p>1. Count for goods sold and delivered. It is essential to the indebitatus count for goods sold and delivered, that it should aver they were sold and delivered to the defendant at his request. Where such an averment is wanting in such a count, upon a special demurrer, the count would be bad.</p> <p>2. Allegations and eeooes. Where a count avers that the defendant purchased of plaintiff a quantity of corn at the highest market price for similar shelled corn in the city of Morris at the time of delivery, the plaintiff could not recover on such a contract by showing a delivery of corn at another place, and under a contract which did not specify any price at any place.</p> <p>3. Contract — as to price to be paid. Where one party said to another, when he got ready to shell his coil], haul it to his warehouse in Seneca and he would make it satisfactory as to price, and the corn was hauled and delivered at the warehouse, the law implies a contract to pay the market price at the time and place of delivery, for which a recovery may be had.</p> <p>4. Receipt — whether it amounts to a contract. AVhere, upon the delivery of grain, a receipt is given therefor, subject to the market price of corn, on its return to the person giving it, by a day named, and storage to be paid, and on the back of the receipt there were dates and figures showing other deliveries at different times, and there was evidence tending to show' that the person did not call for a receipt, but only for a memorandum of the dates, and amounts delivered, and that the person to whom it was given did not know its contents, it was for the jury to say whether the receipt expressed the contract of the parties, and whether the amounts indorsed on the back of the receipt were to be subject to the same terms.</p> <p>5. Instructions — oral explanation by the court. AVhere the court had given instructions for both parties, and gave an instruction on his own motion, it was error to preface it by the oral remark, iu the presence and liearing of the jury, that he had concentrated all there "was in those instructions into this one, as embodying all the law necessary for the case, when it did not, in fact, present all the law of the case, and withdrew from Use consideration of the jury evidence that was before them.</p>

<p>1. PARTNERSHIP — proof thereof — by reputation. Whether persons are partners inter se, or quoad third parties, must be established by facts, by the acts of the party, or by circumstantial evidence, which induce the belief of a partnership. The question turns upon the assent of the person to be charged, and not upon general repute. A partnership can not be proven by general reputation.</p> <p>2. Instructions — need not be repeated. Where proper instructions have been given in a case, it is not error to refuse to repeat them.</p> <p>3. New trial — newly discovered evidence. It is not error to refuse to grant a new trial on newly discovered evidence which is only cumulative and inconclusive in its character.</p> <p>4. On such an application it must appear that the party asking a new trial, has used due diligence to discover evidence before the trial.</p> <p>5. Plea — notice of defense. When a plea, denying a partnership, is filed, it is notice that such a defense will be made.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Charles H. Wood, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Charles H. Wood, Judge, presiding.</p> <p>This was an action brought by Munson against Mead, on a promissory note executed by the latter in favor of Horn & Hanna, the payees having assigned the note to the plaintiff. The defense interposed was, that the execution of the note was obtained through fraud and circumvention. The plaintiff recovered a judgment in the circuit court, and the defendant appeals.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. I-IeNRY Booth, Judge, presiding:</p>

<p>Appeal from the County Court of LaSalle county; the Hon. Charles H. Gi'lmaN, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This was a proceeding to enforce a mechanic’s lien. The original petition was filed April 6, 1867. It' appears that A. F. Croskey held the legal title to the southeast quarter of southeast quarter of section 1, town 39 north, range 13 east, in the city of Chicago — George A. Shufeldt, being his partner in business, having an equitable interest, and the firm being owners of valuable improvements upon the land.

<p>Writ op Error to the Circuit Court of Fulton county; the Hon. Chauncey L. Higbee, Judge, presiding.</p>

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

Josiah McEoberts, Judge, presiding. This was an action of ejectment, brought hj Seth W. Hardin against Nial S. Osborne, for certain lands in-Will county. It appears that the lands in question were the property of William B. Egan, under purchases from the United States. They were sold by the sheriff December 23, 1837, under a judgment in favor of Eurotus P. Hastings, against Egan.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. ¥m, "W. Farwell, Judge, presiding.</p>

<p>1. Lease — assignment. At the ancient common law, a lease, like any other agreement or chose in action, was not assignable so as to'gire the assignee an action against the tenant; but, by the 32 Hen. 8, chapter34, section 1, the assignee of the reversion became invested with the rents, and where the tenant attorned to him, he might maintain an action of debt to recover subsequently accruing rents.</p> <p>2. Although the assignment of the reversion created a privity of estate between the assignee and the tenant, still it required an attornment to ere, ate such a privity of contract even under the 32 Hen. 8, as would authorize the assignee to sue for and recover the rent in his own name.</p> <p>3. The 4 and 5 of Anne, chapter 16, was adopted by the British Parliament to dispense with the necessity of an attornment, to enable tbe assignee to sue for and recover the rent from the tenant. But this statute is not in force in this State.</p> <p>4.Common uaw — British statutes — how far in force. Our general assembly has adopted the common law, and all British statutes, with a few exceptions, in aid of the common law, so far as they are applicable to our condition, passed prior to the fourth "year of James the First, as the rule of decision, until altered or repealed. The 32 Hen. 8, chapter 34, section 1, was adopted prior to that time, and is applicable to our condition, and is inforce. And the legislature, in adopting it, will be presumed to have intended to adopt the judicial construction that had been placed on that statute.</p> <p>5. Landlobd — tenant—grantee of the premises. Where a landlord had leased premises, and before the expiration of the term sold and conveyed to a third person, and the tenant had paid one or more installments of the rent to the grantee: Held, that such payment amounted to an attornment, and was such a recognition of the grantee, as his landlord, as authorized the latter to sue for and recover the rent by an action of debt.</p> <p>6. Former decision. The case of OTiapman y. McGfrew, 20 Ill. 101, considered and overruled.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. WilliAM A. Pobtee, Judge, presiding.</p>

<p>"Weit op Error to tbe Criminal Court of Cook county; the Hon. JOHN A. Jameson, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph H Gary, Judge, presiding.</p>

<p>1. Plea waives a demurrer to the declaration. Where a defendant demurs to the declaration and the demurrer is overruled, and he then pleads to the action, he waives the grounds of demurrer, and can not raise the legal questions presented by the demurrer. If he desired to do so, he should • have abided by his demurrer.</p> <p>2. Insurance — policy—condition—notice—waiver. Where an- insurance policy contained a condition that if the interest in the real estate be less than a fee, the nature of the title must be stated, or the policy should be void, in answer to the question, what is the title, and is it incumbered by mortgage, etc., it was answered, a fee simple. There was a mortgage on the property to secure a loan of $10,000 to the person to whom the loss was, by the terms of the policy, made payable; but that fact was known to the agent and the vice president when the policy was issued, and the agent of the company wrote the application: Held, that under such circumstances it would be a fraud to permit the company to escape liability on that ground. The assured had a fee simple title subject to an incum-brance, of which the officers were fully informed. There was not a concealment of the title. This case distinguished from the Illinois Mutual Insurance Go. v. Marseilles Manufacturing Go., 1 Gilm. 236.</p> <p>3. Same — re-building by the company. Where the charter of an insurance company provided that settlement should be made, and a payment of the loss within three months, unless they, within that time, determined to re-build, and were authorized to do so in a convenient time, “provided they do not lay out and expend in such buildings or repairs more than the sum insured on the premises,” and a loss occurs, and notice is served on the assured that the company had elected to re-build, but they failed to do so: Held, that by giving the notice, the contract was not changed to a contract to re-build, but the company, failing to re-build within a reasonable time, became liable to pay the amount of the insurance, with interest and a fair rental value of the ground while the owner is thus deprived of its use.</p> <p>4. In such a case, it is error for the court to instruct the jury that the company was bound to re-build, “cost what it may,” as they are restrained by their charter as to the amount that may be so expended. -</p>

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

EdwiN S. Lelahd, Judge, presiding. This was an appeal from the report and award of commissioners, appointed by the circuit court of Kane county to fix the compensation to William Duggan for land taken for the right of way through his farm, of the Chicago & Iowa Railroad Company, and to assess the damages resulting to him by the construction and operation of the road.

<p>1. ContRact — in respect to the location of a railroad. Two persona owning a tract of laud on tlie line of a railroad, contracted witli the president of another road then being constructed, and a firm of individuals who had contracted to build that road, to lay the land off into town lots, and, after selling lots to the amount of $4800, to convey to the president of the road and to the construction company an undivided half of llib remaining lots. The president and the individuals composing the construction company were to pay no money, but agreed to “aid, assist and contribute to the building' up of a town on said land:” Held, that if this contract was made to secure the- location of the road at a place where it would not be of the greatest benefit to the stockholders, of the road,.then .it was in the nature of a bribe, and can not be enforced; or, if the place where the parties agreed the road should be located, which was afterwards done, was the route best calculated to promote the interest of the stockholders and the public, and the officers of the company were professing to hesitate between it and another line to procure the agreement, that was a fraud, and the contract can not be enforced in equity.</p> <p>3. When the legislature grants a company a charter for the purpose o£> constructing a railway, the grant is made because it is supposed the road will bring certain benefits to the public; and when subscriptions are made to build such a road, it is with the understanding that the officers entrusted with its construction will so locate the line and establish its depots as to bring the highest pecuniary profit to the stockholders, compatible with a proper regard to the public convenience. These alone are the considerations t.'hich should control tlie action of the president and directors of the road, and só far as they permit their official action to be swayed by their private interest, they are guilty of a breach of trust towards the stockholders, and a breach of duty to the public.</p> <p>3. Equity. A court of equity will not enforce a contract resting upon the delinquency of such officers, or tending to produce it.</p> <p>4. Contract. If such a contract was entered into when the line adopted was only equally as good as another, then neither the company nor the public were injured, yet the company made their power instrumental of private emolument in a manner which a court of equity will not sanction. Public policy forbids the sanction of such contracts. -</p> <p>5. Ceoss bill — to remove a cloud, on title. Where, in such a case, the defendants file a bill to have the contract set aside as a cloud on their title, it is error in the court to grant the relief. Having entered into a contract, the effect or the tendency of which was to induce the other parties to commit a breach of duty, they are not entitled to the relief sought.</p>

<p>Execution from the county court of LaSalle county — within what time it may issue. A writ of execution can not issue for the first time on a judgment rendered in the county court of LaSalle county after the expiration of .a year and a day from the rendition of the judgment.</p>

Charles Tueker, Judge, presiding. This was an action of assumpsit, brought by George Smith and others against Perry Frazer and' others, to recover for damages resulting to the plaintiffs by reason of the failure on the part of the defendants .to comply with the terms of their contract to repair and put in good order for the plaintiffs certain machinery. A trial in the circuit court resulted in a verdict and judgment for the plaintiffs. The defendants appeal.

<p>New TRIAL — sufficiency of Hie emüence. Tbe evidence in this case is regarded as sufficient to sustain the finding of the court below.</p>

Joseph E. Gaby, Judge, presiding. This was an action for money had and received, brought by appellee against appellant, in the Superior Court of Chicago.

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by Sands’ Ale Brewing Company, to recover an unpaid balance upon a note for $2136, given by. John A. Leggat and Alexander J. Leg-gat, upon a purchase of one hundred and fifty barrels of Sands’ stock ale and two dozen brass faucets, of Sands’ Ale Brewing Company, for shipment to Montana, to be there sold by Leggats in the course of their business.

<p>1. Judicial sale — ;failure of title. Where, in a partition suit, the land was ^oun^ not susceptible of division and was sold by the master, and the proceeds partitioned, and the purchaser at that sale paid the money and received a deed from the master, hut afterwards the administrator of the ancestor of those who sought the partition died his petition for the sale of the land for payment of the debts, and under an order of the court one-half the land was sold for that purpose, on a bill filed by the purchaser at the master’s sale: Held, that he was not entitled to relief.</p> <p>2. It was held that, at a judicial sale, there is no warranty of title, and the maxim caveat emptor applies. The purchaser runs all risks'of title at such a sale. If the land descended to those seeking partition, burthened with a lien of the ancestor’s debts, he, at the master’s sale, purchased subject to have his title defeated by a sale for the payment of those debt3.</p> <p>3. SubRogatioN. In such a case there can be no subrogation, as there was no claim that could be subrogated. The lien of the creditors was discharged by the sale by the administrator, and the purchaser thereby acquired the title to the land and nothing more. There was no remaining right held by the creditors. He did not pay the money to satisfy or purchase the debts, but to buy the title to the land, which-he acquired, and nothing more. He acquired no right of the creditors which may have once existed. He purchased at the master’s sale land that was burthened with, and subject to, a lien that was capable of defeating his title, and he may have abated from the price the amount of the debts against the estate, but whether he did or not, he purchased without warranty or fraud.</p>

<p>Appeal from the Circuit Court of Woodford County; the Hon. S. L. RICHMOND, Judge, presiding.0</p>

<p>Weit op Error to the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.</p>

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

<p>1.' Cakriehs — liability beyond their oton lines. Where goods are delivered toa railroad company for carriage, marked to a particular place, and beyond tlie terminus of their line of road, the company receiving the goods are hound to carry them to the place of destination. To that extent is their undertaking at th.e common law, hut they may, by express agreement, limit their liability to their own route and to its terminus.</p> <p>2. Where, in such case, the shipper takes a receipt for the goods, from the company receiving them, containing conditions restricting their liability to their own line of road, if he accepts it with a full knowledge of such conditions and intending to assent to them, it.be,comes his contract as fully as if he had signed it.</p> <p>3. But whether the shipper accepted the receipt with a knowledge-of such restriction, and with the intention to assent to it, is a question of fact to be determined by the jury.</p>

<p>"Writ of Error to the Circuit Court of Tazewell county; the Hon. Charles TurNer, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Kuos county; the -Hon. AethueA. Smith, Judge, presiding.</p>

<p>1. Sale oe chattels — delivery—payment. "Where chattels are sold, and no time of payment is fixed by the contract, payment is a condition precedent, implied by law, and the title would not vest until payment, ■unless waived b3r the vendor.</p> <p>2. Same — waiver of payment. The vendor, in such a case, may waive payment, and if he does, the title to the property sold will vest in the vendee.</p> <p>3. Same — Iona fide purchaser. But even where there has been no waiver by the seller, still, if he delivers the property to the purchaser, and thus vests him with indicia of ownership, and he sells or pledges it to a Iona fide purchaser without notice, the latter acquires rights which will he protected. Where the property is thus placed in the hands of the purchaser, as to third persons who become tona fide purchasers, it does not matter as to the intent with which it was delivered.</p> <p>4.Such a case as the present is unlike one where something remains to identify or separate the property, or ascertain its weight, etc., as nothing remained here, not even a delivery, but to pajr for the property, to complete the sale, and fully vest the title as between the contracting parties. Where one of two iunocent parties must suffer loss by the fraud of another, the person who enables the commission of the fraud must sufier the loss.</p> <p>5. Feaud — void and voidable contract. Fraud in the purchase of property does not render the sale void, but it is voidable at the option of the party defrauded And where a person purchases and acquires the possession of properly by fraudulent means, and sells it to a bona fide purchaser without notice, the latter acquires title thereto before the sale is avoided and the property is reclaimed.</p> <p>6. Pledge — delivered as collateral security. Where a person purchases a lot of liighwines and is to pay for them on delivery, and the}' are delivered late in the afternoon, the seller saying he will leave them until the next'morning when he will call and get his. pay, and the purchaser ships them to New York and draws drafts on a bank and attaches the shipping receipts to the drafts as collateral security for the payment of the monejq and the drafts are presented to a bank and they are cashed: Held, the bank, having no notice that the liighwines had not been paid for, acquired a valid and binding lien on4the property as a pledge for the payment of the money; and that it would be protected against the vendor’s claim for the purchase money.</p> <p>7. Bill oe lading — its transfer — delivery. The transfer of a bill of lading by the shipper, on a sale or pledge of the property shipped, is a symbolical delivery of the property, and this, too, without any indorsement on the bill. The shipper, when he is the owner of the property shipped, does not lose his title hy inserting the name of a consignee when he ships the propert}'. The title still remains in him unaffected. In such a case, the consignee becomes the factor or commission merchant of the shipper.</p> <p>8. Same. In such a case the same rule applies to the shipper who is not the owner, but has been put in possession of the property under such circumstances as to sell and pass the title to an innocent purchaser. Such a pledge and transfer of the bill of lading, transfers a legal and not a merely equitable title in the pledge.</p> <p>9. Bailee — notice of adverse title to fhe pledge. Where it appeared that it was usual, on tlie sale of highwines among dealers and rectifiers, to accompany the transfer with what are called coupons, hut not with hankers who advanced money on drafts on hills of lading of highwines shipped, to have the coupons accompany the hills of lading: Held, that in this case the want of such coupons to accompany the hills of lading, was not notice that the pledgor had no title, or a defective one.</p> <p>10. Notice — payment. A notice of defective title in the pledgor comes too late to affect the pledgee, after he has advanced the money secured hy the pledge. To be operative, the notice should have been prior to the payment of the money. ' -</p>

HeNRY Booth, Judge, presiding. This was an action brought by Torgerson against the city of Chicago, to recover damages for the breaking of his legj occasioned, as alleged, by a defective sidewalk in said city. The plaintiff recovered a judgment for $400, to reverse which the defendant appeals.

<p>Appeal from the. County Court of LaSalle county; the Hon. Charles H. GilmaN, Judge, presiding.</p>

<p>1. Bill IN equity — cloud on title. A party in possession may maintain a bill to cancel an invalid tax title and certificate of piircbase as a cloud on his title.</p> <p>2. Equity — terms imposed. In such a case the court will require the complainant to pay the purchase money at the tax sale, and all taxes subsequently paid on the land with six per cent interest, as conditions to granting the relief sought.</p> <p>3. It is error, on granting relief in sucli a case, to require the holder of the tax title to release his title to complainant. The court, in such a case, should simply restrain the holder of such title, his heirs and assigns, from ever asserting the same.</p>

<p>Witness — competency of, under act of 1867. In an action on a promissory-note, where the plaintiff sued an administrator of a deceased person, a question arising as to what constituted the consideration of the note, a person who acted as agent of the deceased in the transactions out of which tlie consideration arose, was allowed to testify as to his understanding of what the consideration was: 1Held, that one of the defendants'who was a surety on the note, and was present during such transactions, and who testified lie knew what was the consideration of the note, was a competent witness, under the second clause of section 2 of the act of 1867, to testify to the same point.</p>

<p>Tebspass to reált¡/ — of exemplmy damages. In an action of trespass guare clausum fregit, to entitle the plaintiff to recover vindictive damages, it should appear that the trespass was wanton, wilful or malicious.</p>

<p>1. TRESPASS — to personal property — -Jailing a dog. Where one person hills the dog of another, which has been scared and runs upon his premises, but has done no injury, or was attempting to do none, but simply because the party killing it suspects that the dog had previously interrupted his hens’ nests, such act is a trespass, for which the perpetrator is liable.</p> <p>2. OwneR oe dog — Halle when, for his trespasses. If a dog is vicious, and the owner has notice of the fact, an action would lie against him for damage by the dog. But the party injured has no more right to kill the dog than he would have to kill a breachy animal for breaking into his corn.</p> <p>3. Same — liability of owner — justification under the statute. Our statute has .enacted the common law in declaring that the owner of a dog shall be liable for all damages sustained by reason of such dog killing, wounding, or chasing sheep, or other domestic animals. And the same act authorizes any person, who may discover any dog, killing, wounding, or chasing sheep, or discover such dog under circumstances that satisfactorily show that the dog has recently been so engaged, to immediately pursue and kill such dog. No one but the master of a dog has the right to kill him, except where the dog is found killing, wounding, or chasing sheep, or under circumstances which show that the dog lias been recently so engaged, or where he has been recently bitten by a rabid dog, or by one reasonably supposed to be so, or where a dog is ferocious and attacks persons.</p> <p>4. Right oe action — proof of pecuniary injury. It is error, in sucha case, for the court to instruct the jury that, to recover, the plaintiff must prove, by a preponderance of evidence, that the dog was his property, and was of some pecuniary value. The law recognizes the right of property in a dog, and if it was destroyed without legal justification, the law implies damages, and plaintiff is entitled to at least nominal damages, as it does in every case of illegal invasion of the right of property of another.</p>

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

<p>Appeal from tbe Circuit Court of AVoodford county ; the Hon. Samuel L. Riohmond, Judge, presiding.</p>

<p>1. ARBITRATION — of the submission. It is indispensable to the jurisdiction of courts to render judgment upon an award of arbitrators that the submission be executed with the formalities of, and contain, in substance, what is required by the statute.</p> <p>3. A submission under the 1st section of the chapter of the Kevised Statutes, entitled “Arbitrations and Awards,” which authorizes persons to submit to the award of arbitrators any controversy existing between them, not in suit, it appearing the submission was not attested by any witness, was regarded as insufficient to confer jurisdiction on the court to render judgment upon the award.</p> <p>3. The submission recited: “And it is hereby further agreed and understood, by and between the said parties, that this submission shall be made a rule of the circuit court within and for the county of Kane aforesaid Held, such language was not equivalent to an agreement that a judgment should be rendered upon the award made pursuant to the submission, as provided by the statute.</p>

<p>Appeal from the Superior Court of Cook county.</p>

<p>1. Pleadings — evidence—variance. In a case where an instrument in writing is not declared on as the cause of action, it may, nevertheless, be read in evidence, although it may vary from the averments in the declaration, if it tends to prove the issue.</p> <p>2. Mistake — measurement of property sold. Where a party sold a quantity of hay to another, to be paid for at an agreed price per ton, in a particular mode, when the quantity should be ascertained by persons they might choose, and persons were selected and the amount determined and reported by them: Udd, on a trial in' a suit for a breach of the contract, that the defendant could not prove that the persons selected had made a mistake in ascertaining the amount, hut their determination might be questioned for fraud. Fraud in an award may be shown either at law or in equity, but mistake is cognizable only in chancery.</p> <p>3. Even if a mistake could be corrected in an action at law, it would have to appear that the persons making the mistake were misled, deluded, or misapprehended the facts.</p> <p>4. Fuaud — evidence. Where the evidence is admitted as to the basis on which such a calculation is made, the presumption is that it was considered by the jury, and that they determined whether there was so gross a mistake as showed a fraud on the part of the referees.</p> <p>5. Evidence as to-value. It is not error to admit evidence of the value of the property sold, at or near the place of delivery, but not at distant points.</p> <p>6. Same — basis of calculation. Although a witness may not be required to make a calculation of the number of tons of hay in stack, he may be required to give the basis upon which it was made. If the intention was to show that he was unable to make the estimate, he could be asked if he could make it. »</p> <p>7. Checks — stomps—objections not urged on the trial. Where checks were offered in evidence that had been tendered under the contract, lnjt did not liave attached the required revenue stamps, but no objection was made on that ground, the objection can not be urged for the first time on appeal, when the seller did not refuse them on that ground, but placed the refusal upon the claim that the estimates were not correctly made as to the quantity of the property sold.</p>

<p>Arpear from tbe Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. DIVORCE — alimony. Where the court has decreed a divorce on the application of the wife, and thereupon the parties agree upon the alimony which the husband shall pay the wife, consisting of a gross sum of money, furniture and silver ware, etc., and it is also agreed that the husband shall support and educate an adopted daughter: Held, that the court will not inquire whether the amount decreed for alimony is too large, as it was fixed by the voluntary agreement of the parties.</p> <p>2. Inasmuch as the support and education of the adopted child was agreed upon by the parties, the court will not determine whether such a decree could have been rendered without consent; and that, as the decree finds that the parties had agreed upon its terms, it will be presumed that the court was satisfied that the parties had voluntarily agreed upon that part of the decree.</p>

<p>Special assessment — void ordinance and assessment. Where an ordinance, directing the improvement of a street upon.whic.h an assessment is made for the purpose, directing it to be curbed with curb walls, where they are not already built., and curb walls be re-built where they are not in a good and sound condition, the work to be done under the superintendence of the board of public W'orks: Held, the ordinance and assessment under it are void, as the ordinance attempts to confer discretionary power which can only be exercised by the common council, and tended to induce unfair assessments, favoritism and fraud.</p>

<p>1. Deed — delivery—what sufficient. Tbe delivery of a deed need not be made by the grantor himself, nor is it indispensable that it be made to the grantee. If made to any person for the grantee, and it is absolute and not conditional, his assent will be presumed.</p> <p>2. Where a party proposes to make a donation of a tract of land to an educational -institution, makes a deed thereto and hands it to one of the trustees who was superintending the erection of the buildings thereon, but imposes no conditions and gives no directions in reference to the deed, and subsequently dies, the presumption is that he intended to deliver the deed.</p> <p>3. The dped, in such a case, takes effect from the'time it is delivered to the trustee, and not when it is handed by him to the secretary of the institution; no act was to be done by the company, and they were in possession and engaged in erecting a building thereon when the deed was made. This was evidence of an intention to deliver and to accept, and the intention must control.</p> <p>4. Coepobation — organization. Where parties endeavor to organize a corporation for educational purposes, under the general law, adopt a name, elect trustees, and organize by electing a president and officers, and the trustees had acted for years in managing the property, had leased and mortgaged it, and expended a large sum of money in its improvement, these acts constitute it a corporate body de.facto, and the regularity of its organization can not be questioned collaterally. Such irregularity can only be questioned by quo wm'ranto or scirefacias.</p>

<p>1. Mohtga&e — trustee—husband and wife. Where a husband and wife held land in equal parts, and it was agreed that the husband should purchase the wife’s half at a stipulated price, a part of which he paid, and to secure the balance he and his wife conveyed to a trustee, who conveyed to the husband, and lie gave to the trustee anote for the balance of the purchase money, and a mortgage on the premises to secure its payment, and the trustee afterwards transferred the note and mortgage to the attorney of the wife for collection, and he brought a bill to foreclose the mortgage: Held, that, as between the husband and wife, the note and mortgage amounted to no more than an unexecuted voluntary promise by the husband tó give her that sum of money, and that equity will not enforce such a promise against the land of the husband previously held.</p> <p>2. But in such a case, it would be a fraud on the wife to permit the husband to retain the title to the half of the land previously held by her, and that a foreclosure would be allowed as to that half.</p> <p>3. Same — cancelling conveyance. Where a wife, by threats of abandoning her husband, and that she would not live with him, procured from him a.conveyance,'through a trustee, of a half of a tract of land, and he acquiesced therein for a considerable time: Held, that such acts do not constitute grounds for cancelling the deed from him to her.</p>

<p>Assignment op eruoks — abstract. Upon an appeal to this court, tvliere there was no assignment of errors upon the record in accordance with the rule of court in that regard, and none accompanying the record, and the appellant failed to file an abstract in the manner required, but instead thereof merely a printed index to the transcript, the court refused to consider the case, and affirmed the judgment of the court below.</p>

<p>1. Lite insurance policy — assignment by wife. Where a person insured his life for the benefit of his wife, and she endorsed her name on the policy in blank, and the husband procured a loan of money and pledged the policy as collateral security, and afterwards paid the agent of the company the larger portion of the premium, and the creditor holding the policy haring called on the agent to learn whether the premium had been paid, .and being informed by the agent that the greater part had, and the'balance would be paid in a few days; the time for its payment was permitted to pass, and the agent declared a forfeiture, and a new policy was issued to the wife in her name, for the same amount, on the same terms, and in other respects similar to the first, and the sum paid towards the premium oil the first policy was applied to the premium on the new policy; and the person whose life was insured having died, the creditor claimed that lie was entitled to payment out of the funds: Held, that the declaring the forfeiture and tlie issuing Of the new policy did not.affect the rights of the creditor, and that his lien attached to the fund under the new policy as beheld it under the first. .</p> <p>3. The new policy was, in substance, though different in form, a mere renewal of tlie old. It was a renewal evidenced by the policy instead of a receipt, and the creditor should be allowed the same interest he would have had in the old if the same money had been applied in procuring the ordinary renewal.</p> <p>3. Assignment by wife — its effect. The wife having placed her name .on the back of the policy at.the request of her husband, and delivered it to him, she thus enabled him to procure the loan of money, and it would be opening a door to fraud to permit the wife to deny the power of the husband to fill up the assignment. Such an assignment by the wife must be held valid and binding in equity. By signing her name in blank, she gave the public the evidence of her consent — an act that could only be interpreted as designed for an assignment — and the same consequences must attach against her as would follow from such an act performed by any other person.</p>

<p>1. Deed of trust — sale under. Where a person, being indebted, conveyed his property, real and personal, to a trustee, to be sold for the payment of his debts, aud a portion of the real estate was conveyed to his principal creditors in satisfaction of their claims: Held, that those debts formed a sufficient consideration to support the conveyance, although the proceeds were not applied on all of the debts.</p> <p>2. Same — rights of creditors. A deed of trust so executed, although in fraud of creditors, is, nevertheless, binding on the grantor.and his heirs and assigns. The statute only makes such deeds void as to creditors and bona fide purchasers. Where, in such a case, the grantor is estopped by such a deed, those who subsequently become his grantees are in like manner estopped.</p> <p>8. Same. If a trustee, in such a case, conveys the land in violation of the trust, other creditors have the right to have the fund properly applied. If a purchaser of such a trustee has not acquired title in good faith, a court of equity, on a proper application, would appropriate the fund to the purposes of the trust. But even if the purchase from the trustee was not bona fide, that does not give the grantee of the debtor the right to wrest it from the purposes of the original trust.</p> <p>4. Conveyance — homestead—claim of. Where a party conveyed the house and lot on which he resided with his family, and the right of homestead was not released, and the wife did not join in the deed, the conveyance passed the fee, but subject to the right of the grantor to retain it and occupy it as a homestead, but when he abandons it, the homestead right ceases. That right is not au estate, but simply a privilege conferred by the statute, which ceases when the grantor and his family cease to occupy the property. As soon as he ceases to so occupy it, the right to hold it, adversely to the fee, is gone, and the grantee may enter and hold’possession.</p>

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. W. W. HeatoN, Judge, presiding.</p>

<p>1. Assessment eor widening a steeet — Zlorse railway not exempt. Where a horse railway company constructed their road in one of the streets of the city, with the agreement that the company should keep so much of tlie street as they occupied in l'epair, according to the requirements of the common council for the repairs of such streets, hut the company were ex- ' empted from assessment fbr grading, paying, macadamizing, filling or planking the streets or parts of streets upon which they should construct their railways: Helé, that this agreement did not exempt the company from assessment to defray the expense of widening the streets upon which their railways are constructed.</p> <p>2. Former decision. An ordinance of a city provided that a street railroad company, as respected the grading, paving, macadamizing, filling or planking of the streets upon which they should construct their railways, should keep so much of said streets as should he occupied hy the railways, in good repair and condition, in accordance with the regulations of thecily in that regard. It was held, in Chicago v. Sheldon, 9 Wallace, 50, that an ordinance of that character, which had been recognized and confirmed by the legislature, was not unconstitutional, and it was upheld, upon the principle of commutation, and as being a contract, the obligation of which could not he impaired. To this extent the case of Chicago v. Baer, et al. 41 Ill. 306, is modified.</p>

<p>1. Measure op dama&es — refusal to receive property and pay for it. Where a person purchased of another the hair and bristles of all hogs he might kill during the season, at a specified price per head, and was to take and pay for them, and the seller, when he commenced slaughtering, gave the buyer notice and requested him to take away the hair and bristles and pay for the same according to the agreement, but the buyer refused, and the vendor then sold the hair and bristles for the highest market price: Held, that he could recover the difference between the contract price and the market price; that this is the true measure of damages for such a breach of contract.</p> <p>2. Sale — breach—re-sale—notice. Where such a breach of contract occurs, the vendor may re-sell the goods without notice to the buyer that he will do so, and the vendee will be liable for the loss sustained.</p> <p>3. Same — time for payment. Where a party purchases goods at an agreed price, and no time is fixed for payment, the law implies that payment is to be made when the goods are delivered.</p>

<p>1. Limitation — application by administrator for sale of land to pay debts. There is no period of lime fixed by the statute of limitations within which an administrator is required to file his petition for leave to sell real estate for the payment of debts, but, in analog}' to the statutes of limitation relating to the lien of judgments, and, under certain circumstances, to bringing the action of ejectment, seven years have been held to bar numerous proceedings, but in the absence of statutes on such subjects, each case must largely depend on its own circumstances, and where more than seven years liave elapsed, the delay may be explained.</p> <p>2. Administkatob — petition'to sell real estate. An administrator, a short time after the grant of letters of administration, filed his petition to sell real estate to pay debts, and a portion of the creditors opposed the sale at that time on the ground that the proceeds thereof would amount to but little more than enough to paj' the widow $1,000 for her homestead and the value of her dower in the land, and a sale would operate as a sacrifice of the property without benefit to the creditors; the application was continued from term to term and finally discontinued; and after a number of years the administrator was removed and another appointed; and subsequently, after the lapse of some eleven years from the grant of the first letters, this proceeding was commenced; the widow had died, and the heirs were all of age: Held, that these circumstances sufficiently explained the delay, and that, as the land was held by the heirs of deceased, the order for the sale thereof might be made, notwithstanding more than seven years had elapsed.</p> <p>3. Evidence. The evidence that one of the heirs had purchased the interest of others, but whether before or after the commencement of the proceeding, did not appear, nor whether the purchase had been consummated or the consideration paid, was too loose to be considered by the court.</p> <p>4. Equity. In a proceeding of this character the court has no power to adjust the equities of the parties. The statute only confers power to order the sale of the real estate, in a proper case.</p> <p>5. Minority — guardian a’d litem. The minority of a woman ceases in this State at the age of eighteen years, and in a case of this kind the statute does not require the appointment of a guardian ad litem for a female defendant over eighteen, and under twenty-one years of age.</p> <p>6. Pkactice. Where defendants, in a case of this kind, demur in the county court, to the petition, and the demurrer is overruled and they file an answer, it is not error in the circuit court on appeal to strike a demurrer from the files when it has been filed in that court. ,</p>

<p>Appeal from the Superior Court of Cook county; the Ho.n. Joseph E. Gary, Judge, presiding.</p>

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

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

<p>1. Negligence — repairing fence. Where a person’s cattlebreak through the fence on the side of a railroad track, and the owner of the cattle repairs it with defective materials, in a temporary manner, but it is apparently sufficient, and liis pattle again break through the same place, and are killed, and it appears that he knew that the fence thus repaired was defective, and he failed to notify the employees of the company: Held, that he was guilty of negligence. The owner of adjoining lands has no right to remain inactive and let his cattle get upon the railroad track through the known deficiency of the fences along the road. When he undertook to repair the fence, and did it negligently, and failed to notify the company, he became liable for the natural consequences of his negligence.</p> <p>2. It was not error for the court to amend an instruction so as to inform the jury, in such a case, that the company should have had notice that the fence apparently good' was defective, before they would be liable for the injury to the stock. But the failure on the part of the owner to use reasonable efforts to notify the company of such defects, in any case where the defects are known to the proper agents of the company, would not justify the company in failing to repair. .</p> <p>3. In such a case, it was error for the court, without limitation or qualification, to instruct the jury that, if the fence was defective, the company were liable. It should not, under the facts in the case, have laid down the rule of absolute liability.</p>

Joseph E. Gary, Judge, presiding. Charles W. Rickitson, a citizen of Pennsylvania, died in Pittsburgh, in that State, on the 27th day of September, 1866, leaving a will, which was probated in the proper court in that State on the 15th day of October, 1866. The executors named in the will renounced, and letters of administration, with the will annexed, were granted to William Phillips. Deceased left assets in Cook county, in this State.

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

Joseph E. Gaey, Judge, presiding. This was a proceeding in the court below for a judgment upon a special assessment warrant, which resulted in a judgment against the property upon which the assessment was made, from which the owner appealed.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. JOHN G. Rogers, Judge, presiding.</p>

<p>1. OBSTRUCTION of streets — }lotice to the municipal authorities. In an action on tlie case against the city of Chicago, for negligence in permitting a portion of one of its streets to be obstructed by a rope stretched and attached to stakes set in the street, and failing to place.any sign of warning to protect travelers from the danger, by means of which the plaintiff, while traveling the street, was thrown from' her carriage and severely injured, where there was no proof of actual notice to the city authorities of the obstruction, but it was proved that the street in question was one of the most fashionable and crowded thoroughfares in the city, the fact that the street was so obstructed for at least two days and nights previous to the accident, was regarded as sufficient, in view of the importance of the street and the throng of carriages and pedestrians that crowded it, to charge the city authorities with notice of the existence of the obstruction, and as affording them time to have provided against accidents by lighting the street or otherwise signaling the danger.</p> <p>% New trial — excessive damages. While, in this case, a verdict for the-plaintiff of $4400 was regarded by the court as much greater than they would have allowed,, and the injury did not appear to them to be exclusively attributable to the accident', jret the damages were not considered so excessive as to warrant them in disturbing the verdict on that ground.</p>

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

■ This was a bill in chancery, filed by Rufus Haywood in the circuit court of Cook county, against Watson Collins, Nathan 33. Gladding, Allen Bacon, John M. Ware, Henry J. Goodrich, Charlotte P. Goodrich and Moses D. Wells, for the purpose of having deeds of conveyance of lands they claimed set aside as a cloud on title to his lands.

ok county; the Hon. JOHN A. Jameson, Judge, presiding. This was a suit in equity, brought by Monroe Heath, in the Superior Court of Cook county, against Isaac K. Hall, George M. Huntoon and Alexander McDaniels, to redeem from a mortgage executed to secure several promissory notes. The mortgage and notes were assigned and the equity of redemption was conveyed, and all parties in interest were brought before the court.

<p>Appeal, from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>This was an application in the court below for a judgment upon a special assessment warrant, under an ordinance in the city of Chicago. A trial resulted in a judgment in favor of the city, from which the defendant appealed.</p>

<p>1. Conveyance — reconveyance of same property — mortgage. Where a person haying a lease on a piece of ground and a warehouse tliere'on, sold the same to another person, the grantee assuming the payment of grant- or’s debts in part and giving his note for the balance, and giving to the grantor a covenant to reconvey the property at the end of five years on being.repaid the purchase money and ten per cent interest, the grantor to pay taxes, repairs and improvements, and to pay the grantee .one half of the losses which might occur in the grain business tovbe carried on by them: Held, this transaction was in the nature of a mortgage given by the grantor to the grantee to secure the money advanced by him, and that equity, only, can do complete justice between the parties.</p> <p>2. Judgment — ad damnum. Where the verdict and judgment are greater than the ad damnum in the declaration, the judgment must be reversed, although the excess may have grown out of interest accrued after suit was brought.</p>

<p>"Writ oe Error to tbe Criminal Court of Cook county; tbe Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. EdwiN S. LelaND, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This was an application in the court below for a judgment upon a special assessment warrant issued on a re-assessment, for certain improvements in the city of Chicago. A trial resulting in a judgment in favor of the city, the owner of the property appealed.

<p>Writ oe Error to tbe Superior Court of Chicago; the Hon. Williah A. Porter, Judge, presiding.</p>

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

<p>Appear from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.</p>

<p>1. Continúakce — absent witness. It is not error to refuse a continuance -where the affidavit fails to. state that the party has no other than the absent witness by whom he could prove the facts relied on by the party.</p> <p>2. Same — illness of counsel. Where a case was called, and passed because of the illness of counsel, and nearly three weeks afterwards the case was again called for trial and a motion was made for a continuance by defendant because his counsel was sick, and the court can see that a fair trial would be prevented by illness of counsel, the case should be continued; but where there are no questions of law, but simply a question of fact, and the evidence is in a small compass, and another attorney could be readily informed of the character of the case, and the defendant was himself au attorney,,it is not error to refuse a continuance.</p>

<p>1. Payments — how applied. Where a debtor owes a creditor several debts, and makes payments, he lias the right to direct their application to any one or more of the debts he may choose; but if lie makes payments and gives no directions, then the creditor may apply them as he may choose; and when such payments are made, and neither party makes the application, the law will appty them in the manner most advautagous to tlie creditor, as it will be presumed he would, had he made an election, have so applied them.</p> <p>2. Where a creditor holds two debts against another, and one is secured and the other is not, and payments have been made by the debtor, and there is no evidence that he directed their application, and no evidence of how they were applied, it will be presumed that they were credited on the debt for which he held no security.</p> <p>3. Rent — distress—•abandonment of premises. Where a tenant removes from or abandons the leased premises, the statute gives the landlord the-right to distrain for rent due, and also for that to become due. Nor will it affect the landlord’s'right if the tenant gives notice that he intends to leave. He can not, by such means, deprive the landlord of his right to distrain.</p> <p>4.Replevin — distress for rent. The action of replevin may be brought to try the legality of a distress for rent, provided there is no sum whatever due for rent; but if any sum, however small, is due, and the distress is for a greater sum, or is excessive in regard to the quantity of goods taken, or otherwise irregular, the remedy must be by case.</p>

<p>Appeal from the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

Joseph E. Gaky, Judge, presiding. This was an application for judgment upon a special assessment warrant, in the city of Chicago. * The certificate of the printer, of publication of the notice by the commissioners of their meeting to make the assessment, was as follows: “ This certifies that the appended corporation notice has been published in the Chicago ‘ Republican/ the corporation newspaper of the city of Chicago, county of Cook and State of Illinois, six days…

• This was an application to this court in term time for a writ of habeas corpus, by the relator, M. C. Hickey, in the name of the people,, to be discharged from imprisonment. It appears that a warrant was issued by a justice- of the peace of Cook county, for the arrest of one Eli Brown, on a charge of having committed burglary in the State of Indiana. The proceeding was under our extradition statute.

<p>Appeal from the Circuit Court of Cook county; the Hon. JOHN G. Rogeps, Judge, presiding.</p>

<p>1. Damages — excessive. Where it appeared that a person, desiring to erect a building adjoining the brick house of another, and obtained permission to sink his foundation wall below and partly under the wall of the house, and agreed to pay for all damages the house might thereby sustain, and on putting in his foundation damage was done to the building, in a suit to recover damages for the injuiy, the evidence being very conflicting on the question of the extent of the damages, the judgment will not be reversed because the damages are excessive, although they may appear to be large.</p> <p>3. Statute op frauds — parol promise. In such a case, the verbal promise does not relate to such an interest in land as brings it within, the statute of frauds and perjuries. The promise bound the party making it no farther than did the law, to make compensation for any damage that resulted from laying the foundation of his building as he did.</p> <p>3. Demand — before suit brought. In such a case, it is not necessary to maintain an action that an estimate of the damages should have been made and presented to the defendant and payment demanded; it was sufficient that he was notified that the house had been damaged, and requested to pay therefor.</p> <p>4 Instruction — refusal to give. In such a claim, an item was insisted upon for “risk” in making repairs of the damaged building, and although it shouldnot have been allowed, the judgment will not be reversed because the court refused to so instruct the jury, when the evidence of a number of witnesses place the damages at a larger amount than was found by the jury. The court cduld only have instructed that the jury should not allow the item unless the evidence showed it to have been a usual and customary charge in making such repairs.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. JohN G. B-ogeks, Judge, presiding.</p>

<p>1. Mobtgage — suit on debt, judgment and sale of the property — foreclosure. Where a party gave a mortgage on land to secure several notes, and the mortgagee sued on a part of them, obtained judgment and sold the land under execution apd it was not redeemed, and the certificate of purchase was regular]}’' assigned through several persons until it came to one who obtained a deed, went into possession and opened a valuable coal mine thereon, and the mortgagor, after nine years from the sale, conveyed the laud by quit-claim deed to another person, who filed a bill to redeem: Held, that the sale was a foreclosure, and the great length of time before an effort to redeem was made, waived any irregularity, if any existed, in the sale.</p> <p>2. Sale under execution — irregularity—voidable—laches. Where a certificate of purchase stated the sale was made, at four o’clock in the morning, that, if true, would have been ground, if applied for in proper time, for setting aside the sale and awarding a new execution. It rendered the certificate and sale voidable, if the sale'was so made, but it was not void.. And the holder of the title under the execution sale, having no notice, he would have been protected, but such delay in applying to rédeern is laches, and the sale could not be set aside.</p> <p>3. Sale — en'masse—voidable. Where property, susceptible of division, is sold en masse, the debtor may have the sale set aside if he applies to the court in a reasonable time. Such irregularity does not render the sale void, but simply voidable; but by laches, the debtor will lose the fight to have the sale set aside.</p>

<p>1. Telegraph compakies — their duty and liability. A telegrapli company is a servant of the public, and bound to act whenever called upon, 1hoir charges being paid or tendered. They are, in that respect, like common carriers, the law imposing upon them a duty which they are bound to discharge. The extent of their liability^, is, to transmit correctly the message as delivered.</p> <p>2. Same — of restricting tlieir liability by contract — necessity of repeating messages. Where a party, desiring to send a telegraphic dispatch, is required by tlie company to write Ills message upon a paper containing a condition exonerating the company from liability for an incorrect transmission of tlie message unless it shall be repeated, and at an additional cost therefor to tlie sender, it is held that such a restriction, even if it be regarded as a contract, is unjust, without consideration, and void.</p> <p>• S. Nor is such a restriction upon the liability of the company relieved of its objectionable character by a stipulation in the contract that tlie company will insure the accurate transmission of the message by a special agreement to be made, in writing, with the superintendent of the company, the amount of risk to be specified in tlie contract and paid at the time of sending the message. Such a provision would not be available to persons in localities were there was no superintendent, and would occasion inconvenient delay even where such officer could be found.</p> <p>4. It is against public policy to permit telegraph companies to secure exemption from the consequences of their own gross negligence, by contract. So, notwithstanding any special conditions which may be contained in a contract between a company and the sender of a message, restricting the liability of the former in case of an inaccurate transmission of the message, the company will still be liable for mistakes happening by their own fault, such as defective instruments, or carelessness or unskill-fulness of their operators, but not for mistakes occasioned by uncontrollable causes.</p> <p>5. Same — whether a contract exists is for the jury to determine, not the court. Whether a paper furnished by a telegraph company, containing conditions and restrictions in respect to the liability of the company in case of ail incorrect transmission of messages, and upon which a message is written and signed by the sender, is a contract or not, depends upon the fact whether the sender had knowledge of such conditions and restrictions and assented thereto; and whether or not such regulation was brought to the notice of the sender so as to fix knowledge upon him, is a question of fact tobe determined by the jury, and not b3r the court. Slight evidence of assent will, no doubt, suffice, but it is for the jury to determine.</p> <p>6. Same — burden of proof. In an action against a telegraph company to recover damages resulting from an alleged incorrect transmission of a message, if the plaintiff prove the inaccuracy of the message, the company, to exonerate themselves, must show how the mistake occurred. In the absence of any proof on their part, in that regard, the jury must presume a want of ordinary care on the part of the company.</p> <p>7. Same — of disclosing to the company the importance of the message. A telegraphic message was sent from Chicago to New York, as follows: “Sell one hundred Western TTnion. Answer price.” It was held, the dispatch sufficiently disclosed to the operator the nature of the business so as to inform him of the importance of its correct transmission. ■ But be a message of great or trifling importance, the company are bound to transmit it literally — at least to use the highestjlegree of care and skill in their efforts to do so.</p> <p>8. Same — duty of the receiver of the message. The receiver of a telegraphic message is not required to telegraph back to ascertain the correctness of the message. The company is bound to send the message correctly in the first instance.</p> <p>9. Measure oe damases — in ease of an incorrect transmission of a telegraphic dispatch. A party in Chicago delivered to a telegraph company, in that city, a message, directing his banking house in New York to sell one hundred shares of a certain character of stocks, which amount was then held by the banking house for a customer. The message, as delivered in New York, directed the sale of one tJwusand shares, and thereupon the party receiving the message sold that amount, having to go into the market to buy the residue: Held, if the sender of the message was compelled to, and did, purchase nine hundred shares of the stock to replace that so sold by reason of the carelessness of the company in transmitting the message, and that, in the interval between the selling one thousand shares and the repurchase of the nine hundred shares to replace the extra number of shares sold, that stock liad advanced in price, .this advance^ in an action against.the company, would be the measure of damages.</p> <p>10. Instruction — of it being based upon evidence. It is not essential that there should be direct testimony upon a point in order to afford a proper basis for an instruction, — it is sufficient if there are circumstances from which the fact involved may be inferred.</p>

Joseph E. Gaky, Judge, presiding. This was an application by the city collector to the Superior Court of Cook county for a judgment against delinquent lots, on a special assessment to improve a portion of Milwaukee avenue by curb walls and wooden block pavement. An ordinance was passed, and the assessment made on property deemed benefited; and a portion of the owners failing to pay, this application was made.

<p>Appeal, from the Superior Court of Cook county; the Hon. JOHN A. Jameson, Judge, presiding.</p>

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

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

<p>1. Jubok — competency. Where a juror answers that he has a fixed opinion on one of the points in issue to he tried, he is incompetent, and it is error to receive him against the objections of the party who challenges him for cause. Such a juror would not be inclined to give due weight to evidence adverse to his preconceived opinion, and is not indifferent between the parties.</p> <p>2. Texas cattle — damages by communicating Spanish fever. The act of the general assembly assumes that Texas cattle, although free from disease, do communicate disease to other cattle, and whilst it is the duty of courts to enforce the act, it is not a legal presumption that this theory is true. That is a question of fact to be determined by a-jury. The act makes the owner of Texas cattle liable for damages sustained from disease communicated by them, but it does not require a jury to believe, without evidence, or that it is a recognized scientific fact, that the disease is thus oommunicated. The act does not say the jury, in a suit for damages, must accept such a theory as true.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. J9HN G. Rogers, Judge, presiding.</p>

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

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

<p>Appeal from the Circuit Court of Stephenson county ; the Hon. "William Brown, Judge, presiding.</p>

<p>1. Distress for rent — irregularities—case—trover. Where rent was in arrear, and properly was distrained for its payment, and after having the amount of rent due ascertained before a justice of the peace, the constable making the distress sold the property without first having it appraised, as required b}' the statute, and after a tender of rent and costs, whereupon the tenant brought an action with two counts in case for not returning the property, and one in trover: Held, that trover will lie in such a case; that the statute requires the property to be appraised before it can be sold, and the requirement must be observed.</p> <p>2. Damages — measure of. In such a case, after the sale, when the proceeds of the sale are applied to the payment of the rent due, it is error for the court to instruct that the value of the property, when converted, is the measure of damages, as the amount applied to the payment of the rent should go in mitigation, as it was applied to the payment of plaintiff’s debt.</p> <p>3. Damages — vindictive. Where an officer only omits a duty unintentionally, as was done in this case, and has not acted wilfully or oppressively, punitive damages should not be allowed. If the tender was made, it was not urged.on the trial before the justice, and the person'entitled to receive the rent having signified a willingness to receive it, after it was claimed to have been made, these are acts tending to show that'the proceeding was not wilful, and as precluding a recovery of vindictive damages.</p> <p>4. Same — excessive. Where the verdict is flagrantly excessive, .the court will reverse the judgment for that reason.</p>

Writ of Error to tbe County Court of LaSalle county; the Hon. P. Kimball LelaND, Judge, presiding. This was an action of assumpsit, brought by Joseph Sil-meyer against William Schaffer and Phillip K. Behrend, upon the following promissory note: “§2,758.85. • One year after date, for value received, we promise to pay to the order of Joseph Silmeyer two thousand seven hundred and fifty-eight 85-100 dollars. Peru, Ill., April 19, 1867. .• P. K. Behrekd, Wm.

SilvaNUS Wilcox, Judge, presiding. This was a petition for a writ of mandamus, filed by Henry P. Pierce, in Kane circuit court, to compel the board of supervisors to audit a bill charged for services rendered the county as county clerk of Kane county.

<p>1. Evidence — hearsay, inadmissible. It is error for the court trying.a cause to admit- hearsay evidence. The party, originally making the statement should he called and required to testify, and not a person who has .heard the witness make the statements.</p> <p>2. Paktneuship — proof of, xohere denied. Where a partnership is denied by one of the persons sued, he can not be proved a partner by the acts or declarations of those claimed to be partners. Their declarations are admissible to prove them partners, but it is error, when such evidence has been adduced, to instruct the jury that, if they find from all the evidence that the person denying the partnership is a partner, then the declarations of either partner will bind the firm. Such instruction authorizes the jury to consider the evidence not applicable to the proof of partnership, by the person denying it, to make him a partner.</p> <p>3. A person can not be made a partner in fact, or appearance, so as to biud him, unless by his consent, admissions or acts. The declarations or acts of others can have no such effect unless authorized or ratified by him.</p>

<p>New trial — dewee supported by the evidence. In this case the decree of the court below is regarded as clearly sustained by the evidence.</p>

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

<p>1. Awabd — evidence—taken by two arbitrators. Where matters in difference were submitted to the award of three persons, two of whom heard the evidence of a sick witness, reduced it to writing, and all considered it in connection with the other evidence: Held, that as the evidence of the witness, taken in the presence of the attorney who now objects; was fairly taken and no objection was made at the time, or before the arbitrators, there was no injury sustained, and the award can not be set aside, under the circumstances, for such an irregularity.</p> <p>2. Had there been any fraud, misconduct or misrepresentation, it would have been otherwise.</p> <p>This case distinguished from Smith v. Smith, 28 Ill. 56, as in that case no rights were waived, whilst in this there were.</p>

<p>1. AGENT — declarations of — res gestee — depositions. The declarations of an agent are not admissible as evidence unless they are made in connection with the transaction of the business of his agency, and form a part of the res gestee. And it is error for the court to refuse to suppress an answer to an interrogatory in a deposition which proves the declarations of an agent after the transaction has occurred. And to. suppress such answer, it is not necessary that the' answer should have been objected to when the deposition was taken.</p> <p>2. Railroad — negligence—evidence. It is error for the court to admit evidence that, at previous times, the bell had not been rung or the whistle sounded as trains passed the place where the accident occurred, to prove negligence at the time of the collision. Nor does it waive the error that defendant had permitted similar evidence of other witnesses without objection. That did not render tbs' further admission of such evidence admissible when objected to, on being offered. Nor was it admissible to discredit the evidence of the engineer, as he made the statements intended to be contradicted, in answer to questions propounded by plaintiff on cross-examination. A party can not cross-examine a witness as to a collateral fact for the purpose of laying a foundation to contradict him.</p> <p>3. Neoligehce — comparative. Where an instruction informed the jury that, if the employees neglected to ring a hell or sound the whistle as required hy statute, the plaintiff was entitled to recover of the company for killing her husband unless he was guilty of a greater degree of negligence : Meld, such an instruction was too broad, as it should have limited the liability of the company to the injury caused by a failure to ring the bell or sound the whistle, and it should have been modified so as to have informed the jury that the negligence of deceased must have been slight as compared with that of the company. Instructions in such cases should lay down the duty of both parties, and leave the jury to find whether the defendant was guilty of negligence; and even if the deceased was guilty of negligence, whether it was slight as compared with that of the company.</p>

<p>Special assessment — illegal ordinance. Where the common council passed an ordinance for the improvement of a street, and ordered curb walls to be built where the same were not already built, and in good and sound condition, but it did not specify what portion was in good and sound condition and what was not: Held, that the ordinance was an attempt to confer on the board of public works an illegal discretion which would tend to open the way to an unfair assessment, and to favoritism and fraud. It is governed by the case of Foss v. Oity of Chicago, 56 Ill. 354, and is held to be void, and the collector had no authority to apply for judgment.</p>

<p>Appeal from tbe County Court of LaSalle county; the Hon. C. H. Gilman, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Cook county; the Hon. Herry Booth, Judge, presiding.</p>

<p>Appeal from the Superior Court of Chicago; the Hon. "William W. Harwell, Judge, presiding.</p>

<p>1. Creditor’s bill — for sale of life estate to satisfy a judgment at law. Where a defendant in a judgment held a life estate in a tract of land and sold the same to a third person without consideration, and he, at the request of his grantor, conveyed the same to her daughter: Held, that a court of equity will give relief on a bill filed for the purpose of subjecting the life estate to the payment of the judgment.</p> <p>2. Error in the judgment. Nor does it matter, in such a case, that the clerk assessed the damages on a default where there was a special count on a note and the common counts in the declaration. If an error, a court of equity will not hold the judgment void for that reason.</p> <p>3. Execution — variance. Nor will a court of equity withhold relief because the first execution, returned nullabona, was issued for a less sum thau the judgment. Such a variance would be ground to have it set aside in the court whence it was issued; it was not void but only'Voidable.</p>

<p>1. Insurance — policy—condition—notation of. A policy of insurance contained a condition that; in case of any sale, transfer or change of title, the insurance should be void and cease, unless assented to by the company; afterward the assured assigned the policy, with the assent of the company, to a mortgagee, and afterwards the assured sold the property to three persons, one of whom re-conveyed to him, and the other two executed mortgages to secure the purchase money: Held, that the assignee took the policy subject to the conditions it contained, and his equities confer no right. If the assignor has lost all right of recovery, by violating the conditions of the polic;', the assignee occupies the same position.</p> <p>2. It was a change of title in the property. The assured had agreed that he would not change the title to the property, and if he did, the insurance should cease, and when the condition was violated, the policy became void. Nor did the memorandum that the loss, if any, should be paid to the assignee as his interest might appear, change the rights of the'as-’signee. .</p> <p>3. Pakties — interest—legal rights. Tlie assured, who held the legal title, could not sue, because he had broken the condition of the policy. The assignee could not sue because he was not originally a party to the contract. The assignment could only pass an equitable interest, and he could not sue in his own name for a breach.</p>

<p>Measube of damages upon Ml rendered. Where a person, at the request of another, went to, and saw, the treasurer of a coal company, for the purpose of negotiating the sale of a tract of coal land to the company, and conversed with the treasurer on the subject, and was only engaged in such employment not exceeding one day, and the owner subsequently sold the land to the company, and the person who had seen the treasurer presented h bill for a specified sum for his compensation, but it was not paid: Held, that the amount of such bill thus presented is the extreme limit of any recovery he can have. It is the price he fixes on the value of his com"pensation and an admission that it is worth no more.</p>

<p>Peomissoky notliability of indorser. It is not nece'ssaryin this State, in order to fix the liability of the indorser of a promissory note to the in-dorsee, that the latter should prove a demand upon the maker of the note, a refusal to pay, and notice to the indorser of non-payment.</p>

<p>Appeal from tbe Circuit Court of Henderson county; the Hon. Akthtjk A. Smith, Judge, presiding.</p>

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

<p>Evidence — admissions of an agent. Tlie admission of an agent can bind the principal only when it is made in regard to a transaction then depending.</p>