Volume 61 — Illinois Reports

<p>Appeal from the Circuit Court of .Cook county; the Hon. Henby Booth, Judge, presiding.</p>

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

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

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

<p>Appeal from the Circuit Court of Cook county ; the Hon. Henry Booth, Judge, presiding.</p>

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

<p>1. Conveyance—lands of a feme covert—statute of limitations. Where a husband and wife joined in the conveyance of the wife’s land, she holding the fee and he an estate by the curtesy, and after the conveyance was made, a person, under claim and color of title, entered and occupied the land and paid all taxes for seven successive years: Reid, that the statute operated to bar an entry under either title.</p> <p>2. Former decision. This case is distinguished from the case of Shortall v. Hinckley, 81 Ill. 219. In that case, six of the seven years of limitation had run when the conveyance was made, and another year afterwards, whilst in this, possession was taken and the.required acts under the statute were performed after the conveyance was made.</p> <p>3. Merger on titles—fee simple and curtesy. In a conveyance like the present, both the fee of the wife and the estate by the curtesy merged and became united in the purchaser by the conveyance from the husband and wife. As a general rule, where two estates are conveyed to a person, the smaller is merged into the greater, and especially so when the interests of third persons are not affected thereby. '</p>

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

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

<p>1. Awards—of the certainty required therein. As a general principle, an award must be certain in itself, but certainty to a common intent is all that is required. The award must clearly establish the rights of the parties to the thing or matter in controversy, but parol evidence is always resorted to for the purpose of identifying the matter or thing.</p> <p>2. If the award settles the rights of the parties, and can be rendered certain by reference to accounts or other documentary evidence, it will be sustained.</p> <p>3. As, where an award makes reference to an account, the account may be properly referred to for the purpose of ascertaining the meaning of or' explaining the award.</p> <p>4. The award is to be judged of according to a common intent consistent with fair and reasonable presumption, and if it is so far certain as, from the nature of the subject of it, could be reasonably expected, and the directions of the arbitrators can, with tolerable ease, be reduced to a certainty, as by reference to any written document or the inspection of any particular thing, house or land, it will not be impeachable on the ground of uncertainty.</p> <p>5. Same—when objection for uncertainty should be raised. The objection that an award is not certain or final should be made before judgment is pronounced thereon. -></p> <p>6. Same—whether party estopped from, denying validity of awa/rd by acting under it. Where the affairs of a partnership had been submitted to arbitration, and after judgment was pronounced thereon, and at a subsequent term of the court, one of the parties acted under the award by entering a motion for a rule on the other party, requiring the latter to make and file under oath a detailed and itemized statement of all his receipts and disbursements as receiver and trustee under and by virtue of the award, it was held, that such party was thereby estopped from thereafter questioning the validity of the award.</p> <p>7. Same—eonclusiveness of judgment upon. The judgment rendered upon an award is conclusive of its validity unless impeached for fraud.</p> <p>8. Same—compliance with the award enforced by attachment for contempt. After judgment had been pronounced upon an award, and one of the parties thereafter refused to comply with its terms, it was held, that at a subsequent term the court might properly rule such party to comply with the award within the time fixed by the court, aud on his failure so to do, to consider him as in contempt, to be dealt with accordingly.</p>

E. S. Williams, Judge, presiding. This is an appeal from the judgment of the court below, refusing to grant a motion made by Gottlieb F. Liebbrandt to set aside a judgment as to him, rendered May 19, 1870, by confession on a warrant of attorney against him, John D. Hies and F. Peters, and in favor of Myron Lodge Ho. 1, of the Old Free Order of Chaldea, upon the following promissory note : $100. '' Chicago, Oct. 5th, 1857. “One year after date, for value received, we jointly…

<p>1. Ejectment—judgment nunc pro tunc—new trial. Where a trial was had and a verdict found, but no judgment entered, and more than a year subsequently the court made an order vacating a judgment nunc pro tunc, and granting anew7 trial, the effect of this order was simply to set aside the verdict and grant a new trial.</p> <p>2. Trial—judgment—non-suit. Where a party, supposing the court erred in vacating a judgment in ejectment after "the expiration of a year, when no such judgment had ever been rendered, and w'heu the case was called for trial the attorney for plaintiff withdrew from the case, and the court proceeded to try it by a jury, the trial resulting in a verdict and judgment for defendant: Held, that this was not error. The cause was in a condition to compel a trial or a non-suit. It was regularly on the docket, a new trial had been granted, and it w7as called for trial in its order.</p> <p>3. Same. Plaintiff’s attorney was in court, and, without reasons, objected to a trial. The other party, as was his right, insisted upon a trial, and the court had no power to dismiss the suit for want of prosecution, as'in case of a non-suit, because the plaintiff, being present, must elect to take a non-suit, or the cause must go to trial.</p> <p>4. Practice—dismissing suit. If, when the cause is called for trial, the plaintiff does not appear, the court may dismiss the suit lor w7ant of prosecution, and render judgment as in case of non-suit. The withdrawal of counsel from the case is not a withdrawal of the case from the court.</p>

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

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

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

<p>1. Town supervisor-authority of to employ counsel to defend suits against the town. The 4th section of article 12 of the act of 20th of February, 1861, entitled “An act to reduce the act to provide for township organization, and the several acts amendatory thereof, into one act, and to amend the same,” provides that, “in all legal proceedings against the town, by name, the first process, and all other proceedings required to be served, shall be served on the supervisor of the town. And whenever any suit or proceeding shall be commenced, it shall be the duty of the supervisor to attend to the defense thereof, and to lay before the electors of the town, at the first town meeting, a full statement of such suit or proceeding for their direction in regard to the defense thereof:” Held, under the provisions of such section, the town supervisor has authority to employ an attorney to defend a suit against the town, and the town will be liable to pay for the services thereof a reasonable compensation.</p> <p>2. It is still the duty of the supervisor, although he may employ counsel, to call a town meeting and lay the whole case before the voters with the legal advice he may have received, for their direction.</p> <p>3. And at such a meeting the voters may, if they choose, dispense with or continue the services of the attorney, the town still remaining liable to pay a reasonable compensation to the attorney for the services already rendered.</p> <p>4. "But the neglect of duty on the part of the supervisor to take steps to call such meeting, or a refusal of the officers and voters to call the meeting, should not prejudice the attorney.</p>

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

Sabin D. Puterbatjgh, Judge, presiding. This was an action of trespass guare clausum fregit, upon the southeast quarter of the northeast quarter of section 14, township 11 north, range 8 east, in Peoria county, brought before a magistrate, resulting in a judgment for the plaintiff, from which the defendant took an appeal to the circuit court. Upon trial in that court the verdict went for the original defendant.

<p>1. Equity—setting aside a sale on attachment—for fraud. If a person, knowing another is not indebted to him, makes a false affidavit, procures a writ of attachment, has it levied on lands of the defendant, obtains a judgment and execution, buys in the land and obtains a sheriff’s deed, a court of equitjr will set aside the sale on such facts being made to appear, ou the ground of a fraudulent abuse of the process of the court.</p> <p>2. Written instrument—parol evidence to vary. A party can no more vary the terms of a written agreement by parol in a court of equity than in a court of law. Verbal understandings can not be proved for such purpose.</p> <p>3. Judgment in attachment—sale of property—satisfaction. Whatever may he the legal effect of a judgment in attachment on constructive notice, a sale of property thereunder, for only a portion of the debt, can not be treated as a satisfaction of the claim upon which the judgment is based, beyond the amount of the sale.</p> <p>4. Jurisdiction—in attachment. An affidavit filed, a bond given, an attachment issued and levied, publication made and proof thereof, confer jurisdiction upon the court; and although the court may have erred in applying the law to the facts, still the judgment is not void.</p> <p>5. Equity. Where a judgment is not void, hut only erroneous, a court of equity will not set it aside, although ii might he reversed on error. It is not the province of a court of equity to correct errors of courts of law.</p> <p>6. Sale—inadequacy of price. Where there is no proof that a sheriff’s sale was not conducted fairly, and the property sold had no definite market value, a court of equity will not set aside the sale, for inadequacy of price.</p>

E. S. Williams, Chief Justice, presiding. Held: managed, ” etc. The fifth section provides that, in case of disagreement, condemnation may proceed under the Bight of Way act of June 22, 1852.

<p>1. Pleadings—evidence. • Under a plea of property in the defendant in an action of replevin, a chattel mortgage, the conditions of which have been broken, is admissible in evidence. Such a mortgage is sufficient to enable the mortgagee to recover the property in an action of replevin.</p> <p>2. Chattel mortgage—lien. The lien of a chattel mortgage is not lost because the mortgagee fails to take possession of the mortgaged property on the maturity of the first of a series of notes secured by the, mortgage, as he might do under Us provisions, but the lien continues until tlie last payment falls due. It is'optional whether the1 mortgagee will reduce the property to possession on default in the payment of any but the last instalment.</p> <p>3. Where the mortgage describes the property as a “stock of goods,” and provides tlrat the mortgagor may retain and use the same until default in payment: Held, that the use of the goods, consisting of liquors, etc., does not necessarily imply that the mortgagor may sell the same, although he was a trader in liquors; that wines and liquors are frequently kept in store to improve by age, as one of tlieir uses by the owner.</p>

<p>1. Railroad—employee—negligence of company—liability for injury. Where a railroad company are in the habit of constantly taking damaged cars from one station to another for repair, and a person is employed to couple and switch such cars, and while so engaged he is injured in attempting to couple a car to the train, by reason of the broken condition of the car: Held, that the presumption is that he undertook the employment subject to all of the risks incident to the place, and that this was one of the risks he expected to incur when he accepted the employment.</p> <p>2. Same—duty of company. It is the duty of a railroad company to furnish a safe road and safe machinery, and on failing to do so it,becomes liable for injury to an employee therefrom if he is ignorant of the defects, and therefore not contracting with reference to them. But that rule does not apply where the employment is for the purpose of assisting in hauling machinery that is defective, and the employee is injured when a defective car is on the way to the proper shops for repairs, and the existence of the defect implied no negligence on the part of the road.</p> <p>3. Same—negligence. If it had appeared clearly that it was the custom of the company to mark all damaged cars before sending them to the shop to be repaired, and that the marks used indicated that they were damaged, aud also the time, manner and person who made the mark, and this duty had been neglected, and the emph>3ree had been thereby thrown off his guard in coupling the car, then a different question might have been presented.</p> <p>4. Instruction—negligence. An instruction which informs the jury that the company is liable if the employee was injured whilst in the careful discharge of his duty, by a car being out of repair through the failure of the company to see that it was in repair, is wrong, as the car was being removed to the proper place expressly to be repaired, and the employee was in the discharge of the duty he engaged to perform in coupling it for the purpose.</p>

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

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

John G. Rogers, Judge, presiding. . This was an action of assumpsit, brought by Ernst Bcehm against Christoph Bcehm and twenty-one others.

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

This was a suit in equity, brought by appellant,- in the circuit court of Cook county, against appellees, to restrain them from constructing a railway track on South Clark street, between Randolph and Polk streets, upon the ground that, at the time they were proceeding to lay their track, to wit,.on the 20th of July, 1870, the company, had no right to construct a track on that street.

William Brown, Judge, presiding. This was an action on the case, brought by appellee in the Winnebago circuit court, against appellant, to recover for injuries sustained from a fall occasioned by a defect in a sidewalk in the city. The declaration contained four counts in the usual form, to which the defendant pleaded not guilty. The case was tried at the January term, 1871, by the court and a jury, resulting in a verdict in favor of plaintiff for §1500.

<p>1. Negligence in railroads—notice. In an action against a railway company to recover damages for the death of one of its employees, alleged to have been occasioned by the falling of a bridge, an instruction which informs the jury that, if the deceased was in the employment of the company, was in the line of his duty when crossing the bridge, that the timbers of tlie bridge were decayed and unsafe, and by reason thereof broke down, and the death of such emplojme was occasioned thereby, the company was liable, is erroneous, because it excludes notice of the condition of the bridge to the employees of the company, or that they, by the highest degree of diligence consistent with the operation of the road, might have known of the defects. A railroad company is hound to use such diligence, yet it is not an absolute insurer and can not he held liable for defects that such diligence would not detect.</p> <p>2. Actual knowledge of such defects is not necessary to render a railway company liable; it is enough if the company might, by the use of such diligence, have been informed, but when it did not know and could-not have learned the timbers were defective and unsafe by such diligence? it can not be held responsible.</p>

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

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

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

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

<p>1. Instructions—must be applicable to the case. Although instructions may contain correct legal propositions, still it is not error to refuse them if they are not applicable to the case.</p> <p>2. Same—containing legal propositions. It is error to give instructions to the jury which require tiie jury to find and determine legal propositions. The court should direct the jury what the law is on the facts the evidence tends ■ to prove, or instruct them as to what the law is if they find the facts to be true; or what facts must be proved before the plaintiff can recover.</p>

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

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

<p>1. Common carrier—release of liability. Where a common carrier inserts in the shipping receipt a condition that the company will not be liable for loss beyond a specified sum, being less than the value of the goods shipped: Held, that such stipulation does not release the common carrier unless it appears that the shipper knew of, and assented to, the limitation.</p> <p>2. Where the receipt contains such a stipulation, and that the carrier shall only be held liable for gross negligence, and it is assented to by the shipper, still the carrier would be bound for the use of reasonable care. Common carriers can not, by contract, excuse themselves from reasonable care and diligence.</p> <p>3. Same—loss of goods. Where a person sends goods by an express company and they fail to arrive at their destination, that raises against the company the presumption of the want of ordinary care. The company has it within their power to trace the goods and discover where they were lost, whilst it is not so with the shipper, and hence the burden is upon the carrier to show that he has used reasonable care, notwithstanding he may have stipulated he was only to be held liable for gross negligence.</p>

<p>Appeal from the Circuit Court of Cook county ; the Hon. Henry Booth, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.</p> <p>This was an action of assumpsit, brought by John H. Hiner against George Tedrick and Thomas Dugan, for services by him performed for the defendants. In the circuit court judgment was rendered in favor of the plaintiff, to reverse which the defendants appeal.</p>

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

<p>1. Public highway—obstruction of. Where the county commissioners lay out and establish a public highway of a prescribed width, it will be confined to that width, unless increased by dedication or otherwise. The mere fact that it was graded, and was traveled a greater width, hut outside of the road no particular strip was so used, does not change the boundary of the road.</p> <p>2. Under the act of 1849, the owner of land adjoining a highway may plant a live fence on the precise line of the road, and may erect a protection fence not more than six feet in the road from the live fence, and may maintain it for the period of five years, without being liable to prosecution for obstructing the highway.</p> <p>3. Bill in equity—estoppel. Where a party files a bill in equity to restrain the removal of such protection fence, and, by mistake, alleges in his bill that the road was established four rods wide, and afterwards, by leave of court, amends his bill, and charges that the road was, in fact, established but fifty feet in width, the first allegation does not estop him from showing he was prosecuted for obstructing the road that was but fifty feet in width.</p> <p>4. Highway—aet of 1849. In such a case, it is error to instruct the jury that, if the defendant built a fence in any part of a highway that had been used for more than twenty years before the fence was erected, they should find the defendant guilty of obstructing the road. Such an instruction excludes a defendant from all benefit of the statute of 1849, and should be modified or refused.</p> <p>5. Same—dedication. It is error for the court to instruct the jury that, while the voluntary use with the assent of the owner of the soil may not be enough to create a highwa)', but when used, traveled by the public, and recognized and repaired by the public authorities, and acquiesced in by the owner, it becomes a public highway by dedication. In such a case, the question of an intention to dedicate by the owner is essential to the dedication in addition to the other acts specified in the instruction. That question should be fairly left to the jury, but is taken from them by such an instruction.</p>

<p>1. Election—injunction—disobedience. Where the law authorizes an election to be called in a township to determine whether a majority are in favor of subscribing to the stock of a railroad company, and the election is called in pursuance to the requirements of the law, a court of equity has no power to restrain the officers from holding, or the people from voting, at such election. A writ of injunction issued in such a case is void, and the officers and people are not bound to obey it, as the court has no jurisdiction to issue the writ.,</p> <p>2. Injunction—contempt of court. In such a case, the defendants are not liable to be punished for a contempt of court for disobedience to such a writ. The statute confers power upon the court to punish for a contempt “for disobeying its process, rules or orders issued or made conform-ably to law.”, And the court having no power to enjoin the holding of an election, an injunction issued for the purpose is not issued conformably to law, and is void.</p> <p>3. Officers—legal duty. Where the law plainly requires an officer to perform a duty, and he is not exceeding or abusing his powers, but fairly acting within the same, and a court issues a writ to restrain him from its performance, he must discharge his duty as prescribed by the law.</p> <p>4. Equity—jurisdiction—error. Where the court has jurisdiction of the subject matter, but acts erroneously, then the person enjoined would be in contempt by disobeying the writ.</p> <p>5. Injunction—dissolution•—damages. Where a writ of injunction issued in such a case, is dissolved, il, is the duty of the court, on suggestions being filed by the defendants, to hear evidence and assess such damages as the nature of the cas,e may require. Nor does the fact that the writ of injunction was void, affect the right of the parties to recover damages. Parties have the same right to defend against a void, as a valid, writ.</p>

This was an amicable suit commenced by bill, brought by Edward G. Mason and George H. Laflin, executors of Charles It. Starkweather, deceased, in the circuit court of Cook county, against Harvey M. Thompson, guardian of Chaiincey Clark Starkweather and Frank Henry Starkweather, minors.

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

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

<p>1. Eminent domain—railroad—damages. On an appeal in the circuit court, in a case for the assessment of damages on the condemnation of the right of way for a railroad, the statute has given a trial by jury.</p> <p>2. Damages—estoppel. Where a railroad company went upon land and built their road without procuring the right of way, and occupied it for twelve years and then instituted a proceeding to condemn the right of way, the company have no right to insist that the owner is estopped to claim damages. He can only be barred by the statute of limitations, and not by mere non-claim for a less period than the statute has prescribed to bar his claim.</p> <p>3. Sale—of land.. The mere fact that the company entered upon the land and constructed their road, and occupied it for about thirteen years, can not be held to raise a presumption that the owner had sold the right of way to the company.</p> <p>4. License to enter. The mere fact that the company have been long in possession, in the absence of all proof, will not raise a presumption that the owner had given a license to enter and construct their road, and in the absence of such a license the company must be held liable for damages resulting to other lands of the owner from the construction of the road.</p>

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

<p>1. City charter—ordinances—liquor nuisance, Where a city charter authorized the common council to declare the selling, giving awa)r, or the keeping on hand for sale any spirituous or intoxicating liquors, etc., in the city, a nuisance, it does not authorize an ordinance making it an offense for any person within the city to have in his or her possession any intoxicating liquors, etc. The ordinance exceeds the power in the charter as it declares the possession, without the intent to sell, an offense.</p> <p>2. The charter only contemplates a search in the event that liquors were in the possession of some person for sale within the city. The ordinance authorizes the search and seizure if the liquors were kept in the city, whether the intention was to sell them or ship them for sale elsewhere. Such an ordinance might interfere with general commerce, but when confined to the ordinary traffic between the city and its neighboring towns and cities, it is unjust and illegal, and the ordinance is ultra Hires and void.</p> <p>3. City ordinances—presumption of innocence. It is no answer to say that the person whose liquor is seized may prove his innocence—may show the purpose to be lawful. The law ought not to be guilty of such harshness as to require a man to prove his innocence where there is not even a suspicion of his guilt.</p> <p>4 Legislative power—to restrain sale of spirits. It has often been decided that the general assembly may prohibit the retail of intoxicating liquors. But this charter, has gone far beyond that, as it authorizes the council to license, regulate and tax the sale of such liquors; to declare the sale, and keeping on hand for sale, a nuisance; to provide for its summary abatement and suppression; and it empowers the police magistrate to issue his warrant to search the premises of persons suspected of selling. It makes the mere possession prima facie evidence of unlawful intent, and, without satisfactory explanation, evidence of sale and keeping on hand for sale.</p> <p>5. City ordinance. The ordinance authorizes the police magistrate, on complaint that any person has such liquor for sale, more than one gallon, to issue his warrant for the search of his dwelling house, and if liquors are found they shall be seized, and the person arrested, and both brought before the magistrate, who shall at once proceed to try the person, and if he should not offer a satisfactory explanation and show that he had the liquors for a lawful purpose, he shall be fined, and ordered to the common jail until fine and costs are paid, and the liquors ordered sold on execution and the proceeds applied to the payment of the fine and costs.</p> <p>6. The ordinance is objectionable because, while it professes to prevent the sale of liquors because the)' are declared to be a nuisance and should be abated, it requires the liquors to be sold by the officer.</p> <p>7. Same—objectionable. Another objection is, that both the charter and ordinance authorize the seizure of all liquors found, without reference to quantity; whilst the ordinance only authorizes a fine of $100, it authorizes a seizure of liquors to the value, it may be, of thousands of dollars, which would be ordered to be sold, as is supposed, to satisfy the fine, as it will not be presumed the sale would be ordered merely for the exercise of unusual or arbitrary power. Again, the ordinance does not require the surplus to be returned to the owner.</p> <p>8. Justice of the peace —jurisdiction. Whilst a justice of the peace could only render a fine not exceeding $100, yet, under this charter and ordinance, he is authorized to adjudicate to an unlimited amount of property, and this seizure is unreasonable and in violation of the Declaration of Rights.</p> <p>9. Constitutional protection. Every man has the right to acquire and protect his property; to be secure against unreasonable searches and seizures; to a fair trial before he can be deprived of life, liberty or property; and in all criminal prosecutions the right to be heard, to demand the nature and cause of the accusation against him, and to meet witnesses face to face. Under this ordinance a person may be deprived of his property without notice; condemned without witnesses; his premises subjected to unreasonable search, and his property seized to an unlimited amount.</p> <p>10. Property. Spirituous liquors, ale or beer, are property; they are chattels; are articles of consumption and of commerce; and the ordinance recognizes them as property and directs their sale, and permits druggists to keep them. Their abuse may be restrained and punishment inflicted on those who sell them to the injury of others. As well as other chattels, they may come under the designation of a nuisance, and to a certain extent lose their quality of property, but they can not do so per se.</p> <p>11. Legislative power—its exercise. The legislature may change the presumptions of guilt; it may, to a certain extent, declare acts evidence of an unlawful intent which had before been innocent; it may declare possession of property, on account of its dangerous character, unlawful, but such laws must always have proper safeguards for the security of private rights.</p> <p>12. It is within the power of the legislature to declare the possession of spirituous liquors, for the purpose of sale, a quasi nuisance, and to provide a well guarded system of suppression of its use; and that possession shall be prima facie evidence of unlawful intent. But in making such changes the utmost care should be observed so as to preserve the sacred ness of the domicil.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Chables H. Wood, Judge, presiding.</p> <p>The bill alleges that John T. Parker, about the first of February, 1870, agreed to sell a tract of land to Lewis Garrison for |4620, to be paid in installments, with interest; that nothing was paid on the purchase, but Garrison went into possession of the land and occupied and raised a crop of corn, etc., thereon ; that, having failed, and being unable to pay the first installment falling due, Garrison prevailed on Parker to release him from the purchase, with the agreement that Parker should treat him as a tenant, and receive from him, for the use of the land during the year 1870, one-half of the crops raised on the land that year, but all to be paid in corn ; that Garrison raised on the premises three thousand bushels of corn and four hundred bushels of oats; that Garrison had hauled to Manteno and delivered to Adam Sockie, Leon Euzier and Gardiner P. Comstock, about six hundred bushels of the corn, and stored the same in his own name, and was hauling the remainder to them to be stored in the same manner ; that Sockie, Euzier & Co. refused to let Parker have the corn or to pay him for the same, and that Garrison is insolvent, and intended to defraud complainant out of his rent. The bill makes them all defendants, and prays that Sockie, Euzier & Co. be restrained from delivering the grain to, or paying Garrison therefor, and that he be restrained from selling, mortgaging, pledging, etc., the grain.</p> <p>To this bill a demurrer was filed, which the court sustained and dismissed the bill, and complainant appeals to this court.</p>

<p>1. Attorney at law—misconduct in office. This court is not constituted a censor of morals, so as to require it to pronounce upon the style of manners and conversation which becomes a member of the bar.</p> <p>2. But this court has the power, under the statute, at discretion, to strike the name of any attorney or counselor at law from the roll, for malconduct in office.</p> <p>3. The statute further makes it the duty of the court, whenever it shall be made to appear that any attorney has neglected, upon demand and tender of reasonable fees, to pay over or deliver money or property to his client, to direct that the name of such attorney shall be stricken from the roll of attorneys, f ></p> <p>4. Same—at whose instance the name of an attorney may he stricken from the roll. The statute which authorizes “ any person interested ” to apply for a rule upon an attorney who has failed to pay over money collected, to show cause why his name should not be stricken from the roll, should not receive the narrow construction, that the person who may make the application must be a creditor. The members of the profession, and other persons besides creditors, have a deep interest in the purity of those who sustain such important relations to the public.</p>

<p>1. Mortgage—statute of limitations. Where the mortgagor of land conveyed the same, and the grantee complied with all the requirements of the limitation law of 1839, and when sued he relied upon that statute as a bar: Held, as against the mortgagee,the statute would not apply.</p> <p>2. Same. This case distinguished from the case of Cook v. Norton, 43 Ill. 391, and 48 Ill. 20. In that case it was held that a purchaser from a judgment debtor, buying after a sale on execution, and within fifteen months, might set up and rely upon this statute, against the purchaser under the execution, and that the statute began to run from the time the purchaser might have obtained his sheriff’s deed. In that case it was said, if the purchaser had the right to suppose that the purchase from the debtor was for the purpose of redeeming, he had no right to so think after the time to redeem had expired. And in that consists the distinction between tiie two cases, as in this the mortgagee has no right to suppose the purchase was made for any other purpose than to redeem.</p>

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

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

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

S. D. Puterbaugh, Judge, presiding. This was an action of assumpsit, brought by Norris S. Barber against Granderson B. Phares, Thomas J. Huffman and WilliamCroka, on the following promissory note: “On the 1st day of February, 1858, we, or either of us, promise to pay Norris S. Barber, or bearer, of Knox county, Illinois, the sum of $314, it being for value received, with use.

<p>1.' Town charter—borrowing money. Where the charter of a town prohibited the trustees from borrowing money, unless authorized by a vote of its citizens, and they directed the street commissioner to open a street, and iu doing so he borrowed from the plaintiff, at different times, various sums of money, amounting to several hundred dollars, the trastees after-wards issued orders on the treasury for the amount, and suit being brought to recover the amount due on them: Held, that the orders were issued in violation of law, and were void, as the transaction was, in substance, borrowing money without being authorized by a vote of the citizens of the town.</p> <p>2. Curative law—constitutional power. In such a case, after the orders were issued, the general assembly passed a law amending the town charter, and by a section therein declared the orders should be valid and binding, but the title of the act had no reference to the validating of these orders: JXeid, this was a special or local law, and that there were two subjects in the law, and the constitutional requirement was not observed in expressing this matter in the title, and the provision to make the orders valid was therefore void, and they were not affected by the enactment.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by Joel H. Hulburd and George A. Herrick against Charles C. P. Holden to recover the balance due on a bill of builders’ hardware purchased by the defendant from the plaintiffs. A trial by jury resulted in a verdict and judgment for the plaintiffs for $346.30. To reverse this judgment the defendant appeals.

John G. Eogers, Judge, presiding. William and Louis Ohlendorf filed their petition to establish and enforce a lien on certain premises for the materials furnished by them and used in erecting a building on the premises. Herman Gierke and James N. Wetherill were made parties defendant. Heeney and Campbell filed an intervening petition to establish a lien on the same premises for materials furnished by them and used in the building.

<p>Appeal—stare decisis. Where a case has been twice before this court, and all of the questions decided in the same way on both trials, when the record is brought here a third time on the same questions, the court will refuse to again consider the errors assigned. The case must be considered as determined by the former adjudications, and the questions can not be opened for re-discussion,</p>

<p>1. Municipal corporation-power over streets and sidewalks. Where the city charter clothes it with power, and it is theduty of the city, to prevent obstructions from continuing in the streets and sidewalks, it is gross negligence, if known to the city officials, to permit an opening in a sidewalk, made to admit light into the basement of an adjoining building, to remain a long time without gratings or other protection, and to permit large goods boxes to remain piled upon the opposite side of the walk so as to impede and endanger the safety of persons passing along the walk; and when continued a great while, the city will be charged with notice of the defects and obstructions, and is liable for injuries produced thereby.</p> <p>2. Instructions—finding of jury under. An appellate court will not say a jury has disregarded an instruction when the evidence is conflicting, and it is a fair question for the jury to determine -whether they shall believe the witnesses on the one side rather than the other; nor will the court say that the witness was impeached because other witnesses testified to contradictory statements said to have been made by him, especially when the contradicting witnesses are not positive in their testimony,and the witness sought to be impeached is corroborated by other evidence.</p> <p>3. Damages—verdict. A verdict will not be set aside in this class of cases because the damages appear to be large. They must be excessive and palpably so, before the court will interfere.</p>

<p>1. Mechanics’ lien&emdash;description of the premises. In a suit in chancery to establish and enforce a mechanics’ lien, it was objected that the description of the premises was so indefinite and uncertain as to be. no,guide to the sheriff in advertising and selling them. In the record the premises are described as “building No. 181, South Leavitt street, in the city of Chicago, and further described as lot 8 and 19 in block No. 1 of Banks’ subdivision of lot 9 in block 11 of Rockwell’s addition to Chicago.” This description was held sufficient.</p> <p>2. And the objection that the congressional subdivisions of the land were not given in the description, was regarded as frivolous.</p> <p>3. Amendment of pleadings. After the cause was submitted to the jury, it being discovered that the replication which had been filed transposed the parties, the court permitted a formal and proper replication to be filed: Held, that such action of the court was not error.</p>

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

<p>1. Trust abused—;jurisdiction in equity. Where there is a conspiracy by l lie holder of a note secured by trust deed, to take advantage of the maker of the deed, and, by an abuse of the trust, wrongful!)' to deprive him of his equity of redemption, the right of the latter to relief rests upon the clear and solid ground of equitable jurisdiction over trusts, for the control of all fraudulent abuses of them, unless barred by the paramount claims of a bona fide purchaser for valuable consideration, and without notice.</p> <p>2. Notice to purchaser—idkat constitutes. Where a person is, and for thirty years has been, in the open and visible possession of a tract of land as his farm and residence, that possession is notice to all the world that he has some interest in the land; and whoever buys it while that possession continues, takes it subject to that interest, whatever it may be.</p> <p>3. Same—deed as notice. And in such a case, where one half .the land lay within four miles of a thriving and populous city, and the other half much nearer, and was sold under a trust deed at the rate of $100 for each forty acres, which facts were recited in the deed made by the trustee, a second purchaser who buys the land a few days later, taking a quit-claim deed in which the expressed consideration is $1000, is chargeable witii notice of all the facts recited in or shown by the deed from the trustee.</p> <p>4. Same—inadequacy of price. And in such a case, where the last purchaser claims to have bought in good faith without notice, and .yet lived at the time within four miles of the land, which was then worth $50 an acre, his claim mdst be denied, since it is wholly unnatural to suppose that he made the purchase without knowing where the farm was situated, ils general character and value; and the fact that a farm worth $4000 had been lately sacrificed for $200, would suggest to any man of ordinary judgment that there was some mistake, or some overreaching, in the transaction sufficient to put him upon inquiry, and his failure to make such an inquiry is equivalent to notice.</p>

S. L. Richmond, Judge, presiding. .This was a bill in chancery, filed in May, 1869, by James H. Dole and others, alleging the following facts: On the 2d day of July, 1868, one Joel Wheeler, since deceased, being then indebted to Salzman & French, made certain notes therefor and executed a chattel mortgage by way of security. This mortgage was acknowledged on the same day before Henry Salzman, a justice of the peace of the proper township, and one of the said mortgagees.

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

<p>Assumpsit—whether it will lie. In an action of assumpsit, the plaintiff sought to recover the value of a horse, buggy and harness, delivered to the defendants upon a contract under seal by which they agreed, upon certain conditions, to convey to the plaintiff a certain lot of ground. The plaintiff based liis action upon the theory that defendants had refused to perform their contract: Held, that, in order to maintain assumpsit, it would be necessary to prove the sale of the horse, buggy and harness, by the defendants, or their conversion in some way into money or money’s worth, and in the absence of such proof the plaintiff should resort to covenant on the sealed instrument to recover his damages, or, treating the contract as rescinded, trover or replevin for the property, after demand made.</p>

Edwin S. Leland, Judge, presiding. This tvas an action brought by John Foulk, before a justice of the peace of LaSalle county, against William Eckert, to recover the price of a heading machine. On the trial before the justice of the peace, plaintiff recovered a judgment against defendant for $45. An appeal Avas taken to the circuit court of LaSalle county.

This was a bill in chancery, filed by Cyrus H. McCorpiick and others against The Illinois Land and Loan Co nip any, and Mary Jane Hart and others, to foreclose a mortgage made by the husband of the said Mary Jane Hart, on lands in Cook county.

Writ of Error to the Court of Common Pleas of the city of Amboy; the Hon. Alonzo Kjnyon, Judge, presiding. This was a bill for a divorce, filed September 13, 1870, in the court of common pleas of the city of Amboy, in Lee county, by Lizzie Dixon against John R. Dixon. The defendant filed the following plea to the jurisdiction of the court: “State of Illinois, Lee county, city of Amboy, ss.

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

x Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding. This was an action of assumpsit, brought by Henry Kerber, in the circuit court of Cook -county, against Alpheus C. Badger. The suit was brought to recover the contract price for the cut stone used in building defendant’s dwelling house.

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

Writ of Error to the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding. This was a bill in chancery, filed by Solomon Bennett, on the 31st of May, 1866, in the Peoria circuit court, against MoFadden, sheriff of Peoria county, and others, to enjoin the sale of Bennett’s lot, to satisfy an execution in favor of Selz et al. against Israel Bennett. An injunction was granted.

<p>1. Ejectment—;fraud as a defense. A and his wife conveyed to B a tract of land, which the latter afterwards conveyed to O. A still remaining in possession of the land, 0 brought an action of ejectment against him. The defendant offered to show, in defense, that the deed from him and his wife to B was made in consideration of a conveyance to him by B of a tract of laud in Missouri, and that B had made fraudulent representations as to the character and value of such land, to which the plaintiff was a party: Held, that, while if the fraud, as claimed, had been practiced, it would afford good ground for asking a court of equity to rescind the contract and direct mutual reconvejrances, yet it could not be received as a defense to the action, as in ejectment the legal title must prevail, and the deeds showed a legal title in the plaintiff, and the alleged fraud went to the consideration, merely, and not to the execution of the deed.</p> <p>2. Nor could it avail the defendant that he had induced his wife to sign the deed, relinquishing her homestead right in the land, by leading her to suppose the instrument was a mortgage to secure the payment of $200, even if the grantee in the deed and the plaintiff were both cognizant of such fraudulent representation; for the action was brought against the husband alone, and he could not be permitted to set up his own fraudulent statements to his wife to defeat a recovery.</p> <p>3. The remedy of the wife could only be sought, in a proceeding to which she, herself, is a party, and in which the relief could be adjusted on equitable grounds. And should the property be worth more than $1000— as her claim could amount only to that sum in any event—the respective rights of the parties could be settled only in chancery.</p>

<p>1. Judgment—in attachment—its effect. A judgment in attachment without service or appearance will protect strangers to the record in rights acquired by purchase of the propert)' under it. But the plaintiff and the sureties on his bond are liable to the defendant for all damage he sustains by the wrongful suing out of the writ, and this, too, whether or not the •suit progresses to a judgment.</p> <p>2. Where a judgment in rem is recovered in a proceeding by attachment, there being no personal service or appearance, and the property levied on is insufficient to pay it, the plaintiff, to recover the bajance, must sue on the original'indebtedness; and in such a suit the defendant may set up any defense he could had the attachment proceeding never been instituted. In such a case, the defendant is not concluded by the judgment in attachment, and it can only be pleaded in bar to the extent of the satisfaction had under it.</p> <p>3. Where there is service or appearance by the defendant, then the case would probably be entirely different.</p>

Wm. A. Porter, Judge, presiding. This was an action of assumpsit, brought by Eossbach against Keller to recover for goods, wares and merchandise sold and delivered by the plaintiff to the defendant. A trial by jury resulted in a verdict and judgment in favor of the plaintiff for $365. To reverse this judgment the defendant appeals.

<p>1. Bailee—return of chattel. Where a vessel is chartered for a specified time, at a fixed price, under a written contract, and a bond with security is given, conditioned for the payment of the price, and for the return of the vessel at the time named “in as tight, staunch and good condition as she now is, reasonable wear and tear excepted,” and before the time for her return the vessel is destroyed in a gale by the “ act of God,” through 'no fault or negligence whatever, the bailee and his surety are still liable upon their bond, and must respond iu damages to the owner of the vessel for not returning her according to the terms of their obligation. But it seems that if the liability of the bailee had rested upon the charter alone, without the bond to return, the rule might he different. Nor would the mere fact that, in pursuance of the charter, the vessel had been insured for the benefit of the owner, constitute any defense to an action on such a bond, unless it were also shown that he had received the insurance money, and was therefore not entitled to a second satisfaction for the loss of his property.</p> <p>2. Same—general rule. The principle underlying all the English and American authorities on this subject is, that a party-must perform his contract, and if loss occurs by inevitable accident, the law will let it rest upon the party who has contracted that he will hear it. He is an insurer to the extent of making good the loss. The rule is just, and founded in reason, for'if he did not intend to bear the lass, it is natural to presume that he would have stipulated against it. And again, where one of two innocent persons must sustain a loss, the law casts the burden upon the party who agreed to sustain it, or rather, leaves it where the parties, by their agreement, placed it.</p> <p>3. Exceptions—death. Exceptions to this rule have been allowed in recognizances, where, if the person die, the liability of the surety is discharged; and in an obligation to deliver a living animal, where, if it die, the obligor is excused; and also in cases where a party agrees to render personal service, to work for a stipulated'period, or to do a certain class of work that can not he performed by another, and dies before the contract is completed. In all these cases the obligation is discharged.</p> <p>4. Same—implied contracts. So, too, the performance of duties implied by law may be excused when performance becomes impossible by inevitable accident, but a duty or charge created by the express terms of an agreement may not be so excused. A party having failed to provide for his own protection iu case of disaster, the law will not supply the omission.</p>

<p>1. Special assessments in the city of Chicago—publication of notice, by whom tobe certified. The fact'whether the publication of notice of an application for judgment upon a special assessment warrant was or was not certified by the printer or publisher of the newspaper in which it is claimed the publication was made, is open to proof.</p> <p>2. So, where a certificate of that character purported upon its face to have been given by the publisher of the newspaper, but it was shown by proof that the person certifying was not the publisher until after the time of the publication, it was held, the certificate was insufficient to give the court jurisdiction.</p>

<p>Writ of Error to the Superior Court of Cook county.</p>

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

Writ of Error to the Criminal Court of Cook county: the Hon. Henry Booth, Judge, presiding.

George W. Pleasants, Judge, presiding. This was an action brought by John C. Adams against William Yalandschoot, to recover the sum of $25 lost by the plaintiff and alleged to have come into the hands of the defendant. A trial by jury resulted in a verdict and judgment in favor of the plaintiff for the amount claimed. To reverse this judgment the defendant appeals.

<p>1. Divorce—jurisdiction. The designation of an applicant for divorce, as “Harriet N. Parker, of Grundy county,” is sufficient to give the circuit court jurisdiction of the parties. .</p> <p>2. Jurisdiction—denial of, how sustained. The bill having shown jurisdiction of the subject matter and the parties, will not be dismissed upon motion supported by ex parte affidavits, nor upon demurrer.</p> <p>3. Same—plea to the jurisdiction, before answer, should be interposed supported by facts, giving opportunity for rebutting, testimony and for cross-examination.</p> <p>4. Same—waiver. A defendant who, without pleading in the mode prescribed by the practice in chancery, proceeds to answer over, waives his objection to the jurisdiction.</p> <p>5. Alimony. The courts grant alimony upon proof of the circumstances of the parties, and unless found excessive, decrees will not be disturbed. The same courts may after wards modify, on proof of such change as renders the amount excessive.</p>

Writ of Error to the Superior Court of Cook county. This was an action on the case brought by John V. Far-well, Charles Farwell, William D. Farwell and John Eh Harmon, in the Superior Court of Cook county, against Horace C. Metcalf.

William W. Heaton, Judge, presiding. This was an action of replevin, brought by Akers against George, for the alleged wrongful taking and detention, by the defendant, of ninety head of cattle belonging to the plaintiff.

<p>1. Evidence—as between eo-defendants. In a suit in the names of two for the use of one of them, iu which the one not having interest testified against his co-plaintiff, it is competent to contradict or impeach him by-other witnesses.</p> <p>2. Same—when contradictory. When evidence is contradictory, involving the credibility of witnesses, the question is oue peculiary for the jury, and their verdict should not be disturbed.</p> <p>3. Same—legal presumption. Whether a witness swears mistakenly, or knowingly falsely, is a question of fact for the jury, and not one of law.</p>

Writ of Error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. This was a prosecution against Moses C. Wright, on an indictment found under the act of March 4, 1869, for the protection of consignors, etc. The indictment was as follows : State of Illinois, county of Cook,—ss. Of the December term of the Criminal Court of Cook county, in said county and State, in the year of our Lord one thousand eight hundred and seventy.

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

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

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

<p>1. Witness—competency under the statute. Where a man and his wife executed a mortgage on real estate to secure a note, and the mortgagee assigned the note and mortgage, and the assignee died, and his administrator filed a bill to foreclose the mortgage, the mortgagors were not competent witnesses to prove a defense, as they were not embraced in the statute rendering parties competent witnesses.</p> <p>2. Mortgage—assignment. A mortgage executed by parties living in this State, to be used in the State of Ohio, to indemnify any person who might become bail for a person in that State, which is assigned to such bail, is valid, and may be enforced to the extent of loss by the bail on the recognizance.</p> <p>3. Where a person became such bail on the assurance that the note and mortgage were assigned to him as an indemnity, and after his death these instruments properly assigned to him are found amongst the papers of the attorney who procured him to become bail, and whcf had also died, the presumption is, that the assignment was properly made.</p> <p>4. Bail—liability of. Where a recognizance has been forfeited in the State of Ohio, and suit brought on' the recognizance, resulting in a judgment in favor of the bail, and, on appeal, the judgment is reversed and the cause remanded, and the bail then compromises with the State, and pays a -part of the amount of the recognizance in discharge' of the forfeiture : Meld, that the liability of the bail was thus fixed, and when he made the payment he might then look to his principal, or to the note and mortgage that liad been assigned to him, for indemnity, and might enforce the mortgage to the extent that he had paid on the forfeited recognizance and necessary expenses, if that did not exceed the amount of the mortgage note.</p> <p>5. Recognizance—-forfeiture. Where the principal fails to appear according, to the condition of his recognizance, and a forfeiture is taken, the liability of the bail is fixed, and he can only show that there was no power to take the recognizance, that it is invalid, or that he has in some mode been discharged, to escape liability.</p>

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

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

<p>1. Married women—conveyance of their interest in real estate. Instead of proceedings by fine or common recovery under the common law, the interest of a wife in real estate may be conveyed by deed of herself and husband. This can be done only in the precise mode prescribed by the statute. Otherwise such conveyance is void.</p> <p>2. A mortgage or trust creating an incumbrance upon the lands of the wife, in which the husband does not join, is void, and will not be enforced, even though given to secure payment of a note made by herself and her husband for his debt.</p> <p>3. Separate estate of the wife comprises only such rights as she may have independently of her husband, as if feme sole, such as personal property, and the rents, uses and profits of real estate.</p> <p>4. The act of February 21, 1861, “to protect married women in their separate property,” does not go to the extent of authorizing married women to sell real estate without concurrence of the husband. Such power can not be implied, but must be given in direct terms.</p> <p>5. The decision in the case of Toung and Wife v. Graff, 28 Ill. p. 20, overruled.</p>

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

Wiht oe Error to the Circuit Court of LaSalle county; the Hon. Edivin S. Leland, Judge, presiding. This was an action of assumpsit, brought by James Aiken, in the LaSalle circuit court, against John M. Hodge, for money loaned and advanced at the request of defendant.

<p>1. Void assessment—makes void all proceedings dependent upon it. The city of Chicago made an original assessment Avhicli Avas declared void. A second assessment to make up its deficiencies is also void.</p> <p>2. Excessive levy void. If, after the completion of a Avork, a levy is made in gross excess of the ascertained cost, it is fraudulent.</p> <p>3. Official oath. If commissioners are sworn to perform a particular duty, and they proceed to acts not authorized by law nor Avithin the scope of their oaths, their acts are unlawful and their proceedings void.</p> <p>4. Unlaavfol assessment—effect of payment of. Owners of property having paid assessments which are subsequently set aside, can not recover it back, such payment being deemed in laiv voluntary.</p> <p>5. Remedy-—can not he restricted to particular proceedings. Courts Avill not impute to the legislature the intention of nullifying the judgments and decrees of courts of general jurisdiction in advance, when it would be beyond the constitutional power of that body to do so after they were made; and especially in relation to statutory proceedings to divest the citizen of his property without his consent by confining the citizen to a particular mode of seeking his remedy.</p> <p>6. Unconstitutional law—can not be executed by the courts. If the legislature has prescribed a mode for making a statutory proceeding effectual which is unconstitutional, the courts have no authority to reject that mode and adopt a different one. The legislature must provide the correction.</p>

<p>Personal property—exempt from execution. Under the law of 1843, exempting personal property from levy and sale on execution, the person entitled, to the benefits of the act may select a horse of less value than §60, under the clause allowing him property to that amount, suitable to his occupation and condition. Under the act of 1861, such person is entitled to hold, among other articles, a horse worth not exceeding §100, in addition to the articles exempt under the law of 1843: SelcL, that a person entitled to the benefit of these exemptions, may hold, under both statutes, a horse worth not exceeding $100; that these acts are not to receive a strict construction, and that, according to their spirit, a person thus situated may, in his claim, unite both laws.</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 Tazewell county; the Hon. Charles Turner, Judge, presiding.</p>

<p>Special assessment—of a new assessment. Upon an application for judgment upon a new special assessment for tlie deficiency which the city of Chicago failed to collect of a former assessment, where the only defect in the original proceeding was in the printer’s certificate of notice of application to the council for confirmation, the ordinance under which it was had being free from objection, it was held, the new assessment was not void.</p>

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

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

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

<p>1. Corporation—may contract with its members. There is no rule of law which prohibits a shareholder from dealing with the company of which he is a member, or from suing or being sued by it. The president of a private corporation has the right, with his own funds, to purchase notes and drafts of the corporation, and when lie does so, lié will succeed to all the rights of the prior holders; or he will have the right, when he takes up such indebtedness with his own means, to maintain au action against the corporation for money paid, laid out and expended for its use.</p> <p>2. Same—advances -and loans to, by officer. And if the president of a private corporation advances it money to enable it to carry on its business or make purchases, he can sue it and recover for money loaned.</p> <p>3. A shareholder or officer of a private corporation has the right to deal with the company in the same manner as strangers, and when he does so, such party acquires the same rights and incurs the same liability as in the case of a contract with a stranger.</p> <p>4. Same—advances by member—presumption. Where two brothers, contemplating the formation of a private corporation, purchased certain coal lands and mining rights, and agreed when the purchase was made that they were to have an equal interest in the stock of the company, and to make equal payments on account of the purchase and for carrying on the business; and after the incorporation, one of them advanced various sums of money in payment of drafts of the company and in taking up its indebtedness, for which he was credited upon the books of the company: Held, in a suit against the company to recover for such advances, that the agreement was intended only to bind each brother to advance equal amounts as loans, and not as donations; and even if this were not so, that the company could not set up such agreement in defense, as it was no party to it. The court could only look to the legal liabilities of the company.</p> <p>5. If by the recovery for advances the plaintiff should obtain an equitable advantage over his brother by getting more than a fair share of the corporate property, under the agreement to contribute and share equally in the stock and dividends of the company, the brother in equity might have the rights and burdens of each equalized.</p> <p>6. Corporation—compensation for services of officer. Unless provision is made for compensation for the services of the president of a corporation in the by-laws or resolutions of the compan)', such officer will have no right to recover for services.</p> <p>7. Admission. When an admission involves a conclusion as to the party’s legal rights, and does not relate to a particular fact, and where it is manifest that it was made in ignorance of his legal rights, it is entitled to but little weight.</p>

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

<p>1. Insurance policy—indorsement to pass title. The plaintiff brought suit on a policy of insurance, payable to third parties who were the assured, upon the back of which was indorsed: “Loss, if any, under this polio}’is hereby made payable to the Ticasuiy Bank of Chicago, as its interest may appear.” Signed, “ J. Farmer, Sec’y.” The declaration set out the policy in lime verba, without any averment that the indorsement was made by the company", or that the assured had requested or consented to it: Held, that the declaration failed to show any right of action in the bank, Unci was bad on motion in arrest of judgment.</p> <p>2. Same—assignment. In order to give a right of action on a policy of insurance for a loss, to an assignee in his name, the insurance company and the assured must act together in effecting an indorsement.</p> <p>3. Pleading—defects cured ly verdict. If a cause of action be stated, though ambiguously and defectively, a general verdict will cure the defect ; but where there is no statement of any cause of action or right' in the plaintiff to maintain the suit, the omission will not be cured by the verdict. Nothing will be presumed after verdict but what is expressly stated in the declaration, or is necessarily implied from the facts which are stated.</p> <p>4. Pleading and evidence. The plaintiff need not prove more than is expressly stated in his declaration, or is necessarily implied from those facts which are stated.</p> <p>5. Arrest op judgment. Where a declaration fails entirely to show any right in the plaintiff to maintain the action, as where the suit is upon an instrument payable to a third party, and no indorsement or transfer is averred, a motion in arrest of judgment should prevail.</p>

<p>1. Certiorari under the statute. Where a petition for a certiorari shows no reason why the party could not have taken an appeal from the judgment of a justice óf the peace, it is not error to dismiss the certiorari on motion.</p>

<p>1. Taxation—leasehold interest — warehouse on railroad right of way. Grain Avarehonses built by private individuals upon lands leased by the Illinois Central .Railroad Compain’-, along and on the company’s right of Avaj'Y intended for the private benefit of the lessees, who have the right to remove the same before the termination of their leases, are not the property of the railroad company, but personal property of the lessees, and taxable as other personal property.</p>

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

This was an application for a mandamus against Charles E. Lippincott, auditor of the State, and Erastus N. Bates, treasurer, to compel the former to issue his warrant on the treasurer in favor of the petitioner for $100, and the latter to pay the same.

L. E. Payson, County Judge, presiding. This was an action of debt upon a penal bond. The court below sustained a demurrer to the declaration, because no consideration was averred for the undertaking. The judgment was reversed by this court (26 Ill. 279), on the ground that the seal imported a consideration, with special direction to the county court to overrule the demurrer and render judgment in favor of the appellee against appellant, and take an inquest of damages.

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

<p>1. New trial—-finding as to facts. Where a case is fairly left to the jury, under proper instructions, and. the evidence is conflicting, both parties being sworn, and the evidence objected to and admitted, even if irrelevant, could not have affected the verdict, a new trial will not be granted.</p>

<p>Appeal from the Circuit Court of Coble county.</p> <p>The appellee brought suit against appellant, before a justice of the peace, under the provisions of “ an act amendatory of the mechanic’s lien law,” approved April 5, 1869, for wages due appellee for work done on the building of appellant, under the employ of James Sullivan, contractor. On the trial of the cause on appeal, the services were proved and service of notice on appellee. It also appeared that at the time of serving the notice, appellant still owed Sullivan a sum greater than the claim of appellee.</p>

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