Volume 64 — Illinois Reports

<p>Appeal from the Circuit Court of Williamson county j the Hon. A. D. Duff, Judge, presiding.</p>

<p>1. Chanceby peactice—hea/ring without answ&r, by consent. It is error to render a final decree upon a bill in chancery and proofs, without first compelling an answer, or defaulting the defendants and taking the bill as confessed. But the parties may, by agreement, proceed to a hearing on the bill, exhibits-and proofs, without an answer or decree pro confesso, and the decree, if sustained by the evidence, will not be disturbed on error.</p> <p>2. Deceee—whether for too large a sum. In this case, the decree for the foreclosure of a mortgage found a greater sum to be due the complainant than the amount then due of principal and interest in the note, but the bill claimed for moneys advanced to redeem the premises from sale for taxes, which the mortgagors ought to have paid, without stating the amount of such payment; nor did the amount appear in the record. The decree recited that defendant’s attorneys admitted on the hearing that such sum was due: Held, from such admission, that it would be presumed that the item of redemption and costs included in the decree, made up the amount of such excess, and therefore there was no error in this respect.</p> <p>3. Attoeney and solícitos—power to bind, client by his admissions. A solicitor, regularly retained by the defendants in a suit to foreclose a mortgage given by them, has the power, on the hearing of the cause, to make admissions as to the sum due from his clients, which will be binding on them.</p> <p>4. An attorney or solicitor retained in a case, from the nature of the employment, may, on the trial or hearing of the cause,'make admissions and waive rights of his client, which will be as binding as if made by himself, in the absence of fraudulent collusion with the other party.</p> <p>5. The rule is the same when the client is a feme covert. When she commits her rights to an attorney, he will be held to have power to do the same acts at the trial which she could perform in person.</p> <p>6. Same—relitf against acts of—when allowed. If the atttorney acts wrongfully, he will be liable to his client for the injury sustained, but equity will not relieve against his acts unless fraud is shown between him and the opposite party, or when the attorney is not responsible.</p> <p>7. Foeeclosdee of mortgage—pan-ties—mortgagee homing transferred the debt. A bill to foreclose a mortgage by the assignee of the note secured, failed to make the mortgagee, who had parted with all interest in the note, a party defendant: Held, that he was not a necessary party. But when lie was invested with, a power of sale as a trustee, it seems that, if the bill had sought his removal for refusal to act, he would have been a necessary party.</p> <p>8. Power op sale in mortgage—who must execute. Where a mortgage gave the mortgagee power to sell the mortgaged premises on default of payment, and the mortgagee parted with all his interest in the note seemed, by assignment: Held, that the law would not confer the power of sale on the assignee, but that it still remained with the mortgagee.</p>

Silas L. Bbyan, Judge, presiding. This action was brought by appellee in the circuit court of Marion county. A change of venue was taken, and the cause sent to the circuit court of Clinton county, where the appellee recovered judgment against appellant for $300.

<p>1. Condemning bight oe -way—for a railroad, under act of 1852— notice of appeal—whether sufficient. In a proceeding to condemn land, under tbe act of 1852, for tlie riglit of way of a railroad, notice of an appeal by the owner of the land to the circuit court from the decision of the commissioners, served upon the attorney of the railroad company, is insufficient.</p> <p>2. And where the circuit court proceeds to judgment upon such defective notice, the railroad company failing to appear, the owner of the land may bring the record to this court and have the judgment thus irreg. ularly obtained in his favor, reversed, in order that a new trial may be had and a judgment regularly rendered.</p>

<p>1. Plea of faiVwre of consideration—whether sufficient. In an action on a promissory note, a plea of failure of consideration must aver more than the mere failure—it must disclose the manner of the failure.</p> <p>2. In an action on a note dated October 22d, 1868, the defendant pleaded a failure of consideration, averring that the consideration was an agreement to cancel judgments rendered on the 24th' of October, 1868, and a failure to cancel such judgments; but there was no averment to indicate how an agreement to satisfy judgments obtained subsequently to the execution of the note and the agreement, could form the consideration of the note:. Held, in view of the principle that pleas must be construed most strongly against the pleader, that, in the absence of any explanatory averment, the law would not intend that the satisfaction and cancellation of judgments not in existence could form the consideration of the note, and hence there could be no intendment that the failure to satisfy such judgments could constitute a failure of consideration, and the pica was therefore bad on demurrer.</p> <p>3. A plea which avers a total failure of consideration, hut only shows a partial failure, is had on demurrer.</p>

<p>Appeal from tbe Circuit Court of Marion county; the Hon. Silas R. Bryan, Judge, presiding.</p>

Writ oe Error to the Common Pleas Court of Sparta; the Hon. William P. Murphy, Judge, presiding. This was an action of debt, brought by Robert J. Richmond against Mary Caldwell and Jane Nimmock.

<p>"Writ of Error to the Circuit Court of Marion county.; the Hon. Silas L. Bryan, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.</p> <p>The claim in this case was $12.60 for summoning the panel of petit jurors, of which sixty cents was for mileage. The other item of. $136.70 was for fees and mileage in summoning 183 talesmen in a criminal case brought from Union county to Alexander county.</p> <p>The act of 1847 provided that the county courts might, if they deemed it expedient, allow the sheriffs of their counties any sum not exceeding ten dollars for summoning the grand and petit jurors for each term of the circuit court, which should be in full for such service.</p> <p>The act of 1849 (Special Laws, p. 81,) provided that the sheriff should receive the following fees: “ For summoning a jury, (grand jury excepted,) each case, fifty cents.”</p> <p>The act of February 16, 1865, (Laws 1865, p. 69,) provided as follows: “Sec. 1. The fees and compensation of the sheriffs of the several counties hereinafter named shall be as follows:” * * “Serving each grand and petit juror, fifty cents; for each mile of necessary travel to serve such juror, five cents.”</p> <p>Tli's act applied only to certain counties, and was to remain in force until July 1, 1867. The act of 1867 continued the act of 1865 in force .indefinitely in certain counties. (Laws 1867, p. 112).</p>

This was a petition filed by the relator in this court for a mandamus to the Governor, requiring him to commission,the relator as a police magistrate of the city of Chicago.

This was an application in this court for a mandamus against Julian S. Rumsey, treasurer of Cook county, to compel him. to pay the petitioners for their services as stenographic reporters in a certain suit in the courts of Cook county.

<p>Appeal from the Circuit'Court of Gallatin county; the Hon. Andrew D. Duff, Judge, presiding.</p>

Writ op Error to the Circuit Court of Pulaski county • the Hon. John Olney, Judge, presiding.

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.</p> <p>This was an action of ejectment, commenced by the county of St. Clair against John B. Lovingston and the Wiggins Ferry Company, in the St. Clair circuit court, on the 26th day of August, 1870, for the recovery of a tract of land, bounded on the north by the southern line of the first ferry division of the city of East St. Louis, as laid out in the plat of the first ferry division; on the east by the west line of survey Ho. 579; on the west by the low water mark of the Mississippi river, and on the south by the south line of said survey Ho. 579 extended to low water mark of the Mississippi river.</p> <p>The declaration had four counts. The first claimed an estate in fee simple; the second, an undivided three-fourths in fee; the third, the perpetual possession; and the fourth, the undivided three-fourths in perpetual possession.</p> <p>Appellants pleaded the general issue. The cause was tried by a jury at the October term, 1871. The jury found defendants guilty, and that the plaintiffs were entitled to an estate in fee simple in the premises described.</p> <p>The plaintiff below claimed title to the land under the act of Congress of July 15th, 1870, granting and donating swamp and overflowed lands of the United States.</p>

<p>1. Fees of county officers—special laws relating to, abrogated by the constitution. The last clause of section 11 article 10 of the constitution of 1870, abrogated all special laws relating to fees of township and county officers, in force at the time of the adoption of that instrument, and required that such officers should receive only such fees as were provided by laws of general operation throughout the State, until the meeting of the 'first general assembly thereafter.</p> <p>2. It seems that the effect of this clause was not only to repeal all such special laws in particular counties, but also to revive in such counties the general fee' bill laws of the State until the legislature should revise these laws when they came to classify the counties according to population.</p> <p>3. The twelfth section of the same article of the constitution, which provides that all laws fixing the fees of State, county and township officers, shall terminate with the terms respectively of those who might be in office at the meeting of the first general assembly after the adoption of the constitution, and gives the legislature the right to reduce the fees of existing officers, is not in conflict with the last clause of section 10 of same article. Section 10'repealed all special laws, while section 12 was intended to do away with the general laws on the subject of fees for such officers at the end of their terms of office.</p> <p>4. Constitutional law — construction — argument ab incorvoeniemti. Where a constitutional provision is plain and unambiguous, the fact that it may work great inconvenience or hardship to a particular class of officers or persons, furnishes no ground for the courts, by construction, to pervert its evident intention.</p> <p>5. Same—repealing statutes. A constitution being the organic law of the State, is supreme, and controls all other laws which are in force when it is adopted, or which are enacted after it comes into existence. Haying the power to prevent particular legislation, it must have the same power to repeal existing legislation, and does repeal all prior statutes in conflict with its provisions.</p> <p>6. Same—no subsequent legislation necessary to repeal laws conflicting with. As the fundamental law of the State is equally efficacious to control every department of government and the acts of every member of the community, it follows that, when it prohibits the performance of an act by communities, individuals or officers, it must be obeyed, and courts will enforce the prohibition without awaiting the action of either of the other departments.</p> <p>7. Same—rule of interpretation. Where a constitutional provision will bear two constructions, one of which is consistent with, and the other inconsistent with, an intention expressed clearly in a previous section, the former must be adopted, that both provisions may stand and have effect.</p>

<p>Appeal from the Circuit Court of Marion count}'; the Hon. Silas L. Bryan, Judge, presiding.</p>

<p>Appeal from the Circuit Court .of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.</p> <p>On the 10th day of November, 1871, being the third Friday of the October term of the St. Clair circuit court, the appellee filed his bill for a divorce against the appellant, on the ground of extreme and repeated cruelty, and prayed, also, for the custody of the children, aged respectively 11, 13, 15 and 17 years. The following indorsements were on the bill:</p> <p>“I have been shown the above bill, and authorize my solicitor, Robert F. Wingate, to enter my appearance in the above cause.</p> <p>Maria S. Bowman.”</p> <p>“East St. Louis, Oct. 24, 1871.</p> <p>I hereby waive process and enter my appearance in this cause, and pray an early adjudication of the case.</p> <p>Maria S. Bowman.”</p> <p>The special master reported the following testimony, taken November 11, 1871:</p> <p>John H. Wyatt testified that he had known the parties ten or twelve years ; have seen the defendant strike the complainant twice Avith a piano stool, in September, 1870; saAV her draAV a knife on him in April, 1871; she said she Avould cut his heart out; he said, “No, I reckon you wouldn’t do that,” and got up and left the house; don’t think the parties can live together; have heard defendant say repeatedly that she neATer would live Avith complainant; have seen defendant assault the complainant three times Avithin the last íavo years ; never saAV her draAV a pistol on him, but she told me she had done so.</p> <p>B. B. Wyatt testified that he had knoAvn the parties for the last three years; heard defendant say she had struck the complainant over the head with a piano stool; complainant was often afraid tq go home, and stayed aAvay from the house for fear of being attacked; know that there have been irreconcilable difficulties betAveen the parties since the spring of 1868.</p> <p>The special master recommended the granting of a divorce, and that reasonable alimony be alloAved to defendant in accordance with the offer in the bill.</p> <p>Upon this, a decree of divorce was rendered, which recited: “On the third Friday of the term comes the complainant, by C. W. & E. L. Thomas, his solicitors, and the defendant having, in her own person, entered her appearance in this suit, in writing, the court granted a rule on the defendant to answer the complainant’s bill by next Saturday morning at 9 o’clock. On the third Saturday, the defendant having' failed to answer the complainant’s bill in compliance Avith the rule of the court, the said bill is taken as confessed by her, and this cause coming on to be heard, the court hears evidence to sustain the allegations of the said bill.” The decree further found that the court was fully satisfied of the truth of said allegations; that the parties Avere married as stated, and that defendant had, for more than two years past, been guilty of extreme and repeated cruelty to the complainant. The court awarded to defendant alimony at $75 per month until November, 1878, and after that $100 per month so long as she should remain'single and unmarried, and made the same a lien on certain real estate.</p> <p>On the eighth Friday of the same term, the defendant below, by her counsel, moved the court to vacate the decree, and filed her affidavit in support of the motion, that she was not aware of any such suit pending against her; that the first knowledge of such proceeding was the announcement several weeks after the divorce was granted; that she was now divorced from complainant, and that he had obtained said divorce from her on the ground of cruelty ; that moi’e than ten days previous to the October term, 1871, of the St. Clair circuit court, she had filed her bill of divorce against said John B. Bowman, charging extreme and repeated cruelty, and adultery, and that this bill was dismissed without her knowledge; that she was threatened with death by her said husband unless she would withdraw said case from George W. Davis, her solicitor, who had commenced said suit for her, and would employ such lawyer as he should propose ; that afterwards, complainant sent a man by the name of Wyatt, who took affiant over the river to It. F. Wingate, in St. Louis, Mo., who was engaged for hex’, and thereupon, afterwax’ds, at the house of complainant, by fraud and compulsion, she was reqxxired to sigix some papers of which she did not know the import, and that she did not know what they were until after the divorce was granted ; that her suit against John B. Bowman for divorce was dismissed without her knowledge or authoi’ity, or that of her solicitor’, George W. Davis, and that she signed said papers through fear of her life; that the charges in. the bill, filed by complainant against her, ax*e false and malicious, and that she is ready and able to disprove each and every such charge in said bill; but that, on the contrary, said John B. Bowman has been guilty of exti’eme and repeated cruelty towax-ds her, and that he has been guilty of adultery with divers pex’sons, and keeps company with lewd women; that she can prove said charges if this decree is set aside; that the divorce granted in this cause was granted without her knowledge ; that it is a fraud and a wrong against her. She therefore prays that said decree and default be set aside and she be allowed to present her defense to said suit.</p> <p>Counter affidavits of Robert F. Wingate, Benjamin B. Wyatt and James H. Wyatt were filed on the hearing of the motion, contradicting the charge that the defendant did not know of the pendency of the suit and the rendition of the decree therein.</p>

This was an application for a mandamus, as stated in the opinion of the court. The opinion sets out the facts alleged, in the petition.

<p>1. Subkogation—surety paying—right to creditor’s securities. "Where a railroad company executed a deed of trust to secure a debt of the company to Beal of §1000, in which A was surety, and to indemnify A and B against liability as sureties of the company to C and D for the sum of §3000,' and A, as such surety, was compelled and did pay such sums: Reid, that A was entitled in equity to be subrogated to the rights of Beal under the deed of trust, and to have the deed of trust foreclosed to indemnify himself for the several sums so paid by him.</p> <p>3. A railroad company being indebted to various parties, placed certain county bonds in the hands of its president, to be held by him in trust to secure such indebtedness. These bonds were subsequently withdrawn by the company, after the acceptance of the trust, and appropriated to other purposes, and a deed of trust on certain lands executed to secure the same indebtedness. The president having surrendered the bonds, was held liable to certain creditors on account of his improperly parting with the bonds, and compelled to pay their debts: Held, that the president, having paid a-debt secured by the deed of trust, was also entitled to be subrogated to the rights of such creditors under the deed of trust; and'there being no fraud shown in the surrendering of the bonds and their application in paying other debts of the company, that the president was not estopped from seeking such remedy.</p> <p>3. Same—estoppel. In such case the creditors were the only parties who could complain of the surrender of the bonds, and if they chose to resort to the personal liability of the president as trustee of such bonds, instead of relying upon the new security given by the trust deed, they ought not to object, when the trustee, after having paid their debt, only asks to be subrogated to the rights which they could have asserted under the deed of trust.</p> <p>4. Same—as against purchaser with notice of the lien. And when a part of the creditors whose debts were secured by the deed of trust, and which had been paid by those seeking subrogation, recovered judgments against the railroad company on other indebtedness, having notice of the deed of trust, and purchased part of the same lands included in the trust deed, at sale under executions issued on their judgments: Held, that the equities of the parties seeking such subrogation were superior to their equity.</p> <p>5. In such case the court held that whatever amounts the execution creditors expended in payment of taxes, or in perfecting the titles to the lands included in the deed of trust, which inured to the benefit of the complainants, by way of protecting their security, ought to be refunded to them; and that if there were any lands included in the deed of trust not sold by such other creditors on their executions, they should be first subjected to the payment of the amounts due the complainants, and the lands sold on execution should be last offered for sale.</p>

<p>Writ of Error to the Circuit Court of Clay county; the Hon. Richard S. Canby, Judge, presiding.</p>

<p>Married women—power of, to execute lease on their sepa/i'ate real estate without consent of husband—construction of act of 1861. The true construction of the act of 1861 is, that, by implication at least, a married woman has power under the statute to make all such contracts in regard to her real estate as may be necessary to its full and complete eiijoylment. And under this power she may execute in her own name a lease for a term of years upon any lands which she may own, without her husband joining in the execution or consenting thereto, that will be as binding during coverture as though she were sole and unmarried.</p>

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action commenced by the appellant against the appellee before a justice of the peace, when the former recovered a judgment for $9 and costs of suit. Appellee appealed from this judgment to the circuit court, where, on a trial, a verdict and judgment was rendered for the appellee.

<p>1. Service—garnishee process on corporation. A garnishee summons issued by a justice of the peace against a private corporation, was returned by the constable with the following indorsement of service: “Served the within by reading to the within named company therein, January 15, 1870.” TJpon this, without any appearance, the justice rendered judgment by default: Held, that the service was a nullity and gave the court no jurisdiction.</p> <p>2. Under "the act of February 8, 1853, the service of process upon an incorporated company is required to be made upon its president, if he is a resident of the county, and if he is absent from the county, or does not reside therein, service shall be made by leaving a copy with any one of the several officers therein named. The statute requires the service to be made by copy, and the return should state the name of the nerson so served.</p> <p>3. Injunction—to restrain the collection of avoid judgment under color of process. Where the statutory mode of service of process was not pursued so as to give a justice of the peace jurisdiction of the defendants, and he proceeded to render judgment.by default and issued execution thereon, upon which alevy was made and the property advertised for sale, which facts were set forth in a hill for injunction hy the defendant against the justice of the peace, constable and plaintiffs, to restrain the sale and perpetually enjoin the collection of the judgment: Held, that the facts disclosed entitled the complainants to have the judgment and execution perpetually enjoined.</p>

Henry S. Baker, Judge, presiding. This was an action of trover, brought by Thomas Pegg against Garrett R. Garrettson, to recover damages for taking and converting forty acres of wheat, which, together with other personal property, had been mortgaged to Thomas Pegg by his father William Pegg. A trial in the court below resulted in a verdict and judgment for $470.75 in favor of the plaintiff. The defendant appeals.

Writ op Error to the Circuit Court of St. Clair county; A. S. Wilderman, Esq., acting Judge, by consent of parties. This was an action of debt, bi'ought in the court below by Joerg, coroner of St. Clair county, who sued for the use of various parties, against John Goelz, Philip Schmidt and Louis Schmidt, upon a replevin bond, in which Goelz was principal and the other, two defendants were sureties.

<p>1. Evidence—sealed note in suit to recover for money on it by surety. In an action of assumpsit by tbe plaintiff to recover of tbe defendant money paid as bis security upon a note, it was urged tbat tbe court erred in admitting in evidence tbe note, because it was under seal: Held, tbat as tbe action was not founded upon tbe note, tbe objection was not well taken, tbe note being proper evidence on tbe question of tbe amount paid, and to whom.</p> <p>2. New trial—conflicting evidence. Where the plaintiff testified that he signed a note as the surety of the defendant alone, and one of the other makers testified that the plaintiff signed as his surety, and not that of defendant: Reid, in a suit to recover the sum the plaintiff paid thereon, the jury having found for the plaintiff, that this court could not say that the .jury found against the weight of the evidence.</p>

<p>Witness—competency. In a suit to enforce a vendor’s lien against the widow and heirs of .the deceased vendee, the complainant is a competent witness to disprove a conversation alleged to have been had between himself and another witness who testified on the hearing.</p>

Clair county; the Hon. Joseph Gillespie, Judge, presiding. This was an action of replevin, brought by If aysing against Hughes, on the first day of July, 1871, in the circuit court of St. Clair county, to recover the possession of certain articles of personal property. The defendant filed three pleas: First—non detinet. Second—property in Frank Lorber.

<p>Appeal from the Circuit Court of Bond county; the Hon. Joseph Gillespie, Judge, presiding.</p>

<p>1. Carrier of property—title of plaintiff to enable him to sue. The plaintiffs, having a contract with the government to furnish supplies of grain at Cairo, employed A to make purchases for them, which he did along the line of defendant’s road ih his own name. Under his contract with plaintiffs he shipped the grain on defendant’s road ■ to one of plaintiffs at Cairo, where the same was to be inspected, and at the same time drew on plaintiffs for the cost, and forwarded to them the bills of lading. In a suit by plaintiffs against defendants for a failure to deliver a portion of the grain and for unreasonable delay in forwarding and delivering a portion at the place of destination, it was insisted that, under the contract with A, the grain was not the property of plaintiffs until it had passed inspection at Cairo: Held, that plaintiffs, upon the payment of the drafts upon them for the cost of the grain, acquired a special property in the grain which would enable them to maintain the suit; and that, from the moment the grain was shipped and the bills of lading transmitted to them, and the bills drawn upon them, they acquired, even as against A, a special property in the grain which, placed it beyond his control, and gave plaintiffs, virtually, all the rights of an owner.</p> <p>2. Same—milita/ry control of road as a defense for delay. The fact that the government, through the military, during the late civil war, required a railroad company to give preference to government freights, and for that purpose exercised more or less the right of determining for what persons shipments should be made, but did not control the movement of trains, when the company held itself out as a common carrier and run its regular trains, carrying private as well as government freights, with and without permits, and received shipments, giving bills of lading therefor, will furnish no excuse to the company as a carrier for not delivering according to its legal obligation within a reasonable time. Such military control might have justified the carrier in refusing freights, but having received them, did not excuse the delay in transportation.</p> <p>3. Same—what is unreasonable delay. Where it appeared that the ordinary time required for freight cars to run from the point where grain -was accepted for shipment, to its destination, was two or three daju, and that, of 185 cars of grain shipped, only ninety-five ever reached the place to which they were shipped, and that their average time was over thirty days, the delay was held unreasonable, and that the company could not excuse such delay on account of blockades on its side-tracks and other difficulties known to itself at the time of accepting the grain.</p> <p>4. Same—duty of ca/rrier on failure of consignee to receive freight. It is the duty of consignees to receive freight when notified of its arrival at its destination, but if they fail to do so, it is the duty of the carrier to warehouse the goods and take reasonable care of them for a reasonable time.</p> <p>5. Same—excusefor delay in transportation. Where the principal cause of delay in transporting grain by a railroad company was a great accumulation of loaded cars at all its stations for a great distance on its road, and the fact that the company had undertaken to carry more freights than it could manage successfully, it was Keia, that even if the plaintiffs and their agents were in some degree of fault in not receiving grain more promptly, it would not excuse the company for delay in transporting other grain shipped to plaintiffs.</p> <p>6. Same—refusal to accept for transportation. Where the military of the United States were exercising a limited control over the operations of a railroad company during the late war, and the shipments were immense, so that the side-tracks of the road for a considerable distance were filled with loaded cars of freights, and the side-tracks at its terminus were blockaded with loaded cars waiting to be Unloaded by the military authorities : Held, that it was the right and the duty of the railroad company to refuse to accept perishable freights for shipment to its terminus until its line was clear and it could transport the same without unreasonable delay, except upon special contract providing against liability.</p> <p>7. Same—orders of military officer as an excuse. A railroad company, when sued for an unreasonable delay in transporting corn to Cairo, will not be excused by the fact that the government quarter-master had requested its. superintendent to instruct his agents along the line to forward hay, intended for the use of the army during the civil war, in preference to grain. Such order could have no bearing on grain already shipped, and as to that subsequently shipped, it was the wrong of the company in receiving it, knowing that it could not be seasonably forwarded.</p> <p>8. Same—measure of damiagefor non-delivery. Where tbe plaintiffs had contracted for the sale of corn to the United States, at Cairo, at $1.50 per bushel, and lost the benefit of such sale on account of the non-delivery of the same within a reasonable time after shipment: Held, that if the managing officers of the railroad company, upon whose road the grain was shipped, had knowledge that the corn was intended for the government, the plaintiffs were entitled to recover of the company on the basis of the price they were to have received from the United States, and va ere not limited to the market value of corn in Cairo.</p> <p>9. Same—special damages—notice. The rule as between verffior and vendee, or shipper and carrier, is, that where the article is destined for a special purpose, that fact should be communicated to the vendor, or carrier, if it is to be made the foundation of special damages against them, and if it is of a character likely to affect the action of the vendor or carrier.</p> <p>10. Where the owner of corn, shipped to him at Cairo, had sold the same to the government at $1.50 per bushel, which was more than the market value of corn at that place at the time when it should have arrived, the rule would not require that the owner should communicate to the carrier the terms of the contract of sale in order to recover the contract price as damages. It will be sufficient if the carrier knew the corn was intended for the government.</p> <p>11. But when the government, on the first day of April, notified the shipper that it would receive no more grain after the tenth of that, month, under the contract, good faith required the shipper to communicate the knowledge of this fact to the carrier, if he expected to hold him liable for the contract price on corn shipped after the first of April. For corn shipped after the lapse of a reasonable time in which to give this notice to the carrier, the owner should be confined to the market value of the grain at the place of destination at the time when it should have been delivered, unless such notice was given.</p> <p>12. Same. In the same case, it was urged that plaintiffs should have gone into the market at Cairo when the shipments failed to arrive, and bought corn to fill their contract, and not having done so, could only recover the market price: Held, that the law made no such requirement.</p> <p>13. Plea—statute of limitations—to amended counts. In a suit against a railroad company to recover for neglect and delay in the transportation of grain, and non-delivery, the plaintiff filed two amended declarations, setting up shipments of corn by different persons from different places, aad at different times from those in the original declaration. The.defendant, to these new counts, pleaded the statute of limitations—that the causes of action did not accrue within five years before leave was given to file such counts, with an averment that they set up new causes of action. The court below sustained a demurrer to the pleas: Held, that the court erred.</p> <p>14. Amendments—to obviate statute of limitations. While it may be true that courts should be liberal in allowing amendments to avoid the running of the statute of limitations, yet it should be confined to cases where the original cause of action is re-stated. The plaintiff can not, by bringing in a new cause of action by way of amendment, avoid the bar against it.</p>

Appear from the Circuit Court of McLean county; the Hon. Thomas F. Tiptoe, Judge, presiding. This was an action on the case, brought in the court below by Cobb, Christy & Co. for the use of Elihu Fallis, against the Illinois Central Eailroad Company, to recover $50,000, the valué of about 30,000 bushels of corn shipped by them through Ludington & Eood.upon defendant’s railroad in the spring of 1865.

Thomas F. Tipton, Judge, presiding. This was another of the series of cases between the saíne parties, and is of the same general character as that reported .ante, p. 128.

<p>Appeal from the Circuit Court of Jefferson county; the Hon. James M. Pollock, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Fayette county; the Hon. A. J. Gallagher, Judge, presiding.</p>

James M. Pollock, Judge, presiding. This was a suit in chancery, brought by Sofley, to set aside two deeds to a certain tract of land, one made by the complainant July 13,1863, to Cordelia Teters, and the other made in September, 1868, by said Cordelia Teters, then Cordelia Ostrander, and her husband, John E. Ostrander, to Harrison Pittman. The court decreed according to the prayer of the bill. Pittman appeals.

<p>Appeal from the Circuit Court of Lawrence county; the Hon. Richard S. Canby, Judge, presiding.</p>

Writ oe Error to the Circuit Court of St. Clair county j the Hon. Joseph Gillespie, Judge, presiding.

<p>Appeal from the'Circuit Court of Perry county; the Hon. Monroe C. Crawford, Judge, presiding.</p>

<p>Admissions in answer in chancery—how far conclusive. Where tlie material allegations in a hill in chancery are admitted in the answer of the defendant, and the court decrees accordingly, the decree will not he reversed.</p>

<p>Appeal from the Circuit Court of Monroe county; the Hon. Silas L. Bryan, Judge, presiding.</p>

Appeal, from the Circuit Court of St. Ciair county; the Hon. Joseph Gillespie, Judge, presiding. This was a proceeding in the court below by quo warranto.

Silas L. Bryan, Judge, presiding. This was an action on the case, brought in the court below by Shultz against the railroad company, to recover damages for personal injuries received by the plaintiff by reason, as alleged, of the negligence of the servants of the company.

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Saline county; the Hon. Andrew H. Dupe, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Bond county; the Hon. Joseph Gillespie, Judge, presiding.</p>

This was a proceeding in the name of The People, against Charles L. Wilson and Andrew Shuman, the publisher and editor of a newspaper published in the city of Chicago, called the “Chicago Evening Journal,” for an alleged contempt of this court, in the publishing in said newspaper, on the 16th day of October, 1872, during the sitting of said court, at the September term, 1872, thereof, of an article which appeared as an editorial in said newspaper, in reference to the case of…

<p>1. Husband and wife—earnings of the latter undw the act of 1869. Under the act of the 24tli of March, 1869, where a husband deserts his wife and children, all the earnings of the wife, together with those of the minor children, are free from liability for the debts of the husband. After the abandonment, the wife, in supporting and caring for the minor chil dren, must be held entitled to their earnings.</p> <p>2. At the common law, the earnings of the wife belonged absolutely to the husband, and the same rule, under the act Of 1869, applies where the labor is performed for the husband or is bestowed on his business or is used in producing the products of his business or calling.</p> <p>3. But where the labor is for another , person with the assent of the husband, then she becomes, under' the statute, absolutely entitled to receive and hold the earnings from such labor, whether in property or money.</p> <p>4. If, with the assent of the husband, the wife were to carry on any kind of business, she would be entitled to the profits, if it was Iona fide hers, and there was no intent to shield the husband’s property from his creditors.</p> <p>o. So, the • husband may, if the transaction is not tainted with fraud, permit his wife to raise and sell grain, stock and other farm products, so as to entitle her to receive the profits free from liability for the debts of the husband.</p> <p>6. A married woman brought an action of replevin to recover about five hundred bushels of corn and a mule, claimed by the plaintiff as her sole property, and which had been seized under, an execution issued on a judgment against her husband. The debt for which the judgment was recovered was created in January, 1870. The plaintiff and her husband were married in England a number of years before, and had lived together until within .three years before the commencement of the suit, in May, 1872. Until that time the husband had been the head of the family, composed of the wife and several children. He at that time deserted his family, saying to them he would support himself, and they must do the same. The corn was planted' and cultivated by the plaintiff and the children after the desertion, she having rented the ground, and paid the rent, on which it was grown. The husband at no time made any claim to the property replevied, and he contributed no more- than a few days labor in the cultivation of the corn, for which he was hired and paid by his wife the same as any other hired hand; nor did he incur any expense or liability for the cultivation of the corn or the rent of the ground on which it was grown: Held, that, under the act of 1869, the wife was entitled to the corn, free from the fiebts of her husband.</p> <p>, 7. The mule sought to be recovered was from a mare that had been received in exchange for a horse prior to 1869. The horse was purchased by the husband with means earned by the wife while they lived together, and before the enactment of the 21th of March, 1869, and the horse thus purchased was traded for the mare before that time: Held, that as the. earnings of the wife prior to 1869 belonged to the husband, the horse purchased with such earnings was his property, and also the mare for which the horse was traded, and, under the rule that in the absence of some agreement or contract to the contrary the increase of all domestic animals belongs to the owner of the dam, the mule was the property of the husband.</p>

<p>Sunday—of judicial proceeding on such day—whether valid. A writ of injunction may lawfully issue on a Sunday, when, to prevent irreparable injury to property, an imperious necessity demands the prompt interposition of chancery.* </p>

<p>1. Municipal corporations—of their power to issue bonds. Under the general power incident to municipal corporations, where there is no express authority, to issue their bonds for existing indebtedness or for the purpose of borrowing money for municipal purposes, is not included the ■ power to issue these bonds as a simple donation.</p> <p>2. Same—bonds of, issued without authority, whether void in the hands of innocent purchasers without notice. The bonds of a municipal corporation, issued without legal authority, are void even in the hands of an innocent purchaser without actual notice of the want of power in the corporation to issue them. The authority of a municipal corporation to issue bonds being derived from public laws, and the avenues to information in regard to the laws and ordinances of such corporations being open to public inspection, the holder of such securities will be presumed to have' examined them and to have known whether the corporation had the requisite power to issue the bonds.</p> <p>3. Judgment on overruling demurrer—whether should be final. Where . there are several pleas, and a demurrer is overruled to one of them, which answers the whole declaration and is in bar of the action, if the plaintifl’ elects to stand by his demurrer, the defendant is entitled to final judgment.</p>

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

The question involved in this case arises upon the following petition, to which a demurrer was filed by the defendant: To the Honorable the Justices of the Supreme Court, at the term begun and held at Ottawa on the second Tuesday of September, A. B. 1872: Respectfully represents unto your Honors, Norman L. Freeman, of the county of Sangamon, and State of Illinois, that on the first day of March, A. D. 1869, he was appointed by your honorable court Reporter of the Decisions…

<p>New trial—verdict against the evidence. In this case the finding of the court below is regarded as against the weight of the evidence, and the judgment is, for that reason, reversed.</p>

William A. Porter, Judge, presiding. This was an action on a policy of insurance.

W. W. Heaton, Judge, presiding. This was an action of trespass on the case, brought by Wesley Fulton against the Western Union Eailroad Company, to recover damages for injuries inflicted on the plaintiff’s person and property by the locomotive and train of the defendant in the alleged careless and negligent management thereof by the agents and servants of the defendant at a public road crossing.

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

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

<p>Eminent domain—of the'assessment of damages where private property is taken for public me since the adoption of the constitution of 1870. The statute in force at the adoption of the constitution of 1870 providing for the taking of private property for the purposes of a public road, so far as it authorized the commissioners of highways, or three supervisors of the county, on appeal from the decision of the commissioners, to assess {he damages that a party would sustain bjr reason of the construction of a public road across his premises, was repealed and rendered inoperative by the thirteenth section of Article 2 of that instrument, which provides that “ private property shall not be taken or damaged for public use without just compensation,” and “such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” And the assessment of such damages by the commissioners or supervisors in a proceeding commenced after the adoption of the new constitution, would be void, notwithstanding there was then no mode “prescribed by law” for the ascertainment of the compensation by a jury, as required by the constitution.</p>

<p>1. Measure op damages in actions for slander—and lurrein, of exemplary doomages. In an action for verbal slander it is erroneous for tbe court to instruct tbe jury “that malicious slander is an infamous offense, for which the law allows exemplary damages to be given.” Such a mode of aggravating vindictive damages, by investing the act with which the defendant is charged and for which the suit is brought, with a degree of turpitude and enormity which the law neither attaches nor recognizes as belonging to it, is not to be countenanced.</p> <p>2. Same—former decision. There was no point’ involved in the case of McClurkin v. Ewing, 42 Ill. 283, calling for an elementary definition of verbal slander, and that given by the court is not supported by the • authorities, and the language used- in the opinion which characterized the offense as infamous, must be regarded as used through inadvertence, and as constituting a mere obiter dictum.</p> <p>3. In assessing the damages in such an action, any circumstances of aggravation or in mitigation of the offense should be taken into consideration.</p> <p>4. Nor should the damages be assessed merely according to the defendant’s ability to pay; for whether the payment of the amount due to the plaintiff as compensation for the injury will or will not be convenient to the defendant, does not at all affect the question as to the extent of the ■injury done, which is the only question to be determined. The jury are to inquire not what the defendant can pay, but what the plaintiff ought to receive.</p> <p>5. Instructions should not; assume facts to be proven, which are in dispute.</p>

<p>Constitutional law—construction of section 29 of Article 6 of the constitution of 1870. Section 29 of Article 6 of tbe constitution of 1870 provides that “ All laws relating to courts shall be general and of uniform operation; and tbe organization, jurisdiction, powers, proceedings and practice of all tbe courts of the same class or grade, so far as regulated bylaw, and the force and effect of tbe process, judgments and decrees of such courts, severally, shall be uniform:” Held, that tbe object of this provision was to abrogate all special laws in relation to practice, then in force, so that all courts of the same class or grade should be governed by an uniform law; and its effect was'immediate upon the adoption of the constitution, and did not depend upon future legislation.</p>

<p>Raii/road companies as common carriers—when their liability as carriers ceases. Carriers by railroad are neither bound to deliver the goods carried, to the consignee personally, nor to give notice of their arrival, to discharge their liability as carriers; but if the consignee is not present to receive the goods on their arrival, the carrier can store them safely in a suitable warehouse, to await the demand of the consignee; and when the goods are thus stored, the duty of the railroad, as a common carrier, terminates, and that of warehouseman begins.</p>

<p>1. Forcible detainer—whether the action will lie. Under the act of 1845, and the act of 1865 amendatory thereof, where the lessee of premises has sub-let a portion of the same, and afterwards forfeits his own lease by non-payment of rent and is evicted, an action of forcible detainer will lie by the landlord against the sub-tenant-to recover possession of the portion of the premises held by him.</p> <p>2. Nor would it change the legal relations of the parties in any way so as to affect such a suit, that the landlord had consented to the sub-letting.</p>

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

Writ of Error to the Superior Court of Cook county. This was an action of assumpsit, brought by Mspel, for the use of Valentine Knobeloch, against the railroad company.

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

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

Writ of Error to the Circuit Court of Peoria county; the Hon. S. D. Puterbaugh, Judge, presiding.

<p>New trial—verdict against the evidence. In this case the judgment is reversed because the verdict of the jury is contrary to the evidence.</p>

<p>Writ oe Error to tlie Criminal Court of Cook county; tlie Hon. Henry Booth, Judge, presiding.</p>

Arthur A. Smith, Judge, presiding. This was a bill for divorce, filed by appellee against appéllant, charging adultery with several women. The evidence was voluminous and mostly circumstantial.

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

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

<p>Specific pebfobmance of a verbal contract—degree of proof required,. It is the established doctrine of this court that before a court of equity will enforce the specific performance of a contract not in writing, it must clearly appear that a contract of sale was made, and its terms must be clearly proved.</p>

Writ of error to the Circuit Court of Whiteside county; the Hon. William W. Heaton, Judge, presiding. This was an action of ejectment, brought by Kilgour against Wood, to recover the possession of certain premises. Upon a hearing in the court below, the court found the issues for the defendant, and rendered judgment accordingly. The plaintiff brings the record to this court.

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

Appear from the Circuit Court of Livingston county; the Hon. L. E. Payson, Judge, presiding. This was an action of assumpsit, brought by Sardis S. Lawrence, for the use of Mary A. Bedell, against William Oleary,. Darius Johnson, Adolph Brucker and Henry Greénebaum, on a promissory note executed by the defendants. Cleary was not served with process.

<p>Appeal from the Circuit Court of Jo Daviess county. •</p>

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

<p>Parol evidence—to vary the terms of an indorsement. Where a promissory note is indorsed in blank, parol evidence is inadmissible, as between the indorser and indorsee, to prove the contract, which was in fact made at the time of the indorsement, and which such blank indorsement was intended to consummate. There is in such case, in legal contemplation, written over the name of the indorser the extent and character of his undertaking, which can not be varied by parol.</p>

<p>County court of La Salle cotisty—jurisdiction thereof: By tbe act of 1872, extending the jurisdiction of county courts, it is provided that, “in addition to the jurisdiction now conferred by law on the county courts of this State, they shall hereafter have” certain other jurisdiction: Held, that this act must be Construed in the light of the 29th section of article 6 of the constitution of 1870, which provides “that all laws relating to courts shall be general and of uniform operation, and the organization, jurisdiction, powers, proceedings and practice of the same class or grade * * * * * shall he uniform,” and in so construing it, by the words in the act, “in addition to the jurisdiction now conferred by law,” must be meant such jurisdiction as had theretofore been conferred on county courts by general and not special laws. And when the act of 1872 went into force, the county court of LaSalle county had no longer the right to exercise the extended jurisdiction conferred upon it by the special act of 1865.</p>

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

Theodore D. Murphy, Judge, presiding. This was a proceeding to enforce a mechanic’s lien on certain premises belonging to the defendant, commenced by Lewis J. Gates and John C. South wick against Eliakim Roberts.

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

Writ of Error to the Court of Common Pleas of the city of Aurora; the Hon. E. G. Montony, Judge, presiding. This was an action of assumpsit, brought by Horn against John Jassoy and others. The defendants pleaded the statute of limitations, alleging that the promises stated in the declaration were not in writing, and did not accrue within five years previous to the commencement of the suit.

<p>1. Chancery—relief confined to causes stated in bill. Where the only ground set forth in a bill for the rescission of a contract for the sale of land, filed by the vendor, was the non-payment of the first installment, •and notice of forfeiture given in consequence thereof, and the proof showed atender of such installment before suit: Held] that relief could not be granted for the non-payment of the latter installments, and that defendants were only required to meet the case made by the bill.</p> <p>2. ITokeeiture—for non-payment of installment of purchase money. Where the vendor of land, under a contract containing clauses of forfeiture in case of non-payment, filed a bill to rescind the contract of sale on the ground that he had given the vendees notice of a forfeiture for nonpayment of the first installment, and the proof showed that the parties met on the day for payment, and the matter was postponed by mutual consent in order that certain incumbrances found upon the title might be explained or removed, and that the vendor failed to meet the vendees at the appointed time, or notice the subsequent offers of the vendees to proceed, but gave notice of a forfeiture, and that vendees made a tender of the amount before suit: Held, that the bill was properly dismissed without prejudice to the rights of the parties in any future suit for specific performance.</p>

<p>"Writ op Eeeoe to the County Court of LaSalle county; the Hon. C. H. Gilman, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Winnebago county ; the Hon. Benjamin B. Sheldon, Judge, presiding.</p>

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

<p>1. Tbovek—title necessary to maintain. It is a general rule that, without an absolute or special property in the thing alleged to have been wrongfully converted, trover can not he maintained, and a right of immediate possession before or at the time of the conversón is essential.</p> <p>2. Same—special property. It is the recognized law', that a person having a special property in goods may maintain trover against a stranger who takes them out of his actual possession, as, a sheriff, a carrier, a factor, a warehouseman, consignee, a pawnee or trustee, or an agister of cattle, a gratuitous bailee, or any person who is responsible over to his principal-</p> <p>3. The nature of this special property is not very accurately defined, and seems to depend upon the circumstances of the case- In a strict sense, it consists in the lawful custody of the goods with a right of detention against the general owner; but a lower degree of interest will be sufficient against a stranger, for the reason that a mere wrongdoer is not permitted to question the title of a person in the actual possession of the goods, whose possession he has wrongfully invaded.</p> <p>4. Same—special property as against owner. But where the action was brought against the general owner or payee of a bank check by a mere depositary having no interest in the same, under the following circumstances: The drawers of the check having bought real estate and received a deed therefor, gave their check to the grantors for the price due them, but, desiring an abstract of title brought down to that date, left the check with the plain" tiff to hold for the drawees until such abstract was furnished, and the plaintiff delivered the same to the drawees to have the same presented for payment, with their agreement to return it in case of protest, but the same having been paid, they refused to return the same, and defendants per-’ formed the condition before suit: Held, that it was incumbent on the plaintiff in trover against the drawees for the conversion of the check to show a qualified right or interest in the check, a jus in re, or some fixed right attached to it, either legal or equitable, in order to recover.</p>

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

<p>Specific pebfobmaece—of a contract on the part of a railroad company to locate depots at pa/rticular points—whether will he enforced. Equity will not enforce tbe specific performance of a contract on the part of a railway company to locate passenger’ and freight depots at a particular point and at no other point in a town, the enforcement of such contract being regarded as against public policy.</p>

Lambert Tree, Judge, presiding. This was an action of trespass on the ease, brought by William F. Tucker and John B. Sherman against Joseph M. Watte. The defendant filed a plea of not guilty, upon which issue was joined; and upon a trial before the court, a jury being waived, judgment was rendered in favor of the defendant for costs. The plaintiffs appeal.

<p>Damages—measure of, for failure by the vendor to deliver articles purchased, of him. In a suit, to recover damages for the non-delivery of a planing machine, it appeared the plaintiff, resident in Iowa, came to the defendant’s warehouse in Chicago and bought the machine, which he selected with reference to its weight and finish. He paid $100 in hand, and was to pay $430 more on the delivery of the machine at his residence in Iowa. The contract was, that he was to have the identical machine he had selected, which he described in his evidence as the best he had ever seen. The defendant’s agent, in charge of the warehouse, told him it had been made for exhibition at the fair, and had taken the premium. This was about February 14,1871. The machine was to be shipped when ordered, but defendant’s agent desired to keep it in store as long as possible. The plaintiff returned borne to put up his shafting and pulleys, with the understanding that he was to send for the machine as soon as he should be ready to put it up. He ordered it by letter on the 13th or 14th of March, ánd, after a delay of fifteen or sixteen days, received a letter from Cincinnati, saying that a machine had been shipped for him to Chicago. He declined to receive any machine except the one he had bought, and, on tire 12th of April, came to Chicago and found that one in defendant’s warehouse. He demanded it, but the agent of defendant refused to let him have it, and on the 12th of April he bought another machine. On the trial the plaintiff offered to prove that he had erected a building and put in a steam engine and shafting at an expense of $5000, with a view to the use of this machine; that the defendant had notice of this when the contract was made; that it all lay idle for thirty-five days, in consequence of defendant’s breach of his contract: Reid, that such evidence was admissible; that, in arriving at the damages which the plaintiff was entitled to recover, he should be allowed to show what‘would have been a fair rent for the use of the building and machinery, if in running order, during the time they lay idle in consequence of the defendant’s refusal to deliver the machine, though he should not be allowed for any longer time than was reasonably necessary for supplying himself with another machine of similar character, after being advised of the defendant’s refusal to send the macMne purchased. Neither should he be allowed anything for probable profits^</p>

<p>1. Suit by a town, for its benefit—jurisdiction of justice residing in the town. Where a suit is brought by a town before a justice of the peace within the town, contrary to the provisions of section 6 of Article 12 of the township organization law, prohibiting the town, where the suit is brought for its benefit, from suing before a justice residing within the same, the purchaser of property of the defendant, sold by virtue of an execution issued on a judgment rendered in such suit, acquires no title by his purchase, the whole proceeding before the justice being void for want of jurisdiction of the subject matter.</p> <p>2. Replevin—whether the action will lie.' Where property is seized and sold, for a fine, the party against whom the fine was recovered, and whose property was Sold in satisfaction thereof, may contest the purchaser’s title to the property, in an action of replevin.</p>

<p>1. Taxes—-for what purposes may be levied by municipal corporations. Section 5 of Article 9 of tbe constitution of 1848 provides that tbe corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same: Held, that, within the meaning of this provision of the constitution, a tax for corporate purposes must be for such purposes and such only as are germane to the objects of the creation of the municipality, at least such as have a legitimate connection with those objects and a manifest relation thereto.</p> <p>3. To provide a location or site for a State institution is not such a corporate purpose as would authorize the authorities of such municipalities to impose upon property owners an onerous tax to pay the expense.</p> <p>3. The action of the board of supervisors of Livingston county in authorizing the issue of the bonds of the county for the purpose of securing the location of the State Reform School in the township of Pontiac, in that county, in accordance with the act of 1869, providing for aid from municipal corporations in the erection of that institution, was illegal and void, the legislature having no power, under the constitution, to authorize such corporations to levy a tax for such purposes.</p> <p>4. And, no matter in whose hands such bonds may be, where a tax has been levied and collected for their payment or for the payment of the accruing interest thereon, the county treasurer may be restrained from applying the money so collected to such purpose. Such money is the property of the tax-payers, and justice requires it should be refunded to them.</p>

<p>Recoupment—what may be tTw subject of. In an action of trespass or trover, for taking and carrying away property, tbe wrongdoer can not recoup an indebtedness that may be due from the owner to himself, not connected with the illegal transaction, against the damages sought to be recovered. To be the subject of recoupment, the defendant’s claim must arise out of the cause of action involved in the plaintiff’s suit.</p>

<p>1. Highways—equity jurisdiction. The Illinois Central Railroad Company, being empowered in its charter to change highways intersected by its road so as to afford a more convenient crossing, or to cany such highway either under or over its track, as might be found most expedient, it was held that the option to change highway crossings was vested in the company, to be exercised by it, and that the exercise of such option could not be controlled by a court of equity when there was no pretense that the company, in the execution of the power, had failed to exercise the proper care, skill and precaution.</p> <p>2. ' Where a highway had been changed under competent legal authority, there being no charge of the want of proper care, skill and precaution in the exercise of the power, a court of equity has no jurisdiction to order the same to be restored to its former location, on the ground that it is a private nuisance to certain parties residing near the line of road so changed. And it would seem that if it were a public nuisance, the court would have no such jurisdiction, as the remedy at law for changing highways is adequate and complete.</p>

<p>1. Justices oe the peace—of the jurisdiction conferred by special laws —effect of the new constitution upon the same. After the adoption of the constitution of 1870, a justice of the peace of Will county could no longer exercise the extended jurisdiction conferred hy the special act of March 7th, 1867, hut could only exercise jurisdiction to the same extent as conferred upon justices of the peace by the general law of the State in that regard.</p> <p>2. Same-—of their want of jurisdiction—when may be taken advantage of. And where a justice exercises such unauthorized jurisdiction, upon an appeal from his judgment to the circuit court, advantage may be taken of his want of jurisdiction after the trial in the circuit court, and upon a motion for a new trial—the objection being one that is not waived by not sooner taking advantage of it.</p>

<p>1. Constitutional law—impairing the obligation of contracts. The charter of the city of Chicago made a deed for land sold for the non-payment of .taxes and special assessments prima facie evidence of the regularity of all the proceedings anterior to the judgment and .precept, leaving the adverse party to rebut such presumption The records being destroyed by fire, the act of 1873 to remedy the evils growing out of such destruction of the records, among other things, provided that deeds or certificates of purchase, in such cases, should not afford prima facie evidence of the regularity and legality of the prior proceedings: Held, that the latter act • was only a rule of. evidence, and was not unconstitutional as-impairing the obligation of contracts or divesting rights, as the courts would, in the absence of such legislation, have probably adopted the same rule.</p> <p>3. Estoppel—to deny legality of sale. Where the city of Chicago, under the powers conferred by its charter,-sold a tract of land for the non-payment of a special assessment, received the purchase money, and, through its proper officer, made a deed for the land sold, to the purchaser, and the city afterwards purchased the same land of the original owner, and the purchaser sued the city, in ejectment, to recover the land: Held, that as the city did not profess to sell the land as its own for a valuable consideration, and made no covenants upon which the purchaser could rely, the city was not estopped from denying the regularity and legality of the proceedings.</p>

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

<p>1. Mechanic’s lien—where time of payment is not in one yea/rfrom completion. To entitle a party to a lien under tbe statute, the time of completing the contract must not be extended for a longer period than three years from the time of entering into the same, nor the time of payment beyond the period of one year from the time stipulated for the completion thereof.</p> <p>2. Same—contract construed as to time of payment. Where a contract for the erection of a building provided that the owner should pay $560 for the same, as follows: $100 in advance, and $10 per month until the whole of the balance was paid, with 10 per cent interest on all unpaid, the interest and $10 payments to commence when the job was completed, and insure the house for the benefit of the builder, and assign his title to the lot to the builder, after the expiration of one year, for the security of the balance unpaid: Held, as against a subsequent purchaser, on bill to enforce a lien, that the last payment was not to become due within one year from the completion of the contract, and consequently no lien attached ; and that upon the failure of the owner to assign his title to the lot at the expiration of the year, the whole of the debt did not become immediately due, such assignment not being a condition to the extension of the time of payment.</p> <p>3. Contract for the benefit of a third pm'ty—party plaintiff. Where a party, holding a title bond to a lot upon which a small sum remained unpaid, being indebted to B, transferred the same in payment to B, who agreed with the party to complete the payment thereon, and to pay to A the amount due him from such party for erecting a building on the premises, A not being a party to such contract: Reid, that the promise haying been made for the benefit of A, he could maintain an action at law thereon, in his own name.</p>

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

Joseph E. Gary, Judge, presiding. This was a suit, by appellant, for the specific performance of a- written contract, entered into by the trustees of the Chicago Sinai Congregation September 15,1871, for the sale, by said corporation to appellant, of certain parcels of land in Chicago, upon which there was at the time a church edifice, containing seats and a church organ, specifically embraced in the contract, for an entire consideration of $62,500, to be paid by appellant…

<p>1. Navigable stbeams—rights of riparian, proprietor. The title of a person owning land bounded by a stream of water, extends to the middle or center thread of the stream, and he may maintain replevin for rock or gravel taken therefrom by a trespasser or wrongdoer; and the navigability in fact of the stream above tide water does not affect the title of the riparian owner.</p> <p>2. Where the stream is navigable in fact above tide water, the public have an easement or right of passage upon it as a highway, but not the right to remove the rock, gravel or soil, except so far as is necessary to the enjoyment of the easement.</p> <p>3. Same—grants hordering on. Grants of land bounded on rivers, or upon their margins, above tide water, carry the exclusive right and title of the grantee to the center of the stream, unless the terms of the grant clearly denote the intention to stop at the edge of the river.</p>

<p>New trial—verdict against the evidence. In this case, the only question is as to the sufficiency of the evidence to support the finding of the court below; and no such error is perceived in the finding as to call upon this court to disturb it.</p>

<p>1. Administration—administrator's duty as to realty. An administrator is not, in all respects, a stranger to the real estate left by his intestate. He is required to inventory it, and is made chargeable with so much of the estate of the intestate, real, personal or mixed, as he shall receive; and when the personal estate is insufficient to pay the debts, he is required to procure an order of court, and convert the realty into assets.</p> <p>2. Same—Ms duty to redeem, lands sold. The statute has authorized an administrator to make redemption of the lands of his intestate from sale on execution or foreclosure of mortgage. Whether or not it is his duty to exercise this power, must depend upon the circumstances of each case, he being held only to the exercise of a reasonable discretion.</p> <p>3. In a case where the amount required to redeem was only a little more than one-fourth of the value of the land sold, and he had in his hands personal assets on which he might have raised the amount necessary to redeem, and where the creditors of the estate were willing to furnish the money for such purpose: Held, that it was a breach of his duty to neglect to make the redemption, for which he was liable.</p> <p>4. Chancery—jurisdiction—mat-administration of an estate. Where the object of a bill in chancery was to charge an administrator of an estate for not properly discharging the duties of his trust, it was held that a court of equity not only had jurisdiction to investigate the question presented, but that adequate relief could only be had in such court. The heirs and creditors were not bound to bring suit upon the administrator’s bond, in such a case.</p> <p>5. Same—sufficiency of bill to sustain decree. In such a case, the heirs and creditors may join in filing the bill; and if it states all the facts necessary to sustain the decree, it will be sufficient, although the bill does not give the true reasons for the relief granted.</p> <p>6. Administratqr—purchasing property of estate. It being the duty of an administrator to redeem lands of his intestate when they have been sold at a sacrifice by a sheriff or master, and he can raise the means necessary from assets coming to his hands or offered by creditors, the same principle which forbids him from purchasing lands at a sale under order of court, must also forbid him from purchasing, on his own account, a certificate of purchase given by the sheriff or master on a sale made in the lifetime of the intestate.</p> <p>7. In this case, the land of the intestate, of the value of $4000, had been sold in his lifetime, on foreclosure of mortgage, for $1118.79, the time of redemption expiring December 6,1863, except as to creditors. In May, 1863, letters of administration were granted on the estate, and the administrator realized from sale of personalty, on July 16, 1863, $1392.09, in notes, which were subsequently paid. Of this, $584 was allowed to the widow, and claims were allowed against the estate to the amount of $897.79. Some of the creditors offered to redeem the land and pay all the debts, and give the widow and heirs $1500, and take an assignment of the certificate of purchase. The widow consulted with the administrator, who told her that he could do better than this for her. After she had left the State, the administrator procured an assignment of the certificate to a brother, residing in another State, who again assigned the same to a party who procured a deed, and the land was afterwards sold to an innocent purchaser: Held, on bill filed by the heirs and creditors, that, whether the administrator purchased for his own or for his brother’s benefit, made but little difference, as in either case he acted in defiance of his duty; and that, in such a case, he was properly chargeable with the value of the land, less what it cost him; and that he was chargeable with interest on the portion going to the creditors from the time the law required him to make his first settlement, and on the sum due- the heirs from the expiration of two years from the date of his letters, that being the first time the heirs had a right to call for a distribution.</p>

<p>1. Mechanic’s lien—strict construction. The act of 1869 relating to the lien of mechanics .and sub-contractors, being in derogation of the common law, and creating benefits and privileges not conferred on other creditors, must be strictly construed; and persons seeking the benefit of such statute‘must bring themselves clearly within its provisions.</p> <p>2. Same—time within which suit must he brought. "When a sub-contract- or, employed by the original contractor to do certain work upon a building, was discharged before he had completed his contract, oh the 15th of December, and he filed his petition on the first of April following, against the owner of the building and the contractor,for a lien: Held, that the petition was filed too late, the statute making the lien in such case continue only for three months after the doing of the work or furnishing of materials, except when suit is brought within such time.</p>

<p>1. Malicious prosecution. Where a party procured the arrest of- the plaintiff on a peace warrant, and from his evidence on the examination it did not appear that he had any just fear of personal or other injury, but the whole of the facts showed that the arrest was not in good faith, but for the sinister purpose of getting the plaintiff’s wife away from him; and that another party was acting with him in trying to get the wife away, so that the two were conspiring to have the arrest for an unlawful purpose: Held, that a verdict in favor of the plaintiff against the defendants for §250 must be sustained.</p> <p>2. Same—advice of counsel no excuse, when. Where the parties in such a case consulted an attorney-at-law prior to swearing out the warrant, who drew the complaint and prosecuted, but the evidence failed to show that the attorney was informed of the facts: Held, in view of the bad motive shown, that the advice of the attorney afforded no defense.</p>

<p>• 1. Negligence—-failtt/re to ring bell or sound whistle. While it is true that it is negligence on the part of the servants of a railroad company to omit to ring the bell or sound the whistle when approaching a public crossing, yet the company is not necessarily liable for every accident that may occur when they omit this duty. It is only when the injury happens by reason of such neglect that the company is liable. The plaintiff in such case must not only show the omission of this duty, but also from facts and circumstances, at least, that the injury was occasioned by such neglect.</p> <p>2. In a suit against a railroad company to recover damages for the killing of a person by one of its trains, at a public crossing, where the evidence was conflicting on all material points, the court instructed the jury, in substance, that if they believed from the evidence that, at the time of the disaster, no bell was rung or whistle sounded, they were at liberty to infer negligence on the part of the defendant, and should find for the plaintiff, unless they believed from the evidence the deceased was guilty of such negligence as contributed directly to produce or cause the injury: Held, that the instruction did not state the law of the case correctly, as it did not necessarily follow that this omission of duty caused the injury.</p> <p>3. Same—negligence of deceased. Where a party knows he is approaching a railroad crossing, whether in a city or elsewhere, it is his duty, if possible, to observe the usual and proper precautions, by looking in either direction, and watching foj- the usual signals of danger, before attempting to cross; and where it appears from direct testimony, or from facts and circumstances, that the party was injured from a want of these precautions, he can not recover, however serious the injury he may receive.</p> <p>4. ' Same—instruction as to what is negligence. The court, in the same case, instructed the jury that it was gross negligence for the engineer not to observe a person or stock on or near the track, at a road-crossing, for eighty or a hundred yards before reaching such point, when he could, by proper diligence, have readily done so. The fact was, that the deceased was traveling along side of the track, in the same direction with the approaching train, and the evidence failed to show that if the train was running at a moderate rate of speed, it could have been stopped in time, after the deceased got upon the track, so as to prevent a collision: Held, that, while the instruction stated the abstract proposition of law correctly, it was not justified in this case, and was calculated to mislead, as the jury could interpret it as assuming that the engineer had omitted some duty in this respect, which did not appear from the evidence.</p> <p>5. Same—comparative negligence of the parties. In the same case, the court instructed the jury, in substance, that although they might believe from the evidence that the deceased might have failed to use ordinary care and prudence in going upon the track, yet if they believed from the evidence that the defendant was guilty of a greater degree of negligence which caused the injury, the plaintiff might recover: Held, not to announce the doctrine of comparative negligence with sufficient accuracy. It might well be inferred from such instruction that although the deceased was himself guilty of gross negligence, in neglecting to observe the ordinary and reasonable precautions expected from a prudent man, yet if the defendant was guilty' of a higher degree of gross negligence, the plaintiff might recover, which is not the law.</p> <p>6. The rule in respect to comparative negligence is, that if both parties are equally in fault, or nearly so, the plaintiff can not recover. In order to establish the liability of the defendant, there must be negligence on his part, and no want of ordinary care on the part of the plaintiff"; and where there has been negligence in both parties, still the plaintiff may recover where his negligence is slight, and that of the defondant is gross, in comparison. This rule has been extended to include cases where the negligence of the plaintiff" has contributed, in some degree, to the injury, on the ground that the fact of the plaintiff’s negligence does not authorize the defendant wantonly or recklessly to destroy his property or injure his person.</p> <p>7. Instbuctions—when great accuracy is required. In that class of cases sounding in damages, where the evidence is conflicting, and presents a difficult issue, especially where the facts are calculated to touch upon the feelings and sympathies, the jury ought to be most accurately instructed. The instructions in such cases should be clear and concise, and calculated to assist the jury in coming to just conclusions.</p> <p>8. New teiau—conflict of evidence. It is a familiar rule that, when the evidence is conflicting, and the case has been fairly presented to the jury, on proper instructions, the verdict will not be disturbed, unless it is manifestly against the weight of the evidence, or where it appears clearly to have been the result of passion or prejudice.</p>

<p>1. Marbiaee—declaration in suit against clerk for issuing license. In a suit by a father against a county clerk to recover the statutory penalty for issuing a license for the marriage of plaintiff’s minor daughter, the material facts to be alleged in the declaration are, that the plaintiff was the father of such minor, that the defendant was clerk of the county court of the county, and as such issued the license without plaintiff’s consent, and that the daughter was then in fact a minor.</p> <p>2. Mabbiaqe license—justification of clerk in issuing. As the statute has conferred power upon the clerk to ascertain the age of the parties sought to be married, by examining the parties or other witness under oath, which power is quasi judicial, it follows that when the exercise of this power is properly invoked by an application for a license, and the same honestly exercised by the examination of either of the parties or other witness on oath, and the evidence produced tends to prove that the person whose age is the subject of inquiry has attained his or her majority, and the clerk so decides, he will not be liable to the statutory penalty, although he may have decided erroneously.</p> <p>3. Same—jurisdiction must he shown—plea. The jurisdiction of the clerk to determine the majority of the parties to be married is known as voluntary in contradistinction to contentious jurisdiction. It is the application for a license, either by or on behalf of the parties to be married, which calls the power into exercise, no action or legal process being necessary. Therefore, a plea of justification showing an examination, is bad in substance unless it shows that jurisdiction was conferred by an application.</p> <p>4. Same—age of parties, how to be ascertained. The statute authorizing the clerk to ascertain the age of those seeking a marriage license, contemplates a p&rsonal examination on oath of the parties proposed to he married, or other witnesses. -A plea attempting to justify hy showing that the clerk acted upon the affidavit of one of the parties in determining the age of the other, is had in substance.</p> <p>5. Pleading—plea must answer all it professes. In a suit hy a father against a county clerk for issuing a license for the marriage of plaintiff’s daughter, one count of the declaration charged that defendant, at the time he issued the license, had notice that the daughter was a minor. The defendant filed a plea to the whole declaration, in which he attempted to justify hy showing an examination of a witness: Held, that the plea was had, for if defendant knew the faGt of minority he could not have acted honestly in issuing the license on the oath of a witness.</p>

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

<p>1. Pleading—carrying demurrer to plea to defective counts in the declaration. Where the general issue lias not been pleaded, a demurrer to a special plea can usually be carried back to the declaration, and the judgment of the court had upon the declaration; and if that is bad, judgment will be rendered against it, on the principle that judgment will be rendered against the party committing the first error in pleading.</p> <p>2. But where a demurrer to the declaration has been overruled, and the general issue pleaded, a demurrer to a special plea can not be carried back to the declaration, for the reason that a party can not plead and demur to the same pleading at the same time.</p> <p>3. Same—substantial defects in declaration—how taken advantage of. Substantial defects in a declaration can always be taken advantage of by motion in arrest of judgment, or on error.</p> <p>. 4. Statutes—repeal by implication. If two statutes are clearly repugnant to each other, the one last enacted operates as a repeal of the former; and a subsequent statute revising the whole subject of a former one, and intended as a substitute for it, operates as a repeal of the former one, although it contains no express words to that effect.</p> <p>5. Same—act of 1849 relating to corporations, wholly repealed, by act of 1857. The act of 1857, by implication, has repealed the act of 1849 entitled “An act to authorize the formation of companies for manufacturing, agricultural, mining or mechanical purposes,” the later act relating to the same subject, and being intended, with another act, as a substitute for the former one.</p> <p>0. Coíupobatión—liability of stockholders to creditors is primary, not secondary. Under the act of 1857 relating to the formation, etc., of private corporations, the liability of stockholders to creditors of the company is not dependent upon a suit against the company and inability to collect it, but such stockholders are primarily liable.</p> <p>7. Same—declaration—sufficiency of averment as to the time when defendant became stockholder. “Where the defendant, as a stockholder of a private manufacturing corporation, was sought to be made liable, to the extent of his unpaid stock, for debts of the company contracted in the summer of 1867, the declaration averred that he became a stockholder at some time anterior to the first of December, 1868: Held, that, under this averment, proof was admissible to show that the defendant was a stockholder at the time the debt sued for was contracted; and that the declaration, in this respect, was good after verdict.</p> <p>8. Same—remedy against stockholders, whether in equity or at law. As the statute relating to the formation, etc., of private corporations, creates a’legal liability upon stockholders, to a certain extent, for the debts incurred by their company, such liability is cognizable in a court of law, an implied promise being inferred from a legal liability.</p> <p>9. Evidence—copies in books. of corporation admissible against stockholders. In a suit against a stockholder of a manufacturing company organized under the act of 1857, to charge him for the payment of a debt incurred by the company, the court admitted in evidence a copy of “the license recorded in the books of the company, to prove the incorporation of the company, which was objected to as secondary evidence: Held, that the books containing the record of the license, being a record of the company, was binding upon the stockholders, and was properly admitted in evidence.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by the Third National Bank of Chicago.against David Kelley.. The damages laid in the declaration were $4000. The verdict and judgment -were for the sum of $4300. Among other things, it was assigned as error that the verdict exceeded the damages laid in the declaration.

<p>Writ of Error to the Circuit Court of Eichland county.</p> <p>The 38th section of the act to provide for a general system of railroad incorporations, approved November 6, 1849, was as follows:</p> <p>“A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of $50 for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer, and the other half thereof to-the State,- and also be liable for all damages which shall be sustained by any person by reason of such neglect.” Sess. Laws 1849, p. 31.</p> <p>At the June term, 1868, of the Eichland circuit court, this-action was brought for penalties alleged to have been incurred under the above act,'the declaration containing eleven hundred and fifteen counts, and claiming the penalty of $50 in each count.</p> <p>While this suit ivas pending, an act was passed and went into force February 27, 1.869, entitled “An act to amend the railroad law,” the first section of which is as follows:</p> <p>“That section 38 of an act entitled 1 An act to provide for a general system of railroad corporations/ approved November 5th, 1849, and any similar provision in any special railroad charter heretofore passed, be and the same is hereby amended so as to read as follows, viz: ‘A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman at the distance of at least eighty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling until such street or highway is reached, under a penalty of not exceeding $100 for each neglect, one-half of which penalty to go to the prosecuting witness, and the other half to go to the State; and the corporation owning the railroad shall be liable to any party injured for all damages sustained by reason of such neglect: Provided, that such penalty shall be sued for within three months from the time the cause of action accrues, and not thereafter.’</p> <p>“Sec. 2. This act shall not apply to suits now pending under the section hereby amended, except that the penalty recoverable in such.suits shall be not exceeding $100, instead of $50, as therein provided.”</p> <p>By plea puis darrein continuance, the last mentioned, statute was set up as a defense to the action. The plaintiff demurred to the plea. The court overruled the demurrer and gave judgment for the defendant.</p>

<p>‘Writ op Error to the Circuit Court of Randolph,county; the Hon. Silas L. Bryan, Judge, presiding.</p>