Volume 65 — Illinois Reports

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

'Writ of Error to the Criminal Court of Cook county; the Hon. William A. Porter, Judge, presiding. This was an indictment against Gregori Peri for murder, in the killing of Daniel O’Brien.

<p>Appeal from the Circuit Court of McHenry county; the Hon. Theodore D. Murphy, Judge, presiding.</p>

Charles H. Wood, Judge, presiding. This was an action of trespass, brought by the appellant, against Louis P. Brosseau, Joseph Zace and John B. Martin, for forcibly breaking and entering the mill claimed by the plaintiff. The plaintiff held the legal title to the premises, as security for moneys advanced by him for the real owners, Martin and others.

<p>Appeal from the circuit court of LaSalle county • the Hon. Edwin S. Leland, Judge, presiding.</p>

<p>Weit of Eeeoe to the Criminal Court of Cook county; the Hon. William W. Fabwell, Judge, presiding.</p> <p>Mr. John YanAbman, and Mr. Emeby A. Stobes, for the plaintiff in error.</p>

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

<p>1. Agency—right to presume authority. Where -the plaintiff, in an action against a bank to recover deposits, expecting to be absent for a short time, gave his clerk and book-keeper a power of attorney to draAV checks on the defendant against deposits for fifteen days only, and deposited the power of attorney with defendant, and after his return, resumed his business of drawing his own checks; and it appeared that after the expiration of the power of attorney, the clerk continued to draw checks without the knowledge of the plaintiff, a id art of which he applied to the business of the plaintiff", and appropriated the balance to his own use: Held, that the defendant was liable to the plaintiff for the moneys paid out on the checks drawn by the clerk after his agency ceased, and which he appropriated to his own use.</p> <p>2. And when the plaintiff’s bank-book was written up, showing the payment of such checks, and the checks delivered to the clerk with the hank-hook, hut the plaintiff had not examined the same, and had no knowledge of the facts, it was held, that the hank had no right to presume that the clerk had a general authority to draw checks thereafter, from such fact.</p>

<p>Warehouseman’s lien—how lost. After the great fire in Chicago, on the 8th and 9th clays of October, 1871, which destroyed and damaged much of the grain stored in that chy, and left the balance exposed to both fire and weather, the board of trade, acting in behalf of unknown owners and parties interested, and with the assent of the several warehousemen, took possession of the grain unconsumed, preserved and sold_the same for the benefit of the owners. Previous to the sale, the warehousemen agreed, in writing, with the board of trade, that the latter might sell, the former to receive two cents per bushel as accrued storage thereon. After the sale they claimed a lien on the fund for. charges for storage over and above the sum stipulated: Held, that, under the circumstances, they had lost their lien for storage, except for two cents a bushel; and that the expense incurred in preserving the grain was a proper charge to be deducted from the fund.</p>

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

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

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

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

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

<p>1. Sheep Turning contagious disease—right of action. Under the act of Feb. 16, 1865, relating to diseased sheep, it is clear that the owner of sheep having a contagious disease, has no right to let them run even upon 'his own land where they can communicate disease to sheep lawfully pastured in an adjoining field. $</p> <p>2. Same—cormmmication of the disease indirectly. Where the defendant kept his sheep which were infected with the scab, in his own pasture, adjoining that of the plaintiff, the two pastures being separated by a division fence, and defendant’s sheep, through want of repair in his portion of the fence, escaped into the plaintiff’s pasture, where the plaintiff had a lot of sheep, part belonging to himself and part to his father, so that it was doubtful whether plaintiff’s or his father’s sheep were first infected: Held, that an instruction, if it was as likely the plaintiff’s sheep caught the disease elsewhere as from defendant’s sheep, the jury should find for defendant, was erroneoug, being highly calculated to mislead; and that if any of the flock were infected, and the disease thereby communicated to plaintiff’s sheep, the defendant was liable.</p> <p>3. Same—core required of plaintiff. Where a plaintiff’s sheep are infected from the sheep of the defendant, the former will not be held responsible for more than ordinary care and skill in their treatment; but even if they could have been cured by proper care and treatment, this will not exonerate the defendant from liability for the trouble and expense incurred by the plaintiff.</p> <p>4. Same—instruction as to negligence of plaintiff. Where the plaintiff had his sheep in his own pasture, and they were infected with disease from defendant’s sheep, kept by him in an adjoining pasture, from which they escaped through defects in defendant’s part of the division fence, and communicated with plaintiff’s sheep, the court instructed the j ury, for the defendant, that if the plaintiff’s negligence caused the damage, or contributed to it equally with that of the defendant, they must find for the defendant: Held, that this could not refer to defective care after infection, as that could not wholly exonerate defendant; and in reference to want of care before infection, it was erroneous for the reason there was no proof upon which to base it.</p>

<p>Parent and child—^presumption as to pa/yfor services after majority. Where a child remains with his father after his majority, the presumption will be, in the absence of a contract to pay for services, or circumstances from which one may be implied, that no compensation was to be given for such services.</p> <p>2. But where a son, some time after his majority, left his parents, and commenced business on his own account, and was afterwards induced by his father to return, all his other sons having left him, and he continued to labor for his father for many years, managing his affairs and supporting his parents, for which he received nothing but his board, scanty clothing and a little spending money: Reid, that it was but reasonable to presume that the father intended to pay, and the son to receive pay, for his labor, either in money or by devise in his father’s will.</p> <p>3. And in such a case, where the proof showed that the father intended to compensate such son, by devising his farm to him, but was killed before he had made his will: Reid, that a verdict in favor of the son for services, against the father’s estate, for the time the son labored within five years prior to the father’s death, would not be disturbed.</p> <p>4. Statute oe limitations—-for services. Where a son, who, after his majority, had left his father, was by the latter induced to return and remain in his service for 23 years, under the expectation of being compensated by devise in his father’s will, but the father, being accidentally killed, failed to make any will, and the son filed his claim for services, against the father’s estate: Reid, that, the statute of limitations being pleaded, the son could only recover for his services for the five years next before presenting his claim, deducting the time that elapsed between the death of the father and the day fixed by the administrators for the adjustment of claims.</p>

<p>1. Insubajstce—right to cancel policy. Where a policy of insurance against fire provided that the insurers might cancel the same on notice to the assured and a return of the unearned premium, it seems the mere fact that the property insured was in greater danger of fire when the offer was made to refund the premium than when the policy was issued, would not prevent the company from rescinding.</p> <p>2. But an insurer against fire can not, when the fire is approaching the property insured, under such a clause, cancel the policy; and when the danger is threatening and imminent from an approaching fire, the right to terminate the policy upon notice will not depend upon the intentions or good faith with which the agent of the insurer acts. And the fact that the property was destroyed by fire coming from a different quarter than that which caused apprehension at the time of giving notice of a cancellation of the policy, will make no difference, if the danger from that quarter was imminent at the time.</p> <p>3. Same—instruction. In such a case as this, an instruction that, if the agent of the company, upon examining the wood described in the policy, and the manner in which it was being cared for, honestly came to the conclusion that it was not being protected against the fires then burning in the surrounding clearings and forests, with that degree of care which a man of ordinary prudence and caution would exhibit in the protection of his own property under similar circumstances, and that in consequence of such fact, there was danger that the wood would be destroyed by said fires, then the agent was justified, for such reason, in terminating the policy by giving notice, etc., was held to have been properly refused as misleading, by taking from the jury all consideration of the facts existing at the time the fire was raging, and placing the right to cancel the policy upon the honest belief of the agent that the wood was not properly cared for.</p> <p>4. Removal op cause to U. Si coubt—bill of exceptions necessary. Where the petition and affidavit for the transfer of a pending suit from the State to the United States court, are not made a part of the record by a bill of exceptions, this court can not regard them.</p> <p>5. Sale—when title passes to vendee. Where a party, under his contract with a railroad company for the sale of wood, hauled and piled the same along the track of the road, but no one had received the same, and the company, when it needed wood, measured and took such quantity as it saw fit from such pile, or that of others, and the agent only reported such as was thus measured and taken, and gave vouchers therefor: Held, that the title to such wood not measured and accepted did not vest in the company, hut remained in the party furnishing the same; and when a pile was broken and a quantity taken from it and measured to the company, that specific quantity belonged to the company, and nothing more.</p>

<p>1. Dower—advising and consenting to sale does not estop widow from claiming. Where parties purchased the estate of minor heirs at a guardian’s sale made under an order of court, upon the assurance that they were getting a perfect title, such sale being made by the advice and consent of the widow, who was entitled to dower in the same, and paid the full value of the land without any incumbrance: Held, that the widow was not estopped from asserting her claim for dower, by her consenting to and advising such sale, there being no pretense of selling her interest; and that she was not bound to seek her dower interest out of the purchase money.</p> <p>3. Dower—assessment of damages on Mil for. Where the premises of which the widow seeks to be endowed are not susceptible of division, the same jury which assesses the yearly value of the dower, must also assess the damages which the dowress is entitled to from the date of her demand down to the time of the verdict. Where the jury assessed the yearly value only,, and the court decreed damages at the same yearly rate from the time of the demand, it was held to be erroneous.</p>

<p>1. Ackhowledsmeht op deed—as to married women. The certificate of the acknowledgment of a deed by husband and wife, the real estate being that of the wife, was, in substance, the following: That A (the wife) and 33 (the husband) were personally known to the officer as the real persons whose names were subscribed to the instrument; that the said A appeared before him and acknowledged the execution thereof as her free act and deed, for the uses and purposes therein mentioned; and that the said B, husband of the said A, being examined separate and apart, and out of the hearing of his said wife, and the contents being made known and fully explained to him, acknowledged said instrument to be his free act and deed, and that he executed the same, and relinquished his dower, etc., voluntarily and freely, without the compulsion of his wife, and did not wish to retract: Held, that the acknowledgment was wanting in all the substantial requirements of the statute respecting the deeds of married women, and for such defects the deed was absolutely void as to the wife.</p> <p>2. Mistake—power of a court of equity to reform. A court of equity will not correct mistakes in or reform the deeds of married women; but it may as to the husband who joins in the execution, and then it will affect his interest in the lands only.</p> <p>3. School fuim—power to foreclose mortgage before the debt is due, for. breach of conditions. The school law, which provides that where the board of trustees shall require additional security for money loaned, and the same is not given, the treasurer shall bring suit to recover the principal and all interest due on the obligation, enters into and forms a part of every contract for a loan of school funds made under such law; and where such additional security is demanded, and not given, the whole debt matures, and if the debt is secured by mortgage, the same may be foreclosed in equity, the plaintiff not being confined to the remedy by an action at law.</p>

<p>1. Husband and wipe—husband’s liability for his wife's torts. Since the passage of the acts of 1861 and 1869, relating to the rights of married women, the husband is not liable for the torts of his wife committed during coverture, when he is not present, and in which he in no manner participated.</p> <p>3. Same—rights of husband as to her property. The effect of the present legislation is to change the common law rule, so that in this State the husband can not enjoy the rents and profits of his wife’s real estate without her permission; and he has no control over her separate personal property, except by her consent, and he can no longer interfere with her choses in action.</p> <p>3. Same—as to wife's earnings. Th'e product of her earnings is the exclusive property .of the wife. She alone can sue for and recover, and the husband can not release them. The right to her earnings also includes the right to appropriate her own time and labor in acquiring them.</p> <p>4. Same—duties and obligations. As the result of the marriage vow, and a part of the contract, the wife is still bound to love and cherish the husband, and to obey him in all reasonable demands, not inconsistent with the exercise of her legal rights; to treat him with respect, and regard him at least as her equal; and he is still bound to protect and maintain her, unless she should neglect wholly her marital duties, as imposed by the common law, or assume a position to prevent their performance, and thus deprive him of her society. These duties and obligations at common law were • not the result of the arrangement of their property, but of the contract of marriage and the relation thereby created.</p> <p>5. Same—husband's liability for necessaries. If the husband, without justifiable cause, turns away his wife, he is bound for contracts for necessaries suitable to her degree and estate. If they live together, and he will not supply her or the necessary means, she can pledge his credit for necessaries strictly; but if he provides for her, he is not bound by her contracts, unless made by his authority, or with his concurrence.</p> <p>6. Same—rights and powers of wife. As to the separate property of the wife, she is now the same as a feme sole. She need not join her husband with her in a suit to recover it, or for the trespass to it. She may even prosecute a suit against him for any unlawful interference with her property. n</p> <p>7. Same —personal vrvjwry to wife. So the wife may sue alone for personal injuries, and her husband can not, without her consent, release her claims for damages, as such right of action is her property.</p> <p>8. Same—wife may lease her real estate. The wife may now execute a valid lease of her separate real estate without joining her husband and without his consent, and she may be sued at law upon her contracts as to her separate properly.</p>

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

<p>1. Homestead—abandonment. A party executed a mortgage on certain premises on which he- resided, but the deed did not release the homestead, under the statute. Subsequently, he leased the premises to the mortgagee, and surrendered possession, under an agreement that the lease should be renewed from year to year until the mortgage debt was fully paid. After an absence of about five years, he returned, and again went into possession: Held, that by the act of the mortgagor in thus surrendering the possession to the mortgagee, he abandoned his homestead right, the case being regarded as like in principle to that of Brown v. Goon, 36 111. 243, in both cases the possession being delivered to be held in conformity with the deed.</p> <p>2. Redemption—of the right of a widow to redeem from a sale under a decree of foreclosure of a mortgage executed before mamriage. A party, previous to his marriage, executed a mortgage on certain premises. After his marriage, the mortgage was foreclosed, without his wife being made a party to the suit, the mortgagee becoming the purchaser at the master’s sale, and receiving a deed. Subsequently, the mortgagor died: Held, the widow, notwithstanding she was not made a party to the suit to foreclose, the mortgage having been executed before the 'marriage, had no right of redemption.</p>

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

<p>Appeal from the Circuit Court of Will county; 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. Negligence—in action against a city for, evidence of plaintiffs family and condition, irrelevant. In an action against a city, to recover damages for a personal injury received in consequence of negligence and mere omission of duty, the plaintiff was allowed to testify against objection that he had a wife, seven young daughters and two sons in Ireland at the time of the accident, and that he was their supporter as a lecturer: Reid, that the court erred in admitting the testimony, as exemplary damages were not recoverable in such a case and it was not relevant to any issue.</p> <p>3. Same—special damage, must he claimed in the declaration. In an action on the case against a city to recover damages for personal injury received through the mere negligence of the city, the only special damages alleged in the declaration was the amount paid out in endeavoring to get cured. The court permitted the plaintiff to' give in evidence the fact of a particular engagement to lecture in Virginia and the probable gains "thereof: Held, that such testimony was inadmissible under the pleadings. To justify its admission these special damages and the facts upon which they were based should have been set out in the declaration.</p> <p>3. SAME'—liability of city for an injury sustained, from a public nuisance in respect to property occupied by it. Where the plaintiff received a personal injury by the falling of a portion of the brick and plastering in a room occupied by a city as a common council room, it was held that if the dangerous condition of the premises at the time of the accident was the result of causes beyond the control of the city authorities, and the injury happened before the lapse of a reasonable time to restore them to a safe condition, then the city would not be liable.</p> <p>4. But although the original cause might have been inevitable accident, yet if the city authorities continued to use the building for public meetings of the council and failed to repair the premises in a reasonable time, and the injury happened in consequence of such neglect, while the plaintiff was in the exercise of due care, the city would be liable to him.</p> <p>5. Same—presumption as to duty of a municipal corporation to heep its public buildings in a safe condition. Where the plaintiff sought to recover of a city for injuries received in consequence of a neglect to keep its common council room in a proper and safe condition, the court was asked to instruct the jury that to entitle the plaintiff to a verdict it must appear from the evidence that it was the duty of the city to keep the room where the plaintiff was injured in repair, which was refused: Held, that while the instruction embodied a correct proposition of law it was not error to refuse it, as the uncontradicted testimony was that the city at the time of the injury, and for many years before, had been in the exclusive possession of the premises for the purposes of the public sessions of its common council, and no testimony was offered tending to show the duty of any other party to keep them in repair; and therefore the duty of keeping them from becoming dangerous arose prima facie from the fact of possession.</p> <p>6. Same—whether the ownerr or pa,rty in possession of real estate is liable for suffering a nuisance, etc. The liability to an action in respect of real propeiW, may be for misfeasance or malfeasance, as for obstructing ancient lights, or for nonfeasance, as for not taking care of premises, so as to prevent the consequences of a public nuisance. In these cases the action should, in general, be against the party who did the act complained of, or against the occupier, and not- against the owner, if the premises were in the possession of his tenant, unless the owner had covenanted to repair.</p>

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

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

Theodore D. Murphy, Judge, presiding. This was a suit, by the appellee against the appellants, upon a promissory note given for a contract for the sale of land and the crops thereon.

Arthur A. Smith, Judge, presiding. This action was brought by Hayward against Templeton, on the following promissory note: Monmouth, 111., Nov. 27th, 1869. Nine months after date for value received I promise to pay to the Queen of the Harvest Manufacturing Company, or bearer, six hundred dollars, at the 1st National Bank of Monmouth, 111. $600.00. John A. Templeton.

<p>1. Abatement—defendant sued put of Ms county. In an action against a defendant, brought in the Superior Court of Cook county, the defendant pleaded, in abatement of the writ, in substance, that he was, before and at the time of the commencement of the suit, and at all times thereafter, a resident of McLean county, and was not a resident of Cook county, and that he. was not found, nor served with process, in Cook county, nor elsewhere than in the county of McLean, and that the said plaintiffs were not, at the commencement of said action, residents of said county of Cook, nor were they then residents of such county: Held, on demurrer to the plea, that it was not a plea to the jurisdiction of the court, but in abatement of the writ only, founded on the fact that the plaintiffs were not residents of the county from which it issued, and as such was good under the act of 1861.</p> <p>2. Process—when it may issue to another county for service on sole defendant. Under the statute of 1861, relating to practice, where there are several plaintiffs they must all reside in the county in which they sue, in order to justify the sending of process to another county for service on a sole defendant who does not reside in the county where sued. Where they do not all reside in one county, the sole defendant must be sued in the county of his residence.</p> <p>8. Abatement—judgment on demwrrer to good, plea in abatement. The proper judgment upon overruling a demurrer to a plea in abatement to the writ is, that the writ be quashed, and consequently a dismissal of the suit.</p>

<p>Assessments and taxation in school districts—of the sitvs of personal property—construction of the act of 1869. The first and second sections of the act of the 39th of March, 1869, entitled “An act relating to assessments and taxation in school districts,” can not he construed so as, by implication, to repeal the provision in the fourth section of the act of the 13th of February, 1858, which requires that the personal property of “ banks or bankers, brokers, stock-jobbers, insurance or other companies, merchants and manufacturers, shall be listed in the county, town or district where the business is usually done.”</p>

<p>1. Special assessment—to malee up amount not collected on original assessment. Where a judgment was sought upon a new special assessment to make up the amounts which the city had failed to collect of the original assessment for improving a street, but the papers and proceedings on the original were not introduced in evidence: Held, that this court could not determine the validity of the new proceeding, so far as it depended upon the character of such original proceedings, because of the absence from the record of all evidence pertaining to them.</p> <p>2. Same—some objections heard as on certiorari. On an application for judgment against city lots for delinquent special assessments, where the objectors introduced in evidence under appropriate objections a certified copy of the record of the proceedings, it was held that they had the same right to challenge their validity as they would upon a certiorari and thus defeat the application.</p> <p>3. Publication—sufficiency of certificate of. Where the publisher of a newspaper gave the following certificate of the publication of certain notices required in a proceeding to make and confirm certain special assessments by a city: “This certifies that the appended corporation notice has been published in the Chicago Republican, the corporation newspaper of the city of Chicago, county of Cook, and state of Illinois, six days consecutively, excepting Sundays and holidays, commencing on the 24th day of September, A. D. 1869: ” Held, that the certificate was fatally defective in not stating the last day of the publication, and that owing to the exception thrown in, the certificate could not be aided by any inferences.</p>

John G. Rogers, Judge, presiding. This was an action on the case, by the appellee against the appellant, to recover for a personal injury received by the breaking of a mast owned by the appellant.

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

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

<p>1. Limitations—what is color of title under act of 1839. Where a mortgage given by two owners hacl been foreclosed in a proceeding in which a party holding an undivided half of the equity of redemption was not made a party, and the purchaser at the master’s sale, after receiving the master’s deed, made a deed to it which purported to convey the premises in fee: Held, that the latter deed was color of title under the limitation law of 1839.</p> <p>3. It has been held, since the first cases decided under the act, that the claimant is not required to trace title through a chain to any source to constitute color of title. The case of Irving v. Brownell, 11 Ill. 413, announcing a different rule, was overruled by the case of Woodward v. Blanchard, 16 Ill. 434, and the rule here stated has since been followed.</p> <p>3. So it has been held that where there was an ineffectual effort to obtain a strict foreclosure of a mortgage, but where the holder of the equity of redemption was not made a party, the mortgage and decree became color of title.</p> <p>4. And it has been held that an assignment of shares of land among tenants in common in a proceeding for partition, where one of the co-tenants was not made a party to the decree, constituted color of title to each of the tenants for the share set off to him under the decree, and that such omission of parties will not overcome the presumption of good faith.</p> <p>5. Same—good faith in party holding color of title. The courts will not hold that the party claiming the benefit of the limitation under color of title, is chargeable with bad faith, because the registry of deeds or the judgment dockets may show a paramount outstanding title, or that the title of the claimant is defective, as that would be to render the statute practically inoperative.</p> <p>6. The manifest object of the statute was to protect those who purchase land and pay their money therefor, under the belief that they are acquiring title. The fact that they paid for the land, have paid all taxes assessed against it for seven years, that they have taken possession, improved the same and controlled it as other owners generally act, affords evidence of their good faith.</p> <p>I. Same—neglect to recoi'd, deed does not raise a presumption of had faith. The failure of a party to record his deed, which is color of title, for a period of five years after its execution, will' not be held to raise a presumption of bad faith to defeat the operation of the statute, as the statute itself has imposed no such condition.</p> <p>8. Same—payment of taxes. Where the color of title was in the wife, payment of taxes in the name of her husband may be shown by parol evidence to have been made for her, and under her color.</p> <p>9. Same—former decision explained. The case of Fell v. Gessford, 21 111. 522, announces in general terms that the holder of color of title must pay the taxes to come within the provision of the statute, but it does not say that the party m'ay not act, in this respect, by an agent, the same as in other matters. Where the taxes are paid by an agent in his own name, it is competent to prove under this statute that the money was in fact paid for the owner, and under his color of title.</p> <p>10. Same—evidence to defeat limitation. Where the holder of an undivided half of a tract of land conveyed to his brother, who, with the owner of the other interest, mortgaged the same, and the wife of the first party afterwards acquired claim and color of title to the same land, by a deed from the purchaser, under a defective proceeding to foreclose the mortgage, and the wife, and those claiming under her, paid all taxes assessed thereon for seven successive years, while the land was vacant and unoccupied, the payment for the wife being made by her husband in his name, it was insisted that the court below should have admitted proof to show that the conveyance of the husband to his brother was set aside by a decree in chancery as being made to defraud creditors, and that therefore the husband was re-invested with title by the decree, and became a tenant in common with the holder of the other undivided half, and consequently payment of taxes by him could not be applied exclusively on account of his wife’s color: Held, that the evidence was immaterial, as the decree did not operate to reinvest the husband with the title.</p> <p>11. Same—prior agreement as affecting question of good faith. Where two persons owning a tract of land mortgaged the same to A, the mortgagee agreeing by a stipulation in the mortgage to pay the taxes, and one of the mortgagors conveyed his equity of redemption to B, whose interest the complainant subsequently acquired, and it appears that A afterwards foreclosed his mortgage, but did not make the complainant a party; that the premises were sold under decree of foreclosure to 0, who received a master’s deed; that 0 then conveyed the premises to A, the mortgagee, who made a deed purporting to convey the title to D, whó, together with those succeeding to his title, paid all the taxes assessed on the land for seven successive years, while the same was vacant and unoccupied; and that after the completion of such payment for the said term, the grantee of D took actual possession; and that B then, after the lapse of twelve years from the attempted foreclosure, filed his bill to redeem from the mortgage as to the undivided half of the premises, and contended that as the mortgagor had a right to rely upon the agreement of -the mortgagee to pay the taxes, those acquiring claim and color of title under the attempted foreclosure must take notice of the agreement to pay taxes, and could not set up their payment by them to defeat the right to redeem: Reid, that the agreement imposed no duty on the purchasers to pay the taxes, and that the right to redeem was barred under the statute of 1839.</p> <p>12. Deed—delinwy. Where the grantor left his deed with the father of the grantee, and wrote to the latter that the deed was in his father’s hands for him: Reid, that this was a sufficient delivery to give the deed effect.</p> <p>13. Cancellation op deed—as a cloud upon title. • Where on bill to redeem from a mortgage upon which a sale under foreclosure had been had, but which was defective for want of a necessary party to the proceeding, the defendant who claimed title under the sale, set up the statute of limitations in defense, and also filed a cross bill to have the deed conveying the equity of redemption under which the complainant based his right to file the original bill, set aside and canceled as a cloud upon his title, the proof showed that the complainant’s right to redeem was barred under the act of 1889 by the payment of taxes for seven successive years on the land while the same was vacant and unoccupied, but failed to establish the particular ground upon which the complainant’s title was sought to be set aside as a cloud: Reid, that as all the parties in interest were before the court, and were seeking to have their titles tried and settled, it was proper for the court below to declare the complainant’s title a cloud upon that of the defendant, as he was barred from asserting it, and enjoin its assertion, but not proper to require the complainant to convey his title to the holder of the adverse title.</p> <p>14. Fraudulent conveyance—effect of decree setting it aside. Where a decree was entered setting aside a conveyance of land as having been made to defraud creditors of the grantor, it was held that it would be construed as only declaring the deed void, and setting it aside as to the creditors of the grantor, and that it still remained in force as between the parties; and that if the creditors were satisfied without a sale of the land, the decree was virtually wiped out, and thenceforward had no effect whatever upon the title claimed under such fraudulent deed.</p>

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

<p>1. Specific performance—performance, or offer to perform, in reasonable time—laches. It is a well settled doctrine that when a party seeks the specific performance of a contract, where time is not made of the essence of the contract, he must perform, or tender performance, within a reasonable time, on the familiar principle that equity will only favor the diligent, and when the party himself has been guilty of laches, he can have no assistance in a court of equity.</p> <p>2. Same—rule in respect to time of performance, when the transaction is in the nature of a mortgage or security for the payment of money. Where the complainant had purchased land under the belief that he was acquiring the title, had taken possession and made valuable improvements, and A, on learning that the title was in the United States, sought to pre-empt the land as against the right of complainant, and threatened to appeal to the department at Washington, in the event the land officers decided adversely to his claim, and thus compelled the complainant to buy his peace, by agreeing to advance the money necessary to acquire the government title, and have the same taken to one H, to be held by the latter until complainant should pay A $1000, when H was to convey to complainant: Held, that the transaction partook more of the nature of a mortgage than of a bargain and sale; that, under the circumstances, the complainant was not bound to make haste to perform his contract, and that the other parties ought to be well satisfied if he was required to perform at all, before they be required to surrender the title thus held by them to premises which cost them nothing.</p> <p>3. Tender—when not necesswry before suit. Where a party in possession of land, and having a clear right to pre-empt the same, for the purpose of buying off one whQ was contesting the right with him, agreed to pay the latter $1600, and, to secure its payment, had the land entered in the name • of a third party as trustee, advancing the money necessary to make the entry, the latter to convey to him when the $1600 was paid: Held, on bill to compel the trustee to convey the legal title, that a tender before suit was not necessary, and that it was sufficient if the money was brought into court.</p> <p>4. Parties in chancery. Where the legal title to land was vested in a trustee merely to secure the payment of a certain sum of money to a third person, who took no interest in the land itself: Held, on bill bj^ the equitable owner to redeem and compel a conveyance of the legal title to him, that the person whose debt was thus secured was not a necessary party.</p> <p>5. Bill to redeem and for conveyance—recovery in ejectment no hm Where the real owner of land procured the legal title to he made to a trustee in trust to secure the payment of money, filed his hill in equity to redeem and to compel the conveyance of the legal title to him hy the trustee, it was held, that a prior recovery against him, in ejectment, hy the trustee, did not cut off his equities or har the relief sought, as his equities were not available as a defense to the action of ejectment.</p>

<p>1. Estoppel m pais. On an application to condemn the lands of a party for the uses of a railroad, the land owner claimed compensation and damages on account of land taken and damaged; to defeat this claim the railroad company offered in evidence an agreement purporting to be executed by fifty-seven persons, including the present claimant, securing to the company the right of way through the township in which the land was situate free of charge and expense. This agreement was not made directly to the company, but for its use and benefit, and contained a clause that it should not be delivered to the company until one hundred subscribers were secured thereto. This, it was insisted, estopped the land owner from claiming compensation and damages: Held, that in the absence of proof that the company accepted the terms proffered in the agreement, or was in any manner influenced to alter its condition or govern its action thereby, such agreement could not operate as an estoppel in pais.</p> <p>2. Same—proof of condition upon which, assv/rance was given. And where such agreement contained a clause that the same should not be put into the possession of the company until one hundred subscribers were procured thereto, the company offered in evidence another agreement, said to be a copy of the first, and there were over one hundred names subscribed to the two, but there was no evidence of the genuineness of any one signature: Held, that the securing one hundred subscribers was a condition precedent to the company having any beneficial interest under the contract, and that it was not sufficient that so many names appeared, but it was necessary to have shown that the signatures were genuine, in order to admit the argreement in evidence.</p> <p>3. Contract—avoided became induced by fraudulent misrepresentations. Where a railroad was located over a person’s farm and through his orchard and a part of his dwelling house, and the owner was an unlettered man, being unable to read or write, and a person acting in behalf of the company came to him while at work in the field, and induced him to sign a paper for a subscription including an agreement to secure to the company the right of way for its road through such township free of charge, but did not read or state that part of the agreement relating to the right of way to the owner, but assured him he could obtain compensation, and such person signed the owner’s name by his direction: Held, that the agreement as to the right of way was void ab initio as to the land owner on account of such misrepresentation, and that as he was unable to read, no negligence was attributable to him.</p> <p>4. Agency—when principal bound by agent's fraud—adoption of his acts. Where a party not shown to have been authorized to act for a railroad company procured the execution of a contract by one who could not read the same, by fraud and misrepresentation, and the company afterwards sought to enforce the contract: Held, that the company could not seek to reap the fruits of such contract without adopting the means by which it was obtained.</p> <p>5. Statute of frauds—as applicable to act of party through another. Where a person signs the name of another to a contract at the request of and in the presence of the latter, the doctrine of agency in its legal sense does not apply, and the authority of the person thus employed to write the name, need not be in writing, as the statute of frauds requiring the agent’s authority to be in writing has no application to such a case.</p> <p>6. Same—what within the statute. It seems that an agreement to give the right of way over land, or an agreement which will estop the owner from claiming compensation and damages for land taken for a right of way, is within the statute of frauds; and if such agreement is executed by an agent of the land owner not in his immediate presence, then the authority of the agent must be in writing.</p> <p>7. Agenct—one signing for another in his presence and at his request is not an agent Where-a party acting on behalf of a railroad company procured the defendant, who could neither read nor write, to execute an agreement for subscription, and also relating to the right of way; and such party signed defendant’s name to such agreement in his presence and at his request: Held, that such signing did not make the party the agent of the defendant so as to prevent him from setting up the misrepresentations and fraud of the party procuring his signature, in avoidance of the contract.</p>

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding.</p>

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

S. D. Puteebaugh, Judge, presiding. This was a bill in chancery, by the appellee against McFadden and others, for the foreclosure of a mortgage given by McFadden in April, 1849. The appellant, who was made a defendant, filed a cross-bill to foreclose a second mortgage given by McFadden on the same property. The material facts are stated in the opinion.

<p>1. Chancery practice—decree after destruction of the evidence, before it is supplied. Where the chancellor, after a hearing of the evidence on file, announced his conclusions, but, before any decree was signed or filed, the records and all the pleadings and proofs were destroyed by fire, and the complainants had supplied the pleadings, the defendants asked to have the entering of final decree postponed until they could supply the evidence upon which it was based, which motion was denied, and the court rendered a final decree against the defendants, from his recollection of the destroyed evidence: Held, that the court erred, and that it should have allowed a reasonable time for the defendants to have supplied the evidence before passing the decree, as that was the only means by which the defendants could make their right of appeal availing.</p> <p>2. Same—preserving the evidence. The practice in the courts of chancery in this State, dispensing with the necessity of embodying the evidence in the decree, or its substance, as required under the English system, does not, however, dispense with the necessity of preserving the evidence in the record upon which the decree is based.</p> <p>3. On appeal from a decree, each party has the right to rely upon the evidence- heard in the court below, to test the correctness of the conclusions and findings of the court, and the appellate court will look into the record to see whether the evidence warranted the court below in finding the facts stated in the decree. The appellate court will be guided by the evidence, and not by the findings of the inferior court.</p> <p>4. Decree—when it is to be considered as entered. Under our practice in chancery, the decree is inchoate until it is approved by the chancellor and filed for record, or shall be recorded, which answers to the passing and entering it, in the English court. The mere oral announcement by the chancellor of his decision, and the grounds upon which it is based, or reducing them to writing, is no more than the minutes, in the English practice. Until the final decree has been filed or recorded, the chancellor may alter, amend, change, or even disregard, all he has said in his minutes.</p> <p>5. Rehearing in chancery. Before the final decree is filed for record, or is recorded, the chancellor, on his own motion, may order a rehearing in a chancery cause; but after the decree is spread upon the recoids, the whole matter is beyond his control, unless it be upon a bill of review, or a bill to impeach the decree, or some such subsequent proceeding. It is then, and only then, that it is the decree of the court and res adjudicaba.</p>

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

<p>1. Parent and cbxud—parent’s right to child’s earnings. The father is entitled to the wages and ordinary earnings of his minor son, unless such right has been voluntarily relinquished, or forfeited by some act on the part of the father. The rule grows out of the obligation of the father to maintain, support and educate his minor son.</p> <p>2. Same—pm'erct not entitled to gifts or extraordinary gains of his son. While the father may rightfully receive to his own use all the wages or money which his minor son may acquire for his labor or service, he is not entitled to any extraordinary gains the latter may acquire out of the usual course of his service.</p> <p>3. No rule of the common law is better settled than that a minor may take property, real or personal, by gift, donation, devise or legacy, and hold the same independently of his father. Whatever the infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father can not interpose any claim to it.</p> <p>4. Same—:father has no right to son’s bounty. Where a bounty was given to a minor to procure his enlistment in the military service of the United States, and paid to the father, held, that such bounty was not the ordinary gains of the son in any service, but a mere gift, and that the father was not entitled to retain the same as against his son.</p> <p>5. Mr. Chibe Justice Lawrence and Justices Walker and Sheldon dissent, holding that the so-called bounty was not a gift or gratuity, in the true meaning of those terms, but a compensation for services to be rendered, and therefore belonged to the father of the minor.</p>

<p>1. Purchaser—whether pw'chaser of an undivided interest in land may purchase under incumbrance given by his grantor. Where A purchased a tract of land, giving a deed of trust to secure the deferred payments, and tiren conveyed the undivided half of the land to B, and afterwards gave a mortgage on his undivided half to the infant heirs of C, and B, after this, purchased the entire premises at the trustee’s sale under the deed of trust, when the heirs of C filed their hill to foreclose their mortgage, alleging ’’that the purchase hy A in the first instance was for the joint benefit of himself and B, and therefore B was bound to pay one-half of the incumbrance under which he acquired the whole title: Held, that the conveyance hy A to B, in the absence of proof that it was made in pursuance of some original agreement, or under the relation of partners or principal and agent, would be presumed to have been a sale or a gift, and that it would be presumed to have been a sale rather than a gift; and that the fact of such conveyance, standing alone, could not be made the basis of a liability on the part of B to pay A’s individual notes for the purchase money.</p> <p>4. Tenants in common—right of one tenant in common to purchase Ms co-tenant's estate under a prior incumbrance given by the latter. Where A, the owner of land, after giving a deed of trust thereon, conveyed the undivided half thereof to B: Reid, that, as the interests of A and B, as tenants in common, did not accrue under the same instrument, act of the parties or by operation of law, in the absence of any engagement or understanding with one another, they did not stand in such confidential relations in re. gard to each other’s interests that B would not be permitted in equity to purchase the estate of A at a sale under a power in A’s trust deed.</p> <p>3. Same-—may deal with each other. It is the general doctrine that tenants in common are separately seized, and there is no privity of estate between them.. They may enfeoff or convey to each other the same as if they dealt with a stranger.</p> <p>4. Same—who mtvy take advantage of purchase made by one tenant in common of an outstanding incumbrance. Where one tenant in common acquires title under an outstanding incumbrance which each is equally bound to discharge, the purchase will not be void, but the other tenant, in equity, will have the right to elect within a reasonable time thereafter to avail himself of the purchase by offering to contribute his due proportion of the sum expended in the purchase; and this right of option is personal, and does not attach to the estate, so that a mortgagee of such tenant in common can not exercise the same.</p>

Writ of Error to the Circuit Court of La Salle county; the Hon. Edwin S. Leland, Judge, presiding. This was an action of assumpsit, brought by the appellee, against the appellant, in the circuit court of Kendall county, upon certain coupons attached to the bonds of the town payable to the “ Illinois Grand Trunk Railway Company,” and by it indorsed to the appellee.

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

<p>1. Evidence—statements accompanying act as res gestee. In a suit upon a note by the administratrix of an estate, the defendant, in order to prove payment, called a witness to show that he had paid the witness a certain sum for the deceased on account of his indebtedness to the latter: Held, that what the defendant said to the. witness at the time of such payment was competent testimony for himself as part of the res gestee.</p> <p>2. Witness—competency of pmdy to testify in his own behalf as against one suing as administratrix. A defendant, when sued by an administratrix upon a note given to an intestate, called a witness to prove the payment by him of a debt from the intestate to the witness, and called out what he said at the time of the payment, which went to show that the payment was not made on account of the note sued on, but on account of another debt due from the defendant, and the plaintiff cross-examined upon this point: Held, that the defendant was not a competent witness to deny the language attributed to him by the other witness, the case not falling within the exceptions named in the second section of the act of 1867.</p> <p>3. The exception to the rule excluding a party from testifying, in the second section of the act of 1867, which provides that, when any witness shall, in behalf of any party, testify to any conversation or admission of the adverse party, etc., the latter may testify as to the same matter, has no application when such party’s own witness called by him testifies to his statement or admission; nor is the rule affected by the fact that such witness is recalled by the other party, and interrogated more fully as to the same point.</p>

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

<p>1. Municipal subscription — law authorizing subscription to capital stock of a railroad company does not authorize a rote to subscribe to a dirisionof the road. Where the charier of a railroad company authorized certain municipalities to subscribe to the capital stock of the company, and a vote was taken to subscribe to a certain division of the road: Held, that the vote was unauthorized, and the company could not compel the municipality thus voting to make the subscription to its capital stock.</p> <p>3. And where such company was authorized to receive such subscriptions, on such terms and in such amounts as it might deem best in accordance with its by-laws, and the company, in its by-laws, divided the road into divisions, and a subscription was voted by a township to the first division of the road: Held, that the charter of the company must govern, and as that only authorized the tax-payers to vote a subscription to the whole capital stock of the company, the vote was void, and conferred no right on the company to compel the subscription.</p> <p>3. Same—conditions in the notice of the election must he complied with. The charter of a railroad company authorized certain counties, towns, etc., to subscribe to its capital stock, upon an election being had upon the question, and a majority of the voters voting at such election voting in favor of the proposition. Under this, an election was called in a township to vote upon a proposition to subscribe $50,000, but the proposition contained a condition that the bonds to be issued in payment of the subscription should be such as to entitle them to registration, under the act of 1869. Under the latter act a majority vote of the legal voters living in the township was necessary to entitle the bonds to registration. The election had resulted in a majority of the votes cast in favor of the proposition, but not in a majority of „the legal votes of the township: Held,, that the condition precedent in the notice of the election not having been complied with, the election was null and void.</p>

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

<p>1. Indictment—record must show that it was returned into eowrt, rnd a plea, to sustain a conviction. Where the record fails to shoAv that the indictment Avas ever returned into court by any grand jury, or that the defendant Avas ever arraigned upon, or pleaded to it, a conviction can not he sustained; without a plea there is nothing to try.</p>

<p>1. Rescission on contract—not for fraudulent representations unless relied on. Where the complainant sought to rescind a contract for the exchange of lands which had been executed on his part, on the ground that the defendant had falsely and fraudulently represented that he had a perfect title to the lands he exchanged, and it appeared that the complainant took a bond from the defendant, secured by mortgage on the land cpnveyed by the complainant, conditioned that the defendant should furnish a complete abstract within sixty days, showing a perfect title to the land he had given in exchange: Reid, where the bill was filed before the expiration of the sixty days, in the absence of proof that complainant relied on the representations, that the fair inference was that he relied upon the bond and mortgage, and not upon the representations, and that he was not entitled to the relief sought, as there was no default at the time in failing to perform the conditions of the bond.</p> <p>2. Same—burden of proof. Where a party seeks in equity to rescind his contract on the ground that it was induced by fraudulent representations, the burden of proof is upon him to establish the fraud by showing the representations and their falsity.</p> <p>3. Government grant—patent not necessary to. The United States, or a State, may transfer its lands by a special act of legislation without the issue of a patent. So, where, by special act of Congress, land was granted to the State of Iowa, and the Governor selected the same under the grant, it was held that a good title might be acquired without the issue of a patent, unless the act required one to be issued preliminary to the vesting of the title.</p>

<p>Chancery—appointment of special master. Where the circuit court, on the hearing of a petition for a mechanic’s lien, appointed a special master to execute the decree: Held, that it would be.presumed that such appointment was properly made, the record showing nothing to the contrary.</p>

Writ op error to the Circuit Court of Will county. This was an' application, by A. Julius Mathewson, one of the defendants in error, as guardian of the plaintiffs in error and others, for leave to sell certain real estate of his wards.

<p>1. Corporation—liability for service. performed before organization. Where the plaintiff was employed by one of the corporators named in the charter of a corporation, to act as a book keeper, and in that capacity rendered services before the organization of the company, and when the organization was formed neither the plaintiff nor any one else informed the stockholders of the services he had performed, or that he expected to claim payment therefor, and the evidence failed to show that the company appropriated his labor or its avails to their use, audited his account, or ever agreed to pay him: Held, that the facts showed no ground of recovery.</p>

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

<p>1. Pkomissoby bote—-construction of words relating to interest. Where a promissory note, after the promise to pay a given sum of money, contained these words: “at tenpecen, value received:” Held,, that the abbreviated words “pe cen” had a meaning which any one would understand, ' and that the words made the note one bearing interest at ten per cent per annum from its date.</p>

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

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

<p>1. County court—equitable jurisdiction of. The county courts in this State have equitable jurisdiction in the allowance of claims against estates, and in the adjustment of the accounts of guardians, and in such cases may adopt the forms of procedure in equity.</p> <p>2. Guardians—treated as trustees of wards. Guardians were treated at common law as trustees, and as such were held responsible for the faithful discharge of the duties imposed upon them. Our statute has made no change in this respect, but has given a summary power to the county court to oblige guardians to render an account upon oath touching their guardianship, instead of compelling a resort to a court of equity, as at common law.</p> <p>3. Same—account returned by, not conclusive. The account of moneys received on sale of real estate required to be made by the guardian to the county Court under oath, is not conclusive upon the wards when assailed by them. The county court has the right to allow or reject the report, may require proofs, examine witnesses, and resort to all means necessary to ascertain the truth. This is its duty, and its powers in this respect are coextensive with a court of chancery.</p> <p>4. Same—natwe of citation to account, and procedure. A citation to a guardian to account is not a suit at law, hut the exercise of a summary power, in the nature of a bill in equity, to compel a discovery against the guardian. Where the return of the guardian- is made to a citation to account, the guardian should be allowed the privilege of defense, if his account is assailed, and to submit all legitimate proof to establish the same.</p> <p>5. Guardian's report—parol evidence to explain mistake apparent on its face. Where there was a probable, if not an evident, mistake in a guardian’s report of the amount of the purchase money of lands sold by him under an order of court, it was held, that, where the guardian was sought to be charged with the amount thus reported, parol proof was admissible of the interest purchased and of the amount of purchase money received by him on the sale..</p> <p>6. But in such a case, parol evidence is inadmissible for the purpose of showing that the wards had no interest in the lands sold, as the guardian was estopped, by his act in selling the same as theirs, from disputing such fact, and also by the finding of the court, which must be regarded as res adjudícala.</p> <p>7. Guardian’s account—right to retain funds to pay debts of deceased ancestor. Where-letters of guardianship were granted in 1855, during the administration of the estate of the ward’s ancestor, and letters of'administration were granted to one of the guardians in 1856, of the same estate, and the guardians were cited to make settlement in 1868, it was held, that they had no right to retain funds derived from a sale of their ward’s land to pay claims against their father’s estate, as such claims were barred by the statute of limitations and by laches.</p> <p>8. Witness—competency of party undeo' act of 1867. A guardian, on settlement of his accounts, is a competent witness to testify to any facts occurring after the death of the father of the wards, and therefore competent to explain an error or mistake apparent on the face of his report of the sum realized from the sale of the wards’ interest in lands.</p> <p>9. Interest—in stating guardian's account. In stating a guardian’s account on final settlement, the court should, at the end of each year, add the interest to the principal, and thus compound the interest annually until the final order.</p>

<p>1. Services—railroad director—law implies no promise of compensation. The law will not imply a promise on the part of railway companys to pay their directors as such; and before a director can recover for his services as such, it must appear that a by-law or a resolution had been adopted allowing such compensation. It will not be sufficient to prove that the matter of allowing compensation was talked over by the board when in session, where the records of the company fail to show any allowance.</p> <p>3. Where a by-law of a railway company provided that whenever any bill against the company should be certified as correct by a majority of the executive committee, the president or vice-president should draw an order on the treasurer for the amount thereof, and that the secretary should countersign the same, which order should constitute a proper voucher against the company; and a bill for the services of a director was indorsed, “ approved by the executive committee,” and signed by only two of the committee, which consisted of five members: 5<?M, that the bill was not properly audited in pursuance of the by-law, and afforded no evidence of an account stated.</p> <p>8. Same—director may recover for services rendered apart from llis duty as director. Where it is shown that a railway director rendered services and incurred expenses for the company, since its organization, apart from his duty as a director, he may recover for the same upon a quantum meruit.</p> <p>4. Corporation, railroad—liability for services performed and expenses incurred before organization. While it may be that a party rendering service and incurring expense for a proposed railway corporation, before its organization, maj1-recover upon an express promise of the company to pay for the same after its organization; yet, in the absence of such express promise, no promise to pay will be implied from the fact that the company, when organized, accepts and receives the benefit of the same, as it seems more reasonable to hold such services, etc., to have been a gratuity, in view of the general good or private benefit expected to result from- the object of the corporation.</p> <p>5. Same—contracts before organization. A right of recovery against a corporation for anything done before it has a proper existence, does not appear to rest upon any satisfactory legal principle. It is soon enough tor such corporate bodies to enter into contracts, incumbering their property, when they are duly organized according to their charters, and have their chosen and impartial directors to conduct their business.</p>

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

<p>1. Appeaeakcb—sufficiency of proof to overcome evidence of the record, showing. Where the record of a suit by attachment recited the appearance of the defendant, by his attorney, and the entry of a written motion to dismiss the suit, and also a motion to continue the cause: Held, that if such an appearance of record could be limited, contradicted or explained, it would have to be done by clear and satisfactory evidence.</p> <p>2. In such a case, where the attorney, shown to have appeared, by the record, testifies that he was not authorized to enter the defendant’s appearance, but only appeared in his own behalf as garnishee, and that it was with dfficulty he could remember the circumstances; and where the written motions made showed an appearance to the action, and not to the garnishee proceeding; and where the opposing counsel were clear and positive that the attorney did appear to the action: Held, that the evidence, if admissible, was not sufficient to overcome the evidence afforded by the written motions and the recitals of the record.</p> <p>3. Lew—sufficiency of description of land. The certificate of a levy described the property as “ two lots of land known as the house lot and mill lot of the within named A B, sections 19 and 20, township 42, north, range 4 east 3 P. M. De Kalb county.” The certificate of purchase and sheriff’s deed described the lots on section 20, where they were in fact situated: Held, that the description was sufficiently certain without the words, “ sections 19 and 20,” as the property could be identified by extrinsic evidence, and the words indicated would be rejected as surplusage.</p> <p>4. Had the description been “two tracts of land of A B, one being that upon which he resides, the other that upon which his mill is situated,”- it would have been good, and any further and false description would be rejected.</p> <p>5. DESCBiPTiorr—:surplusage. In the description of lands in conveyances and judicial proceedings, it is held that if it can be made certain by rejecting that which is repugnant or false, it will be done so as to effectuate the intention of the grantor.</p> <p>6. When land is described as a tract on which A’s mill is situate, parol evidence is admissible to identify A’s mill and show where it is, and where this is done the description will be held to embrace the entire tract upon which it is situated.</p> <p>7. Devise—description, whether sufficiently certain. A testator, in his will, after devising certain property to his son, made a further devise, describing the subject in the following words: “ and all my interest in a certain suit now pending in the De Kalb county circuit court, in which I am plaintiff and one Lee is defendant.” The proof showed that there was a suit in which the testator and another person were plaintiffs and Lee and another were defendants: Held, that as no other suit between the same parties was shown to have been pending, it would be presumed that this latter named suit was the one to which the will referred.</p> <p>8. Same—certainty required in. Wills making devises are required only to be reasonably certain,—so certain only as to enable courts by fair and reasonable intendment to ascertain the meaning of the testator. The same strictness of interpretation will not be applied to them as to the venue of a writ or acknowledgment of a deed. Thus, where reference is made to a suit in the circuit court of De Kalb county, without naming the State, it will be held to mean the county by that name in Illinois, when it appears the testator resided in that county.</p> <p>9. Where the testator claimed an undivided half of certain lands fully described in a suit by him and the owner of the other half of the title to avoid a fraudulent conveyance: Held, that a devise of all his interest in the suit was sufficient to pass his claim to the land in controversy in that suit.</p> <p>10. Fraudulent conveyance. Where a defendant, after he was sued for a debt, conveyed his land to his brother-in-law, who resided in Ohio at the time, and who was a man of very limited means, and the sale was largely, if not altogether, upon credit, and many years after, it seems, nothing had been paid on the deferred payments, and it was proved that the grantee appointed the grantor his agent, and gave himself no trouble about the property afterwards; also that the grantee said the land was deeded to him without his knowledge at the time, and that he had nothing to do with it and should not have: Held, that these facts and other corroborating circumstances were sufficient evidence that the conveyance was made in fraud of creditors.</p>

<p>1. Sale oe goods—bona fide creditor of vendee talcing mortgage on, not affected by subsequent knowledge of the fraud of vendee. Where a bona fide creditor of one who purchased goods and obtained possession thereof by means of fraudulent representations, took a mortgage on such goods.without notice of the fraud: Held, that he was to be regarded an innocent purchaser, and could not be deprived of his rights thus acquired, by a subsequent knowledge of the fraud of his debtor.</p> <p>2. Therefore, where the court, on the trial of an action of replevin (the declaration also containing a count in trover) by the vendor of goods against the purchaser, and a creditor of the latter who had acquired the ' goods under a chattel mortgage given him to secure a debt, etc., instructed the jury that if the creditor of the purchaser took the goods after they had been so fraudulently purchased, with knowledge of the fact of such fraud, which was also set out in a preceding part of the instruction, then the latter was not an innocent purchaser, etc: Held, that the instruction was erroneous, in being directed to the time' of taking the goods under the mortgage, instead of to the time of taking the mortgage.</p> <p>3. If a person, who has purchased goods by means of fraudulent representations, sells and delivers them to his creditor in payment of a preexisting debt, who accepts them bona fide without notice of the fraud, such creditor will be protected as an innocent purchaser against any claim of the original owner, to the same extent he would be if he had paid a new consideration therefor.</p>

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

<p>1. Specific performance—contract must T)e proved as laid. On bill for the specific performance of a contract, whether it be for the sale of land or the giving of a chattel mortgage to secure an indebtedness, the contract must be proved as laid in the bill; and where the decree finds the contract materially and substantially different from the one stated, the error will be fatal.</p> <p>% Statute of frauds—what will take case out of. A contract by which the complainant was to sell and set up for the defendants certain machinery and fixtures, to be paid for in installments, the last of which was to fall due fourteen months after the date of the contract, the payments to be secured by chattel mortgage on the machinery when set up, is within the statute of frauds; but if the defendants, being insolvent, should, under such agreement, obtain the machinery and fixtures, and then refuse^ to give the mortgage, it would be a fraud upon the complainant for which he could have no adequate remedy at law, and a court of equity would not only take jurisdiction, but would not permit the defendant to avail of the statute.</p> <p>8. Evidence—to vary written contract. Where a party, in his pleading, sets up and relies on a contract reduced to writing, he will not be allowed, by parol evidence, to show a different contract in essential particulars.</p> <p>4. Vendor and vendee—measure of seller's recovery. There is no recognized principle upon which the seller, either in an action at law for damages, or in equity for specific performance, can be placed in a better position than he would have occupied, if the purchaser had performed.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>This was an action of assumpsit, by the appellee against the appellant, upon certain promissory notes given by the latter to the former. It appeared that the appellee sold appellant certain real estate, evidenced by a contract only, no notes being given for the purchase money. As the several installments of interest became due, appellant, being unable to pay, gave the notes sued on, as he contended, merely for an extension of the time of payment, and, as the other party contended, as payments of interest. The other facts material to an understanding of the case are stated in the opinion. •</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Sidney W. Harris, Judge, presiding.</p>

<p>1. Elections—effect of an adjournment hy the judges. Where the judges of election of a township, at an election to determine the question of re. moval of a county seat, took a recess of an hour at 12 o’clock, and went home to dinner, but it was not pretended that the adjournment was for any improper purpose, or that there was any tampering with the ballot box, or that there was any fraud or wrong of any sort committed or contemplated, or that any voter lost his vote in consequence thereof : Held, that this was no ground for rejecting the entire poll of the township.</p> <p>2. Same—¿proof required of non-registered voter. The oath of a householder and registered voter, required to prove the qualification of a non-registered voter, is required to bo in writing, or, in other words, the proof to be made by such witness must be an affidavit, so that the same may be preserved.</p> <p>3. Where a non-registered voter simply flies his own affidavit as required hy the statute, hut does not produce with it the affidavit of a householder aud registered voter, the statute is plain that his vote shall not he received.</p> <p>4. It appeared, upon the contest of an election on the question of removing a county seat, that various persons, whose names were not registered, were allowed to vote upon their own affidavit, without the produc. tion of the affidavit of a householder, hut that, in fact, such householder was sworn to the printed affidavit printed on the same paper with that of the voter, and the magistrate affixed his jurat to the affidavit of the voter alone: Held, on reversal for another cause, that the parties should he allowed to show that the voters in question were, in fact, legal voters, and that the affidavits filed' hy them were, in fact, sworn to not only hy them, hut hy the witnesses required hy the statute.</p>

<p>Appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.</p> <p>This was an action brought by Heflin against the railroad company, to recover damages for the killing of a cow belonging to the plaintiff, on defendant’s road. A trial resulted in a verdict in favor of the plaintiff, upon which the court rendered judgment. The company appealed.</p>

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

<p>Wb.it of Ebeob to the Circuit Court of DuPage county; the Hon. Silvanus Wilcox, Judge, presiding.</p>

<p>.Writ of Error to the Circuit Court of McHenry county ; the Hon. Theodore D. Murphy, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This was an action of ejectment, by the appellee against the appellant. The plaintiff below introduced in evidence a deed from the defendant for the premises in controversy, to himself, and proved that the defendant Avas in possession of the same.

<p>1. Homestead—right of infants in, lost by the abandonment of pan'ent. Although infant children have rights in the homestead, they are necessarily under the control of their parents during the joint lives of the latter; and as the mother becomes the head of the family upon the death of the father, her abandonment of the homestead will deprive such children of their homestead right.</p> <p>2. Same—facts showing an abandonment of. Where the widow of one who had mortgaged his homestead without releasing the right, some time after the death of her husband, went to Nevada territory, leaving the premises in charge of a son-in-law to rent for her infant children whom she left behind; was there married, and lived with her husband for eight months in Nevada, when she returned, and in about two years afterwards executed a quit claim deed to her son-in-law, which was inoperative to pass title because her husband had not joined in its execution, and the grantee took possession and made improvements on the premises exceeding the original value of the property: Held, that while her deed was invalid for the reason stated, yet its execution taken in connection with the other facts showed a clear intention to abandon the homestead, and must be held with the other facts to constitute an abandonment of it.</p> <p>3. The homestead righ,t will be lost by a voluntary abandonment without an animus revwtendi.</p>

Writ op Error to the Circuit Court of Henry county; the Hon. Ira O. Wilkinson, Judge, presiding. This was a bill in chancery, by the plaintiff in error, against Marcus H. Blackmore, Bobert Lowry, Elizabeth Lowry and John F. Dillon..

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

Luther Lowell, Judge, presiding. The defendant in this case filed an affidavit for a continuance on the ground of the absence of a material witness.

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

<p>1. Pbactice—loss or destritetion of files—defcmlt. After the destruction of the records and files of the court by fire, among which were those of an ejectment suit, the plaintiff’s attorney filed his affidavit, showing the time of the commencement of the suit, issuing of summons, service upon defendant and plea by the latter, and showing the cause to have been at issue; also that the affiant had substantial copies of the papers which had been filed. The plaintiff, under leave of the court to file a substantial copy, filed a new declaration. In a few days after this, the court entered a rule on the defendant to plead by a day named, and on the next day after the expiration of the rule, rendered judgment against the defendant by default: Held, that 1he court erred, as the defendant had once pleaded, and there was an issue of fact for trial.</p> <p>2. On failure of a defendant to file another plea in place of one that has been destroyed, in compliance with the rule of the court, the court can do no more than to allow the plaintiff to supply the plea. In such a case the court can not properly give judgment against the defendant by default for want of a plea.</p>

Writ of Error to the Circuit Court of LaSalle county, the Hon. E. S. Leland, Judge, presiding.

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

<p>1. Contribution—right of, from cosurety not defeated by talking collateral which proves unavailing. On bill by one surety against a co-surety to compel him to contribute liis share of the debt paid by the complainant for their principal, it appeared that one of the co-sureties had placed in the hands of the complainant a note on a third party, to indemnify him against loss by reason of his suretyship; that this note was of but little or no value, the maker and indorser being insolvent, and that nothing had been realized from it: Held, that the complainant, by taking such security, did not lose his right to claim contribution; that all the obligation resting on him was, if the collateral was available, to account to his co-surety for his just proportion; and that, should he, after contribution, collect it, or any part thereof, an action would lie against him by the co-sureties for their just proportion.</p> <p>2. Parties nt chancery—bill to enforce contribution by a surety. On a bill in equity, by one surety against a co-surety, to enforce contribution, the principal, and other sureties who are insolvent, are not necessary parties.</p>

Charles Turner, Judge, presiding. This was an action of trespass commenced before a justice of the peace in Tazewell county, by George Hiner against Christopher Jeanpert and William Corney. The alleged trespass consisted in the breaking down of the fences and entering the close of the plaintiff, by the defendants. The act was justified upon the ground that the place where the alleged trespass was committed was a public highway.

<p>1. Pleading—sufficiency of a plea of non-assumpsit. To a declaration counting upon a joint liability as partners, the defendant, who was alone served with process, filed the plea of the general issue, which, after the formal part, alleged “ that he did not undertake and promise in manner and form as the said plaintiff hath above thereof complained against him,” etc. The circuit court sustained a special demurrer to this plea, because the defendant did not aver that he, together with his co-defendant, did not undertake or promise: Reid, that the court erred in sustaining the demurrer.</p> <p>3. Same—office of the words, “ manner and form." It is a form commonly in use to aver that the party did not do so and so, “ in manner and form,” as alleged. The use of those words covers matters of both substance and form, and saves the necessity of repeating at length the allegations sought to be brought within the scope of the traverse.</p>

Josiah McRoberts, Judge, presiding. This was an action on the case, by the appellees against the appellant, commenced in the county court of LaSalle county, and taken, by change of venue, to the circuit court of Grundy county.

<p>Bastardy—sufficiency of evidence to sustain cluvrge. In a prosecution for bastardy, the only proof of the charge was the unsupported testimony of the complainant, who testified that she gave birth to the child on the 15th of August, 1871; that it was the result of a single act of illicit intercourse with the defendant in the middle or latter part of November, 1870, and that that was the only time she ever had intercourse with defendant or any other person. The defendant, in his testimony, denied the charge in all its parts, and proved, by another witness, that he had frequent sexual intercourse with complainant in October and November, 1870, and that she informed him of her pregnancy and asked him what he was going to do about it. Two other witnesses testified that they surprised her in sexual intercourse with another person in October or November, 1870. She informed her father that the father of the child lived in a different county from that of defendant. Defendant’s witnesses were in no way impeached, except a certain matter was urged against their credibility: Held, that taking the whole testimony together, it was not sufficient to sustain a verdict finding the defendant to be the father of the child.</p>

William Brown, Judge, presiding. This was a bill in chancery, filed by the appellee, assignee in bankruptcy of William W. Wood & Co., to set aside, as fraudulent and void, a deed of trust executed by William W. Wood and wife to Rufus Stratton, to secure the payment of a note of $8000, payable to the appellant. The grounds upon which this deed was sought to be avoided under the bankrupt law of the United States, appear in the opinion.

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

<p>1. Pabtjsbeship—sale by one to the other partner after dissolution.— remedy whether legal or equitable. A and B, partners in the grain trade, and flour and grocery business, dissolved the partnership by dividing the business so that A took the grocery business on his own account, with all its profits and liabilities, and B the grain business on the same terms. Soon after, A, being sick, got B to take the grocery off" his hands, B agreeing to pay A the capital he had put into the original partnership in payment for the sale of the grocery to him, “ as soon as he could do so without inconvenienceMeld, in an action at law by A against B to recover the price agreed to be paid, that the sale had no connection with the prior-partnership dealings, or at least not such a connection as made a resort to a court of equity necessary, itnot being necessary to adjust the losses and profits to ascertain the capital stock put in by A.</p> <p>2. CoNSTBUCTioír—rule for construing contract. The true principle of sound ethics is, to give a contract the sense in which the person making the promise believed the other party to have accepted it, if he in fact did so understand and accept it.</p> <p>3. Cohtbact—construed as to time of payment. Where a party made a sale, the purchaser agreeing to pay the purchase money as soon as he could without inconvenience, and the proof showed that the purchaser told the witness that he was to pay the seller “ back his money as fast as he could collect it up and get straightened upHeld, that from this it would be implied that payment was to be made within a reasonable time, and the suit not having been brought until one year after, a recovery was affirmed by this court.</p>

<p>1. Partnership—whether a debt is a paftnership affair. The defendant in this case, on settlement with A & B, partners in the grain business, was found indebted to them in seven or eight hundred dollars, and as A was about retiring from the firm, the defendant agreed to pay the same to him with the assent of B. A then entered into partnership with the defendant, and after the dissolution of the latter firm A sued him for the same. The defendant set up that the debt was transferred to the late firm, and went into it as partnership assets, and therefore no adjustment of the matter could be had at law: Reid, that it was incumbent on the defendant to show that this debt went into the firm account, or was used in the concern, by competent proof, to defeat a recovery.</p> <p>3. Jurisdiction—right to reduce demand to bring it within jurisdiction of justice of the peace. A creditor has the right to reduce his claim in order to bring it within the jurisdiction of a justice of the peace.</p>

<p>1. Corporation, private—power to contract for insurance. Under the act of 1869, authorizing the formation of incorporated companies, for the accumulation of a fund with which to purchase real estate in large tracts, paying off incumbrances thereon, and the sub-division of the same into lots suitable for homesteads, and the distribution of such lots among the shareholders, or to aid the shareholders in acquiring real estate, making improvements thereon and removing incumbrances therefrom, a company was incorporated, who made a loan, taking a deed of trust to secure its payment, and providing therein that the borrower should insure the buildings. The secretary of the company insured for the first year, charging the premium to the horrower, and insisted upon the right to insure for the next year, to which the horrower at first objected, but finally assented upon the secretary agreeing to make the insurance. The latter failed to do so, the buildings were destroyed by fire, when the borrower sued the company for a failure to insure. The company objected that it had no authority to make such a contract: Held, that, as the company was authorized to make the loan and provide for the security of the same, it followed as an incident that it had the right to provide for insuring property taken in security, and that an action would lie for a breach of the agreement to insure.</p> <p>3. While it is true that public policy requires that corporations should be confined strictly within the limits of their charters, and not be allowed to exercise powers beyond those expressly conferred, that would be hurtful to the public interest, yet where they have exercised powers incidental to those conferred, and in furtherance of the general objects of the corporation, although the subject of the contract may not be within any express right conferred, they will be estopped from denying that they had authority to make such contracts.</p> <p>3. Same—power of secretary presumed from, circumstances. Where it appeared that the secretary of an incorporated company had, for some time prior, been making similar contracts in behalf of the company, he having no personal interest in making the same, and the company received the benefits accruing from such contracts without objection: Held, that it would be inferred that he acted with the knowledge of the directors, and that he was authorized to make such contracts.</p> <p>4. Measure oe damages—on agreement to procure an insurance. Where a defendant agreed with the plaintiff to have the buildings of the latter insured in some good company, and had made arrangements with a company for such purpose, but before the same was effected the buildings were burned, and it appeared that the company, in consequence of the great Chicago fire, had become insolvent, but was good when the arrangement was made: Held, that the sum at which insurance was agreed to be made was not the proper measure of damages, but only such dividend as the insurance company would be able to pay in case the insurance had been perfected before the loss.</p>

<p>1. Evidence—proof of execution when necessa/ry. Where a sheriff is sued for levying upon mortgaged chattels as the property of the mortgagor, by the assignee of the mortgage, the note described in the mortgage is not admissible in evidence' without proof of its execution.</p> <p>2. Law and fact. It is error for the court, in its instructions, to submit the question of the due execution of a chattel mortgage to the jury.</p> <p>3. Chattel mortgage. WLere the holder of a note secured by chattel mortgage sues an officer for levying upon and selling the mortgaged chattels under execution against the mortgagor, the production of the note and mortgage in evidence, or proof of their loss and contents, is indispensable to a recovery.</p>

Joseph E. Gary, Judge, presiding. This was an action of trespass quare clausum, fregitby James Duquid and James Creighton against Thomas S. Dobbins.

Writ of Error to the Court of Common Pleas of the city of Aurora; the Hon. E. G. Montony, Judge, presiding. This was a creditor’s bill, by William and Detmar Delius, against John Jassoy, and A. B. Jassoy, his wife.

<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. Lambert Tree, Judge, presiding.</p>

<p>1. Trespass—levying upon stranger's property—retwn in obedience to verdict for claimant no justification. Where a constable levied upon property not belonging to the defendant in the execution, and after a trial of the right of property, resulting in a verdict for the claimant, he returned the same to the owner, and when sued in trespass for the wrongful taking, asked the court to instruct the jury that his return of the property in obedience to the verdict was a complete indemnity to him against the trespass: Held,. that such an instruction was properly refused, as the verdict was an indemnity to him only for the return he might make on the execution, but not as against the trespass.</p> <p>2. Trial op right op property—splitting of cause of action. Where, the claimant of property levied upon by an officer under execution against another, recovered a verdict in his favor on a trial of the right of property, upon which it was returned to him, and then sued the officer in trespass for the wrongful taking, it was urged that the plaintiff could not split his cause of action, and, having had one action whereby he recovered the property, he could not maintain trespass against the officer: R'eld, that the trial of the right of property was not an action in any sense of the term, and a verdict for the claimant was no bar to the action of trespass.</p>

<p>1. Chancery practice—reference to master to find amount due on mortgage. Where it appeared on bill to foreclose a mortgage that the note described in the mortgage was given to secure future advances, and did not represent the state of account between the parties, the evidence being voluminous, and disclosing a complicated state of account running through a considerable period of time subsequent to the making of the note and mortgage, showing the advance of varioiis large sums of money, and that the mortgagor was entitled to numerous credits from time to time, and the evidence was unsatisfactory: Held, that it was the duty of the court to have referred the case to the master to state the account, leaving the parties to take exceptions to his report as to any matter with which they were dissatisfied; and for want of this, and because the evidence was unsatisfactory, the decree was reversed.</p> <p>2. Same—error to take decree on lost dill. Where the supplemental bill upon which a decree was based did not appear in the record and was lost before decree taken: Held, that it was a fatal error to proceed to a decree before supplying the lost files.</p>

John G. Rogers, Judge, presiding. This was an action of trespass quare clausum fregit, by the appellee against the appellant.

■ Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding. This was a petition to enforce a mechanic’s lien, filed by Wilson H. Stubbings against Robert H. Fish. The petition required the defendant to answer the same under oath, which was done accordingly. On the trial of the issues found, the court, amongst others, gave the following instructions, at the instance of the petitioner, numbered three and five: “ 3.

Theodore D. Murphy, Judge, presiding. This was an action of assumpsit, by Elias B. Hulett against Franklin W. Smith, John Bishop and Justus Griffin, the latter not served and made no appearance in the cause. The declaration contained the common counts only, but described the defendants as late co-partners. The trial was had as to the other two defendants, who each pleaded the general issue.

Richard G. Montony, Judge, presiding. The facts appear in the opinion, except that the application for a change of venue was based upon the alleged prejudice of the judge who tried the cause below.

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

<p>AcKirowLBDaMENT of deed—certificate of, must prevail oner testimony of grantor. In the absence of proof of fraud and collusion on the part of the officer taking and certifying the acknowledgment of a deed, the officer’s certificate of the acknowledgment in proper form must prevail over the unsupported testimony of the party grantor that the same was false and forged.</p>

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

<p>1. Sale—right to return for breach ofwa/rrcvnty. Where there is a warranty on sale of goods, without fraud, and there is no stipulation in the contract that the goods may be returned, the vendee has no right to annul the contract without the consent of the vendor, for a breach of the warranty ; but in an action for the price, the warranty and breach may be given in evidence in mitigation of damages, on the principle of avoiding circuity of actions.</p> <p>2. There is, however, a distinction in this respect between an executed sale and an executory contract for a sale. In the latter case the goods may generally be returned as soon as .they are found not to satisfy the contract, if this is done in a reasonable time, and the purchaser has done nothing in the meantime beyond what is necessary to give them a fair trial.</p> <p>3. Where the defendant bought from plaintiff’s agent twenty barrels of Mollar and Martin’s powdered sugar without any inspection, to be paid for in thirty days, and to be delivered in the future, and there was, at the time of making the purchase, no selecting or setting apart of any specific barrels from the mass in store, so as to pass the property in presentí-. Held, that the contract was executory, and that the law in such a case would raise an implied warranty that the sugar should be of a fair and merchantable quality, and that the purchaser had a reasonable time after delivery to make a fair examination, and if it was not of the quality contemplated by the contract, to rescind the same, and thus defeat a suit for the price.</p> <p>4. If the purchaser under an executoiy contract fails to examine the goods purchased by him within a reasonable time, he will be precluded from the right to offer them back, rescind the contract, and avoid payment of the price on the ground that they are not of a fair merchantable quality; but he will still have the right to rely upon the implied warranty in mitigation of damages under the general issue, or, in other words, will be liable upon a quantum meruit for the goods.</p> <p>5. In a suit by the vendor to recover the contract price for a lot of sugar sold under an executory contract, without inspection at the time of the sale, and where it was not set apart from other sugars for the buyers, but was afterwards delivered to their teamsters, the court, at the instance of the plaintiff, instructed the jury in substance that, in the absence of fraud and a special warranty, if there was. opportunity to examine the sugar at the time defendants received it, and they failed or neglected to do so, but received it without objection, then they were cut off from all defense, unless the plaintiff had subsequently agreed to take it back and discharge them: Held, that the instruction was erroneous, as entirely ignoring the distinction between a sale of specific chattels where the property passes in presentí, and the case of an executoiy contract, and wmis also well calculated to mislead the jury in respect to the warranty implied in the case of an executory contract.</p>

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

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

Erastus S. Williams, Judge, presiding. The facts are stated in the opinion, except that appellant, who was a practicing attorney, entered into a contract with the trustees of schools (the appellees) to collect a debt which Haas owed the school fund, for which the attorney was to receive one-half of what he might be able to collect, and if he failed to collect, he was to receive nothing.

<p>1. False imprisonment—plea justifying, under order of judges of election. A plea in an action for false imprisonment justifying under an order of the judges of an election fining the plaintiff for disorderly and riotous conduct at the election, and directing the commitment of the plaintiff for its non-payment, is fatally defective on demurrer, if it does not aver that the judges made out and signed a written order or mittimus, and, also, if it does not show that the judges fixed the length of time the plaintiff should stand committed if the fine was not paid.</p> <p>2. Same—evidence to show lawful purpose. In an action for false imprisonment, where the defendants attempted to justify under an order of judges of election fining the plaintiff for disorderly and riotous conduct at an election, and ordering his commitment until the same was paid, the disorderly conduct charged grew out of the service of an injunction by the plaintiff upon the judges of the election, and the conduct of the plaintiff on such occasion: Held, that it was not error to admit the writ of injunction in evidence as showing the authority under which the plaintiff acted, and that he was there for a lawful purpose.</p> <p>3. Evidence—matters tending to show had motive in aggravation of damages. In an action for false imprisonment against the judges of an election and others acting under such order, where the alleged cause of the commitment grew out of the service of a writ of injunction by the plaintiff upon the judges of the election, the court below allowed the plaintiff to prove that the railroad company interested in the election then being held had agreed, or that the defendants had said the company had agreed to save and keep them harmless from the consequence of disobeying the injunction: Held, that the proof was properly admitted, as it was a part of the transaction, and tended to show the motives under which the defendants acted, and was therefore proper to be considered by the jury in fixing the amount of the damages.</p> <p>4. False imprisonment—instruction as to duty of officer to serve void pa/rt of a writ of injunction. Where a writ of injunction was granted to enjoin the judges of an election from holding an election, and the supervisor from issuing the bonds of his town under such election, which was regular on its face, but void so far as it attempted to prevent the holding of the election, so that the officer serving the same might have disregarded that part of it, and he was imprisoned for alleged disorderly conduct in serving the same, in an action by him for false imprisonment, the court, at the instance of the plaintiff, instructed the jury that he was bound to serve the writ on the members of the election board: Held, that the instruction was improper, as the officer might either have served it or taken the responsibility of saying it was void so far as it attempted to enjoin the holding of the election.</p> <p>5. Commitment—hy judges of election, requisites of. Although the statute does not, in terms, require an order of commitment by the judges of election for the non-payment of a fine for disorderly conduct in their presence», still it must be in writing and signed by the judges, and state the length of time the party is to stand committed, not exceeding twenty days, as otherwise the jailor can not know how long to detain the prisoner, and has no means of justifying his detention, and, on habeas corpus, could not show by what authority he acted.</p> <p>6. Justification—under legal process. As a general rule, an officer may act under a writ regular on its face, whether the court had jurisdiction or not, even though the writ may be void, or he may refuse to execute such a writ.</p> <p>7. Injunction—right to execute writ enjoining the holding of an election. Where an injunction was issued to restrain the supervisor of a town from issuing bonds, and also to restrain judges from holding an election, being fair on its face: Held, that the officer acting under it was fully justified in serving it in a proper manner, hy delivering a copy thereof to the judges, but was not justified in attempting to enforce obedience to the writ, nor in serving it in a disorderly or riotous manner.</p> <p>8. Judge of circuit court—no right to call an attorney to preside without consent. As judicial functions can not be delegated to or exercised by an agent or deputy, but must be performed by the persons designated by the law, it is error in the circuit court to call an attorney to occupy the bench before a case is fully determined, without the consent of the parties.</p> <p>9. Instruction—no error not to repeat. Where a refused instruction is substantially given in others of the series, there is no error in the refusal.</p>

<p>Writ op error to the County Court of LaSalle county ; the Hon. P. Kimball Leland, Judge, presiding.</p>

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

<p>1. Party plaintiff—in action ex contractu. It is an inflexible rule that an action at law upon contract must be brought in the name of the person in whom the legal interest is vested.</p> <p>3. Where A had recovered judgment against B, 0 acting as his agent m procuring the same, and B afterwards transferred a note of §1000 owned by him to D, out of the proceeds of which D was to pay himself what B owed him, and hold the balance for B; and it was afterwards agreed by all the parties that D should pay A a certain sum, in discharge of the judgment, and A sent a written discharge of the same to his agent, 0, who delivered the same to B, upon D’s express promise to pay 0 the amount agreed upon, and C thereupon advanced the same to his principal, and, upon D’s subsequent refusal to pay him, brought suit therefor in the name of A, for his use: Held, that, as the legal interest in the contract was in C, and not in A, the action was improperly brought in A’s nam'e, and could not be maintained.</p>

<p>Writ op Error to the County Court of LaSalle county; the Hon. Charles H. Gilman, Judge, presiding.</p> <p>This was a bill in chancery, by defendant in error against the plaintiffs in error, to quiet title to a tract of land and enjoin certain waste, and the removal of crops, etc. Ann Collins, after answering, filed her cross-bill, claiming an equitable title, and praying for a conveyance from defendant in error. At the term subsequent to the filing of this cross-bill, the defendant in error was called and the cross-bill taken for confessed, and a decree entered dismissing the original bill, and among other things, requiring him to convey his title to Ann Collins, and in default thereof, that the master in chancery make such conveyance for him of his title.</p> <p>The defendant then filed his bill, returnable to the next term, praying for leave to answer such cross-bill and to vacate such decree, and for an injunction in the meantime, and setting forth the reasons why he was unable to answer the cross-bill, which was held sufficient cause.</p> <p>The plaintiff in error demurred to this bill, which being overruled, and she abiding by her demurrer, it was taken for confessed, and the decree on the cross-bill was vacated.</p>

<p>This was an application for a mandamus against Charles E. Lippincott, Auditor of Public Accounts of the State of Illinois, to compel him to issue and deliver to the relators or their treasurer a warrant upon the Treasurer of the State for certain State taxes mentioned in the opinion.</p>