Volume 73 — Illinois Reports

<p>1. Champerty—a misdemeanor in this State. Champerty being a misdemeanor at common law, and not being embraced in sec. 108 of the Criminal Code, is punishable in this State as such.</p> <p>2. Same—contract tainted, with, void,. A contract between an attorney and client, whereby the attorney is to institute and prosecute suits, at his own expense, for the recovery of property belonging to or claimed by the client, for which his only compensation is to be a portion of the property recovered, however honestly entered into and carried out, is cliampertous and void.</p>

<p>Limitation law op 1835-—what constitutes actual residence. Although a party may derive his title to different tracts of land from different sources, yet if the tracts adjoin each other and are all in one inclosure, and there is no one hut the owner residing thereon, such residence is an “ actual residence” upon all the tracts, within the meaning of the act of 1835.</p>

<p>Writ of Error to the Circuit Court of Lee county; the Hon. William W. Heaton, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Samuel M„ Moore, Judge, presiding.</p>

<p>1. Party PLAmriEE at law—on simple contract. It is well settled, as a general rule, that, in cases of simple contracts, the person for whose use the contract is made may maintain an action in his own name upon it, although the consideration does not move from him.</p> <p>3. Same—on specialty. But in the case of specialties, where there is a covenant with one person to pay another a sum of money, the latter can not maintain an action thereon, but suit must be brought in the name of the former.</p> <p>3. Thus, where the purchaser of land executed to the vendor a mortgage to secure the purchase money, which contained a covenant on the part of the mortgagor to pay the mortgagee the sum of §600 in one year after its date, and also a covenant to pay a mortgage given by the mortgagee to a third party, of §550, on the same land, it was held, that such third party could not maintain an action of covenant on the mortgage, but that the suit should have been brought in the name of the mortgagee.</p> <p>4. Evidence—patrol, to vary written contract. Parol testimony can not be received to vary the legal effect of a written instrument, but it must be construed as it is, unaffected by parol evidence beyond that of surrounding circumstances.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by the National Bank of Commerce of Chicago, against August Eisher, upon an indorsed promissory note.

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

<p>1. Evidence—pa/rol, to establish a fact upon which, written contract is silent. Where a party, who had purchased a double saw-bench to be used in a planing mill, sold out his interest in the mill and machinery to bis partner, and the latter agreed, in writing, to pay “ all debts due for material used in the construction of the planing mill and building now occupied by them,” it was held, that parol evidence was admissible to show whether the saw-bench was any part of the material used in the construction of the mill and building, in a suit by the creditor who sold the bench, against such purchaser agreeing to pay the debts. Its effect was not to vary the terms of the written contract, but to establish a fact upon which the contract was silent.</p> <p>2. Allegations and proofs—in respect to different counts. There is no error in instructing the jury so as to confine the plaintiff’s right’of recovery to the contract declared upon in the special count of his declaration, where there is no evidence to justify a recovery under the common counts, or aside from the contract.</p> <p>3. Consideration—promise without, invalid. The promise of a party to the holder of a promissory note upon a third person, to pay the same, without any consideration, will not support an action.</p>

Appeal.from tlie Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding. This was a bill in chancery, filed by Clara Benjamin and S. G. W. Benjamin, against Joseph O. Glover, George C. Campbell and Samuel B. Haven, to foreclose a mortgage.

Theodore D. Murphy, Judge, presiding. This was an action of ejectment, by Alonzo Gage, Allen Mulleins and Samantha J. Mulleins, against John Schroder, for the recovery of two tracts of land. The plaintiffs claimed title as children and only heirs of Stephen I. Gage, deceased.

<p>Appeal from the Superior Court of Cook county; the Hon. Samuel M. Moore, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook, county; the Hon. John Burns, Judge, presiding.</p> <p>This was a distress for rent, by Conrad Fry and John S. Miller, against John C. Patridge and Lor in Palmer, for the use of a store-room. The original verbal agreement was to lease the premises to the firm of John C. Patridge & Co., but one half was occupied by Wight & Stevens, who, until their failure, paid one-half of the rent. Before the trial, the death of Miller was suggested, and Fry Avas alloAved to prosecute as surviving plaintiff. A trial Avas had by a jury, avIio found the issues for the defendants. The plaintiff moved for a new trial, which Avas denied and an exception taken.</p>

<p>1. Homestead—right is in husband, as owner. On bill by the purchaser of land under a deed of trust executed by a husband, who was the owner, in which his wife failed to unite, to have the homestead set off, it is error to set off the same to the wife.</p> <p>2. Same—husband and wife must both release, to be effectual. The statute having made it a condition to the alienation of a homestead that the wife of the owner shall unite with him in the release, a release of the same by the husband alone of the right is without effect, even as against himself, so far as concerns the homestead right.</p> <p>3. Chancery—relief inconsistent with frame of bill. On bill by a purchaser under a deed of trust which failed to release the homestead, to have the same set off, which shows the existence of prior mortgages, it is erroneous to decree that the complainant is the owner in fee of the premises, subject to the homestead exemption.</p>

Josiah MoRoberts, Judge, presiding. This was an action of assumpsit, by John S. Gould and William R. Gould against James Wright and Alfred B. Lawther. A trial was had, resulting in a verdict and judgment in favor of the plaintiffs, for $2412.70, the court refusing a motion by defendants for a new trial.

<p>1. Negligence—;facts showing negligence of railroad company in killing a coio on its track. Where a cow is killed upon a railroad track by a passing train, if she was in plain view of the engine-driver and fireman in charge of the train, and was seen, or could have been seen by them by the use of ordinary care, in time to have slackened the speed of the train and avoided the accident, and no efforts were made in that direction, this will be such negligence as renders the company liable.</p> <p>2. Same—whether plaintiff allowing his coio to run at lan'ge is guilty. It being lawful for animals to run at large upon the commons, the owner of a cow, who lives in the country, and turns her out upon the commons, from whence she strays upon a railroad, on a public crossing, and is killed by a train, will not be guilty of negligence on his part.</p> <p>3. Same—need not he wilful. A railway company, in the running of its trains, is liable for stock killed upon its track which results from want of ordinary care and diligence. It is not necessary that the killing shpuld be wanton, or wilfully done by its servants.</p> <p>4. Error will not always reverse—improper instructions. In a suit against a railway company for the killing of a cow, where there was no negligence imputable to the plaintiff, and consequently the doctrine of comparative negligence was not involved, an instruction which states the rule in such case incorrectly will not he such an error as to reverse a just judgment.</p> <p>5. Evidence—relevancy. In an action against a railway company to recover the value of a cow killed through negligence by a passing train, evidence on the part of the plaintiff that there was much trouble in the vicinity, with the company, about the right of way, is clearly improper, yet a proper and just judgment will not be reversed for so trivial an error.</p>

<p>1. Specific performance—lost by laches. Where a party seeking the specific performance of an agreement to convey land is guilty of great laches, having delayed asserting any rights under it for a period of nearly eleven years, during which time he paid no taxes on the property or asserted any ownership over it, hut suffered a subsequent purchaser, without actual notice of the claim, to improve the same and add greatly to its value, the unusual delay, unexplained by equitable circumstances, will bar any claim of relief in equity.</p> <p>2. Same—not granted when inequitable. The specific enforcement of contracts is always in the sound discretion of the court. It is not every contract that will be specifically enforced, especially if there is anything that makes it inequitable, courts will hesitate to do so. Where there is anything, by reason of the change of circumstances in regard to the property, that makes it unconscionable the party should have execution of the contract, a court of equity will withhold its aid.</p>

<p>Insurance—when a provision for a third party. Where a person had been engaged as a clerk in his uncle’s store for many years, and for several years after becoming of age, for which he had received no wages, and the uncle procured a policy of insurance on the life of a friend, in the sum of §3000, and had the same made payable to Ms nephew, and also procured a similar policy on Ms own life, payable to the nephew, and, on the death of the friend, handed the policy to the nephew, who procured the money thereon, which he deposited with the uncle for safe keeping: Held, in an action by the nephew against the uncle for the money, that, from the facts, it would be presumed that the latter intended to make a provision for the benefit of his nephew, and that the plaintiff was entitled to recover the same, unless such presumption should be overcome by clear evidence to the contrary.</p>

Edwin S. Belaud, Judge, presiding. This was an action on the case, by Mary L. Walker against Jacob Albrecht, to recover damages for the sale of intoxicating liquor to the plaintiff’s husband by the defendant.

<p>1. Landlord and tenant—implied covenant for quiet enjoyment. The only covenant that is implied in a lease, is that of quiet enjoyment. This covenant, whether express or implied, only means that the lessor shall have such title to the premises as will enable him to give a good and unincumbered lease for the term demised. It implies no warranty against the acts of strangers. It confers upon the lessee a right to enter upon the premises, but nothing more.</p> <p>2. Same—duty of lessor to put lessee in possession. The implied covenant for quiet enjoyment creates no obligation on the part of the lessor to place the lessee in possession of the premises. If he is kept out of possession by any act of the landlord, or by one holding a paramount title, the lessee may have an action.</p> <p>3. Where the lessee is prevented from obtaining possession of the demised premises by a former tenant, whose tenancy had expired, his remedy is against the latter, and not against the landlord. The landlord not being entitled to the possession, can maintain no action to recover the premises, but the right of possession being alone in the lessee, he must bring the action, and forcible detainer lies in his favor.</p> <p>4. Same—when landlord may re-let the premises. Where a lease contained no express covenant to put the lessee in possession of the demised premises, and former tenants of the lessor whose time had expired held over without any authority, and the lessee took no steps to obtain possession, but leased other property, and the lessor, after devising a plan to get possession, asked the lessee if he would still take the premises in case possession could he obtained, and he declined to answer whether he would or not: Seld, that the lessor was authorized to regal'd this as an abandonment of the lease and a refusal to occupy under it, and that he had a clear right afterwards to re-let the premises to the tenants in possession, and that he was not liable under his prior lease for so doing.</p>

<p>1. Trust deed—impeaching sale under, for insufficiency of notice. Where a power of sale was given in a trust deed upon default of payment, after homing advertised such sale ten days in a public newspaper published in Chicago, and the only evidence to show an insufficient notice was a recital in the trustee’s deed that he had duly advertised the property for sale “ by publishing a notice in a newspaper published in the city of Chicago aforesaid, ten days before the day of such sale, in the manner prescribed in and by said mortgage deed: ” Held, that this recital was not sufficient evidence to impeach the sale, on bill in equity, after the lapse of fifteen years, and after the rights of purchasers had attached, by excluding tire idea that the sale was advertised for ten days, as required by the trust deed.</p> <p>2. Where the regularity of a sale under a trust deed is attacked fifteen years after it happened, and the land has passed into the hands of remote purchasers, the sale should not be defeated because the trustee, in the recitals of his deed of the notice given by him of the sale, may have employed language which fails in precision, or is ambiguous; but it must _be made to appear, with reasonable certainly, that the requisite notice was not given.</p> <p>3. Same—effect of trustee purchasing at his own sale. The fact that a trustee is a purchaser, through another, at his own sale, will not render the sale void. It is only ground for setting aside the sale in equity while in the trustee’s hands, but not after its transfer to a bona fide purchaser without notice of the equity.</p> <p>4. BtJ>mrfeffect of purchaser transferring note and trust deed. Where the progegfls of the sale of land amount to less than the note secured, the transfer- of it, without any credit being indorsed, and the deed of trust, by the purchaser, on a conveyance of the premises by lxim, affords no ground for setting aside the sale otherwise fairly made, and the grantee will not be estopped, by taking such assignment of the note and trust deed, from showing a sale under the power.</p> <p>5. Trustee’s deed—as affected by a failure to record the same. As a trustee’s deed, executed under a power of sale in a trust deed, relates back to the execution of the deed of trust, the law does not require that the same shall be recorded, when the trust deed is recorded, in order to protect the grantee against attaching creditors of the original owner, and those claiming under them. The notice of sale is all that is required. The record of the trust deed is sufficient to put all persons on inquiry as to whether a sale has been had under the same.</p> <p>6. Trust deed—not necessary to name time when note secured matures. The fact that a deed of trust fails to show when the note thereby secured matures, .will not affect the title acquired under it, as in favor of a purchaser of the equity of redemption, as it may be [ascertained when it matures by inquiry of the holder.</p> <p>7. Pleading and evidence—proo/ confined to ease made by the pleadings. Where a party sets up a claim to equitable relief by his bill, under the seven years' limitation law, without any allegation that he relies on the twenty years’ Statute of Limitation, proof of limitation under the latter statute will not be admissible.</p> <p>8. Attachment—a mere equity to set aside a sale not subject to levy and sale under. Prior, to the statute of March 31, 1869, equitable interests in lands were not subject to attachment. Therefore, where a debtor’s land had been sold under a deed of trust, even if the trustee was the purchaser, through another, the legal title passed, and the debtor had only an equitable right to avoid the sale, and it was held, that no title passed by the levy of an attachment against him upon the land and a sale thereunder.</p> <p>9. Chancery—removing cloud on title. Where the question of the validity of opposing claims of title to land is presented by a hill in chancery and a cross-bill, it is not improper, where the court has jurisdiction, to settle the title; and where the defendant shows a connected chain of title from the United States to himself, unless the complainant shows some better title in some way, the defendant will he entitled to a decree finding title in him.</p>

William W. Farwell, Judge, presiding. This was a bill in equity, by the appellant against the appellee, filed in the Superior Court of Cook county.

<p>Appeal from the Circuit Court of Peoria county; the Hon. J. W. Cochean, Judge, presiding.</p>

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

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

<p>1. Taxation—of property in hands of agents. Grain in a mill or warehouse, in the possession of an agent, and controlled by him, on the first day of May, and which was bought by him for oilier parties for a commission paid by them, is properly assessed against him, and he is liable for the taxes thereon for that year, and has a lien on the grain until indemnified against the payment of the tax, or, if he has paid it, until he is reimbursed.</p> <p>2. Same—property in transitu. Property going or being taken from one county in the State to another county, is in transitu, within the meaning of the law, and not liable to taxation in the county or counties through which it. passes, and when it reaches the residence of the owner, it becomes taxable there, if not assessed at the place of its departure; but grain purchased by one as agent, and stored in his warehouse subject to the order of the owner, can not be said to be in transitu so as to exempt the agent from taxation thereon.</p> <p>3. Same—who is a consignee. Nor can the agent who so purchased and holds grain for another be regarded as a consignee of the grain, within the meaning of the Revenue Act of 1872, which provides that consignees shall not be required to list for taxation property in their hands.</p> <p>4. Equity pleading—what a demurrer admits. A demurrer to a bill in chancery admits only such facts as arc positively charged, and when the averment is, that complainant is informed and believes that certain things are true, the demurrer admits the fact that complainant is so informed and does so believe, but not that such information is true.</p>

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

<p>f Quo wabbanto — leave to file information not granted of conree. Leave to file an information is not granted of course upon a petition, bat depends upon the sound discretion of the court and the circumstances of the case.</p> <p>2. Under the present statute a court or judge may grant leave to file am information, in the nature of a quo warranto, upon a petition filed, if satisfied that there is probable ground for the proceeding, without any rule oul the defendants; hut the court or judge may, if deemed proper, enter a ru]q¡ on the defendants to show cause why such information should not he filed1..</p> <p>3. Same—by whom application may be made. The fact that the relator-took part -in an election of trustees of a church, is a fatsix objection to an, application, on his part, for leave to file an information in the nature of a quo warranto, charging them with unlawfully acting as such trustees.</p>

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

<p>Records—destruction of does not affect notice to subsequent purchaser. When a parly places his deed or mortgage upon record he has complied with the law, and, though the records may he destroyed, the fact of recording is notice which is binding upon subsequent purchasers.</p>

<p>1. Cobpokations —power of foreign, to hold real estate. A foreign corporation can not purchase and hold real estate in this State beyond what is necessary for the transaction of its business or the collection of its debts, either for its own benefit or in trust for others.</p> <p>2. A corporation created by the laws of New York, with power to act as trustee in carrying out the provisions of a will devising real estate,' was, by the courts of that State, appointed such trustee, under which the corpora. tion took the charge and management of all the real estate devised, including real estate in Illinois: Held, on a bill filed in Illinois by such corporation to be appointed trustee to carry out the provisions of the will, that it could not hold real estate in trust in this State, and that the bill was properly dismissed.</p>

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

<p>1. Arrest or judgment—motion on default. A motion in arrest of judgment on default comes before the court exactly as if it were on demurrer. The default admits nothing but what is properly alleged.</p> <p>2. Pleading—lohen an averment that land belonged to and was in possession of plaintiff, sufficient averment of title. In an action of debt, upon an appraisement made by commissioners appointed to determine and appraise to the owners the value of real estate taken for a public street, an averment in the declaration that there was appraised and allowed to the plaintiff a certain sum, “ as damages for the taking and appropriating of land belonging to and in possession of the plaintiff,” is a sufficient averment of title to the real estate to support a judgment by default.</p>

Geobgb W. Pleasants, Judge, presiding. This was a bill to redeem, the case made by it being, in substance, as follows: That appellant, Magnusson, being the owner of 172 acres of land in Henry county, subject to a trust deed for $3000 before made by him to one Price, as trustee, executed to one Williams, as trustee for Warren M. Baker, a trust deed on the same land to secure the payment of $664; that Baker assigned the same to one Martin W. Cay; that, for default of payment…

<p>1. Evidence—copy of instrument. A letter-press copy of a writing is not an original. It in nowise differs from any other accurate copy than in the mode in which it is made, and can be used in the place of the original in no case where a proved copy made in another manner would not he equally admissible.</p> <p>2. Same—under Burnt Record Act. A copy of an abstract is not admissible in evidence under the Burnt Record Act, although it is a letter-press or facsimile copy, and such a case is made as would make the original competent evidence, if produced.</p> <p>3. Witness—competency of interested witness against heirs. Grantors with covenants of warranty are not competent witnesses to prove their ownership and conveyance of the property described in lost deeds, under the Burnt Record Act, as against a party who defends as an heir at law of a deceased person.</p>

<p>1. Practice—time to object to ra/riance. It is too late to raise the objection, for the first time, in the Supreme Court, that evidence offered in the court helow was not properly admitted under the averments in the declaration.</p> <p>2. Insurance—parol contract of, binding. Where there is a contract of insurance, fairly entered into, upon a good consideration, between parties competent to contract, it is binding, although there may be no written policy executed.</p> <p>3. Same—agents exceeding authority. The fact that an insurance agent has instructions from his principal to take only a limited amount of insurance in a specified place, can not affect the rights of a party insured, unless he had notice of such fact.</p> <p>4. Same—loss in another building. Where goods are insured in one building, and are destroyed while in another building, it seems there can be no recovery for the loss.</p> <p>5. Evidence—custom of other insmanee companies. In an action against an insurance company, to recover for the loss of goods while in a warehouse, testimony in regard to the custom of other insurance companies, in writing policies on goods in the warehouse, is not admissible.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. John Burns, Judge, presiding.</p>

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

<p>1. Practice—setting aside a default, discretionary with the court. The matter of setting aside a default is within the sound discretion of the court, and where it does not appear there has been an abuse of that discretion, the judgment of the court will not be disturbed.</p> <p>2. Where affidavits filed by the respective parties, on a motion to reinstate a cause dismissed for want of prosecution, are flatly contradictory, the action of the court in giving credence to those on one side, instead of the other, can not be held to be error.</p>

<p>1. Notice— possession is notice of all claims of title, equitable and legal. Possession of land by a person, and a claim of right, is sufficient to charge all persons with notice of his right, whether legal or equitable.</p> <p>2. Mistake in description of land in deed—when corrected. Where the purchaser of land goes into possession and exercises acts of ownership over it for a number of years, such possession is notice to one afterwards obtaining a judgment against his grantor, of his equitable title, although by mistake in his deed another piece of land was described instead of that purchased, and a court of equity will enjoin such judgment creditor from selling the land on execution, and will correct the mistake in the deed.</p>

<p>1. Appeal—-from justice of peace. The circuit court has no power to require an additional appeal bond, or to dismiss an appeal, before the term to which the appeal is taken.</p> <p>2. Same—can not he dismissed out of term. Where a term of the circuit court commences on the 18tli day of the month, and an appeal is taken from the judgment of a justice of the peace on the 19th of the same month, the circuit court has no power, at that term, to dismiss the appeal.</p> <p>3. Nor will the filing of a counter affidavit, charging perjury m the surety’s affidavit of solvency on the giving of a new appeal bond, confer jurisdiction upon the circuit court, where the court did not otherwise have jurisdiction.</p>

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

<p>Appeal from the Circuit Court of Livingston county; the Hon. Nathaniel J. Pillsbhbt, Judge, presiding.</p>

<p>1. Chanceby jurisdiction—specific performance. Where the maker of a promissory note obtains from the holder its possession, under promise to return the same or execute a new one of the same tenor and effect, for the same amount, and destroys the same, and refuses to give a new one, a court of equity will have jurisdiction to compel him to specifically execute his agreement, notwithstanding there may be a remedy at law.</p> <p>2. Parties in chancery—joinder of husband in suit for wife’s benefit. Where a husband holding a promissory note executed by another gives the same to his wife, on separation, for her separate use and maintenance, and it is obtained from her by the maker upon his agreement to give her a like note for the same amount, and the husband and wife afterwards come together, on bill by the wife to compel a specific execution of the contract by the maker of the note, the husband is a proper party complainant witli the wife in order to bar himself from ever after asserting any claim to the new note.</p>

<p>1. Consideration—burden of showing, as to note. If the consideration as to part of a promissory note is sought to be impeached, the burden of proof to show the real consideration will rest upon the defendant setting up the defense.</p> <p>2. Same—proof must show what part is illegal. If parties, when sued upon a promissory note, allege that a portion of its consideration was illegal, being for intoxicating liquors sold by the drink to one of the makers, contrary to the statute, it is incumbent on them to show by proof what part of the consideration was illegal.</p> <p>3. Joinder op parties—administrator with others. In a suit upon ,a promissory note, against several makers, where the principal dies and his death is suggested, it is improper to make his administrator a co-defendant with the others.</p> <p>4. Evidence—competent as to pan't of the pa/rties, but not as to othen's. If the testimony of a party plaintiff is competent as to one defendant, hut not as to another, who defends in a representative capacity, the court can not exclude the same, but its effect in such case may be limited and controlled by instructions from the court.</p>

<p>1. Corporation—what necessary to m'eate, under a general law. Where 1 a general law provides that persons who, by articles of agreement in writing, shall associate according- to the terms of the law, and comply with the pro- , visions of the law, shall become a body politic and corporate, such persons do not, by merely executing articles of agreement to that effect, and without complying with the other provisions of the law, become a corporation, and escape liability as partners, for debts created by them in the prosecution of the business of the association.</p> <p>2. Where a general law provides that persons may become a body politic and corporate upon complying with the provisions of the law, one of which is, that, before any such corporation shall commence business, its articles of association shall be published a certain way, and a certificate of the purposes of the organization shall be filed in certain public offices, the performance of these acts is a necessary prerequisite to the existence of such corporation.</p> <p>3. Same—difference between those formed under general law and those created by special charter. There is a manifest difference as to the effect of irregularities and omissions of the requirements of the law in the organization of corporations, between a case where a corporation is created by special charter and there have been acts of user, and a case where individuals seek to form themselves into a corporation under the provisions of the general law.</p> <p>In the latter case, it is only in pursuance of the provisions of the statute for such purpose that corporate existence can be acquired.</p> <p>4 A stricter measure of compliance with the statutory requirements in the formation of a corporation, is required in a case where individuals seek to avoid personal liability on the ground of having become a corporation, than where, in a case between a corporation and a stockholder or other-individual; the plea of nul tiel corporation is interposed.</p>

<p>1. Mandamus—will not lie to compel the removal of obstructions in a public highway. When an indictment will lie for obstructing a public highway, and will afford a remedy convenient, beneficial and effectual in its nature, as a ma,ndmnus, to compel the opening of the highway, a mandamus will not he awarded.</p> <p>2. When it appears that a highway has heen obstructed, after liavingbeen opened and traveled by the public, the proper remedy is by a prosecution, under the statute, against the party causing- the obstruction, and not by mandamus 1o compel the commissioners of highways to remove the obstructions and open the road.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. John Burns, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Peoria county; the Hon. J. W. Cochran, Judge, presiding.</p>

<p>1. Action—when it does not survive. Where a party made an excavation in a street of a city without permission, into which a person fell and thereby received an injury, and the injured person recovered damages in a suit against the city, the latter giving the party making the excavation notice of the pendency of the suit before trial, and such party died before the statute of 1872, providing that certain causes of action should survive, went into force, it was held, in a suit by the city against the estate of such party, that the right of action did not survive, it being founded in tort.</p> <p>2. Judgment—effect of notice to party liable over. WTiere the author of a nuisance in a street is liable over to municipal authorities for any damages the corporation may be compelled to pay for his wrongful act, notice by the corporation to him, of a suit against it growing out of the nuisance, will not make him a party to the judgment, or estop him from questioning his liability when sued by the corporation.</p> <p>3. Municipal corporation—remedy over against author of nuisance. If a city, as between itself and the author of a nuisance in a street, is also a wrong-doer, it can have no remedy over against the author of the nuisance for damages it may be compelled to pay to a third person, in consequence of the wrongful act.</p>

<p>1. Contract—when executory and under seal, can not be modified by parol. -A- sealed executory contract can not be modified or in part changed by parol agreement, so as to authorize either party to sue upon it as thus modified.</p> <p>2. Where a lease under seal fixes a certain amount of rent to be paid each month, a parol agreement changing the amount of rent to be paid for the uncxpired term, and leaving the lease in other respects unchanged and in force, is not binding upon the lessor, and he will, notwithstanding such parol agreement, be entitled to recover the amount of rent called for by the lease.</p>

<p>1. Witness—wife of deceased pwrty as against his heirs. On bill by the heirs at law of a deceased person, against his widow, for the partition of land, and cross-bill by such widow to have a resulting trust declared in her favor, she is not a competent witness to establish the trust as against the heirs.</p> <p>2. If the suit had been between the husband and the wife, in respect to her separate property, then it seems, under the fifth section of the statute authorizing parties to testify, she might be a competent witness, as well as the husband, but after his death she is rendered incompetent by the statute.</p> <p>3. Same—wife of deceased person. On cross-bill by the widow of a deceased person, to have a resulting trust declared in her favor, as to certain land purchased by the deceased husband during the marriage, if one of the heirs, an adverse party, testifies as to what property the widow brought with her upon her marriage, it seems the widow may testify as to such matter, but not generally to show that the land was bought with her means.</p>

Nathaniel J. Pillsbuby, Judge, presiding. This was a suit brought by N. C. Thompson & Co. against Mansfield Elliott, before a justice of the peace, upon a promissory note for $70, executed by Elliott, dated Clifton, July 24, I860, payable to the order of Thompson & Co., at the office of G-. E. Boucher & Co., Clifton, on or before Nov. 1,1865.

<p>Appeal from the Circuit Court of Kankakee county; the Hon. 35T. J. Pillsbtfry, Judge, presiding.</p>

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

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

<p>1. Master and servant—when servant can recover for negligence of master. Where a servant is injured, not by anything occurring in his employment or that is incident thereto, but by a temporary peril to which he and other servants are exposed by the negligent positive act of the employer, without, any negligence on the servant’s part, he is entitled to recover damages from the employer on account of such injury.</p> <p>2. Where a temporary peril is created by the positive'act of an employer, it is not necessary that a servant, in order -to maintain an action for injuries occasioned to him thereby, should have given notice of such temporary peril and demanded its removal.</p> <p>8. Whilst there is no element in the contract of service that the servant shall be protected absolutely from danger, nevertheless the master may not with impunity expose the servant to danger not contemplated in the original employment, or connected therewith.</p> <p>4. Comparative negligence—as between master and servant. Where a servant is employed in a business, and at a place not at all dangerous, and the employer creates a peril at the place where the servant is at work, and the servant, in the performance of his regular duty, has occasion to pass where the peril is, and is guilty of negligence in doing so, and is injured, liis negligence is slight, as compared with the negligence of the employer, wrhich is gross, and the servant will he entitled to recover.</p>

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

<p>1. Practice—restoring lost records. If a petition under the act to provide for restoring lost records is amended in a material respect, the amendment should be sworn to; but if the amendment is only formal, and not as to material matters, it is not necessary that it should be sworn to.</p> <p>3. The statute providing for restoring lost records does not require the evidence to be preserved, and where the decree is in accordance with the requirement of the statute, and the evidence is not preserved in the record, it will not be presumed that the court rendered the decree on insufficient evidence.</p>

<p>Writ oe Error to the Circuit Court of Peoria county; the Hon. H. B. Hopkins, Judge, presiding.</p>

'Appeal from the Circuit Court of Winnebago county; the Hon. William Brows, Judge, presiding.

<p>1. Grand jury—legality of its organization. The proper practice is, and the statute requires, that twenty-three persons shall be summoned for a grand jury, but as sixteen persons may constitute the grand jury, an indictment found by one composed of nineteen persons may be a legal finding after verdict, there being no objection made by motion to quash, or challenge to the array.</p> <p>3. Change of venue—when discretionary. Where the law gives the court, trying a criminal case, a large discretion to grant or deny a petition for a change of venue, if its refusal to grant one is urged as error, it must be shown that the court abused its discretion.</p> <p>3. Evidence—of circumstances showing guilt. The fact that one accused of crime gave “straw bail,” and forfeited his recognizance by voluntary' absence, taken in connection with the further fact that such party passed under various aliases, may be considered by the jury, on the trial, as evidence bearing on the question of 1ns gnilt.</p> <p>4. Same—acts and declarations of one in, concert with prisoner. Where two or more persons are shown to be in concert for a had purpose, the acts and declarations of one in the accomplishment of the purpose, are the acts and declarations of all, and evidence against them.</p> <p>5. Where the complicity of a party on trial for larceny and receiving stolen goods is shown with another in the affair, then whatever that other said or did in regard to the goods, is proper evidence against the prisoner.</p>

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

<p>1. Abbest—rights of officers called on to assist in re-arrest. Police officers called upon to assist in the arrest of a party by another officer, who do so upon the information and under the honest belief that such party had been arrested for the breach of an ordinance and had escaped, will not be held liable in trespass for false imprisonment.</p> <p>2. But if a police officer gets into a personal difficulty with a private person, himself being the aggressor, and other police officers afterwards arrive and assist in the arrest and imprisonment of such person, not acting in the honest discharge of official duly, but rather in the espousal of the first named officer’s private quarrel, and in carrying out his purpose of revenge and the infliction of injury, they will all be liable in trespass for the arrest.</p>

<p>1. Jurisdiction—can not be questioned in collateral proceeding. When the record shows, or the court finds, the jurisdictional facts, the record can not be contradicted or questioned in a collateral proceeding.</p> <p>2. Where a decree recited that the court found that the county court had appointed a conservator for the defendant, and that the latter had been ascertained by a jury, according to the form of the statute, to be an insane person, it was held, that he could not be allowed to contradict llie finding of the decree, so far as it related to the appointment of a conservator.</p> <p>3. Insanity—does not necessarily avoid business transaction. It is well understood, that in many forms of insanity the capacity to transact business is entirely unaffected, and in such cases the fact of insanity can not be set up to avoid business transactions.</p> <p>4. Where an insane person received llie benefit of all the purchase money received from a sale made by his conservator, and it appeared that at llie time of receiving it he had sufficient capacity to transact business intelligently, and that he comprehended what had been done, it was held, that he was estopped from afterwards denying the validity of such sale.</p>

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

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

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore D. Mubpht, Judge, presiding.</p>

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

<p>1. Officers—of what courts take judicial notice. A court will take judicial notice of the civil officers in the county in which it holds its sittings.</p> <p>2. Notary public—when seal necessm'y to authenticate his acts. It was not necessary, on the 22d of April, 1873, for notaries public, appointed under the act of 1807, to authenticate their jurats to he used within the county for which they were notaries, by their official seals.</p> <p>3. Mechanic’s lien—when defaults may he entered. The statute requires that, in mechanic’s lieu cases, the answer shall he filed on or before the day on which the cause shall be set for trial on the docket, and if the answer is not filed at that time, the defendant may properly he defaulted.</p> <p>4. Practice—setting aside default, in the discretion of the court. The setting aside of a default is discretionary with the court; and where the court refused to set aside a default upon the ground that defendant had engaged an attorney to attend to the suit, and the attorney neglected to do so, it was held, not such an abuse of discretion as to require the interference of this court.</p>

<p>Writ of Error to the Circuit Court of Will county; the Hon. Josiah MoRoberts, Judge, presiding.</p>

<p>1. Composition agreement—not binding if obtained by fraud or deception. In effecting a composition agreement, the law demands the utmost good faith on the part of the debtor. He can not be permitted, by pretend, ing to be insolvent, to. induce a creditor to accept one-half of a debt in lieu of the whole, when, in fact, his property is ample to pay his creditors in full.</p> <p>2. Where a composition agreement is made, the debtor professes to deal with all the creditors who enter into it, on terms of perfect equality, and if, at the same time, he has a secret agreement with one of the creditors, which gives him an undue advantage, this is a fraud upon the other creditors, which vitiates the composition agreement.</p> <p>3. In such case, the creditors, although they may have received the amount named in the composition agreement, may sue for and recover the full amount of their original indebtedness, less the amount received under the composition agreement. It is not essential to the right of action that the creditor should first rescind the composition agreement and return the money he has received under it.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding.</p>

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

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

<p>Contract—construction. By the terms of a contract between plaintiff and defendant, plaintiff, in consideration of a certain sum for the year 1873, and of another sum for thej'ear 1874, to he paid in semi-monthly or monthly installments, agreed to devote his whole time and attention solely to the business of the defendant. Under the contract, plaintiff entered the service of defendant, and continued in it up to June, 1873, when defendant suspended business: Meld, in a suit by plaintiff for damages, on account of being thrown out of employment, that there was no undertaking on the part of defendant to continue plaintiff in his employment for any definite length of time, and that plaintiff could not recover.</p>

<p>1. Bill of exceptions—when necessary. The petition for a change of venue, and the affidavits in support thereof, are not a part of the record, and can only be made so by bill of exceptions, and unless thus preserved they can not be considered by this court,- although the clerk may have copied them into the transcript.</p> <p>2. Same—what it should contain. Where the hill of exceptions does not purport to contain the evidence offered by the plaintiff, but only contains certain questions asked by defendant’s counsel, objections thereto, and the ruling of the court sustaining such objections, and this court can not see, front the record, that the excluded evidence was competent or pertinent to the issue, the judgment will not be disturbed.</p> <p>3. Criminal law—when former conviction can not he pleaded. Where a defendant has been indicted, and found guilty by the verdict of a jury, if the judgment is arrested on his motion he has not been legally in jeopardy, and can not plead the conviction in bar to a subsequent indictment.</p>

<p>1. Chancery—distinction betioeen bill of interpleader and bill in nature of interpleader\ In a bill, in the nature of a bill of interpleader, the complainant seeks, not only to have the conflicting claims of the defendants against himself, which he desires to discharge to the proper parties, adjudicated, hut also some affirmative relief, whilst in a hill of interpleader strictly, he only asks that he may be at liberty to pay money or deliver property to the party to whom it of right belongs, and that he may thereafter he protected against the claim of both.</p> <p>2. Same—decree should not go beyond the allegations and prayer of the bill. A decree which is entirely outside of the allegations and prayer of the bill is erroneous.</p> <p>3. A bill, in the nature of a bill of interpleader, was filed by one who bad sold land with covenants of warranty, against the executor of his grantor, to reach the balance of the purchase money paid by him to such executor, on the ground that the testator, before conveying to the complainant, had conveyed a portion of the same land to one of the defendants in the bill, who was threatening to bring an action of ejectment against the grantee of the complainant, who was also made a defendant to the bill. The hill only prayed to have the money in the hands 'of the executor held by him until the question of title to the land, as between the complainant’s grantee and the other claimant of the land, was settled, and that the same be applied, if necessary, to satisfy the covenants of warranty in the deed of the testator to the complainant: Held, that, on such a hill, it was error to render a decree that the party threatening the ejectment suit should convey the land claimed hy him to the grantee of the complainant.</p> <p>4. In such a case, the only inquiry is, was the title of the party threatening the ejectment suit superior to that of the complainant’s grantee, and if so, shall the purchase money paid for the land to the executor of the complainant’s grantor he applied to make good the testator’s covenants of warranty to the complainant, and his covenants to his grantee.</p> <p>5. If the grantee of complainant claimed that he was entitled to a decree for the conveyance of the land to him, he should, after answering the bill, have filed a cross-hill, setting up his claim, and prayed for such a decree.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. ¥m. W. Farwell, Judge, presiding.</p>

<p>1. Acknowledgment—officer's certificate of, can not be impeached by testimony of party. It is a rule that the acknowledgment of a deed can not be impeached for anything but fraud, and in such case the evidence must be clear and convincing beyond a reasonable doubt; and whilst the making of a false certificate is a fraud upon the party against whom it is perpetrated, yet the mere evidence of the party purporting to have made the acknowledgment can not overcome the officer’s certificate, nor will such evidence, slightly corroborated, overcome it.</p> <p>2. Stciivice oe process—-finding by court can not be impeached by evidence of party served. Where there is a finding by the court that a defendant had been duly served with process, such finding can not be impeached by the evidence of such defendant.</p> <p>3. Where an indorsement of acknowledgment of service on a writ has the names of a husband and wife signed thereto, in the husband’s handwriting, the testimony of the wife that she did not sign it will not be sufficient to overcome a judgment rendered upon it, as the court will presume that the husband -was authorized to sign the wife’s name, rather than that he committed forgery.</p>

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

Lambert Tree, Judge, presiding. This was an action on the case, hy the appellee against the appellant, as a common carrier, to recover the value of baggage and merchandise consumed by fire while in the defendant’s baggage car. The defendant filed the general issue, and a trial was had, resulting in a verdict and judgment in favor of the plaintiff for §30,789.78.

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.</p> <p>This was an action brought by Chester M. Smith, appellee, against the Pullman Palace Car Company, appellant, for the recovery of §1180, claimed to have been lost from the Pullman sleeping car Missouri, on the night of December 17, 1872, under the following circumstances: On the afternoon of Dec. 17, 1872, appellee started from his home in Oconomowoc, Wis., for a point in Missouri southwest of St. Louis, for the purpose of buying horses and mules. He purchased a ticket through to St. Louis, via the Milwaukee and St. Paul railway, to Chicago, thence to St. Louis over the Alton and St. Louis railway, for which he paid $15.25. He arrived at Chicago about eight o’clock in the evening of the same day, went to the office of appellant and bought a sleeping-car ticket from Chicago to East St. Louis, for which he paid the sum of §2, and took a berth in the Pullman car, which left Chicago for St. Louis at nine o’clock P. M. His money, $1180, was in an inside vest pocket, and when he retired /for the night the vest was placed under his pillow; in the morning he found the vest as he left it, but the money was gone.</p> <p>On behalf of the Pullman Palace Car Company, it appeared that they have no place to store valuables, and that their agents are instructed to receive no parcels, valuables, or money, and receive no pay for baggage or valuables of any kind,°but only to take pay for the occupancy of the berths; and that they do not receive packages, valuables or money from passengers on the car to take charge of. • Hpon the back of their checks, which are given when the tickets are taken up, is printed the following: “ Wearing apparel or baggage, placed in the car, will be entirely at the owner’s risk.” They receive into their cars only those who have a first-class passage ticket, or a proper pass from the railroad company; passengers secure their berths for a particular trip and for a particular berth and car, paying in advance. The company has no interest in the fare paid by the passenger to the railroad company for transportation, and the railroad company has no interest in the pirices paid the Pullman Palace Oar Company for berths; the latter receive pay for sleeping accommodations, none whatever for transportation.</p> <p>The court below gave the following instruction to the jury:</p> <p>“ If the jury believe, from the evidence, that the plaintiff, while sleeping in the defendant’s car on the trip from Chicago to Alton, was robbed of a sum of money which he there had with him, then the verdict should be in his favor for the sum of which he was so robbed, unless the same was greater than would be an ordinary and reasonable sum for a traveler to carry with him for traveling expenses, only, upon such a journey, as the plaintiff was then upon his return home; in which case he should only recover such ordinary and reasonable sum, to which the jury may, if they think proper, add interest at six per cent for fourteen months.”</p> <p>The jury returned a verdict for the plaintiff for $277, upon which judgment was rendered, to reverse which the Pullman Palace Car Company took this appeal.</p>

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

<p>Appeal from, the Circuit Court of Iroquois county; the Hon. N. J. Pillsbuby, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Will county; the Hon. Josiah M'cBoberts, Judge, presiding.</p>

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

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

<p>1. Partnership—authority of pm'tner to execute notes in firm name. The implied authority of one partner to make notes in the firm name, and so bind the firm, extends only to transactions in reference to the business of the partnership, and on partnership account.</p> <p>3. Same—a new pm'tner, coming into an existing firm, will not be liable in respect to debts contracted by the firm previously to his entering it, unless he expressly assumes them.</p> <p>3. Same—liable on partnership paper in hands of bona fide indorsee, for value, though executed through fraud of one partner. If the holder of a partnership negotiable security, issued through the fraud of one of the partners, shows himself to be a bona, fide indorsee for value, without notice of the fraud, the paper in such hands is binding on the firm.</p> <p>4. In a suit on partnership paper, where the defendants show that the paper was executed by a partner in fraud of the firm, it throws the burden of proof on the plaintiff, to show that he came by the note fairly and without knowledge of the fraud, and that lie paid a consideration for it.</p> <p>5. Instructions—underscoring portions of, not approved. The underscoring of portions of an instruction is not a practice to he approved of, as it may mislead the jury to give undue weight to such portions, to the undervaluing of other parts of the instruction.</p>

Joseph E. Gary, Judge, presiding. This was a suit originally brought before a justice of the peace, by Stevens against Park. The defendant claimed a set-off upon a bank check for $200, drawn by the plaintiff in favor of A. L. Park, upon which there was $100 paid. The court below gave judgment in favor of the defendant for $12.72 and costs, and the plaintiff appealed.

<p>1. Trespass—gaining admission into house by fraud. Where, by a preconcerted plan, one of several persons gains admission into a dwelling house in a peaceable manner, by fraud and falsehood and for a secret purpose unlawful in itself, and then unbolts the door and opens the same to admit his co-defendants, contrary to the will and command of the occupant’s wife, he and those who thus obtain an entrance into the house all become trespassers.</p> <p>2. Courts can not sanction an act accomplished by fraudulent means, and an act that may be lawful in itself can not be done by fraudulent or unlawful means.</p> <p>3. Licekse—w?ien revocable. A written license, like an unexecuted parol license, is revocable at the will of the party giving it.</p> <p>4. Contract—must be construed by itself alone. Where parties reduce their contract to writing, they must be governed by its provisions, and their intention must be gathered from the terms of the contract.</p>

<p>Appeal from the Circuit Court of McHenry county; the Hon. Theodore D. Mdephy, Judge, presiding.</p> <p>This was an action on the case, hy William Coss against the Chicago and 27orthwestern Railway Company. The facts of this case appear from the plaintiff’s declaration, the substance of which is given in the opinion of the court. The defendant was defaulted in the court below for want of a plea. The jury assessed the plaintiff’s damages at $3700. The plaintiff remitted $1500. The defendant, after the assessment of damages, moved in arrest of judgment, which was denied, and judgment rendered against the defendant for $2200, and the defendant appealed.</p>

<p>1. Statute construed—against Texas cattle, etc. The ninth section of the act of 1869, relating to Texas and Cherokee cattle, qualifies the first section as to what cattle are prohibited from being brought into the State, but does not apply to the provisions of the second section.</p> <p>2. Texas cattle. By the act of 1869, Texas and Cherokee cattle may be brought into this State at any time, if first acclimated or wintered in either of the States of Kansas, Missouri, Nebraska or Wisconsin; but it is made a penal offense to own such cattle, unless they shall have been brought into this State between October 1 and March 1 of the following year.</p> <p>3. Construction—rule as to statutes. Where the object of the legislature is plain, and the words of the act unequivocal, such a construction should be adopted as best to effectuate the legislative will; but a construction not supported by the words used should not be adopted, even though the consequences may lead to defeat the object of the act.</p> <p>4 Declaration—in suit for bringing Texas cattle into State. In an action against a defendant bringing Texas and Cherokee cattle into this State, by one who purchased the same, to recover damages sustained by him for a fatal disease communicated to his native cattle, etc., the declaration will be fatally defective if it fails to aver that the cattle were brought into the State between October 1 and the 1st of the following March, as, without this, his purchase and ownership is illegal, and, being a violation of the law, he can maintain no action for an injury growing out of his wrongful act.</p>

<p>1. Factors—rights and, duty as to insurance. Factors having the goods of their principals in their possession may insure them, but they are not-bound to do so, unless they have received orders to insure, or promise to insure, or the usage of trade or the habit of dealing between them and tlieir principal raises an obligation to insure.</p> <p>3. If a factor, who is in any case required to insure the goods of his principal, fails to do so, lie becomes the insurer himself, and liable as such in the event of loss, and is entitled to credit for the premium which should have been paid.</p>

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.</p> <p>This was a hill filed by Caroline Lenfers and Henry Lenfers, her husband, against Anna 0. Henke and John A. Burrichter, her guardian, for the assignment of dower in certain mineral lands. The bill showed that the complainant Caroline Lenfers was the owner in fee of one-third part, and the defendant Anna C. Henke of the other two-thirds, and that the mother of said Anna C., in her lifetime, had agreed with the complainant that the mineral rents and profits of said lands should be equally divided between them, etc. The defendants answered, denying the right to dower, and the court, on the hearing, held the agreement null and void. The other facts appear in the opinion.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by the Plume and Atwood Manufacturing Company against E. F. Angel, It. Waterman and W. P. Davis, upon an account.

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

<p>1. Limitation—twenty years, of land. Under the statute, it is not essential that a party, who takes possession of land and holds adversely to the owner, should enter under a deed or muniment of title to cause the limitation of twenty years to run in his favor. It is sufficient for a party to take possession under a claim of ownership, and hold the time required by the statute.</p> <p>2. It is the possession that bars the owner of a recovery. If the owner permits the occupation of his land for a period of twenty years, by a party asserting ownership, he will be barred by the statute from making an entry, or bringing an action to regain possession. No deed is required to the inception, the continuance or the completion of the bar.</p> <p>8. Same—deed not necessary to transfer possession. A deed is not necessary to transfer the possession of land held adversely to the owner, and where one person succeeds to the possession of another, and it becomes necessary to connect the possession of the two to make the period required to bar the owner, the transfer of possession maybe shown by parol evidence.</p> <p>4. Paiiol evidence-—to connect possession of land. Where land is held adversely by different occupants, the identity and continuity of their possession, in order to show a limitation, may he shown by parol evidence.</p> <p>5. Measure of damages—covenant on failure of title. In covenant upon a warranty deed, where the title has failed to the whole tract, the grantee, or his assignee, will he entitled to recover the original consideration paid for the land, and six per cent interest. Where the title fails to a part of the tract sold for a gross sum, the measure of damages for a breach of covenant will he the relative value of the land to which the title has failed, as compared to that which is valid, in proportion to the. price paid for the whole. But in either case, where no eviction is had, and the paramount title is purchased for less than the price originally paid, the recovery will he limited to the amount paid, and six per cent interest.</p>

<p>Dower—attaches to acm'etions. The widow of a riparian owner is entitled to dower in the accretions to the land of which her husband was seized during coverture, whether they accrued whilst he owned the land or after he parted with the title.</p>

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

<p>1. Bill or exceptions—when necessary. Motions to strike affidavit of claim from the files, or to strike plea from files for want of affidavit of merits, are not a part of the record, and the rulings of the court thereon will not be reviewed in the Supreme Court, unless exceptions are taken to such rulings and preserved by bill of exceptions.</p> <p>2. Error—who may assign. An appellant can not assign error on behalf of one with whom he was impleaded in the court below, but who has not appealed, so as to reverse a judgment which is regular as to such appellant.</p>

<p>1. Boundaries-—courses and, distances controlled by fixed objects. Where boundaries are given with reference to fixed and known objects, they control courses and distances.</p> <p>2. Evidence—as to location of premises referred to as a boundary. Where premises occupied by certain persons are referred to in a lease as a boundary of the premises leased, it is proper to admit evidence showing the location of premises so referred to, for the purpose of explaining the circumstances under which the lease was made, or of applying it to its proper subject matter, or of raising and explaining a latent ambiguity.</p> <p>3. Construction—duty of court and, not of jury. An instruction which tells the jury that in locating lands described in a lease, they should consider all the words used in the lease having reference to the description or location of the land, and that words denoting merely bearings or directions must yield to words referring to fixed objects or monuments, is objectionable, in not construing the lease and informing the jury the precise words of description which control, instead of allowing them to determine the fact for themselves.</p> <p>4. License—to work mines can only be granted by deed. Every license that authorizes such acts as are not only required to he performed upon (he land, hut, which gives some usufruct of the land itself, is properly—a grant of an incorporeal hereditament, and must he created and transferred by deed.</p> <p>5. Same—by pcm-ol good until revoked—not transferable. A parol license to mine on land is a protection against an action of trespass for acts done under it before revocation, but it is revocable at the will of the licensor, and can not be transferred to another.</p> <p>6. A subsequent conveyance or leasing of the premises amounts to a revocation of license, whether by deed or parol, unless such license is coupled with an interest, and executed.</p> <p>7. Former decision — limited or overruled. The case of Russell v. Hubbard, 59 Ill. 335, must either be limited to cases of party walls, or he considered overruled.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Samuel M. Moobe, Judge, presiding.</p>

<p>X. Garnishment—acceptance of order by debtor- before service. The acceptance by a debtor of an order drawn upon him by his creditor, in good faith, before the service of a garnishee process upon him, makes him no longer the debtor of tl.ie drawer, and hence not liable to be garnisheed by his creditors.</p> <p>3. Acceptance—whether absolute or conditional. An acceptance was in these words: “ accepted for the full amount, provided there is this amount in my hands:” Held, this was an absolute undertaking to pa}' the holder all the money the acceptor had of the drawer, not exceeding the amount of the order.</p> <p>3. Judgment—will be reversed where there is no evidence to sustain it. . Where the evidence is conflicting, this court is not disposed to reverse a judgment, hut where there is an entire want of evidence to sustain it, it will he reversed.</p>

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

<p>Appeal from the Superior Court of Cook county.</p> <p>This was a bill in chancery, filed in the Superior Court of Cook county, by the appellees, in which they allege that they were the owners of certain land, and that one John E. Gardner made a sub-division of certain other lands, and, through fraud or mistake, at the same time, as a part of such subdivision, sub-divided the land in dispute; that, afterwards, and before appellees knew of such sub-division, they went to the county collector’s office for the purpose of paying the taxes on their said land, and were informed that there was no land on the assessment books answering the description of appellees’ land; that, afterwards, they learned it had been assessed according to Gardner’s sub-division, and that a large portion of the lots, according to said sub-division, had been sold for taxes in pursuance of such assessment.</p> <p>The prayer of the bill was to annul the tax sale and enjoin the issuing of a deed.</p> <p>A demurrer to the bill was overruled and the relief asked for granted.</p>

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

<p>1. Trust deed—notes secured by, to be paid, according to priority of maturity. Where several promissory notes, maturing at different times, are secured by deed of trust, they are entitled to satisfaction out of the security according to the priority of their maturity.</p> <p>2. Practice—ialien objection that cause toas reinstated without notice is waived. Where a cause, which had been dismissed, was reinstated, and the parties appeared-at all subsequent proceedings, and followed the case to the Supreme Court, and made no objection that the mise was reinstated without notice until after the case was remanded from the Supieme Court, it was held, the right to raise that objection was waived. \</p> <p>3. Parol evidence—to impeach a record. Wii'U’ a a<'i ird, the existence of which is not disputed, is offered in evidence, .'¡l <v> 'ions relating to the time when it was in fact made, on what authority ...adu, and whether its recitals are true or not, must be settled by reference to it alone, and pa-ol f evidence is not admissible to impeach it.</p> <p>4. Lis pendens—not applicable to purchaser intervening dismissal and revival of, a suit. Where a suit at law is dismissed, or the plaintiff suffers a non-suit, or, if in chancery, the bill is dismissed for want of prosecution,’ or for any other cause not on the merits, although in all such cases a new action could be brought, it could not affect the purchaser during the pen-, dcncy of the first suit; and where a suit is dismissed and afterwards reinstated, the doctrine of lis pendens is not applicable to one who purchases)1 after the dismissal and before the revival of the suit.</p> <p>5. Notice—when client not chm'geable with notice of facts hnown to his attorney. A party is not chargeable with notice of facts within the knowledge of his attorney, of which the latter acquired knowledge while acting as the attorney of another person.</p>

<p>Practice. It is error to render judgment for a greater sum than that claimed in the declaration.</p>

<p>1. Bill of exceptions—when necessary. Where no objection to the ¡cisión of the court below in strikins: a plea, and notice of special matter rectness of such decision will not be inquired into in this court. decision of the court below in striking a plea, and notice of special matter of defense, from the flies, is preserved in the bill of exceptions, the cor-</p> <p>3. Promissory note—indorsements by owner. Where the plaintiffs are in possession of a note specially assigned to them, if their names are indorsed upon it, the presumption is that such indorsement is a mere memorandum, or, if they had negotiated it to others, they had taken it up, and such indorsement operates as a re-assignment to themselves.</p> <p>3. Practice—vacating judgment by consent. Although a court can not set aside its own judgment at a subsequent term of court, without consent, yet, with the consent of all the parties it may do so.</p> <p>4. Same—impeaching record by affidavit. After the adjournment of a term at which a judgment is rendered, its absolute verity can not he overcome, or even attacked, by affidavit.</p> <p>5. Same—when objections as to placing case on trial calendar are waived. Where a cause is submitted, by consent of parties, for trial by the court without a jury, such consent is a waiver of all objections as to placing the case upon the trial calendar.</p>

<p>Criminal law--judgments on several counts should he separate. Where a defendant is found guilty of selling spirituous liquors upon several counts in an indictment, judgment should he entered separately upon each count.</p>

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

<p>1. Possxssioic-of uminclosed Za~nd. A party need not have land inclosed before he can be said to be in its actual possession. Where he has color of title, possession may be shown by the constant and uninterrupted use through a series of years, and of timber land, by taking therefrom wood for fuel, fences and other purposes, or it may be shown by actual occupancy of a portion of a tract for which he may have a deed under which possession is held. In such cases, the deed may- be regarded as enlarging the possession to all the land it includes.</p> <p>2. SAarE-'witltout color of t-~tle. Where a person has neither title nor color of title to an uninolosed tract of land, the fact that he, during several years, cut firewood and made rails from the timber on it for the use of his farm, and authorized his tenant to do the same thing during his absence, does not necessarily show actual possession. Such isolated acts may as properly be referred to continuous acts of trespass, as indicating possession.</p> <p>3. DAMAGES-WJtetJteI' excessive. Where a party not in the possession of land entered upon the same deliberately, and tore down and removed a shanty erected thereon by another, with a view to wrest from him whatever possession he had, and thus settle a disputed claim by violence, it was Mid, that ~12~ damages in a suit for the trespass was not excessive.</p>

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

Johh A. Jamesoh, Judge, presiding. This was a petition for a divorce, hied by Helen M. Farnham as-ainst Helson K. Farnham. The material facts are O stated in the opinion.

<p>Practice—exceptions to denying motion for new trial must be preserved by bill of exceptions. Even if the evidence is not sufficient to sustain the verdict, this court will not reverse the judgment rendered thereon, unless it appears, from the bill of exceptions, that a motion for a new trial was made and overruled in the court below, and exceptions taken thereto at the</p>

Henry Booth, Judge, presiding. This was an action of trespass on the case, by Dora Knapp, a married woman, against the Union Steamboat Company and the Erie Railway Company, to recover for the loss of goods shipped. The material facts necessary to an understanding of the ease, are given in the opinion. The Union Steamboat Company brought the case to this court by appeal.

<p>1. Specific perfobmakoe—not decreed as of course. Applications to a court of equity to enforce a specific performance of a contract are addressed to the sound legal discretion of the court, and will not be decreed as a matter of course, merely because a legal contract is shown to exist.</p> <p>2. If a contract is vague and uncertain, or the evidence to establish it is insufficient, a specific performance will not be enforced.</p> <p>3. Where a contract for the sale of land rests in parol, it must clearly appear that a contract of sale has been made, its terms must be clearly proved, and it must appear that they had been relied on and performed by the party seeking the enforcement of the contract, in order to entitle him to a decree for specific performance.</p>

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

<p>Practice—arrest of judgment. An objection that a suit brought before a police magistrate was against a church instead of against the trustees of the church, can not be made available on a motion in arrest of judgment in the circuit court.</p>

<p>Practice—presumption in favor of judgment when no hill of exceptions appears in the record,. Where there is no bill of exceptions showing what evidence was heard before the court below, or that any exception was taken to the rulings of the court, the presumption is that the court had facts before it which authorized and justified the judgment rendered.</p>

George W. Pleasants, Judge, presiding. This was a bill in chancery, by Talbot Spicer against Allen Robinson, Ambrose McDowell and Anthony S. Burdick, to set aside certain conveyances as having been made to defraud the creditors of Robinson.

<p>Writ op Error to the Circuit Court of Marshall county; the Hon. John Burns, Judge, presiding.</p>

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

<p>Practice—instructions must be excepted to when given. No advantage can be taken in this court to the giving of an erroneous instruction in the court below, unless it appears exception was taken at the time.</p>

<p>Appeal from the Circuit Court of Cook comity; the Hon. Lambert Tree, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding.</p>

<p>Coepoeation—-when liable for aets of its officers and agents. If the officers and agents of a corporation contract with other persons, and in their negotiations so act as to induce such persons to believe they are acting for the corporation, and credit is given upon that belief, the corporation will be liable, although such officers and agents were not, in fact, acting for it in such negotiations.</p>

<p>1. Practice—issue must be made before trial, if demanded. Where the attention of the court is called to the fact that no replication has been filed to the answer of defendant, and defendant objects to proceeding in the cause until an issue is made, it is error for the court to disregard the objection and compel the trial to proceed.</p> <p>3. Mechanic’s lien—answer setting up claim of a like lien is in nature of a cross-bill. The answer of a sub-contractor, to a petition filed by another sub-contractor, for a mechanic’s lien, setting up a like claim, is in the nature of a cross-bill, and it is error to compel the owner of the property on which the lien is claimed to go to trial, without an opportunity to answer the same.</p> <p>3. Same—-fund out of which sub-contractor is to be paid. The money which may remain in the hands of the owner, and due to the original contractor, after all deductions are made to which the owner is entitled, is the fund, and the only fund, out of which sub-contractors are to be paid.</p> <p>4. A decree in favor of sub-contractors for a mechanic’s lien, which is against the owner of the property alone (the original contractor being a party to the suit and duly served), and not being in any way dismissed from the case, and there being no finding of any kind as to him, is erroneous.</p> <p>5. Same—when against several buildings. Where a mechanic’s lien is sought against several separate buildings, the decree must be against each, for the value of work and material on it, and not against all for the aggregate value of work and material on all.</p> <p>6. Same—suit for labor and material no bar. Tire fact that a suit, by a sub-contractor, against the owner and original contractor, has been brought before a justice of the peace, under the statute, and is still pending, is no bar to his enforcing his lien by decree.</p>

<p>1. Burden of proof—in quo warranto. In proceedings in the nature of quo wmTanto, the people are not bound to show anything. The onus probandi generally lies on the defendant, who must prove his title as pleaded, or such part of it as is traversed.</p> <p>3. Evidence—when slight is sufficient. Where the right to allow a city railway in a public street was made to depend upon obtaining the consent of the owners of two-thirds of the property on such street, by lineal ure, after the lapse of over ten years, and the acquiescence of property holders, and the destruction of all written evidences by fire, it was held, that slight evidence was sufficient to establish the fact of consent.</p> <p>3. License—power to waive forfeiture. Where a railway company waS authorized by its charter to construct and maintain a railway in a certain part of the city of Chicago, over and along such streets, etc., as the common council had or might authorize, in such manner and upon such terms and conditions as the common council had or might contract with the company, and, by ordinance of the city, license was given to lay a single track along a certain street to the city limits within fifteen months, and the same was constructed half the way within the time required: Held, that the common council had the right and power to waive the condition as to the time for completing the same, it being a provision in favor of the city to secure the public interests.</p> <p>4. Forfeiture—who may waive. If the State, in granting a franchise, imposes a limitation or condition that a certain thing shall be completed within a given time, no other power can waive the forfeiture arising from the non-performance of the condition. But where a mere license is granted hy a city upon condition subsequent, it may, for satisfactory reasons, waive a strict performance of the condition.</p> <p>o. Franchise—defined. In the American States, a franchise is a privilege emanating from the government or sovereign power, and owes its existence to a grant, or, as at common law, to prescription, which presupposes a grant, and is vested in an individual or body politic. The State alone can waive the forfeiture of a corporate franchise.</p> <p>6. Same—distinguished from license. Where a company is incorporated by the legislature, with power to construct, maintain and operate a railway in a city, upon the consent of the city, in such manner and upon such conditions as the city may impose, and the city, by ordinance, grants the privilege of constructing and operating the same upon a certain street, the grant by the city is a mere license, and not a franchise. The franchise emanates from the State.</p> <p>7. Constitutional law—prohibition against special privileges. The constitutional prohibition as to the grant of any special or exclusive privilege, immunity or franchise, is a limitation upon the power of the General Assembly, and can not be construed as a limitation upon the power of a municipal corporation to designate certain streets and fix the conditions upon which a railway company, organized under a special charter previously granted, may build and operate its road.</p> <p>8. Forfeiture—of corporate franchise. Courts proceed with great caution in proceedings which have for their object the forfeiture of corporate franchises. It is not every act of non-performance of the condition in the act of incorporation, or every misuser, that will forfeit the grant. A substantial performance, according- to the intent of the charter, is all that is required.</p>

<p>Intoxicating liquors—complaints for selling not required to be made on oath before justice of the peace. In prosecutions before justices of the peace under the 9th section of the act of January 18th, 1872, to provide against the evils resulting from the sale of intoxicating liquors, it is not necessary that there should be a complaint made under oath.</p>

<p>1. Intoxicating liquoks—measure of damages in suit by wife under see. 5 of Liquor Law of 1872. In a suit by a wife under sec. 5 of the Liquor-Law of 1872, the measure of damages is, the injury to the person or property or means of support of the plaintiff, and the jury, in determining the damages, should not take into consideration any mortification to the plaintiff’s feelings or mental suffering on her part.</p> <p>2. Same—exemplary damages for sale, when allowed. In a suit by a wife for selling liquor to her husband, under the Liquor Law of 1872, exemplary damages can not be recovered unless actual damages are found, unless it appears that the party charged sold the liquor after wafiiing and notice not to sell.</p> <p>3.. Where, in good faith, the employee of a saloon keeper is instructed not to sell to a person in the habit of getting intoxicated, and the servant wilfully disobeys the instructions, the principal is not liable to exemplary damages.</p>

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

S. M. Moore, Judge, presiding. This was a bill in chancery, for an injunction to restrain the negotiation of certain promissory notes, and the foreclosing of a certain chattel mortgage given to secure their payment, and to compel the same to be delivered up for cancellation.

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p> <p>This was an action brought by Honorah McKay, administratrix of the estate of Samuel McKay, deceased, against Edwin Edwards and Harry 0. Edwards.</p>

<p>1. Pleading—plea to whole declaration must answer all. A plea to the ■whole declaration which leaves a material averment unanswered, is bad on demurrer.</p> <p>2. Same—plea that time of payment was extended without consent of surety. A plea by a surety, that the time of payment of the note sued on was extended by agreement with the principal debtor, without the knowledge of the surety, should show such a consideration for such agreement to extend the time, as to render it a valid, binding contract, and should also show the time to which the payment was extended.</p>

<p>Error—trivial objections not considered where justice has been done. Where the court is satisfied, from the whole record, that justice has been done, it will not consume lime in considering trivial objections, especially in a case where, if a recovery could be had at all, it would be for a trifling and inconsiderable amount.</p>

Joseph E. Gary, Judge, presiding. The appellant, George W. Lawrence, on the 27th day of August, 1872, filed, in the Superior Court of Cook county, a bill against the appellee, Julia A. Lawrence, for a divorce. She being a non-resident, notice was given by publication, as required by the statute in such cases.

<p>Appeal from the Superior Court of Cook county; the Hon. Tiiomas F. Tipton, Judge, presiding.</p>

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

<p>Domestic animals—owner permitting them to run at large, liable for damages. A party who permits his stock to run at large, in violation of the act of January 13, 1872, is liable in an action of trespass for any damage they may do to the crops of others.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Josiah MoEobebts, Judge, presiding.</p>

<p>1. Practice—dismissing as to part of plaintiffs. In an action on the case by the wife and minor children, under the Liquor Law of 1872, against a party selling liquor to their husband and father, it is competent for the court to dismiss the minors out of the case, and let the suit proceed in the name of the wife.</p> <p>2. Exemplary damages—cot not he allowed, unless actual damage is shown, in suit for selling liquor. In a suit by a wife for injury to her means of support, caused by selling liquor to her husband, she can not recover exemplary damages unless the jury find that there has been actual damage.</p>

<p>1. Bill op exceptions—when necessary. Where a plea is stricken from the flies on motion, both the motion and exceptions to the decision of the court thereon should be preserved by bill of exceptions, as they can not otherwise become a part of the record.</p> <p>2. Assessing damages. On default, where neither party asks for a jury, it is proper for the court to assess damages.</p>

<p>1. Minors—creditors of parent no claim on labor. A father has no present valuable property in the future labor of his minor son, and does not, by the emancipation of the son, withdraw from his creditors any property or fund to which they are legally entitled for the payment of his debts.</p> <p>2. Married women—money advanced to pay for property conmeyed to wife prior to 1861. Money advanced by minor children to pay for property conveyed to their mother, prior to the Marrried Woman’s Enabling Act of 1861, did not so become the property of the mother as the owner thereof, that the title to it vested in her husband.</p> <p>3. Same—money paid to the wife for board. Neither the husband nor his creditors have any claim upon money paid to the wife by persons boarding with them, since the act of 1861, for their board, where it appears she was the meritorious cause.</p>

<p>Evidence—objection to, waived if admitted without exception. In a suit for obstructing a road it is erroneous to permit evidence of obstruction to the road, at places other than the one complained of, and by other persons; but if such evidence is admitted without objection, the presumption is that the objection is waived, and it can not be urged as error, for the first time, in this court.</p>

<p>1. Limitations —fraud may he replied to a plea of statute. The plaintiff in an action may reply fraud to a plea of the Statute of Limitations.</p> <p>2. Pleading—must set out facts constituting fraud, when set up in reply to plea of Statute of Limitations. A replication to a plea of the Statute of Limitations, which sets up that the defendant fraudulently concealed from plaintiff the knowledge that a cause of action existed, and that suit was brought within the statutory period, after knowledge of the right of action came to plaintiff, must fully set out the facts relied upon as constituting such fraud, or it will he had on demurrer.</p>

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

<p>Employer and employee—when the relation exists. Where a company suffers appearances to exist, and its officers and agents to so act, as to give one employed by them to do work reason to believe that he is employed by the company, he has the right to regard the company as his employer, and to hold it bound as such.</p>

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

<p>Verdict—presumption in favor of its correctness. Where the evidence is irreconcilably conflicting, it is the province of the jury to weigh, consider and find where the truth is, and the presumption is that their finding is correct.</p>

<p>1. Mechanic’s libn—against estate hy the curtesy, can not affect the rights of wife. Where property belongs to a married woman, subject to an estate by the curtesy in her husband, she has no such interest in the subject matter of a suit to enforce a mechanic’s lien against her husband’s estate in the property, as to entitle her to become a party to such suit, either on her own application or that of other parties, nor can her interest in the property be affected in such suit.</p> <p>2. Same—consolidating suits. It is proper to consolidate suits brought by a contractor against the owner of ground, to enforce a mechanic’s lien, and a like suit brought by a sub-contractor against such owner and principal contractor, where both suits relate to the same subject matter.</p> <p>3. Same—decree, as between contractor and sub-contractor. Where the jury finds that there is due from the owner of a building to the contractor a certain sum, and from said contractor to a sub-contractor, who was a party to the suit, another sum, it is proper for the court to put the verdict in form by finding in the decree that there is due from the owner to the contractor the aggregate of both sums, out of which aggregate there is due from the contractor to the sub-contractor the sum so found by the verdict to be due to him.</p>

<p>1. Service—sufficiency of return. A return to a chancery summons, “ served, by reading to and leaving a copy with the within named J H, on this 8th day of May, 1873,” is too indefinite and uncertain, as it fails to show what the officer read, or of what he served a copy, and does not show he served a true copy of the writ.</p> <p>3. Smmoxs—must be returnable to next term. A summons tested on May 8,1873, and made • returnable to the third Monday of May next, several terms intervening, is a nullity, and its service confers no jurisdiction.</p>