Volume 75 — Illinois Reports

<p>1. Contract — whether an arrangement amounts to one. Where A, who had contracted in writing to grade, &c., a certain portion of a railway company’s road, sublet a part of his work to B, and they two went to the treasurer of the company, and at A’s" request the treasurer agreed to pay B for his work, instead of paying to A, but the latter was not released from his contract, and B assumed no liability to the company to perform his part of the work: Held, that this could not be construed to be a contract to pay B by the company, there being no consideration for one, but it was a mere request by A as to whom his money should be paid, which was assented to.</p> <p>3. Statute of Frauds—promise to answer for another’s debt. The promise of a railway company to pay out of what it may become indebted to a contractor for work on its road, the sum that such contractor may owe a sub-contractor for work done, is clearly within the statute of frauds, and will be void, if not in writing.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.</p> <p>This was an action of assumpsit by John W. Dunmore against the Lycoming Fire Insurance Company, upon an insurance policy.</p>

<p>1. Mortgage—right to redeem from, absolute deed held as a security. Where a party sold a tract of land for $3,700, receiving $600 down, and took two notes each for $700, secured by mortgage on the premises for the deferred payments, and at the same time executed an agreement that he would repurchase at the same price, in case the grantee should so desire, within one year thereafter, and, at the request of the grantee, the grantor repurchased, which was evidenced by an indorsement on the agreement, and the grantor executed his note to the grantee for $693, payable in one year, and canceled the grantee’s obligations, but let the title remain in him as security for the payment of this last note, and becoming involved and being indebted to his son, it was agreed that the latter should pay the note and on payment receive a deed, and for that purpose the grantor released all claims to the land, and the son gave his note for the sum owing by his father, and took a contract from the grantee for the sale of the land, the deed to be made on payment of the son’s note, making time of the essence of the contract and reserving a right to declare a forfeiture, the land being worth a much larger sum than the son’s note called for, and it appeared that the holder of the title died sometime after this last note matured without declaring any forfeiture, and that the son of the original grantor after-wards died, leaving all his land to his mother, and that no administration was ever had upon the estate of the holder of the title, and that he left minor heirs, so that there was no one to receive payment or reconvey upon payment: Held, that the mother, under the devise to her, acquired the right to redeem the land, and that the circumstances showed that the legal title was held by the original purchaser as a mere security for the repayment of the money paid by him, with interest, and that a redemption should be allowed upon equitable terms.</p> <p>3. Same — when deed for land becomes a mortgage. Where land is sold and conveyed and the parties afterwards rescind the sale, or the grantor agrees with the grantee to repurchase at the price sold for, and the notes and mortgage taken for a portion of the price are canceled, and the grantee is allowed to hold the title as a security for the repayment of the purchase money paid by him, with interest, the deed for the land becomes thenceforth a mortgage only.</p> <p>3. Forfeiture — waiver of right to declare, in contract. The right to declare a forfeiture reserved in a contract is one that may be exercised or waived by a vendor, and a failure to claim it may be regarded as a waiver of the right. Until it is declared the contract continues mutually binding on the parties.</p>

William A. Porter, Judge, presiding. This was an action of assumpsit brought by Charles O. Whit-more and Charles J. Whitmore, partners, doing business under the name and style of Whitmore & Son, against Granville S. Ingraham, Calvin E. Corbin and Horatio H. May, partners, doing business under the name and style of Ingraham & Co. Whitmore & Son, being residents and doing business as wholesale dealers in sugars in the city of Boston, had employed the house of J. H. Dunham &…

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

<p>Special assessment — return to general officer. Under the act of 1872, for the collection of revenue and sale of real estate for non-payment of taxes, special assessments, &c., collectors having warrants for the collection of taxes or special assessments were required to return the same to the county collector, and he was to apply for judgment, &c., but in cities having legislative authority to direct the time and manner of return, such warrants were to be returned at the time so fixed by such city authority. In this case the city of Chicago had no legislative authority to fix the time of such returns, it being fixed in its charter, and the warrants were returned as directed by the city ordinance : Held, on application for judgment based on such returns, that the court had no jurisdiction to render judgment.</p>

•Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding. This was an action on the case, brought by Solomon Stein and Morris M. Hirsh, partners, etc., against the Chicago & Pacific Eailroad Company. The material facts are stated in the opinion of the Court.

Henry Booth, Judge, presiding. This was an action of assumpsit, by Henry Jones against S. Goodenow, E. P. Hinds and B. L. Bell, for the breach of a contract to sell and deliver 2,000 cords of wood. The material facts of the case are stated in the opinion of the court. On the trial of the case the plaintiff recovered judgment against all the defendants, from which Goodenow and Hinds appealed.

• S. M. Moobe, Judge, presiding. This was a petition filed by Willis M. Hitt against Dawson Kerr, Jr., Luther L. Greenleaf, Lombard Decham, Maximillian Decham, George S. Kobinson and Asbel Gage, under the act of the legislature, entitled “ An act to remedy the evils consequent upon the destruction of any public records by fire or otherwise,” in force July 1, 1872.

<p>1. Pleading —plea of fraud in obtaining judgment sued on. In an action upon the record of a- judgment, a plea that the judgment sued on was had and obtained by fraud and covin of the plaintiff, and with the intent to defraud the defendant out of the sum of money in the declaration mentioned, is bad in not setting out the facts in which the fraud and covin consisted.</p> <p>2. Practice—tried without deciding demurrer. Where the court proceeded to the trial of a case upon the issues of fact formed without deciding a demurrer to a plea, there being no joinder in demurrer, and it appearing that the plea would have been adjudged bad, had the demurrer been decided, it was held that the irregularity was not such as to authorize a reversal, the defendant not having placed himself in a position to demand a decision on the demurrer.</p> <p>3. Same—copy of instrument sued on. The failure to file a copy of a record sued on, with the declaration, is no ground for dismissing the suit, but only for a continuance.</p> <p>4. The denial of a motion for a rule on the plaintiff to file a copy of the instrument sued on, will be cured by the filing of such copy at a subsequent term and before the trial.</p>

A. J. Pillsbury, Judge, presiding. This was a bill filed by Henry Saltsman against Orrin P. Bissell and Frank Bohman, to enjoin the collection of a judgment in favor of Bissell and against the complainant, Bohman being the sheriff of the county and having an execution issued on the judgment in his hands. The bill was dismissed, and the complainant appealed.

<p>1. Assignment—of stock of insurance company. Where the charter of an insurance company requires that all sales and transfers of stock, to be valid, shall be made upon the books of the company, this provision will be regarded as designed for the protection of the company, and perhaps a purchaser without notice ; but as between the assignor and purchaser, a sale and transfer will be good without being entered upon the company’s books, and will be enforced in equity.</p> <p>3. Same—rights and liabilities of equitable assignee of stock. The equitable assignee or owner of stock in an incorporated company can use it as Ms own property, control it and receive dividends thereon, the same as though he had the legal title; and therefore, as between himself and his assignor, he is bound to assume the burdens imposed upon the owner of the legal title arising out of assessments made upon the stock.</p> <p>3. Chancery—will require equitable assignee of shares of capital stock to indemnify his assignee against liability. Where shares in the capital stock of an incorporated company have been sold and transferred, but not in accordance with the charter or by-laws of the company, so as to pass the legal title, and the assignor is compelled to make payment of assessments, or is liable to be called upon for payment, a court of equity, at the suit of the assignor, will require the assignee to pay or indemnify him, as the case may require.</p> <p>4. Party in chancery—bill for indemnity. On bill in chancery by the assignor of shares of stock in an incorporated company against the assignee, to require the latter to indemnify the former against future liability for assessments on the stock, neither the company nor its assignee in bankruptcy are necessary parties, as no relief is sought against them.</p>

<p>’Writ,oe Error to the Superior Court of Cook county.</p> <p>This was a bill in chancery, by Sprague S. Stetson against the Chicago and Evanston Railroad Company, for an injunction.</p>

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by Franklin MeVeagh, Wayne McVeagh, John B. Raymond and Henry C. Bannard, partners, against Alexander Thorne and John Thorne, partners, to recover damages on a breach of warranty in a lot of hams sold by the defendants to the plaintiffs. A trial was had resulting in a verdict and judgment in favor of the plaintiffs for $2,798. The hams sold weighed 20,020 pounds, and the price was 12& cents per pound.

John Gh Bocees, Judge, presiding. This was an action of trover, brought by appellee, Bundle, against appellant, Alexander, in the circuit court of Cook county for the alleged conversion of a promissory note for $7,000 made by Alexander, payable to Seymour and Eundle one year after date, and dated June 24, 1872.

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

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

Erastus S. Williams, Judge, presiding. This was a bill in equity, filed by Lorenz Franz against John J. Orton, Joseph A. Sleeper and Henry K. Whiton, to compel the specific performance of a contract for the sale of the S. E. qr. sec. 32, T. 37, R. 13 E. of the third principal meridian, in Cook county, Illinois. John Sheldon was admitted a party defendant on his application. The opinion of the court contains a statement of the material facts of the case.

Johh G. Rogers, Judge, presiding. This was an action on the case, brought by Francis Donahue, by his next friend James Donahue, against the Chicago and Horth-Western Railway Company, to recover for a personal injury received while in the defendant’s employ, on the ground of alleged negligence. The facts appear in the opinion. The jury found for the plaintifE and assessed his damages at $8,000.

Writ of Error to the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding. This was an action of debt, brought by Bichard Bowden,upon a promissory note. The opinion states the facts involved.

Charles H. Wood, Judge, presiding. This was a hill for an injunction, filed by the appellant against the appellee, to restrain the latter taking possession of the railroad and right of way of the complainant under certain fraudulent proceedings for the condemnation of the same.

S. M. Hooke, Judge, presiding. This was a bill for an injunction to restrain appellees from closing up or interfering with a flue in the party wall between the residence of appellant and one in process of erection by appellees.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. William W. Harwell, Judge, presiding.</p> <p>This was a bill in chancery, filed by Jabez K. Botsford against Anna, L. Wilson, administratrix of the estate of Marie E. Wilson, deceased, and others, her heirs at law, to recover back the purchase money of certain real estate, the title to which had failed. The material facts of the case are set forth in the opinion of the court. Complainant’s bill being dismissed, oh demurrer, he appealed.</p>

<p>1. Agent — notice to, when binding on principal. Where a party sends another to get certain articles for use, and he gets them, the latter, as to the transaction, will necessarily be the agent of the former, and if the party letting the articles go, informs him what his charge is per day for the use of the same, being about a matter affecting a special duty with which the agent is intrusted, if the articles are retained the principal will be bound to pay such price.</p> <p>2. Bailment — liability of hirer for loss. Where a person procures the use of a jack-screw for hire, and the same is lost and not returned to the owner, the hirer will be liable for its value.</p> <p>3. Instructions — errors in, not prejudicial,will not reverse. Although instructions are not entirely free from objection, a reversal will not be had when it is apparent that their objectionable features did not prejudice the party complaining of them.</p>

Arthur A. Smith, Judge, presiding. This was an action on the case, brought by Edwin E. Egan by his next friend, Moses Philbrook, against Jacob Kightlinger, to recover for personal injury in being bitten by defendant’s dog. The plaintiff below recovered judgment for $800, and the defendant appealed.

Wftrr of Ebbob to the Circuit Court of Jo Daviess county; the Hon. William Bbown, Judge, presiding. This was an application to the county court of Jo Daviess county, by William. Bowden, to be discharged from imprisonment for debt under a oa. sa. issued against him upon a judgment in favor of Diehard Bowden, and taken by appeal to the circuit court. The facts of the case are substantially stated in the opinion.

<p>1. Contribution — right to, does not rest in contract. The right to contribution does not arise out of any contract or agreement between co-sureties to indemnify each other, but on the principle of equity which courts of law enforce, that when two persons are subject to a common burden, it shall be borne equally between them.</p> <p>2. Same — when sureties become bound at different times and by different instruments. It is well settled that different sureties occupy towards each other the relation of co-sureties, and that contribution may be enforced between them, although they may have become bound jointly and severally by different instruments, at different times, and without the knowledge of each other, provided that the obligations into which they enter are for the same engagement and for the same principal, and it does not appear that one obligation was intended to be secondary or collateral to the others. It is sufficient for the right to claim contribution that it appears that the parties are under obligation to pay the same debt as sureties for a third person.</p> <p>3. Same — among gua/rantors. Where two persons, at the request of the maker of a note, write their names upon the back of the same, though not in the presence of each other, whereby they become co-guarantors, and" one of them has to pay the note, he will be entitled to call upon the other. for contribution.</p> <p>4. Where cine of two co-guarantors paid the debt, taking an assignment of the note to a third party, to whom he charged the amount paid by him and caused suit to be brought thereon against his co-guarantor, which he afterwards dismissed, and brought suit for contribution, producing the note on the trial, with the payee’s indorsement erased, it was held, that causing the note to be indorsed and suit brought thereon, was no bar to his right to sue for contribution.</p> <p>o. Same—paying debt before due. Where a co-guarantor pays the note before it is due, at the request of the other guarantor, the latter will be liable to contribute, and it has been held that payment before maturity is not necessarily voluntary, and that eventual liability is equivalent to a precedent request to pay.</p>

<p>Appeal from the Circuit Court of Knox county; the Hon. Abthub A. Smith, Judge, presiding.</p> <p>This was a petition by Olof Hawkinson and others, filed in the circuit court, to have their lands within the corporate limits of the city of Galesburg, disconnected therefrom by a decree of court. The city and several citizens having an interest in the matter appeared, and resisted the relief sought. The court below decreed according to the prayer of the petition, and the defendant below appealed..</p>

Joseph E. Gary, Judge, presiding. This was a bill in chancery, filed by Esther Goodman, against William G. Wing, Ellen M. Lyford, (formerly Bickford) Hoah G. Lyford, and Oliver Fellows, to enforce a vendor’s lien. The material facts of the case appear in the opinion.

Josiah MoBoberts, Judge, presiding. This was an action of trespass, by Marcus W. Dupree against Frederick Becker and Benjamin Silts. The facts of the case are stated in the opinion of the court. A verdict and judgment were had for one thousand sixty-six dollars and sixty-three cents,in favor of the plaintiff, from which judgment Becker appealed.

<p>1. Assignment—assignee of note given to Ms agent takes subject to defense. Where an agent, in selling territory for a patent right for his principal, takes notes payable to himself and assigns the same to his principal, the latter will not be an innocent assignee so as to cut off a defense, but he will be treated as though he was the original payee.</p> <p>2. Fraud—rescission of contract procu/red by fraudulent representations. Where the agent of the owner of a patent right,by false representations as to the value of the territory, and the demand for the invention, which were not only untrue, but known to be so when made, and by other false representations as to the extent of sales made, and the adoption of the invention in certain localities, induced a party to purchase certain territory and give his notes for the price, secured by mortgage, and indorsed the same to the principal, and it appearing that the patent and the territory sold were worthless, and that the purchaser had tendered back a deed for the same: Held, that for the fraud practiced a decree rescinding the sale and for the cancellation and surrender of the notes and mortgage was proper.</p>

<p>Writ of Error to the County Court of Woodford county ; the Hon. Bazel D. Meek, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding.</p> <p>This was a proceeding instituted hy the appellee against the appellant to have compensation ascertained for real estate previously taken as a right of way. The facts of the case are stated in the opinion.</p>

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

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

<p>Agency—agent to purchase cannot he seller to himself. An agent or broker employed, to purchase for his principal cannot become the seller without notice to the principal. Therefore, a commission merchant employed to go upon the market and buy for another a given quantity of wheat for cash, is not authorized to turn over to his principal wheat held by him, even if he charges no more than the market price. His interest must not come in conflict with his duty.</p>

<p>Writ of Error to the Circuit Court of Woodford county; the Hon. S. L. Richmond, Judge, presiding.</p>

,Tosí ah McBoberts, Judge, presiding. This was a suit originally brought by Joseph H. Hanson against Henry Hudson, before a justice of the peace, upon a promissory note. The material facts of the case appear in the opinion of the court.

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

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

Joseph E. Gaby, Judge, presiding. This was a bill in equity, by the city of Chicago against Walter E. Frazier and John Witt, to remove clouds from the lands claimed by the city, created, as it was alleged, by fraudulent tax titles acquired by Frazier, and by a conveyance of the same fraudulently obtained by Frazier to himself, with intent to defeat the rights of the city.

<p>1. Usury—in equity party seeking relief from must offer to pay debt and legal interest. Where a person applies to equity for relief against usurious contracts, he must tender or offer to pay the principal and the legal rate of interest, or the court will not take jurisdiction.</p> <p>2. Promissory note — debt presumed to be due payee. Where a promissory note is made payable to a married woman, it will be presumed, until rebutted, that the money is due to her and not to her husband, and the fact that the money for which the note was given, was loaned by the husband, will not rebut such presumption.</p> <p>3. Same—holder of, as collateral, may collect whole sum due, without regard to his debt. Where a person holds a promissory note as collateral security for a smaller debt due him from the pledgor, he may collect the entire sum due thereon, even though it is in excess of his demand. It matters not to the maker what the holder paid for his note, or how the pledgor and pledgee shall afterward settle.</p> <p>4. Deed oe trust — insolvency of trustee no ground for restraining a sale by. A bill to restrain the sale of property under a deed of trust, among other reasons alleged that the trustee was insolvent, but failed to show that he became so after he was appointed, or that there was danger he would misapply the moneys arising from the sale: Held, that this afforded no ground for the relief sought.</p> <p>5. Same—notice of sale, construed in respect to the notes for which the sale would be made. Where a notice of sale under a deed of trust described three notes secured, and recited that the trustee had been called upon to sell to pay two of them, it was held that no inference could be had from the notice that the trustee intended selling for all of the notes. One of them ‘not being due, it would be presumed he intended to do his duty and not violate it.</p> <p>6. Same — notice giving longer time than required. Where a deed of trust required in case of sale a prior notice of five consecutive days, the last of which should be ten days before that fixed for the sale : Held, that making the last insertion a few days more .than that required, could not invalidate the notice. Making it less would not be sufficient, as it would lessen the chances of securing bidders.</p> <p>7. Same — giving notes and security for usury as ground for restraining sale. The fact that the creditor holds the debtor’s notes given for usurious interest, will not in any manner impair the power or duty of the trustee to make sale of the property conveyed to him, and apply the proceeds in discharge of the debt secured by the trust deed. If he should attempt to misapply the proceeds and pay the notes given for usury, the court would then, and not before, interfere.</p>

Nathaniel J. Pillsbury, Judge, presiding. This was an action of replevin, brought by Edward W. Barker and Charles D. Fisher against Henry L. Bushnell and Charles C. Bushnell, for a lot of corn claimed to have been bought by the plaintiffs of the defendants. The opinion states the material facts. Judgment was rendered for the defendants, and the plaintiffs appealed.

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

John Gr. Rogers, Judge, presiding. Appellants sued appellee in the Cook circuit court upon two promissory notes made by the latter to them. One note dated October 28, 1867, for $1,104.27, payable to appellants in one month from date, with interest at ten per cent per annum after maturity. The other, dated December 11,1867, payable as above, one day after date, for $90.12, interest as above.

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

<p>1. Practice—time to object to evidence for variance. An objection that the evidence fails to sustain the cause of action as stated in the declaration comes too late on appeal to this court, when no objection was made to it in the court below, or motion made to exclude it, especially since the late statute allowing amendments, as, under it, the objection might have been obviated by amending the declaration.</p> <p>2. Agency — right to commissions lost by misconduct. When goods are entrusted to an agent to be sold on commission, and the proceeds to be accounted for monthly, if he sells the goods and converts the proceeds to his own use, rendering no account, he will be entitled to no commissions,</p>

<p>Continuance. Where the defendant, about a week before his case was reached for trial, went to New York on business, without making any inquiry of his attorneys as to the probability of his case being reached, or furnishing them the names of his witnesses by whom his defense could be established, so that no preparation was made for the trial of his case, it was held that the defendant was not entitled to a continuance, as he had used no diligence to be ready, and for the same reason he was not entitled to a new trial on the ground of his absence at the trial.</p>

John G. Rogers, Judge, presiding. This was a petition for a mechanic’s lien, filed by Patrick Dunne and John F. Scanlan against William Mehrle, George L. Cross, William B. Champion and The United States Mortgage Company. William. Mehrle was the owner of the building, and Cross & Champion were the original contractors. It appeared that there were other lien holders who were not made parties. The material facts of the case are stated in the opinion.

<p>Appeal from the Superior Court of Cook county; the Hon. W. W. Heaton, Judge, presiding.</p> <p>This was an action of covenant, by Margaret H. P. Hooper and Ezekiel R. Hooper, her husband, for the use of Daniel R. Brandt against Bernard A. Stampoffski. The opinion of the court contains a substantial statement of the material facts of the case.</p>

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

<p>Appeal from the Oircuit Court of Knox county; the Hon. • Abthüb A. Smith, Judge, presiding.</p>

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

S. M. Moore, Judge, presiding. This was a bill in chancery, filed by Theodore and Elizabeth Bond against Elizabeth Meeker, to contest the validity of the last will and testament of Joseph Meeker, deceased, and also a codicil thereto. The material facts of the case appear in the opinion.

<p>Appeal from the Superior Court of Cook county; the Hon. Samuel M. Moore, Judge, presiding.</p> <p>This was a bill in equity, filed by Benjamin Lombard against the Chicago Sinai Congregation, for specific performance. The case was before this court once before, and is reported in 64 III. 477. The decree of the court below was then reversed and the cause remanded, and upon the second hearing a decree was rendered in accordance with the opinion of this court. The complainant, not -being satisfied with the decree, again brings the record here by appeal.</p>

<p>Trust—hill to declare trust in nature of mortgage, and for redemption—■ laches. In 1846 A and B were the owners of certain lots, but the legal title was in B, who held the undivided half in trust for A, which he had obligated himself to convey upon payment of §1,000, which A owed him. Several years afterward, in 1850, B and A had a settlement of their transactions, and B relieved A of his agency in respect to the lots, and appointed another agent to sell them, which fact was known to A. In 1851 B sold the lots to C, who had no notice of A’s rights, the agreement between A and B never having been recorded, and 0 sold half of the lots to D, and they improved the lots and erected residences thereon, all of which was known to A, who gave them no notice of his claim, or pretended to have any interest in the property. More than twenty years after the purchase by O and D, A filed his bill to redeem the lots and for an account of the rents and profits, which, on a hearing, was dismissed: Held, that the bill was properly dismissed and that A’s laches was inexcusable.</p>

John G-. Rogers, Judge, presiding. This was a petition for a mechanic’s lien, filed by Michael Brennan against John B. Sontag and Theodore Schintz. The opinion states the facts.

<p>1. Party at law—homing legal title may sue. When real estate is devised to a party, such party may maintain an action in his individual name for the use and occupation of the premises, although he may hold the property as trustee. It is no concern of the defendant in what capacity he sues. If the plaintiff is trustee he must account for the proceeds recovered.</p> <p>2. Use and occupation—as between tenants in common. To render one co-tenant liable to another for rent for'use and occupation, there must be something more than an occupancy of the estate by one and forbearance to occupy by the other.</p> <p>3. When a firm occupies premises belonging to two of its members as tenants in common, and pays rent to them for its use, this will create the relation of landlord and tenant; and if, after the death of one of the owners, the remaining members of the firm continue such occupation, it will be presumed, in the absence of notice to the contrary, that the relation continues, and the firm will be liable to pay the devisee of the deceased land lord for the use and occupation of his undivided half of the premises without an express promise to that effect.</p>

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

<p>1. Negligence — when landlord liable to tenant for. Where a landlord leases the lower story of a building to a tenant, but occupies the upper story himself, he will have no right to use it in such a manner as to injure the tenant; and if, through negligence, want of reasonable care or skill on the part of the landlord or his servants, the tenant is injured, the former will be liable to repair the same in damages.</p> <p>2. Where a landlord occupying the upper story of a building employed a mechanic to put in a skylight in the roof, who neglected to cover the same, so that it rained through the opening and thereby damaged the goods of a tenant occupying the first story, it was held that the landlord was liable to the tenant for the negligence of the mechanic in doing the work. This case distinguished from Scammon v. City of Chicago, 25 Ill. 424, as there the owner gave the entire possession and control of the premises to the contractor.</p> <p>3. Error—refusing evidence that could not change the result. The refusal to admit competent evidence where its admission could not have changed the result is not sufficient ground to reverse.</p>

William W. Farwell, Judge, presiding. This was a bill in chancery, filed by the Republic Life Insurance Company against Joseph Pollak, who was then county clerk of Cook county, to enjoin the State, county and other taxes against the company upon the assessment of its property and capital stock, as equalized and assessed by the State Board of Equalization, for 1873. The court denied the motion for injunction, and the tax was extended by the clerk.

<p>1. Stbeets and alleys—making and recording .plat operates as aeonveyance of. When a plat is executed, certified, acknowledged and recorded in conformity with the provisions of the statute of 1845, in relation to laying out towns, additions and subdivisions of lots, the fee of all that portion of the land designated as streets and alleys becomes absolutely vested in the corporation of the town or city, in trust for the use of the public. If the plat is recorded before the town has a corporate existence, the fee remains in abeyance, subject to vest in the corporation as soon as created. Making and recording the plat operates as a grant of the fee to the municipality as effectually as would a deed.</p> <p>2. Same—literal compliance with statute not necessary to pass fee in streets. A substantial compliance with the provisions of the statute in making and recording a plat will be sufficient to operate as a grant of the fee in the streets and alleys. The fact that the plat and survey are made by one not a county surveyor will not invalidate the proceedings, as it is the acknowledging and recording of the plat that vests the fee in the corporation. And the fact that no corner stone is designated on the plat, as required by statute, when other monuments are designated from which the location of the lots, streets and alleys can be ascertained with equal certainty, will not render the plat inoperative to pass the title to the streets and alleys.</p> <p>3. Same—on vacation, title to revert to the original proprietor. Where a street or alley, the fee of which has passed to the corporation by the making and recording of a plat, is vacated by the corporate authorities, and its use abandoned, the fee that was in the city or town will revert to the original owner who dedicated the same, and not to the abutting lot owners, and neither the legislature nor the corporate authorities can divest such owner of it.</p> <p>4. The grant of a lot abutting upon such a street or alley is distinguishable from a grant of land upon an ordinary highway. In the latter, the public having but an easement in the land used as a highway, a grant by the owner passes the title subject to the easement, while in the former, the title to the street or alley having passed to the municipality, the original proprietor has no title whatever in the same to convey. In the one case, therefore, on vacation and abandonment, the grantee takes the title unincumbered by the easement, while in the other he takes no title whatever beyond the boundaries of his lot.</p> <p>5. Same — Act of 1851, for vacating and conveying streets, construed. Under the act of 1851, which provided that the corporate authorities of towns and cities, on petition, might vacate streets, and convey, by quitclaim deed, any interest the corporation had in the street, to the adjoining lot owners, a town or city has no power to convey the fee or title to a street, when vacated. A law that would have the effect to transfer the property of one man to another without compensation, or would authorize the same thing to be done, would be palpably in violation of the constitution, and void.</p> <p>6. Same—when title to, does not pass. In the case of an ordinary highway, or where a town or city obtains a street or alley by dedication merely, or by condemnation under the right of eminent domain, or where urban property has been laid off and platted by the owner into lots, with streets and alleys, under circumstances from which a dedication may be inferred, or in any mode except by what is equivalent to a conveyance, an easement only is acquired, and the fee remains in the original owner or proprietor.</p> <p>7. Easement —passes by grant of adjacent premises. An easement may pass without express mention, as an incident to the grant of the adjacent premises ; but the fee in one piece of land not mentioned in the deed will not pass as appurtenant to another tract granted by an accurate description, giving it a definite and limited boundary.</p> <p>8. Mixed question of law and fact. Whether a plat of an addition to a town, or of the subdivision of a lot in a city or town, is made in conformity with the statute, is a mixed question of law and fact.</p> <p>9. Estoppel—to claim easement in vacated street. While it is true that the owners of lots abutting upon a street cannot be deprived of ingress and egress to the same without compensation, yet, when such street is vacated by the corporate authorities, upon their petition to have the same done, they will be estopped from asserting that an easement remains in the corporation for their benefit, and cannot invoke the principle in defense to an .action of ejectment hy the owner of such vacated street to recover possession.</p>

<p>1. Case—lies for damages growing out of an iUegal or wrongful act. Whoever does an illegal or wrongful act is answerable for all the consequences in the ordinary and natural course of events, though these consequences be directly brought about by the intervening agency of others, provided the intervening agencies were set in motion by the primary wrongdoer, or provided the immediate acts causing the damage are the necessary or legal and natural consequence of the original wrongful act.</p> <p>3. Same — lies for selling land of another without authority. Where a party, falsely pretending to be the agent of the owner of land to sell the same, executes a contract for its sale, which is recorded, and upon which the purchaser brings suit for a specific performance, .whereby the owner is put to trouble and expense in defending the same, such pretended agent will be liable to the owner in an action on the case for the damages sustained by him in defending the suit.</p> <p>3. Evidence — declarations of parties in collusion to defraud, admissible— other party combining with him. In a suit against a party for falsely assuming to be the plaintiffs agent to sell land and making a sale thereof, where the facts show a combination or collusion between the defendant and the purchaser to effect a common purpose, the declarations of the purchaser are admissible against the defendant, though not made in his presence.</p> <p>4. Practice — reading law in presence of jury. On the trial of an action on the case the plaintiffs counsel was about to read to the jury a part of an opinion of this court, and on objection by the defendant, the plaintiffs counsel said he would read it for the benefit of the court, and did so read it: Held, that this was improper and should not have been permitted, as the jury can receive the law only from the judge, and in the form of written instructions.</p>

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

<p>1. Heirship and legitimacy—sufficiency of proof of. Where the proof showed that a party’s parents lived together as husband and wife for a long time, and until the death of the father; that they reared a family of several children, among whom were the father of the party claiming as heir of the nephew, and the nephew’s father; and that among the members of the family, the relatives, and intimate family acquaintances, such party was always recognized and treated as a child of his parents and a brother of the nephew’s father: Held, that this was sufficient prima facie evidence of the marriage of the parents and of the legitimacy of the party claiming as heir of his nephew, and cast upon the other side the burden of their disproof.</p> <p>2. Marriage—statute prohibiting marriage with an Indian does not affect prior marriages. A statute prohibiting the intermarriage of a white person with an Indian, enacted after such a marriage, will have no bearing upon the validity of the marriage.</p> <p>3. Legitimacy—sufficiency of evidence to overcome presumption of. Every child born in wedlock is presumed to be legitimate. And when a person’s mother was an Indian, proof he was a colored man will not be sufficient to overcome such presumption, as the color will be referred to that derived from his mother.</p> <p>4. Infancy—right to disaffirm deed not personal to the infant. All gifts, grants or deeds made by infants by matter in deed, or a writing, which takes effect by delivery of his hand, are voidable by himself, his heirs, or those who have his estate. The heirs of an infant may disaffirm his deed within the same time that the infant might himself, if living.</p> <p>5. Same — whether act is an affirmance. Where an heir of an infant who had conveyed lands during infancy filed a statement in the county court where administration of the infant’s estate was had, that he had no other claim against the estate, except the amount due on guardian’s account, it being ’referable to the personal estate, was held to have no bearing upon the party’s claim as heir, or next of kin, and therefore no affirmance of the infant’s conveyance.</p> <p>6. Evidence — secondary. Where a will and the record thereof were burned, and the proof showed that a copy of the will before its destruction had been sent by mail to the party desiring to use it in evidence, it was held, that parol proof as to the contents of the will was not admissible in behalf of such party, in the absence of any evidence accounting for the non-production of the copy, or showing its non-receipt.</p> <p>7. Same—recitals in deed to prove contents of destroyed will. In a contest respecting the title to real estate by one claiming as heir of one of the devisees in a will, if the defendant offers in evidence a deed for the land from the executor of the will, the recitals in the deed as to the terms of the will may be taken as evidence of the contents of the will as against such defendant.</p> <p>8. Devise — when the interest vests. Where lands are devised to a trustee to be held by him in trust until A shall attain his majority, when the same shall be conveyed to him in fee, this will confer on A a vested estate in fee simple, subject to the prior chattel interest given to the trustee, and consequently, on the death of A under age, the property will descend to his heir at law. But a devise to A when he shall attain the age of twenty-one years, standing isolated and detached from the context, will confer a contingent interest only.</p> <p>9. Where a devise over is made dependent upon the first devisee dying before he becomes of age, or without issue, or any similar event, the devise is equivalent to a provision that the first donee shall take an immediate vested interest liable to be defeated by the happening of the contingency named; and if it does not happen, the estate then becomes absolute and indefeasible.</p> <p>10. Where a testator devised his land to a trustee to hold in equal moieties for A and his sister, B, tobe conveyed to them upon their attaining the ages of 31 and 18 years respectively, and in case the sister should die without issue before the full execution of the trusts of the will, leaving the brother surviving, then the whole should be conveyed to him upon arriving at the age of 31, and the sister died after the age of 18, without issue : Reid, that her interest did not pass and vest in the brother under the will, although the trusts were not fully executed, but descended to her heirs at law.</p> <p>11. Same — contingent interest. Where land is devised to a trustee to be held by him in equal moieties for a brother and sister, to be conveyed to them as they shall respectively attain their majority, with a provision that in case both sister and brother should die without issue prior to attaining the ages of 18 and 21, respectively, then the trustee shall c-onvey the estate to A and B, and the brother and sister both die without issue, one before coming of age, and the other after coming of age, A and B will take nothing, as both the brother and sister did not die before their majority. ,</p> <p>12. Same—courts ca/nnot provide ffr unforeseen contingencies. When the testator in the disposition of his property overlooks a particular event, which, had it occurred to him, he would in all probability have provided against, the court will not rectify the omission by implying or inserting the necessary clause.</p> <p>18. Same—contingency to divest an estate must happen literally. When a prior estate is vested by a devise, but subject to be divested upon the happening of a contingency, the contingency must take place literally, or the prior estate will not be divested.</p> <p>14 Partition — where the land is divided between two adverse claimants, the sha/re of complainant must be taken out of each tract. When the complainant is entitled to partition of a tract of land which has been amicably divided between two persons claiming adversely to him, it is error to decree that the complainant’s interest as found shall be assigned to him exclusively out of the portion held by one of the adverse claimants.</p> <p>15. Same—decree that complainants interest be set off to him free from all liens a/nd incumbrances is too broad. When, in a proceeding for the partition of land, it appeared that the defendants had paid a considerable sum of money for taxes, and to redeem the land from tax sales, it was held error to decree that the complainant’s interest as a tenant in common be set off to him. free from all liens and incumbrances. The decree in such a case is too broad.</p> <p>16. Tenants in common — must share equally in burdens. In the partition of land, if one of the tenants in common has rightfully paid money for taxes, or to relieve the premises of a legal incumbrance resting on the entire interest of all, the others should be required to contribute their just proportion of the same.</p>

<p>Right or way —party to proceeding, on owner’s death. In a proceeding to condemn land by a railway company for right of way under a special statute which passed the fee in the land taken upon payment of the damages assessed, and which required the court to render judgment upon the report of the commissioners in case no appeal was taken from their assessment, both parties appealed and a trial was had, and the company procured a reversal for error. The land owner having died, the cause was re-docketed in the name of his administrator, the company’s appeal dismissed for want of prosecution, and thereupon the administrator dismissed the appeal of his intestate, electing to take the damages as found by the commissioners, which had been deposited: Held, that, as the fee in the lands descended to the intestate’s heirs at law, they should have been made parties, so as to conclude them by the judgment, and for the error in not making'them parties, the judgment of the court was reversed.</p>

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

<p>1. Contract —proposition to sell until accepted is not a contract that can he enforced. Where the owner of land made a proposition in writing to sell the same on certain terms, a part of the price to be paid down at the time of the purchase, to be binding if accepted within one year, and it appeared that the party to whom the offer was made was in possession under a lease from the party making the offer, and died within the year without giving any notice of acceptance, or making any payment, or securing the balance by notes and mortgage as required in the offer: Held, that these facts failed to show an acceptance, and that there was no valid contract that could be specifically enforced.</p> <p>2. Same—heirs hme no right to accept an offer of sale made to their ancestor. When the ancestor has the privilege of accepting an offer of sale within one year, and dies within the year without accepting, he has no estate which can descend to his heirs, and they will not have the right to accept the same within the time allowed their ancestor. The offer in such a case is personal.</p> <p>3. Specific performance—-.there must he mutuality. Where a contract for the sale of land is such that the vendor could not enforce the same against the vendee in his lifetime or against his estate after his death, the heirs of the vendee will have no right to insist upon a specific performance.</p> <p>4. Possession—whether referred to lease or contract for sale. Where a party in possession of land under a lease from the owner takes a written offer for the sale of the premises, to be accepted in a given time, but dies without giving notice of its acceptance, or complying with the terms of the offer, his possession, fencing the land and paying taxes, will be referred to the relation under which he entered, in the absence of allegation and proof to the contrary.</p>

<p>1. Limitation—extent to which a deed is claim and color of title. Where a party in possession of land, of which his wife is seized, as heir, of an undivided part, takes a quitclaim deed from one of the other heirs who is seized of an undivided fourth thereof, and who simply released and quit-claimed all his right, title and interest, such deed will constitute good color and claim of title to the extent of the grantor’s interest, but no further,</p> <p>2. Tax title —party bound to pay taxes, cannot await of title growing out of his neglect of duty. Where a party in possession of land, under an agreement to pay the taxes for the owner, suffers the land to be sold for taxes, and a third party to acquire a tax deed therefor, and he afterwards acquires such title, he cannot rely upon the same as against the owner or those claiming under him.</p> <p>3. Tenants in common—husband of one purchasing outstanding incumbrance. Where the husband of a co-heiress, in possession of land, purchases an outstanding incumbrance or tax title on the lands of the heirs, he will be held to have purchased for the benefit of all the tenants in common, upon condition only that they shall contribute their respective portions of the consideration actually paid by him.</p> <p>4. Adverse possession — under limitation law of twenty yea/rs. Where a party occupied land as the tenant of the owner until the death of the latter, and after that held possession in right of his wife, who was an heir of the deceased owner, during which he acquired the interest of several of the other heirs, he always recognizing their claims: MM, that his possession after the death of the owner was not adverse to the remaining heirs, but in consonance with their rights.</p> <p>5. Same — to show disseizin of co-tenant. Where one tenant in common is in possession of land, it requires clear and satisfactory proof of a subsequent disseizin of a co-tenant, to characterize his possession as being adverse, so as by lapse of time to bar a right of entry. It is not sufficient that he continues to occupy the premises and appropriates to himself the exclusive rents and profits, makes slight improvements on the land and pays the taxes.</p> <p>6. To constitute a disseizin there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as, by their own import, to impart information and give notice to the co-tenant that an adverse possession and an actual disseizin are intended to be asserted against him.</p>

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

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. Joseph W. Cochran, Judge, presiding.</p> <p>This was a bill in chancery, filed by Mary J. Doolittle against Henry I. Chase, Henry T. Woodward, Roger Cook and others, to foreclose a mortgage given by Chase to her on land previously sold by Chase to Rogers. The opinion of the court states the material facts.</p>

<p>1. Excessive damages — emoting tenant. Even where the relation of landlord and tenant exists as to a part of the defendant’s dwelling house, and the tenant is evicted by the landlord closing his doors against her, there being no force used, and the tenant suffers no personal injury, and recovers all the property left in the house' by her, and there is no proof of actual damages, a verdict in favor of the tenant, in a suit against the landlord, for $1,250, will be regarded so excessive in amount as to call for a reversal of the judgment.</p> <p>2. Landlord and tenant — whether facts of the case show such relation. Where a party testified that she went into a portion of the defendant’s dwelling house, certain rooms being reserved, and that she was to board the defendant, his wife and two children, and had the privilege of taking in other boarders, and that this arrangement was for one year, but did not deny defendant’s statement that the house was “ to be his house,” the court say they doubted if the relation of landlord and tenant existed, and were inclined to hold that the contract did not create, in such party, any estate, either at will, or for any definite period, in the defendant’s house, or any part of it.</p> <p>3. Evidence—advice of counsel in mitigation of damages. In case by a plaintiff for being wrongfully shut out of a house, a portion of which she claimed to have rented of the defendant, there being no force or violence used, the defendant offered to prove that he acted upon competent legal advice in what he did, which the court refused to admit: Held, that the proof was admissible, not in bar of the action, or in mitigation of actual damages, but in mitigation of any exemplary damages, and that the court erred in refusing to admit it.</p>

<p>Consideration—forbearing legal proceeding. Where a contractor for the erection of a building, who had employed sub-contractors to furnish materials, left the work unfinished, and the sub-contractors unpaid, and they claimed a lien on the building, and the owner promised to pay them their demand if they would take no steps to enforce their lien: Held, that this was a good consideration for the owner’s promise.</p>

<p>Appeal from the Circuit Court of Mercer county; the Hon. Geobgke W. Pleasants, Judge, presiding.</p> <p>This was an action of assumpsit, brought by Abraham M. Byers and Ephraim Gilmore, partners, against Leonard W. Edleman, upon a promissory note for $350, purporting to have been given by the defendant, May 15, 1871, to Alex. Bowers, bearing ten per cent interest from date. The note was indorsed without date by Bowers to W. D. Gardner, and by him to the plaintiffs.</p> <p>The defendant pleaded the general issue, and three special pleas: 1. That the note sued on was not his note. 2. That the payee of the note applied to the defendant to act as his agent in the sale of certain horse hay-forks, known as “ Hatheway’s self-sustaining, self-adjusting, and self-protecting fork; ” and it was agreed by and between Bowers and defendant, that the latter should make sale of said forks when furnished to him, as he should find opportunity, and that the proceeds of said sales, over and above $11 for each machine and its attachments, should be retained by the defendant as compensation for his services, and that to carry out such agreement, Bowers proposed that a contract should be executed, evidencing the agreement, and that defendant was then and there fraudulently, by the false and fraudulent pretext that the paper offered and shown defendant, and which he was requested to sign, was the contract, induced by Bowers to sign the same, believing it to'be the contract, and in ignorance that he was signing a note, if he did sign the note. And so by the fraud, and false and fraudulent pretext of said Bowers, the defendant was deceived, and fraudulently misled and inveigled into the signing and delivering of said note, etc.</p> <p>The last plea was in substance the same as the preceding one, except it set out the contract shown and exhibited as the one to which the defendant’s signature was desired and procured as the defendant at the time supposed, and that Bowers, after the signing of the same, obtained defendant’s signature to what he represented a duplicate of the contract, but which was, in fact, the promissory note sued on, etc. The defendant verified his first two pleas by his affidavit.</p> <p>A trial was had, resulting in a verdict and judgment for the plaintiffs, and the defendant brings the record to this court.</p>

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

<p>Injunction — to prevent judgment against land for taxes that have teen paid—remedy at la/w. On bill filed to restrain the collector from applying for judgment, and selling lands for .taxes of a prior year, on the ground that such taxes have been paid, it was held that the fact of payment was a complete defense to the proposed application for judgment, the remedy at law being complete.</p>

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

<p>1. Chancery practice—consolidation of causes. While the general chancery practice is opposed to the consolidation of cases having different parties and involving different rights, yet such a practice is proper when the litigation grows out of the enforcement of mechanics’ liens under the statute, and may be necessary, in some cases, to enable the court to settle and adjust the rights of the various lien holders, or those claiming liens.</p> <p>2. Same — defendant may make his answer a crossMll. The defendant m a chancery suit may, after fully answering the complainant’s bill, state new matter, entitling him to affirmative relief, as he would in a cross-bill, and pray, in conclusion, for the relief sought, or, in other words, may make his answer a cross-bill as well as an answer, and have affirmative relief thereon.</p> <p>3. Same — crossMll not necessary in mechanics’ lien case. In proceedings to declare and enforce mechanics’ liens under the statute, it is not necessary for a defendant who claims a lien to file a formal cross-bill to entitle him to relief. The proceeding under the statute is to subject the property, not to the payment of the petitioner’s claim alone, but to make it a fund for the satisfaction of all the liens established; and a party, under his answer, whether brought into court by service, or who intervenes, is required to prove his claim, and, when proven, he is entitled to share in the fund.'</p> <p>4. Abatement —pendency of prior suit. Where parties who had commenced suits to enforce liens under the lien law, during the pendency of their suits intervened in a suit in another court, brought to enforce a mechanics’ lien, it was held, that a demurrer was properly sustained to a plea setting up the pendency of their suits, as to allow such a plea would be to defeat the statute requiring all persons in interest to be parties, and,' in many cases, be productive of great delay. Their prior suits would be dismissed after such intervention, on application.</p> <p>5. Mechanics’ lien — transfer and consolidation of causes. Where several suits are brought in different courts in the same county, under the mechanics’ lien law, for the enforcement of different liens on the same property, by different parties, the better practice would be for the one court to transfer its causes to the other, so that they can all be consolidated and tried together. This should be done upon a simple showing of the facts.</p> <p>6. Same—contract need not be for a definite amount. In a proceeding for a mechanics’ lien, it was objected that a material-man was not entitled to a lien because he made no agreement with the owner of the building for a specified amount of material, but that it was obtained as required for use in the progress of the building: Held, that the contract was embraced in the act of 1861, and he was entitled to a lien.</p> <p>7. Same—priority over incumbrance by deed of trust. A deed of trust made and delivered before, but not recorded until after, the making of contracts for the building of a house on the premises and materials therefor, will not have priority over the lien of the parties making such contracts, but the lien of the latter will take precedence of the lien created by the deed of trust.</p> <p>8. Real estate —furnace in building. While stoves put up in a building are personalty, yet a furnace placed in the building to remain there permanently is regarded as a part of the realty, as much so as a steam engine in a mill or factory. Whether this would apply to a lessee is not decided.</p>

<p>Evidehce—instruction as to presumption of fact. In a suit against a common carrier, to recover for the loss of the greater part of a shipment of carboys, part containing nitric acid and the others containing sulphuric acid, the former being of much the greater value, the proof was unsatisfactory as to the proportion of each shipped; but there was proof tending to show that the car contained the acids in the usual proportions to be mixed in the manufacture of nitro-glycerine. The court, at the request of the defendant, instructed the jury that “ the legal presumption is, that, the burden of proof being on the plaintiff, all the said acids so lost, and not proven to have been nitric, and most valuable, must have been sulphuric, and of the least value: ” Held, that the instruction did not state a correct legal principle, under the evidence, and was highly calculated to mislead the jury. There is no legal presumption in such a case, but it is purely a question of fact, from the evidence, whether the carboys, or most of them destroyed, contained nitric or sulphuric acid.</p>

<p>1. Evidence — assault and battery—threat not communicated. On the trial of an action of trespass for an assault and beating, the defendant offered to prove that the plaintiff told the witness, just before the difficulty, that he was going to see the defendant, and “ if he didn’t pay Mm, he would fix him,” which the court refused to admit. The remark was not communicated to defendant before the difficulty: Held, that the court did not err, and the remark was unimportant in itself, and not so closely con. nected with the affair as to make it a part of the res gestee,as it was not communicated to the defendant.</p> <p>2. Excessive damages — trespass to the person. Where on the trial of an action of trespass to the person the proofs showed that plaintiff demanded payment of a note of the defendant, and on his refusal denounced him as a swindler; that for this provocation he made an assault upon plaintiff, and struck him a violent blow over the head with an iron bar—an instrument sufficient to have produced death—inflicting a severe injury, which kept him from labor for several weeks, at which he had been earning $4 a day: Held, that $600 damages were not excessive,</p> <p>3. Assault and battery—abusive words no justification. The charging of a party as being a swindler is no justification for his assaulting and beating the person using such abusive words.</p>

<p>1. Specific perfobmauce—vendor cannot enforce unless Tie is able to make the title contracted for. Where a purchaser has contracted for a good title, of record, upon bill filed by the vendor, it appearing that the latter had not such a title as he covenanted to convey, the court will not compel the vendee to take a title depending upon adverse possession under the statute of limitations, although it may be a good title, as that would be to enforce a different contract from that of the parties, a good title of record and one depending upon parol evidence being substantially different.</p> <p>2. Same — whether taking possession is a waiver of objection to title. Where, by the terms of a contract for the sale or exchange of lands, the vendor was to give immediate possession upon the completion of certain improvements, and to furnish abstract of title, there being no time fixed for the last, this will have an important bearing upon the question of waiver of objections to the title by the vendee in taking possession, as possession in such case is consistent with the contract,</p> <p>8. The mere act of taking possession of real estate and exercising acts of ownership over it will not preclude the purchaser from his right to investigate the title, unless the court is satisfied that he intended to waive, and has actually waived, such right. The waiver is a question of intention, and one of fact from all the circumstances, and not an arbitrary presumption of law from the mere fact of taking possession.</p> <p>4. Evidence—in chancery must have its foundation in the pleadings. It '.s a well settled rule, that every material allegation must be put in issue by the pleadings, and no interrogatories can be filed which do not arise from, or relate to, some fact charged in the complainant’s bill.</p> <p>5. When a waiver of objection to the title is relied on as a ground for specific performance of the contract of sale, the vendor’s bill should be so framed as to put that question in issue, or evidence to prove the waiver cannot be received.</p> <p>6. Chancery — complainant confined to grounds of relief stated in Ms bill. On bill by a vendor for specific performance which proceeds on the ground that the vendor had the very kind of title he agreed to make, and that he furnished an abstract showing it, which was satisfactory, and alleges that the vendee went into possession, the vendor, on failing to establish such a title as he agreed to give, will not be allowed to set up and insist upon a waiver of objection to the title by the purchaser by his taking possession.</p>

<p>1. Contract—promise to pay debt of another to prevent a levy upon property claimed, by promisor. Where judgment was recovered against A & B, the latter being surety, only, for the former, and execution issued thereon, and the son of A, who claimed to have purchased A’s property, and who was then in possession of the same, agreed with B, the surety, that, if he would settle the judgment on as reasonable terms as he could, and pay the same, he, the son, would pay him the amount so paid, and the surety did settle and pay the judgment, it was held, that the son of A was liable, on his contract with the surety, to pay him the amount paid to settle the judgment, with six per cent interest.</p> <p>2. Statute of frauds—promise to pay the dM of another. Where a surety in a judgment upon which execution is issued has the right to have the debt collected out of property of the principal, and a son of the principal induces him to forego such remedy and pay the judgment, upon his promise to repay him, the contract to pay will not be within the statute of frauds, as a promise to pay the debt of another, but will be regarded as an independent and original contract.</p>

<p>1. Lease—rule for determining whether instrument isa lease or agreement for. la determining whether an instrument is a lease or only an agreement for a lease, the question is one of construction, to be determined from what appears to be the paramount intention of the parties, as collected from the whole tenor and effect of the instrument. And the same rule applies where the agreement is not reduced to writing, the words used indicating the intention.</p> <p>2. Same — whether am, agreement is a present leasing or a contract to lease. Where a party was in possession of premises under an unexpired lease, and it was agreed, verbally, between him and his lessor that he should have the premises for another year, commencing at the expiration of the existing term, upon the same terms, a written lease to be executed, and the old lease was not cancelled, and a few days before the new term was to commence the landlord withdrew his proposition and rescinded the verbal agreement, so that there was no time before such rescission that the lessee could have entered under the verbal agreement: Held, that this was not a present leasing, but only an agreement for a lease.</p> <p>3. Contract—whether rightfully rescinded. Where the owner of property in pursuance of a verbal agreement to lease the same, no time being fixed for the execution of the lease, within a reasonable time before the term was to commence executed in duplicate a lease, one copy of which he signed, and sent the other to the party desiring to lease, to be signed by him, with directions to deliver the one signed by the lessor when this was done, and the other party, making no objection to the lease or its terms, declined to sign, and did not sign it until a few days before the term was to commence, and until he was notified that the offer to lease was withdrawn, he furnishing no excuse for the delay: Held, that the owner was justified in rescinding his agreement to lease, and the other party could not thereafter insist upon the verbal agreement.</p> <p>4. Where no time is fixed for the performance of a verbal contract to execute a written lease, and one party refuses to comply by executing a lease sent him, in a reasonable time thereafter, the other will have the legal right to rescind the agreement.</p> <p>5. Landlord and tenant — where party holds over after time expires with notice that new terms will be required, his assent willbe presumed. Where a party who had leased a part of a dock-yard was notified by the owner,before the expiration of his term, that he could have the same no longer, unless he took the entire premises and paid a certain price per foot frontage as rent, and the tenant held over, and occasionally did use the entire premises, but objected to the new terms sought to be imposed: Held, that by remaining for another year after such notice, notwithstanding his objection, he became liable to pay for the whole premises according to the new terms imposed, and that it would be presumed he finally acceded to them.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Samuel M. Moore, Judge, presiding.</p> <p>This was a bill in chancery, by John Doyle and Peter Johnson against Michael B. Bailey and the board of county commissioners of Cook county. The object of the bill and facts of the case are stated in the opinion of the court.</p>

<p>1. Chancery jurisdiction—remedy at lam — interpleader. Where a bill in equity showed that the complainant employed one B to do certain work in the erection and completion of a house, for which he was to pay $6,075, that he had made payments amounting to $5,883.72 ; that B failed to comply with the terms of the contract, and did not complete the work to be by him performed, in a careful, skilful and workman-like manner, specifying particularly wherein he so failed; that complainant was damaged thereby $1,000, and much more than otherwise would be due under the contract, and that there was nothing due to B; also charging, that since such payments, the complainant had received notices from many persons claiming liens as sub-contractors, whose claims amounted to $4,500, and that they have brought suits against him, and that he was not liable to any of them, and that B was insolvent, and praying for an account to be taken to ascertain if he owed any thing, and, if so, that the same be apportioned between the several claimants: Held, that the facts alleged did not bring the case within any recognized principle upon which either a bill for interpleader, or bill in the nature of a bill of interpleader, would lie, and that upon the facts stated his defense was complete to each of the suits against him.</p> <p>2. Parties in chancery — reforming contract for mistake. On bill to reform a contract on the ground of an alleged mistake therein, the other party to such contract is a necessary party, and if the bill is dismissed as to him, no relief can be had.</p>

<p>1. Forfeitures—not favored. Courts of justice do not regard forfeitures with, favor, and they are never enforced unless the evidence is clear that such was the intention.</p> <p>2. Same — where the course of dealing has led pa/rty to believe a forfeiture would not be exacted. If the practice of an insurance company and its course of dealings with the insured, and others, known to the insured, have been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event, will not be insisted on, the company will not be allowed to set up such forfeiture as against one in whom their conduct has induced such belief.</p> <p>3. Insurance — acts of company leading policy-holder to believe forfeiture would not be insisted on. Where a policy of insurance provided for forfeiture for non-payment of premiums when due, and the company received payment of the same after due, without objection, and sent out letters with the following words printed in prominent letters: “ Every policy is non-forfeiting,” so as to lead the assured to believe that no forfeiture would be exacted, it was held that these facts were sufficient to prevent the company from insisting upon a forfeiture because a subsequent premium was not promptly paid when due.</p> <p>4. Same — when notice is required before declan'ing a forfeiture. Where, by the terms of a policy of insurance on the life of a party, he was required to pay one-half of the annual premium in cash, and give a note for the other half, together with the amount unpaid of previous notes, with the interest thereon, less his dividend or share of-the profits, which was to be deducted from the sum for which he was to execute his note, it was held that the company was bound to give the party notice of the amount for which his note was required, and the amount to be paid in money, before it could insist upon a forfeiture of the policy for a failure to give the note in renewal and make payment.</p> <p>5. Forfeiture—when notice is first required. In some cases, the necessity of notice before insisting upon a forfeiture, springs from the nature of the contract, though nothing be said about it. Generally, when any thing is to be done by one party on the performance of some act by the other, the latter must give notice of the act, unless it be one that carries notice of itself. Where the extent of the act to be performed depends upon facts within the peculiar knowledge of the other party, notice must be given by the other party before he can declare or insist upon a forfeiture provided in the contract.</p> <p>6. - Same—waiver, by insisting upon different grounds. Where the president of an insurance company which had insured the life of a party, when written to after the death of the assured, refused to pay the policy, placing his refusal to pay upon the ground that the last premium had not been paid when due, the company knowing the facts, which ground proved to be untenable, it was held that this was a waiver of any ground of defense growing out of the fact that the insured engaged in navigating the Mississippi river before his death, contrary to a condition in the policy, or was evidence of a permit, in a case where the evidence on the question of a permit was conflicting.</p> <p>7. Agency— acts of agents of corporations, when binding. Where a ‘person is held out to the public as a general agent of a corporation, and he so represents himself, and acts as such in other matters, his acts, as such, in a particular case, will bind the corporation, even though, according to his secret instructions, he may have transcended his authority.</p>

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

<p>1. Surety — when released—fraud, hy creditor. If, with the knowledge or assent of the creditor, any material part of the transaction between the creditor and his debtor is misrepresented to the surety, the misrepresentation being such that but for the same having taken place, either the suretyship would not have been entered into at all, or being entered into, the extent of the surety’s liability might thereby be increased, the security so given is void at law, on the ground of fraud.</p> <p>2. Same — not released hy fraud, of his principal unknown to the creditor. The creditor is not responsible for communication or want of communication between the debtor and his surety, unless he has himself' been guilty of some fraudulent practices. The fact that the surety may be assured by the debtor that the note indorsed by the latter would be taken in full satisfaction of the creditor’s claim, when, in fact, such was not the case, but the debtor was to give his own note for the balance due, will not release the surety so indorsing, unless the creditor had knowledge of the fraud so practiced on the surety.</p> <p>3. But if the creditor had represented to the surety that he was compromising with his debtor by taking his note for one-half the sum due, with the surety as indorser, and by a secret arrangement not communicated to the latter, did any thing which increased his liability, or which, if known, the suretyship would not have been entered into, then the security taken would be void on the ground Of fraud attributable to the creditor.</p> <p>4. Same —creditor not hound to disclose facts to surety when not asked for information. Where a creditor receives from his debtor the promissory note of the latter, payable to a third party, who indorses the same as surety, in part payment of his claim, and the debtor’s individual obligation for the balance, without any knowledge of the representations which induced the surety to indorse, he is not bound to disclose the fact that he has taken the debt- or’s individual obligation for the balance of his debt, to the surety, unless applied to by him for information.</p>

<p>1. Tbesfabs— consequential damages. In trespass for breaking and entering plaintiff’s close and carrying away certain tools and chattels, the defendant attempted to justify the entry to distrain for rent due and in arrear, but the defense failed on account of a variance in the allegations and proof as to the terms of the leasing; but it was held, the general issue being pleaded, that, if the relation of landlord and tenant existed, and the entry was made to distrain for rent in arrear, no consequential damages could be allowed the plaintiff for an injury to his business.</p> <p>2. Same—damages, recoupment. If tenants abandon the premises leased by them, or are about abandoning them, and the landlord enters and distrains for rent due and in arrear, in trespass by the tenants, under the general issue, the plaintiffs can only recover the value of the property taken, after deducting therefrom the proceeds of it which were applied in payment of the rent due, with legal interest on the balance.</p>

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

<p>1. Chattel mortgage—when sale under it presumed to ham been according to power. Where a party had given a chattel mortgage upon the furniture in a hotel, and afterwards, with the consent of the mortgagee, sold the same to another party, who assumed to pay a portion of the debt to the mortgagee, and the mortgagor gave the mortgagee his notes for the balance due, including an additional indebtedness secured by mortgage on real estate, and on bill to foreclose this latter mortgage by an assignee, the mortgagor set up in defense the sale of the furniture by the mortgagee under the chattel mortgage, and asked for an account of the proceeds of such sale, with a view to have the overplus, if any, credited upon the notes sought to be collected by foreclosure, there being no irregularity charged in the sale under the mortgage, it was held not incumbent on the complainant to produce in evidence the chattel mortgage, as it would be presumed that it was an ordinary mortgage with the ordinary power of sale, and that the sale was made in accordance with the power.</p> <p>2. Assignor — when liable without diligence. Where, at the maturity of the first of two assigned promissory notes, one of the makers has left the State, and the other maker is insolvent, and at the time of the maturity of the second, both of the makers have left the State, these facts will excuse any diligence of the holder by suit, and the liability of the indorsers will become fixed without such suit against the makers.</p> <p>8. Collateral security — damages for neglect to enforce. Where a party who has assigned promissory notes secured by mortgage upon real estate, seeks to recover or have allowed him damages for a neglect to enforce payment by foreclosure, or otherwise, he must show that he has sustained damage in consequence of such neglect. The party receiving such notes can be liable only for the actual damages occasioned thereby.</p>

<p>1. Notice—afforded by recording deed not affected by destruction .of records. The destruction of the record of a deed of trust will in no manner affect the constructive notice afforded by its being recorded.</p> <p>2. Recording—sufficiency of proof that a deed was not recorded. Proof by an attorney of a purchaser of real estate, where the records were destroyed by fire, that he examined an abstract of the title to the property, which purported to be a full and complete abstract, and did not find a prior deed of trust upon the premises, is not sufficient to show there was no record of the same, there being evidence that the deed was filed for record on the day of its execution, as it does not follow that the abstract was what it purported to be.</p> <p>3. Chancery practice—evidence must he preserved. Where the record shows that, upon the dissolution of an injunction, evidence was heard upon the assessment of damages, but does not show what the evidence was, nor what facts were found therefrom by the court, a decree awarding damages will be reversed for the error.</p>

William Browst, Judge, presiding. This was an action of assumpsit, brought by Samuel Hicks against Benjamin C. Whitlock. Both the parties resided at Warren, Jo Daviess county, Illinois. The opinion states the facts of the case.

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, brought by Thomas H. Foster and Augustine JST. Lee, partners, under the firm name of Foster & Lee, against James B. Waller and A. R. Alexander, executors of the will of R. A. Alexander, deceased. The opinion states the material facts of the case.

Lambert Tree, Judge, presiding. This was an action on the case, brought by Gerhard Scholten, administrator of the estate of Berend Scholten, deceased, under the statute, against the city of Chicago, for causing the death of the intestate, through negligence in respect to the sidewalks of the city. A trial was had before a jury, resulting in a verdict of $2,833.33, upon which judgment was rendered.

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

William W. Farwell, Judge, presiding. This was a bill in chancery, filed by James H. Eees, Luther H. Pierce, Elisha E. Hundley, partners composing the firm of Eees, Pierce & Co., against Otto Peltzer, Edward A. Fox, Gr.

William W. Farwell, Judge, presiding. This was a bill in equity, filed by Charles A. Gregory against George R. Clarke, trustee, and J. C. Burrage, to enjoin the sale of certain real estate under certain deeds of trust executed by the complainant. The material facts appear in the opinion of the court.

<p>1. Waerant to arrest for criminal offense — sufficiency of affidavit. An affidavit made before a justice of the peace, that the affiant, at, etc., on, etc., “had a saddle and sheep skin stolen from his barn in said place, and that he verily believes they are now in possession of a man, name unknown, a large size man, riding a sorrel mare with a light mane and tail, and young colt running after, when last seen, who stayed last night at Edmund Russel’s, in Persifer township, this county,” is wholly insufficient to confer jurisdiction upon the justice to issue a warrant for the arrest of the party described, as it fails to show that such person was guilty of any crime, and that affiant had just and reasonable grounds to suspect, or did, in fact, suspect he was guilty, and the warrant issued thereon is void.</p> <p>2. Escape—criminal liability of officer. A constable will not be liable to a criminal prosecution for voluntarily allowing a prisoner to escape, for whose arrest he holds a warrant, fair on its face, for a criminal offense, if the affidavit on which the same was issued fails to give the court issuing it jurisdiction; nor will the prisoner be liable for resisting arrest in such a case. °</p> <p>3. Process — when fair on its face is a protection to officer, and nothing more. The rule that a ministerial officer is protected in the execution of process issued by a court or officer having jurisdiction of the subject matter and of the process, if it be regular on its face, and does not disclose a want of j urisdiction, is a rule of protection merely, and beyond that confers no right. If the court issuing the same was not authorized to do so, for want of a proper complaint, the officer to whose hands it comes, when sued for neglect of duty or prosecuted criminally, may show in defense such want of jurisdiction.</p>

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

W. W. Heaton, Judge, presiding. This was an action of assumpsit, brought by Franklin Smith against the Western Union Eailroad Company, to recover a balance claimed to be due, for work and labor under a contract, and for extra work outside of the written agreement. The material facts of the case are stated in the opinion.

<p>1. Mechanic’s lien — limitation, as to subsequent creditors. Where the petition for a mechanic’s lien is not filed within six months after the completion of the work, and the money for the labor and materials is due, tlio lien given by statute cannot prevail over the liens of intervening creditors, or the rights of others acquired by purchase under such intervening liens.</p> <p>2. Contbact — construed as to the number of buildings to be erected. Under a contract, by which the contractor is to do all the mason, stone and brick work, and furnish the materials for a company in the erection of its works and appurtenances, no number of buildings being specified, and it not being known just what buildings the company would require, the contractor will have no right to insist upon the erection of any certain number-of buildings, but only such as the company may elect to have erected.</p> <p>3. Same — when buildings erected under such contract will be regarded as disconnected from, those first built, in famor of intervening creditors. Where, under a contract to do all the labor and furnish all the materials of a certain kind for the erection of such buildings and appurtenances as the owner might require for certain purposes, the contractor did all the work he was required to do, or nearly so, on the buildings required to be erected, and settled for the same; and, after the Chicago fire, and a temporary suspension of the owner, growing out of the fire, he furnished labor and materials in the following year on other buildings connected with the first, but which could have been omitted, and then filed his petition to enforce his lien for the several sums due him, including that due in'the first year, it was held, in favor of intervening creditors, who were sought to be postponed as to the whole of the contractor’s claim, that the last work, etc., could not be held to be a continuation of the first, but rather as a new and independent undertaking.</p> <p>4. Mechanic’s lien — the fact that a prior trust deed was upon an equitable estate will not postpong it to the 'mechanic’s lien. The fact that a company -was the. equitable owner, only, of land, and in procuring a loan had the party holding the legal title in trust for it, execute a deed of trust thereon to secure its repayment, will not affect the lien acquired under such deed, and postpone the same in favor of a subsequent lien obtained under the statute in favor of one performing labor and furnishing materials for the erection of buildings thereon, and give the latter precedence.</p> <p>5. Same—final decree should settle the rights of the several creditors according to their priorities. Where, in a proceeding to enforce a mechanic’s lien, prior rights are set up under mortgages and deeds of trust, and judgment creditors interplead after verdict, it is error to render a final decree on the verdict in favor of the petitioner without first ascertaining and determining the interests of all the parties. This should first be done, and the decree of sale should direct the mode of distribution of the proceeds according to the priorities of the several claimants.</p> <p>6. Same —when party claiming prior lien, not bound to contest petitioner's claim before the jury. In a suit to enforce a mechanic’s lien, where the only issue submitted to the jury is the right of the petitioner to a lien, and the amount due him, defendants, who set up prior liens, need not appear before the jury and contest the petitioner’s rights, as the question of priority of liens is not before the jury, and their verdict will not settle that question.</p> <p>7. Chancery practice—new party acquiring interest pendente life. Where a party, pendente lite, takes an assignment of the interest of one of the parties to the suit, he may, if he pleases, make himself a party to the suit by a supplemental bill, but he cannot, by petition, pray to be admitted to take a part as a party defendant.</p> <p>8. Where a person acquires the interest of a defendant in a suit to enforce a mechanic’s lien, during the pendency of the suit, and by amended petition he is made a defendant, his position will he precisely that of his assignor, and no reason is perceived why he cannot avail of the answer of his assignor previously filed.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Edwin S. Lelamd, Judge, presiding.</p> <p>This was ah action of replevin, brought by Ruth W, Brower against John Colwell, to recover the possession of a piano, claimed by the plaintiff.</p> <p>The defendant pleaded five pleas, which were in substance as follows:</p> <p>1. That the goods were not the goods of the plaintiff, but were the goods of one George Buckley, against whom the defendant and A & B had recovered a judgment before a justice of the peace for $62, etc., and that on, etc., an execution was issued on said judgment by the said justice of the peace, and placed in the hands of a constable of said county, under and by which, said constable levied upon said goods and chattels as the property of said Buckley.</p> <p>2. That on, etc., this defendant and A & B, partners, etc., recovered a judgment before Aaron B. Smith, one of the justices of the peace of said county, against one George Buckley, for the sum of $62.91, besides costs of suit; that on, etc., the said justice issued upon said judgment an execution, directed to any constable of said county; that said execution was, on, etc., delivered to one George W. Fuchs, who was then and there a constable of said county, which said judgment and execution then and there were, and still are in full force, unpaid and unsatisfied, to execute; that, at the said time last aforesaid, at, etc., said plaintiff had in her possession a piano, similar and like unto the piano described in said declaration, and not readily distinguishable therefrom, which was then and there the property of the said Buckley; that said plaintiff falsely and fraudulently represented to the said constable, and by her false and fraudulent actions and conduct, induced said constable to believe that the said piano in said declaration mentioned was the piano of the said Buckley, which the said plaintiff then and there had in her possession, and thereby, then and there induced the said constable to levy thereon, as the goods and chattels of the said Buckley; that thereupon, the said plaintiff, then and there, fraudulently removed the said piano of said Buckley from said county of La Salle, and after she had so removed the said piano, the property of said Buckley, from said county as aforesaid, she claimed the said piano described in said declaration as the property of the plaintiff, and this is the taking and detention complained of in said declaration, and this the defendant is ready to verify, etc.</p> <p>3. The third plea is the same as the second to near the close, after which is the following: And the said defendant further says, that by the said false and fraudulent representations, and the false and fraudulent conduct and actions of said plaintiff, by which said constable was induced to levy on the said piano described in said declaration, and, by her said action in fraudulently removing the said piano, the property of said Buckley, from said county, the said plaintiff is estopped from claiming the said piano in said declaration mentioned, and from denying that the same is the property of said Buckley, and that she is also estopped from denying that said constable has a lawful right to retain the said piano in said declaration mentioned, and to sell the same under said execution, and this said defendant is ready to verify, etc.</p> <p>4. That on, etc., A & B, partners, etc., recovered a judgment against one George Buckley, before one Aaron B. Smith, a justice of the peace of said county, for the sum of, etc., which said judgment is still in full force, unpaid and unsatisfied; that on, etc., the said justice of the peace issued an execution upon the said judgment, directed to any constable of the said county of La Salle, and delivered the said execution to one George W. Fuchs, who was then and there a constable of said county, for collection ; that said constable afterwards, to wit, on the day and year in said declaration mentioned, endeavored to levy the said execution upon a piano as the property of the said Buckley, then in plaintiff’s possession, but not the property of the plaintiff, and other and different from the piano in said declaration mentioned, and said plaintiff then and there suffered and permitted said constable to levy the said execution upon the piano in said declaration mentioned, the goods and chattels of the plaintiff, the said plaintiff then and there well knowing that said constable intended to levy said execution upon another and different piano, not the property of the plaintiff, as the goods and chattels of the said Buckley; that said plaintiff well knew that said constable did not intend to levy upon the said piano in said declaration mentioned, but that he intended to levy the same upon another piano, then in said plaintiff’s possession, as the property of said Buckley, and the plaintiff having full knowledge of the aforesaid facts, knowingly suffered the said constable to levy on the piano in said declaration mentioned, and thereupon then and there removed the said piano upon which said constable intended to levy as aforesaid, from said county, and this is the taking and detention complained of in said declaration. Therefore, this defendant avers that said plaintiff is estopped from claiming said piano in said declaration mentioned as against said execution, and this he is ready to verify, etc.</p> <p>5. The fifth plea sets up the recovery of the judgment, the issuing and delivery of the execution to the constable as in the fourth plea, except that the judgment was in favor of the defendant and A & B, partners. It then alleges that said constable endeavored to levy the said execution upon a piano, then in plaintiff’s possession, as the property of said Buckley, other and different than the piano in said declaration mentioned, the said piano upon which said constable was seeking to levy said execution, not being the property of the plaintiff; that by mistake, the said constable levied said execution upon the piano in said declaration mentioned, being the property of the plaintiff; that said plaintiff then and there knew of the mistake of said constable, but failed to correct the same; that said plaintiff then and there removed the said piano upon which said constable intended to make the levy, from said county, well knowing at the time of such removal that said constable had levied upon the piano in said declaration mentioned, supposing it to be the piano which said plaintiff caused to be removed from said county, as aforesaid. Therefore, this defendant avers that said plaintiff is estopped as against said execution from claiming the piano in said declaration mentioned, and this he is ready to verify, etc.</p> <p>The plaintiff replied to these pleas as follows: Replication to first plea—that the goods and chattels were not the property of said Buckley, but that of the plaintiff. Replication to second plea—that she did not falsely and fraudulently cause the said constable to believe that the said piano was the piano of said Buckley. Replication to third plea—that she did not falsely and fraudulently cause said constable to believe that said piano was that of said Buckley.</p> <p>Replication to each of said pleas, one, two and three — that the firm named did not obtain judgment and execution as alleged.</p> <p>To the second and third pleas, that plaintiff had not in her possession a piano of said Buckley, as alleged.</p> <p>To the fourth plea, that she did not suffer and permit said constable to levy on the piano in the declaration mentioned, well knowing that he intended to levy on another piano.</p> <p>To the fifth plea, that she was not present at the time and place, and did not know that said constable levied on said piano, by mistake, as alleged.</p> <p>To the second, third, fourth and fifth pleas, that the Buckley piano was in the custody of the law, under and by virtue of the. levy of a writ of replevin, etc.</p> <p>By leave of court, she also filed an additional replication to the second and third pleas, that J. Bauer & Co., on the 10th of May, 1872, sued out a writ of replevin from the circuit court of said county against one James Cross for one piano, which is the same piano, as the one alleged to be the property of said Buckley, which writ was executed, and the piano delivered to J. Bauer & Co.; and, at the time of the taking by said constable, said action was still pending and undetermined; and said piano, which is in said pleas alleged to be the property of said Buckley, was by reason of the premises at the time of said taking, in plaintiff’s possession, as agent of said Bauer & Co., and in the custody of the law.</p> <p>The court sustained a demurrer to plaintiff’s four replications last above stated, and granted leave to file a second replication to the fourth and fifth pleas. The defendant withdrew his first plea, by leave of court, before trial.</p> <p>The material facts of the case are set forth in the opinion of the court.</p>

<p>Appeal from the Circuit Court of Stark county; the Hon. H. B. Hopkins, Judge, presiding.</p> <p>The Peoria & Bureau Valley Railroad Company was empowered by its charter to construct its road across any streams of water its route might intersect, but was required to restore such streams so crossed to their former state, or in a sufficient manner not materially to impair their usefulness. Its line was from the city of Peoria to Bureau Junction. It intersected a stream called the Snatchwine — not navigable, but one of great volume of water at times. A bridge was necessary. One was built by that company. It was of piles and superstructure, but the spans were only seventeen feet apart. It was completed about the beginning of the year 1854, and thereupon, in February of that year, said company leased its entire road and appurtenances to the Chicago & Rock Island Railroad Company; the latter, taking possession under the lease, continued in the operation of the road until August 20, 1866, under that corporate name. In 1857 a portion of this bridge was carried away by a freshet. The Chicago & Rock Island Company repaired it, but upon the original plan. In the latter part of 1865, and early part of 1866, the last mentioned company constructed. a new bridge across the stream, at the same place. That, also,' was made of piles, with superstructure for track, and the spans were enlarged to the width of fifty feet, instead of seventeen, as those of the old bridge were.</p> <p>But, in making the new bridge, the piles of the old one were suffered to remain, a portion of the tops having been cut off. The new bridge was completed in March, 1866, and on the twentieth of the next August the Peoria & Bureau Valley E. B. Co. and the Chicago & Bock Island E. E. Co. were amalgamated into the appellant corporation, the latter operating the road and using the bridge on the condition as stated, from thence to the time of the trial. This suit was to recover damages to appellee’s land, occasioned by being overflowed, caused, as it was alleged, by the bridge and piles remaining in the bed of the stream. Evidence was given tending to show that these old piles, in connection with those put in for the new bridge, caused accumulations of sand and drift-wood, resulting in the overflow and damage to appellee’s land.</p> <p>The defendant claimed below: 1. That the provision of said charter, as to crossing and restoring streams, applied only to navigable streams, and as this was a mere private water course, it had no application; 2. That appellant was in the same position as a grantee whose grantor had created the nuisance, and could be liable only after notice and request to abate. Instructions embodying these propositions were refused, on which error is assigned.</p>

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

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

<p>1. Landlord and tenant — what will excuse payment of rent. The law is well settled, that if a tenant is evicted from the demised premises, before the expiration of his term, by his landlord, or any one claiming under or through him, or by one under title paramount to that of the landlord, no recovery can be had for rent accruing after the eviction.</p> <p>3. Same—proceedings that may ripen into an eviction will not he a han' to the collection of rent. The fact that the landlord has suffered a decree to be taken for the sale of the demised premises in a proceeding to enforce a mechanic’s lien, in violation of his contract to defend the suit, upon which the premises may be sold and the tenant evicted, presents no ground for resisting the collection of rents by the landlord.</p> <p>3. Chancery jurisdiction—remedy at law. Where a tenant had assigned his lease, and his assignee incurred liability for improvements upon the demised premises, to enforce which a bill was filed for a mechanic’s lien, and to sell the premises in payment, and the landlord contracted with the original tenant, who remained bound for the rents, to defend the suit, which he failed to do, but suffered a decree of sale to pass, it was held, on bill in equity by the tenant to enjoin the collection of rent by distress, it appearing that the landlord was solvent, that a court of equity could not take jurisdiction, as the tenant had a complete remedy at law for the recovery of any damages he had or might sustain by the breach of the contract to defend.</p>

<p>Contbact—damages for delay in completing work not excused by delay in others. Where a party contracts to do the stone cutter’s work of a building so as not to delay any of the other work, and to complete the same by a day named, and he is prevented from commencing the work by other contractors not having done their work, until about the time for the completion of his work, and he then proceeds under the contract, he will be bound by its provisions, except as to the time of completing his work, and for any unnecessary delay on his part thereafter he will be liable tc respond to his employer in damages.</p>

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

<p>Appeal from the Circuit Court of Rock Island county; the Hon. George W. Pleasants, Judge, presiding.</p> <p>This was an action of assumpsit, brought by Sarah Nelson against the Rockford Insurance Company, in the circuit court of Mercer county. The judgment on the first trial was reversed by this court, on the ground that the recovery by the plaintiff was too large. The case is reported in 65 Ill. 415. After the case was remanded, the defendant applied for and obtained a change of venue, and the cause was sent to the circuit court of Rock Island county, where a trial was had, resulting in a verdict and judgment in favor of the plaintiff for $2,915.95 and costs of suit, to reverse which the defendant appealed. The jury also returned a special verdict, in response to the several questions submitted to them as follows:</p> <p>1. Whether the plaintiff, at the time of executing and delivering to the agent of the defendant the application for insurance mentioned in her policy, knew or was informed of the contents of said application ? Answer, No.</p> <p>2. Whether, at the time of the execution of said application for insurance, the building, alleged in the declaration to have been destroyed by fire, was occupied by the plaintiff as a hotel % Answer, Yes.</p> <p>3. Whether the said agent of the defendant, at the time of talcing said application, was prohibited, by defendant’s instructions to him, from taking applications upon buildings occupied as hotels? Answer, Tes.</p> <p>4. Whether, at or before the execution of said application, said plaintiff knew, or was informed that said defendant had prohibited said agent from taking applications upon hotels ? Answer, No.</p> <p>5. Whether the said plaintiff and agent of the defendant, at or before the execution of said application, agreed to represent said building in said application as being occupied by the assured as a residence and boarding house, with intent to conceal from said defendant the occupancy of said building by said plaintiff as a hotel ? Answer, No.</p> <p>6. Whether the plaintiff, in her preliminary proofs of loss made to the defendant after said loss, knowingly and willfully swore falsely to any fact material to said loss, and if so, what fact or facts? Answer, No.</p> <p>7. Whether the plaintiff, in her preliminary proofs of loss made to the defendant after said loss, knowingly and intentionally represented any articles of personal property as having been destroyed by the fire in question, which were not, in fact, destroyed by said fire? Answer, No.</p> <p>8. Whether the plaintiff, in her proofs of loss, made to the defendant after said loss, falsely stated any fact, and if so, what fact or facts, with intent to defraud the defendant \ Answer, No.</p> <p>9. What was the actual cash value of the building in question in this suit at the time of the destruction thereof by fire, not including the value of the lot on which the building was situated? Answer, $2,400.</p> <p>10. What was the amount of the plaintiff’s loss by fire upon her household furniture in said building, estimated according to the actual cash value thereof at the time of said fire ? Answer, $400.</p> <p>11. What was the amount of the plaintiff’s loss by fire upon her beds and bedding in said building, estimated according to the actual cash value thereof at the time of said fire ? Answer, $200.</p> <p>12. What was the amount of the plaintiff’s loss by said fire upon her wearing apparel in said building, estimated according to the actual cash value thereof at the time of said fire % Answer, $150.</p> <p>13. What was the amount of the plaintiff’s loss by said fire upon her provisions in said building, estimated according to the actual cash value thereof at the time of said fire % Answer, $271.</p> <p>14. Whether the occupancy of said building by the plaintiff as a hotel rendered said building more hazardous than it would have been had it been occupied by the plaintiff merely as a residence and boarding house % Answer, No.</p> <p>The other material facts necessary to an understanding of the questions decided appear in the opinion of the court.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore D. Murphy, Judge, presiding.</p> <p>This was replevin in the detinet, brought by appellee against appellant, in the Superior Court of Cook county. The declaration contains one count in replevin for two certified checks for the payment of $2,500 each, and of the value of $5,000; also a count in trover for similar checks. There was no plea of non detmet, but simply a plea of not guilty to both counts. Upon trial on that plea, the jury returned a verdict as follows: “ We, the jury, find the defendant guilty, and that the property replevied in said cause, and the right to the possession of the same, is in the plaintiff; and we assess the plaintiff’s damages herein against the defendant to the sum of $6,275.” Appellant’s counsel moved to have the verdict set aside and for new trial, on the ground, amongst others, that the verdict was against the law and the evidence. The court overruled the motion, and entered judgment that “ The plaintiff do have and retain the property replevied in said cause by virtue of the writ of replevin issued herein, and also that the said plaintiff do have and recover of and from the defendant his said damages of $6,225 in form, as aforesaid, by the jury assessed, etc.”</p> <p>There is no writ of replevin or return of the sheriff contained in the record.</p> <p>The checks in controversy came into the custody of appellant, who was a mere stakeholder, under the following circumstances: Marvin & Kent being the owners of certain land in the town of Jefferson, Cook county, which, it was supposed, would be enhanced in value by the location of a park in West Chicago, under what was known as the West Side Park bill, upon which a vote of the electors was about to be taken, on the 19th of March, 1869, entered into a contract with Welles & Shepard for the sale of that land, as follows:</p> <p>“We, the undersigned, Richard P. Marvin and Alonzo Kent, agree to sell to H.. M. Shepard and F. L. Welles the W. of the M. E. of section 35, in township Mo. 40 north, of range 13 east, for and at the rate of eight hundred ($800) dollars per acre, subject to the provisions in the deeds to them, said vendors, in relation to a street through the same, upon condition that a majority of the votes cast in relation to the bill or act, known as the West Side Park bill, shall be cast in favor of the same, at the time appointed for taking the same, on Tuesday next, and not otherwise; and in case said vote shall be in favor of said bill, and said Shepard & Welles shall, within sixty days after said vote, pay to said Marvin & Kent one-third of the purchase money (said five thousand dollars to be a part of the same), and give their notes, secured by mortgage, with power of sale, for the balance of the purchase money,' in three equal installments, with 7 per cent interest, payable annually, said Marvin & Kent will convey said premises to Shepard & Welles, by good arid sufficient warranty deed; said five thousand dollars to be deposited in the Third Mational Bank of Chicago, to be paid to said Marvin & Kent so soon as said vote shall be declared to be in favor of said Park bill.</p> <p>“ An abstract of title to said land shall be furnished, and title be good, and as soon as said warranty deed is furnished by said Marvin & Kent, ready for delivery at the office of Grant Goodrich, at Chicago, interest is to commence running on said purchase money, in case said vote shall be in favor of said Park bill.</p> <p>“ And in case said vote shall be in favor of said Park bill, and said Shepard & Welles shall not accept said deed of said land as aforesaid, and give their notes and mortgage as above mentioned, then said Shepard & Welles shall, as liquidated damages, forfeit to said Marvin & Kent said five thousand dollars so deposited as aforesaid, which shall immediately become subject to their order.</p> <p>“In case said Park bill shall be defeated, then said five thousand dollars shall be paid back to Shepard & Welles.</p> <p>“ The parties aforesaid agree to keep and perform the stipulations, and make the sale and purchase of said land on the terms above specified.</p> <p>“ In witness whereof, said parties have hereunto set their hands, this nineteenth day of March, A. D. eighteen hundred and sixty-nine.</p> <p>“Richabd P. Mabvln,</p> <p>“Alonzo Kent,</p> <p>“ Fbed. L. Welles,</p> <p>“ H. M. Shepabd.”</p> <p>By verbal arrangement, the bank of appellant was substituted in place of the Third Rational Bank, as the custodian of the $5,000 to be put up, and the separate certified checks of Welles & Shepard for $2,500 each were to be deposited instead of cash. Accordingly, checks were drawn and certified, and Welles gave his check to Shepard, who was to complete the deposit. The checks were payable to the order of appellee, who acted as agent for the vendors. • The checks were inclosed in an-envelope, on the back of which was written the following:</p> <p>“ The within certified checks are deposited with this company, and are to be delivered to Grant Goodrich, in case the vote to-day to be taken in West Chicago shall be in favor of what is known as the West Side Park bill. But in case a majority of votes shall be' cast against the said bill, the said checks are to be delivered to H. M. Shepard and F. L. Welles. March 23, 1869.</p> <p>(Signed) “Grant Goodrich,</p> <p>“EL M. Shepard,</p> <p>“ F. L. Welles, per</p> <p>“ El. M. Shepard.”</p> <p>The vote was taken in West Chicago, resulting in a majority of 519 votes in favor of the bill, which was ascertained and certified by the county clerk, as provided in the act. Upon this, Goodrich demanded the checks of appellant, but the latter, having been instructed by Shepard & Welles not to deliver them up, refused to do so, whereupon Goodrich brought this suit and replevied the checks.</p> <p>The questions presented by the record are: (1) Whether there is any evidence to sustain the verdict as to damages; (2) the appellant not being a party to the memorandum of terms on back of envelope, whether the court erred in holding those terms conclusive, and excluding parol evidence offered to show that the only terms on which the deposit was received by the bank, was that it should be re-delivered upon the joint order of the depositors; (3) whether questions arising upon the original contract between the vendors and vendees were involved in this suit; (4) whether that contract was not void upon grounds of public policy.</p>

<p>1. School districts—new one cannot be formed whose line is brought nearer tlum one mile to any school house. Under section 38 of the school law, no new school district can be legally formed, the boundary line of which shall be nearer than one mile to any school house already built.</p> <p>2. School tax — cannot be resisted on the ground that the district levying the same was illegally formed. Notwithstanding a new school district is illegally formed, this will afford no ground for resisting the collection of taxes levied therein by the directors, as they are defacto officers, exercising an office to which the power to levy a tax is incident. The only mode in which the illegality of the formation of the district can be inquired into, is by an information in the nature of a quo warranto against the directors,</p> <p>3. Officers — acts of de facto officers binding. It is a well settled principle that the acts of officers defacto are as valid and effectual, where they concern the public, or the rights of third persons, as though they were officers de jure, and that the title to an office cannot be decided in a collateral suit, but only in a direct proceeding for that purpose.</p>

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

<p>1. Married woman —power to execute promissory note. While, according to the laws in force in 1870, a married woman might lawfully bind herself in a contract in relation to her separate property, yet the laws then in force conferred no power upon her to become a surety for her husband upon a debt or liability he might see fit to incur, and a promissory note given by her and her husband for a liability he had incurred, was held void as to the wife.</p> <p>2. Same—judgment and sale on note given by wife, void. Where a married woman, in 1870, executed a judgment note as security tor her husband, upon which judgment was entered, and her land was sold under execution issued thereon, and sheriff’s deed executed to the purchaser therefor, it was held, on bill filed by the wife and her grantee, to set aside the judgment, sale and sheriff’s deed, that the same were void, and properly set aside as a cloud upon the title.</p>

<p>Constitutional law—act allowing judges to hold branch courts out of their circuit. The act of May 3,1873, entitled “ An act authorizing circuit judges to hold branch courts in other than their judicial districts,” is not unconstitutional.</p>

<p>1. Negligence—killing of horse aMowed to run at large contrary to law The owner of a horse, who voluntarily permits the same to run at large. contrary to the law in force in the county, cannot recover of a railway company for the killing of the same by one of its trains upon the ground that such company has failed to fence its track at the place where the animal is killed.</p> <p>2. In such a case, where the plaintiff is guilty of contributory negligence, the railway company will not be relieved from its duty to observe all reasonable precautions to prevent injury to the property of the plaintiff.</p> <p>3. Same—railroad company not bound to stop train because an animal is seen near the track. The law imposes no obligation upon those in charge of a train of cars to stop the same upon discovering an animal grazing near the railway track, in anticipation it may get upon the track and be injured, and a failure to do so is not negligence.</p>

<p>1. New trial —matter of lengthy accounts. It cannot be expected that this court will scrutinize every item of a litigated account. It will be sufficient if this court is satisfied there was evidence to sustain the verdict, and that the jury have not misapprehended its force.</p> <p>3. Instruction —repeating same principle. It is not error to refuse an instruction, where another one is modified and given, which presents the same question in substance fairly to the jury.</p> <p>3. Evidence—proof of general custom as against express contract. In a suit where the plaintiff sought to recover for building certain houses, a commission of ten per cent on the cost, where the evidence tended to prove a contract to pay such per cent as commissions, evidence on the part of the defendant, as to what was the general or customary commissions paid on such búildings, is properly "rejected, as the same is wholly immaterial</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John G-. Rogers, Judge, presiding.</p> <p>Jones and Sutherland, being attorneys at law, formed a co-partnership for the practice of their profession. Doctor Dyer, owning and being in possession of offices in the city of Chicago, made an arrangement with said attorneys, under which they were to come into his offices and occupy them without rent,' further than that they should do his ordinary legal business for .the use of the offices. In May, 1871, while Jones & Sutherland were so in the occupation of Dyer’s offices, the latter spoke to Sutherland about the sale at auction of a certain public house, which was to take place on the seventeenth of that month, and, giving reasons for not wanting to do it personally, requested Sutherland to attend and bid off the property for him; the amount not to exceed $45,000. Sutherland readily acceded to the request, and, on the afternoon appointed, the sale took place. Sutherland bid off the property for Dyer, and the latter stepped forward and immediately assumed the responsibility of the purchase. After the conveyance was made, Sutherland then assisted in leasing the property. The sale required the services of Sutherland for part of one afternoon; his assistance in leasing them took considerable time off and on for about a week Jones & Sutherland, assuming that these services were beyond those they were to perform for the use of Dyer’s office, made a charge for them on their book, and afterwards, in March, 187-2, Sutherland brought an action against Dyer for their recovery in the circuit court. This suit was brought under the special care of Sutherland, but in the joint names of himself and Jones. After it had been pending about a month, Jones dismissed it, and gave Dyer a release under seal, discharging him from the cause of action. After the dismissal of that suit, Sutherland scratched out and erased the charge upon the books of his firm, and brought this suit in his own name for the same services, declaring in the common counts, and in his bill of particulars, charges upon the transaction of bidding in the public house for Dyer at $45,000, commissions at the rate of 2J per cent, making $1,125; for services in leasing same house for five years, at $12,500 per year, commissions on the gross amount of rent, $62,500, at the rate of 1¿ per cent, making $781.25. Upon a trial on issues, under the plea of non-assumpsit, the jury returned a verdict in plaintiff’s favor for $1,681.25, from which plaintiff remitted $656.25, and the court, overruling defendant’s motion for a new trial, gave judgment for the balance.</p> <p>Upon the trial, the plaintiff furnished no evidence as to the value of his services, and, giving testimony tending to show a custom as to real estate brokers to have commissions, but none as to attorneys, claimed commissions.</p> <p>On cross-examination, defendant’s counsel put this question to plaintiff: “ In your profession as a lawyer in this city,'rating your services as you say respectable lawyers rate their services, what do you say, in 1871, your services were worth per day ? ” On objection by plaintiff, the court excluded the answer, to which exception was taken.</p> <p>It appearing in the testimony that charges were made in the books of Jones & Sutherland for these same services, and that Sutherland had personally brought suit in the name of the firm, but which Jones had dismissed, the defendant proved the execution, and offered in evidence a release to Dyer of the cause of action, executed under seal by Jones -in the name of the firm. To its admission plaintiff objected. The court sustained the objection, excluded the release, and defendant excepted.</p>

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

<p>1. Injunction — to restrain the collection of taxes. A court of equity will not entertain a bill to restrain the collection of a tax, except in cases where the tax is unauthorized by law, or where it is assessed upon property not subject to taxation, or where the property has been fraudulently assessed at too high a rate. In either of these cases an injunction will properly lie to restrain the collection of the tax.</p> <p>2. State board op equalization—power of courts to interfere with its action. It is not the duty of the courts to exercise any supervisory care over the valuations of property or franchises by the State Board of Equalization, so long as it acts within the scope of the powers with which it is invested, and in obedience to what may reasonably be presumed to be an honest judgment, however much the courts may disagree with it. But whenever the board undertakes to go beyond its jurisdiction, or to fix valuations through prejudice or a reckless disregard of duty, in opposition to what must necessarily be the judgment of all persons of reflection, it is the duty of the courts to interfere and protect the tax payers against the consequences of the act. When its jurisdiction is conceded, no mere difference of opinion as to the reasonableness of its valuations will justify equitable interference.</p> <p>3. Where a bill to enjoin the collection of the tax of a railway company charged that the State Board of Equalization assessed the capital stock of the company, including its franchise, beyond its actual value, and that, in making this assessment, they added to what they had determined the value of the capital stock, not only the indebtedness of the company, but also the indebtedness of six other railroad companies of which it was lessee, one of which lies without the State, for the payment of none of which the company was liable, such indebtedness of other companies so added being $6,756,000, and this latter fact was admitted by a demurrer, and the court below sustained the demurrer: Held, that the court erred in sustaining the demurrer. It was improper to take into consideration the indebtedness of the other companies in fixing the valuation of the property of the company seeking to enjoin the tax.</p>

<p>1. Draft—proof of acceptance. Where the acceptance of a draft or bill of exchange is declared upon, proof that the defendant, upon whom it was drawn, promised to accept the same before it was drawn, and, after it was drawn, verbally promised the holder to pay it, is clearly sufficient to support the declaration.</p> <p>3. Bill of exchange—parrot acceptance good. A parol acceptance of a bill of exchange is as binding and as conclusive as if the acceptance was in writing.</p> <p>3. Common counts. A recovery may be had upon a parol acceptance of a bill of exchange under the common counts.</p> <p>4. Draft—authority to pay. Where a party had agreed to pay to the amount of the value of grain consigned to him by his agent and on his drafts, the shipping receipt accompanying a bill drawn on him by the agent was held sufficient authority in a party to such arrangement to pay the same.</p>

<p>Pbactice —filing additional pleas. It is purely discretionary with the court whether it will allow additional pleas to be filed during the progress of the trial.</p>

<p>1. Appeal—right of, must he exercised under conditions imposed hy law. While the right of appeal from the judgments of county courts is conferred by the constitution, it can only be exercised under such conditions as may be imposed by the legislature.</p> <p>2. Same — deposit of money on a/ppeal from, judgment for taxes. The law requiring a party appealing from the judgment of the county court against his lands for taxes, to deposit a sum equal to the amount of the judgment and costs, is not unconstitutional.</p> <p>3. Injunction — of sale of land for taxes until right of appeal is settled. Where a party attempted to appeal from a j udgment of the county court for the sale of his land for taxes, but which was not allowed for the reason that he refused to deposit the amount of the judgment, as required by statute, and he filed his petition in this court for a mandamus to compel the allowance of his appeal, it was held that a court of equity would not entertain a bill to enjoin the sale of his land until the right of appeal could be decided by this court.</p>

<p>1. Negligence — injury from defective sidewalk. In a suit against a city to recover damages for a personal injury caused by a fall, occasioned by an alleged defect in the sidewalk, where the proof showed that the walk was a new one, laid not more than seven days before the accident, and failed to show that knowledge of any defect therein had come to any of the city authorities, either actual or constructive, and where it was evident that the fall was attributable to the plaintiff’s want of ordinary care, it was held that a verdict for the plaintiff was not sustained by the evidence.</p> <p>2. Same — notice of defective walk. In an action against a city to recover for a personal injury to the plaintiff, caused by a fall from an alleged defect in a sidewalk upon a public street, if the walk was properly and safely constructed a short time before the accident, and appeared to be in a safe condition, the city will not be liable for the injury, without proof that it or some of its officers, agents or servants, having charge of such matters, had actual knowledge of the defect causing the fall, or proof that the defect had existed for such length of time before the injury, that the city authorities, if exercising ordinary diligence, would or should have known of its existence,</p>

<p>1. Taxes—law making report of collector prima facie evidence of taxes due, not unconstitutional. A statute (act of 1873,) making the collector’s return, in writing, to the sheriff or county treasurer, of the taxes levied by a town or city, due and unpaid, under oath, “prima facie evidence that all the requirements of the law have been complied with in the assessing and levying the taxes therein returned as unpaid, are due and unpaid,” is not liable to the constitutional objection that it gives the collector judicial power to determine the question of delinquency, as his report is only made prima facie evidence of that fact.</p> <p>2. Same—impeaching collector’s return. Where the statute required the collector, in case of loss of the records, to make his return of delinquent taxes for the year or years before such loss “ from the best information that he can obtain,” it was held that the collector was made the sole judge of the sources and sufficiency of the information; and that, on an application for judgment, his report could not be impeached, by showing that he did not, in fact, make his report from the best information he could obtain, and that he did not know what lie returned to be true. Proof, however, that his return was not true would be proper.</p> <p>3. Same—pendency of prior application for judgment a bar to second one. The pendency of an application for judgment against land for the taxes of a prior year is a good defense against the rendition of judgment for the same taxes on a second application. The statute prescribing that the causes of objection to the rendering of judgment shall be specified in writing, embraces every defense, and the objector is, therefore, not bound to plead the pendency of the former suit in abatement.</p> <p>4. Statute — when it repeals prior laws by implication. A statute which covers all the grounds of prior ones on the same subject, and revises the whole law on the given subject, necessarily works a repeal of all prior conflicting laws, whether such conflict be found in the provisions of general laws or those of special charters.</p> <p>5. Same—act construed and held repealed. The act of March 22,1872, was intended to supply defects in the charters of incorporated cities and towns in respect to the collection of taxes for corporate purposes, and enable the collection of taxes in counties not under township organization, and was not intended as a permanent provision, but was designed to cease as soon thereafter as a general law on the subject of the collection of revenue should he passed and take effect. Such act, therefore, ceased to be operative on July 1, 1872, when the act of March 30, 1872, took effect.</p>

<p>City of-Chicago—revenue act not applicable to. Section 6 of the act of March 22,1872, entitled “ An act to provide for the collection of revenue, and for the sale of real estate for non-payment of taxes or special assessments for State, county, municipal or other purposes, ” does not apply to the city of Chicago, for the reason that its legislative authority did not have the power to direct the time and manner of the return- of the collector’s warrants therein provided for.</p>

<p>Interest—when recoverable on account. Where a party, owing an account, in October, 1871, admitted its correctness, and promised to pay the same, which he neglected to do, without any excuse, for about three years it was held that he was properly chargeable with interest on the same, the delay being considered, unreasonable and vexatious.</p>

Silvanus Wilcox, Judge, presiding. This was a bill in chancery, exhibited by the Chicago, Burlington & Quincy Bailroad Company, against Henry C. Paddock, collector of Kane county, and John C. Sherwood, county clerk of said county, to enjoin the collection of certain taxes, on the alleged ground of a double assessment of property. After the filing of answers, the court, on motion, dissolved the injunction, and dismissed the bill. The complainant appealed.

<p>1. Deed op trust—whether notice of sale under several, should he consolidated. Where a debt was secured by nine deeds of trust, which were alike except as to the amount of the note secured and the lot embraced in each deed, the court say they were not prepared to hold that it would have been proper to have consolidated the notices of the sale by the trustee, and held that it was not error, upon the dissolution of an injunction restraining the sale, to allow as damages the cost of printing nine notices of the sala</p> <p>2. Same — trustee’s fees. Where $50,000 was secured by nine different notes and trust deeds on different lots, it was held that $150 trustee’s fees allowed as damages, upon dissolving an injunction restraining the sale, was not an unreasonable charge.</p> <p>3. Same—cost of advertising sale after injunction. Where- a sale under a deed of trust is enjoined, the trustee will have no right to incur expense in advertising an adjournment of the sale in anticipation of the action of the court, and if he does, he will not be entitled to have the same allowed as damages, on the dissolution of the injunction.</p>

<p>1. Flowing water upon the land of another. It is well settled that if the owner of a building causes the water to flow from the roof upon the lot or ground of another, such other may recover of him for the damages sustained, unless prevented by some agreement.</p> <p>3. The Owner of land, unless restrained by covenant or custom, has the complete control of the soil, together with the space above and below the surface, so far as he may choose to use it, yet he has no right to injure the property of the adjoining owner. He has no right to flood the property of his neighbor with water from his buildings, and thus destroy its usefulness.</p> <p>3. Statute of frauds — license to flood lands. The right to flood the land of another, whether from the dripping from the roof of a building or otherwise, is an interest in the land, and a parol license or agreement giving such right is within the statute of frauds, and void. Such a license is revocable at any time.</p>

John.Gt. Rogers, Judge, presiding. This was an action of assumpsit, brought by Allan H. Taylor against Herman J. Pahlman and D. Gr. Rush. The opinion of the court states the facts of the case. The defendants bring the record here by appeal.

<p>Appeal from the Superior Court of Cook county; the Hon. Josiah McRoberts, Judge, presiding.</p> <p>This was an action of assumpsit, originally brought by the Franklin Bank against Daniel D. Schrceder, for money paid upon twelve dividend warrants drawn by Thomas Buckley, as assignee in bankruptcy of the Home Fire Insurance Company, upon the Mechanics’ Bank in Chicago, and in favor of various creditors of the bankrupt company. They were in the nature of bank checks, and negotiable. The defendant cashed them for L. Seckel, a clerk of the drawer, and deposited them in the Franklin Bank for collection. The Franklin Bank sent them to the Mechanics’ Bank, which paid them and charged them to the account of the drawer. The payees’ names were upon the back of these checks or warrants when they were transferred by Seckel to the defendant. Hpon discovery that the indorsement of the payees’ names were forgeries, the Mechanics’ Bank credited the account of Buckley with their amount, and returned the same to the Franklin Bank, which took them up and paid their amount to the Mechanics’ Bank. The forgery was discovered on August 4, and the Franklin Bank, upon taking up the checks on August 9, notified the defendant of the forgery, and demanded payment, and on refusal, brought this suit. The Franklin Bank having been put in bankruptcy, Joel D. Harvey, its assignee, on petition was substituted as plaintiff, and recovered judgment, from which the defendant appealed.</p>

<p>Contract — right of contractor to damages for icing delayed in his worh. Where a person employed to furnish all necessary labor and materials, and do every thing specified under the head of mason’s work, etc., in the erection of a building, the iron work and stone cutters’ work to be furnished by the employer, is delayed in the completion of his contract by the delay of the' employer in furnishing the iron work and cut stone, he will be entitled to recover damages occasioned by the delay, and such damages will not be waived by continuing the work until the completion of his contract..</p>

<p>1. Jurisdiction—to determine the person entitled to receive pdyment of debt due from, a bankrupt. Where an insurance company is adjudged a bankrupt, and its assets placed in the hands of an assignee by proceedings in the Federal court, it seems that court has jurisdiction to determine the person entitled to share in the distribution upon a policy of insurance, and to determine whether an assignment of such policy is voidable on the ground of fraud practiced by the assignee upon the original holder; but when the United States court consents, the State courts may also take jurisdiction.</p> <p>2. Fraud—as between vendor and vendee—representations. Where the purchaser of a policy of insurance under which a loss had occurred, and which policy was issued by a company then in bankruptcy, and its affairs were so confused that no one except its officers knew or could know its condition, represented to the owner that he had been informed that the company could not pay more than twelve and a half per cent of its liabilities, and offered to give eleven per cent of the sum due on the policy, and it appeared that the owner did not rely upon such representation, but took several days to inform himself and decide whether to accept the offer, and then accepted the same, and it also appearing that claims on the company were then selling-at ten cents on the dollar, and it afterwards turned out that the company was able to pay from sixty to one hundred per cent of its liabilities, it was held, that the facts would not warrant a court of equity in setting aside the sale for fraud, at the suit of the vendor.</p> <p>3. Mistake—as to value of thing sold, no ground for setting aside a sale. It is not every mistake in the sale of personal property or choses in action, especially where it relates alone to its value, which will call into operation the equity powers of the court. The fact that a claim on an insolvent corporation was believed, by both the vendor and purchaser, to be worth not more than from ten to twelve and a half cents on the dollar, when a subsequent investigation showed that the assets of the company were sufficient to pay from sixty to one hundred cents on the dollar, will furnish no ground for a court of equity to set aside a sale of the claim for eleven cents on the dollar, in the absence of proof of any imposition or fraud practiced by the purchaser on the vendor.</p>