Volume 79 — Illinois Reports

<p>1. Taxes—assesswnis valid, though not returned by the day fixed by law. Athough, under the statute, it is the duty of the town assessor to make return of the assessment books to the county clerk on or before the first day of July, of the year for which the assessments are made, yet a failure to make the return within the time limited does not render the assessment invalid.</p> <p>2. Same—-formal objections not favored. This court is not inclined to entertain merely formal objections to taxes levied by municipalities, where the irregularities complained of do not affect unjustly the rights of the citizen.</p>

<p>Ckedibility of witness—a matter for the jury to determine'. The credibility of witnesses is a question for the jury, and where a defendant in a suit swears to the truth of a plea, and afterwards testifies to a state of facts materially different from those contained in his plea, and the jury find contrary to his testimony, and there is evidence to sustain the verdict, it will not he disturbed.</p>

<p>1. Trust deed—disposition of surplus of proceeds of sale. The maker of "a'trust deed to secure an indebtedness may provide for any disposition of the surplus of the proceeds of a sale under it, after paying the debt, that lie chooses, so that creditors are not defrauded.</p> <p>2. Where a deed of trust authorizes the trustee to sell the land and pay costs, commissions, liens on the land, etc., as well as the particular debt secured, he is authorized to pay, out of the proceeds of the sale, any judgment which may be a lien on the land at the time of the sale, whether it existed at the time the deed was executed or not, and the owner of such judgment can subject any surplus in the hands of the trustee to its payment, after the particular debt secured by the deed of trust is paid.</p> <p>3. Where a deed of trust is given upon several tracts of land, to secure a specified indebtedness, and the trustee is authorized to sell the land and pay the particular debt, and also all costs, commissions and liens on the land, and the holder of the particular indebtedness purchases a judgment rendered against the maker after the execution of the deed of trust, which is a lien upon the land, the authority of the trustee is not exhausted when he has sold enough of the land to pay the particular debt, but he may sell enough to pay the judgment also, provided the judgment is a bona fide debt.</p> <p>4. Lien—under attachment from foreign comity. A levy on real estate of an attachment from another county does not become a lien until a certificate of the levy is duly filed in the office of the recorder of the county in which the land is situated.</p> <p>5. Where an attachment from another county was levied on land the day before it was sold under a deed of trust, but the certificate of levy was not filed until after the sale, the attachment did not become a lien on the land, notwithstanding notice thereof was given at the sale.</p>

Josiah McEoberts, Judge, presiding. On the 10th day of June, 1834, James B. Campbell laid out the town of Juliet, upon land then situate in the county of Cook. A plat thereof was made and recorded. There was a block of land on the plat marked “public ground.” On the 16th of February, 1835, A. W. Bowen laid out the adjoining town of East Juliet. A plat thereof was made and recorded.

Writ of Error to the Criminal Court of Cook county; the Hon. Erastus S. Williams, Judge, presiding. This was a proceeding, in the name of the People, in the criminal court of Cook county, against Wilbur F. Storey, for contempt of court, in the publication of certain articles in “The Chicago Times,” reflecting upon the action of the grand jury in finding indictments against him in said court.

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

W. W. Heaton, Judge, presiding. This was an action for slander, brought by William E. Johnson against Benjamin P. Miller, for words spoken by him to the effect that Johnson was a thief, and had stolen corn and oats from him. The plea was, not guilty. The jury returned a verdict in favor of plaintiff, and assessed his damages at §1000, for which amount the court rendered judgment, and defendant appealed.

<p>1. Guarantobs—liability on a joint guaranty. Where the payees of a promissory note indorse on the back of it, '• For value received, we guarantee the payment of the within note at maturity,” they become jointly and severally liable to pajr the note at maturity.</p> <p>3. In such case the holder, as between the maker and the guarantors, is under no obligation to demand payment of the maker, and, on his default, to notify the guarantors; but it is the duty of the guarantors, and of each of them, on maturity of the note, to go to the holder and take it up.</p> <p>3. Joint guarantors of a promissory note do not stand in the relation of principal and surety, but each one is a principal, and neither one is discharged by the negligence of the holder of the note in not compelling payment by the other of his equitable share.</p> <p>4. Where two persons jointly guaranty the payment of a promissory note payable to themselves, and deliver it to another for a valuable consideration, they may be sued jointly or severally, and it is no defense to the action against one, to show that at the time the note became due the other was able to pay his proportion of it, and that the holder, by suit, could have collected it from him, and that before the suit was brought he had become insolvent.</p>

Josiah McRoberts, Judge, presiding. In 1864, John B. Preston, as guardian of John, Martin F. and Edward Spellman, minors, filed a petition in the circuit court of Will county, for leave to sell certain real estate situated in Cook county, Illinois, alleging in the petition that said minors were residents of Will county. In January, 1865, a decree of sale was rendered in accordance with the prayer of the petition.

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

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

<p>1. Deed—no particular form, or ceremony necessary in delivering. No particular form or ceremony is necessary to constitute a delivery of a deed. It may be by acts without words, or by words without acts, or by both. Anything which clearlv manifests the intention of the grantor *" ° a and the person to whom it is delivered, that the deed shall presently become operative and effectual, that the grantor loses all control over it, and that, by it, the grantee is to become possessed of the estate, constitutes a sufficient delivery. The very essence of the delivery is the intention of the party.</p> <p>2. It is not necessary that a deed should he actually delivered to the grantee; and where a deed of trust, executed to a trustee for the purpose of securing the creditors of the grantor, is delivered to a third party for and on behalf of the grantee, for the benefit of and with the intent to protect and secure the creditors therein named, that constitutes a sufficient delivery.</p> <p>3. Notice to purchaser wider trust deed—irregularities in sale. A purchaser under a trust deed containing a power of sale, is chargeable with notice of defects and irregularities attending the sale, and their effect can not be evaded by him. He is bound to know whether proper notice was given by the trustee, of the sale, and whether the sale was made at a time and in the manner required by the power contained in the deed of trust.</p> <p>4. Same—as to subsequent purchasers. But the rule is different as to remote and subsequent purchasers. If there is nothing upon the face of a deed from the trustee in a deed of trust to the purchaser, showing that the sale was made in violation of or contrary to the power contained in the deed of trust, a subsequent purchaser, who has no notice, in fact, of any irregularity in the sale bj' the trustee, will be protected as an innocent purchaser.</p>

<p>Writ of Error to the Circuit Court of DuPage county; the Hon. H. H. Cody, Judge, presiding.</p>

<p>1. Ebatjd—title to goods obtained, not mlid. A person who obtains the possession of goods by fraud, acquires no valid title to them, and can vest none in another person.</p> <p>2. Goods were sent by express, marked O. O. D., addressed to a party who was doing business as a merchant. When notified of the arrival of the goods, he wished to get them without paying the aniount marked on them for collection, but was told by the agent of the express company that he had orders not to deliver goods marked C. O. D. until the monej' was paid. He then represented to the agent that he was able to pay all his debts in an hour, and that his check was as good as gold, and that it would be paid when due; and on the strength of these representations, which were false, and known by him to be so, he induced the agent to let him have the goods and take a check for the money, dated fifteen days ahead, knowing that he was then bankrupt, and would have no funds in the bank to pay the check: Held, that the goods were obtained by fraud, and that no title passed, and that the company were entitled to recover them back.</p> <p>3. Where one obtains the possession of property by fraud, it can be reclaimed as against his creditors whose debts existed before the goods were obtained by him, and were not created upon the faith of the goods.</p>

<p>1. Pleading—a plea of fraud in obtaining a subscription should state the facts constituting the fraud. In a suit upon a subscription to the capital stock of a company, a plea that “ the company fraudulently got possession of the subscription of said defendant, and that it fraudulently obtained the signature of the defendant to the subscription by fraudulent representations, and that the company knowingly committed such fraudulent acts,” without averring the facts constituting the fraud, is bad on general demurrer.</p> <p>2. Subscriptions to capital stock—when payable in a certain time after call, subscriber should have notice of call for that length of time. Where, by the terms of subscription to capital stock, it was to be paid in installments, within twenty days after call by the proper authorities, it seems that a subscriber is entitled to twenty days’ notice of each call before he can be sued for the installment due under such call.</p> <p>3. Evidence—proof as to giving notice. In a suit for a balance due on a subscription to the capital stock of a company, which was payable twenty days after the subscriber had notice of the call for it, the only evidence that the defendant had had the twenty days’ notice, was the testimony of the secretary of the company, that “notice of the several calls was sent to the defendant in every case; the notices were sent to him in every case; the secretary issued the notices of calls of installments Meld, for aught that appeared from this evidence, even if it could be inferred that the defendant received the notices, they might have been sent the day before the suit was brought, and that the evidence was not sufficient to show a cause of action.</p>

<p>1. Will—:power of married woman to make. Under the statute of 1845, a married woman had power to dispose of her separate estate, as distinguished from her property generally; and since the passage of the act of 1861, entitled “An act to protect married women in their separate property,” which makes all the property of a married woman her separate estate, she has power to dispose of all her property by will, the same as any other person.</p> <p>2. Same—of feme sole, not revoked by marriage. The reason why marriage revoked a will of úfeme sole at common law being, that a will is, in its nature, ambulatory, and a married woman having no power to make a will, her marriage would destroy its ambulatory character, does not exist since the passage of the act of 1861, making all her property her separate estate, which, by the act of 1845, she has power to dispose of by will; and the further reason given, that marriage of úfeme soZeis such an entire change in her condition and relations that it works a revocation of her will, equally fails, as, since the act of 1861, her marriage works no essential change in her condition and relations as respects her property. It therefore follows that, since the act of 1861, the will of úfeme sole is not revoked by marriage, the reason of the rule no longer existing, and in this respect her will stands on the same footing with the will of a man.</p> <p>3. Where a widow, who had three children, executed a will in 1869, and afterwards, and during the same year, married, and, in 1874, died, having made no other will, and having had no children by her last marriage, leaving her three children by her first marriage surviving her, it was held, that there was no revocation of her will by her marriage.</p> <p>4. Act of-l 872 in regard to revocation of wills by marriage. The enactment which went into force July 1st, 1872, that “a marriage shall he deemed a revocation of a prior will,” was prospective in effect, and had reference only to marriages which should take place thereafter, and did not apply to marriages which had been had prior to the passage of the act.</p> <p>5. Former decision—the rule in Tyler v. Tyler, 19 III. 151, qualified. The rule announced in the case of Tyler v. Tyler, that a subsequent marriage is a revocation of a will, is so qualified as not to apply to a case where the testator has children, w-ho would inherit to the exclusion of the husband or wife.</p> <p>6. Construction of statutes. The doctrine applicable to all laws is, that, generally, they are to be considered as prospective, and not to prejudice or affect the past transactions of the citizen. Not that the legislature can not, in some cases, make laws with a retrospective operation, but that it is not to be supposed they so intended, unless that intention has been manifested by the most clear and unequivocal expressions.</p>

<p>1. Ejectment—claiming title from a common source. The attorney of the plaintiff in an ejectment suit stated, under oath, that he was acquainted with the title to the land in controversy, as it appeared of record; that both plaintiff and defendant claimed title from the same common source, stating what it was; and that he also knew this from conversation with the parties, and, on cross-examination, said that his only knowledge was derived from the records and what the defendant said when he purchased; that he had held no recent conversation with him on the subject, and did not know what he might then claim: Held, that in the absence of any statement on oath that the defendant claimed under another or different source of title, this statement was sufficient to entitle the plaintiff to show title from such common source.</p> <p>2. A party purchasing a particular claim to property, and placing a deed therefor on record, is presumed to claim in accordance with that purchase and deed; and in the absence of evidence of another or different claim, another person acquainted with such purchase and the contents of such deed, may well swear that he knows the nature of his claim.</p> <p>3. Acknowledgment—supplying words to fill blanks in a certificate. Whilst it is true that the court can not supply words to fill a blank in a certificate of acknowledgment to sustain a deed, the converse of that doctrine, which is just as unquestionable law, prohibits the supplying of words to fill the blank to defeat the deed.</p> <p>4 Same—sufficiency. In this case, the certificate of the officer taking the acknowledgment of the deed was, “that on this day personally appeared. before me A. P. Henkins and Elizabeth Henkins, his wife, whose names appear subscribed to the foregoing deed of conveyance as having executed the same, who-personally known to me to be the real persons who, and in whose name the acknowledgment is proposed to be made, and acknowledged the execution thereof as their voluntary act and deed, and for the uses and purposes therein expressed:” Held, that the certificate was in substance sufficient, and the deed was properly admitted in evidence.</p>

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

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

<p>Appeal front the Superior Court of Cook county.</p>

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

<p>Writ of Error to the City Court of Aurora; the Hon. Richard G. Montony, Judge, presiding.</p>

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

<p>1. Judgment—may be rendered in vacation, arid, if not set aside or modified at next term, becomes final. Under section 47, chapter 37, of Revised Laws 1874, when a cause is taken under advisement, and decided in vacation, judgment may be entered in vacation, and when so entered, if not set aside or modified at the next term of court, it becomes final.</p> <p>2. Where a cause was taken under advisement, and decided in vacation, and a judgment rendered in vacation, and no steps were taken in the matter at the next term of court, but, at a subsequent term, another and different judgment was rendered, it was held, that the first judgment was final, and that the second judgment was erroneous, the court having no jurisdiction to render it.</p> <p>8. Where a judgment was rendered in vacation, and the record showed no action of the court in the matter at the next term, but the bill of exceptions contained a statement that a petition and motion for a rehearing was filed at that term, and that the court expressed the opinion that the judgment rendered in vacation was void, and refused to entertain the motion for a rehearing, it was held., that the record remained in the same condition as if no action had been taken at that term, and that, after the expiration of that term, the' judgment rendered in vacation became final, and that the court had no jurisdiction to render another judgment at a subsequent term.</p> <p>4. Same—effect of reversal of the second of two, rendered in the same case. Where an appeal is taken from a judgment rendered by the county court to the circuit court, and judgment of reversal rendered by the circuit court in vacation, and no action taken in the matter at the next term of the circuit court, and, at a subsequent term of the circuit court, a different and final judgment is rendered, and this last judgment is reversed in the Supreme Court, for want of jurisdiction in the circuit court to render it, the effect is, to leave the cause for trial in the county court., under the first judgment of reversal in the circuit court.</p>

<p>1. Guarantor —party presumed to be, whose name is written, on the back of a note not payable to him. Where the name of a party not the payee is found written on the back of a note, it will be presumed, in the absence of explanatory evidence, that he placed it there at the time of making the note, and that he indorsed it as guarantor.</p> <p>2. Such an indorsement in blank is authority to the holder of the note to write over the signature anything that is consistent with the undertaking, and, as the undertaking is primarily that of a guarantor, it is proper for the holder to write a guaranty over the name on the back of the note.</p> <p>8. In a suit on such a guaranty, where the defendant pleads the general issue, verified by affidavit, all that the plaintiff is required to prove is, the signature of the defendant.</p> <p>4. The rule would be different if the holder of a note, indorsed in blank by the payee, should write a guaranty over the signature, and bring suit on it as a guaranty. In such case, if the defendant should deny the guaranty, under oath, the burden of proof would be upon the plaintiff to show that a contract of guaranty was intended.</p> <p>5. Same —presumption that a party indorsing a note payable to another is a guarantor, may be rebutted by parol evidence. The presumption that a party not the payee, who places his name on the back of a note, is a guarantor, may be rebutted by parol evidence. The character of the liability-assumed may be explained and the legal presumption rebutted.</p>

This was an information, filed in this court by Adolph Moses and others against Alphonso Goodrich, for a rule to show cause why his name should not be stricken from the roll of attorneys. Mr. Adolph Moses, Mr. Abram Pence, and Mr. William H. King, the relators, pro sese.

<p>1. Creditor’s bill—by whom may be filed against estate of deceased debtor—administration of estates in equity. Where a debtor, in his lifetime, makes a fraudulent conveyance to hinder or delay his creditors, such conveyance, although void as to creditors, is binding on his heirs and representatives. Neither his heirs, executors or administrators can maintain a bill to set aside the conveyance, as it is binding upon them; hence, the only mode of reaching such property is by a hill, filed by one or more of the creditors of the estate; and in such case, a court of equity will, it seems, entertain such a bill, and subject the property to the pay-meat of debts.</p> <p>2. Where, however, there is no such fraud, it is for the executor or administrator alone to proceed to subject the lands of the deceased to the payment of debts; and a creditor having proved his claim can not file his bill for the sale of real estate for its payment. Equity will not, on the application of one or more of the creditors, withdraw the administration of estates from the probate court, where it has been placed by the statute, nor will it withdraw a part of the assets, unless there are prior or superior liens against a portion of the property.</p> <p>3. But where there is an equitable fund, that should be applied to the payment of all or a portion of the debts which can not be reached by the executor or administrator, equity will, at the instance of creditors entitled to participate in the fund, seize upon it, and apply it to those equitably entitled to it.</p> <p>4. Same—by surviving partner, to reach an equitable fund of deceased partner for debe due the firm. Where one member of an insolvent firm, who was also personally insolvent, appropriated the means of the firm to the purchase of real estate, and for the purpose of hindering and delaying his creditors had the property thus purchased conveyed to his wife, and then died, the surviving partner proved up against his estate, and had allowed in the probate court, the amount of the indebtedness due from the deceased to the firm, and also an individual indebtedness from the deceased to the surviving partner: Held, on a bill filed by the surviving partner, that he was entitled to have the property subjected to the payment of these claims.</p> <p>5. Same—application of the fund. Where a surviving partner of a firm files a bill against the administrator, widow and heirs of his deceased partner, to subject an equitable fund to the payment of the claim of the firm against the estate, the administrator can apply to the court to have the monej' paid directly to the firm creditors who are entitled to participate in its distribution, and thus secure the estate against liability to again pay the firm creditors.</p>

<p>1. Appeal—lies to the Supreme Court from an order confirming master's report. On a creditor’s bill, where the case is referred to the master to take proof and ascertain amounts of claims, etc., and the master reports adversely to a claim presented, and the court, on exception to the master’s report, confirms the same, an appeal from such order of confirmation will lie to the Supreme Court.</p> <p>2. Creditor’s bill—what claims to he allowed—assignment of policy of insurance. A creditor’s bill was filed against an insurance company, and a receiver appointed, with directions to pay the complainants and other creditors, and the cause was referred to the master, to take proof of all claims against the company which might be presented to the receiver. A judgment, obtained against the company by default, was presented, and it was shown that before the judgment was rendered, the policy upon which it was obtained had been assigned in blank by the plaintiff in the judgment, upon the payment to her of 35 per cent of the amount due thereon, and the representation to her, by one claiming to act as an adjuster of the company, that that was all the company would be able to pay, and that if it paid any more she would get as much as any one else. The blank in the assignment was afterwards filled with the name of the party representing himself as the adjuster of the company. The judgment was for the balance due on the policy after deducting the amount paid by the adjuster at the time of the assignment. The company. at the time of the assignment, was, in fact, able to pay all its liabilities: Held, that there was no real assignment of the policy to the party taking it, as a purchaser, and that the claim of the judgment should have been allowed by the master, and that the exceptions to his report disallowing it, should have been sustained.</p> <p>3. Sams—practice—contested claim. On a creditor’s bill, where the cause is referred to the master to take proof of claims, and a claim is presented which appears to have been assigned to one not before the court, and who, it is claimed, has no interest in it, the proper practice is for the claimant to present his claim by a petition to the court, making such assignee a party, so that he may be brought before the court, and have an opportunity to set up whatever interest he may have in the claim.</p>

<p>1. Statute op Wills—construction of, relating to kindred of half-blood. The section of the Statute of Wills which provides that in “no case shall there be a distinction between the kindred of the whole and the half-blood,” is not confined, in its application, to cases where the ancestor, from whom the estate is derived, leaves children by different mothers. The children of the same mother, hut who have different fathers, are no less brothers and sisters of the half-blood than are the children of a common father, but who have different mothers, and all are equally within the operation of the statute.</p> <p>3. Injunction—by tenant in common, to restrain another from selling intoxicating liquors on premises owned in common. On a bill filed by one tenant in common of certain premises to restrain a co-tenant from keeping a saloon and selling intoxicating liquor on the premises, where it was not alleged that the complainant suffered auy special injury to his property, not suffered in common by the public, it was held, that an injunction could not be granted, and that, even if the complainant had suffered such injury, it should appear by the bill, to justify a court of equitjr to interfere by way of injunction, that the continuance of the injury was threatened and its danger imminent.</p> <p>3. Estoppel—married woman can only be estopped from denying truth of her representations in cases of tort. A married woman may preclude herself from denying the truth of her representations, hut only in the case of pure torts. If her conduct is so connected with contract that the action sounds in contract, there can be no estoppel.</p> <p>4. A married woman who makes a verbal agreement to release all her interest in certain real estate, and, in consideration thereof, receives a conveyance of other real estate, but suppresses no material facts nor makes any false representations in regard to the matter, is not estopped from claiming her interest in the real estate which she agrees to release, and the contract can not be enforced against her, because she is not competent to make it.</p>

<p>1. Contract—enforced according to the intention of the parties. Courts are powerless to disregard the terms of a contract plainly expressed, but it is their duty to enforce them according to the intent of the parties, as shown by the language used in the contract.</p> <p>2. Same — building contract—payment upon certificate of architect. Where the parties to a building contract agree that the superintendent shall pass upon the work, and certify to the payments to be made, his decision is binding, unless fraud or mistake on his part shall be shown.</p> <p>3. In this case, the contract provided that the work should be paid for as it progressed, upon the certificate of the architect, except fifteen per cent, which was to be held back until the work was finished and accepted by the superintending architect; it further provided that payments made under the contract, or for extra work, should in no case be construed as an acceptance of the work, but that the contractors should be liable to all the conditions of the contract until the work should be finished and accepted by the architect, and such acceptance should be signed by the architect, in order to bind the parties: Held, that the contractor could not require or compel the payment of anything on account of the work and materials, except upon presentation of the certificate of the architect; and that, as to the fifteen per cent reserved until the completion of the work, it only became payable upon the acceptance of the work, after completion, by the superintending architect, and upon presentation of a certificate signed by him.</p> <p>4. Same—merger of prior or contemporaneous provisions. Where specifications were attached to a building contract at the time of its execution, all previous or contemporaneous agreements as to changes in the specifications, were merged in the contract as executed</p>

<p>Dealers in second-hand goods—booksellers buying and selling secondhand books. An ordinance of a city which required dealers in secondhand goods to procure a license, declared that, “any person who keeps a store, office, or place of business, for the purchase or sale of secondhand clothing, or garments of any kind, or second-hand goods, wares or merchandise, is hereby declared to be a dealer in second-hand goods.” Held,- that booksellers, dealing in such stock as is usually kept in a retail book store, who buy and sell, in connection with their other business, and as incidental thereto, second-hand books, are not “dealers in second-hand goods,” within the meaning of the ordinance.</p>

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

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

<p>1. Attorney at law—liable to his client for negligence of his employee. Where an attorney at law employs another person to prosecute a claim placed in his hands for collection, he is liable to his client for the negligence of the person so employed b)r him, and the fact that such person is himself a competent lawyer, does not relieve the attorney employing him from liability to his client on account of such negligence.</p> <p>2. A claim placed in the hands of an attorney was in the shape of a judgment in the circuit court, and it was presented in the county court on the 31st of October, 1865, for allowance against the estate of the judgment debtor; the only question in regard to it was as to the allowance of an alleged credit of $25 claimed to be evidenced by a receipt. On the 15th of August, 1866, the claim not having been allowed, an order of distribution of the éstate was made by the county court, which exhausted the assets of the estate, leaving nothing for this claim: Held, that there was evidence from which the jury might find that, by the exercise of proper diligence in prosecuting the claim, an allowance might have been obtained prior to the 15th day of August, 1866, and- that if it had been so obtained, the claim would have shared in the order of distribution, and having so found, their verdict should not be set aside.</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 Cook county; the Hon. Henry Booth, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Km ox comity; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. M. R. M. Wallace, Judge, presiding.</p>

<p>Chancery—removing cloud upon title to land. Where the owner of land gave to another, by an instrument in writing', the exclusive sale and option of purchase thereof, for sixty days, upon certain conditions, and he, after the expiration of the sixty days, without having notified the owner of his intention to accept the purchase, and without having complied with any of the conditions upon which a sale was, by the terms of the writing, authorized, placed such instrument in writing upon record, it was proper for a court of chancery, by decree, to set aside such instrument as a cloud upon the title of the owner, upon a bill filed for that purpose.</p>

Samuel M. Moore, Judge, presiding. Appellees filed their bill in chancery, in the office of the clerk of the Superior Court of Cook county, alleging that at the November term, 1874, of the Superior Court, they obtained a judgment against appellant for §1486.14; that on the ISth day of November, 1874, an execution was issued thereon to the sheriff of Cook county, which was returned by him on the 23d day of December, 1874, unsatisfied, and that the judgment is still in force.

<p>1. Mistake in master's deed—corrected, in equity. Where a decree of foreclosure of a mortgage directed all the lands described in the mortgage to be foreclosed, and they were all advertised, by the master, for sale under the decree, and were, in fact, all sold by him, but, by mistake, one of the tracts was omitted in the certificate of sale, and in the deed subsequently made by him, it was held, that a court of chancery had power to correct the mistake, upon a bill filed' by the purchaser for that purpose, and that such correction should be made.</p> <p>3. In such case, it seems that the mistake in the certificate of sale before the deed was made, might have been corrected, by motion, on proper proof, j-et the court could not, on motion, reform the deed, and the only remedy the purchaser would have to correct his deed, would be an application to a court of equity by bill.</p>

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. Sabin D. Puteebaugi-i, Judge, presiding.</p>

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

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

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

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, by appellees against appellant. Held: occupied and enjoyed said premises from thence hitherto, and is still in the occupancy of the same; and also, on, to-wit: the day and )rear, and at the county aforesaid, in consideration of the renting and demising of the aforesaid premises, and making and executing of the indenture of lease last aforesaid, so by the said plaintiffs…

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

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

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

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

Edwin S. Leland, Judge, presiding. The Ottawa, Oswego and Fox River Valley Railroad Company Was chartered June 21,1852. It constructed a railroad through the city of Ottawa. From the Illinois river, north, it -passed over a public street, known as Walker street, in pursuance of an ordinance of the city council of the city of Ottawa, authorizing the construction of a railroad along that street.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. John G. Bogers, Judge, presiding.</p>

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

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

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

<p>1. Right of way—whether benefits can be set off against damages on condemnation. Under the Eminent Domain Law of 1872, where a railroad condemns land for a right of way, the juiy, in assessing damages to the owner, majr take into consideration not only the value of the land taken, hut all the facts which contribute to produce the damages to that not taken, as, that the farm is put in a worse shape for cultivation or pasturage; that some portion of it is more dangerous for use; that there is danger of fire from passing engines, and all other actual inconvenience and damage the property may sustain in its use, not only for the present, but the future; and, against such damages, it is not proper to set oil" or allow for any benefits or advantages received by the owner of the land, in common with others, from the construction of the road.</p> <p>2. Same — the dama.ge to the whole farm should be considered on condemnation of right of way oner it. Where a farm, through which a railroad ran, consisted of 240 acres, and the petition for the condemnation of the right of way describes the road as running through both the quarter section and the 80-acre piece, the jury, in assessing damages, should consider the damage done to the whole farm by reason of the construction of the road.</p> <p>3. Opinions of witnesses — on question of assessing damages for condemnation of land. On an assessment of damages, under a proceeding by a railroad company to condemn the right of way through a farm, it is competent for witnesses, who are acquainted with the farm, and familiar with the use and production of such property, and its value, to give their opinion as to the extent of damage which the construction of the road over the same will occasion. The jury are, in such case, only required to receive and weigh such evidence, and give it such weight as tlie)r believe it deserves.</p>

<p>1. Real estate agents—when entitled to commissions. Where the owners of real estate employ a real estate broker to sell land for them, and give him verbal authority to make such sale, and he makes a sale and takes a written contract thereof from the purchaser, signed by him, and the names of the owners are signed thereto by one having verbal authority so to do, although the contract will not be binding on the owners, for want of written authority from them to sign their names to it, yet, if the purchaser is -willing to abide by it, the broker will be entitled to his commissions.</p> <p>2. The owners of a tract of land on the Illinois and Michigan canal, being inquired of by a real estate agent as to the price of the land, replied, fixing the price and saying that they would be glad if the agent could sell it to his (the agent’s) customer; afterwards, in a conversation with the agent, it was agreed that,-if the land, which was frequent])' mentioned as 55 acres, could be sold for §400 per acre, the agent should have §1000 commissions; the agent then sold the land and gave a written contract, in which it was described as 55 acres south of the canal; the owners were willing to convey the land to the purchaser as it was conveyed to them, being 55 acres south of the centre of the canal, but the purchaser would not take it by that description and the trade fell through; the land, iu the conversations between the owners and the agent, had been spoken of only as their land down on the canal: Held, that the only authority the agent had was, to sell the land by the description byr which the owners had purchased it, and that he was not entitled to recover commissions on the sale, as made.</p>

<p>Turnpike—toll chargeable only to those passing through toll gates. Where the charter of a turnpike company authorized it to erect toll gates at the end of every two miles of its road, and to collect toll at such toll gates at not to exceed certain specified rates per mile, and to stop and detain persons using the turnpike, at the toll gates, until they paid the toll, it was held, that every traveler who passed a toll gate should be assumed to have traveled the number of miles that the next toll gate in the direction whence he came was distant, and should be chargeable with toll for that distance, and that a person traveling on the road for some distance between toll gates, and turning into another road before reaching a toll gate, in good faith, and not for the purpose of passing by a toll gate, is not chargeable with toll.</p>

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

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

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

<p>1. Injunction—to restrain collection of taxes. Courts of chancery in this State will assume jurisdiction to restrain the collection of taxes only in the following cases: Where officers exceed their power and levy, when, under the law, they can levy no such tax, because the tax is not authorized; or where the persons attempting to make the levy are not officers de jure or defacto; or where the tax is levied on property wholly exempt; or where the law under which it is levied violates the rule of uniformity and is therefore unconstitutional.</p> <p>2. Same—at whose suit. One municipality can not obtain an injunction to restrain the collection of tax levied by another municipality. That remedy can be invoked only by the tax-payer.</p> <p>3. Remedy—to inquire into organization of municipal corporation. On a bill to enjoin the collection of a tax, the court will not permit the inquiry tobe made whether the body imposing the tax is legally organized, and continues to exist as such body.</p> <p>4. Thus, after the incorporation of a village, another was incorporated embracing a part of the territory of the first, and proceeded to levy a tax for municipal purposes, which the first sought to enjoin: Held, that the legality of the second incorporation as to territory embraced in the first could not be settled in such a proceeding.</p>

<p>1. Bill of exceptions—by whom to be signed. A bill of exceptions, signed by one judge, which contains proceedings that took place wholly before another judge, without consent, and against objections made at the time, is irregular and unauthorized, and this court can not notice it.</p> <p>2. Measure of damages—in action on replevin bond. In an action on a replevin bond, on behalf of a special owner, against the general owner, the measure of damages is, not the whole value of the property, but only the value of the interest of the special owner in the propert}'.</p> <p>3. Where a tenant replevies property which has been taken by liis landlord, as a distress for rent due, and fails to prosecute his replevin suit, and return of the property is awarded, the measure of damages, in a suit on the replevin bond, is, not the value of the propertj', but the amount of rent due.</p> <p>4. Evidence—what competent, on behalf of a defendant who has been defaulted. In a suit on a replevin bond given by a tenant who replevied property distrained for rent by his landlord, the defendant was defaulted, and, on the assessment of damages, the plaintiff testified that there were two months’ rent due, at §250 per month. The tenant offered to testify that, after the making of the lease, the landlord failed to give him possession of the entire building, and the rent was reduced to §208.33 per month: Reid, that this was not matter respecting the merits of the replevin suit, but only the question of damages sustained by the non-return of the property distrained and replevied, and the evidence should have been admitted.</p>

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

<p>Promissory note—effect of clause in providing for costs of collecting in case of a suit. In a suit upon a promissory note containing a provision that, “ if not paid when due, and the same is sued, ten dollars if sued in justice’s court, and twenty-five dollars if sued in district or circuit court, additional, to defray the expenses of plaintiff for his suing the same, to be entered up as a part of the judgment,” it was held,, that the additional sum thus provided to be paid did not become due upon a failure to pay the note at maturity, but only after suit brought, and hence could not be recovered in that suit.</p>

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

<p>1. Appeal—when it lies from decree disposing of injunction. Where a bill is for an injunction only, an order disposing of the injunction disposes of the case, and from such order an appeal lies to the Supreme Court.</p> <p>2. Chancery—where one creditor has a lien on two funds and another creditor can reach only one of them. The principle of equity, that, when a party has a lien or interest in two funds, out of either of which his debt can be paid, and another party has a lien or interest on one only of the funds for his debt, the latter has the right, in equity, to compel the former to resort to the other fund in the first instance for satisfaction, is applicable to sureties only.* </p> <p>3. A bill was filed by one of the makers of a promissory note, to enjoin its collection, alleging that the note was given by the complainant for the accommodation of another, and was held by the party seeking to collect it, as collateral to the debt of the one for whose accommodation it was given, and that the party holding it had other and adequate security, and that the note was procured from complainant by fraudulent statements made by the party for whose accommodation it was given: Held, that there was no equity in the bill, and that the injunction granted upon it was properly dissolved.</p> <p>4. Practice—time to object—insufficiency of affidavit in support of answer on motion to dissolve injunction. Where an affidavit is filed in support of an answer to a bill for an injunction, as a ground for a motion to dissolve the injunction, objection to the affidavit that it was not sufficiently verified, and that it did not disclose the affiant’s connection with the party defendant, or how he knew the facts stated in the answer, should be made in the court below, and will not avail if made for the first time in the appellate court.</p>

<p>Plea of release from, subscription—avermeyit as to consideration. A plea by a subscriber to the stock of an incorporated company, that lie had been released from his liability on his subscription by a resolution of the board of directors of the company, without averring that there was a consideration to support the resolution relied on as a release, is fatally defective.</p> <p>2. Release from subscription to stock of corporation—power of the company. In a suit against a subscriber to the stock of an incorporated opera house company, a plea that he had been released by a resolution of the board of directors, before the work on the building commenced, without an averment that the company, at the time of the alleged release, was not in debt, was held to be bad, as the corporation could not make such release to the injury of its creditors.</p> <p>3. Same—special plea presenting no material issue not made by general issue. Where the general issue is interposed, which traverses every material allegation in the declaration, and a special plea, which presents no material issue not made by the general issue, and a demurrer to the special plea is' sustained, this court will not reverse the judgment because the case was not tried on the special plea presenting precisely the same issue that was made by the declaration and general issue.</p>

<p>1. City water works—a city may require citizens to repay cost of service pipe laid by it, before permitting its use by them. A regulation of a board of public works of a city, which requires citizens desiring to use the water of the city flowing through the main pipes, to lay down at their own expense the necessary service pipe from their lots to the main pipes, is but just and reasonable, and in accordance with the principle upon which special assessments on account of special benefits are founded.</p> <p>2. And where such a regulation exists, the fact that the city, at the time of laying the main pipes, and for the purpose of avoiding tearing up the paving of the street in future, lays service pipe from the main pipe to the lots abutting on the .street, does not entitle any citizen to the free and unrestrained use of them, and the city has the. right to require lot. owners, wishing to use such service pipe, to refund to the city the cost of laying it, before they can do so.</p>

<p>1. Evidence—degree of proof'required—under penal statute. Whilst it is true that, in a civil action, it is not necessary that the liability of the defendant should be established with the same degree of certainty required in criminal cases, yet, where the suit is brought under a penal statute, the plaintiff, before he can recover, must bring himself clearly within the provisions of the statute.</p> <p>2. New tbial—verdict against the evidence—same rule in suit on penal statute as in other civil suits. In a suit brought against a county clerk, under the statute, for issuing a marriage license to a minor, the law in regard to granting new trials on account of insufficiency of the evidence to support the verdict is the same as in all civil cases, namely: that the court will not disturb a verdict merely because it, if trying the question of fact, would have found differently from the jury, and that, to authorize the interference of the court in this respect, the evidence must clearly and palpably preponderate against the verdict.</p> <p>3. Mabriage license—proof as to age of parties to ¿justify clerk in issuing. In an action by a father against a county clerk for issuing a license for the marriage of a minor daughter of the plaintiff, the defendant testified that he had no knowledge of the age of the plaintiff’s daughter previous to the time application was made to him for the license; that, when the application was made, he first examined the applicant, under oath, touching his own age and that of the daughter of plaintiff, and that he testified that he was 21 years of age and over, and that she was 18 years of age and over, and that he accepted this evidence as satisfactory proof of their respective ages: Held, that this testimony, if true, made out a defense to the action.</p> <p>4. Credibility of witness—contradictory statements on cross-examination. In such case, the fact that the testimony of the defendant, on his cross-examination, might be reasonably construed as impeaching that given in his direct examination, is not sufficient ground for saying that the jury were clearly wrong in crediting the latter. It is not sufficient that such a construction might reasonably be given to the testimony. Unless it must necessarily be given it, it can not be said the jury were clearly wrong in construing it as they did.</p> <p>5. Evidence—record, of divorce not competent, in suit for unlawfully issuing license for marriage of the parties. In a suit against a county clerk for issuing a marriage license for the marriage of a minor, the record of a subsequent divorce case between the parties for whose marriage the license was issued, is not competent evidence.</p> <p>6. Same—motives of pa/rty bringing suit not material. In a suit by the father of a minor daughter against a county clerk for issuing a license for her marriage, it is unimportant what the motives of the plaintiff may be in prosecuting the suit, and the jury have no right to inquire into them.</p> <p>7. Law and fact—who shall decide. It is improper to instruct the jury that ‘‘it is incumbent on the plaintiff" to make out his case, so far as he has the affirmative, by a preponderance of testimony,” etc., without telling them in what respect he has the affirmative. Whether one party or the other has the affirmative on a particular issue, is a question of law for the court, and not one of fact for the jury, and it is not proper that it should be left for them to determine which has the affirmative, or to what extent it is incumbent on either to have the preponderance of evidence.</p>

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

John G. Rogers, Judge, presiding. This was an action of assumpsit, brought by Charles W. Boynton, George S. Foster, and John S. Miller, partners, against Benjamin F. Pixley, Thomas W. Hall, and Joseph G. Hall, partners, upon a promissory note. The opinion of the court contains a statement of the material facts.

<p>Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

Geo, W. Pleasants, Judge, presiding. This was an action brought by David M. Case against Taylor Williams, on an account for work and labor in the grading, etc., of a railroad track, the balance of the account being §729.

<p>1. Declaration—when defective, may he taken advantage of on error or in arrest of judgment. If a declaration is so defective that it will not sustain a judgment, that may be taken advantage of on a motion in arrest of judgment or on error.</p> <p>2. It is sufficient ground for the reversal of a' judgment, that the declaration shows no cause of action.</p> <p>3. Repeal op statute—effect thereof. Where the cause of action set out in the declaration was the statutory liability of the trustees of a corporation, alleged to have been organized in 1870, under the act to authorize the formation of corporations, etc., approved February 10, 1849, hjreason of the failure to comply with the 12th section of said act: Held, that, as said act of February 10, 1849, was repealed in 1857, there could be no liability incurred under it with respect to a corporation formed in 1870, and the cause of action sued upon was groundless.</p>

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

<p>1. Municipal corporations—donation to railroads. Where the construction of a railroad on a certain route is secured by a pledge made at the ballot box bj- the legal voters of a town, to deliver to the railroad company the bonds of the town when the road is so constructed, the bonds should be delivered unless the law was in a substantial manner disregarded in the election.</p> <p>2. Same—election for donation to railroads—signing petition therefor. It is not necessary that the persons required by the statute to sign the petition for an election in a town, on the question of a donation to a railroad, should do so in person.</p> <p>3. Each petitioner might properly subscribe his own name, or he might authorize any person he thought proper to do so for him; and a petition signed under such authority would be a compliance with the statute.</p> <p>4. At a meeting legally attended by a majority of the legal voters of a ■town, the question of calling an election for the purpose of voting on the proposition of donating the bonds of the town to a railroad company, the names of freeholders who were willing to sign a petition for such an election were called for and publicly announced, and a committee appointed to prepare the petition. The committee prepared the petition, and signed the names of the freeholders whose names had been so publicly announced in their presence and hearing in said meeting: Held, that such freeholders having made no objection when their names were so announced, their silence must be construed as an express assent that their names should be signed to the petition by the committee.</p> <p>5. When the name of each signer to the petition was publicly given to the committee, in the presence of the part)"-, by the meeting, of which he was a part, and no objection made, it was in fact a direction of each of the signers to another person to subscribe his name to the petition.</p> <p>6. Evidence—of a negative character—whether it will overcome positive. The positive testimony of a town clerk, that he posted the notices of an election, required by law, can not be overcome by the negative testimony of other witnesses, that they did not see such notices in the places where the clerk testified he had posted them.</p>

<p>Writ of Error to the Circuit Court of Grundy county j the Hon. Josiah McBoberts, Judge, presiding.</p>

<p>1. Homestead—when, and how subjected to execution. Where the title to a homestead worth more than §1000 is taken in the name of the wife, for the purpose of placing it beyond the reach of the existing creditors of the husband, and is paid for with the money of the husband, it is not error for a court of equity, upon a bill filed bjr such creditors after they have obtained judgment and execution against such husband, to decree that such homestead, in respect to such judgment, is the property of the husband, and that the sheriff holding such execution shall proceed with the same, as prescribed by the statute in eases of execution levies upon homesteads, and that, in case of a sale of said premises under said execution, the purchaser at such sale shall acquire the legal title thereto as against said husband and wife, and those claiming under them, subject only to the redemption allowed by law.</p> <p>2. Whether such homestead is susceptible of division, is a fact not to be ascertained by the court, but by the commissioners to be appointed by the sheriff in pursuance of the statute.</p>

<p>1. Parties ir charcery—MU to appoint trustee to sell. Where a trustee in a deed of trust dies before default in payment of the money thereby secured, and the grantor has conveyed his equity of redemption, by deed, to another, who agrees to assume the debt, such grantor is not a necessary party to a bill in equity to have a trustee appointed to sell after default is made.</p> <p>2. Same—Mil to foreclose tnist deed. But on a bill to foreclose a trust deed, the grantor in such deed is not only a proper but an indispensable party, notwithstanding he may have conveyed his equity of redemption.</p> <p>3. Charcery practice—right of party to intervene. In equity, by the modern practice, any person feeling he has an interest in the litigation, may apply to the court, and be permitted to intervene and become a party, and have his rights passed upon on the hearing, by making a proper showing. If he has no substantial rights involved, he will not be allowed to intervene.</p> <p>4. Ambrdmert—in chancery, to make new parties. A party complainant will be permitted, at any stage of the case before decree, to amend his bill, to make formal parties, and have them enter their appearance.</p> <p>5. Disclaimer—effect of. Where a person, not made a party to a bill, on the hearing enters his appearance and disclaims all interest in the subject matter, he will be bound by it, and this will cure the error, if any, in not making him a formal party in the bill.</p>

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

<p>1. Attachment—defective affidavit, when amendable, not void but voidable. When the statute has provided that affidavits in attachment proceedings may be amended, although informal and not in conformity with its requirements, a sufficient amount of vitality is thereby imparted to such instruments as to render them voidable only, and not absolutely void.</p> <p>2. An affidavit for a writ of attachment before a justice of the peace’, which does not state on what account the indebtedness was incurred, or that affiant believes he is entitled to recover the amount claimed to be due, after allowing all just credits and set-off's, or the residence of the debtor, or that, upon diligent inquiry, affiant can not ascertain his place of residence, but which contains all the other requisites under the statute, is defective but not void, and can only be attacked in a direct proceeding, and is sufficient to protect those acting under it.</p>

<p>1. Trust fund—whether it exists—set-off. Where a party purchased a newspaper and printing establishment, and gave notes therefor, which by the terms of the contract were to be placed in the hands of a third party to collect, and apply the same to the payment of the debts of such printing establishment, pro rata, the notes so given became a trust fund for the payment of such debts, and the maker thereof could not, by the purchase of claims against such printing establishment, or otherwise, prevent the creditors from sharing pro rata in that fund.</p> <p>3. But a note given by the same party, at a subsequent time, for the purchase of the subscription list of such newspaper, which was delivered to the payee, and no agreement made as to what purpose said note or the proceeds thereof were to be applied, will not become a trust fund, and there is no reason why the maker thereof may not purchase outstanding notes of such payee, and set them off in a suit brought by them upon such note.</p>

Joseph E. Gary, Judge, presiding. This was an action of debt by Susanna Thatcher, administratrix of the estate of David C. Thatcher, deceased, against Harriet Steele and Theodore D. Botsford, upon an injunction bond. The verdict of the jury is as follows: “ We, the jury, find the defendant to owe and be indebted unto the plaintiff in the sum of $500, and assess the plaintiff’s damages against the defendant to the sum of $282.50.”

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

William Bbown, Judge, presiding. This was a proceeding in bastardy, commenced by Harriet L. Tuttle against William W. Holcomb. The case was commenced April 16, 1874, and tried in the county court, where the defendant was found guilt.v. The defendant appealed from the judgment to the circuit court, where a trial was had, resulting the same as in the county court. It appears, from the evidence preserved in the record, that the child ivas born on the 22d day of April, 1874. .

Samuel M. Moore, Judge, presiding. This was a bill in chancery, filed by the appellants, Weaver and Marsh, to enjoin appellee Poyer from proceeding to collect a certain judgment rendered in his favor, against the appellants, on an injunction bond given in a previous suit, wherein appellant Weaver sought to restrain Poyer from collecting a judgment which had been obtained by Poyer against Weaver., without any service on the latter.

<p>3. Evidence—affidavit of pan'ty inconsistent with present claim competent against him. Where a party filed a petition for letters of administration on his father’s estate, in which he stated, on oath, that the deceased left property and eSects and a homestead of nineteen and one-half acres, and afterwards filed a bill claiming to be the owner of the real estate described in the petition, by virtue of a verbal contract with his father in his lifetime, it was proper, on the hearing, to permit the sworn petition for letters of administration to be read in evidence, subject to such explanatory evidence tending to weaken its efi'ect as the complainant might produce.</p> <p>2. It was not necessary in such case that the petition should have the effect of a complete estoppel, to entitle it to be received in evidence; it was sufficient that it had a tendency to show that the subsequent claim of complainant was made in bad faith.</p> <p>3. Witnesses—statute in relation to interested parties, construed. Each of the causes enumerated in the second section of the act in regard to evidence and depositions in civil cases, in force July 1, 1872, as disqualifying any party or person interested in the result of a suit as a witness therein, stands by itself, and the exceptions therein contained appty to such of them as they are at all applicable to separately, in the order they are stated.</p> <p>4. The intent of the law is that no person directly interested, etc., shall be allowed to testify -where the adverse party sues or defends as the executor, administrator, heir, legatee or devisee of any deceased person, except as to facts occurring subsequent to the death of the deceased; to those he may testifjr; but if the adverse party sues or defends as guardian or trustee for such heir, legatee, or devisee, then the additional restriction is imposed, that such facts shall have occurred not only subsequent to the death of the deceased, but also after such heir, legatee or devisee shall have attained his or her majority.</p> <p>5. Notice—possession of land 7iot inconsistent with rights of others, not notice of claim unden' verbal contract. During the lifetime of the owner of a tract of land, his son, who was a man of family, resided with him on the land, and after the death of the father the son continued to reside there; there was evidence that the possession of the son during the lifetime of the father was in subordination to the father’s title: Held, that such possession by the son was no notice of any claim he might have, by verbal agreement between him and his father, as against a purchaser in good faith and for value from another child and heir of the father.</p>

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

<p>Real estate ageist—commissions on sale of real estate. In a suit by a real estate agent to recover commissions on a sale of defendant’s land, where the defendant had employed the plaintiff to sell or procure an offer for the land, and the plaintiff applied to another agent, and he to a third, and the third agent sent a customer to the defendant, who purchased the land, and it appeared that it was the local custom among real estate agents to assist each other in malting sales, and to divide the commissions, a judgment was rendered in favor of the plaintiff: Held, that it was through the instrumentality of plaintiff, and those he interested in assisting him, that defendant was enabled to effect the sale, and the judgment should be affirmed.</p>

<p>1. Married woman—separate property of, used by husband, not thereby subjected to payment of his debts. The fact that the husband uses and enjoys the separate property of the wife, and out of it procures the means for the support of his family, does not render such property liable for the debts of the husband.</p> <p>2. So, where the husband was a printer, and the wife invested money arising from the sale of her separate property, derived from a source other than her husband, in types and printing machinery, which wuis used and managed by the husband in his business as a printer, from which he procured the means of support for his family, it was held., that the property was not liable for the debts of the husband, but was as completely protected as if it had been the property of a stranger.</p>

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

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

<p>1. Practice—trying came out of its order. It is error to take a case up and render judgment out of its order on the docket, under what is known as the five dsws’ rule of the Superior Court of Cook county, against the objections of the defendant.</p> <p>2. Piling additional pleas—on amendment of declaration. When a plaintiff is permitted to amend his declaration in a material respect, the defendant should be permitted to file additional pleas to the amended declaration.</p>

<p>1. Appeal bond. Where the execution of an appeal bond is in the name of a company by its agent, with a scrawl for a seal, it will be presumed, in the absence of proof, that the seal used was the proper and only seal of the company.</p> <p>2. Same—when filed and approved, even if defective, appeal is effected. When an appeal bond is accepted and approved by the justice, even if it is defective, the appeal is nevertheless taken from the judgment, and it is the duty of the opposite party to follow the case to the appellate court.</p> <p>3. Appeal —payment of fees required of appealing party presumed. The money required to be advanced by the appealing party to the clerk, under sec. 33, Revised Statutes 1874, page 515, will, in the absence of proof, be presumed to have been paid as required by the statute.</p>

Arthur A. Smith, Judge, presiding. This was an action of assumpsit, by David E. Day against A. G. Humphrey and W. S. Hinckley, upon a promissory note. The opinion of the court states the facts of the case.

<p>1. Homestead—of the ownership necessary. A tenant by the curtesy, having a life estate subject to levy and sale on execution, is an owner within the meaning of the statute exempting homesteads from forced sale.</p> <p>2. Same—meaning of the words “occupied as a residence." The term, “occupied as a residence,” in the statute exempting homesteads, means that the premises shall be the home of the party claiming a homestead right. Temporary absence by the party and his family, without acquiring another home, is not an abandonment of the right.</p> <p>8. Same—whether abandoned. Whether premises occupied by a debtor and his family when he has removed from them, and after the recovery of a judgment against him, returned to the same, was his home during his absence, is a question of fact to be determined by the jury from all the circumstances of the case.</p> <p>4. Where a debtor left his homestead in 1870, to go elsewhere to better his fortune, leasing the same, but reserving two rooms, in which he left a portion of his household goods and valuables, expressing an intention to return if the climate of the place to which he went, and other jnatters, did not suit him, and rented a house by the month, and never exercised any political privileges in the latter place, and returned in 1873, a judgment having been recovered against him in 1871, upon which the homestead was sold: Held, that the party, by his temporary absence, under the circumstances, had not lost his homestead right, as in favor of the purchaser under the judgment.</p> <p>5. Descents—right under certificate of purchase. Where a party holding a certificate of the purchase of land sold under execution, dies before taking out a deed, in the absence of an express devise to his executors, they will succeed to no right to the land, and have no right to demand a deed, but the sheriff’s deed should be made to the party’s heirs at law.</p>

John A. Jameson, Judge, presiding. This was an action of trespass, brought by the appellees, jointly, against the appellant, for damages sustained by reason of the taking of their goods, under a distress warrant, issued by him as their landlord, for rent claimed to be due.

Lambert Tree, Judge, presiding. This was an action, commenced .bv attachment, by Fletcher G. Welch, against Harriet M. Dutton, Lucil E. Wright and Mary D. Willner, to recover back $1000 paid on a contract for the purchase of certain real estate in the city of Chicago.

<p>1. Trial by the court. Whilst it is indispensable to the trial of a cause before the court without a jury, that the parties shall agree to that form of trial, it is not indispensable that the record should show both parties were present when the trial was had.</p> <p>2. If either party, having agreed to a trial by the court without a jury, does not deem it necessary to be present at the trial, he must abide the consequences resulting from his absence. The mere fact of his absence is not sufficient evidence of his revocation of the agreement.</p> <p>3. Bill oe exceptions—what must he preserved. The fact that a case was taken up out of its regular order on the docket, in the absence of a party, without notice to him, and that an agreement that the case might be tried by the court, upon which the record shows it was tried, was made at a former term of the court, and was not intended to apply to the term at which the case was tried, are matters that can only be made to appear of record by a proper bill of exceptions. They can not be disclosed by the entries alone made by the clerk.</p> <p>4. Presumption—in favor of the regularity of a judgment. When it appears that the court had jurisdiction both of the person of the defendant and of the subject matter of the litigation, and renders judgment, and there is no bill of exceptions, this court will presume that the judgment is in all respects regular, and that objections urged but not appearing in the record have no foundation in the facts.</p>

<p>Appeal from the County Court of Livingston county; the Hon. Egbert E. Wallace, Judge, presiding.</p>

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

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

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

Samuel M. Moore, Judge, presiding. May 9, 1872, appellee, Foreman, filed his bill in equity against appellants, Tobey and Booth, for the specific performance of an alleged contract for the conveyance of certain real estate in the city of Chicago.

<p>1. Promissory note — in what capacity maker liable. Where the names of the principal and agent both appear upon an instrument, it will be held to be the bill or note of him who signs it, unless it satisfactorily appears that he signed it in a mere ministerial character, intending to bind another.</p> <p>8. Where the makers of a note describe themselves in the body of it as the trustees of a society, and also sign the note as trustees, but there are no words used implying an undertaking on the part of the society, and the society is not assumed to be acting through the makers, and they do not appear to act for or on behalf of the society, the makers are personally liable.</p>

<p>1. Conveyance—delivery necessary to the conveyance of land by deed. Delivery is an indispensable element to the conveyance of land by deed, for the reason that a deed takes effect only from the delivery.</p> <p>2. Same—delivery may be to grantee, or to his agent. A deed may be delivered to the grantee, or to any person authorized by him to receive it, in which case the title to the premises will pass.</p> <p>3. Same—delivery to a stranger to hold until conditions complied with. Where a deed is delivered to a stranger to be held until certain conditions are performed by the grantee, and then to be delivered by him to 'the grantee, the title does not pass, but remains in the grantor until the conditions are complied with.</p> <p>4. So, where the grantee in a deed drew a draft for the amount of the purchase money for land which he had previously contracted to purchase, and placed it in the hands of a banker for collection, and the owner of the land placed his deed to the purchaser in the hands of the same banker. to be delivered to the purchaser on condition that the draft was duly paid, and the purchaser agreed that if the draft was not duly paid, he would relinquish all his right to the land under the.contract, and the draft was protested for non-payment, it was held, that no title passed hy the deed, and that all claim of the grantee to the land, under his contract, was extinguished, and all rights of those claiming under him ceased, and that a lease from him which stood upon the records was a cloud upon the title of the owner, and should be removed by a court of equity hy decree.</p>

<p>Injunction—waiter of question of jurisdiction. A court of chancery has no jurisdiction to enjoin the prosecution of a suit for the violation of a village ordinance, nor is it within the power of the parties to waive the question of jurisdiction, and compel it to try the cause.</p>

<p>Condemnation by railroad company—construction of award of commissioners to assess damages. In a proceeding by a railroad company to condemn real estate, commissioners, after assessing the value of the real estate, and of the improvements thereon, further awarded that, if the improvements should be retained by the owner for three months, then no damage will have accrued to them by reason of the interruption of their business, and if they should retain the possession two months, then the damage for interruption was fixed at §1600; and if they should retain the possession one month, then the damages were fixed at $3200: Held, that it rested with the railroad company when to take possession, and that if it took possession inside of three months, it would have to pay the damages named, hut that the owners could not force them to take possession at any time they might select, and then recover the damages provided hy tlje award to be paid upon their having to give up possession at that time; and if the railroad company did not take possession inside of the three months, they were not liable for damages.</p>

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

<p>1. Oath oe oeeice—inferior officer, when exempted from talcing. Where, b}r the law, there appears a manifestation of the intention of the legislature, that an inferior officer shall not be required to take an oath of office, there is a sufficient exemption from taking such oath, within the intent of the constitutional provision on that subject.</p> <p>2. Township tbeashreiis—core inferior officers, and not required to take an oath of office. Township treasurers are inferior officers, who ma37 be exempted by the legislature from taking the oath of office required by section 25 of article 5 of the constitution, and they have been so exempted, b37 the legislature not requiring such oath, in prescribing the prerequisites to their right to perform their official duties.</p> <p>3. Same—are the lawful custodians of district school funds. Township treasurers are,by statute, the only lawful depositaries and custodians of all district school funds, and they are the proper persons to make demand for such funds of any one unlawfully holding the same.</p> <p>4. Hence, where a petition for a mandamus to compel the school directors to pay over certain moneys, belonging to the school district, to the township treasurer, alleged a demand by the township treasurer, and by the trustees of schools, and the answer only denied the demand by the trustees, a demurrer to the answer was properly sustained.</p>

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

<p>1. Statute op fbatjds—declaration of trust in relation to land, must be in writing. Where the owner of real estate conveyed the same voluntarily, and without any imposition, undue influence or fraud, to another (his wife joining in the deed and releasing her dower), and at the same time executed his will, by which he devised certain sums of money to he paid at specified times after his death, and the grantee in the deed received the same with instructions to sell the land after the death of the grantor, and from the proceeds thereof to pay the legacies named in the will, and no other writing was ever executed by either the grantor or the grantee in the deed in relation thereto, it was held, that the trust created was an express trust, and within the Statute of Frauds, and therefore void, and that it was error to decree that the testator in the will and grantor in the deed died seized of an equitable estate in the premises, and that the same should be sold subject to the dower of his widow.</p> <p>2. Execution of trust—without the aid of a court of chancery. In such a case the grantee holds the legal and equitable title to the land, and can sell and convey it without invoking the aid of a court of equity to enable him to do so, and when he has done so there is no reason why he may not dispose of the proceeds according to the agreement between him and the grantor at the time the deed was executed as well without a decree of court as with one, and a bill filed by the grantee for the purpose of obtaining a decree for that purpose should he dismissed.</p>

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

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

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

<p>Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Divorce—custody of children. Where a divorce is decreed to the wife, upon the verdict of a jury finding that her husband had treated her with extreme and repeated cruel 13-, and there is no evidence of her unfitness to have the care and custody of her infant children, there is no impropriety in decreeing the custody of them to her.</p> <p>2. Same—verdict presumed to he right. Where a suit for a divorce is submitted to a jury, the presumption is in favor of their verdict until it is successfully impeached in some mode provided b3r law. Prima facie, at least, it shows, when in favor of the complainant, that the proofs sustained the allegations of the bill, and when the evidence is not preserved in the record, the verdict must be treated as the evidence of the facts.</p> <p>8. Alimony. Where a divorce was granted to the wife, on account of extreme and repeated cruelty of the husband, and the custody of two infant children given to her, and it appeared that the husband owned property of the value of over §0000, and that his indebtedness did not exceed §900, it was held, that a decree that he pay to the complainant §130 and her solicitors §120, within 30 days, and that he pay to her there, after §400 per annum, in quarterly installments, as her alimony, and in. lieu of dower and all claim for the support of the children committed to her charge, was not unreasonably large.</p> <p>4. Interest. It is erroneous to make the installments, in a decree for alimony, bear ten per cent interest if not paid when due. The legal rate of interest upon judgments and decrees is six per cent, and decrees of this character are not an exception to the law.</p>

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

<p>Specific performakce. A court of equity will only decree a specific performance of a contract where the right to the relief sought is established by a clear preponderance of the evidence.</p>

<p>1. Hearsay—evidence as to statements of one not a party, and, not made in the presence of a party. In a suit brought bjr the administrator of an estate against the executor of another estate upon a promissory note given by the testator, in his lifetime, to the intestate, in his lifetime, it appeared that the note was secured by deed of trust on land of the testator, and that he was considerably in debt, and his land incumbered with other liens, the most of which were owned by a third party, and it was claimed that the note sued on had become the property of such third party, and was paid by said testator in a settlement made by him, shortly before his death, with such third part)--, and testimony was introduced which tended to show that said third party had control of the note: Held, that evidence of what such third party may have said in a conversation when the intestate was not present, was hearsay only, and should have been excluded from the jury.</p> <p>2. Witness—in suit against executor on obligation of testator. A daughter, who has been provided for in her father’s will so as to have no interest in the result of a suit against the executor of her father’s estate upon a note made by him in his lifetime, is a competent witness in such suit, as is her husband.</p> <p>3. Practice—party holding the affirmative entitled to open and close. Where the issue in a suit upon a promissory note is payment, the plea of payment admits the execution of the note, and the affirmative is with the defendant to prove the payment, consequently he has the right to open and close to the jury.</p>

<p>1. Chancery—relief under the general prayer. Relief which is consistent with the facts stated in the bill will be granted under the general prayer, although not specifically prayed for.</p> <p>2. Deed—recording of escrow—passes no title. A deed executed by the grantor and placed in the hands of a stranger, to be held by him until the grantee does a particular thing, and then to be delivered to him, and which, by accident or mistake, is placed upon record without ever having been delivered to the grantee, is, as to such grantee, absolutely void, and is a cloud on the grantor’s title, which a court of equity will cancel.</p> <p>8. Release of mortgage—effect of recording without delivery, as to judgment creditor. A mortgagee executed a release to the mortgagor, and placed it in the hands of a third party, to be delivered upon the performance of certain things to be done by the mortgagor; the mortgagor never performed and the release was never delivered to him, but, by accident or mistake, the release was placed upon record: Held, that the judgment creditors of the mortgagor acquired no rights or advantage by the recording of the release, and that, on a bill by the mortgagee, they should be restrained from selling, under their execution, anything more than the equity of redemption of the mortgagor.</p>

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

<p>1. Assignee before maturity—subject to what defense. Where a person takes an assignment of a promissory note before due, for a valuable consideration, and is not guilty of bad faith, even though he may be guilty of gross negligencee, he will hold it by a title valid against the world, and it will not, in his hands, be subject to the defense of failure of consideration.</p> <p>2. Same—bad faith must be proved, to deprive an assignee of the character of a bona fide holder. Mere negligence on the part of an assignee of negotiable-paper, is not sufficient to deprive him of the character of a bona fide holder. Proof of bad faith, alone, will deprive him of that character.</p>

<p>1. Contract—court must construe. If a contract is ambiguous it is the duty of the court to determine what it means, from the evidence, and instruct the jury as'to its meaning.</p> <p>2. Subscription—construed in reference to condition. Where a contract of subscription to aid in the construction of a railroad was made payable when the road should be completed and in operation from a certain place to “Menominee, Mich.,” by a certain time, and it appeared that there was a large township by that name, containing about forty ordinary townships, and also a village of the same name, containing a population of 3000, a post office, etc., which had a well known existence, though not incorporated: Held,, that the village of that name was what was meant in the condition.</p> <p>3. Same — condition to complete and operate a railroad. If a subscription is subject to a condition that a railroad shall be completed and in operation between two certain points by a day named, it will be sufficient to show performance of those conditions, and it is not necessary that the road should on that day furnish such facilities for receiving and discharging freight and passengers as could be expected of an established railroad, to make the party liable on his subscription.</p> <p>4. Same—building of depot, etc. A condition in a subscription to complete and have in operation a railroad to a certain point by a certain day, is not necessarily not performed, as a matter of law, from the fact that a depot was not built, and a station agent appointed for such place by the day named, and proof of such facts will not necessarily defeat a recovery on the contract of subscription.</p> <p>5. Law and fact. When a railroad is to be regarded as completed and in operation to a given point, is not a question of law, but purely one of fact, to be determined by the jury from the evidence.</p> <p>6. Instructions—singling out part of facts bearing on issue. Upon a question of fact, it is erroneous, in instructing the jury, to single out certain facts proven, and tell them that the existence of such facts proves or disproves the main fact in issue. The jury should be left free to draw their conclusion from all the testimony bearing upon the question.</p>

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

<p>1. Indemnifying bond to an officer. Whilst the statute does not expressly authorize a sheriff", who is about to execute a writ of replevin, to take from the plaintiff in replevin an indemnifying bond, still such a bond, if given, is a good obligation at common law.</p> <p>2. Common law obligation. Any obligation, entered into voluntarily and for a good consideration, is valid at common law, when it does not contravene the policy of the law, and is not repugnant to some statutory provision.</p>

<p>1. Public schools—power of directors as to prescribing branches of study. Under the School Law of 1865, the school directors have power to compel the teaching of other and higher branches than enumerated in the law, to those who are willing to receive instruction therein; but it is purely optional with parents and guardians whether the children under their charge shall study such branches.</p> <p>2. It is the duty of the directors to provide the necessary schools to accommodate all children of the district, of proper age, to employ teachers, and to perform all other duties necessary to carry out the object of affording to all the children an opportunity to acquire, free of charge, a knowledge of the branches of study enumerated in the law; and the children can not be deprived of the benefit of such instruction because their parents do not choose to permit them to study higher branches not enumerated in the law, although not prohibited by it.</p> <p>8. School directors—rules and regulations adopted must be reasonable., and calculated to promote the object of the law. In performance of their duties, school directors may prescribe proper rules and regulations for the government of the schools; they may classify scholars, regulate their studies and deportment, the hours to be taught, besides the performance of other duties necessary to the success and well-being of the schools. But all such rules and' regulations must be reasonable and calculated to promote the object of the law—the conferring upon all, free of charge, such an education as they are by the law entitled to receive.</p> <p>4. The law having conferred upon each child the right to be taught the branches enumerated therein, any rule or regulation which, by its enforcement, would tend to hinder or deprive the child of this right can not be sustained.</p> <p>5. Same—suspending and expelling scholars. The school directors have no power to expel a scholar for any reason except disobedient, refractory or incorrigibly bad conduct, and only for these after all other means have failed.</p> <p>6. A girl, sixteen years of age, who was entitled to the benefit of a public school, and who was a pupil therein, belonged to a class which, by the course of study prescribed by the directors, was required to study book-keeping. Under and by the direction of her parents, she declined to do so, and for that reason only she was, by the teacher, under the orders of the directors, forcibly expelled from school, and ejected from the school building: Held, that the directors and the teacher were all liable in an action of trespass, the directors having no power to prescribe such a rule, and consequently no right to authorize the teacher to enforce it; held, also, that in such a case, $130 was not excessive damages.</p>

<p>1. New trial—under what circumstances equity will decree a new trial at law on newly discovered, evidence. On the trial of a suit at law, the plaintiff claimed that he had made a payment of §1000, which overpaid the amount due on a promissory note held by the defendant, which payment was denied by the defendant. The plaintiff testified to the fact of having left the money with his commission merchants, to be paid to the dei'endant, and that they had informed him that the money was paid over by them. On the trial of the suit, however, the commission merchants, whilst stating that the money was left with them as claimed, could not state that the money was actually paid over to the defendant. The defendant testified that he never received the money, and judgment was rendered in his favor for the balance due on the note, as if the §1000 had never been paid. Plaintiff thereupon brought suit against the commission merchants, who set about investigating the matter by making inquiries amongst the various persons who had been in their employ, and finally found one who testified distinctly to the fact of having paid the money, by the direction of one of the commission merchants, to the defendant in the first suit, and taking his receipt for it, and in his testimony in regard to the receipt, referred to a circumstance which refreshed the memory of the commission merchant by whose order he paid it, so that he distinctly remembered the receipt. The receipt book in which the receipt was written was destroyed by the great fire in Chicago. Thereupon the plaintiff in the first suit filed a bill in equity for a new trial, based upon this newly discovered evidence, and, on the hearing thereof, it appeared that, previous to the first trial, the commission merchant had induced him to believe that he could prove the payment claimed by them, and he himself testified that one of them expressly told him that he could do so, on the day before the trial: Held, that, under these circumstances, there was no lack of diligence attributable to the complainant in not having this newly discovered testimony upon the trial at law, and that a new trial was properly granted according to the prayer of his bill.</p> <p>2. Injunction—irregularly granting preliminary, not ground for reversal of order making it perpetual. Even if a’preliminary injunction is improper for want of notice to the defendant, such irregularity is no rea: son for reversing a decree on final hearing making the injunction perpetual, where the proof justifies a decree for an injunction.</p> <p>3. Evidence—stenographer''s transcript. On the hearing of a bill in equity for a new trial in a suit at law, the transcript of the evidence on the trial of such suit at law is properly admitted in evidence where the short-hafld reporter who reported the trial testifies that he wrote up the testimony; that the transcript of the testimony is correct; that the witnesses were sworn, and testified as therein stated.</p> <p>4. Depositions—before whom may he taken. A commission to take depositions may issue to any disinterested person to take a deposition as commissioner, and such person may be designated by the name of an office which he holds, as well as by his proper name.</p> <p>5. Where a commission is issued to a person by the designation of an office which he holds, the certificate of the person taking the deposition, that he took it in pursuance of the commission, is evidence of his identity. '</p>

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

<p>1. Member op a family—definition. A son or daughter residing with the father does not cease to be a member of his family when he or she arrives at the age of twenty-one or eighteen, respectively, by reason of that fact alone.</p> <p>2. Same—railroad ticket. A railroad ticket which, on its face, purports to be for the exclusive use of a man and family, authorizes a son, who is residing with the father as a member of his family, to ride upon the road, notwithstanding he may be over twenty-one years of age.</p> <p>3. Although a railroad ticket issued to a man for the use of himself and family may, on its face, be such as would authorize a son over twenty-one years old to ride on it, j-et if, when it was purchased, the purchaser was informed that a son over twenty-one would not, under the regulations of the company, be permitted to ride on it, such regulation would form a part of the contract of purchase, and would be obligatoiy upon the holder of the ticket, or any person who attempted to ride upon it.</p> <p>4. Evidence—published schedules of regulations not evidence unless notice is brought home to the party to be affected. Where a man who was over twenty-one years old, but a member of his father’s family, attempted to ride on a railroad on a ticket issued for the exclusive use of his father and his family, and was ejected from the car on the ground that he was not entitled to ride on the ticket, and brought suit against the company, it was held, that evidence that certain schedules were printed and furnished to the public by the company, with such tickets, which showed the rules and regulations under which they were sold, was improper.</p> <p>5. It would, however, be competent, in such case, to show that such schedule was furnished to the purchaser of the ticket at the time he purchased it.</p> <p>6. Measure op damages — ejecting passengers from railroad car. Where a party is forcibly and unlawfully' ejected from a railroad car, in the presence of the other passengers, and the conductor publicly announces, as his reason for so doing, that he refused to pay his fare, a jury may properly find from such facts that the party thus ejected suffered feelings of shame and humiliation, without any other proof on that subject.</p> <p>7. Where a part)' who is rightfully on a railroad car, and has paid his fare, is unlawfully expelled therefrom, he is entitled to recover more than nominal damages, even though he sustains no pecuniary loss or actual injury to his person.</p> <p>8. Instructions. In an action against a railroad company for unlawfully ejecting a passenger from its train, it is error to tell the jury that it is their duty to assess damages if they believe certain facts. Whether a plaintiff has sustained damage, and if so how much, is a question to be determined by the jury, and it is proper for the court to instruct them, that if they believe certain facts they may, or they are at liberty to, assess damages, but not that it is their duty to do so.</p> <p>9. Excessive damages. Where a party was ejected from a railroad car unlawfully, and suffered no personal injury, was delayed only one day in reaching home, and his pecuniary loss did not exceed §10, a verdict for §1000 was excessive.</p>

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

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

<p>Appeal from the County Court of Cook county; the Hon. M. R. M. Wallace, Judge, presiding.</p>