Volume 83 — Illinois Reports

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

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

William Brown, Judge, presiding. This suit was commenced before a justice of the peace, by J. W. Boomhour, to recover damages for a breach of a contract which he alleges he made with the school directors of Union District Ho. 2. The court, to whom the cause was submitted for trial without the intervention of a jury, found for plaintiff $60.

<p>1. New trial—newly discovered evidence. A new trial will not he granted for newly discovered evidence which is merely cumulative and not decisive, and where the affidavit fails to show diligence to procure the testimony.</p> <p>2 Evidence—4nstrwction as to preponderance. There is no error in instructing the jury that the preponderance of the evidence is not alone determined by the number of witnesses testifying to any fact or facts, hut that, in determining its preponderance, the jury should take into consideration the opportunities or occasion of the witnesses seeing, knowing or remembering what they testify to, the probability or improbability of its truth, the relation or connection, if any, between the witnesses and the parties, their interest or lack of interest in the result of the case, and their conduct and demeanor while testifying.</p> <p>3. Instruction—modification. There is no error in modifying an instruction by adding a correct legal principle pertinent and proper to be considered with the facts of the case.</p>

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

<p>1. Ebaud—when action Wes for fraudulent representations. Amere fraudulent representation is not actionable per se. To recover, the plaintiff must not only shxrw that the representations were made, and that they were false and fraudulent, but he must also show, affirmatively, that he has been inj ured thereby—that he is, in some way, placed in a worse condition than he would have been had the words been true.</p> <p>2. Where a party induced a creditor to sign a composition agreement, whereby he accepted one-half of his claim in full, upon the representation of his debtor that no person had received any other thing, etc., the fact that the debtor had given his note for $500 to induce another creditor to sign the same agreement, which note, upon suit thereon, was adjudged void, is not sufficient to avoid the contract of composition, as it worked no injury to the creditor.</p>

<p>Mechanic’s lien—limitation. A material-man, who has furnished lumber for the erection of a building, can not enforce his lien against the estate of the owner of the building, after the expiration of six months from the time payment is due, so as to cut off the lien of other creditors who have proved their claims, where the personal estate is insufficient for their payment.</p>

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

<p>1. Usage of trade—as affecting contracts. Where there is a well known usage which obtains in trade, it will be presumed that all who engage in that business, where it prevails, contract with a view to it, unless they exclude the presumption by their contract. Hence, a usage may be proved to interpret the otherwise indeterminate intention of the parties, and to ascertain the nature and extent of their contracts.</p> <p>2. A commercial usage, to take the place of general law, must be so uniformly acquiesced in for such a length of time as to force the inference that it entered into the minds of the contracting parties ai.d formed a part of the contract.</p> <p>3. Contract —for future delivery. On a contract for the sale and del ivery of grain at a future day, where the delivery and payment are to be concurrent acts, neither party can put the other in default without performing on his part, or offering to perform.</p> <p>4. A contract for the sale of wheat in store, to be delivered at a future time, which requires the parties to put up margins as security, and provides that, if either party fails, on notice, to put up further margins according to the market price, the other may treat the contract as filled immediately, and recover the difference between the contract and market price, without offering to perform on his part, or showing an ability to perform, is illegal and void, as having a pernicious tendency.</p>

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

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

<p>Attorney—right to fee. Where an attorney at law agrees to prosecute a suit or claim for one-half of whatever judgment is recovered, if no judgment is recovered he will he entitled to no compensation, when the failure to recover is not the fault of the client.</p>

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

<p>1. Will—whether a bequest ts a specific legacy. Where a testator gives and bequeaths to his executors the sum of §500, “ to be used and disposed of by them according to verbal instructions given them by ” the testator, the bequest can not be held to be a specific legacy against the express words declaring a trust.</p> <p>/^~2. Parol evidence—to explain trust evented by will. Where a bequest is made in a will, to executors, of a sum of money to be used and disposed of by them according to verbal instructions given them, parol evidence is \ admissible to show what -those instructions were, and to show performance.</p> <p>' 3. Administration—-judgment on accounting. On a final account by executors, the court has no authority, on disallowing a credit claimed, to render judgment against the executors in favor of the residuary legatees, who are not parties to the proceeding.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. William W. Farwell, Judge, presiding. This was a creditor’s bill, brought against plaintiff in error, Eli G. Runals, by George F. Harding, executor of Abner 0. Harding, deceased, who had purchased the judgment in question of DeWitt, Richard and Hannah Campbell, who, as executors of Alonzo Campbell, had recovered the judgment against Runals, upon an indebtedness originally due from him to Alonzo Campbell.

<p>1. Diseased sheep—liability of owner for communicating disease. The owner of sheep infected with a contagious disease, which is known to him, who suffers the same to escape from his pasture into the premises of another, through a defect in his part of a division fence, which he neglects to keep in repair, is liable in an action, under the statute, to such adjoining owner for all damages he may sustain by having such disease communicated to his sheep. '</p> <p>2. The fact that one of plaintiff’s sheep communicated the disease to defendant’s flock of sheep, will not exonerate the latter from liability to the former, if he thereafter permits his flock to run where it can do injury to the plaintiff.</p> <p>3. The owner of sheep, who, knowing them to he infected with disease, suffers them to run at large, is liable for all damages occasioned thereby to sheep of others, whether their owners apply or do not apply the proper treatment. The doctrine of contributory negligence has no application in such a case.</p> <p>4. Evidence—rebutting. In an action on the case, to recover damage, for communicating an infectious disease to plaintiff’s sheep, where the defendant proves by witnesses that they had cured sheep of the disease, by a certain .treatment, it is error for the court to refuse to allow the plaintiff to show, by other witnesses, that they had tried the same prescription without success.</p> <p>■ 5. So, where, in such action, the defendant introduces testimony that plaintiff’s sheep were seen running at large prior to their infection, to induce a belief they were infected while so running at large, the court should not refuse to allow the plaintiff to show that the sheep so seen at large were not his flock.</p> <p>6. Same—degree of proof required. It is not necessary to a recovery, in a civil suit, that the evidence shall produce a belief in the minds of the jury so strong as to be satisfactory. It is sufficient if they believe from the evidence, though it may not be entirely satisfactory.</p> <p>7. Instruction—without evidence to support. Every instruction, unless it be upon an abstract proposition of law, must have some evidence on which to be based, otherwise its tendency is to mislead.</p>

<p>1. Appearance—in appeal case. Where the appellee, in an appeal taken from the judgment of a justice of the peace, files a trial notice with tlie clerk, under the rules of the court, this, independent of statutoiy provision, is a full appearance and submission to the jurisdiction of the court, and will obviate the necessity of service on the appellee.</p> <p>2: Same—statute construed. The 68th section of the chapter of the R. S. of 1874, entitled “ Justices of the Peace and Constables,” does not exclude the common law modes of entering an appearance in a case, but only provides a mode of entering it in vacation.</p> <p>3. Practice—filing papers. Where a notice required by rule of court is actually filed and placed among the other papers in a case, the fact the clerk has omitted to mark it as filed, will not invalidate the notice. If the opposite party knows of its being in the papers, this is sufficient.</p>

<p>1. Municipal corporation— legislative control over. Municipal charters are subject to repeal or amendment at the pleasure of the legislative power granting them, and the absolute repeal of a city charter abolishes all offices under it.</p> <p>3. Office—right to, lost by change of chm'ter. Where a city incorporated under a special charter adopts the general law for the incorporation of cities, and becomes organized under such general law, this will determine the tenure of all offices under the special charter, except such as are expressly saved.</p> <p>3. Where a city, after the election of a marshal, adopted the general law and organized under it, and created the office of superintendent of police, and required him to perform the duties of marshal, and filled the latter office by appointment, it was held, that the party elected marshal had no further right to the office.</p>

<p>1. Contract—when construed 5y rules of the hoard of trade. All contracts for sale made on ’Change by members of the board of trade to another member, with reference to the by-laws and rules of the board, must be construed as if those rules were expressly made a part of the contract; but members of that board may, by contract on ’Change or elsewhere, bind themselves beyond and independent of these rules. Where the sale is made at its rooms, in the absence of proof to the contrary, it will be presumed to have been made with reference to these rules.</p> <p>3. Fraud and deceit—when action lies for. Notwithstanding the rules of the board of trade of the city of Chicago, in respect to sales, if the seller makes a distinct assertion of the quality or condition of the article sold, whether it amounts to a warranty or not, which he knows or should know is untrue, with the view of inducing another to buy, and that other relies upon that assertion, and believes it to be true, and, by reason thereof, does buy, and damage ensues to him, he may maintain an action for deceit, notwithstanding he may also have procured an inspection of the article purchased.</p>

<p>Mental capacity—to execute deed. The fact that a grantor of land is about seventy years of age, and is somewhat enfeebled in body and mind, if he is capable of transacting ordinary business, and knew and comprehended the nature and character of the transaction, is not sufficient ground to set aside a conveyance of real estate made by him, when no undue influence is practiced upon him.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Geo. W. Pleasants, Judge, presiding.</p>

<p>1. Evidence—hem'say. Testimony as to statements made by one not a party to the suit, is inadmissible, except for impeachment, and is not admissible for that purpose unless the proper foundation is laid, by calling such person’s attention to the fact and the time and place.</p> <p>3. Witness—competency of wife, for her husband. Where a wife is sent to demand money due her husband, this will not, under the statute, make her a competent witness for her husband, to prove admissions of the defendant going to prove a prior contract. If she makes a contract as her husband’s agent, she is competent to prove the same.</p> <p>3. Evidence—rebutting as to impeaching evidence. Where impeaching evidence is given as to a witness’ statements contradictory to his testimony in a deposition, he should be permitted to be recalled and examined as to such statements, although his attention may have been called to them in his deposition, and he therein testified that, to the best of his recollection, he had made no such statements.</p>

<p>1. Guabanty—presumption from name indorsed on note. If a promissory note in the hands of the payee has upon its back the signature in blank of a third person, the presumption, in the absence of proof, is, that such person indorsed as a guarantor, but this presumption may be rebutted by clear and satisfactory proof of a different intention.</p> <p>2. 8ame—proof, to rebut presumption. Proof that the indorser’s name was put upon the note for the purpose of becoming liable as security that the maker should be responsible for the payment of the note, and that the indorser refused to sign as maker, will not rebut the presumption of a contract of guaranty.</p> <p>3. Same—nature of undertaking. No legal proceedings against the maker of a note are necessary to fix the liability of a guarantor, nor is it necessary to show the insolvency of the maker, or to prove demand or notice of non-payment, or to use diligence against the maker.</p>

<p>1. Instruction—variance from pleading. Where a declaration alleges that the defendant falsely, willfully, voluntarily, knowingly and corruptly testified, on a former trial between the parties, to material facts which defeated the plaintiff’s recovery, etc., an instruction that unless the jury believe, from the evidence, that the defendant falsely, willfully, etc., committed perjury, to find for the defendant, is not erroneous as being variant from the allegation in the declaration.</p> <p>2. Pleading — declaration—surplusage. Where a declaration in an action on the case charged that the defendant falsely, willfully, knowingly and corruptly testified on a former trial, between the same parties, to material facts, whereby the plaintiff was defeated in the suit, it was held, that all the words, except the false swearing, could not be rejected as surplusage, but that if a recovery could be had, it was necessary to prove that the testimony was not only false, but willfully and corruptly so.</p> <p>3. Witness—action against, for false swearing. An action does not lie against a witness merely from accidental or unintentional false evidence on his part. If, from want of memory or mere inadvertence, he should fail to state all the material facts in his knowledge, he can not be held liable in any form, of proceeding. He will not he liable merely because, from carelessness, he may make a false statement</p> <p>4. Same—-false swearing, whether willful. Where the parties to a suit both testify, and their evidence is conflicting as to matters material in relation to a contract, it does not necessarily follow that either has sworn willfully false, as the conflict may arise from an honest difference of opinion as to the contract.</p> <p>5. Evidence—record of acquittal conclusive. The record of acquittal of one tried on a charge of perjury is conclusive evidence, in all subsequent suits, that the party is not guilty of perjury, but not that his testimony was true in the case.</p> <p>6. Same—reports. Reports put in circulation by the defendant and his friends, to injure the plaintiff’s character for truth and veracity, are proper evidence to be considered by the jury. The fact that they were so put into circulation will only have the effect to impair their value as evidence.</p>

Sajmüel M. Moobe, Judge, presiding. On the 17th day of May, 1876, Charles H. Heed, State’s Attorney in and for the county of Cook, asked leave to file, in the Criminal Court of that county, an information in the nature of a quo warranto, in the name of the People, at the instance of Michael Evans, against Bernard Callaghan, to make him answer by what warrant he claims to hold and execute the office of town collector of South Chicago.

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. J. W. Cochran, Judge, presiding.</p>

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

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

<p>1. Taxes—affidavit of collector. Where the affidavit of the collector, on application for judgment against lands, omits to name taxes as due thereon, but only mentions special assessments, it will he presumed that the taxes have been paid, in the absence of proof to the contrary; and the omission of the word “ taxes ” will not vitiate the affidavit.</p> <p>2. Same—presumption in favor of judgment. Where the record, in an application for judgment for a special assessment, shows the amount of such assessment and the costs and then a statement of the total amount, in the absence of proof to the contrary, it will be presumed, in favor of the judgment, that there were no other taxes or assessments unpaid against the land.</p> <p>3. Jurisdiction—-finding as to due notice. Where the court, in its judgment against real estate for special assessments, finds that due notice, as required by law, has been given of the application, this will afford prima facie evidence that the proper notice was given, and the absence of the notice from the record is not sufficient to rebut such finding.</p> <p>4. Special assessment—consolidation of several into one. The consolidation of several separate and distinct special assessments against various tracts of land into one proceeding, when reported for confirmation, when' each lot of land appears only once in the rolls, does not invalidate the proceeding so as to defeat an application for judgment thereon. Even if this was error it could not be reached in a collateral proceeding.</p>

<p>1. Practice—affidavit of merits—its sufficiency. In a suit by partners, in assumpsit, the defendant pleaded non assumpsit, accompanied with the following affidavit of merits: “ A B, being duly sworn, deposes and says that he is the defendant in the above entitled cause, and that he verily believes he has a good defense to a portion of said plaintiffs’ demand, and to the full sum of four hundred and fifty dollars, upon the merits, in this, that said sum of four hundred and fifty dollars was, at sundry and divers times, by the defendant, sent to said plaintiffs, as partners, etc., and by the said plaintiffs received, but which said sum, or any part thereof, the said plaintiffs to said defendant have not accounted, or given this defendant credit thereforHeld, that the afiidavilwas good inform and substance, and that it was error to strike the same from the files.</p> <p>2. Same—striking affidavit from files, for interlineations. The fact that words in a defendant’s affidavit of merits are interlined before it is sworn to, in order to make it conform more strictly with the statute, affords no ground for striking the affidavit from the flies.</p> <p>3. Pobmeb. decision. It was said in 8ta.nberry v. Moore, 56 Ill. 472, that the practice of making amendments by erasures and interlineations is a bad one, and ought not to be tolerated; that a paper thus disfigured ought to be stricken from the files. This, however, was not necessary to be said, as that matter was not a point in the case. The remark was only intended to indicate a better practice.</p>

<p>Parol evidence—to explain to whom, gua/ranty was given. Where an insurance company became consolidated with another, which assumed its liabilities, and the stockholders of the first executed a guaranty to pay all the debts and liabilities of the former, but the undertaking was to no one by name, it was held, that it might be shown by extrinsic evidence that the guaranty was to indemnify the latter company against liability for the former, and was not intended for the benefit of its policyholders.</p>

Martin M. R. Wallace, Judge, presiding. This was an application by Henry B. Miller, collector of Cook county, for judgment.against certain lots and real éstate in the village of Hyde Park, for the first ten installments upon a special assessment to lay cast-iron water supply pipes in said village. The county court refused judgment on the ground that the ordinance under which the assessment was made, was void.

<p>1. Instruction—must be based on evidence. An instruction on a state of facts of which there is no evidence tending to prove, is erroneous and calculated to mislead.</p> <p>3. Pledge—where title passes by sale by the pledgee. A pledgee of a chattel may sell his interest in the same, and the owner can not recover the same of the purchaser without tendering him the sum due thereon, and if the pledgee is suffered to retain possession after tender of the sum due, and a sale is made to an innocent purchaser, who has no notice of the fact of its being only a pledge, the latter will acquire the title, even as against the real owner.</p> <p>3. Same—tender and its abandonment. Where the pledgor of a chattel, after tendering the sum due the pledgee, takes no steps to recover possession, he will authorize others to regard the pledge as still subsisting, and if purchased by another he can not recover the same in replevin, without tendering the sum due, to such purchaser.</p>

<p>1. Laches—as a defense in equity. Where a party, with full knowledge of all the facts, sleeps upon his rights for nineteen years without asserting his equities, and no sufficient excuse is shown for the delay, his laches will be such as to present a bar to relief in a court of equity. A court of equity will not enforce a stale demand.</p> <p>2. Limitation—inequity. In the absence of a statute of limitations, the time in which a party will be barred from relief in a court of equity depends, to a certain extent, upon the facts of the particular case; but when the statute has fixed the period of limitation barring the claim at law, courts of equity, by analogy, will follow the limitation provided by law. A court of equity will often treat a less period of time as a presumptive bar to a recovery-</p> <p>3. Where a party procured a bond for a deed, and assigned the same through his son for money with which to make'a payment, and died, and the assignee completed the payments, taking a conveyance to himself, and went into possession of the land, and made valuable improvements thereon, and paid all taxes for a period of nineteen years, residing upon the premises, it was held, that the heirs of the original purchaser, having knowledge of the facts, were not entitled to relief in equity as against such grantee, on account of their long acquiescence and delay.</p> <p>4. Same—as against married woman. Since the passage of the Married Woman’s Act of 1861, the Statute of Limitations runs against a married woman the same as against a feme sole.</p> <p>5. Former decision. The expression in Morrison v. Norman, 47 111. 477, and Noble v. McFarland, 51 ib. 226, to the effect that the Married Woman’s Act of 1861 has no effect upon the saving clause in the limitation laws, is overruled.</p> <p>6. Statute—construction. Courts are not confined to the literal meaning of words in a statute, in its construction, but the intention may be collected from the necessity or cause of the act, and its words may be enlarged or restricted according to its true intent.</p>

<p>1. Lease—delivery, when not necessary. Where a tenant of a prior owner of property signs a lease to him from a grantee of his former lessor, recognizing his relation as tenant and fixing the rate of rent, the times of payment and the length of the term, it is not necessary for the landlord, in forcible detainer against such tenant, to prove a delivery of his lease</p> <p>2. Landlobd and tenant—attornment. Where a tenant, after notice of a conveyance of the demised premises by his landlord, promises to pay rent to the grantee, this is sufficient evidence of an attornment.</p> <p>3. Bill oe exceptions—demand of rent and notice to quit. Where the bill of exceptions taken in a forcible detainer suit, shows that a notice and demand in writing was read in evidence, but fails to set out its contents, it will be presumed that it was sufficient to justify the judgment below.</p>

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

Writ oe Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. On the 80th of March, 1876, plaintiff sued out a writ of attachment against the property of defendants. The affidavit alleging the indebtedness and causes for attachment, is in the usual form, and also states defendants are not residents of the State of Illinois, but that their place of residence is St. Joseph, Berien county, in the State of Michigan.

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, upon a promissory note, brought by the appellee against the appellant. The court below struck the defendant’s plea from the files, for want of a sufficient affidavit of merits.

<p>Appeal from the Superior Court of Cook county; the Hon. ^0SBPH E- Gary, Judge, presiding.</p>

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

<p>1. Appeal—allowed as to any item of administrator's account. An appeal may be taken from the county to the circuit court as to any one item allowed an administrator in his account, and such appeal does not bring before the appellate court the whole account, but the trial, which is denovo, will be confined to the item appealed from.</p> <p>2. Administration—allowance for monument. A monument contracted for by an administrator and a son of the deceased, to be erected to the memory of the intestate and other members of his family, is not a proper charge by the administrator against the estate in his account.</p>

Henry Booth, Judge, presiding. This was an action of assumpsit, by Sharp, against Thomas J. Kerr, Lyne S. Davidson and Fletcher Gr. Welch, the declaration containing only the common counts. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $630. The other material facts, as deduced from the evidence, appear in the opinion of the court.

Joseph E. Gaby, Judge, presiding. This was an action on the case, by Washington Hesing, administrator of the estate of Max Werner, deceased, against the city of Chicago, to recover damages caused by the death of the intestate through negligence on the part of the city.

Joseph E. Gary, Judge, presiding. Appellant sued appellees in an action of covenant in the court below, on an instrument of which the following is a copy: “ This indenture, made this 3d day of January, A. D. 1866, between Charles L. Hancock, of Chicago, Cook county, Illinois, of the first part, and the Chicago Literary Association, of the city of Chicago, Cook county, Illinois, of the second part, “ Witnesseth: That the said party of the first part, for and in consideration…

<p>1. County order—negotiable under the statute. An order issued by a county on its treasurer, payable to a person therein named on a day certain, is a negotiable instrument, under the statute, as much so as a promissory note.</p> <p>2. Assignment—when legal title passes by 'delivery. A county bond or order for the payment of money payable to bearer, is negotiable by delivery, without being indorsed, and the legal title will pass the same as a bank bill, by delivery.</p> <p>3. Same—when indorsement necessary. A county bond or order'payable to a person therein named, or bearer, can not be transferred so as to vest the legal title, except by indorsement of the payee, but the equitable title may pass by a sale and mere delivery.</p> <p>4. Promissory note—possession evidence of ownership. Possession of a note, bond or bill, unattended by circumstances which, in a reasonable mind, ought to excite suspicion or distrust, or put a party on inquiry, is prima facie evidence of ownership in the holder, and a purchaser from such a holder will be protected until his purchase is assailed by one who can establish a legal title to the instrument.</p> <p>5. Same—trover for note lost and found. If a negotiable instrument is lost, and found and put in the market, and purchased by one without notice of the facts, the holder of the legal title and owner, upon demand, may maintain trover for its value.</p> <p>6. Same—rights of equitable owner of lost note, as against an innocent purchaser from the finder. The equitable owner of a lost note or other negotiable paper, has no superior equities to those of an innocent purchaser for value in the market, and can not maintain any action against such purchaser.</p> <p>7. Negligence—upon whom loss must fall. Where one of two innocent parties is to suffer loss, it must fall upon the one first in fault. If, therefore, the equitable owner of a note loses the same, and it is found and put upon the market, and comes into the hands of an innocent and Iona fide purchaser, the loss must fall upon the loser of the note for his negligence in not taking proper care of the same.</p>

<p>Sheriff—liability, civilly, for escape of prisoner. Where a sheriff negligently permits one in his custody under an indictment for an assault with a deadly weapon upon B, with intent to inflict a bodily injury, to escape, and go at large, and such person makes a further assault upon A, and threatens to take his life, whereby A is put to expense in having him bound over to keep the peace, A can not maintain an action on the case against the sheriff for the escape, nor for damages from the subsequent acts of the escaped prisoner, as they are not the natural and probable consequence of the escape.</p>

<p>1. Contract—can not rest partly in writing and partly in pm'ol. Where the parties reduce their contract to writing, in the absence of fraud or mistake, the writing must be regarded as embracing the whole of their undertakings, and can not be added to by parol testimony.</p> <p>3. Same—rescission. Where parents conveyed their residence to their son, taking back a lease, or writing, securing to them a home in the house during their lives,-—a privilege never denied them,—the conveyance can not be set aside because of the death of the son, where no fraud was practiced by him.</p>

<p>1. Chancery—relief to co-defendant without cross-bill. Where a party borrowed money of a bank under a general agreement that all collaterals should be held by the bank for any balance due from him, and gave the notes of a third party, secured by a trust deed on real estate, as collateral security, and the bank sold and assigned his note, and the purchaser foreclosed the trust deed, it was held, that the surplus arising from the sale could be decreed to the bank, which was made a co-defendant, without its filing a cross-bill.</p> <p>2. Same—preservation of the evidence. Where a decree finds facts from the evidence, and they are sufficient to sustain the decree, no other preservation of the evidence is necessary. A party not satisfied with a decree finding the facts, can insist upon a certificate of evidence or hill of exceptions.</p> <p>3. Decree—when should find precise amount. On foreclosure of a deed of trust, where the decree directs the payment of a surplus remaining after paying the complainant to he made to a co-defendant, there being no cross-bill filed, it is not necessary it should find the precise amount due such defendant, but it will be sufficient to find that there is due him more than the surplus.</p> <p>4 Error—assigning error as to one not complaining. A defendant in a chancery suit can not urge as error a ruling as to a co-defendant, which affects the rights of the latter only.</p> <p>5. Liquidated damages. Where a party executes his note for money loaned him, bearing ten per cent interest, with a provision that if the same is not paid within ten days after maturity, interest shall afterwards be paid at the rate of twenty per cent, as liquidated damages, there will he no error in allowing such rate in accordance with the contract, especially where usury is not pleaded.</p>

Theodore D. Murphy, Judge, presiding. This was an action of assumpsit, by Henry W. King against Grttv Wilson and Isaac B. Stevens, upon four promissory notes, given by the defendants to Henry W. King & Co., and by them assigned to Henry W. King. The defendants pleaded pleas of partial failure of consideration to the special counts, and non assumpsit to the whole declaration. The other material facts are stated with sufficient fullness in the opinion of the court.

Joseph E. Gaby, Judge, presiding. This was an action of assumpsit, by Thomas J. Wells against Francis A. McCormick and Joseph Rigby, upon three promissory notes, given by defendants to M. J. Wilson, and by him indorsed to the plaintiff. The plaintiff filed with his declaration his affidavit of the sum due him from defendants, and on what account, after allowing all just credits, deductions and set-offs.

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

<p>1. Error—that works no injury. If there be error, in the reference of a cause to a master, to take evidence in a suit to foreclose a deed of trust, as to the notice to be given, and he only reports the notes and deed of trust, and the decree is entered upon them regardless of the report, the decree will not be reversed, as the error worked no harm.</p> <p>2. Chancery practice — referring issue to a jury. A motion, in a chancery suit to foreclose a mortgage, to submit a question of fact, as, the insanity of the mortgagor, to a jury, upon such allegation in an unsworn answer, without any affidavit of the-fact, is properly refused. An affidavit is necessary to entitle a party to have an issue so tried.</p> <p>3. Same—postponing hearing, discretionary. A motion to postpone the hearing of a suit in chancery for a few days, is addressed to the discretion of the chancellor, and its exercise will not be interfered with, unless the discretion has been abused.</p> <p>4. Continuance—when no diligence is shown. An application for the continuance of a suit in chancery, where the cause is set for hearing, is properly overruled where the affidavit show's no diligence in preparing for the hearing.</p> <p>5. Party in chancery—party in interest. A bill to foreclose a mortgage or deed of trust may be brought in the name of the real owner of the note secured.</p>

William Brown, Judge, presiding. This was an action on the case, by the appellee against the appellant, to recover for a personal injury caused by a runaway team. The defendant filed the general issue, and a trial was had, resulting in a verdict of $80 in favor of the plaintiff. The defendant moved for a new trial, which the court overruled, and rendered judgment on the verdict, to which ruling the defendant excepted.

<p>Bbvebsal—practice when cause is remanded with directions. Where a chancery cause is decided in this court upon the merits, the opinion finding that there is no equity in complainant’s bill, and the cause is remanded for further proceedings in conformity with the opinion, it is the duty of that court to dismiss the bill for want of equity, and it is error to allow the complainant to dismiss it without prejudice.</p>

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

Arthur A. Smith, Judge, presiding. On the 23d day of October, 1872, Alimer Hoig, since deceased, with one Soil L. Thrap, an agent for Adrian College, a corporation existing under the laws of the State of Michigan, went to the office of the witness Dryden to have papers prepared in relation to the conveyance to Adrian college of certain real estate situated in this State, and then owned by decedent.

William W. Heaton, Judge, presiding. This was an action on the case, by appellant, against appellee, for negligence in running its freight train on which- appellant was being carried as a passenger, whereby appellant was injured. Appellee pleaded not guilty, and four special pleas. To the latter, appellant demurred. The court sustained the demurrer to the first and second special pleas, and overruled it as to the third and fourth.

<p>1. Sale on execution—interest and rights of purchaser before time for redemption expires. A judgment creditor has a general lien on all the real estate of his judgment debtor in the county where the judgment is obtained, but upon his becoming the purchaser of a tract under his execution, the general lien is narrowed down to a specific one in the land sold, of as high a dignity as if created by a mortgage, but he is not the absolute owner until after the expiration of fifteen months.</p> <p>2. Deed of trust—who entitled to surplus on sale. Where land is sold under a deed of trust and there is a surplus after satisfying the debt secured by it, and the payment of the costs and expenses of the sale, a purchaser of the land under a sale under a judgment against the grantor, which was a junior lien, who is not entitled to a deed at the date of the sale by the trustee, is entitled to share in such surplus to the extent of the amount of his bid, with ten per cent interest, and the grantor in the trust deed will be entitled to the balance, although his right to redeem from the sheriff’s sale had expired when the trustee’s sale was made.</p> <p>3. If, at the time land is sold under a deed of trust, the legal title has passed from the grantor, either by his own deed or by a sheriff’s deed, the grantee will be entitled to the whole of any surplus, after discharging the debt secured by the trust deed, and expenses; but if the land has been sold under execution, and the fifteen months allowed for redemption have not expired, the purchaser under the execution will only have a lien on such surplus for the amount of his bid and ten per cent interest.</p> <p>4. Lien—in equity follows proceeds of property. A junior lien to that of a trust deed will be defeated by a sale under the latter, where the property does not bring a greater sum than will satisfy the debt secured by it, and costs and expenses, but if any surplus is left, the junior lien in equity will attach to it.</p>

Writ oe Error to the Circuit Court of Will county; the Hon. Josiah MoRoberts, Judge, presiding. This was an action of assumpsit, brought by George Chandler, receiver of the Lamar Insurance Company, against Hopkins Rowell, to recover of him as a stockholder of the insurance company.

<p>Practice—-judgment for residue aftev allowing set-crf sworn to. Where the plaintiff proceeds under section 37 of the Practice Act of 1874, hy filing his affidavit with his declaration, and the defendant files the general issue, with notice of set-off, with an affidavit of a defense to a given amount, if the plaintiff admits a deduction of such sum, it is proper to render judg. ment in his favor for the residue, without a trial.</p>

<p>1. Malicious prosecution—evidence of matter arising after prosecution. Where a wife, after a decree of divorce against her, continued to occupy an apartment in her husband’s house, without his consent, and brought her sisters to stay with her, and he, after notifying them to leave, in their absence, locked the doors and fastened up the windows, and, on their return, the wife broke the windows, and thus forced an entrance for herself and sisters, the latter standing by, and one of them concealing the instrument used, and the husband, on the advice of counsel, had them all arrested for malicious mischief, and, on the trial of an action brought by one of the sisters for malicious prosecution, the court admitted in evidence the petition of the wife for alimony, filed after the divorce and after the criminal prosecution, for the purpose of showing that she claimed an interest in the house: £{eld, that the court erred in admitting the same.</p> <p>2. Same—strict rules of evidence should he enforced. On the trial of an action for malicious prosecution, the strict rules of evidence should be enforced by the court, and evidence of facts foreign from the inquiry should be excluded.</p> <p>3. Same—want of probable cause. Want of probable cause, though negative in its character, must be proved by the plaintiff by affirmative evidence. It can not be inferred from any degree of malice which may be proved. It is a mixed question of law and fact.</p> <p>4. Same—advice of counsel. A party seeking the advice of counsel as to commencing a criminal prosecution must act in good faith and without gross negligence, and not withhold any information with an intent to procure an opinion that might operate to shelter and protect him against a suit. If a party culpably or negligently withholds from counsel any material fact, the advice will not protect him. Per Bbeese, J.</p> <p>5. But where the counsel advised with is already conversant with a material fact, by being an attorney of the party in a prior suit, it will not be necessary for the party to give him information of it. He may, in such case, presume the counsel has knowledge as to such fact, without being chargeable with bad faith. Per Bbeese, J.</p> <p>6. Tenants "by sueeebance—who are. Tenants per autre vie after the death of the cestui que vie, tenants for years whose terms have expired, tenants at will whose estates have been determined by alienation or by the death of the lessor, under-tenants holding over after the expiration of the original lease, and a grantor who agrees to deliver possession by a particu. lar day and holds over, are tenants at sufferance. Per Bbeese, J.</p> <p>7. Wife—rights of, cease on divorce. During the pendency of a hill by a husband for a divorce, the wife will have the right to remain in an apartment of his house in virtue, alone, of the marriage relation, hut, after decree of divorce, her rights to any and all parts of it will cease, and if she continues to remain, against the will of the husband, she will be a mere intruder, and is not a tenant at sufferance, and is not entitled to notice to quit. Per Breese, J.</p> <p>8. Criminal law—when party is liable for act of another. In case of a combination to do an unlawful act, the act of one is the act of all, when they are present, whether they participate in it or not. Per Breese, J.</p> <p>9. Possession—right to tahe, peaceably. Where a party is a mere intruder upon the possession of another, the latter will have the right to repossess himself peaceably if he can, and take measures to keep the intruder from re-entering. Per Breese, J.</p>

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

<p>1. Ambiguity—rule as to evidence to explain. A patent ambiguity in a deed can not be explained or helped by averment and proof, but it is otherwise if it is a latent one. When the description of land, in a deed, is not ambiguous on its face, but is rendered so by extrinsic evidence, showing it equally applicable to two different tracts or interests in the same tract, the ambiguity is latent, and may be explained by evidence aliunde.</p> <p>2. Where a party owns an indefeasible title to the undivided fourth part of a tract of land, and acquires a tax title for the undivided two-thirds of the undivided three-fourths of the same tract, and makes a conveyance of' “ one-third of the undivided three-fourths ” of the tract, there arises a patent ambiguity as to whether the deed passes an interest in the fourth to which he has a good title, or an interest acquired through the tax deed, and it may be shown, by extrinsic evidence, which was intended to be conveyed.</p> <p>8. Evidence — to show what title passes by deed. Where the holder of a perfect title to an undivided fourth of a tract of land, and also of a tax title to another undivided fourth, makes a quitclaim deed of an undivided fourth, the consideration of the deed affords evidence, though not conclusive, which title was intended to be conveyed. If it is of no adequate price for the perfect title, it will be evidence that the tax title was intended lo be granted or released.</p> <p>4. And where the quitclaim deed is made to a party holding a patent title to an undivided fourth of the tract, and the description is identical with the sheriff’s deed to the grantor, these facts will afford evidence that a release of the tax title as to the grantee’s undivided fourth, only, was intended.</p>

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

John Gr. Bogers, Judge, presiding. This was an action of assumpsit, by the appellant against the appellee. The material facts of the case are stated in the opinion of the court.

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

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

<p>Writ oe Ebeob to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>This was a bill in chancery, by Henry Stuart and Janies Kane, against the Board of Supervisors of LaSalle county, and Arthur 0. Mclntire, sheriff of the same county. The substance of the bill and the proceedings thereon are given in-the opinion of the court.</p>

<p>Wbit of Eeeoe to the Circuit Court of Cook county; the Hon. Henby Booth, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. John W. Cochran, Judge, presiding.</p> <p>This suit was originally brought against defendant, Kepperly, and four other persons, contractors and sub-contractors on defendant’s building, to recover damages sustained by plaintiff in consequence of falling into an excavation in the sidewalk made with a view to construct coal vaults for the use of the adjoining building. On the 27th day of July, 1874, plaintiff was passing in front of the building, leaning on the arm of her sister, when she stepped on the edge of the excavation, which gave way, and precipitated her to the bottom of the vault. Her husband, who was walking just behind her with a lady friend, immediately rescued his wife, and took her home. ¡Neither her sister nor her friend seem to have thought any assistance was necessary, nor did either go with her or offer to render her any. The accident occurred between 8 and 9 o’clock in the evening. All the street lamps in the immediate vicinity were lighted, and, with the lights in a building near at hand, they cast considerable light on the place where the accident occurred. There was dirt and rubbish on the sidewalk, sufficient to attract the attention of any one passing that way, but no guards had been erected by the owner of the building or the workmen employed. Plaintiff’s sister, with whom she was walking, seems to have been walking in the gutter of the street pavement, and plaintiff says, when she found she was falling, she let go her sister’s arm, that she might not pull her down with her. As to the extent of the injuries sustained, the evidence is conflicting.</p> <p>An ordinance of the city of Peoria, where the accident happened, made it unlawful for any person to make any excavation in any street or sidewalk, without permission in writing from the city engineer, and provided any person who shall dig any hole, pit, ditch, vault or other excavation, and who shall not, during the night, cause the same to be fenced with a substantial fence, at least three feet high, should be subject to a fine.</p> <p>Plaintiff let the carpenter and brick work of repairing his building, to Comegys, and the latter contracted with Coleman and Parish to do the brick-work, and they employed Cornell to do the digging. The labor of taking out the old wood-work, roofing and some other things, was to he done by defendant. Evidence introduced tends to show each contractor had such possession as was necessary to enable him to prosecute with facility the work he had contracted to do.</p> <p>The case has been twice tried before a jury. On the first trial, the jury found defendants not guilty, except the owner of the building, and assessed plaintiff’s damages against him at $2000. That verdict was set aside, and a new trial awarded. On a second trial, the jury found defendant guilty, and assessed plaintiff’s damages at precisely the same amount. Defendant brings the case to this court on appeal.</p>

<p>1. Measure oe damages—suit against carrier for injury to a jack. In an action against a carrier for an injury to a jack while b.eing shipped to the owner, no recovery can be had for loss of profits to be derived from letting him to mares, when it is not averred in the declaration and proved, that the carrier was informed of the intended use of the animal.</p> <p>2. It can not be said that a loss of profits is sustained in being prevented from putting a jack to mares, where there is no proof of any outstanding contracts for his services.</p> <p>3. New trial—presumption as to effect of improper evidence and instructions. In an action for an injury to a jack, the proof was conflicting as to the damage to the animal, the highest showing §200. The court improperly admitted evidence of loss of prospective profits to be derived by standing him, and instructed the jury that they might consider such evidence in making their verdict, and the jury assessed the damages at §200: Held, that as it was impossible to say from what data the estimate of damages was made, a new trial should be granted.</p>

William Brown, Judge, presiding. This was a garnishee proceeding, commenced by E. Gr.

<p>1. Surety—release by failure to present debt against estate of deceased principal. The statute providing that, where the principal maker of a joint note dies, the payee or assignee shall present the same against the estate of the decedent for allowance, and that, upon a failure to do so, the sureties shall be released, is not a mere statute of limitations. On the contrary, the Statute forms a part of the contract, upon which the sureties have a right to rely, even in case of a note payable to the trustees of schools; and if the note is not presented within the time limited by the statute, the sureties will be released.</p> <p>2. Township treasurer—liability of, on Ms bond, for failure to present claim against estate of deceased debtor. If the township treasurer fails to present a note, payable to the school fund, against the estate of the principal maker, within the time limited by law, the sureties will be released, and if the amount is thereby lost to the school fund, the treasurer will be liable therefor on his official bond.</p>

<p>Evidence—weight of, depends on circumstances. On a question of payment, the evidence of a party and the receipt of the other party may be overcome by the testimony of such other party and corroborating circumstances, as showing the receipt to have been given for checks previously made.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding. This was an action of ejectment, by Patrick Gavagan against Theodore H. Bryant, Emily J. Bryant, Emeline Castle and Edward H. Castle, for the recovery of lot 29 in block 61 in the Canal Trustees’ sub-division of section 7, town 39 north, range 14 east, and known as Ho. 245 Warren Avenue, in the city of Chicago.

Writ of Error to the Circuit Court of Livingston county; the Hon. Hath aniel J. Pillsbury, Judge, presiding.

<p>Writ of Eeeoe to the Circuit Court of Whiteside county; the Hon. William W. Heaton, Judge, presiding.</p> <p>This was an action of debt, brought in the name of The People of the State of Illinois, for the use of the City of Morrison, against John 1ST. Baird, Frank Clendenin, Frank D. Ramsay, Warren Woods, Frank H. Robinson and Samuel W. Robinson, upon the official bond of Baird, as township collector of the revenue.</p> <p>The defendants interposed a demurrer to the declaration, which the court overruled, and thereupon rendered judgment for the plaintiff.</p>

<p>Appeal from the Oirouit Court of Livingston county; the Hon. Bath aniel J. Pillsbury, Judge, presiding.</p>

<p>1. Mortgage—right of subsequent mortgagee to redeem from prior mortgage, and, fffect thereof. A second mortgagee has the right to redeem from a sale under a prior mortgage, and, by so doing, he acquires all the rights that the mortgagor -would have attained if he had made such redemption, subject to the right of the mortgagor or his assignee to redeem by refunding the redemption money and paying to the second mortgagee so redeeming the amount of his original mortgage debt.</p> <p>2. Same—mortgagee not bound to speculate as to adequacy of security. A mortgagee of several tracts of land, a portion of which are subject to a prior mortgage, has a right to redeem from a sale under such prior mortgage without showing that it is necessary to protect the security of his mortgage debt, and that the other tracts in his mortgage are not of sufficient value to pay his mortgage debt. He is under no obligation to take any risk as to the adequacy of his security.</p> <p>3. Practice in Supreme Court—who may assign errors. Where parties, on their own motion, are admitted as defendants to a bill in chancery, and file a cross-bill, which, upon final hearing, is dismissed, and they do not appeal, and their names are not mentioned in the order allowing an appeal to other parties, and they are not brought into this court, they can not be allowed to assign errors.</p>

<p>1. Execution—distribution of proceeds of sale. Sec. 13, of ch. 77, R. S. 1874, entitled “ Judgments and Executions,” which requires a distribution of the proceeds of sales under execution, pro rata, on the several executions, according to their amounts, has no application to sales of personal property, but relates solely to sales of real estate, where the liens of the judgments are concurrent.</p> <p>2. Same—order of lien on personalty. Judgments are not liens upon personal property, and executions issued thereon become liens upon such property in the order in which they come to the officer’s hands, the first in point of time having a priority.</p>

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

This was an action on the case, by Louisa Schmidt, against the Chicago and Northwestern Bailway Company and the city of Chicago, to recover damages for the death of Frederick Schmidt, the plaintiff’s intestate, caused by the negligence of the defendants, as was claimed. A trial was had, resulting in a verdict and judgment in favor of the defendants, to reverse which this appeal was taken.

Writ of Error to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding. This was an action of assumpsit, by Brunswick against Bir-' kenbeuel, upon four promissory notes, given by the defendant to E. Brunswick & Co., and by them indorsed to the plaintiff. The defendant pleaded payment and discharge by the transfer of two policies of insurance to the plaintiff, covering property which had been destroyed by fire.

<p>1. Service—sufficiency of jurat to return by special deputy. Where a summons is served by a special deputy sheriff, who signs the sheriff’s name by him as special deputy, and immediately follows a jurat of a notary public, “ subscribed and sworn to before me this,” etc., it will be sufficient, and it will be presumed that the deputy was the party who was sworn to the return.</p> <p>2. Same—waiver of defects in return. If a defendant, after default, appears on the assessment of damages, participates in selecting the jury, cross*, examines witnesses, offers evidence and asks an instruction, he will waive all objections to the service of the summons or return of service.</p>

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

<p>Error—pwty, whose rights an'e not affected by, can not be heard to complain. A widow being in possession of a portion of a lot of ground as her assigned dower in the whole of it, the widow of a former owner filed a petition against her and the owner of the fee, and obtained .a decree assigning to her the same part occupied by the first named widow, who was, by process of court, ejected from the premises, and the complainant put in possession. From this decree an appeal -was prosecuted to the Supreme Court, pending which the appellee therein died. Her death was suggested in the Supreme Court, her administrator made a party, and the Supreme Court thereupon reversed the decree and remanded the cause. The cause was re-docketed in the court below, and a writ of restitution ordered, to restore the first named widow to the possession of the premises, and that upon the execution thereof the suit abate: Meld, that, whether this decree was regular or irregular, correct or erroneous, the owner of the fee can not be heard to complain against it.</p>

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

<p>1. Pleading and evidence —must correspond. To entitle a party suing, to recover in an action, lie must allege the facts on which his claim to a recovery is based, and these facts must be proved. In other words, the allegations and proofs must correspond.</p> <p>2. In a suit against a railway company to recover for the death of plaintiff’s intestate, where the declaration alleges that deceased was a passenger ou defendant’s train when the accident occurred causing his death, and washeing carried for hire, or was on the train hy request of the company, and there was no proof that he was a passenger paying his fare, or went upon the train as a passenger, hut, on the contrary, the proof showed he was upon the engine wrongfully, ia express violation of the rules of the company, no recovery can be had.</p> <p>3. Negligence—liability of railroad company for the death of one wrongfully riding on engine. Where a person, through stealth, wrongfully gets upon an engine of a railway company, without the consent of any officer or agent, and in violation of the rules of the company, of which he has knowledge, for the purpose of being carried without the payment of fare, and he is killed by a collision, the company will not he liable in damages to his personal representative.</p> <p>4. Railroads—'liability as carriers of passengers. Where a carrier undertakes to carry a person, either with or without reward, he is obliged to use proper care and diligence to carry safely, and for a neglect he will be responsible.</p> <p>5. Same—power of engine driver to permit persons to ride on engine. The engine-driver of a railway company has no authority or right to say who shall be upon the train, or give permission to any one to ride upon his engine against the rules of the company. The conductor, having control of the train, might, perhaps, give such permission; and if he knows that a party is so riding on the engine, and suffers him to remain, his act may be considered that of the company.</p>

Writ of Error to the Circuit Court of Lee county; the Hon. William W. Heatoh, Judge, presiding. This was an indictment against Charles C. Johnson for selling intoxicating liquor to minors at a fourth of July celebration. It contained twenty-four counts, charging sales to twelve different named persons. The defendant pleaded not guilty, and a trial was had resulting in a verdict finding the defendant guilty, except as to the seventeenth and eighteenth counts.

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

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

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

<p>1. Default—-plea on file. It is error to render judgment against a defendant by default, when his plea to the merits is on file.</p> <p>2. Appearance—effect of withdrawing. Where an attorney, after filing a plea to the merits, withdraws his appearance, this does not withdraw the plea, and a trial must be had.</p>

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

Arthur A. Smith, Judge, presiding. This was an action on the case, by Sylvia L. Lane, administratrix of the estate of Oliver 1ST. Lane, deceased, against the appellant, to recover damages for the death of her intestate, alleged to have been caused by the negligence of the defendant. The suit was brought in Rock Island county, and the venue changed to Warren county.

Joseph E. Gaby, Judge, presiding. This was an action of assumpsit, by the appellee, against the appellant, to recover on a policy of insurance for a loss of a lot of millinery goods, valued at $1600. A trial was had, resulting in a verdict and judgment for the plaintiff.

<p>Remedy—neglect to open street in reasonable time. An action of assumpsit does not lie against a city by a party whose land has been condemned by the city for the extension and opening of a street, to recover special damages, in being deprived of the beneficial use of the land not taken. If the city improperly neglects to open the street within a reasonable time, not having abandoned it, mandamus is the proper remedy.</p>

<p>Practice)—judgment for balance on affidavit of merits by defendant as to part. If a defendant, in a case where he is required to accompany his pleas with an affidavit of merits, files with his pleas an affidavit that he has a good defense as to a portion of the plaintiff’s demand, the latter may concede the defense as to such sum, and will then be entitled to judgment for the residue, without any trial, regardless of pleas to the whole cause of action.</p>

Writ oe Error to the Circuit Court of Bock Island county; the Hon. George W. Pleasants, Judge, presiding. This was replevin, brought in the circuit court, by plaintiffs in error, against defendant in error, for certain goods found in the possession of defendant.

<p>1. Cook county—under township organization. The county of Cook is under the township organization law, and the acts of the officers of the township and county in acting under such law in assessing property, levying taxes and collecting the same are not void.</p> <p>5. Special assessments—collector's oath. The collector’s oath, in an application for judgment against lands for special assessments, attached to his report, that it is a true and correct record of delinquent lands and lots in the village of E, within the county of C, upon which he has been unable to collect the special assessments, printer’s fees and other costs charged therein, as required by law, for the year therein set forth—that said special assessments now remain due and unpaid, as he verily believes—was held sufficient. There being no taxes, it was not necessary to state that the application was for the sale of the lands for taxes and assessments.</p> <p>3. Same—omission of tract does not defeat the application for judgment. While the Revenue Law may demand correctness in a proceeding for judgment against delinquent lands, still it was never designed that the whole taxes and assessments should be defeated by the mere omission of a tract of land or a lot from the list.</p> <p>4. Same—confirmation conclusive. The confirmation of a special assessment by the county court upon the report of the commissioners, is conclusive until reversed. It is res adjudícala, and can not be questioned on application for judgment.</p>

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

<p>1. Forcible entry and detainer—title not involved, but right of possession. In an action of forcible entry and detainer, or forcible detainer only, the title to the premises is not involved, nor can it be inquired into on the trial. Possession, and the right to possession, independent of title, are the only questions involved.</p> <p>3. Same—landlord can not regain possession forcibly. The landlord has no right to employ force and violence to regain possession, although such possession may be wrongful, but must evict by forcibly entry and detainer, or by action of ejectment.</p> <p>3. Same—actual force not necessary. To maintain forcible entry and detainer, or forcible detainer, actual, or constructive force only, is necessary. A mere wrongful entry, or a wrongful holding over, only, is required.</p> <p>4. Title—how shown. A deed from one person to another does not even tend to prove title, unless connected with the paramount source of title, or with a bar of the statute.</p> <p>5. Possession—as evidence of title. A person in the actual, peaceable possession of real estate is presumed to be the owner of the fee until the presumption is rebutted, and he is not required to show in what manner or by what title he holds, until the plaintiff shows paramount title. He may show a belter outstanding title than the plaintiff, and thus defeat a recovery in ejectment, although he may have no title whatever, even though his possession was wrongful in its inception.</p> <p>6. Same—when delivery of hey gives right to. The delivery of a key of a house by a tenant to a person other than the landlord, or his heir, will not transfer aright of possession to such person, unless he has acquired .the interest of the landlord or his heirs.</p> <p>7. Landlord and tenant—tenant estopped to deny landlord's title. A tenant is estopped from disputing his landlord’s title. Having entered under him, the tenant acknowledges that he is the owner.</p> <p>8. Same—when tenant may dispute title of landlord. In a suit on a lease to recover rent, or for a breach of any of its covenants, the tenant may show that the landlord has assigned the lease hy a sale of the demised premises, or that he has been evicted hy a paramount title, which form exceptions to the general rule.</p> <p>9. Where a person enters into possession of land under another, and thereby admits his title, he must restore the possession to the person from whom he received it, before he can set up title in himself or in another.</p> <p>10. Same—denial of landlord's title forfeits tenant's right. If a tenant denies his landlord’s title, and claims the premises adversely, either for himself or for another, he thereby renders his possession tortious, and forfeits his lease, and the landlord may sue for and recover possession.</p> <p>11. Same—rights of person entering under tenant. An under-tenant, or other person let into possession hy the tenant, must yield the possession to the landlord. He succeeds to the original tenant’s rights, and nothing more.</p>

Writ of Error to the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding. At the June term, 1876, of the Knox county circuit court, S. Marion Reynolds, J. W. Mageors alias Bob Mageors and John Kibby were jointly indicted for the larceny of a steer, the property of James Thomas. Kibby was permitted to give-evidence on behalf of the State against his co-defendants, and was not himself arraigned.

<p>1. Negligence—if the injury is the result of accident, no recov&ry can he had. In a suit against a city to recover damages for an injury claimed to have resulted from a hole in the sidewalk, where the weight of evidence was that the walk was in a good condition, the court refused to instruct the jury that if they believed, from the evidence, that the alleged injury was accidental, and that neither the plaintiff nor the defendant was negligent, they should find for the defendant: Meld, that the refusal was error.</p> <p>3. New trial—finding against evidence. While it is the province of the jury to pass upon questions of fact, and this court reluctantly interferes with a verdict where the evidence is conflicting, yet where the evidence preponderates clearly against the finding, a new trial will he granted.</p>

<p>1. Me exeat—petition for,should show that property sold hy defendant was not exempt from execution. A petition for a ne exeat, upon the ground that the defendant has sold all his property and is about to depart the State, is defective, if it fails to show that the property alleged to have been sold was not exempt from execution.</p> <p>2. Amendment—to sworn pleadings should oe allowed with great caution. A court should allow amendments to sworn pleadings only with great caution, and before allowing such amendments, the party asking leave to amend should present, in writing, the amendment proposed to he made; supported with an affidavit of its truth and some explanation as to why the matter proposed to he added was not originally inserted.</p>

<p>1. Special assessments—who are corporate authorities of a town. The supervisor and assessor of a town are the corporate authorities of the town to make special assessments for local improvements, within the meaning of the constitutional provision, article 9, section 9.</p> <p>2. Same—to condemn lands for park. The supervisor and assessor of • the town of North Chicago have the power to make special assessments upon property benefited, for the purpose of condemning land within their town to be added to Lincoln Park, although a small part of the park is situated in Lake View.</p>

Habtin B. H. Wallace, Judge, presiding. This was an application by Henry B. Hiller, collector of the county of Cook, for judgment against certain lands and town lots, for taxes due thereon, for the year 1873 and prior years. The appellants appeared and filed various objections to the rendition of judgment, those of importance being noticed in the opinion of the court.

<p>1. Road tax—limited to forty cents on the §100. Under section 120 of the Road and Bridge Act of R. S. of 1874, the commissioners of highways can not levy a tax exceeding forty cents on each §100 valuation of property, for making and repairing bridges, etc., except authorized by a vote of the people of the town, and if they attempt to do so, the excess may be enjoined.</p> <p>2. Same—statutes relating to, construed. The tax which the commissioners of highways are authorized to levy, not exceeding forty cents on the $100, under section 16 of the Road Law, R. S. 1874, is payable in labor on the highways, while that authorized under section 120 is a money tax, to be collected as other taxes.</p>

John GK Eogees, Judge, presiding. One Charles T. Smith, in his lifetime, had a contract with the Wilmington Coal Mining and Manufacturing Company that it would deliver to him three car loads of coal each week, from the 15th day of April, 1872, to the 15th day of October, 1872, at the rate and price of $3.75 per ton, and six car loads each week, from the 15th day of October to the 15th day of April, 1873, at the rate and price of $4 per ton.

Arthur A. Smith, Judge, presiding. This was a prosecution by the town of Hale, in Warren county, against Abner C. Harding, to recover the penalty given by law for obstructing a highway. The material facts of the case are found in the opinion of the court.

John Burns, Judge, presiding. This was an action of assumpsit, by the appellee, against the appellant. The material facts of the case are fully stated in the opinion of the court.

Josiah McBoberts, Judge, presiding. This was an action on the case, by the appellee, as administrator of the estate of Julia Lawlor, deceased, against the Michigan Central Bailroad Company and the appellant, jointly, to recover damages for alleged negligence of defendants, causing the death of plaintiff’s intestate.

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

Geo. W. Pleasants, Judge, presiding. This was a bill filed by Timothy Hosier, against David Horton, Hiram Bigelow and others, to foreclose a mortgage given by Horton and wife to the complainant, to secure the payment of a note for $6000, dated Hovember 4, 1857, payable two years after date, with ten per cent annual interest.

<p>1. Pleading—where suit is brought in the wrong county. The statute prohibiting a defendant being sued out of his county, except in certain oases, confers a mere privilege on him, which he will be considered as having waived, unless he. specially relies upon it by plea.</p> <p>■2. Abatement—that defendant is sued out of his county. A plea in abatement that the defendant is improperly sued out of his county, arising from privilege of person, strictly speaking, should he classed as a plea to the jurisdiction,' and conclude whether the court ought to have further conusance of the suit; bul, according to previous rulings of this court, the plea will not he obnoxious to a demurrer if it improperly concludes by praying judgment of the writ and declaration.</p> <p>3. Same—right to amend. Under the present statute allowing amendments to pleadings, all formal or technical objections may be obviated by amendment; and a plea that the defendant is sued improperly in a county other than that of his residence, or where found, is of that substantial and jneritorious character that amendments, either in form or substance, should be allowed to fairly present the defense.</p>

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

<p>1. Replevin—power of court to order restoration of property taken from, plaintiff before trial. Where property is replevied before a- justice of the peace, and an appeal taken to the circuit court, if the defendant in replevin and another take the same from the plaintiff and place it beyond his reach, the circuit court will have the rightful power to enter a rule upon them to restore it to the plaintiff, and punish them by fine and imprisonment for disobedience.* </p> <p>2. Practice—affidavits too late after rule. After a party has been ruled to restore properly taken by him from a party replevying the same, and has refused to obey the order, and has entered into a recognizance to appear and answer for contempt, it will be too late to present affidavits in respect to the propriety of the rule.</p>

<p>1. Municipal corporation—injury from change of grade of streets. Under the constitutional provision that “ private property shall not be taken or damaged for public use without just compensation,” if injury to private property is sustained by changing the grade of a street, the municipal corporation causing the same to be made will be liable to the owner in damages.</p> <p>2. Eminent domain—act relating to, not retrospective. The laws in force at the time a city enters upon a public improvement of a street, by changing its grade, will fix and determine the right of a property holder to damages, and it can not be altered by subsequent legislation.</p> <p>3. Same—measure of damages. If private property is damaged by a change in the grade of a street, the recovery must be measured by the extent of the pecuniary loss. If it is benefited as much as damaged, there can be no recovery, and it is error to refuse testimony to show that fact.</p> <p>4. Same—evidence—profile of grade. In a suit by the owner of a house and lot to recover damages growing out of a change in the grade of a street, after the work is commenced and before its completion, the profile of the proposed improvement is proper evidence against the city.</p> <p>5. Execution—against city. It is error to award an execution against a city.</p>

<p>1. Chattel mortgage—as to acknowledgment. A chattel mortgage, as between the parties, is valid, without any acknowledgment; but without the acknowledgment, it has no effect upon the rights of third parties acting in good faith, and notice of such a mortgage does not prevent a creditor from subjecting the property to the payment of his debt.</p> <p>2. Same—effect of a false certificate of acknowledgment. Whore a mortgagor requested a justice of the peace to go to the office of the mortgagee, which was in a different town from that in which the justice and mortgagor resided, and the justice, in the absence of the mortgagor, at the request of the mortgagee, added his certificate of acknowledgment to a chattel mortgage, in due form: Held, that the certificate was false, and that the mortgaged property was liable to levy and sale, on execution against the mortgagor.</p>

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

<p>Continuance—party absent as a member of the legislature. Where a continuance is sought on the ground of the absence of a party then in attendance upon the General Assembly, as a member thereof, it is sufficient for the affidavit to state that the attendance of such party in court is necessary to a fair and proper trial. The statute does not require that it shall so appear by affidavit setting out the circumstances and facts.</p>

Lambert Tree, Judge, presiding. This was an action on the case, by the appellee against the appellant, to recover damages for a malicious prosecution.

E. S. Williams, Judge, presiding. This bill was for an account, and was filed by Alexander E. Guild, as administrator of the estate of Henry L. Curran, against Thomas Quayle and James McKeoun.

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, by appellee, against appellant, on certain promissory notes which the latter had executed to the former. The declaration contained special counts on the promissory notes, and also the common counts.

W. W. Harwell, Judge, presiding. Appellee, Mrs. Brown, a feme sole, on the 10th of February, 1872, sold and conveyed by deed of that date, lot 6, in block 4, in Brainard & Evans’ addition to Chicago, to Mrs. Elizabeth Martin (then and still the wife of Hugh Martin), at the price of $2500. Of this Mrs. Martin paid $833.83, one-third, leaving $1666.66, two-thirds of the purchase money, •unpaid.

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

Joseph E. Gary, Judge, presiding. This was an action of debt, by Palmer against Baker, upon a judgment rendered by the county court of Hastings county, in the Dominion of Canada.

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

<p>1. Secondary evidence—-proof of loss and search for original. Where it is shown that thorough search has been made without avail in every place where a trust deed had been kept or was likely to he found, and the witness thinks it has been destroyed by fire, proof of its contents is admissible.</p> <p>2. Deed—of its delivery. It is not always necessary that a deed should he delivered to the grantee to render it binding and obligatory. A delivery to a third party for the benefit of the grantee is conclusive upon the grantor. If the grantor parts with its control, and places it in the possession of another, with the intent and for the purpose of making it effectual and a binding contract, this will be sufficient.</p> <p>3. Trust deed—deliv&ry to cestui que trust sufficient. An actual delivery of a trust deed to the trustee therein named, who has no interest in the trust, is not required, but a delivery to the cestui que trust, together with the notes secured by it, will fully answer the requirements of the law.</p> <p>4. Same—accept a nee of trust. If a trustee named in a deed given to secure the payment of notes acts under it by advertising the property for sale, this will be an acceptance of the trust by him, although he may not have the instrument in his possession.</p> <p>5. Cross-bidi,—on hill to foreclose, by second mortgagee. On bill to foreclose a deed of trust, a party defendant holding a judgment against the grantor, and having a subsequent deed absolute on its face, but in reality a mortgage to secure the payment of a debt, given by the same party on the same and other real estate, being a second mortgagee, will have a clear right to seek affirmative relief in regard to the property sought to he sold under the original hill, and the fact that his mortgage embraces other property will not deprive him of the right to file a cross-hill seeking a foreclosure.</p> <p>6. Same—who may object to filing. The complainant in a bill to foreclose a deed of trust may have the right to object to matters not germane being brought into the case on cross-bill by a second mortgagee, but if he does not, the original mortgagor can not be heard to make such objection, as it can work him no injury.</p> <p>7. Foreclosure—decree as to surplus, on answer. If a bill to fore close a mortgage or deed of trust makes the judgment creditors of the mortgagor parties defendant, and their rights are shown by answer and proof, it is proper, in decreeing a foreclosure and sale, to direct the payment of any surplus, after satisfying the mortgage, among the judgment creditors according to their respective rights and equities. Ho cross-bill is necessary for this purpose.</p>

<p>Practice—-finding of court below can not be questioned, unless exceptions are taken in that court. Where a cause is tried by the court, by consent of parties, without a jury, the finding of the court can not be questioned on appeal, unless the record shows that exceptions were taken thereto in that court, or the question of the fitness of tire finding is in some mode brought before this court.</p>

Mártir E. M. Wallace, Judge, presiding. This was an application to the county court of Cook county, at the July term, 1875, in the name of The People, on the relation of Henry B. Miller, county treasurer and ex officio collector of taxes, for a judgment against certain real estate in Cook county for delinquent taxes. Objections were interposed by E. J. Cooper and others.

Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. This was an action of assumpsit, by the defendants in error, against the plaintiff* in error, upon a draft and two promissory notes.

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

<p>Judicial power—by whom to be exercised. Parties to a suit can not confer judicial functions upon an individual and clothe him with judicial power to decide a cause pending in court, not as an arbitrator but as a judge; and when this is done, and he does decide the case, and the judge of the court carries out his decision by entering the judgment such person had reached, it will be reversed.</p>

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