Volume 84 — Illinois Reports

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

<p>Conflict of evidence—not came for reversing judgment. In an action of ..trespass, where the trespass is clearly proved, although there may he some conflict between the testimony of witnesses, a finding in favor of the plaintiff will not he disturbed.</p>

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

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

Samuel M. Moore, Judge, presiding. This was a bill in chancery, by John S. Harris and Charles H. Wheeler, who are residents of Wisconsin, and against George M. Pullman, David A. Gage and Franklin Parmelee, who are residents of Illinois, and also James E. Lyon, Charles H. Moore and Henry D. Towne, who are non-residents of Illinois, praying that the defendants be declared to be trustees in posses, sion of certain mines, mining property, etc., in Colorado, for the complainants;…

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

<p>1. Common carrier— what competent to be shown as an excuse for delay in transit of goods. In a suit against a railroad company for damages resulting from delay in the transit of freight, it is competent for the company to show that the delay was caused solely by the lawless, irresistible violence of men who were not in the employment of the railroad company.</p> <p>2. Same — railroad company liable for delay caused by its employees, but not by others. Where delay in the transit of goods by a railway company is caused by the refusal of its employees to do duty, the company is liable for any damage resulting from such delay; but where the delay results solely from the lawless violence of men not in its employ, the company is not responsible, even though the men whose violence causes the delay may have been but a short time before in the employment of the company.</p> <p>3. Same •— duty and liabilities in case of a “ strike,” among its employees. Where the employees of a railroad company suddenly refuse to work, and are discharged, and delay results from the failure of the company to promptly supply their places, the. company is responsible for any damage caused by such delay; but where the places of the recusant employees are promptly supplied by other competent men, and the “ strikers” then prevent the new employees from doing duty by lawless and irresistible violence, the company is not responsible for delay caused solely by such lawless violence.</p>

John W. Cochran, Judge, presiding. This was a suit brought by the appellees, against the appellant, before a justice of the peace, and taken to the circuit court on appeal, where the plaintiffs recovered judgment. The facts of the case are fully stated in the opinion of the court.

<p>Practice—affidavit of claim not necessarily the affidavit of plaintiff. It is not essential that the affidavit of claim filed with the declaration, as provided in the Practice Act, should be sworn to by the plaintiff, himself. The affidavit may be made by any one conversant with the facts.</p>

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

<p>1. Acknowledgments—of deeds and, mortgages. In the acknowledgment of deeds and mortgages, a substantial compliance with the statute is all that is required.</p> <p>2. Chattel mortgage—certificate of acknowledgment. A certificate of a justice, that a chattel mortgage executed by a resident was duly acknowledged before such justice by the mortgagor, is a substantial compliance with the statute, without adding the words “ and entered by me,” provided the justice in fact makes the entry on his docket as required by law.</p> <p>3. The object of the legislature in providing for the justice to certify that he had made such entry, was to make the certificate evidence of the fact that he had done so, without having to resort to the docket, and if the justice omits to state such fact in his certificate, recourse may be had to the, docket itself to prove such fact.</p>

<p>1. Pleading—special plea, which amounts to the general issue, bad on special demurrer. The general rule is, that matter which may be proved under the general issue, can not properly be made the subject of a special plea.</p> <p>2. Evidence under the general issue. When the declaration sets up the execution of a promissory note, and a guaranty indorsed thereon by the defendant at the time of its execution, a plea that the guaranty was not executed at the time the note was made, amounts to the general issue, and a special demurrer to it should be sustained.</p> <p>3. Practice—when sufficiency of proof on assessment of damages can not be questioned. Where the assessment of damages is not sustained by adequate proof, a motion should be made in the court below to set aside such assessment, and an exception taken to the judgment of the circuit court in overruling such motion, and unless this is done the question can not. be raised in the Supreme Court.</p>

John Gr. Rogers, Judge, presiding. This was a suit brought by the appellee against Charles W. Pardridge and Edward Pardridge, before a justice of the peace, and appealed to the circuit court, where the cause was tried by the court, who rendered judgment in favor of the plaintiff for $59.50.

<p>1. Surveying partntbb—may assign note payable to the firm. The sole survivor of a firm may assign a promissory note payable to the late firm, by indorsement, so as to vest the legal title in the assignee, as effectually as if the note had been made payable to him.</p> <p>2. Presumption—mi favor of the action of court. Where a note is made payable to a firm, and a power of attorney given to confess a judgment upon it in favor of such firm or its assignee or assignees, and the note is assigned hy one member of the firm, describing himself as successor of the firm, and judgment is confessed in favor of the assignee, the presumption is that evidence was heard by the court showing that the person indorsing the note was the proper person to do so; that the court had jurisdiction to render the judgment it did.</p>

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

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

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

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

<p>'Writ of Error to the Circuit Court of Cook county; the Hon. William W. Far-well, Judge, presiding.</p> <p>This was a petition by Thomas C. Boyd and James J. Bufton, against Joseph S. Reed, Joseph E. Moss, Margaret E. Gulliver, Francis Peabody and Benjamin E. Gallup, to establish and enforce a mechanic’s lien. The material facts of the case are stated in the opinion of the court.</p>

Joseph E. Gaby, Judge, presiding. This action was commenced before a justice of the peace, but defendant not appearing, judgment was rendered against him as by default. From that judgment defendant prosecuted an appeal to the circuit court, by giving the usual bond, but neglected to file the appeal papers in the office of the circuit clerk, whereupon plaintiff took up the papers and advanced “ appeal fees,” as is required by statute.

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

<p>Mechanic’s lien—general decree authorised by stipulation. Where, during the pendency of a petition for a mechanic’s lien, the defendants gave their notes for the sum due, and a stipulation that, in case of default of “ payment of said notes, or either of them, according to the terms thereof, then, after twenty-four hours’ written notice,” authorizing the complainant to enter their default, and have a decree for the whole amount of both notes, with interest, and that immediate execution might issue thereon, it was held, that this authorized a general decree, in case of default, and did not require the decree to be special, as in ordinary cases.</p>

<p>1. New trial—duty of circuit judge in relation thereto. It is the duty of every circuit judge to give careful attention to every part of the testimony in each case, and to consider it with as much care as if he were trying the case without a jury, and in all cases where the verdict is manifestly and palpably against the weight of the evidence, he should promptly set it aside.</p> <p>3. Same—verdict against the evidence. Where the only evidence to sustain a verdict in favor of a plaintiff is his own testimony, and his statements, on cross-examination, are so equivocal as to leave the mind in doubt as to the truth of his direct evidence, and his testimony is positively contradicted by that of the defendant, who answers clearly upon cross-examination, and who is corroborated in the main points of his testimony hy four other witnesses, a verdict in favor of the plaintiff should he set aside by the circuit court, and it is error to refuse to do so.</p>

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

Henry Booth, Judge, presiding. This was an action on the case, by the appellee against the appellant, to recover damages for personal injuries resulting from an alleged defective sidewalk. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $2000, to reverse which this appeal was taken.

<p>1. Criminal law—prisoner cam, not be Pried without an issue being formed.' Without an issue formed in a criminal case, there can be nothing to try, and a party convicted without such issue being formed can not, properly, be sentenced.</p> <p>2. On an indictment for larceny, the record showed that the defendant waived arraignment, copy of indictment, list of jurors and witnesses, but, without a plea of any kind being entered, the defendant was placed on his trial, convicted and sentenced: Held, that this was error, for which the judgment must be reversed.</p>

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

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

<p>Monet had and received—when action lies. The action for money had and received is an equitable action, and lies wjierever one party has obtained money which, in equity and good conscience, he ought not to he permitted to retain.</p>

Writ oe Eeeoe to the Superior Court of Cook county. This was a suit, brought by Driscoll, by his next friend, against. Reed, before a justice of the peace, and appealed to the Superior Court by the defendant.

<p>1. Instructions—incases sounding exclusively in damages. Care should always be observed, in cases sounding exclusively in damages, that no instruction is given that would induce action not warranted by the law and the evidence, or that would produce a conclusion not in the interest of justice.</p> <p>2. Same—should, not he argumentative. Instructions should not be in the form of arguments addressed to the jury, but concise propositions of law, applicable to the facts of the case, as developed by the evidence.</p> <p>3. It is improper to instruct the jury that the court will not interfere with their discretion in the matter of finding exemplary damages, that being a matter with which the jury have nothing to do.</p> <p>4. Same—questions of fact are for the jury, and should not he stated as propositions of law in instructions. In a suit by a wife for injury to her means of support, on account of the sale of intoxicating liquors to her husband, it is improper to instruct the jury “ that the selling of intoxicating liquors to a person far gone in habits of intoxication, and who has become diseased, bodily and mentally, would be more aggravating than selling to one not so badly addicted to intemperance,” that being a question for the consideration of the jury, and not a matter which the court can define as a proposition of law.</p>

<p>1. Ejectment — by heirs of mortgagor against grantee of mortgagee. Although the foreclosure of a mortgage, and sale thereunder, may be void for want of jurisdiction in the court rendering the decree, the heirs of the mortgagor, there having been no redemption, can not maintain ejectment against the mortgagee or his grantee in possession.</p> <p>2. Mortgage—title and rights of mortgagee. Under the rulings of this court, as in England, the mortgagee of lands is held, in law, the owner of the fee, having the jus in re as well as ad rem, and entitled to all the rights and remedies which the law gives such owner, and he may, after condition broken, maintain ejectment against the mortgagor.</p>

<p>1. Infant—deed of, not void. It is well settled by the authorities, that a deed made by a minor is not void but only voidable, and unless avoided within a reasonable time after becoming of age, it will be binding and obligatory upon the grantor and upon all others.</p> <p>2. Same—time in which to disaffirm deed. If a person who has conveyed land during infancy desires to avoid the deed, he or she must do so within three years after arriving at majority, and a neglect or failure to do so will be held a ratification of the deed.</p> <p>3. Limitation—taehing disabilities. Where a statute of limitation has once begun to run, no subsequent or supervening disability in the party against whom it is taking effect will arrest its operation. Cumulative disabilities can not, therefore, he regarded.</p> <p>4. Where a female who had made a conveyance of land during infancy was not married until some five months after becoming eighteen years old, it was held, that her coverture did not furnish any excuse for her not taking steps to avoid the deed within three years after her majority.</p>

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

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

<p>1. Partnership — grounds for dissolving. The fact that one partner put property into the firm as capital, at a sum greatly in excess of its real value, affords no ground for cancelling the partnership contract. The equities arising from this matter can be adjusted on the dissolution and final settlement of the partnership.</p> <p>2. Same—misconduct ns a cnusefor dissolution. A court of equity will not dissolve a partnership for every act of misconduct on the part of one p.artner. To justify a dissolution a strong case must be made. It will not be decreed for trifling causes or temporary grievances involving no permanent mischief. A want of courtesy to some customers of the firm, working no serious injury, is not a sufficient cause.</p> <p>3. Same—hostile relations as a ground of dissolution. To justify the dissolution of a partnership, on the ground of unfriendly relations between the partners, it must be at the instance of the party who is not himself at fault, and the estrangement must be such as to prevent the successful management of the business. The author of the ill-feeling can not make the relation he has induced the ground of a dissolution.</p>

<p>1. Mines and minebs—liability of owners for death caused by want of second escapement. Where a coal company had opened three coal mines, the first some seventy feet below the surface, the second some sixty-five feet below the first, and the third one hundred and twenty feet below the second, and. though the same had been in operation for about two years, there was no second escapement constructed to the second and third mines, and, while employing more than fifteen laborers in the second mine, a fire occurred in the main shaft, filling the latter mine with smolte. and the miners, in the alarm and confusion consequent on the alarm, rushed to the shaft., and one fell down the shaft into the third mine and was killed, it was held, that the company was liable, in an action, to his widow for liis death, even though the fire was purely accidental, for the neglect to have a second means of escape.</p> <p>3. Same—party not responsible for negligence caused by alarm. A party giving another a reasonable cause for alarm can not complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility for damages resulting from the alarm, when he is guilty of negligence or violation of law contributing to the injury.</p>

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

J. W. Cochran, Judge, presiding. This bill was filed in the Peoria county circuit court, by the heirs at law of Frederick Muller, with whom is joined Peter Schertz, executor of the estate, against the Peoria and Bock Island Bailway Company, the Indianapolis, Bloomington and Western Bailroad Company, the Peoria and Springfield Bail-road Company, and the city of Peoria, for an injunction and relief.

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

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

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

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

This was an application, in this court, by C. D. F. Smith, for a mandamus against the common council of the city of Aurora and the city council of the city of Elgin, to compel them and the clerks of… Held: according to law, by the legal voters of said cities, for a judge for the city court of Aurora and city court of Elgin. The respondents demurred to the relator’s petition, and thus the question was presented to the court.

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

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

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

<p>Debtor—may secure creditoi', though it delays others. A debtor may-secure a creditor, where it is done in good faith, notwithstanding the ultimate effect may he delay to other creditors.</p>

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

<p>1. Contract—legality of—illegal consideration. A contract made hy a confidential agent and adviser of his principals, by which the agent is to induce the principals to discharge their present attorney and employ ■another, the latter agreeing, in consideration thereof, to pay the agent one-half of his fees, is illegal, and can not be enforced by the agent, either at law or in equity.</p> <p>2. Samb—when terminated. If a real estate agent of parties at a distance procures his principals to employ an attorney to be associated with him in their business, under an agreement with the attorney to divide fees, the contract is in the nature of a partnership, and is terminated when the agent is discharged by his principals, and he can not thereafter claim any share in fees received by the attorney for services subsequently performed for the principals. ■</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 Hon. W- W. Fabwell, Judge, presiding.</p>

This was a proceeding, instituted in this court, by information, against Leary, to have his name stricken from the roll of attorneys, for misconduct in his profession. The facts sufficiently appear in the opinion.

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

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

John G-. Rogers, Judge, presiding. This was an application, by Julian S. Rumsey, collector of Cook county, for judgment against certain lands and lots for taxes, etc., due thereon and unpaid, and taken by appeal from the county to the circuit court, where the objections to the rendition of judgment were not sustained.

<p>Mortgage—release by taking new notes under composition agreement. Where a party, having a note secured by mortgage, and after the institution of proceedings in bankruptcy by him against the maker, enters into an agreement with the other creditors of the maker to dismiss the proceedings in bankruptcy, and to take a new note, payable in two years'from date, without interest, in the absence of proof of the intention of the parties, the taking of such new note will operate as a release of the mortgage.</p>

Edwin S. Leland, Judge, presiding. Mrs. Margaret Winters, the wife of John Winters, living separate from her husband and transacting business in her own name, executed to Graves a mortgage on the west 40 feet of lot 10, in block 117, in the city of LaSalle, part of her separate estate, to secure to him the payment of $600 and. interest, money due him from her as the purchase money of other real estate conveyed to her by him.

<p>1. Mechanic’s lien—who may question decree allowing lien. An intervening defendant in a proceeding for a mechanic’s lien, who fails to show any title or interest in the property sought to be affected, has not such a standing in court as will enable him to call in question a decree establishing the lien.</p> <p>3. Answer—sworn answer as evidence. A sworn answer, so far as responsive to the allegations of a petition for a mechanic’s lien, is competent evidence, but in relation to new matter therein set forth, not called for in the petition, is not evidence, but a mere matter of pleading.</p> <p>3. Certificate of evidence—matters not offered on hearing. The circuit court has no power at a term subsequent to the rendition of a decree, to permit evidence not introduced at the hearing, nor until after the decree, to be incorporated into the certificate of evidence, and if it does, such evidence will be stricken out.</p>

<p>Writ oe Error to the Circuit Court of Iroquois county; the Hon. Nathaniel J. Pillsbury, Judge, presiding.</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>1. Criminal law—sufficiency of indictment. Under the laws of this State every indictment or accusation of a grand jury must he deemed sufficiently correct which states the offense in the terms and language of the statute creating the same, or so plainly that the nature of the offense may he easily understood.</p> <p>2. Same—conspiracy against the administration of justice. An indictment charging that the defendants “unlawfully, feloniously, willfully and fraudulently did conspire and agree together, with the fraudulent intent wrongfully and wickedly to injure the administration of public justice, by then and there, unlawfully, willfully and fraudulently attempting to obtain and procure a decree of divorce,” in a named court, specifies an offense under section 46 of the Criminal Code, with sufficient certainty.</p> <p>3. Same — changing punishment found by jury. The court has no rightful authority to mitigate the measure of punishment found by the jury in a criminal case, and sentence the defendant to imprisonment for a less term than that fixed by the jury.</p> <p>4. Statute—construction of adopted one. The rule, that a statute copied from that of another State, shall receive the same construction before given to it by the courts of such other State, does not prevail where such a con. struction is in antagonism to our laws and in conflict with the practice prevalent under them for a long series of years.</p>

<p>1. Merges of cause of action in judgment. After judgment upon a promissory note, the note is no longer a subsisting cause of action, but is merged in the judgment, but this is not so if the judgment is void.</p> <p>2. Evidence—void judgment—when admissible. Where the plaintiff declares upon a promissory note and upon a judgment,, and it is proved, by parol, that the note is satisfied by a judgment thereon, a transcript of the judgment is admissible in evidence, although the judgment is void for want of a sufficient service, as showing the note is still a valid and subsisting obligation.</p>

<p>Municipal corporation—liability for injury from defeats in sidewalk. Where the evidence fails to show that the city authorities had notice that a plank in a sidewalk was loose, which caused a personal injury, or such circumstances as that they, in the exercise of a reasonable diligence, should have known it was loose, the city will not be liable to the person injured.</p>

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

<p>1. Special assessment—trial of objections—practice. On objections being filed to the report of commissioners, in assessing benefits and damages, the statute does not contemplate a separate trial as to each objector, but that all shall be tried as one ease, by the same jury.</p> <p>2. Same—benefit to public irrelevant. On the trial of objections to the confirmation of special assessments for extending and opening a street, it is wholly irrelevant and immaterial what proportion of the total cost would benefit the public, and a question designed to elicit an opinion in this respect is properly refused.</p> <p>3. The statute gives cities, towns and villages exclusive power to determine whether a proposed public improvement shall he made by special assessments, special taxation of contiguous property or by general taxation, and the courts have no power to interfere with the exercise of this discretion.</p> <p>4. On application to confirm special assessments of benefits for a proposed improvement, it does not matter whether the benefits to the property assessed are equal or more than half equal to the cost of the improvement.</p> <p>5. Same—what to be tried on confirmation. On application to confirm special assessments of benefits, the issue to he tried by the jury is, whether the objector is assessed more or less than his premises will he benefited, or more or less than his proportionate share of the cost of the improvement, and the jury are also required to find the amount the premises should be assessed.</p> <p>6. Same—evidence on confirmation. On the trial of objections to confirming a special assessment for a street, the objectors asked a witness within what limits, in his judgment, the assessment for special benefits by tlie improvement should have been confined: jffeld, that the question was too general, and should have been specific as to whether certain lots were benefited, and if so, how much, and thus ascertain the extent of benefits, and at the same time the relative benefits which they received to that of other lots.</p> <p>7. In the same proceeding, the objectors asked a witness whether any property beyond a "certain street was specially benefited by the improvement. The court offered to allow the question if limited to specific pieces of property, which was declined: Held, that the court did not err in refusing the question.</p> <p>8. Same — United States property omitted from assessment. Property owned by the government is never taxed, unless expressly required by statute. It was objected to an assessment of benefits for public improvements, that property owned by the United States, used as a custom house, post office, etc., and benefited, was not assessed: Held, that such property was properly exempted. The States have no power to tax the instrumentalities of the general government.</p> <p>9. Same—statute, does not authorize assessments of public property. A. fair construction of the statute authorizing special assessments for public improvements by cities and villages, does not contemplate the exercise of the power to assess benefits upon property of either the State or the United States.</p> <p>10. Same—evidence as to proportion of benefits assessed. On a proceeding to confirm a special assessment of benefits for a public improvement, a party objecting will not be allowed to show that his lot has been assessed more than another particular lot. The witnesses should be confined to a comparison of the assessments objected to on a particular lot with the general assessment against all the other lots, the real question being, whether the particular lot is over or under assessed in proportion to the general assessment.</p> <p>11. Same—omission to condemn property. In a proceeding to assess benefits by the opening of a street, it is no valid objection that a part of a lot in the line of the proposed street was not condemned by the city authorities.</p> <p>13. Same—burden of proof. The burden of proof rests upon a city, in a proceeding to assess benefits from the opening of a street, to show that the assessment is right; hut the report of the commissioners is prima facie evidence that it is right, and then the burden of proof to show its incorrectness is shifted to the objectors, and they must show, by a preponderance of evidence, that one or more of the lots assessed was assessed more or less than its proportionate share of the cost of the improvement.</p> <p>18. Same—damages by taking alley for a street. The taking of an alley for the purpose of opening a street in its place can not he said to damage lots abutting on the same, as the street will furnish the same access to the lots as the alley.</p> <p>14. School property—condemning for street—damages properly allowed. As the city of Chicago holds the legal title of school property in trust for educational purposes, and not for general municipal purposes, it is proper and right, in a proceeding to lay out and open a street over such property, to assess damages for the property so taken.</p> <p>15. Evidence—court not bound to decide upon its effect in advance. Where evidence is offered, the court is not hound to decide what effect shall he given to the same at a subsequent stage of the trial.</p>

<p>1. Carrier—not bound to agree to deliver goods beyond its line of conveyanee. A common carrier is not bound to assume responsibility for the transportation of goods beyond the terminal points reached by its own conveyances, hut may do so.</p> <p>3. Same—•evidence of contract to carry beyond its lines. The acceptance of goods delivered for carriage, marked to a point beyond the terminus of the carrier’s line, is construed, prima facie, as a contract for through transportation.</p> <p>3. Same—limiting liability by contract. The carrier may limit its obligation to carry safely over its own lines, or only to points reached by its own carriages, and for safe storage and delivery to the next carrier in the route beyond, although the goods are marked to a point beyond its line. A clause in the receipt given the owner for the goods, so restricting the earner’s obligation, if understandingly assented to by the shipper, will as effectually bind him as if he had signed it.</p> <p>4. Same—release, and, its effect. If a carrier seeks exemption from any common law liabilities incident to its general employment, the contract must be assented to with a view to release the responsibilities imposed; and when the exemption is established, the carrier, in case of loss, will only he responsible on account of actual negligence or willful misconduct. The rule is the same in respect to goods shipped to a point beyond the carrier’s own line.</p> <p>5. Same—restriction of liability, by notice, only. A carrier can not discharge itself from duties which the law has annexed to the employment, by notice alone, to the shipper. The shipper must assent to it, to make it effectual; hut it is otherwise in respect to those duties designed simply to insure good faith and fair dealing. There, a notice is sufficient.</p> <p>6. Same—how fan' liability may be restricted. The law, on grounds of public policy, will not permit a common carrier of passengers or freight to contract against liability for its own actual negligence, or that of its servants and employees.</p> <p>7. Same—negligence in not forwarding. Where goods were delivered to a carrier in the State of New York for transportation, and the carrier’s agent marked the destination, under the shipper’s direction, to “ Eckly, Iowa,” and, in consideration of reduced rates, the shipper assented to release the carrier and every other company over whose line the same might pass, from all liability for damage, delay or loss of any kind, etc., and the goods safely arrived in Chicago and were handed over to the Illinois Central to be carried to their destination, and the latter company delayed forwarding them, from the fact there could be found no such station as Eckly, and telegraphed back for further directions, during which delay the goods, while safely stored, were burned, without actual negligence on the part of the company, it turning out that the goods were intended to be shipped to “ Ackly, Iowa,” it was held,, that neither of the lines of transportation was guilty of actual negligence, and that the shipper could not recover under his contract.</p>

Mabtin 17. M. Wallace, Judge, presiding. This was an application, made to the county court of Cook county, at the June term, 1875, for judgment against delinquent lands for State and county taxes. On the first day of the term, June 14, the court made an order, which was entered of record, requiring all persons wishing to object to judgment as applied for, to file their objections thereto, in writing, by 10 o’clock A. M. on the 21st day of the same month.

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

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

Writ of Error to the Circuit Court of Kendall county; the Hon. Silvanus Wilcox, Judge, presiding. This was a bill in chancery, by Hannah E. Watson and Lille Belle Lutyens, against John B. Sherman, John Johnson, John Kelson, Oliver H. Lee and Bennett B. Chambers, to set aside a sale of land made under a power in a mortgage and subsequent deeds. The material facts of the case are stated in the opinion of the court.

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

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

<p>1. Practice—affidavit of claim. An affidavit, filed with a declaration, that the plaintiff’s demand is the amount of the promissory note, and interest thereon, as-set forth in the declaration, and that there is due the plaintiff from the defendant, after allowing to him all just credits, deductions and setoffs, the sum of money named upon the face of the note, together with interest thereon, according to the tenor of said note,-dollars, is sufficient in respect to the amount claimed to be due.</p> <p>2. Same — affidavit of merits. An affidavit by the defendant that he verily believes he has a good defense to the action upon the merits, is a substantial compliance with the statute, being equivalent to a statement of a defense to the whole of the plaintiff’s claim, and it is error to strike the same and the defendant’s pleas from the files.</p>

Geo. W. Pleasants, Judge, presiding. This was an action of debt, brought by George Chandler, receiver of the Lamar' Insurance Company, against David Dore, who was alleged to have been a stockholder in the insurance company. The court below sustained a general demurrer to the declaration.

<p>1. Evidence—sufficiency to prove values. In trover for the conversion of steel ingots, there was no direct proof of their market value at the time of the conversion, but it was proved that steel made from such ingots was worth a certain sum per pound, and how much it would cost to convert the ingots into merchantable steel: Held, that the proof furnished sufficient data to enable the jury to approximate the value of the ingots by taking the cost of converting them into steel from the market value of merchantable steel.</p> <p>3. Private corporation—corporate existence, how tested. The regu-' larity of the organization of a corporation can not be questioned in a collat. eral way. If franchises not granted by statute have been usurped, the inquiry must be made by a direct proceeding to seize the franchises to the people, and dissolve the corporation.</p> <p>3. Corporations—new constitution does not repeal statute relating to private' corporations. Section 1, of article 11 of the constitution of 1870, was not designed to repeal the general law on the subject of private corporations in force prior to the adoption of the constitution, and all corporations framed under such law after the adoption of the constitution, are valid and effectual.</p>

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

1. Edwin S. Leland, Judge, presiding. This was an action, by the commissioners- of highways of the town of Dayton, against the commissioners of highways of the town of Rutland, under section 21 of the Township Organization Law of 1861, to recover one-half of the expense of repairing a bridge over Fox river, which is the boundary between the two towns, both being organized under the Township Organization Law.

Martin H. M. Wallace, Judge, presiding. This was an application, by the collector of Cook county, for judgment against certain lands and lots for the taxes, special assessments, etc., due thereon.

Hiram H. Cody, Judge, presiding. This was a motion, by Elizabeth Temke, executrix of the last will of John D. Temke, deceased, to set aside and vacate the satisfaction of a judgment rendered in the circuit court of Du Page county, in favor of the testator and against August L. Turnan and Diedrich Struckman, and to award execution thereon, on the ground that it was illegally and improperly entered satisfied. The motion was allowed.

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

<p>1. Municipal subscription and bonds—conditional subscription. Under the act of April 16, 1869, authorizing municipal subscriptions to railroads, upon conditions, and providing such bonds or subscription “ shall not be valid and binding until such conditions precedent shall have been complied with,” it is not essential to the validity of the subscription, or bonds issued thereunder, that the conditions annexed shall have first been performed. If performed afterwards the bonds will be valid.</p> <p>2. Same—commercial quality of coupons. Municipal bonds issued in aid of railroads are to be treated as commercial paper, and the coupons attached thereto are negotiable by delivery only, without indorsement. Being of such character, unless the statute declares otherwise, a bona fide holder of such paper will he protected, and is-not required to take notice of the conditions upon which they were issued, or the resolutions upon the records of the railway company.</p> <p>8. Same—not valid until conditions complied with. Municipal bonds issued upon a subscription to a railway company, with conditions annexed, upon which the bonds were to'be issued under the act of April 16, 1869, are not valid and binding, even in the hands of an innocent holder, for value, where the conditions named have not been complied with.</p> <p>4. Negotiable paper—when void in hands of innocent purchaser. Where a statute expressly declares that negotiable securities, given under certain circumstances, shall be void, the court will bold them void, even in the hands of a bona fide indorsee without notice.</p> <p>5. Same—illegality of consideration as against bona fide holder. But, unless it has been so expressly declared by the legislature, illegality of consideration will be no defense in an action upon negotiable paper, by a bona fide holder without notice, unless he obtained the note or hill after its maturity.</p>

<p>1. Judicial sale—sale en masse—adjournment. Although two separate and wholly independent tracts of land may have been offered for sale, under execution, separately, if the amount bid for them, when offered together, is merely nominal, the officer should adjourn the sale, and re-advertise.</p> <p>2. Same—inadequacy of price. In case of gross inadequacy between the value of land sold under execution and the sum bid, the court will seize upon any circumstance of unfairness towards the debtor, to afford him relief.</p> <p>3. Same—when set aside. Where two disconnected tracts of land, worth several thousand dollars, were sold on execution, en masse, for $10, and the debtor was informed by the sheriff" that the sale was informal, and that the purchaser had paid nothing, and agreed to cancel the sale upon full payment, which was made, but the sheriff afterwards conveyed the land to the purchaser, the return on the execution not showing a sale, it was held, that the sale was properly set aside.</p> <p>4. Same—under execution without a seal, void,. If land is sold under execution without the seal of the court thereto, the sale will be a nullity, and no redemption will be required.</p> <p>5. Purchaser—who is a bona fide one. Although one may purchase land without notice of the equities of others, yet, if he takes the deed as a volunteer, or has not paid the purchase money, he is not an innocent purchaser for value, and can.not be protected. As against a third party claiming an equitable right, he must prove that he paid the purchase money, and this independently of the recitals in his deed. ‘</p>

<p>Bill op review—when decree is reversed. Where leave is refused to file a hill of review, and it appears that the decree sought to he reviewed has been reversed by this court, this court will not discuss the merits of the petition, but will affirm the order below.</p>

<p>Writ of Error to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p>

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

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

<p>Wbit of Ebbob to the Circuit Court of Bureau county; the Hon. Edwin S. Leland, Judge, presiding.</p>

William Brown, Judge, presiding. This was an action of trespass, by John H. Yon Kettler against Madison Y. Johnson, for false imprisonment, under color of process, or under an order of the county court, which was claimed to he void. The cause originated in Stephenson county, and was taken to Winnebago county by change of venue. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $300. The defendant appeals.

<p>1. Deed—delivery. No particular form or ceremony is necessary to constitute a delivery of a deed. It may be by acts without words, or words without acts, or hy both. Anything which clearly manifests the intention of the grantor 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, is a sufficient delivery.</p> <p>2. It is not necessary that the deed he delivered to the grantee. If a deed of trust he delivered to a third person, with the intent to secure the creditors therein named, this will constitute a sufficient delivery. In such case, the previous anxiety of the grantor to secure his creditors hy deed of assignment, and his subsequent expressions of satisfaction at what he had done, are evidence to show his intention to make the instrument effectual hy a valid delivery.</p> <p>3. Purchaser under deed of trust—chargeable with notice of defects, eta., in sale. A purchaser under a deed of trust 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, hut as to remote and subsequent purchasers the rule is different.</p> <p>4. If a trustee’s deed, made in execution of a power of sale, contains nothing upon its face to show that the sale was made contrary to the terms of the deed of trust, then a subsequent grantee, without actual notice of any defects in the trustee’s sale, will acquire a title not subject to be set aside in equity.</p> <p>5. But such subsequent grantee, to he protected, on hill in equity to set aside the sale and several conveyances, must introduce in evidence the trustee’s deed and the deed from the purchaser to himself.</p> <p>6. Same—when relief may be had against purchaser after he has parted with the title. Where a hill in chancery to set aside a trustee’s sale and subsequent conveyances, does not pray for any personal decree against the trustee or the immediate purchaser from him, no decree can he had against such purchaser for the profits made hy him on the purchase and sale of the premises to another, although he may not be an innocent purchaser.</p>

<p>1. Practice—motion for continuance arises too late after trial is begun. A motion for a continuance, after the commencement of a trial, on account of the sudden illness of the attorney of the party asking the continuance, comes too late. The remedy, if any, in such case, must be found in a motion for a new trial.</p> <p>2. New trial—on account of sudden illness of attorney. A new tidal will not be granted on account of the sudden illness of the attorney of the party, unless it appears affirmatively, from the affidavits in support of the motion, that the party asking the new trial can, on another trial, make a better showing.</p>

This was an information, filed in this court, on the relation of John H. Hungate, against Almond B. Cole, an attorney of this court, to have his name stricken from the roll for a refusal to pay over money collected by him as an attorney at law. The material facts of the case are stated in the opinion of the court.

Joseph E. Gaby, Judge, presiding. This was a bill in chancery, by Edgar S. Heaton, against Abraham S. Prather, Albert Cooper and John T. Matthews, to redeem from a deed of trust. The facts of the case necessary to an understanding of the points decided are stated in the opinion of the court.

E. S. Williams, Judge, presiding. This was a suit by John C. Chamberlain and others for the partition of certain real estate. Afterwards, a cross-bill was filed by Alphonse Hurtel and William T. Ayers, as trustees under the will of Charles P. Page, and by Charles B. Chamberlain, Hoses Waring and Caroline Goodman, in which the same relief was prayed as in the original bill.

<p>Writ of Ebbob to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. Oliver L. Davis, Judge, presiding.</p>

<p>Appeal, and trial de now—waiter of irregularities. Where a party appeals from an order of the hoard of commissioners assessing damages done to his property on account of the opening of a road, and a trial is had in the circuit court, he can not, on appeal from the judgment of that court to the Supreme Court, raise the question as to his right to a jury of twelve instead of six in the proceedings before the board. That question is waived by appealing to the circuit court, where the trial is de noto.</p>

Thomas F. Tipton, Judge, presiding. In Uovember, 1868, Sarah McAfferty, plaintiff, was constructing a dwelling house, and contracted with William A. Pennell & Co., defendants, for the use of “ Buttan’s ventilation ” in her own dwelling, or building, for which she paid them $100, the receipt of which is acknowledged. ■ At the same time, she contracted with them for a furnace of their own manufacture, to be by them put up in her house.

C. B. Smith, Judge, presiding. Dunaway brought trespass against Clevenger and Weller for taking and driving away his hogs, etc. Clevenger pleaded, first, not guilty; second, that he, by Weller, a constable, levied upon the property in question and took possession of the same, by virtue of a distress warrant issued by him (Clevenger), and placed in the hands' of Weller for that purpose, for rent due and unpaid, etc. Replications were filed to the pleas, putting the matters…

<p>1. Verdict—on, feigned issue out of chancery, only advisory. The verdict of a jury, on a trial of a feigned issue out of chancery, is merely advisory to the chancellor, which he may regard or disregard, and enter a decree contrary to the finding, as, in his judgment, the weight of the evidence may justify.</p> <p>3. Insanity—presumption in regard, to. The legal presumption is, that all persons of mature age are of sane memory, and this presumption continues until inquest found, when, perhaps, the presumption is reversed until rebutted by evidence that sanity has returned.</p> <p>3. When it is sought to set aside a judgment and sale of land under it, on the ground of the insanity of the defendant at the time the judgment was rendered, it devolves upon the party averring such insanity, to prove it py a clear preponderance of evidence.</p> <p>4. Same—when party relieved from, responsibility for his acts. When the mind is so deranged that a person can not comprehend and understand the effect and consequences of an act, or the business in which he may be engaged, the law will relieve him from his acts; but so long as he is possessed of the requisite mental faculties to transact rationally the ordinary affairs of life, he will not be relieved from the responsibility that rests on the ordinary citizen.</p>

<p>1. Garnishee—should claim the benefit of exemption for his creditor. A railroad company, when garnisheed as the debtor of its employee, for wages due him, he being the head of a family, residing with the same, is bound to set up that fact for such employee, and claim the benefit of the exemption given him by law in such cases.</p> <p>2. Same-—liable to his debtor if he pays over money exempted from, garnishment. If a garnishee pays over money due from him to his employee for wages which are exempt from garnishee process, it seems he can not set that fact up in defense to a suit brought by such employee to recover such wages.</p>

<p>Statutes—appeal from, the county.court. The right of appeal from the county court to the circuit court, hy section 192 of the Revenue Law of 1872, as amended by the,act of 1873, is not taken away hy sections 122 and 123 of the act in force July 1, 1874, entitled “County Courts.”</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. Oliver L. Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McDonough county; the Hon. C. L. Higbee, Judge, presiding.</p>

<p>1. Railroad company—care required of them in proportion to the danger of injury at a given place. Where stock is permitted by law to run at large in a town or village through which a railroad runs, and the fact is known to the operators of the road, they will be held to a higher degree of care than where they have the road fenced and have no reason to expect stock will be found on their track.</p> <p>2. Negligence—permitting stock to run at large is not, unless prohibited by lam. It is not negligence for the owner of stock to permit it to run at large in a village through which a railroad runs, if it is not prohibited by law.</p> <p>3. Same—running trains through towns at high rate of speed. It is the duty of a railroad company, whose road runs through a village, to run their trains, whilst in the village, at such a rate of speed as to have them under control, and be able to avoid injury to persons or property, though there is no ordinance of such village on the subject; and if they fail to do so they are guilty of negligence.</p>

Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. On the 21st day of October, 1875, plaintiffs commenced an action of assumpsit against defendant. The summons issued was made returnable to the next term of court, and was served by the proper officer in time for that term. On the same day, plaintiffs sued out a writ of attachment in aid of the suit just commenced, which was levied on property of defendant.

<p>Appeal from the Circuit Court of Ford county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

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

<p>1. Municipai subscription—under constitution of 1870, upon an election had prior thereto. That section of the constitution of 1870 which prohibits municipal subscriptions to railroads or private corporations, except, upon a vote of the people of the municipalities, had prior to the adoption of the constitution, operates to prohibit any such subscription, unless the prior vote in reference thereto was had under an existing law. , A merely voluntary vote, even though it. was directed by an ordinance of a city in which the proposition was pending, will not avail to remove the restriction.</p> <p>2. Same—exception in respect to the city of Quincy. Under the 24th section of the schedule of the constitution of 1870, exempting the city of Quincy from the prohibition mentioned, so far as the people of that municipality had voted for such purpose prior to the 18th day of December, 18(59^ it is held, that a vote on the subject of municipal subscription, had by the people of that city in pursuance of an ordinance thereof, but not under any then existing law, was valid and effectual for the purpose of such subscription.</p> <p>3. Same—subscription by the city of Quincy to the capital stock of the Quincy, Missouri and Pacific. Railroad Company. So it is held, that a subscription by the city of Quincy to the capital stock of the Quincy, Missouri and Pacific Railroad Company, made after the adoption of the constitution of 1870, in pursuance of a vote of the people of that city had on the 7th day of August, 1869, not, however, under any existing law, was a valid and binding subscription, and the city was authorized to issue its bonds therefor according to the conditions upon which the subscription was made, and this, without reference to the validity of that portion of the statute which took effect on the 1st day of July, 1871, purporting to legalize the election mentioned.</p> <p>4. Same—power of the legislature to authorise the subscription without a note—effect of constitution of 1870. Further, the last clause of section 24 of the schedule of the constitution of 1870, left the power in the legislature to authorize the city of Quincy to make the subscription, precisely as it was under the constitution of 1848, under which the subscription could have been authorized without any vote on the subject by the people,—and that authority was conferred by the act in force July 1, 1871.</p> <p>5. Same—corporate purpose—subscription to railroad in another State. The creation of municipal' indebtedness in the subscription to the capital stock of a railroad lying wholly in another State, is for a corporate purpose; as, in the case of the city of Quincy, situated upon the western border of the State, subscribing to the stock of a railroad to be constructed from a point on the Mississippi river, opposite that city, in the State of Missouri, to a point westward, in Nebraska.</p> <p>6. Statutes—of the title. An act was entitled “An act to authorize the city of Quincy to create the indebtedness referred to in the twenty-fourth section of the schedule of the constitution, to provide for payment thereof, and validating acts of said city relating thereto.” The act authorized the city to subscribe to the capital stock of a railroad company, and to issue evidences of indebtedness therefor: Held, the nature and true scope of the act were indicated by the title, and that was sufficient.</p>

<p>Chancery—to enjoin judgment at law, and try question of indebtedness. An account accrued against a party who died, insol vent; no administration was had on his estate. After more than two years from the date of his death, and more than three years after the date of the last item in the account, an attachment suit was brought against the widow of the deceased, upon said account, and a judgment rendered against her without service on her or knowledge, on her part, of the suit, and a judgment in said proceeding was also rendered against her debtor on garnishee process. Upon a bill by her to enjoin the collection of this judgment, charging insolvency of ■the plaintiffs in the attachment and the sureties on the attachment bond, it was held to be error to dismiss the bill, but that an issue should have been made up as to the existence of the indebtedness claimed in the attachment suit, and a decree rendered according to the rights of the parties.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

Writ of Error to the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Chables S. Zajste, J udge, presiding.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon Thomas F. Tipton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Logan county; the Hon. Lyman Laoey, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Contract—of dependent and independent covenants or agreements. If a day be appointed for the payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money or other act is to be performed, an action may be brought for the money, or for not doing such other act, before performance, for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent.</p> <p>2. Same—as between vendor and purchaser. Where a party purchases land and gives notes for the purchase money, and the vendor, at the same time, agrees to convey the land by deed to the purchaser upon the payment of all the notes, the execution-and delivery of a deed of conveyance by the vendor, and the payment of the last note, are mutual and dependent acts, and to maintain an action on the last note, there must have been a tender of a deed before bringing suit; but as to the other notes, an action can be maintained without having tendered the deed, although not commenced until after the last note is due.</p>

<p>Writ oe Error to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Ford county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

Writ op Error to the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding. This was an action brought by Milton Logan, against the Western Union Telegraph Company, in the circuit court of Cass county. The defendant appeared and filed a demurrer to the declaration. The court sustained the demurrer and gave judgment on the demurrer, in bar of the action, and for costs.

<p>1. Sale of growing crops—delivery. In case of the sale of standing crops the possession is in the vendee until it is time to harvest them, and until then he is not required to take manual possession of them.</p> <p>2. Sales—manual delivery of ponderous goods, noi required. Where goods are ponderous and incapable of being handed over from one to another, there need not be a manual delivery, but it is different where the property is capable of being immediately removed.</p> <p>3. Same—;fraudulent, if possession retained, by vendor. Any sale of personal property, where it remains with the vendor, if it is that character of property that is capable of being removed, is fraudulent in law as to creditors and subsequent purchasers, notwithstanding the sale may he in good faith, and for a valuable consideration.</p> <p>4. Chattel mobtgage—before whom should be acknowledged. A chattel mortgage may be acknowledged before a police magistrate of a village, by a resident of the township in which the village is situated, although he is not a resident or voter in the village.</p>

Writ of Error to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding. Major Meredeth was indicted at September term, 1876, of the McLean county circuit court, for the murder of George Murphy. The indictment contains three counts—first, charging the killing to have been done with a gun; second, with an ax, and third, with a weapon to the grand jury unknown. On being arraigned, accused entered a plea of not guilty.

<p>Appeal from the Circuit Court of Logan county; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. James 0. Allen, Judge, presiding.</p>

<p>Writ of Error to the County Court of Champaign county; the Hon. J. W. Sim, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.</p>

<p>1. Board op supervisors—representation of cities — construction of Township Organization Law of 1874. The language of the first proviso of section one of article seven, of chapter 139, Rev. Stat. of 1874, in regard to any city not included within the limits of any town, has reference to such cities as are not included in any organized town, and as are named in section twenty of article one of same act, and constitutes separate towns by the name of such cities, respectively.</p> <p>3. Section one of the act of 1874, entitled “An act to revise the law in relation to township organization,” was not intended throughout to apply only to towns and such cities as were not included within the limits of any town, leaving all other cities as before; and although cities which are included within the limits of a town are not expressly provided for by name, yet, being included within the limits of the town, and a component part thereof, they are provided for under the name of towns,—the inhabitants of such cities, for the purpose of representation, being regarded as inhabitants of the towns in which the cities are, respectively, included.</p> <p>3. Where, under any special act, the representation of any town in the board of supervisors was less than the representation provided by tlfe law of 1874, the special act is, by that law, expressly superseded and made to cease to operate, and it matters not that the exclusive representation of a city which is a part of a town is less by the act of 1874 than under the special act, or be taken away entirely, so that that of the town in which the city is situated be increased.</p>

<p>1. Purchaser under decree of foreclosure takes the place of the mortgagee. The purchaser at a sale under a decree of foreclosure of a mortgage, occupies the same position, as to priority of claims or liens on the property, that the mortgagee does.</p> <p>3. Mechanic's lien—work clone on premises for mortgagor after decree of foreclosure. Where a mortgage has been foreclosed and a decree of sale entered, and a notice of such sale published, a person who subsequently meddles with the premises, by doing work thereon at the request of the mortgagor, becomes a party to the decree of foreclosure and sale, and is bound to abide the result.</p> <p>3. After a decree of foreclosure of a mortgage and a sale of the mortgaged premises, the mortgagor has no such ownership in the premises as will support a lien for labor done or material furnished on the premises.</p>

<p>1. Dram Shop Act—suit on bond executed under—exemplary damages. In a suit upon a bond executed under the 5th section of the Dram Shop Act, exemplary damages can not be recovered, but only such actual damages as the party for whose use the suit is brought may sustain, either in person, property or means of support.</p> <p>2. Judicial power—can not be conferred on member of fheba/r. A member of the bar can not, even by consent of parties, exercise judicial powers; and where it appears that a cause was tried by a member of the bar, the judgment will be reversed.</p>

Charles S. Zane, Judge, presiding. The declaration is in assumpsit, and contains only a single special count, in which it is alleged, in consideration of the donation by plaintiff to the “ Springfield Iron Company ” of certain lands as a location for “steel works” then and there to be constructed, and that that company would take and receive from defendants all the coal that might be necessary to be used in and about the steel works of the iron company, soon to be…

<p>1. Partners—liable for each others torts committed as partners. Partners are liable in solido for the torts of one, if committed by him as a partner and in the course of the business of the partnership; but if a partner commit a tort, not as a partner, but as an individual, in respect to a matter entirely foreign to the business of the partnership, the other partners are not liable.</p> <p>2. Same—partners selling their interest, not liable for false representa^ tions in relation thereto by other partners. Where one partner induces a stranger to purchase the interest of the other partners in a partnership business, by fraudulent representations, the parties selling are not liable for such false representations, unless they instigate or approve of them, or the partner making such representations is acting as their agent in making the same. The mere fact of their relation as partners will not make them liable.</p> <p>3. Measure of damages—in suit by one partner for fraud in procuring him to execute firm note. Where one has been induced, by false representations, upon the purchase of the interest of outgoing partners in a business, to execute a note, in the name of the new firm, for a greater amount than the invoice price, and afterwards, by reason of the insolvency of his partner in the new firm, he has the whole note to pay, he can only recover, in a suit for fraud and deceit against the party making the false representations, his proportion of the excess of the note over the value of the property actually purchased.</p>

<p>1. Specific performance—sale of land by parol. A parol contract to sell land may be enforced in equity where the vendee has taken possession under the contract, and made lasting and valuable improvements, and paid the purchase money.</p> <p>2. Same—between parent and child for conveyance of land. A promise or agreement made by a father to a child to convey a tract of land if the child will take possession of the land and improve the same, when followed by possession, and the expenditure of labor and money in making lasting and valuable improvements, may be regarded as resting upon a valuable consideration, and will be upheld and enforced in a court of equity.</p> <p>3. Statute of Frauds—evidence to take case out of operation, must be clear and certain. In order to take a case out of the operation of the Statute of Frauds, a parol contract to convey land should be clear and certain in its terms, and established by testimony of an undoubted character, which is clear, definite and unequivocal.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Pbaud—evidence of complicity in false letters. The fact that no one else but the owner of Kansas lands, which he trades for other land, could have any interest in the writing of letters making offers to purchase the Kansas land at more than its real value, which are shown to the other party, does not furnish a legal inference of such other party’s complicity in procuring such letters, although it may appear the letters were fictitious. It is not sufficient evidence of his commission of a fraudulent act that it was for his interest, and that of no one else, to have the act done.</p> <p>2. Same —party must rely on fraudulent assurances. A party receiving Kansas lands in exchange, can not be allowed to rescind the trade from the fact of fictitious letters having been addressed to a former owner of the lands, offering to purchase the same at a price in excess of their value, when he is the active party in urging the contract, and the proof shows that he did not rely upon such letters, but rather upon the statements of disinterested persons.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Ctbus Epleb, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>1. Townships—apportionment of debts, ete., on division. A subscription voted to a railway company by a town before an order for the division of the town, where there is no discretion left as to making the subscription and issuing of bonds in payment, constitutes an indebtedness within the meaning of the law requiring its apportionment on a division of the town, al. though the bonds may not have been issued until after the order for the division. The law embraces any contract, agreement or legal liability incurred, whether a present complete liability or one to ripen into such in the future.</p> <p>3. And so a liability of a town to subscribe a sum of money to procure the location of the Industrial University in the county, had in pursuance of law, under a vote after the making of an order for a division of the town, but which was not to take effect until a day after the taking of the vote, is an indebtedness to be apportioned after the division of the town.</p> <p>3. Same—division. The board of supervisors can divide a township only at a regular meeting, and upon sixty days’ notice; and an order for this purpose, that the separation or division shall not take effect until the next annual election of town officers, is authorized and is in accordance -with the statute.</p> <p>4. Municipal subscription—assurances to procure do not invalidate. Assurances by the officers of a railway company, in writing, that if a vote by a town is in favor of subscription to its capital stock, the bonds will not be called for until satisfactory assurance is given of the completion of the road, can not be regarded as a fraud operating to induce an affirmative vote. And when such a vote is had, if the supervisor enters into a further agreement to issue but half of the bonds voted, on satisfactory assurances, this will not release a new town, formed out of part of the original town, from the payment of its just proportion.</p> <p>5. Same—what is a corporate purpose. Counties, towns and other municipal bodies might, under the old constitution, be invested with power to vote donations to secure the location and erection of an university, as this is a corporate purpose, within the meaning of the constitution.</p> <p>6. Same—legality. If the legislature authorizes a municipal corporation to vote a donation or subscription to secure the location and erection of a public building, a vote authorizing 4he same will create a legal liability. The courts can not inquire into the propriety or policy of such legislation.</p>

Writ of Error to the Circuit Court of Scott county; the Hon. Ctríts Epler, Judge, presiding.

<p>.1. Power op sale—of the notice of sale. Where the requirement of the power of sale in a mortgage is, that ten clays’ notice of the sale shall he given, it will he sufficient, if the notice is published in a daily newspaper, and the first insertion thereof is not less than ten days-before the sale. It is not necessary that ten days shall intervene between the last insertion and the day of sale.</p> <p>2. Same—character of paper in which notice is published. Where the power of sale in a mortgage authorizes a sale in a certain event, upon ten days’ notice in a newspaper of a certain city, no proof will be required of the notoriety or the extent of the circulation of the paper in which such notice is published, to sustain the sale.</p> <p>3. Mortgage—when sale must first be made of part not alienated. If a party is equitably entitled to have a part of mortgaged premises, not alienated by the mortgagor, 'first sold under a power in the mortgage, he must apply to a court of chancery before the sale, and if he does not, the sale can not be set aside as against a bona fide purchaser.</p> <p>i. Deputy clerk—not estopped by acts of his principal. A deputy circuit clerk has no independent authority as such, and is under no legal obligation to discharge any duty except under the direction of his principal, and therefore is not estopped from questioning the title of a party under-execution issued more than a year after the last day of the term at which judgment was rendered, when such deputy neglected to issue the execution in proper time, under the directions of his principal, without notice of his bad faith.</p> <p>5. Sale under power—whether induced by fraud. The fact, that one joint maker of a note secured by mortgage, upon the refusal of his comaker to pay his part of an installment due, refuses to pay his part, and suggests a sale under the power, is not evidence of his fraudulently procuring a foreclosure of the mortgage.</p> <p>6. Lis pendens—-judgment is not as to title -claimed under it. A judgment for a sum of money, which may be satisfied by a sale of real estate, if not otherwise satisfied, can not be regarded as Us pendens in regard to the title to the real estate of the defendant in the judgment. It is either a lien, or the real estate is unaffected by it.</p> <p>7. Estoppel—by acts and representations. A party can not rely upon an estoppel from acts and representations upon which he was not induced to act otherwise than he would, nor can he upon information given which is no more than the public records disclose.</p> <p>8. Judgment—lien, when lost. If an execution is not issued upon a judgment within one year after the last day of the term at which it is rendered, the lien of the judgment upon real estate will be lost,' and a subsequent mortgagee of the land, in good faith, or a bona fide purchaser at a sale under the mortgage, will hold the land, unaffected by the judgment.</p> <p>9. Purchaser—with notice of equities, protected by purchase from bona fide holder. A purchaser of land with notice of outstanding equities may protect himself by purchasing the title of another who was a bona fide purchaser, and this will not make him hold the property as a trustee.</p> <p>10. Parties in chancery—bill to remove cloud. Where land is sold under execution, none having heen issued within a year, so that the lien of the judgment is lost, and the defendant executes a deed of trust upon the land, which is foreclosed, and the title passes to a bona fide purchaser, the defendant in the execution and the person secured by the trust deed, are not indispensable parties to a bill, by the purchaser under the deed of trust, to set aside the sale on execution as a cloud on his title.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

Writ oe Error to the Circuit Court of Moultrie county; the Hon. C. B. Smith, Judge, presiding. This was an indictment against Joseph L. Keedy for selling intoxicating liquor to minors.

<p>1. Negligence—onpm't of plaintiff contributing to his injury. Where a brakeman, in uncoupling a combination car to be left on a switch, which has a railing, instead of remaining on such car, as it was his duty, gets upon a flat car next to it, and, in consequence of the jerk caused hy the putting on steam to start the train, is thrown off and run over, his own carelessness and negligence will be such as to preclude him from recovering for the injury.</p> <p>2. Same—of fellow servant. It is a well settled doctrine, that a railway company is not responsible to its servants or agents for an injury occasioned by the negligence of fellow-servants while acting in the same service, when such other servants are competent, or the company has no notice to the contrary.</p>

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

Cyrus Epler, Judge, presiding. This action is indebitatus assumpsit. The declaration originally contained only the common counts, and, the general issue having been filed, a trial was had before a jury, who found for plaintiff $562.50. That verdict was set aside by the court, and a new trial awarded.

Charles S. Zane, Judge, presiding. This was an action of debt, brought by Purvines, upon the official bond of Andrew B. McConnell, as sheriff of Sangamon county. The sheriff sold certain chattel property of Purvines under a chattel mortgage given by Purvines to John Champion, dated Sept. 16,1872, and under an execution against Purvines? in favor of M. A. Cartwright.

<p>Writ oe Error to the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.</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 Cumberland county; the. Hon. James C. Allen, Judge, presiding.</p>

<p>1. Burnt records—restoration. Where the proof shows the regularity of a proceeding to foreclose a mortgage, a decree of sale, a sale, and its approval by the court, and the delivery of a certificate of purchase, this will be sufficient for the court to order the restoration of the record of the proceeding which had been destroyed by fire, and to require the master to execute a deed to the assignee of the certificate of purchase, and decree a surrender of possession.</p> <p>2. Recording law—turning of records does not destroy notice. The burning of the records does not destroy the notice afforded by the recording of a mortgage or deed, or the notice afforded by proceedings foreclosing the mortgage, and a subsequent purchaser, after the destruction of the records, must take notice of what the records originally showed.</p> <p>3. Presumption—of the regularity of judicial proceedings. Where the foreclosure of a mortgage, and a sale thereunder, and its approval in the circuit court, are shown, and the records are destroyed by fire, such court being one of general jurisdiction, it will be presumed the proceedings were regular and in conformity with the law, in a proceeding to restore the records.</p> <p>4. Estoppel—by acts of party inducing a purchase. Where a mortgagor informs another that he has no title to mortgaged premises; that a foreclosure was had, and the time of redemption had expired, and thereby induces such other person to purchase the certificate of purchase, the mortgagor will be estopped from afterwards questioning the regularity of the foreclosure and sale, as against such purchaser.</p>

<p>1. Fraud—in obtaining deed from married woman Where a man whose wife was unable to speak or comprehend the English language had a deed of trust prepared, in which his mother was the beneficiary, which he signed, and he and his mother induced the wife to sign it, the wife not knowing what it was, and they, acting as interpreters between her and the officer taking the acknowledgment, the wife and the officer not being able to understand each other, induced the officer to believe that she understood its nature and purport, and to certify that she acknowledged it, when in truth they did not explain it to her or tell her what it was, it was held, that the deed of trust was, on a bill filed by the wife, properly canceled, and that the parties should be remitted to their rights as they existed before the execution of the deed of trust.</p> <p>2. Homestead—in what manner to he secured. Where husband and wife were in the occupancy of premises jointly with other tenants in common, and, upon a pretended sale by the latter of their interests to the husband, the wife was induced by fraud to join in the execution of a deed of trust upon the entire property to secure the purchase money, upon bill filed by the wife to cancel the whole transaction as fraudulent, the court should not decree to the wife a homestead in the land, but simply remit the parties to their original rights.</p>

Thomas F. Tiptoh, Judge, presiding. This suit was brought by J. JD. & H. C. Hall, against Charles E. Henderson, in the circuit court of Ford county. The declaration is in assumpsit, and contains one special count upon a promissory note, and the common counts. All the •evidence offered by plaintiffs, in the first instance, was the note described in the special count of the declaration.

<p>1. Parol evidence—to vary written, contract. Parol evidence of a contract, made at the time of or prior to the execution of a written contract is not admissible to change the legal force and effect of the writing, or to make the contract different from what the writing imports.</p> <p>3. So, where a note is given for a subscription to a railroad company, “ to become due and payable when the track of said railroad shall be built ” through a named county, and the “cars shall have run thereon,” a plea which sets up a further condition that the road should be completed through the county within two years, is bad on general demurrer, as attempting to change by parol the written agreement.</p>

<p>1. Surety—right to home creditor avail of collaterals. Where a' creditor receives notes, mortgages, or property, in pledge for a debt, they are regarded as an indemnity to the creditor and to the surety of the debtor, and the surety will have the right to exact of the creditor proper care and diligence in the management and collection of such collateral security, and any waste or misapplication of the collaterals will operate as a release of the surety to the amount of the loss actually sustained.</p> <p>2. Same—rule does not apply to security given by law. Where a party, in leasing land, takes notes with personal security for the payment of the rent, and also reserves in his lease, the right of distress, the lessor is not bound to assert the lien thus secured, but may collect the notes of the surety. The surety in such case has no interest in the landlord’s lien.</p> <p>3. Subro&ation—by surety of tenant to landlord’s rights. If the surety of a tenant should pay the rent due the landlord, it is intimated that the surety might be subrogated to all the rights of the landlord as to the unexpired term, including the right to distrain.</p> <p>4. Administration—allowance of claim, not due. Under the statute, notes or other demands not due may be allowed against the estate of a deceased person, on making a proper rebate of interest.</p>

<p>1. Eminent domain—unconditional judgment erroneous. In a proceeding by a city to condemn land for a street, it is irregular and erroneous to render an unconditional judgment for the payment of the compensation and damages found by the jury. The order should simply fix the sum to be paid before taking the property sought to be condemned, leaving the city free to abandon the improvement if it so chooses.</p> <p>2. If the amount so adjudged is to cover damages to other parts of the property not taken, all this should be distinctly staled in the order.</p> <p>3. Same—when cross-petition necessary. Where a. part of a lot is sought to be condemned by a city for a street, damages as to the part not sought to be appropriated may be allowed without any cross-petition by the owner.</p> <p>4. The ascertainment of the just compensation to the owner, for taking away a part of his lot, of necessity involves the consideration of the value of the whole property intact, and the value of that part not taken after the proposed part shall have been taken.</p>

<p>1. Variance—must be urged in court below. If there is a variance between the allegation and proof as to the name of a person to whom intoxicating liquor is sold, the defendant should raise the question in the court below, either by motion to exclude the evidence or by instruction. It comes too late on error for the first time.</p> <p>2. New trial—newly discovered evidence. The newly discovered evidence must be clear, explicit, and, if cumulative, conclusive in its character, to require the court to grant a new trial for that cause.</p> <p>3. Criminal law—order of commitment—to what jail. It is not for the court to direct the commitment of a prisoner to the jail of another county, although there is no jail in the county where tB"e offense is committed and the trial had, or if there be one, it is insufficient. The order should be to commit to the county jail, then, if proper cause exist, the sheriff will commit to the jail of another county.</p>

<p>1. Injunction—who may enjoin municipal corporation from incurring debts beyond, revenues. A resident and tax-payer of a municipal corporation has such an interest in its affairs, as to entitle him to an injunction to prevent the incurring of indebtedness in excess of that allowed by the constitution and laws.</p> <p>2. Construction—rule as to laws. In the construction of a constitutional provision or statute, resort will be had to the natural signification of the words employed, and in the order and grammatical arrangement in which they are placed, and if, when thus regarded, the words used embody a definite meaning, which involves no absurdity and no contradiction between different parts of the law, then such meaning will be adopted as the one intended.</p> <p>3. Municipal indebtedness — constitutional limitation. A debt payable in the future, or payable upon a contingency, or the happening of some event, such as the rendering of service or the delivery of property, as well as a debt payable presently and absolutely, is within the constitutional prohibition relating to the incurring of debts by municipal corporations, and it makes no difference whether the debt be for current expenses or for something else.</p> <p>4. But appropriations may be made or warrants drawn upon the treasury in anticipation, of taxes to be thereafter collected, provided the tax, at the time of the appropriation, be actually levied, and the legal effect of the contract between the corporation and the individual, made at the time of the appropriation, be such that it shall operate to prevent any liability to accrue on the contract against the corporation. Where a fund is provided to meet the same, the appropriation or warrant creates no liability, but one thing is simply exchanged for another.</p> <p>o. Municipal corporation—liability for not collecting tax to pay appropriations made on its faith. For any failure of the proper officers to collect and pay over taxes in accordance with the appropriations, the remedy must be against the officers and not against the corporation, otherwise a contingent debt would be incurred.</p> <p>6. Same—power of its officers. City authorities can exercise only such powers in its name and in its behalf as are expressly conferred by its, organic law, or as are incidental and necessary to carry into effect the objects of the corporation.</p> <p>7. Error—what may be assigned. Neither an appeal nor writ of error will lie on a simply interlocutory order, therefore error can not be assigned upon an order for attachment for disobeying an injunction, when no judgment is rendered against the party on the final hearing.</p> <p>8. Taxes—who must collect. The collector of the city of Springfield has no authority to collect city taxes where the same have been certified to the county clerk and extended by him, but the-same must be collected by the same officers whose duly it is to collect State and county taxes.</p>

<p>Railway company—-power to purchase shares of its own stock. Upon a rehearing in this case, the rule as laid down in the original opinion reported in this volume, page 145, is reaffirmed in the following additional opinion:</p>