Volume 86 — Illinois Reports

<p>1. 'Parol evidence — to show a deed is in fact a mortgage. Parol evidence is admissible to show that a deed, absolute on its face, without any written defeasance, is in fact a mortgage to secure the payment of money.</p> <p>2. Mortgage — harden of proof to show deed is. Where a party seeks to redeem land conveyed by an absolute deed, on the ground it was given to secure a loan, the burden of proof lies on him to show that fact, and this must be done by clear and decisive proof.</p> <p>3. Same — sufficiency of proof to show a deed is. The positive testimony of husband and wife that a conveyance of land of the latter is a mere security for a loan of money is not sufficient to overcome the equally positive testimony of the grantee that the transaction was '111 actual sale, he being corroborated by the absolute form of the deed, and the husband and wife being identified in interest, and the proof showing the absence of any written evidence of indebtedness, or of any fixed time of payment, or rate of interest, or any annual rental value of the property.</p> <p>4. Evidence —from acts and conduct of party. While the unreasonableness or absurdity of a line of conduct, or of acts claimed, is not sufficient to overcome positive evidence that the line of conduct was pursued, or that>he acts were done, yet, if the evidence be so imperfect or so conflicting that the truth ■can not be clearly perceived, the unreasonableness or absurdity of what is claimed to have been the conduct or acts of the parties may be of controlling importance.</p> <p>5. Sam e — as to the fact of the execution of a deed. The testimony of a party denying the execution of a deed will not be received in direct conflict with an admission of its execution in his answer; and, besides, it will not be sufficient of itself to overcome the official certificate of the notary taking the acknowledgment.</p> <p>6. Trustee—when required to convey legal title. "Where a woman bought property with her own means, and had the same conveyed to a trustee to hold for her, before her marriage, and he was required to convey the same upon her written request, it was held that the property was her separate property, and that a conveyance after her marriage, by her and her husband, to a third person, passed her equitable title, and was a sufficient request to the trustee to convey the legal title to her grantee.</p> <p>7. Costs — liability of trustee. "When a trustee holding property in trust for a married woman refuses to convey the legal title to a purchaser from the husband and wife, and answers a bill seeking a conveyance, resisting the relief sought, he so far identifies himself with the cause of his co-defendants as to make himself liable to a decree for costs.</p>

<p>Practice — affidavit of merits. An affidavit of merits on the same paper with the pleas, by a defendant, entitled “CD ads. A B,” is the same in law as “A B v. C D,” and is properly entitled, and it is error to strike the pleas from the files as for want of a sufficient affidavit.</p>

<p>1. Contract—when one party may rescind before day of perfwmance. Where one party agrees to do an act at a future day, and, before the day arrives, declares that he will not keep his contract, or do the act, the other party may act on such declaration without waiting until the day fixed for performance.</p> <p>2. Where a party has contracted for the sale and future delivery of grain, and, before the time of delivery arrives, becomes insolvent, and informs the purchaser of his inability to perform, and desires an adjustment, the latter may take him at his word, and if the matter is then adjusted by the then market price, this will be a rescission of the contract, and the seller will have no right afterward to make a tender in accordance with the original contract, and maintain a suit under such contract.</p> <p>3. Same—purchaser’s right on notice of inability to deliver. The purchaser of a lot of grain to be delivered during the next month, on being informed by the vendor of his inability to perform, by reason of his insolvency, has the right to purchase a like quantity and charge the vendor the difference in the market price on such day and the contract price. If he charges the vendor with such difference without purchasing other grain, the result is the same.</p>

Writ oe Error to the Circuit Court of Woodford County; the Hon. S. L. Richmond, Judge, presiding. This bill was filed by Peter Sheen to foreclose a mortgage made by Jeremiah Hogan, in his life-time, and his wife, Bridget Hogan, on the premises described in the bill. An allegation as to the title is, that Hogan was “ possessed in fee simple ’ ’ of the property.

Hiram: H. Cody, Judge, presiding. This was an action of trespass quare clausum fregit, by Richard Davis against the Chicago and Iowa Railroad Company. It appears the road was constructed across the plaintiff’s land with his knowledge and without objection on his part, and that sometime afterwards proceedings were had to condemn the land, and the plaintiff’s damages assessed, but not paid.

<p>Appeal from the Circuit Court of Cook County; the Hon. W. "W. Farwell, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane County; the Hon. Hiram H. Cody, Judge, presiding.</p>

<p>Weit of Eeeoe to the Circuit Court of Peoria County; the Hon. J. W. Cochean, Judge, presiding.</p>

Samuel M. Moore, Judge, presiding. This was a bill in chancery by May Hubbard against Marcus C. Stearns, to settle a disputed boundary line. The bill shows that Stearns had claimed a part of the lot owned by the complainant, being a small strip, and had built a fence inclosing the same, and as a consequence thereof her grantees threaten to sue her, and that Stearns’ pretended claim is a cloud upon the unsold portion of said lot, and prevents a sale by her.

<p>1. Discretion of court to vacate a ¡judgment. "Where there has been no abuse of the discretion with which circuit courts are clothed, the action of the court in disposing of motions to vacate a judgment and allow the defendant to defend will not be reviewed in this court.</p> <p>2. Negligence of party or his attorney. Where a cause is tried in its regular order on the docket, in the absence of the defendant and his attorney, the court has no power to relieve the defendant if guilty of negligence by himself or his attorney.</p>

Nathaniel J. Pillsbury, Judge, presiding. This was a suit upon an injunction bond given by the appellees, Vail, Brown, Van Kirk, Williams, Lynds, and Singleton, to the appellant, Mix. The injunction was sued out by four of the appellees, Vail, Brown, Van Kirk and Lynds, June 26, 1874, in the Kankakee circuit court, against appellant, Mix, restraining him from repairing a mill-dam across the Kankakee River.

Joseph W. Cochean, Judge, presiding. This was a suit commenced by Cone against Wasson, before a justice of the peace, by attachment, the writ being-levied upon property of the defendant. An appeal was taken by the defendant to the circuit court, and finally to-this court.

<p>1. Building contract — architect’s certificate, when conclusive. When it is provided in a building contract that the decision of an architect shall be final on all questions of difference arising under the contract, his decision that the work is completed in conformity with the terms oí the contract is conclusive until impeached for fraud.</p> <p>2. But where the contract makes the time for completing the work essential, and provides for a forfeiture of $5 per day for every day the work shall remain unfinished, as liquidated damages, the architect’s certificate of the completion of the work, and the sum due the contractor, but which fails to state the completion of the work within the time fixed, will not preclude the other party from insisting upon the damages agreed upon for delay in finishing and delivering up the building, and it is error to exclude evidence showing such delay.</p> <p>3. Sams — construed as to certificate of no sub-liens. Where a building contract provides that a certain sum, being the balance of the price after certain other payments, shall be paid when the contractor shall produce to the owner proper vouchers showing payment to any and all sub-contractors and material-men who shall furnish labor, etc., the furnishing of such vouchers is a condition precedent to the payment of the last installment; and, when the proof shows this was not done, and no sufficient excuse for not so doing is shown, payment of such installment can not be enforced.</p>

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

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

Joseph E. Gary, Judge, presiding. This was an action of assumpsit by John W. Gosling against Lawrence S. Beardsley on a draft, the declaration containing a special and the common counts. An affidavit of the amount due was filed with the declaration. The defendant filed the general issue, with an affidavit of merits, entitled in the caption as follows : “ State of Illinois, CooTc County, ss.

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

<p>Appeal from the Circuit Court of La Salle County; the Hon. Edwin S. Leland, Judge, presiding.</p> <p>This was an action of assumpsit by Charlotte A. Cogswell against William H. W. Cushman.</p>

<p>j. Purchaser — of bankrupt estate, protected. As a general rule, at an assignee’s sale in bankruptcy the purchaser takes the title free and untrammeled, unless it be incumbered, and he has notice thereof either actual or constructive.</p> <p>2. Notice—of incumbrance. "Where a company, after the giving of a deed of trust to secure the payment of its bonds, issued other bonds in lieu thereof secured by a second deed of trust, and the trustee released the prior incumbrance, but failed to exchange as to one of the old bonds, and the company’s property was afterwards sold under proceedings in bankruptcy, it was held, that the record of the trust deed did not afford to the purchasers notice of the incurmbrance as to the bond not exchanged.</p> <p>3. In suck a case, where a new company was formed which, purchased the-property of the old company, even if some of the members of the new company did know that one of the bonds secured by the "prior deed of trust had not been paid when the new organization was effected, yet if they knew that a■ new bond was issued in place of the former, and that interest was paid on the indebtedness after the adjudication in bankruptcy, there being nothing to show but that it was paid on the new bond, this will not be sufficient to put the new company on inquiry as to whether the old bond is a lien on the property bought by it.</p> <p>4. Knowledge by one of several corporators of the existence of an incumbrance on the property purchased by the corporation, whatever effect it may have on his interest, will not charge his associates with notice, where he does, not act as their agent in forming the company.</p>

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

N. J. Pillsbury, Judge, presiding. This was a bill of interpleader filed by Youngman against ■Josiah Bailey, Julia E. Hockett, and Pleasant Hockett, her husband, setting forth that he had bought a piece of land without knowing that her husband had any claim or interest in the same, and owed $700 on the same. He paid the balance of the purchase money into court in order that it might be determined who was entitled to the same.

<p>1. Building contract — architects certificates conclusive on both parties. In a contract to build a house, in which performance on the part of the contractor is guaranteed hy others, and by which contract it is provided that eighty-five per cent shall be paid semi-monthly as the work progresses, on the architect’s certificate, whose opinion, certificate, report, and decision on all matters shall be binding and conclusive, the estimates and decisions of the architect as to the work done and the sums to be paid are conclusive on all the parties to the-contract, including the guarantors.</p> <p>2. Surety—not released by payment on insu fficient certificate. "Where payment is to be made to a contractor on the certificate of an architect at a certain per cent of the materials furnished and work done, any certificate or estimate-made by the architect which is so treated by the parties interested is sufficient to justify payments as against a guarantor or surety of the contractor.</p> <p>3. Same—what will release. Where the performance of work is guaranteed by sureties of a contractor, the reserved per cent to be withheld from the contractor until the completion of the work to be done is as much for the indemnity of the surety as for him for whom the work is being done; and if such.reserved fund is given up or released without the surety’s consent, it will discharge him from his undertaking.</p> <p>4. Where a contract for the erection of a building provided for payments, on the first and middle of each month, of eighty-five per cent on estimates to be made by the superintending architect, and the remaining fifteen per cent when the work should be completed, and that the architect’s estimates should be conclusive, and under this contract the defendants executed a written guaranty for the faithful performance of the contract by the contractor, and the owner made various payments on these estimates, where the contractor failed to complete the work, it was held, that, although the owner may have paid more than the eighty-five per cent of the work done, according to the contract price, but it not appearing that they exceeded the proper per cent of the cost of the work, this did not release the guarantors, they being also bound by the estimates.</p>

<p>1. Decree —for payment of solicitors’ fees, construed. Where the court, in a divorce suit, required the husband, the defendant, to pay $800 to his wife’s solicitors, which was paid, and, at the conclusion of the suit, ordered the defendant to pay to such solicitors the sum of $1,520, the latter sum was held to include the $800 previously ordered to be paid, and not as an additional sum.</p> <p>2. Practice in supreme court—plea of puis darrein continuance. Where a plea puis darrein continuance, setting up a former decision, is, on motion of the appellee, stricken from the files, it will be considered as if never filed, and it will not operate as a waiver of the errors assigned, or of any prior pleadings.</p>

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

<p>1. Farol evidence—to show fraud, accident, or mistake. Parol evidence of the circumstances connected with a transaction, and the declared intention of the parties in executing a written agreement, is admissible for the purpose of showing fraud, accident, or mistake.</p> <p>' 2. Praiid—delivery of contract contrary to agreement. "Where a party about exchanging property executed and put into the hands of the agent of the other party a contract for the conveyance of lots, with the agreement that such contract should not be delivered or recorded until the party executing the same should ascertain if certain representations made by the agent as to the property to be taken in exchange were true, the delivery of the contract and putting it on record before the signer has learned as to the truth of the representations is a fraud.</p> <p>3. Specific performance — when refrsed. If it is doubtful whether an agreement has been concluded, or is a mere negotiation, a court of equity will not decree a specific performance; and especially is this so where the party attempting to enforce the contract has neither been let into possession nor done any act on the faith of the contract.</p> <p>4. Same—refrsed for fraud. Where a party was induced to execute an agreement for the conveyance of certain lots in consideration of the exchange of a certain leasehold interest in a certain building on another lot, upon the false representations of the agent of the other party that the building was eighty-four feet in length and twenty-four and one-half feet in width; that it cost in its erection $25,000, and that the leasehold interest cost $30,000, whereas, ; in fact, the building was only seventy feet in length and twenty-three feet in width, and cost only between $16,500 and $17,000, and the other party, instead of paying $80,000 for the leasehold interest, received it in exchange for other property, and it appeared that the defendant, having no knowledge of the truth or falsity of these representations, and relying on them, signed the agreement to exchange property, it was held, that these representations were material, and, being false, the court properly refused a decree for specific performance.</p> <p>5. Same — degree of proof to show fraud, etc. It is not essential to establish fraud, imposition, or mistake with the same degree of certainty, in order to defeat a claim for specific performance, that is requisite on these grounds to defeat a recovery at law on the instrument, or to authorize a court of equity to cancel the same and rescind the contract.</p> <p>6: Same — discretion. Applications for specific performance are addressed to the sound discretion of the court, and it is not a matter of course that it will be decreed because a legal contract exists.</p> <p>7. Same — agreement made under misapprehension. Where a party executes a written agreement under a misapprehension of material facts, induced by the misrepresentation of the other party or his agent, a specific performance will be denied; and such other party can not be allowed to say the party thus imposed upon ought to have known his agent was guilty of falsehood.</p>

Joseph W. Cochran, Judge, presiding. This was an application by Joseph Collier for a judgment on an award of arbitrators. The defendant moved the court to set aside the award.

Josiah McEoberts, Judge, presiding. This was an action of trespass, originally brought before a justice of the peace, by William Miller against John D’Arcy, and taken by appeal to the circuit court, where a trial was had, resulting in a judgment in favor of the plaintiff for $76.

W. W. Heaton, Judge, presiding. This suit was brought by William H. King against William Haley and Rudolp Heideklaing, to recover damages for personal injuries inflicted upon him by Solomon Koffmau while intoxicated with spirituous liquors sold to him by defendants.

Josiah McRoberts, Judge, presiding. This is an action by Harwood against the city, brought before a justice of the peace, taken by appeal to the circuit court, and there tried by the court, without a jury. It appeared upon the trial that the city of Joliet let a contract to O’Riley to construct a sewer through certain of its streets, according to certain plans and specifications.

S. M. Moore, Judge, presiding. This -was a bill in equity in respect to certain real property claimed as haying been held in, trust, by the appellees, for Hiram Joy in his life-time, and since his death for Carrie A. F. Morton, his daughter and sole heir. • The following facts appear: Hiram Joy was at a former time engaged in the ice business at Chicago, with Augustus Frisbie, under the firm name of Joy & Frisbie.

<p>1. Warranty—by positive assertion of fact. Where a person selling a breastpin asserts positively that it is a diamond, without qualification or limitation, such assertion amounts to a warranty that it is a diamond, and if it proves not to be such the purchaser may, on discovering the fact, rescind the contract of purchase, within a reasonable time.</p> <p>2. Remedy—when party not allowed to question. Where the holder of a pledge for the payment of money to a third person requests the pledgor to bring replevin, to test the question of ownership and relieve him from liability, which is done, the defendant can not be allowed to raise the question for the first time in this court that this form of action does not lie.</p>

Arthur A. Smith, Judge, presiding. This was a creditor’s bill filed by Mary E. Bonar against Andrew and Ellison Annis to subject certain real estate to the payment of a judgment she had before that time recovered against her father, Ellison Annis, in the circuit court of Henry county. The judgment was for $1,370.90 and costs. The bill recites the issue of execution and its return nulla bona. The court below decreed the relief prayed, and Andrew Annis prosecuted this appeal.

<p>1. Continuance—where absent testimony will not change the result. "Where the testimony of an absent witness could not have changed the verdict if given, this court will not reverse the judgment for a refusal to grant a continuance.</p> <p>2. Same — no diligence. "Where an affidavit for a continuance fails to show ■due diligence to obtain the testimony of an absent witness, a motion for a continuance is properly overruled.</p>

J. W. Cochran, Judge, presiding. This was an action of assumpsit by the appellant against the appellee, upon his written guaranty upon the note of L. F. Haskins.

Martin E. M. Wallace, Judge, presiding, This is an appeal from a judgment of the county court of Cook county against a large number of lots belonging to the appellant, for the taxes of 1875, amounting to $6,644.15. The University was incorporated by special charter in 1851.

<p>1. Power oe attorney—right to revoke-. The principal may revoke the authority of his agent at his mere pleasure, although in its terms the authority-may be expressly declared to be irrevocable. There are exceptions to the rule, when the authority or power is coupled with an interest, or where it is given for a valuable consideration, or where it is part of a security. In these cases it is irrevocable, whether so expressed or not.</p> <p>2. Same —when coupled with an interest. A power coupled with an interest, is when the power or authority is coupled with an interest in the thing itself, actually vested in the agent. It must not be merely an interest in that which is produced by the exercise of the power. The former is irrevocable, while the latter is revocable, though expressed to be irrevocable.</p> <p>3. "Where a power of attorney authorized the agent to sell and dispose of the-principal’s patent-right in all or any pai-t of the United States and territories, and provided that the attorney was to account to the principal for one-half of the net proceeds derived from sales, after deducting all necessary expenses therefrom, and declared the power to be irrevocable for two years, there being no transfer of any right in the patent, and no covenant or undertaking on the part of the attorney to make expenditures, it was held, that the principal might revoke the power at any time, leaving the attorney to his action for breach of' the covenant not to revoke.</p> <p>4. Same — what is a revocation. When the principal, who has given a power of attorney to sell, himself sells and disposes of the thing before a sale by the-agent, this will be a revocation of the power, by operation of law.</p> <p>5. Rescission oe sale —for want of consideration. Where an agent under-a power sold a patent-right of his principal for a certain State, after a sale of the same territory by his principal, and after notice of such sale, and received in payment a conveyance for real estate, it was held, that as the sale of the territory by the agent was without right and authority, and the conveyance of the land was made without consideration, a court of equity would require the-agent and his wife, to whom the deed was made, to reconvey the land to the-grantor.</p> <p>6. Same—without repayment of money paid. Where a conveyance of land, was canceled for want of consideration, in the failure of title in a patent-right, and it was stipulated that the use of the land was moré than sufficient to repay a small sum of money also paid the grantor, it was held, no error-in the court, not to require the grantor to repay said sum of money.</p> <p>7. Laches — must he pleaded to avail. The objection of laches in filing a bill for equitable relief must be raised in the court below, or it will be held to-have been waived.</p>

Writ op Error to the Circuit Court of Livingston County ; the Hon. N. J. Pillsbury, Judge, presiding. This was an indictment against Cassius M. Clay for a libel.

J. W. Cochran, Judge, presiding. In December, 1872, John S. Davis placed in the hands of the appellants, Bassett & Connell, attorneys at law, four promissory notes, for collection, against the appellee, Brat-ton, and William H. Loman.

<p>1. Judgment bt confession —power and duty of court to open. Where judgment is entered by confession in vacation upon a promissory note, under a power attached, and the defendant, at the next term of court, enters a motion to set aside the judgment and be allowed to defend, on the ground that the execution of the note and power was procured by fraud, and the affidavits in support and against the motion are irreconcilably conflicting, so as to leave the matter in doubt, the court should enter a conditional order allowing pleas to be filed and issues to be formed, so that the witnesses could be examined, leaving the judgment to stand to await the finding on the issues formed.</p> <p>2. Same — equitable powers of courts of law. Courts of law may exercise equitable jurisdiction over judgments entered by confession under warrant of attorney, and, when it clearly appears that the plaintiff was not entitled to the judgment, may set the same aside; but, when it is involved in doubt an issue should be formed to try the defense, leaving the judgment to stand as a security.</p>

<p>Appeal from the City Court of Aurora; the Hon. Frank M. Annis, Judge, presiding:</p>

<p>1. Subrogation—in favor of guarantor faying note. Where a party guarantees the payment of a promissory note for the accommodation of another, and, on default of payment by his principal, pays the same to the holder, the law will imply a promise on the part of the principal to repay, and the guarantor will be subrogated to the rights of the holder, to whom he makes payment.</p> <p>2. Assignor ■— liability where maker of note is insolvent. The assignor of a note is liable to the holder where the maker is insolvent when the note matures, when the declaration counts on such liability.</p>

<p>I. Administeatob’s bond — liability of surety. Where an administrator of an estate dies, and his surety on his bond succeeds him, and he is sued as such surety on the bond, he will be liable only for the acts of the deceased administrator, and not for moneys that came into his hands as such successor.</p> <p>2. Former becoveby—when and how far a lar. Where an administrator of an estate collected money from various persons for brick sold by his intestate, and delivered the same to his surety to hold the same, and a party having a chattel mortgage on the brick sued such custodian for money had and received to his use, claiming $1,000, but recovered only $517, .this will be no bar to an action by the same creditor upon the administrator’s bond for not accounting for the balance of such money as assets of the estate. As to the sum recovered in the former action, it seems it is a bar to a further recovery, but not as to any surplus received by the administrator.</p>

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

Writ op Error to the Circuit Court of Lee County; the lion. William W. Heaton, Judge-, presiding. This was a scire facias upon a recognizance to answer to-an indictment.

Aureal from the Circuit Court of DuPage County; the Hon. H. H. Cody, Judge, presiding. This was a suit originally brought by George W. Gould against Frederick Weiger and John W. Gates, to recover a balance claimed to be due for 682 bushels of oats sold and delivered. On appeal to the circuit court the plaintiff recovered.

<p>1. Variance—when note is due — days of grace. Where a promissory not» is described as payable on a certain day, as expressed in the note, there will be no variance, although days of grace are allowed. It is enough to describe the same as the parties made it. If suit is brought before the expiration of the days of grace, the objection may be interposed that the action was premature.</p> <p>2. Practice — objection must be made on trial below. Where no objection is made to evidence on the trial in the court below, the question of variance can not be raised in this court.</p> <p>3. Same—want of venue. The omission to state a venue, at common law, can be taken advantage of only by demurrer, and is cured after verdict by our statute of amendments and jeofails.</p> <p>4. Judgment — affidavit to set aside. Where a suit is tried in the absence of the defendant and his counsel, an affidavit to set aside the finding, and for a new trial, should state the facts showing a defense, and show there was no want' of diligence. It is not sufficient to state, generally, that the defendant has a good and valid defense.</p>

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

<p>1. Decree — of this court construed. Where a decree of foreclosure and sale, on appeal to this court, was modified so as to authorize the taking of an account, and afterwards the opinion was modified so as to authorize the mortgagor to move the court below to set aside the sale, this court stating that for this purpose the court below might regard the original decree as reversed, it was held, that the original decree was not in fact reversed, so far as ordering the sale was concerned, and that the order of this court did not vacate the sale or require the court below to set it aside.</p> <p>2. Judicial sale—waiver of right to have the same set aside. Where this court modified a decree of foreclosure in respect of railroad property, giving the mortgagor the right to have an account taken against the party in possession of the road up to the date of the master’s deed, or up to the time of the rendition of a new decree in case the sale was set aside, and giving the mortgagor leave to move the court below to vacate the sale, and the mortgagor came into court and requested it not to set aside the sale, but to have an account stated up to the time the master made the deed, it was held, that this action was a waiver of the right to afterwards insist upon a motion to vacate the sale.</p> <p>3. Laches — setting aside sale under foreclosure Where a party whose real estate has been sold under a decree of foreclosure does not invoke the aid of the court to set the sale aside for nearly two years after he has full knowledge of his rights, he will have lost his right to insist upon having such sale vacated for mere irregularities, especially where the property has passed to an innocent purchaser.</p>

Nathaniel J. Pillsbuky, Judge, presiding. This suit was commenced on an appeal bond given by defendants to plaintiffs in the penal sum of $6,000, with a condition written thereunder in which it is recited plaintiffs had recovered a judgment or decree against the principals in the bond, in a proceeding or bill in chancery for an injunction, by which such injunction was dissolved and bill dismissed, and also judgment for costs, from which they took an appeal to the Supreme…

<p>1. Usury —forfeiture of all interest, when enforced. The forfeiture of all Interest under the statute is applicable only to a case where a contract to receive more than ten per cent is shown by the pleadings to have been made, and the forfeiture is of the whole interest so contracted to he received.</p> <p>2. Same—payment in excess of tén per cent applied onpiñncipal. The fact that the maker of a note which draws ten per cent interest may have paid, and the payee may have received, more than ten per cent will not subject the payee, upon a bill to foreclose a mortgage given to secure such note, to a forfeiture of all interest on the note, when it does not appear that such excess of interest was reserved in the original contract, but where it appears, in such case, that more than ten per cent has been paid on account of interest the court will apply the excess as a payment upon the principal.</p> <p>3. Practice — talcing default against a party who has answered. Taking a default against a defendant in a chancery suit after he has filed his answer is an irregularity which does no harm if the final hearing appears to have been upon the bill and the answers of defendants, including the answer of the one defaulted.</p> <p>4. Mortgagor-—rights of parties’ claim under conveyance from. The rights of parties claiming, under separate conveyances from the mortgagor, different parts of the mortgaged premises, are several and not joint, as to any question arising upon releases of other parts of the mortgaged property executed by the mortgagee.</p> <p>5. Mortgage—effect of release of parts of land, as against grantee of mortgagor, of other parts. A release of a part of mortgaged premises will not operate, ipso facto, as a release of such other parts, as may have been conveyed to other parties by the mortgagor after the execution of the mortgage, but under certain circumstances such a release may discharge pro tanto a certain part of the mortgage debt as against those claiming under such conveyance from the mortgagor.</p> <p>6. Same-—right of purchaser from mortgagor to have his part sold last in order is superior as to mortgagor but not as to mortgagee. The right of a purchaser from a mortgagor of a part of property under mortgage, who has paid for his part of the property, to have all the parts of the property left in the mortgagor at the time of his purchase sold first, before subjecting his property to sale to satisfy the mortgage, is a superior right as against the mortgagor, but it is a subservient right as against the mortgagee, and subject to the superior-right of the mortgagee to collect his money in the way that is most to his-interest.</p> <p>7. Same — when purchaser from mortgagor entitled to have value of land released credited on mortgage. When a mortgagee has knowledge that the mortgagor has, since the mortgage, sold part of the property to another and received his pay, he must not release any part of the property remaining, and if he does so the purchaser may insist on a credit on the mortgage of a sum equal to the value of the property released.</p> <p>8. If, however, the mortgagor can secure a part payment on the mortgage debt by releasing a part of the mortgaged property for the purpose of sale, and by applying as a credit on the mortgage debt the full price of the property sold, such release will not charge the mortgagee, as to any part of the mortgaged property previous^ sold by the mortgagor, with more than the amount the part released actually sold for, unless there is a want of good faith in the transaction.</p> <p>9. Where, by the terms of a mortgage, the mortgagor and his assigns have the right, upon the payment of a certain sum per acre or per lot, to have any portion of the mortgaged premises released, each purchaser from the mortgagor purchases subject to that provision, and if he fails to procure a release from the mortgagee, of the part purchased by him, according to the terms of the mortgage, he can not have any part of the money paid by the purchasers of other portions applied as a discharge of the mortgage debt pro tanto as against the part purchased by him.</p>

John A. Jameson, Judge, presiding. This was an action of replevin, originally brought before a justice of the peace, by Matta Freeman against Charles Lehman and Nick Trease. Lehman alone appealed from the justice’s judgment, perfecting his appeal before the clerk of the Superior Court.

<p>1. Excessive damages —for personal injury through negligence. A recovery of $2,200 damages for an injury to the plaintiff’s ankle, alleged to have been caused by negligence on the part of an omnibus driver, where the actual loss of time and expenses incurred by the plaintiff were not shown to exceed $175, and the proof failed to show a permanent injury, or such negligence as to imply malice or wanton disregard of the safety of the plaintiff, was held excessive.</p> <p>2. ExempIiABY damages. In an action against the proprietor of an omnibus, to recover damages for a personal injury caused by negligence of the driven where the negligence, if any, is not of such a character as to imply malice, or a wanton disregard of the safety of the plaintiff, vindictive damages can not be allowed, but only such as are compensatory.</p> <p>3. Error—in favor of party complaining. A defendant can not be heard in this court to complain of instructions given for the plaintiff, even though not precisely accurate, if such inaccuracy operated more strongly against the latter than the former.</p> <p>4. Law and fact — question of negligence. In an action to recover damages for a personal injury received through the alleged negligence of the defendant, or his servant, it is not proper by an instruction to announce what acts were negligent, and the degree of negligence they prove. It is for the jury to say, from the evidence, whether either or both the parties were guilty of negligence, and, if so, its comparative degrees.</p> <p>5. Action — acts done by direction of police officer. If a city ordinance con- • fers power on police officers to direct, absolutely, omnibus drivers, leaving the latter no choice but to obey the officer’s order, and if, in executing such order with ordinary prudence and skill, a personal injury is inflicted, neither the driver nor his employer can be held liable in damages for the injury.</p>

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

<p>1. Consideration—of notes given by stockholder in payment for stock. Promissory notes given by a stockholder in an incorporated company, for the payment of the first twenty per cent of bis subscription to the capital stock; are founded.on a sufficient consideration to support them.</p> <p>2. Corporation—mismanagement of its affairs does not release, stockholdei\ The mere mismanagement of the affairs of a corporation will not, even in equity, release a stockholder from bis obligation to pay for stock subscribed by him.</p> <p>3. Same—who are owners of franchise, etc. The stockholders are the owners of the franchise, property, and assets of the company which remain after its debts and liabilities are discharged, notwithstanding its affairs are managed by directors.</p> <p>4. Same—directors are agents only—how far they bind the stockholders. The directory of an incorporated company are the agents or trustees of the stockholders, and the latter are hound by their acts within the scope of their authority. If their acts are outside of their authority, the stockholders are not bound by them, and they may, no doubt, in a reasonable time, proceed in equity to have the same canceled and their rights protected from injury and loss growing out of the unauthorized act.</p> <p>5. Directors, like any other trustees, maybe restrained from the performance of unauthorized acts; or the stockholders may have them, when performed, rescinded and canceled. The latter occupy the relation of cestuis que timst, and may invoke the aid of equity to protect their interests.</p> <p>6. Same—defense against subscHption. The fact that an incorporated insurance company has purchased a large and expensive building in which to transact its business, and has also purchased the stock of another company, furnishes no defense against the payment of a subscription or. other obligation given for stock. If such acts are unauthorized, the remedy is in equity to have them set aside and the consideration paid restored.</p> <p>7. Same — diminishing stock. "Where an incorporated company agrees with its stockholders to issue certificates of stock for the amount of their subscription paid, and cancel the subscription as to the sum not paid, this is not a diminishing of its capital stock, as the remaining stock still belongs to the company, to be disposed of.</p> <p>8. Same—right to buy stock. There are numerous cases which hold that a. corporation may purchase its stock and violate no duty to its stockholders, unless prohibited by its charter.</p>

<p>1. Variance—in description of property cured by reference to record of deed. Where a bill to set aside a deed as fraudulent refers to the book and page where the deed is recorded, and the decree follows the description of the property as given in the deed, it will be sufficient, notwithstanding it varies slightly from the description given in the bill.</p> <p>2. Practice — objection to evidence must be made when introduced. The fact that witnesses examined before a master in chancery do not sign their depositions may he good ground for suppressing their evidence, upon motion at the proper time; but if no such motion is made the objection is waived, and will not be considered when made for the first time in the Supreme Court.</p> <p>3. Evidence — where declaration of party as to ownership of property is competent. Where the grantor in a deed of conveyance remains in possession of the property conveyed, and uses and treats the same as if he was the owner, his declarations whilst so in possession, to the effect that he owned the property, are competent evidence upon a hill to set aside such deed as fraudulent.</p> <p>4. Peatoulent cohybyaitoes—when set aside as to creditors. Upon a hill to set aside a deed as fraudulent, it appeared that the property conveyed was worth about $3,000, and that the alleged consideration for the deed was $1,400—$100 in cash, and the balance in a promissory note due in two years. The grantor and grantee were related hy marriage and on very intimate terms, and resided in the same house, and had so resided for some years. The grantor afterwards paid taxes on the property, rented it in his own name, collected the rents, and in all respects treated and managed the property as his own, whilst the grantee paid no attention to it, and did not claim to own it: Held, that the conveyance was merely colorable, and was properly set aside as fraudulent even as to one who became a creditor after the date of the deed.</p> <p>5. Same—when void as to subsequent creditors. "Where a conveyance is merely colorable, and a secret trust and confidence exists for the benefit of the grantor, it is void, not only against prior, hut subsequent, creditors.</p>

Writ oe Error to the Superior Court of Cook County; the Hon. Joseph E. G-ary, Judge, presiding. This was an action in the Superior Court of Cook County, upon a promissory note alleged in the declaration to have been executed by Albert, Benjamin, Jacob, and Isaac Felsenthal, under the name of J. Felsenthal & Sons. Summons was issued against the four above named defendants, and returned served on Albert, Benjamin, and Isaac Felsenthal, and not found as to Jacob Felsenthal.

<p>1. Fraudulent conveyance—from father to son. Where a father, being-indebted, transferred two promissory notes to a third person for his minor son, each for $1,000, and which were good notes, for the consideration of $500, and also conveyed his homestead to his son for the expressed consideration of $5,000, when it was worth $10,000, and only received $100 in hand, and took no mortgage or other security for the payment of the balance of the purchase money, and it appeared that the son had no means with which to make so extensive a purchase, it was held, that the transfers were fraudulent as to the creditors of the father.</p> <p>2. Garnishment—garnishee liable if he surrenders notes after service. If one holding notes, after service of garnishee process on him at the suit of a creditor, surrenders the same, he will do so at his peril, and if he does not show that the notes are not subject to the payment of the debt he will be liable for the amount due on the same when they are shown to be good.</p> <p>3. Same—waiver of sufficiency of affidavit. If an affidavit for garnishee process is insufficient, the garnishee should move to quash. If he does not, but answers on the merits, he will be considered as having waived the objection to the sufficiency of the affidavit.</p> <p>. 4. Same—judgment, when a protection to garnishee. Where one holding notes is garnisheed, and one claiming the same is notified of the proceeding, and thus made a party, the judgment against the garnishee will be conclusive on such claimant in any subsequent suit between him and the garnishee.</p>

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

<p>1. Criminal law—forgery—record. No indictment can be founded upon an instrument purporting to be a decree of divorce, which, on its face, does not appear to be a copy of the record.</p> <p>2. To authorize an indictment for forgery, the instrument alleged to have been forged must be such as, if genuine, would be effective.</p> <p>3. Same—fictitious decree. The Criminal Code has prescribed no punishment against one for making a fictitious decree of divorce from a court of another State.</p>

Writ of Error to the Circuit Court of Will County; the Hon. Josiah McRoberts, Judge, presiding. The accused was indicted with other parties for an assault with intent to kill and murder one John H. Arnold. On the trial he was convicted, and sentenced to the penitentiary for a period of seven years. The regular panel having been exhausted, the court ordered a special venire for an additional number of jurors.

E. S. Lbland, Judge, presiding. This was a bill in equity brought by the Western Union Telegraph Company against the Chicago and Paducah Rail-rood Compauy and the Atlantic and Pacific Telegraph Company, for an injunction to restrain the last-named telegraph company from the use, for the line of its wire, of the telegraph poles along the road of the railroad company.

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

<p>1. Judgment—when may be vacated, at subsequent term. W here a motion to vacate a judgment is made at the same term at which judgment is rendered, and continued until a subsequent term, the court has power at such subsequent term to allow the motion and vacate the judgment.</p> <p>2. Former decision. The case of National Insurance Company v. Chamber of Commerce, 69 Ill. 22, so far as it is in conflict with the rule above laid, down, is overruled</p>

<p>Writ of Error to the Superior Court of Cook County: the Hon. S. M. Moore, Judge, presiding.</p>

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

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, by John A. Griffith, James O’Neill, and Joseph A. Maguire, partners, etc., against Christian Kassing.

Arthur A. Smith, Judge, presiding. - This was an action of assumpsit, brought by Severt Larson against Samuel Kail and William Messmore, upon a due-bill, in which the last named defendant was security. The defendant Messmore filed the general issue, with notice of two special grounds of defense—set-off and a release from the jilaintiff.

E. S. Williams, Judge, presiding. This was a bill in equity in the circuit court of Cook county to enjoin the collection of a judgment and enforce a set-off against it. A demurrer to the bill was overruled and a rule to answer entered, with which the defendants failed to comply, electing to stand by their demurrer; whereupon a final decree was rendered granting the relief prayed, and the defendant appealed.

<p>1. Warrant for arrest of criminal — officer may execute in any county. An officer to whom a warrant has been directed for the arrest of a person charged with a crime has a right to make the arrest in any county in the State where the accused may be found, and it is not essential to such right of arrest that the accused should have fled to the county where arrested.</p> <p>2. Same —justification to officer making ai'rest. In a suit against an officer for an unlawful arrest, he may justify under process from a court of limited jurisdiction, where it shows on its face that the court had jurisdiction of the subject matter, and nothing appears to apprise him that the court had not, also,. jurisdiction of the person of the defendant.</p> <p>3. Where a warrant recites all that the statute requires, the officer who executes it is not required to go behind it to see whether the affidavit upon which it issued was sufficient, hut he will he protected in executing it unless he abuses his authority.</p> <p>4. Pleading—-justification under a warrant. In an action against an officer for an unlawful arrest, a plea justifying under a warrant, and showing such facts that the court can see that the party arrested was not detained any longer than was reasonable, is sufficient without any express averment to that effect.</p>

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

<p>1. City officers—removal and appointment by the mayor. Where the mayor of a city, in pursuance of law, reports to the city council that he has removed an officer, and accompanies such report with the nomination of one whom he has appointed to fill the vacancy, and the city council, at a full meeting, disapprove of the removal by a two-thirds vote and reject the appointment made by the mayor, and refuse to approve the official bond tendered by the appointee, or in any way to recognize him as an officer, such action of the city council nullifies the appointment by the mayor and renders it of no effect.</p> <p>2. Mandamus —not a prerogative writ. The writ of mandamus is not now, as formerly, a prerogative writ, but under our statute is nothing more than an ordinary action at law in cases where it is the appropriate remedy.</p> <p>3. Officer — claiming rights as such must show title to his office. "Where one claims rights as an officer, by virtue of his office, he must show that he is legally entitled to act,—that he is an officer de jure as well as de facto.</p> <p>4. Same — officer de facto—upon whom, his acts binding — and how his title questioned. The acts of an officer de jure are valid and effectual everywhere when within the limits of his authority; but the acts of a de faeto officer are valid only so far as the rights of the public, and of third persons having an interest in such acts, are involved; but such officer can claim nothing for himself.</p> <p>5. The title of a de facto officer can not be inquired into in a collateral way between third parties, but it may be inquired into where he is suing in his own right as an officer.</p>

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

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

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

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

<p>1. Covenant — against incumbrances—its effect — and herein, whether a transaction is one or several. A vendor of land who conveys by deed containing a covenant against incumbrances, and takes the notes of the purchaser, secured by trust deed on the property, for the unpaid purchase money, is bound to protect the purchaser against any incumbrances that were on the land when he conveyed, before he can properly demand payment of the notes given for the purchase money.</p> <p>2. It is the right of a purchaser of property under a deed with covenants against incumbrances' to have all incumbrances that may be on it removed, before his vendor can sell it under a deed of trust executed by such purehasei to secure the payment of the purchase money.</p> <p>3. Where a party owning one undivided half of property, and having a contract with the owner for the purchase of the other half, enters into a contract with a third person for the sale to him of the half then owned, and of the other half when acquired, and afterwards executes separate deeds, each containing covenants against incumbrances, for the two halves, and takes separate notes and deeds of trust for the purchase money, the transaction will be considered as one, and, before a sale can be held under either deed of trust, all incumbrances must be removed from the whole tract.</p> <p>4. Bale—of land under trust deeds. Where the title to a tract of land is vested in a trustee by virtue of two deeds of trust, executed by the same party and for the benefit of the same party, each deed being for an undivided half ol the land, the whole land should be sold together under both deeds, and not one half at one time, and the other half at another.</p> <p>5. Same—of land under trust deed will be set aside when made by party whose covenant against incumbrances has not been kept. Where the vendor of land covenants that it is free of incumbrance, has it sold under a deed of trust given to him. for the purchase money, and becomes the purchaser at the •sale whilst there is an incumbrance by way of mortgage on it which by his covenant he was bound to remove, the sale will be set aside, and all further proceedings to collect the purchase money stayed until the prior incumbrance is removed and the property placed in such condition that the purchaser will get the title clear of any incumbrance.</p>

<p>1. Instructions —need not be repeated. When the law applicable to a case is given in clear and intelligible language, the sole function of instructions is performed, and there is no necessity for repeating the same idea in different instructions, varying only in form.</p> <p>2. Same—should not argue the case. The court is not only under no obligation to permit a case to be argued through instructions, but is bound to prohibit it.</p>

This was an application by Charles P. Swigert, county treasurer and collector of Kankakee county, for judgment against certain lands for taxes unpaid thereon. The county court rendered judgment in favor of the. people on the hearing, and against the lands of the appellant.

E. S. Williams, Judge, presiding. This bill was filed by Fernando Jones, in November, 1873, to quiet title to property described in the bill.

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

Henry Booth, Judge, presiding. This was an action of covenant, brought by Margaret H. T. Hooper for the use of Daniel R. Brandy, upon an agreement under seal, executed by the appellant, whereby he covenanted to convey certain real estate to Mrs. Hooper upon demand, in consideration of $1,500, acknowledged by said agreement to have been paid.

<p>1. Highways — authority of commissioners to direct where repairs shall he made. The commissioners of highways have the power to require the overseers to perform labor upon such parts of the highway as in the judgment of the commissioners seems best for the public good.</p> <p>2. Sake—overseers subject to direction of commissioners. "When the overseer of highways is at work repairing a highway in his district, he is hound to leave that part of the highway and repair any other part when directed so to do by the commissioners of highways, and if he refuses or neglects so to do, he is liable to the penalty imposed by section 27 of chapter 121 of Revised Statutes of 1874.</p>

<p>Appeal from the Circuit Court of Kankakee County; the Hon. N. J. Pillsjbury, Judge, presiding.</p>

<p>1. Pleading—accord and satisfaction. In an action of debt upon a writing; obligatory a plea that the defendant was the owner of the equity of redemption in certain property purchased by the plaintiffs at a sale made by a sheriff" under execution, and that before the time for redemption expired the plaintiff,, in consideration that defendant would waive and release to plaintiff his right of redemption, agreed to release and discharge defendant from the payment of the writing obligatory, and that in pursuance of such agreement the defendant did waive, release and quitclaim his said right of redemption to the plaintiff, is-substantially a good plea of accord and satisfaction.</p> <p>2. Same —plea of release and quitclaim in satisfaction of a debt. Where a defendant pleads a release and quitclaim of his equity of redemption in real estate to the plaintiff, and the acceptance thereof by the plaintiff as an accord and satisfaction, it is not necessary that the plea should allege that such, release and quitclaim were Under seal.</p> <p>3. Pleading and evidence —proof of accord and satisfaction under plea of non est factum or nil debet. Under the plea of non esi factum in an action of debt on a writing obligatory, the defendant will not be permitted to prove a release and quitclaim by him to the plaintiff of his equity of redemption in land bought by the plaintiff at sheriff’s sale, and the acceptance thereof' by the plaintiff in satisfaction and discharge of the debt, though he might be permitted to make such proof under the plea of nil debet.</p> <p>4. Nor can evidence of the acceptance by the plaintiff of a release and quitclaim of an equity of redemption by the plaintiff in discharge and satisfaction of his debt be introduced under a plea of the payment of several sums of' money at different times in satisfaction of the debt.</p>

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

E. S. Williams, Judge, presiding. This was a suit in chancery instituted in the court below, by Elizabeth Jenkins, for a divorce from her husband, John Jenkins. The principal ground relied upon was the alleged adultery committed by the defendant. The court granted the divorce, and the defendant appealed.

<p>1. Married women—occupying land in their own right can not he ejected on judgment against husband. "When a man dies in possession of real estate occupied by himself and family as a homestead, under claim of title, and the family continue to occupy it after his death, and the widow marries again, and her second husband resides with her and her family upon the same land, she can not be dispossessed under a writ of possession issued upon a judgment in ejectment against her second husband alone.</p> <p>2. Evidence —in forcible entry and detainer. In an action of forcible entry and detainer against a married woman, where the record of a judgment in ejectment against her husband and her expulsion from the premises thereunder was admitted in evidence, against her objection, it was held erroneous to exclude testimony tending to show that she was in possession under a homestead right in herself and children, as widow of a former husband, and independent of any right of the. husband who was the defendant in the ejectment suit in the premises.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Joseph E. Harp, 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 Cook County; the Hon. John G. Rogers, Judge, presiding.</p>

E. S. Williams, Judge, presiding. On January 18,1855, Samuel F. Smith and John E. Sutherland entered into a contract in writing, under their hands and seals, for the sale and conveyance by the former to the latter of an acre of land, described in the contract, situate in the city of Chicago, the conveyance to be made upon the payment of the purchase price, $2,000, on January 18,1873, with interest at six per cent per annum, payable semi-annually, and Sutherland agreed to pay…

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

<p>1. Administrator’s sade or read estate—can not be ordered unless all parties in interest are in court. The county court has no power to render a decree for the sale of real estate by an executor or administrator, unless all the parties interested in the real estate sought to be sold have been either served with process or have entered their appearance.</p> <p>2. Widow’s award—not conclusive as against heirs on petition to sell real estate. The order of the county court approving the estimate of the appraisers of the value of the widow’s award is not conclusive as against the heirs or devisees upon a petition by the executor or administrator to sell real estate to pay debts, but the propriety and justice of such award may be questioned by them, the same as any other claim allowed against the estate.</p> <p>3. Same-—county court may set aside, but can not modify. Whilst the county court has power, upon a petition by an administrator to sell real estate, to set aside the appraisers’ estimate of the value of the widow’s award, and refer the matter back to the same or other appraisers, it has no power to change the estimate and fix another value.</p>

<p>1. Admuusthatob —when considered discharged. "When the final report of an administrator is approved by the county court, and the estate declared settled and the administrator discharged unless cause to the contrary be shown within thirty days, and no cause is shown within the time named, the estate will be considered as settled and the administrator discharged on the day the order is made.</p> <p>2. Will—as to fund for payment of debts. A devise by a husband to his wife of his farm and all his personal estate not otherwise disposed of, to be owned and enjoyed by her during her natural life, after she has disposed of a sufficient amount to pay debts and funeral expenses, and the appointment of the wife as executor, imposes no obligation on the executor to use the rents and profits of the land for the payment of debts, but the same belong to her as devisee, subject to the duty imposed by law to sell land for payment of debts after the personal estate is exhausted.</p> <p>3. Agent—of executor not responsible to the heirs for rightful administration of estate. A party who, as the agent of an executor, taires charge and management of all the property and settlement of the estate,is not chargeable by the heirs or devisees with the responsibility of a rightful administration of the estate; that rests upon the executor, and for any misappropriation or squandering of the assets of the estate the proper recourse is against the executor and the sureties on his bond.</p> <p>4. Agent oe executor—as a purchaser. After an executor has made a final settlement and been discharged by the county court, one who has during the course of the administration of the estate acted as his agent, and had the control and management of the estate, no longer occupies such a fiduciary relation to the estate as to prevent his buying for his own account a note and mortgage executed by the testator in his life-time, and enforcing the payment thereof by foreclosure, the same as any other person might do.</p>

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

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

Josiah McRoberts, Judge, presiding. This was an action on the case, by Charles C. Smith against Michael Tearney, Peter Corbin, and Dennis Scanlan, who were commissioners of highways.

<p>1. Process — contradicting return of service. Where a constable’s return to a summons issued by a justice of the peace shows a due service on the defendant by reading the same, the law will not permit the defendant to contradict the official return, and thereby show a cause for reviewing a case by certiorari, instead of by appeal.</p> <p>2. Certiorari — excuse for not appealing. Where the officer’s return shows service of the summons issued by a justice of the peace, the defendant must be held guilty of negligence if he does not appear and defend before the justice of the peace, and can not be heard to excuse his not appealing in the ordinary way on the ground that no service was had on him in fact, and, therefore, he was ignorant of the judgment. The officer’s return is conclusive as to service.</p>

<p>1. New trial—trial without party’s presence or knowledge. In order to entitle a party to have a verdict set aside and a new trial awarded, where the trial was had in his absence, but on the regular call, he must show that he exercised proper diligence to avoid the result, and it must also affirmatively appear that injustice has been done.</p> <p>2. An affidavit for a new trial, made by an agent of a corporation defendant, that he understood certain attorneys had charge of the case taken to the circuit court by appeal, without showing how he obtained such understanding, and which fails to state he or any other agent ever spoke to the attorneys to defend, or that any preparation for trial was made, the attorneys denying that they ever were employed, fails to show diligence, or any ground for giving a new trial.</p> <p>3. Appearance—presumption in appeal case. "Where an appeal case—the appeal being perfected before the justice—is placed upon"the trial calendar in the courts of Cook county, it will be presumed that the appellee, the plaintiff, entered his appearance ten days before the term, unless the bill of exceptions, taken on a motion to set aside a verdict on an ex parte trial, shows when it was entered.</p>

<p>Appeal — dismissing for failure to justify security. "Where an appeal bond is approved by the clerk it will be presumed that the security is sufficient, and where no ground is shown therefor, as, the insufficiency of the security, it is error to require the surety to justify and to dismiss the appeal for non-compliance with such rule.</p>

Josiaii McRoberts, Judge, presiding.- Plaintiff, with her husband, came into the city of Joliet, and the carriage drawn by horses, in which they rode, was stopped in Jefferson street, when the husband got out and went into a store near at hand to make some inquiry. The place where the team was stopped was near where the owner of the adjoining premises was having an inlet sewer constructed from premises, to connect with the main sewer on Jefferson street.

<p>Appeal from the Superior Court of Cook County; the Hon. John A. Jameson, Judge, presiding.</p> <p>This is an appeal from a judgment confirming an assessment for the opening and widening of West Washington street, in Chicago, rendered by the Superior Court of Cook County, at its May term, 1877.</p> <p>The point relied on in the argument for a reversal of the judgment was the overruling, by the court below, of a motion to dismiss the proceeding on the ground that the city had no authority to interfere with the street, having previously invested the West Chicago Park Commissioners with exclusive control thereover. The facts relied upon to sustain the motion are these :</p> <p>On September 19, 1873, the West Chicago Park Commissioners adopted this resolution:</p> <p>“ The special committee to whom has been referred the communication of the president recommending the appointment of a committee to designate the streets which should be widened and improved as boulevards, from the more thickly populated park district to the parks, submitted their report, and recommended the adoption of the following resolution:</p> <p>“And whereas it is desirable to connect Central Park with other portions of the park district in which this park is located, and this board having full power and authority to make and designate the line of such connection, by virtue of section 12 of an act of the General Assembly,' entitled ‘An act in regard to the completion, improvement, and management of public parks and boulevards, and to provide a more efficient remedy for the collection of delinquent assessments,’ approved May 2d, 1873, be it</p> <p>“Resolved, That Washington street, from the Chicago and Northwestern Railroad to Central Park, be, and the same is hereby, selected and designated as a boulevard and pleasure-way, pursuant to the provisions of said section 12 ; and that such boulevard or pleasure-way shall be under the control and management of this board, the same as other grounds by them established.”</p> <p>On March 26, 1874, the common council of the city of Chicago passed an ordinance for the opening and widening of West Washington street, from the Chicago and Northwestern Railroad to Central Park, to the width of 100 feet. On April 3, 1874, the petition under which the present condemnation was had was filed.</p> <p>On June 1, 1874, the common council adopted the following ordinance:</p> <p>“Whereas, under and by virtue of an act of the General Assembly of this State, in force July 1st, 1873, the West Chicago Park Commissioners have selected and designated Division street, from Milwaukee avenue to Humboldt Park; Washington street, from the Chicago and Northwestern Railroad crossing to Central Park; Twelfth street, from Ashland avenue to Ogden avenue, and Ogden avenue, from West Twelfth street to the west line of Douglas Park, as boulevards or pleasure-ways, to connect said Humboldt, Central, and Douglas Parks with the more thickly settled portions of the park district; therefore,</p> <p>“ Be it ordained by the Common Council of the city-of Chicago, That the said West Chicago Park Commissioners be, and they are hereby, authorized to improve, control and manage the said several streets above described, the same as other public grounds by them established.”</p> <p>There was oral evidence that the Park Commissioners did some grading on the street in the autumn of 1874, and graveled it in the spring of 1875. The grading in the fall of 1874, however, was not in the way of taking possession, but after the commissioners graveled, in the spring of 1875, they put policemen on it and took charge of it.</p> <p>Meanwhile the city, notwithstanding the ordinance of the council, and the acts of the Park Commissioners, proceeded with the condemnation proceedings, and judgment was finally rendered thereon as before stated.</p>

Josiah McRoberts, Judge, presiding. This was an action of ejectment brought by Abner Foster against Henry Letz, for the south-east quarter section 6, and west one-half south-west quarter section 5, township 33 north, range 15 east of the third principal meridian, the declaration also counting on the undivided half, the undivided one-fifth, the undivided four-fifths, and undivided half of undivided half of the undivided four-fifths of the same tracts.

<p>Evidence—contract between other parties, when admissible. Where a plaintiff had been employed by a hotel company to furnish certain gas fixtures for certain rooms in a building, according to a written contract and specifications, and the defendant, having succeeded to the use of a room as lessee, employed the plaintilf to furnish fixtures of a better quality, agreeing to pay the plaintiff the difference in value between such fixtures and such as were required in the written contract with the hotel company, it was held, that the contract and specifications with the hotel company were admissible in evidence on the part of the defendant, and that it was error to refuse the same.</p>

<p>1. Forcibie detainer —proof of defendants possession. Where the vendor of real property brings forcible detainer against the purchaser to recover possession for non-compliance with the contract of sale, it will be sufficient to show that the defendant at the time the suit was brought was in possession by himself, or by others holding under him.</p> <p>2. Same •—possession by another after suit. Possession of a part of premises sought to be recovered in forcible detainer, taken after suit brought, by a railway company on a proceeding to condemn for right of way, can not in any manner affect the plaintiff’s rights, nor will the fact that the company, before suit, made a survey across the premises, as this constitutes no possession.</p> <p>3. Same —purchaser, when estopped from denying plaintiff’s right to possession. Where a defendant enters into possession of real estate under a contract of purchase, and fails to comply with such contract, he will be estopped from denying his vendor’s right to possession in forcible detainer, and the plaintiff need not prove any prior possession in himself.</p> <p>4. Same — evidence to show failure to comply with purchase. In forcible detainer by the vendor of land against his vendee to recover possession, there is no error in the admission in evidence, on the part of the plaintiff, of the written agreement to sell, and of a tender of a deed under the contract, to show that defendant had failed to comply with his agreement.</p>

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

Joseph E. Gary, Judge, presiding. In July, 1873, John A. Ellison, of the firm of Ellison & Foster, as auctioneers, sold a lot to Samuel Kerr for the sum of $550, of which sum $50 was paid in cash to the auctioneer acting, to secure the good faith of the bid.

<p>1. Tender—to discharge mortgage. At common law a tender of the debt secured by mortgage on the day it becomes due, and at the place named, is a discharge of the mortgage, hut whore the tender is made after the debt is due, it must he kept good in order to discharge the mortgage.</p> <p>2. Same—when kept good. "Where, after making a tender, the party deposited the money to his own use, and a part of the sum was drawn out, and it is not shown that other money was kept ready to supply its place when called for, it was held, that the tender was not kept good.</p>

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

<p>Corpoeatioit—remedy of member for expulsion. A court of equity will not entertain a bill by a member of a private corporation, against the corporation and its officers, to restrain them from expelling the complainant for a violation of its rules and by-laws. The remedy of such member, if any, is in a court of law.</p>

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

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

Arthur A, Smith, Judge, presiding. This was an action of replevin brought by Albert Brown against Burton Godfrey, to recover forty acres of cord, more or less, standing and growing upon a certain forty acres of land. The defendant, among other pleas, justified the taking as constable under an execution issued by a justice of the peace against George Brown and in favor of John C. Beasley, alleging that the corn was the property of George Brown, and not that of the plaintiff.

<p>1. Exemplaby damages—when proper against Corporation. A corporation may be liable to vindictive damages for tbe wrongful act of its agent, perpetrated while ostensibly discharging duties within the scope of the corporate purposes.</p> <p>2. Same—in the particular case. W here a sewing machine was sold, to be paid for in monthly installments, and a lease given and accepted providing that the vendor might without process enter and take possession of the machine for the non-payment of any installment, and the purchaser made all his payments to the agent selling the same, and afterwards the vendor, by other agents, entered the purchaser’s house in his absence, and with force and violence removed the machine against the remonstrances of his wife, and kept the same for one day, when the same was returned, the party so taking claiming that it was done under the belief that full payment had not been made, but the evidence showing notice of the facts to the vendor’s agems, it was held, that the case was one eminently proper for the imposition of exemplary damages.</p> <p>3. Any unauthorized entry into a dwelling-house, or violent or grossly offensive conduct therein by a stranger, is deserving of prompt and adequate punishment. In such a case $500 damages is not excessive.</p> <p>4. Agency—of corporation, when presumed. A person openly and notoriously exercising the functions of a particular agency of a corporation will be presumed to have sufficient authority from the corporation to so act.</p> <p>5. Same—notice to agent is same as to principal. Knowledge of the facts in a matter by an agent transacting the business, and his acts, are the knowledge and the acts of his principal.</p>

Josiah M(¿Roberts, Judge, presiding. ' This was an action instituted in the court below by Alice A. Early against Wilbur F. Storey, to recover damages for the publication of a libel in the newspaper known as The OMcago Times, of which the defendant was the proprietor. The facts upon which the questions involved depend are sufficiently set forth in the opinion of the court.

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

<p>1. Forfeiture— of contract for sale of land. A court of equity will not permit a vendor of land to declare a forfeiture of tbe contract for a failure to make a payment on tbe day of its maturity, even though time is made of the essence of the contract, in violation of his agreement to give an extension of the time of payment, without first demanding payment. It is not necessary that the agreement to extend the time of payment should be founded upon a consideration in such a case.</p> <p>2. Agency—how shown. An agency may be shown by the testimony of the agent himself, and when a party in his bill alleges one to have been his agent, and adopts bis acts as such, this, with the evidence of the agent, will be sufficient proof.</p> <p>3. Tender—sufficiency of, when refused absolutely. When a tender of money due on the purchase of land is refused on the ground of an alleged declaration of a forfeiture of the contract, and not upon the ground that it was too small, on bill for specific performance by the purchaser, the party succeeding to the vendor’s rights will not be allowed to dispute the sufficiency of the tender.</p> <p>4. Same—when sufficient to slop payment of interest. In order to release from the payment of interest on money due, the debtor must prove a strict legal tender, as well the exact amount then due as that he has kept the tender good.</p>

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

Henry Booth, Judge, presiding. This was an action of covenant, brought by Potter Palmer against John Traynor. On a trial below the plaintiff recovered judgment, from which the defendant appealed.

John Burns, Judge, presiding. This was an action of debt on the following instrument: Class 2. Age 36. No. 456. This certificate of membership witnesseth that the Illinois Masons’ Benevolent Society, in consideration of the representations made to it in the application of membership and the sum of six dollars to it in hand paid, by Albert G. Baldwin, of Minonk, Illinois, and the sum of ninet}r-five onehundroths dollars, to be paid by the said Albert Gr.

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

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

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

Hiram H. Cody, Judge, presiding. This was an action on the case, by George W. Renwick against the city of Elgin. A trial was had, resulting in a verdict and judgment of $3,000 in favor of the plaintiff. The proof showed a fall caused by stepping into a hole in the sidewalk, which injury was quite severe, and likely to prove permanent.

<p>New trial—finding from the evidence. Where questions of fact upon which the testimony is conflicting are submitted to a jury, under proper instructions from the court, their verdict must stand, unless it becomes necessary to interfere to prevent palpable injustice.</p>

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

Edwin S. Leland, Judge, presiding. Before and on June 19, 1866, Underhill, Clark, and Young, residents of Illinois, had purchased and were the owners of a large ampunt of real estate, lying on each side of the Illinois river at Marseilles, and a valuable waterpower on the Illinois river at that point.

<p>Appeal from the Circuit Court of Cook County; the Hon. W. W. Far well, Judge, presiding.</p>

In 1856, John M. Waugh was the owner of about 480 acres of land at Richland Grove, in the county of Mercer, in this State. He kept a store, and wished to build a steam flouring mill. For this purpose Benjamin T. Sisson, his son-in-law, joined him, under an agreement, by which Sis-son was to own a half interest in the mill.

<p>Writ oe Error to the Circuit Court of Cook County j the Hon. William W. Earwell, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane County; the Hon. Hiram H. Cody, Judge, presiding.</p>

<p>Appeal from the City Court of Aurora; the Hon. Frank M. Annis, Judge, presiding.</p> <p>This was a bill in equity filed by William Delius against Charles Blasey and Margaret Blasey, his wife, to foreclose a mortgage.</p>

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

<p>Appeal from tlie Circuit Court of Coolc County; the Hon. John G. Rogers, Judge, presiding.</p>

Arthur A. Smith, Judge, presiding. This was an action of assumpsit, brought by Samuel Reynolds against C. Lambert, Thomas Ferree, and Joseph H. Kirby, upon a promissory note dated March 27, 1867, for $250, payable on or before January 1, 1868, with ten per cent interest.

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

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

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

Arthur A. Smith, Judge, presiding. This was a case of the trial of the right of property, before a justice of the peace, in respect of three cribs of corn claimed by Nelson, which had been levied upon by a constable as the property of one Palmer under an execution in his hands against Palmer.

Htram H. Cody, Judge, presiding. This was a suit by the appellee against the appellant, originating before a justice of the peace. On the trial in the circuit court the plaintiff’s evidence showed an employment to teach a three months school at $25, and she to be boarded, and her discharge at the end of the first month. The plaintiff recovered judgment in the court below for $87.50. The proof showed that the plaintiff’s certificate was given without any personal examination.

<p>1. Masonic lodge—recovery back of initiation fees. A member of a Masonic lodge or other association not for profit, can not, on his expulsion, recover for the initiation fees, voluntarily paid by him, when no fraud is practiced on him. His expulsion does not work a rescission of the contract under which such fees are paid.</p> <p>2. Same — notice of inability to attend tnal. Notice by a member of a. Masonic lodge, when summoned for trial, to the master or principal officer, that he could not be present at the time and place fixed for the trial of the charges, owing to other duties as a public officer, does not of itself oust the lodge of jurisdiction to try such party on the charges at such time and place.</p>

Samuel M. Mooee, Judge, presiding. This was a bill of complaint, exhibited by W. F. Coolbaugh, J. W. Odell, and C. T. Wheeler, against Mark Kimball, acting collector of taxes of town of South Chicago, L. C. Huck, county treasurer of Cook county, and the Union National Bank, seeking to enjoin a certain proportion of their taxes levied for the year 1876, against the shares of the. capital stock of the Union National Bank owned by the complainants, the complainants tendering…

Writ oe Error to the Circuit Court of Kane County; the Hon. Hiram H. Code, Judge, presiding.

<p>1. Maotdamus—relator must show a clear right. The party seeking a writ of mandamus must show a clear right to it in his petition. If the proceeding is to enforce an apportionment and division of the school fund of a township after the division of the township, the relator must show some vested right in the fund.</p> <p>2. School iron. — apportionment on division of a township. By an act of the General Assembly the western limits of the city of Chicago were extended, west so as to take in about two ranges of sections in an adjoining township, leaving a greater portion of the township as it was previously, and containing section 16. Upon an application for a mandamus to compel an apportionment ‘between the city and the remaining portion of the township of the rents, profits, and interests arising from the 16th section, to be applied to school purposes, it was held,, the division .of the township in the manner indicated, leaving the 16th section in the western division and comprising the greater part of the township, did, ipso facto, grant to that portion of the township section 16, and ■the rents, issues, and profits thereof, to be administered by the trustees of schools of that township for their own uses and purposes.</p> <p>3. Where a township is divided, the remaining part will retain all its property, real and personal, unless a different disposition has been made by the terms of the division.</p>

<p>1. DRraroarensss — to avoid contract of party. To render a deed of a party void on the ground of drunkenness at the time lie executed the same, it must appear he was so greatly under the influence of liquor as to be incapable of knowing the effect of what he was doing.</p> <p>2. Conveyance — to take effect in futuro. Under our laws a conveyance of' real estate, not to take effect or be recorded until the death of the grantor, is-good and valid without the creation of an intermediate estate to support it, livery of seizin having been abolished.</p>