Volume 87 — Illinois Reports

Martin R. M. Wallace, Judge, presiding. This was an application, by appellant, against appellees and others, for judgment for delinquent taxes. The objectors introduced in evidence the annual appropriat.ion bill and tax levy of the village, together with the certificate of publication, as follows: “ Be it ordained by the President and Board of Trustees of the Village of Hyde Park: Section 1.

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

Arthur A. Smith, Judge, presiding. This was an action of assumpsit, brought by Kitchell & Arnold, against Timothy Moshier, to recover attorneys’ fees.

H. J. Pillsbury, Judge, presiding. This was a bill in chancery, filed by David Huling against David B. Haworth and others, to foreclose a mortgage given by Laban Haworth and Martha, his wife, to Augustus H. Wylie, dated Oct. 19, 1858, to secure the payment of two promissory notes given for the purchase money of the lands mortgaged, each for $2559, payable two and three years after date, with ten per cent interest after maturity, which said notes had been assigned by Wylie,…

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

William Brown, Judge, presiding. This was a citation, by the county court of Jo Daviess county, to Charles R. Bennett, guardian of Mary A. Hanifin, to make his final report and settlement with his ward, the citation issuing February 7, 1876.

<p>1. Practice—affidavit of claim by plaintiff. An affidavit filed by a plaintiff with his declaration, that the defendants are truly and justly indebted to him, after allowing “all claims and set-offs whatever," in the sum of, etc., is not a full and strict compliance with the statute, so as to require the defendant to file an affidavit of merits with his plea.</p> <p>2. Same—time to object. If an affidavit of claim on the part of a plaintiff is only formally defective, so that it may be cured by amendment, the defendant should object to the same in the court below, and point out the formal defects, so that the court can pass upon the same, and if he does not, the objection will not avail in this court.</p> <p>3. Bill of exceptions—as to what evidence was heard. Where the record shows that after the entry of a default, “ the court having heard the evidence, * * doth assess the plaintiff’s damages,” this will be sufficient to show the assessment of damages was upon evidence, although the bill of exceptions may state no further evidence was heard “ except such as otherwise appears of record.”</p>

Martin R. M. Wallace, Judge, presiding. This was an application for judgment for delinquent school taxes.

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

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

<p>1. (Specific performance—when offer to pay sufficient. Where the purchaser of land, under a contract for a deed, offers to pay the last of the purchase money when due, and insists on a deed, and the offer is declined by the vendor, on the ground of there being an incumbrance on the land, so that he can not give such a title as he agreed to, this will he sufficient to show a readiness and willingness of the purchaser to perform his part of the contract. In such case a formal tender is not necessary before filing bill for specific performance.</p> <p>2. Same—contract not changed by unexecuted verbal agreement. Where, under a verbal agreement for the execution of a new bond for a deed by the vendor of land, and of new notes for the unpaid price by the purchaser, of like tenor with the original ones, except as to time of performance, the old notes and bond were surrendered, but the vendor refused to carry out the verbal agreement or to give a bond for a deed, there being no rescission, in fact, of the written contract, it was held, that the old agreement remained in force, unaifected by the unexecuted verbal contract, and might be specifically enforced.</p> <p>3. Same—not against wife of vendor, where she is not a party to contract. It is erroneous, in decreeing the specific performance of a contract for the conveyance of land, to require the wife of the vendor to unite in the conveyance, and, on her failure, for the master to convey her interest in the land, where she has not signed the agreement with her husband, or otherwise contracted to convey any interest she might have in the premises.</p>

N. J. Pillsbury, Judge, presiding. This proceeding originated in the county court of LaSalle county. An appeal was taken to the circuit court of that county, and change of venue to the circuit court of Grundy, and afterwards to Livingston county, whence this appeal.

Writ of Error to the County Court of Will county; the Hon. David Willard, Judge, presiding. Held: that jurymen once deliberately accepted can not be subsequently challenged, unless it be shown the party labored under some misapprehension in accepting them; but in no case, so far -as we are informed, has it been held that a party, not having exhausted his challenges, waives his right to challenge jurors not yet called into the…

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

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, by E. F. Church, O. R. Chaffee, W. J. Ellinwood and D. F. Henry, against the First Rational Bank of Chicago, to recover the sum of $1700, paid by the bank to Ellinwood. The plaintiffs contended that there was an arrangement between the partners, and known to the bank, that Church alone was authorized to check for the money of the firm, and that Ellinwood had no authority to draw the same.

Theodore D. Murphy, Judge, presiding. This was assumpsit, by the appellee against the appellant. On the trial, the defendant offered to show that the plaintiff had made a sworn return to the assessor of the City of Chicago, for the year 1871, that his total personal property subject to taxation was $3760, which the court refused to admit, on objection. The court also allowed an amendment to the declaration, after the plaintiff’s proof closed.

<p>1. Sewerage tax—limitation as to amount. Cities under the general incorporation act, prior to the act of 1871, the former act not containing the limitation clause found in the latter as to the amount, to be raised for sewerage purposes, seem not to have been restricted in that regard, and the act of 1873 confers power to tax for such purpose, but contains no limitation clause as to amount.</p> <p>2. Taxes—notice of application—appearance. Any defect in the notice of an application for judgment against lands for taxes, or even the want of any notice, is obviated by the appearance of the tax-payer and contesting the tax on the merits.</p>

<p>Special assessment—of park commissioners—who to make return to county collector. A return of lands as delinquent for an installment of a special assessment for park purposes is properly made by the park commissioners to the county collector, notwithstanding they may have appointed a collector. The park commissioners are the corporate authorities, within the meaning of the Park act, and may properly make such return themselves.</p>

Joseph E. Gary, Judge, presiding. This was an action of debt upon the bond of an administratrix. The suit was brought in the name of the People, for the use of Frank Rhoner, Conrad Vogel and Frederick Vogel, partners, against Emily Phillips, the administratrix, and William Wisdom and Israel Tucker, her sureties. The declaration contains but a single count, in which a general non-performance of the conditions of the bond is averred, to the injury of plaintiffs.

<p>1. Trust—widow taking deed of land sold to her husband. Where a purchaser of land died without completing his payments, and afterwards the vendor, without manifesting any desire or intention to declare a forfeiture of the contract under a clause giving him such right, resold one-half of the lot to a third person, and the other half to the widow of the original purchaser, for the exact sum then due on the first contract, and the half sold to the widow was worth considerably more than the price paid by her, and she, on payment, obtained a conveyance, it was held, there was no forfeiture declared, and that she took the legal title in trust for the heirs at law of her husband.</p> <p>2. Laches—does not apply where possession is not adverse. The occupancy by a widow of lands of her deceased husband, where she has dower and homestead rights, however long continued, will not be a bar to a recovery on the part of the heir, after her death. Her possession, in such case, being consistent with the interests of the heir, laches can not be imputed to him.</p>

Writ op Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

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

Josiah McRoberts, Judge, presiding. This was a bill in chancery, brought by John I. Heath, in his lifetime, against George W. Hyde, to remove a cloud from the title of a lot in the city of Joliet, growing out of a tax deed. The opinion states all the facts necessary to an understanding of the points decided.

<p>Damages—when excessive. In this case the plaintiff recovered $4500 for the fracture of his arm by being run over by a street car, the only proof of the lasting character of the injury being that of the plaintiff and a fellow laborer, from which it was claimed he could ,not do the work of an able-bodied man: Held, that the damages were excessive.</p>

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

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

<p>1. Affidavit of merits—waiver of right to claim it as sufficient. If a defendant, on motion to strike his plea from the files for a defect in his affidavit of merits, concedes the defect by asking and obtaining time to amend the same, which is allowed on condition of his filing an affidavit showing a meritorious defense, which he neglects to do, he can not, on appeal or error, insist that his affidavit of merits was sufficient. He will be estopped to claim that the court erred in holding it bad.</p> <p>2. Practice—affidavit showing grounds of defense. Where a defendant files a proper affidavit of merits with his plea, the court has no power to require of him an affidavit setting up in detail his grounds of defense, but if such affidavit of merits is defective, and the defendant asks to amend, then the court, in its discretion, may impose terms, such as showing the grounds of defense.</p>

<p>1. Evidence—relevancy—cost of machine sold. In a suit upon a note given - for the price of a sewing machine, where the evidence was conflicting as to the issues of fact, in respect to the matter of the consideration of the note, it was held erroneous to allow the defendant to prove the wholesale cost of such a machine.</p> <p>2. Error—when obviated by instruction. An error in the admission of evidence is not obviated by an instruction to disregard such evidence, unless the case is such that it clearly appears no injustice or wrong has been done to the party complaining.</p> <p>3. Sale—right to rescind. If an old machine is sold as a new one, and the vendor agrees to substitute certain parts of the machine by others, which he fails to do, the purchaser may rescind the sale by offering to return the machine and demanding his note given for the price.</p>

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

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

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

George W. Pleasants, Judge, presiding. This was a bill in equity, filed by Frederick Stein, against Joseph C. Tilton, to enforce the specific execution of a bond of the defendant, by enjoining him from carrying on the business of a jeweller in Geneseo. The bill was filed some eight and a half years after the date of the contract sought to be enforced. The court below granted the desired relief.

Appeals from the County Court of Cook county; the Hon. Martin R. M. Wallace, Judge, presiding. These several cases arise under an application by Louis C. Huck, collector of Cook county, for judgment against certain lands and lots, for unpaid special assessments and taxes. The county court overruled the objections made, and rendered judgment against the lands.

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

<p>1. Sale—waiver by acceptance. Although a contract may be for the sale of a specific number of cattle, and embrace a warranty that they shall average so much per head, and an agreement on the part of the vendor to keep them from food and water for twelve hours before weighing, yet if the purchaser, with a knowledge of the facts, accepts a less number of cattle, not averaging the specified weight, and ships them, he will be considered as having waived a strict compliance with the contract, and will be liable to pay the contract price for as many cattle as he gets.</p> <p>2. Pleading and evidence—recovery for part. A party suing for the price of cattle sold and delivered and for hogs sold and refused to be taken, is not precluded from recovering at all if he fails to show a sale of the hogs. Under a proper state of pleading he may recover for the cattle sold and delivered.</p>

<p>1. Remedy of creditors of corporation against stockholders. Since the act of 1872, concerning corporations for pecuniary profit, took effect, a court of law has no jurisdiction of a suit by a creditor of such a corporation against a stockholder, unless his debt accrued before the act of 1872 took effect. The remedy, if any, is in equity.</p> <p>2. Constitutional law—change in remedy. The legislature had the power to repeal so much of the act of 1857, relating to private corporations, as makes the stockholders liable, personally, to creditors to the amount of their stock. There was no vested right in such provision of the law. A law changing the remedy for the collection of a debt, is not liable to any constitutional objection.</p> <p>3. Vested right—what is. A right can not be considered as vested unless it is something more than a mere expectation, and has already become a title, legal or equitable, to the present or future enforcement of a demand or a legal exemption from a demand made by another.</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 Peoria county; the Hon. J. W. Cochran, Judge, presiding.</p>

Writ of Error to the Superior Court of Cook county ; the Hon. Samuel M. Moore, Judge, presiding. This bill was to foreclose a mortgage made by Edmund D. Taylor and wife, to secure a promissory note for the sum of §10,000, bearing date March 25, 1875, payable to Edwin A. Bowen at the National Bank of Mendota, one year after date, with interest at ten per cent per annum.

Samuel M. Moore, Judge, presiding.’ This was a bill in chancery, to have set aside a trustee’s sale made under a trust deed, and to be allowed to redeem.

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

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

John G. Rogers, Judge, presiding. This was an action on the case, by John Berndt, against Duncan D. Sinclair and others. The plaintiff recovered $1346 and costs.

<p>Mistake in paying for more than was received. In the case of the sale of milk by the can, if by mistake of the parties the milk delivered is short of the quantity intended, owing to the cans not holding the amount supposed, and the vendor receives more money on that account than entitled to, he must account for the same, even though the purchaser was negligent in discovering the mistake.</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. John G. Rogers, Judge, presiding.</p>

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

<p>1. Highway—no outlet to other roads. A road laid out by commissioners, under the statute, is a public highway, even though one end of the same terminates against private land, with no outlet. The statute must control against any contrary doctrine of the common law.</p> <p>2. Same-—defense to opening. It is no defense against a proceeding by mandamus to compel the commissioners of highways to open a public road established by them, that the same will not be fit for travel until bridges are built requiring a large sum of money, and that there are no funds to build the same. The command to open does not require the road to be put in good order. The question of the utility of the road is not involved in such suit.</p> <p>3. Same—agreement not to open till damages are paid. Where the damages for right of way for a road are agreed upon, and an order given for the same, and releases executed, the land owner relying on the orders, the commissioners of highways, on mandamus against them, will not he allowed to set up a verbal agreement made by them with the owner not to open the road until the damages should be paid, as such agreement is inconsistent with the order establishing the road. Such an agreement can not rest in parol.</p> <p>4. Mandamus — commissioners of highways as a party. Commissioners of highways being a quasi corporation, the naming of the individuals composing the body in a petition for mandamus may be regarded as surplusage. The proceeding is properly brought against them as “the commissioners of highways of the town of-naming the town.</p>

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

<p>1. Exemption—when to be claimed, and its extent. The debtor is required to make the selection of the property, under the clause of the statute exempting $100 worth “ of other property,” and it must be done at the time of the levy or when he has notice of the levy.</p> <p>2. Construction of a statute—not by the jury. In an action of replevin, by an execution debtor against an officer, for a lot of corn exceeding in value $100, claimed as being exempt from levy, it is error to instruct the jury that in determining the exemption to which the plaintiff is entitled it is their duty to construe the law liberally towards the plaintiff.</p>

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

<p>1. Specific performance—contract to take back properly sold. If a party, in selling real estate in a city, guarantees that a certain street will be extended and opened through the property within two years, and agrees, if such street is not opened within that time, on a reconveyance by the purchaser, to refund the money paid for the same, with ten per cent interest, a court of equity will specifically enforce the contract against the vendor, on a tender of a proper deed to him.</p> <p>2. Contract—guaranty of opening a street. A written guaranty that a certain street shall be extended and opened through certain lands sold and conveyed, within two years, is not kept merely by the institution of proceedings to condemn the ground for the street, and the assessment of benefits, within such period, such proceedings being liable to be abandoned before the opening of the street.</p> <p>3. Chancery jurisdiction — although there he a remedy at law. A court of equity has jurisdiction to specifically enforce a contract by which the vendor of land agrees to take back the land conveyed and refund the purchase money, with interest, if a certain expected public improvement is not made within a given time, although the other, party may have a remedy at law to recover damages for a breach of the guaranty in respect to such improvement.</p>

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

<p>1. Contract—sale of drug preparation, construed. Where two persons entered into partnership for the manufacture and sale of a drug known as “Dr. Nute’s Liquid Extract CEnothera,” and, after a short time, one party sold out to the other all his interest and right in the copyrighted labels for such extract, and all printed labels, glassware and boxes, and all the crude herb for the preparation on hand, and covenanted, for the consideration of $200, not to engage in the manufacture or sale of “ said liquid extract CEnothera,” it was held, that the covenant did not prohibit the covenantor from making and selling any other preparation from the same herb, made in a different manner and possessing different qualities, and which all druggists had the right to make and sell, and that the words “ said liquid extract,” referred to the preparation known as Dr. Nute’s.</p> <p>2. Same—construction by the parties. In case of doubt as to the proper construction to be put upon a contract, the acts of the parties, showing how they understood the same, will be taken into consideration by the court, as showing what the parties really meant.</p>

<p>1. Practice—affidavits of claim and, merits apply to distress for rent. Under the revision of 1874, a proceeding by distress warrant must be regarded as a suit for rent, in which the plaintiff has the right to invoke the aid of section 37 of the Practice act; and where he files an affidavit of claim with the distress warrant, the defendant is bound to file with his pleas an affidavit of merits.</p> <p>2. Section 37 of the Practice act applies to any suit upon a contract, express or implied, for the payment of money, and embraces a proceeding by distress for rent.</p> <p>3. Same—want of copy of lease in distress for rent. The statute declaring that a distress for rent shall proceed in the same manner as an attachment, the plaintiff is not bound to file his warrant or a copy of the lease upon which the action is based, ten days before the commencement of the term, to avoid a continuance.</p>

Hon. J. W. Cochran, Judge, presiding. This was a bill in chancery, brought by Owen A. Thomas, as complainant, against Jacob Darst, Atkinson Horn, and others, as defendants. Pending the suit, Horn died, and his real estate descended to his sister, Pebecca Goldsborough, while his personal property passed to Nicholas Goldsborough, by Horn’s will, and they were then made parties in the place of Horn, so deceased.

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

Authub A. Smith, Judge, presiding. On the 11th day of January, 1869, Daniel Walker, the appellee, as principal, with one Housh as surety, made his joint and several bond to Alexander Donason, the appellant, then conservator of the estate of Nathan Barbero, in the penal sum of $1000, conditioned for the performance of the covenants in a certain lease, and such other agreements as might be made between the parties as supplemental thereto.

<p>1. Burnt record act—opening decree under. When the record shows the making and entry of a decree confirming title under the Burnt Record act, and no order setting it aside, hut a subsequent entry setting aside “ the order heretofore entered in this cause vacating or opening the said former decree,” and restoring said decree, such recital can not be held to show that the original decree ever was vacated.</p> <p>2. Same—time for opening decree. The statute expressly limits the time for opening a decree made under the Burnt Record act, to one year after its entry. The allusion in the act to sec. 15, ch. 21, of Rev. Stat., entitled “ Chancery,” has no reference to the time of filing the petition to open the decree, but to subsequent proceedings after the decree is vacated.</p> <p>3. Same—not unconstitutional. The act. known as the Burnt. Record act is not unconstitutional. It is in the nature of a limitation act, and as such, under the circumstances to meet which it was passed, it is not unreasonable in its provisions.</p> <p>4. Transcript of record must he complete. This court can not properly consider any question arising upon a record without it is full, or presents all parts or matters material to the question submitted. If the transcript is not certified to be a “ full copy of the record,” but merely of certain papers and proceedings, this court will not reverse.</p> <p>5. Writ of error—limitation. Under the Burnt Record act, a writ of error to review the decree must be sued out within one year. If a party seeks to maintain the writ, after one year, as a married woman, it must be shown she was such at the date of the decree.</p>

Joseph E. Gary, Judge, presiding. The note on which judgment was confessed in this case is as follows: “$11,000.

M. J. Pillsbury, Judge, presiding. This was an action of trespass, brought by Mary Vogel, against William Hennies and Anna Hennies; his wife. The case was in this court before, and the judgment for the plaintiffs reversed for a misjoinder of parties plaintiff. 66 111. 401. It seems the plaintiff and her daughter, and others, broke open a house of William Hennies, took possession and put out his furniture.

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

<p>1. Residence—of wife follows ilml of her husband. In law, the domicil of the husband is that of his wife, and her residence follows that of the husband,</p> <p>2. DivoadE—desertion. When a husband acquires a new home, it is the duty of his wife to go with him. and if she refuses, without justification, for two years, the husband will be entitled to a divorce.</p> <p>8. Same—condonation. In the case of condonation, there is an express or implied agreement that the party forgiving does so only on the condition that the party forgiven will not repeat the offense, but will perform all marital duties the relation imposes.</p> <p>4. Where a wife refused to go with her husband to a new home acquired by him, and, without cause or justification, deserted him for more than two years, it was held, that the husband cohabiting with her, at her brother’s house, on one occasion within the two years, when she still refused to go and live with him, did not have the effect to bar him of the right to a decree of divorce.</p> <p>5. In questions of desertion, the intentions of the person absenting himself ■ has a large, if not a controlling influence. If the party leaves with the intention of returning, and continues to provide for his wife and family, and is kept away over two years, this will bo no desertion or abandonment, within the meaning of the divorce act.</p>

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

<p>Limitation—payment of taxes. It is not sufficient, to create a har under the first section of the act of 1839, that the defendant has paid taxes for seven successive years under color of title, where the first payment of the taxes is not seven years before the commencement of the suit. v</p>

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

<p>1. Rescission of contract—written proposition accepted excludes verbal offers. A verbal proposition for the rescission of a- contract for the sale of land is superseded by a written proposal, given at the instance of the other party, which is kept, without notice of its rejection, and possession is taken under the same. The verbal propositions being excluded by the written one, can not be admitted in evidence.</p> <p>2. Contract—acceptance of proposal by acts. A party can not accept a part, only, of a written proposition for a contract, and at the same time rely on a portion of the antecedent verbal offers; and if such party acts under a written proposal, and avails himself of all the rights and privileges it confers, this will show an acceptance.</p>

Samuel M. Moore, Judge, presiding. This is a suit in chancery, by Ullmann, as complainant, against Crane and Kline, as defendants.

<p>1 New trial—finding from the evidence. Where the evidence is conflicting, it is for the jury to weigh the same and determine where the preponderance is, and their finding will not be disturbed unless manifestly against the weight of the evidence.</p> <p>2. Contract—right to abandon. If a party is prevented from completing his contract by the other party, he will have the legal right to abandon it, and sue for and recover for the labor performed under the same.</p> <p>3. Same—condition precedent to performance. Where a party agrees to do certain work, and the other party to convey to him certain lots, for the price of which, above the amount to be paid for the work, the workman agrees to execute and deliver his notes, secured by mortgage on the lots, if the owner of the lots refuses to make a deed therefor, the workman is not bound to go any further or to execute the notes and mortgage. The owner must tender a deed before he can demand the notes and mortgage.</p> <p>4. Practice—instruction—to find for defendant. Where there is evidence tending to establish a plaintiff’s right to recover, it is an invasion of the province of the jury to instruct them to find for the defendant.</p>

William W. Farwell, Judge, presiding. This was a bill filed by the appellees, “ The Board of Commissioners of Cook County,” to compel Thomas B. Bryan, as trustee under the will of Jonathan Burr, deceased, to convey to appellees a certain bequest, and the appellants, trustees of the Northern Illinois Hospital and Asylum for the Insane, located at Elgin in this State, resist the same on behalf of that institution, claiming that it is entitled to the bequest.

<p>Dissolution of partnership—notice. The duty of a retiring dormant partner to give notice of the dissolution of the partnership, is a duty which he owes to those who, before that time, had some knowledge of his connection with the firm. To strangers, having no such knowledge, he owes no such duty. As to them he can only be charged as a partner, when' in fact he was not, by showing that he, in some way, misled them, as, that he held himself out to the world as such, or that he so held himself out to them.* </p>

<p>Trust—when, created. Where, by consent of his creditors, a failing debtor was allowed to continue Ms business, under the supervision of a committee of the creditors, for a limited time, and a cashier or clerk was 'also appointed to receive and pay out money, the business to be done in the debtor’s name, as before, until the state of Ms affairs could be ascertained, and the property of the debtor never came into the possession of the committee, who merely acted in an advisory manner', and the cashier as a clerk, it was held, that the committee and cashier were not trustees as to the property of the debtor for the benefit of creditors, and consequently were not liable to such creditors.</p>

<p>Contract—procured by fraud and collusion. Where a husband, by fraud, collusion and artifice on his part, and others assisting him, procured a conveyance of his wife’s property to one of his confederates, and the execution of an agreement in relation thereto, and for other purposes, with the intention of discarding her and possessing himself of her property, it was held, that a court of equity would not assist him in enforcing the agreement, or obviating a defect in Ms title caused by the mutilation of the deed he had thus obtained.</p>

W. W. Faravell, Judge, presiding. This was a bill in chancery, brought by Daniel W. Turner against Charles H. Taylor and E. S. Trotter, to recover the proceeds of the sale of certain wheat sold by Taylor, as a commission merchant; the bill alleging “that he took the same in trust, and holds the proceeds as trustee. On hearing, upon proofs, there Avas a decree of recovery in favor of the complainant, and the defendant Taylor appealed.

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

<p>1. Stockholder of bank—liability to creditors of the bank—when suit must be brought. Under the charter of the Bank of Chicago, which provided, “ each stockholder shall be liable to double the amount of stock held or owned by him, and for three months after giving notice of transfer,” etc., it was held, that a stockholder assumed a primary liability to creditors of the bank to an amount double his stock, and not a secondary one; and having incurred such liability he was not released therefrom by his not being sued within three months after a transfer of his stock.</p> <p>2. The fair and reasonable construction of such clause in the charter is, that a stockholder is liable for debts incurred while a member, and, also, for such debts as the bank should contract for and during the ensuing three months after giving notice of a transfer of his stock. The clause does not relate to the time in which suit must be brought to enforce his liability.* </p>

<p>1. Appeal—what questions presented by. On appeal from an order of the circuit court approving an administrator’s sale of land, no question can be raised as to the legality of the appointment of the administrator, or the propriety and legality of the decree ordering the sale, or the justice and legality of the debts allowed against the estate. This court can consider, on such appeal, only what was proper to he considered by the circuit court on the motion to approve the sale.</p> <p>2. Judicial sale—motion to approve. On motion to approve an administrator’s sale, and report thereof, the court can not go behind the order of sale, or even revise that order. The matters before the court, on such motion, must relate solely to what transpires in the attempt to execute the order and make the sale.</p> <p>3. Same—requiring a deposit from Udder. Where a sale of land is ordered to be made by an administrator, for cash, and a report thereof to be made, a demand of a deposit of one-fourth the price bid, as a guaranty, to consummate the sale on its approval, is but a reasonable precaution, and is no ground for setting the sale aside.</p> <p>4. Same—inadequacy of price. The fact that real estate sold at administrator’s sale, for cash, brings less than its real value, is not, of itself, sufficient ground to set aside the sale, especially when no guaranty or assurance is given of a higher price if resold.</p>

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

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

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

<p>1. Boundary—whether conveyance of lot on street carries any interest therein. Notwithstanding the general presumption that a conveyance of land bounded on a street or highway carries the fee in the street or highway to the center thereof, the owner may convey the adjoining land without the soil under the street or highway. It is but a presumption, that may be rebutted by circumstances inconsistent with it. If it does pass by a deed, it does so as a parcel of the land and not as an appurtenant.</p> <p>2. Where a lot on a street is conveyed, and the same is described as “ beginning at a point on the east line of” the lot, which is given by number, “ one hundred and forty feet from the north-east corner of said lot, running thence south along the line of said lot to the alley, thence west seventy-two feet, thence north forty feet, more or less, to a point, and west of the point of beginning, thence east to the place of beginning,” the fixing the boundary in such strict terms necessarily excludes any presumption of intention to pass any interest in the soil.</p> <p>3. Use or street under municipal direction — injury to adjacent owners. The fee of the soil in the streets in the original town of Chicago, laid off by the canal commissioners under the provisions of law, is either in the State or in the city, for the use of the public generally, and it was competent for the city, under legislative authority of the State, to construct a tunnel in one of the streets, and if done in a proper manner, and without unreasonable delay, no action lies against the city in favor of an adjoining lot owner, whose property has received no physical injury.</p> <p>4. From the well established policy of the State legislature to vest the fee of the streets in the various municipal authorities, it would require clear and satisfactory proof that the State intended to vest a private ownership in the streets in cities and towns laid out by it. If the fee is in the corporation, it is only as an agency, and is at all times subject to legislative control.</p> <p>5. Where the fee in the streets of a city is in the municipality or in the State, and not in an adjoining lot owner, the city is not liable, under the old constitution, to such owner for damages claimed on account of constructing a tunnel in the street in front of his property, when the work is properly planned and executed, under the sanation of law, and no physical injury is done to his property, and there is enough of the street left for passage and ordinary travel.</p> <p>6. Town plat—in addition by State need not be acknowledged topase fee in street. The act of 1833, in relation to the laying out of towns, or additions thereto, and requiring the same to be acknowledged, etc., under severe penalties, does not apply to cases where the State lays out a town, etc., on lands to which it holds the legal title. The State, in her sovereign capacity, may properly lay out a town without regard to the law prescribed for others.</p> <p>7. Constitution—to be construed as acting prospectively. The rule of construction is, that a constitution, unless it is clearly otherwise expressed in the instrument, can operate only prospectively, leaving all past transactions unaffected by its provisions. The present constitution expressly saves, preserves and continues all prior rights, etc., as they were before its adoption.</p> <p>8. Same—clause giving compensation for damage to private property, prospective. The clause of the constitution of 1870, which provides that private property shall not be taken or damaged for public use without just compensation, does not profess to be retroactive, and but simply to take effect with the remaining clauses. Therefore, when a public improvement in a street was contracted for, the work commenced and mostly completed when the constitution took effect, but completed afterwards, it was held, as to an adjoining lot owner, whose lot was not taken, the rights of the parties could not be affected by the constitutional provision.</p>

George W. Pleasants, Judge, presiding. This was an action of ejectment, wherein a sale of real estate under a decree of the county court was sought to he declared void for want of jurisdiction.

W. W. Farwell, Judge, presiding. The appellant, Amarilla B. Mulvey, on April 9, 1874, filed a petition under the Burnt Record act, Rev. Stat. 1874, p. 838, against the appellees, to establish title to the premises described in the petition, being part of the north half of the north half of the north-west quarter of the north-west quarter of section 15, town 38 north, range 14 east, in Cook county, in this State, situate about six miles south from the court house in the city…

Martin E. M. Wallace, Judge, presiding. This was an application, by the treasurer and ex oficio collector of revenue of Cook county, made at the July term, 1876, of the county court, for judgment for taxes against lands and lots alleged to be delinquent for the year 1875, and for back taxes and forfeitures to the State, together with interest and costs due and unpaid thereon.

<p>1. Continuance—affidavit must show diligence. An affidavit for a continuance, which fails to show diligence in attempting to obtain the desired testimony, is insufficient.</p> <p>2. Error—should he assigned. If a party desires to urge the refusal of the court to grant a continuance, he should assign the same for error.</p>

Martin R. M. Wallace, Judge, presiding. This was an application by Louis C. Huck, as collector of Cook county, for judgment against certain lands. The court below sustained certain objections made by the appellees. Evidence was heard by the court below in support of the objections, and it does not appear that any question was made in the court below as to the objector’s right to resist the application.

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

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

<p>Writ of Error to the Superior Court of Cook county; the Hon. Samuel M. Moore, Judge, presiding.</p>

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

<p>1. Nuisance—when equity will enjoin before a trial at lam. A court of equity may interfere, by injunction, to abate a nuisance, before the fact of the business being a nuisance is established at law, where there is danger of irreparable loss, or material injury being done, before a trial at law can be had, as, where a slaughter house is erected near the dwelling house of another, and the business creates an offensive and unwholesome stench, and is likely to produce sickness or disease.</p> <p>2. Same—acquittal on indictment no bar to equitable relief. The trial and acquittal of one indicted for a nuisance will not deprive a court of equity of jurisdiction to enjoin the carrying on of a slaughter house in such a manner as to become a private nuisance. The fact that the statute gives a remedy by indictment, does not deprive the court of its equitable jurisdiction.</p> <p>3. Same—of the decree. On bill to enjoin a nuisance near a private residence, arising from the manner in which a slaughter house and the business therein was carried on, the decree restrained the defendant from conducting his business in such a manner as to be offensive and injurious to the complainant and his family in the occupation of his premises, leaving the right to carry on the business in a proper manner, and was held to be subject to no just objection.</p>

<p>1. New trial—on the evidence. Under our system of practice, this court will not reverse a judgment and set aside a verdict unless compelled from the want of evidence or its too manifest weakness and insufficiency, to sustain the finding. Even if the evidence is slight, it will not require a "reversal. This court will not lightly disturb the finding of a jury, whose province it is to find facts, when the judge trying the case approves of the verdict by refusing a new trial.</p> <p>2. Negligence—collision at road crossing. Where a person, while attempting to cross a railroad track with his team at a regular highway crossing, was struck by an approaching engine and killed, and it appeared that the company allowed the sight along its track to be obstructed by a house, brush and weeds upon its right of way, and failed to give the statutory signals on the train approaching the crossing until it was too late to avail, and the train was running at unusual speed to make up time, it being behind time, it was held, that the negligence of the company was gross, and even if deceased was guilty of negligence in failing to listen or look for a train out of its time, such negligence was slight, and the company was liable to an action by the representative of the deceased.</p> <p>3. Res adjudicata—-former decisions by this court. The reversal of a judgment by this court, and awarding a new trial, can not be pleaded in bar of a second recovery. The principles of law announced by this court upon a certain state of facts, in reversing, are not binding except upon the same state of facts. Upon substantially the same facts, this court would be bound to reapply the same principles and legal rules, or overrule the former opinion.</p> <p>4. Practice in Supreme Court—can not look to evidence not presented in the court below. This court is required to try a case brought before it, on the record presented in the particular case, and can not look to the transcript of the record in a former case between the same parties on a former appeal, to determine questions of fact.</p> <p>5. Evidence—whether negative. Where witnesses near by a passing train, with their attention directed to the fact, testify, positively, that no bell was rung or whistle sounded until the instant of a collision, their evidence is not negative in its character.</p> <p>6. Railroad—relative rights and duties at highway crossing. If a railroad crosses a common road on the same level, those traveling on either have a legal right, to pass over the point of crossing, and to require due care of those traveling on the other to avoid a collision. While a passing train, from its force and momentum, will have the preference in crossing first, yet. it is bound to give due warning, so a person with his wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way, and such warning must be reasonable and timely. Its speed should not be so great at such a crossing as to render unavailing the warning of its bell or whistle.</p>

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

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

<p>1. Chancery—relief against ¿judgment at law. The mere fact that a judgment by default in an action of trespass is for a sum much greater than it ought to have been is not, of itself, evidence of fraud on the part of the plaintiff, and the plaintiff in such judgment is not responsible for errors on the assessment of damages, so as to justify a court of equity in setting aside the judgment.</p> <p>2. It is not enough that a judgment at law is unjust to entitle the defendant to relief in equity, but it must also have been obtained without negligence on his part.</p> <p>3. Any fact which proves it to be against conscience to execute the judgment, of which the injured party could not have availed himself at law, or of which he might have availed himself, but was prevented by fraud, or accident, unmixed with fraud or negligence in himself or his agent, will authorize a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judgment.</p> <p>4. The statement of a third party to a defendant in a suit, that he had arranged the matter with the plaintiff, is no sufficient excuse for not looking after the matter and making a defense at law, and a failure to make such defense, or to attend upon the assessment of damages after being notified of the taking of a default, is such inexcusable negligence as to prevent the interference of a court of equity.</p>

<p>1. Parol evidence—to contradict written agreement. The general rule is well established that antecedent or contemporaneous parol agreements or declarations can not be received to contradict or vary the terms of a valid written agreement; but this does not forbid the contradiction of mere recitals as to the consideration of a deed by parol, where the party is not on other principles estopped to deny such recitals.</p> <p>2. This rule does not prohibit the establishment by parol of an agreement for the sale of land, although a deed and notes may have been executed in part performance of such parol agreement. In such case the parol agreement remains in full force, and may be proved by parol, unless the proof varies or modifies the terms and legal effect of the writings.</p> <p>3. Where a tract of land was sold as containing 140 acres, at a given sum per acre, and a deed made conveying the same, and the purchaser gave his note, secured by deed of trust, for the unpaid price, it being verbally agreed, before the execution of the writings, that if the land, on a survey, should contain more than 140 acres, the purchaser should pay for such excess, and if it fell short the seller should pay for the deficit at the same price per acre for which the land was sold, it was held, that a recovery could be had for any excess in the number of acres in the land, and that parol evidence of the contract was admissible.</p>

Arthur A. Smith, Judge, presiding. This was a proceeding on the equity side of the Knox circuit court, by bill exhibited by Horace L. Sage, complainant, and against Robert McCornack, defendant.

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

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

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

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

J. W. Cochran, Judge, presiding. On the 23d day of November, 1868, John Ballinger and wife made their deed of trust of eight hundred acres of land, in Livingston county, in this State, to Benjamin L. T. Bourland, to secure the payment of $17,000, borrowed money, to the iEtna Life Insurance Company, at Hartford, Conn., on the 1st day of January, 1874, with ten per cent per annum interest, payable on the 1st day of January in each year.

<p>Writ of Error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.</p>

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

Joseph E. Gary, Judge, presiding. This was an action against the Lake Shore and Michigan Southern Railroad Company, to recover damages for injuries received from being run over by a train of the defendant. There was a verdict for the plaintiff for $10,000, a remittitur by him of $5000, and judgment for the residue, from which defendant appeals.

<p>1. Mortgage—sale under—transfer of bid. It is often the case, a bidder at a public sale transfers Ms bid to another, and directs the deed to be made to such person, and if there be no fraud in the transaction, and no loss to the mortgagor thereby, there can be no objection. But if objectionable, it can not be set up in an action of ejectment against remote purchasers without notice.</p> <p>2. Same—sale on credit when sale for cash is required. Where, by the terms of a power in a mortgage, or trust deed, a sale of the premises is authorized to be made for cash, and it is made on a credit, the purchaser will become a party to the violation of the condition upon which the sale alone can be made, and being chargeable with notice, he can not, in equity, evade the effect of the irregularity, but the rule is different as to a remote purchaser without notice. He is not chargeable with notice of defects and irregularities attending the sale under the mortgage. Even if such purchaser had notice of the fact, it would not render the sale void, but only voidable.</p> <p>3. Same—sale for the benefit of mortgagee selling. Although a sale under a power in a mortgage is made for the benefit of the mortgagee, his deed through his attorney will vest the legal title in the grantee.</p> <p>4. Same—mortgagee lakes legal title. The mortgagee of land is held, in a court of law, as 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>5. Ejectment—only legal titles can be noticed. Legal titles must prevail in an action of ejectment. A legal title acquired by a sale under a power in a mortgage or trust deed, can not be defeated in a court of law because the sale was made on credit, instead of for cash, or because made for the benefit of the mortgagee or trustee, but a court of chancery must be invoked. The deed is not void, but voidable only, and that only in a court of chancery.</p> <p>6. Same—recovery of dower in land sold under mortgage. Where the wife joins with her husband in the execution of a mortgage containing a power of sale, duly acknowledged by her, in which she releases her dower, and the land is sold under the power, and a deed made to the purchaser, passing the legal title, she can not recover her dower in the land in an action of ejectment. If the sale is not void, but voidable only, she must resort to equity, and even then it seems she will have to redeem her third.</p> <p>7. Same—restoring defendant's possession. If a defendant has been turned out of possession under an erroneous judgment in ejectment against him, which is afterwards reversed, the circuit court may enter such order, on the case being remanded, as may be necessary to restore him to the possession.</p>

<p>Negligence — in leaving a sidewalk unsafe. Where city authorities suffered a sidewalk upon a frequented street, built some four feet above the ground, to become dilapidated and out of repair for a considerable time, and the stringers upon which the boards were nailed were rotten, so as not to hold the nails, and the boards loose, making the walk dangerous, and they, after notice of its unsafe condition, did not repair the same, so as to make it safe, and the plaintiff, while passing over the same with her child in her arms, stepped upon a short board, which gave way, causing her to fall upon her back, whereby she received an irreparable injury, and no want of prudence being attributable to her, it was held, that her right of recovery against the city, for the injury, was clear.</p>

Henry Booth, Judge, presiding. This was an action, originating before a justice of the peace, and taken by appeal to the circuit court, wherein the appellee was plaintiff* and the appellant, defendant. The defendant was captain of a steamboat which gave an excursion trip from Chicago to Highland Park for the Young Men’s Christian Association, where there was to be a picnic.

Joseph E. Gary, Judge, presiding. This is an action, brought by appellee against appellant, for a breach of warranty in the sale of 200 barrels of mess pork, made by appellant to appellee in October, 1874. Appellee recovered judgment for damages in the Superior Court of Cook county, and defendant appeals to this court.

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

<p>1. Specific performance—sufficiency of contract. Where the complainant agreed for the purchase of a piece of land with one who only held a bond for a deed of this and other lands, the deed to be made upon full payment by him, if the defendant, the original vendor, would make a deed to him for such part, and the latter told complainant to make the purchase, and, on payment to his vendee of the purchase money within one year, he would make him a warranty deed, on the faith of which he bought and paid for the land, took immediate possession and made valuable improvements thereon, it was held, that complainant was entitled to a specific performance of the contract on the part of the defendant, and that the contract was sufficiently definite in its terms, and that the case was not affected by the Statute of Frauds.</p> <p>2. Consideration—payment of money to another. Where the defendant, who had given a bond for a deed to a purchaser of land, to be made upon payment of the price, agreed with the complainant to convey to him a small portion of the land, severed from the main body by a railroad, upon his paying his vendee the price of $10 per acre for the same in one year, it was held, that the payment of such price to the intermediate vendee was a sufficient consideration to support the defendant’s agreement to convey, whether the defendant ever received the money paid or not.</p>

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

<p>1. Possession—what necessary to constitute. It is not necessary that land should be inclosed with a fence, or that a house should be erected upon it, or that it should be reduced to cultivation, to constitute possession of it. Such improvements or acts of dominion over the land, as will indicate to persons residing in the immediate neighborhood who has the exclusive control and management of the land, will be sufficient to constitute possession.</p> <p>2. Same—what is, of Umber land. If the land is a timber lot, and it is controlled and used to supply a farm in the neighborhood with fuel or rails or posts, this will constitute possession, although the land does not join the farm, and is not inclosed.</p> <p>3. Where land is appropriated to such use as it is naturally fitted for, and the manner in which it is used by the person claiming title is such as to notify the public that the owner has asserted dominion over it, such acts will constitute possession.</p> <p>4. Ejectment—title under limitation law. Where the plaintiff and those under whom he claims have had possession of a tract of land under claim and color of title, and paid all taxes assessed thereon for seven successive years, before the entry of the defendant thereon, the plaintiff can maintain ejectment to regain his possession under his title thus acquired.</p>

<p>1. Town meeting—power to vote tax to create sinking fund. Where bonds are issued, which are a town charge, to be paid by taxation, the electors, at a town meeting, have legal authority to vote taxes in advance, to meet their prompt payment, and how long in advance may be safely left to be determined by a vote of the electors of the town.</p> <p>2. Taxes—town-taxes voted need not be specifically itemized. Where the. electors of a town, at an annual town meeting, voted §25,000 of taxes to be levied for various named purposes, “and such other expenses as the town may have to defray for the year 1873, as well as previous indebtedness,” it was objected that there was a want of definiteness as to the objects for which the money was to be raised, but it was held, that the law did not require an itemization of the purposes of a tax voted in a town meeting. The only instance in which the details of the town charges are to be preserved, is in the report of the town auditors.</p> <p>3. Same—park lax. Park taxes or park and boulevard taxes levied in the town of West Chicago, are not illegal because a portion of the boulevards are situate in an adjoining town.</p> <p>4. Same—back taxes, and valuation for such years. The statute gives express authority to include in an application for judgment against lands for the taxes of the current year, those of previous years on lands forfeited to the State, and the law does not require that the delinquent list, in such a ease, shall show the valuation of the lands for the prior years, nor the amount of each kind of tax levied for such years. As to the back taxes, all that is required to be placed on the tax books is the amount due.</p> <p>5. Same—equalization by county board. Where the county board of Cook county referred the matter of equalization of the valuation of property for taxation to its committee of equalization on the second Monday in July, 1873, who made their report on August 22, 1873, at an adjourned meeting, and the report was unanimously concurred in by the board, it was held, that the equalization was made at the time, in the manner and by the persons required by law.</p> <p>6. Same—return of assessment after required time, does not vitiate. Under sec. 280 of the Revenue law, a failure to complete an assessment, or to return the same in the time required by the act, does not vitiate the same, but it must be held as legal and valid as if completed in time.</p>

<p>1. Dedication—may be for various purposes. Property may be dedicated to the public for a great variety of purposes. It may be for the purposes of a street, for pleasure grounds, for burial purposes, or for the location of water works.</p> <p>2. Same—person buying lot takes subject to. Where a person buys a city lot bordering upon a tract of land set apart or dedicated to any public use, he takes it subject to all the annoyances incident to the use of the property for the purpose of the dedication, no matter how disagreeable they may be.</p> <p>3. Municipal corporation—when liable for using street for a water tank. The erection of a water tank in the center of a street, occupying one-half of the width thereof, and the erection and operation of a steam engine in connection therewith, even for the purpose of supplying the city and its residents with water, is not an use for which the street can appropriately be put, and the owner of a lot adjoining does not take subject to any such easement, and may maintain an action to recover for any damages done to his property in consequence of such erection.</p> <p>4. Remedy—when by indictment, and when by civil action. Where the sole cause of complaint is, that an unauthorized erection in a street causes an obstruction of the highway, the remedy is by indictment for the nuisance, but when special damage is sustained in consequence thereof, the injured party’s remedy is by civil action.</p> <p>5. Evidence—of title. Proof of possession claiming title in fee is prima facie evidence of such title.</p> <p>6. Execution—against city, is error. Under our laws no execution can lawfully be issued against the property of a city. In rendering judgment against a city it is error to award an execution.</p>

Erastus S. Williams, Judge, presiding. This was a bill, filed by the complainants to compel the county of Cook, through the defendants, its board of commissioners, to deliver to the complainants bonds of Cook county to the amount of $158,750, in pursuance of what they claim to have been a purchase by Cook county from them of certain property, situated in the city of Chicago, designed for hospital purposes.

Martin E. M. Wallace, Judge, presiding. Application was made, in the court below, by the county collector of Cook county, for judgment against certain real estate, owned by different persons, for unpaid taxes for the year 1875 and prior years. Various objections were interposed by the owners, which were overruled by the court, and judgment was entered.

<p>1. Recording law—deed filed for record and withdrawn, affords no notice. Where a party presents a deed of trust to the recorder, who indorses it as “ filed for record,” and the party immediately, and before any entry is made in relation thereto, withdraws it for the alleged purpose of having a government stamp placed on it, and it is not returned for record for more than a month afterwards, the first filing is not sufficient to give constructive notice of the existence of the deed.</p> <p>2. An instrument, to become constructive notice, must, in good faith, be filed for record and left with the proper officer for that purpose. His file-mark is not, in and of itself, constructive notice, but evidence only that the proper steps have been taken to give constructive notice, which may be shown to have been indorsed through fraud or mistake.</p> <p>3. Evidence—to prove existence of a record. The existence of a record can not be proved by merely balancing probabilities. 'If in existence, it proves itself, and if not to be found, the presumption is, it never existed, and those who affirm its prior existence must show clearly and satisfactorily that fact.</p> <p>4. Attachment—when no lien against rights of others. Where no certificate of the levy of an attachment upon real estate is filed, the attachment and levy will create no lien as against bona fide creditors and purchasers of the debtor without notice.</p> <p>5. Consideration—-forbearance and extension of time of payment. The forbearance of a creditor, and his extension of the time of payment of the debt, constitute a sufficient consideration to support an assignment of notes secured by deed of trust to the creditor by a member of the firm indebted.</p> <p>6. Promissory note—indorsee taking as collateral security, is protected. A creditor who takes a promissory note indorsed to him before its maturity, either in payment of his debt, or as a security for his debt, will be protected, and will hold the same free from latent defenses on the part of the maker.</p> <p>7. Same—subsequent notice does not affect rights of indorsee. Where a party takes a note by assignment before its maturity, which is secured by deed of trust on real estate, and without notice of any defense or equity, the assignment will carry with it the security, and his rights will be fixed, and can not be affected by any subsequent notice or information.</p> <p>8. Witness—credibility. Where a party, who had indorsed notes secured by trust deed, to Ms creditor as collateral security, testified that the agent of the creditor, before the transfer, informed him that the property in the trust deed had been attached; that he, the witness, was afraid the agent would get a dispatch showing the property attached, before he could get him to take the notes, and that he then informed the agent of the fact he was anxious to conceal, it was held, that the witness’ testimony, even uncontradicted, was so absurd as not to be relied on.</p> <p>9. Fraudulent conveyance—notice of fad to two opposing claimants. Where a person, making a loan to another, has knowledge that the property of the latter is in the name of his brother-in-law, to defraud creditors, he is in no better position than a creditor of the same party who takes from him, by assignment, notes given by the brother-in-law secured by a deed of trust upon such property, who also has notice of the fact that the property was kept in the name of the brother-in-law, to defraud creditors, in a contest between the two creditors as to their right to hold such property in payment of their several debts.</p> <p>10. National banks—right to take real estate security. The prohibition in the laws of Congress against national banks taking security for loans on real estate, does not extend to mortgages made in good faith by way of security for debts previously contracted, and they may take the assignment of notes secured by trust deed on real estate as collateral security for pre-existing debts due them.</p> <p>11. Deed of trust-—giving new notes does not discharge. Where a member of a firm which was indebted to a bank, took up the indebtedness of the firm by giving his individual notes in its stead, with the express agreement that the notes and deed of trust of such member, then held by the bank as collateral security for the indebtedness of the firm, should remain, and be held as collateral security for the payment, of such member’s note, it was held, that this did not discharge the lien of the deed of trust.</p> <p>12. Subrogation—to rights of prior incumbrances paid. Where a party, secured in his debt by deed of trust upon real estate, advances money to discharge prior liens on the same property, to protect his own security, he will be entitled to be subrogated to the rights of the holders of the prior liens, notwithstanding he may have taken a deed of trust on the same property from the debtor to secure such advances, especially when such trust deed is released.</p> <p>13. Merger—when incumbrance is kepi alive. Where a greater and a less estate meet in the same person, a merger does not necessarily take place, and although a deed may be accepted as a foreclosure of a .prior mortgage, yet, if the interest of the parties require that the mortgage should be kept alive, equity will so regard it, and not allow a right acquired under a junior lien to cut off rights under a senior mortgage.</p>

Cyrus Epler, Judge, presiding. This was a suit brought by the Cass County Bank against Frank Lohman, upon a promissory note. The note and indorsement were as follows: “ $65.00. Ashland, Ill., May 4, 1875. Three months after date, I promise to pay Charles Clark, or order, sixty-five dollars, for value received. Frank Lohman.” “ I assign the within note to Cass County Bank.

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