Volume 91 — Illinois Reports

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

<p>1. Practice in the Supreme Court—review of fads an appeal from an appellaie court. The Supreme Court can not review the findings upon the facts on an appeal from an Appellate Court, except in the cases enumerated in the 88th section of the Practice act,—that is, in criminal cases, and cases in which a franchise or a freehold, or the validity of a statute is involved.</p> <p>2. Agency—declaration of agent as binding on his principal. Declarations made by one after he has ceased to act as agent can not bind his principal, and are not admissible in evidence.</p> <p>3. A principal will be bound by the statements of his agent whilst acting within the scope of his authority, when made in reference to the business of the agency, and if made immediately after the transaction, they may be admitted in evidence as a part of the res gesta.</p> <p>4. Same—and herein, when an agency terminates. Where an agent is employed to secure a debt of his principal, which he does by taking the indorsement of notes by the debtor to his principal, his agency does not cease while he still holds the notes and his acts have not been approved by his principal. Until such notes are accepted by the principal, the agent’s declarations are admissible in evidence against the principal.</p> <p>5. Bun or exceptions—when necessary. Where the record fails to show the instructions given for a party, it can not be determined that there was error in refusing others. Error will not be presumed, but it must be shown by the record.</p> <p>6. Indorsement—whether as indorser or as guarantor. Where the payee indorses a note in blank, the legal presumption is, that he assumes only the liability of an assignor, and to rebut this presumption it must be clearly shown that he agreed to guaranty its payment at the time he indorsed the same. If one, not the payee, indorses the note at its execution, he will be presumed to do so as guarantor, and so of a person having no interest in the note as payee or indorsee. But such presumption may be rebutted.</p>

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

<p>1. Bill of exceptions—when necessary. Where there is no bill of exceptions, the Supreme Court can not inquire into the sufficiency of the evidence to sustain the finding, nor to the correctness of the ruling in refusing a new trial.</p> <p>2. Affidavit of claim—not open to contest after default. Where a defendant makes default, he waives all objection that might have been urged to the affidavit of claim filed with the declaration. It matters not how deficient it may be, after default.</p> <p>3. Variance—joint and several note described as jointly made. In a suit upon a promissory note which read, “I promise to pay,” etc., and signed by two persons, the note was described in the declaration as having been made jointly by the defendants: Held, the note was joint and several, and hence there was no material variance between the count and the note.</p>

<p>1. Creditor’s bill—judgment must be a lien, to avoid fraudulent conveyance. The issuing of an execution upon a judgment within one year after its rendition, is indispensable to the right of the creditor to maintain a bill to set aside a fraudulent conveyance of land, and subject the same to sale in payment of the judgment. Without this the judgment is no lien on real estate,— and a lien is essential to the right to maintain the bill.</p> <p>2. Evidence—to prove judgment. The record of the court, if in existence, is the only competent evidence to establish the fact of the recovery of a judgment, and secondary evidence is not admissible until the destruction of the record is shown.</p> <p>3. Secondary evidence—proof of destruction of original evidence. The loose statement of a party that he had heard the records of a court were destroyed, or, had read it in a newspaper, is not sufficient to admit secondary evidence of a judgment. If the records have been destroyed, the fact may be proved by any person who knows the fact.</p> <p>4. Execution—after seven years. An execution issued on a judgment after seven years from its rendition and levied on land, where no execution has been issued within a year, is unauthorized, unless the judgment has been revived by scire facias, and such execution may be avoided, and the certificate of levy under it will form no basis for a lien under such judgment.* </p> <p>5. Same—levy when no lien. The lien of a levy where an execution issues to a foreign county and is levied on land, will not continue beyond seven years from the last day of the term of the court at which the judgment was recovered.</p>

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

<p>1. Contributory negligence—walking upon railway track without clue caution. The walking upon the track of a railroad without looking in both directions to discover approaching engines or trains, when the exercise of such precaution would discover the same, is such negligence as will preclude a recovery, unless the injury be willfully or wantonly inflicted by the railroad company.</p> <p>2. Where a person got in close proximity to a side track of a railroad, and was walking along the same when he was struck by a yard engine and killed, and it appeared he was well acquainted with the locality, and placed himself in this dangerous position when the approaching engine was very near to him, without looking back to see if any engine was on the track, and that the engine was too close to him when he got near the track to be stopped, it was held, that his negligence was so great as to preclude any recovery against the company by his personal representative.</p>

<p>1. Instruction—should not assume facts not proved. An instruction should not assume an important fact in the case of which there is no evidence.</p> <p>2. Negligence — in city railway while passengers are getting off. When a city railway car. stops at a place where the conductor makes his report and waits for the return of the car, and a passenger attempts to get off without notice of such intention, and it does not appear that such place is one where passengers usually get on and off, or that those in charge know that persons are actually getting off, and they start the car, whereby a passenger is thrown and injured, the railway company will not be chargeable with negligence in starting the car forward. The passenger, before attempting to get off, should know that the stoppage is for the purpose of letting persons get off, or make his intention to get off known.</p> <p>3. Sanity—presumed. The legal presumption is, that all persons of mature age are of sane memory, but after inquest found the presumption is the reverse until it is rebutted.</p> <p>4. Mental capacity—burden of proof. If a party not insane seeks to avoid a release given by her while her mental faculties were temporarily impaired, the burden of proof is upon her to show the mental incapacity, and not upon the other party to show her mind was not impaired.</p>

<p>1. Corporation—estoppel of stockholder from, denying his liability under unconstitutional charier. Although a provision in a charter of a corporation giving banking privileges may be unconstitutional, still, if a stockholder has acted under it, and thereby induced or contributed to the loss of a creditor of the corporation, such stockholder will be estopped from denying his individual liability under the charter.</p> <p>2. Same —amendment of charter as affecting liability of stockholder. Where a stockholder in a corporation with banking powers is conversant with its affairs, and makes no objection to an amendment to the charter, and changes in the business consequent thereon, and participates in the benefits derived therefrom, he can not avoid personal liability to creditors on account of such amendment, but will be held to have acquiesced in the same.</p> <p>3. Same—evidence of amount and character of deposit. Where the charter of a corporation with banking powers provided that its officers, when required by any person making a deposit in the savings department of the company, shall issue certificates of deposit for the same, and made the stockholders personally responsible to depositors in such department, it is not essential to the liability of the stockholders that a certificate of deposit be given, but the amount and character of a deposit may be shown by any other competent evidence. It may be shown by the pass book given the depositor.</p> <p>4. Evidence—parol, to show one a stockholder. In a suit by a creditor of a corporation seeking to enforce the personal liability of a stockholder, the plaintiff is not required to prove the ownership of stock by record evidence, but such fact may be shown by the defendant’s admission and the testimony of the officers of the corporation.</p> <p>5. Same—to show acceptance of amendment to charter. The record or journal of the acts and proceedings of a corporation is admissible in evidence against a stockholder in a suit to enforce his personal liability to a creditor of the corporation. It is competent evidence to show an acceptance of an amendment of the charter, without first showing that the persons accepting the same were directors, when they are named as such in the journal.</p> <p>6. Same—books of corporation, against stockholder. In an action by a depositor in a bank against a stockholder, the ledger of the bank, though not a book of original entries, is competent testimony against the stockholder as an admission of the company, on its own books, of the amount due the depositor.</p>

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

<p>Writ of Error to the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding.</p>

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

<p>1. Measure of damages—where price is fixed by special contract. Where an article is sold and delivered under a special contract, in which the price is fixed by the parties, that price must govern, and because there is a conflict in the evidence as to what the price was, does not authorize the jury to allow what the article was reasonably worth, but they must find, flom the evidence, what the contract price really was, according to its weight and credibility.</p> <p>2. Instruction—calling attention to particular facts. An instruction which calls attention to particular facts in the testimony on one side, and omits any reference to facts shown on the other side, bearing upon the point in issue, is faulty.</p> <p>3. Same—when one does not cure a faulty one. The giving of a correct instruction upon a point in a case will not obviate an error in an instruction on the other side, where they are entirely variant, and there is nothing to show the jury which to adopt.</p> <p>4. Corporation—right of officers to pay for services. Where the by-laws of a private corporation provide that the officers shall receive such compensation for their services as shall be determined at the annual meeting of the stockholders, or at any special meeting called for that purpose, and none are ever so fixed, an officer performing the ordinary duties and services pertaining to his office will not be entitled to recover for such services of the corporation, in the absence of any agreement to pay him for the same.</p> <p>6. Agent—neglect to keep proper accounts, construed against him. It is ordinarily the duty of agents to keep regular accounts and vouchers of the business in the course of their agency, and if this duty is not faithfully performed, the omission will always he construed unfavorably to the rights of the agent, and care will be taken that the principal shall not suffer thereby.</p> <p>6. Where a president of a private corporation has power to draw drafts upon the treasurer, and does so, indiscriminately and undistinguishably, for private and company uses, in a suit between him and the company in reference to that matter, the burden of distinguishing between the drafts will be imposed upon him; and in the absence of such showing on his part, he will be chargeable with the whole.</p>

<p>1. Abatement—non-joinder of plaintiff in tori. In an action for a tort, the non-joinder of a person as plaintiff may be pleaded in abatement. The defendant has the right to have the cause of action adjudicated in a single suit.</p> <p>2. In an action on the case to recover for the destruction of property through the negligence of the defendant, the declaration alleged that the plaintiffs, father and son, were possessed of the property as partners. The proof showing that the property belonged to the son and his mother as partners, the court gave leave to substitute the mother as co-plaintiff with the son, when the defendant asked for a continuance, and thereupon, by leave of court, the suit was discontinued hy the plaintiff as to the father, and the trial ordered to proceed at the suit of the son alone: Held, to be error, as denying the defendant the right of pleading the non-joinder in abatement.</p> <p>3. Amendment—changing parties. The amendments allowed by section 24 of the Practice act, (Rev. Stat. of 1874,) are in furtherance of justice and the rights of the parties, and not in denial of such rights. It should not be allowed so as to deprive the defendant of the right to have the entire cause of action disposed of in one suit.</p> <p>4. Variance—between pleading and evidence. Where the declaration, in an action on the case, alleges that the plaintiffs are partners, and, as such, owners of property destroyed by negligence of the defendant, and the suit as to one of the plaintiffs is discontinued without amendment of the declaration, and the proofs show the property belonged to the remaining plaintiff and another person not made a party, the variance will be fatal to a recovery.</p>

<p>Practice—affidavit of claim. An affidavit of claim, filed with a declaration upon promissory notes, which states the amount of the principal in the notes as the sum due, with interest according to their tenor, and refers to copies of the notes filed with the declaration, is substantially good. The better practice is to state the amount of principal and interest due to the date of the affidavit, but it will answer where the. amount can be ascertained from copies filed, to which reference is made.</p>

<p>Survey—to establish, boundary, when conclusive. The report of a commission of surveyors to establish lost or disputed corners and lines, when confirmed by the court, is final and conclusive on the parties to the petition and their privies, and can not be questioned collaterally for errors. It fixes the disputed corners permanently and unalterably.</p>

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

<p>1. Chattel mortgage—misdescription of date of note. A misdescription of the note secured, by a chattel mortgage as to its date, reciting it as of even date with the mortgage, when it in fact bears date prior thereto, can have no such effect as to vitiate the mortgage. It can have no other operation than its bearing upon the question of the good faith of the transaction.</p> <p>2. Same—evidence of the debt secured. In replevin for mortgaged chattels, or in trover for their value, by the mortgagee against a party levying upon them as the property of the mortgagor, when the mortgage fully describes the debt, it is not necessary to prove the contents of the note by the note itself to sustain the mortgage.</p> <p>3. Same—effect of an insecurity clause. Where a chattel mortgage provides for the possession of the property to remain with the mortgagor for a specified time, and contains a clause that if any writ from any court shall be levied upon the same, the debt shall become due and the mortgagee may elect to take possession of the property and sell, etc., the mortgagee may maintain replevin or trover for the property after demand for its possession from a party levying upon the same, and refusal to surrender it.</p>

This was an application in this court,, by the relator, for a writ of mandamus to compel Erastus S. Williams, the respondent, to sign a certificate of evidence in a certain chancery suit tried before him. The opinion states all the material facts.

<p>Appeal from the Appellate Court of the First District; the Hon. Theodore D. Murphy, presiding Justice, and the Hon. Geo. W. Pleasants and Hon. J M. Bailey, Justices.</p>

Theodore D. Murphy, presiding Justice, and the Hon. Geo. W. Pleasants and Hon. J. M. Bailey, Justices. This was an appeal from the Appellate Court of the First District. Suit was brought by Julia Heyman against Emanuel Hartman, Simon Hartman, and the appellant, Frederick Henkel, as partners, on a bill of exchange for $254.25, dated September 13, 1877, and payable four months after date, drawn by Julia Heyman upon Hartman Bros., and by them accepted.

Writ of Error to the Appellate Court of the Second District; the Hon. Joseph Sibley, presiding Justice, and the Hon. Edwin S. Leland and Hon. H. J. Pillsbury, Justices. This was an action of assumpsit, brought by plaintiff in error, against defendant in error, in the circuit court of LaSalle county. The amount involved exceeded $1000. The declaration contained several counts upon a written contract.

<p>1. Tenants in common—unequal interests united in common—relations of the parties as to title. If two persons claiming unequal interests in land enter into a written agreement to become tenants in common and owners in undivided halves, in equity they will become equal owners of the premises without regard to their prior several legal titles of record, whether good or bad, and as between themselves any failure of the title in respect to either of the original interests should be borne equally between them.</p> <p>2. Same—partition between them.—deeds of partition with covenants of warranty •—subsequent incumbrancers—partition as to one claiming title to part. If A, the owner of an undivided three-fourths of a lot, and B claiming the other one-fourth interest, make partition of the property, each warranting the title of the part set off to the other, after which, A mortgages his part in severalty to secure a loan to him of more than its value, and becomes insolvent, and the title which B originally had fails in consequence of the avoidance of the deed to him on the ground of infancy in his grantor, and the party succeeding to his interest seeks a partition, that interest in equity should be set off and assigned out of the land of B in the prior partition, so as to leave the part of A subject to the mortgage. The rule would be different between A and B if the burden was sought to be enforced against them alone.</p> <p>3. Partition—minor avoiding his deed—refunding money paid on incumbrance preserving lien for its payment. Where one of several tenants in common of land claiming under a minor’s deed pays off a mortgage given by the minor’s guardian for money for the minor’s use, and such deed is avoided by an heir of the minor who seeks a partition, it is proper to require him to pay his proportion of the incumbrance as a condition to relief, as well as his proportion of taxes and assessments paid by his co-tenants. The amount should be decreed a lien on the land set off to such heir, and a reasonable time fixed for its payment, and sale ordered in case of default in payment.</p> <p>4. Covenants op warranty in deeds of partition—rights and remedy of subsequent purchasers. When two parties, on making partition of land, convey each to the other, with a covenant of warranty as to the other’s portion, so long as they hold the lands each will be estopped, by reason of the covenant he has made to the other, to claim damages of the other for a failure of title. But such covenant not being a charge on the land of either, if either conveys or mortgages his part of the land his grantee may enforce the covenant against the other, and in such case equity may enforce an incumbrance: affecting the title out of that part of the land belonging to the party liable on his covenant, and thus avoid circuity of action.</p> <p>5. Same—running with land, not be affected by equities. A covenant of warranty runs with the land, passes to the assignee with the land, and can not be affected by the equities existing between the original parties any more than the legal title to the land itself.</p> <p>6. Consideration in deed—upon whom conclusive. As a general rule the consideration clause in a deed of lands is open to explanation, but in an action on a covenant of warranty brought by one to whom the grantee in the deed has conveyed, the grantor is not at liberty to show the consideration paid for the land to be less than the sum expressed in the deed.</p> <p>7. Whatever may have been the actual consideration for deeds made in a partition of land, an innocent purchaser for value from either is entitled to rely upon the sum agreed in the deed as the amount of the consideration and as the measure of liability, upon breach of the covenant fixed by the parties themselves.</p>

<p>1. Forcible detainer—complaint not marked filed. Where a complaint in writing in a forcible detainer suit is transmitted with the papers on appeal from a justice of the peace, and the justice's transcript shows that a complaint was filed, this will be sufficient to give the court jurisdiction, there being no law requiring a justice of the peace to mark the papers filed in a case before him.</p> <p>2. Same—evidence of termination of tenancy. In case of a tenancy at will, a notice of its termination is competent evidence, on the trial of an action of forcible detainer to recover possession by the landlord.</p>

Lambert Tree, Judge, presiding. In July, 1873, the appellees brought suit in assumpsit against the appellants, the declaration containing the common counts only, and the account filed therewith being for “balance due on contract, $4000,” and two other small items. On October 11, 1873, the defendants filed two pleas,—1, General issue; 2, Set-off for money had and received, $6000.

John A. Jameson, Judge, presiding. This was an action of ejectment, brought by Edgar Loomis, against William Cowen, for the recovery of the possession of lot 17, in the subdivision of the west half of block 90 of Canal Trustees’ Subdivision of the west half of section 27, township 39, range 14, Cook county.

Arthur A. Smith, Judge, presiding. Before, and on the 18th of September, 1873, one Russell, in partnership with one Bradbury, was doing business under the firm name of Russell & Bradbury. Appellee was the wife of Russell. Thereupon, Russell & Bradbury proposing to purchase a bill of goods from appellants, on that day Mrs. Russell executed and delivered to appellants a paper in the following words: ''Chicago, September 18, 1873.

<p>1. Indictment&emdash;«rime in the different counts. Where an indictment in the . caption shows the county and State in the proper form, the name of the county in subsequent counts, without using the word “said” or “aforesaid,” will be construed as referring to the same county named in the caption.</p> <p>2. Criminal law&emdash;assault with mtent to murder. If one person shoots at another with a shot gun, pistol or revolver, with intent, unlawfully, willfully, feloniously, and of his malice aforethought, either express or implied,' to kill him, the person so shooting is guilty of an assault with intent to commit murder.</p> <p>3. Same&emdash;presumption as to intent. Every man, in law, is presumed to intend the natural and probable consequence of his act, unless a different intent be proven.</p> <p>4. Instruction&emdash;whether it discriminates as to what evidence is to he considered. An instruction on the trial of one for an assault with intent to commit murder, that the intent with which the defendant shot at the prosecuting witness, if he did shoot, might be established by circumstantial evidence, and that in determining his intent in shooting, the jury should take into consideration all the circumstances in evidence surrounding and attending the act, is'not open to the objection that the jury might understand they need consider only the circumstantial evidence.</p> <p>5. Same&emdash;in criminal case&emdash;not necessary'always to state the doctrine of reasonable douht. An instruction in a criminal case upon the subject of what will justify the use of fire arms in self-defence, and what the defendant must show to establish such defence, is not erroneous in not further stating the defendant’s right to an acquittal in case of a reasonable doubt as to the existence of the facts justifying the use of such arms, when the jury are instructed on the part of the defence that if they entertain any reasonable doubt as to whether or not the shooting was done in self-defence they should acquit.</p> <p>6. The omission of the words “beyond a reasonable doubt,” in an instruction for the people in a criminal case, is not error, where an instruction is givén for the defence that the jury must be convinced by the evidence, beyond a reasonable doubt, of the defendant’s guilt before they can convict.</p> <p>7. Same&emdash;singling out particular facts. Where it appeared upon the trial of a party for an assault with intent to commit murder, that the defendant shot twice at the prosecuting witness, once at the door of the former, and afterwards from the window of his house, after the person assaulted had left the yard and gone into the public road, and the alleged circumstances justifying the shooting as in self-defence occurred before the first time the defendant shot, it was held that an instruction distinguishing between the two different occasions of shooting, and calling the attention of the jury to the facts attending the second act of shooting, was not fatally open to the objection of singling out and giving undue prominence to certain parts of the testimony.</p> <p>8. Same—may assume undisputed facts. An instruction which assumes a • certain fact without leaving the jury to find the same from the evidence, is not ■ erroneous when there is no dispute made as to such fact, and it is not denied by either party.</p> <p>9. Same—as to credibility of witnesses. An instruction that if two witnesses for the prosecution swore to a particular fact, in which they were contradicted by the defendant and two other witnesses whose credibility was not affected by any evidence in the case, then the jury would not be justified in finding the fact in favor of the prosecution, is improper, as invading the province of the jury as judges of the credibility of the witnesses.</p> <p>10. Admissions—jury not bound to believe the whole. Where the prosecution prove the statements or admissions of a defendant, the whole must be received in evidence, but the jury are not bound, as a matter of law, to believe the entire statement. If a part of such statement is disproved or contradicted by other evidence, the jury have the right to give effect to such contradictory evidence, and reject such part of the defendant’s statement as not entitled to credence and accept the rest of it.</p>

John A. Jameson, Judge, presiding. This was an action of trespass, by Timothy M. Bradley as sheriff of Cook county, for the use of John H. Mortimer and Charles S. Debost, against the appellees. The property was taken from the possession of the sheriff by the defendants and sold. The material facts appear in the opinion.

<p>1. Coverture—by whom to be relied upon. Where a feme covert guarantees payment of a note of another, or becomes surety, and fails to plead her coverture when sued, and allows judgment to pass against her, and afterwards pays the debt, the principal, when sued by her to recover back the money paid for him, can not shield himself from liability on the ground she might have relied upon her coverture and defeated a reco very against her. The defence of coverture is a personal one, and .can be pleaded only by the feme covert.</p> <p>2. Guaranty—to hold principal liable, guarantor must sign by request. A party guaranteeing the payment of a note given to a third person can not recover of the maker, on being compelled to pay the note, if the guaranty was made of his own accord, without a request, express or implied, from the maker.</p> <p>3. Same—when request to guaranty will be implied. Where a party selling sewing machines, as agent, to another, takes the notes of the purchaser, payable to the principal, in payment, informing the maker that he, the agent, will bo required to guarantee the same, and the maker knows the fact that the notes are to be sent to his vendor’s principal and had to be guaranteed by his vendor, a request to guarantee the same may be fairly implied.</p> <p>4. Surety—extent of his undertaking construed. Where a surety signs a bond for his principal, conditioned that the latter shall pay or cause to be paid to the obligee any and every indebtedness or liability then existing or which might thereafter exist or be incurred in any manner by him to the obligee, this will include the liability of the principal to the obligee under a guaranty by the latter of the principal’s note at his request, and its payment by the guarantor.</p> <p>5. Where a party gives bond, with surety, to another, conditioned for his payment to the obligee of any and every liability or indebtedness that might, thereafter, in any manner, exist or be incurred by him, and the principal buys goods of the obligee and gives his note therefor, but payable to a third person, ■which he fails to pay at maturity, he and his surety will be liable on the bond for the amount of such note, under a proper state of pleading, whether the obligee has guaranteed the payment of the note or not.</p>

John G. Rogers, Judge, presiding. This was an action of assumpsit, brought by Hartwell Gray and Stephen Lambert, executors of the last will and testament of Charles A. Morey, deceased, against the appellant, upon a policy of insurance upon the life of said Morey.

<p>1. Divorce—allowance of solicitor's fees after appeal. Under the statute, the circuit court, after an appeal is perfected from a decree of divorce in favor of a wife, has the power to make an order, on motion of the wife, for the allowance of solicitor’s fees for attending to her case in the Supreme Court.</p> <p>2. Same—allowance of solicitor’s fees does not depend upon wife’s absolute right to divorce. It has never been regarded as a prerequisite to obtaining a decree for temporary alimony or solicitor’s fees in favor of a wife seeking a divorce, that she should establish, to the satisfaction of the court, that she is entitled to a divorce. If she is without means to prosecute her suit, and it appears that she has probable grounds, this will be sufficient for an order requiring the defendant to pay her solicitor’s fees.</p> <p>3. Solicitor’s tees—whether excessive. Where an appeal was taken by a husband from a decree of divorce to this court, and pending the appeal the circuit court ordered the husband to pay a solicitor’s fee of $300 to attend to the wife’s case on the appeal, from which order the husband appealed, it was held, that the fee allowed was not so excessive as to justify a reversal of the order.</p> <p>4. Reversal of decree for divorce—its effect on order to pay solicitor’s fees. The reversal of a decree of divorce in favor of a wife, by this court, does not require a reversal of an order of the circuit court requiring the husband to pay a sum for the payment of the fees of the solicitor of the wife, for services in presenting her case on the appeal.</p>

Joseph E. Gaby, Judge, presiding. This was an action on the case, brought by plaintiffs, in the Superior Court of Cook county, against the defendant corporations, to recover for a loss they allege they met with from ' making advances in their business, as commission merchants, upon bills of lading issued in the name of the Midland Pacific Railway Company in such form that they would be and were taken to be full or average car loads of wheat containing the usual number of…

<p>1. Evidence—secondary. Where a policy of insurance sued on is not in the possession of the plaintiff but of the defendant, and is mislaid so that it can not be produced, parol evidence on the part of the plaintiff is competent to establish the execution and contents of the policy, and if the evidence tends to prove such facts, there is no error in refusing a motion to exclude the same.</p> <p>2. Where a policy of insurance is shown to have been lost, and parol evidence of its contents given to the jury by the plaintiff, it is error to refuse to allow the defendant to introduce in evidence a book of the company containing the date of the policy, amount of insurance, to whom payable, name of the assured, etc., which is shown to be a substan tial copy of the policy made by an officer of the company, and taken from the policy before its delivery. Such book, with the testimony of the officer who made the entry from the policy, seems to be the best secondary evidence of the contents of the policy.</p> <p>3. Same—boohs of private corporation. The books of an insurance company organized on the mutual plan, whereby a party assured becomes a member, are competent evidence against the holder of a policy, though it might not be against a stranger.</p> <p>4. Instruction—as to evidence. The court has no right to instruct the jury that there is no evidence to prove a certain fact where there is any evidence tending to prove such fact, and thus take such evidence from the consideration of the jury.</p> <p>5. Same—singling out isolated fact. An instruction is faulty and properly refused which singles out an isolated fact, and especially calls the attention of the jury to it.</p> <p>6. Same—as to degree of evidence required. There is no error in refusing an instruction in a civil suit which, in effect, tells the jury that certain facts must be established by satisfactory evidence and by a preponderance of the evidence, or the plaintiff can not recover. Such an instruction is calculated to mislead, as indicating that more than a bare preponderance is necessary to a recovery.</p> <p>7. ■ New triar—newly discovered evidence. Where it appears, on a motion by the defendant for a new trial, that diligent search had been made for the instrument in writing sued upon, when the suit was brought, and could not be found before the tidal, and recovery by the plaintiff, and that it had been subsequently fjund, and showed clearly that the plaintiff had no cause of action, as it was payable to another whose receipt was indorsed thereon, a new trial should be granted on the ground of such newly discovered evidence.</p> <p>8. On a motion for a new trial on the ground of the discovery of new evidence since the trial, the question of the forgery of such evidence, if in writing, can- not be tried, but it must be treated as genuine, for the purposes of the motion.</p>

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

<p>1. Change of venue—-from circuit to city court. On granting a change of venue by the circuit court, the court may send the cause to some other court of record of -competent jurisdiction, in the same or some other convenient county, to which there is no valid objection. A civil cause may be sent from the circuit court of Kendall county to the City Court of Aurora.</p> <p>2. Same—right to object because fees not paid. Where a defendant obtains an order for a change of venue to another court upon condition he pays the clerk the expenses attending the change within a specified time, and he fails to pay such charges, and the clerk nevertheless makes out the necessary record and transmits the same with the papers, the defendant can not take advantage of his own wrong or neglect to pay to defeat the change and have the cause remanded back.</p> <p>3. Error—when no ground of reversal. Where the whole record shows that no evidence was admitted or excluded on the trial calculated to defeat the ends of justice or prevent a fair, impartial verdict, this court will not reverse for slight or technical errors in respect to the admission of evidence.</p> <p>4. Evidence—parol, to prove marriage. In a civil action, record evidence to prove a marriage is not necessary, but it may be shown by parol, or proved by reputation, declarations and conduct of the parties, and other circumstances usually accompanying that relation.</p> <p>5. Exemplary damages — suit by wife for injury from intoxication of her husband. In a suit by a wife against a party to recover for an injury in her means of support in consequence of the habitual intoxication of her husband from liquors sold him by the defendant, if actual damages are shown, then the jury may allow exemplary damages.</p> <p>6. Same—tzs to character of exemplary damages—former decision. There is no distinction between exemplary damages and damages allowed as a punishment. In so far as the case of Meidel v. Anthis, 71 Ill. 243, declares a different rule, it is overruled.</p>

<p>1. Witness—competency—party against heirs. On bill against the heirs of a deceased person to enforce an agreement claimed to have been made by the deceased in his lifetime with the complainant, the latter is not a competent witness in his own behalf.</p> <p>2. Same—competency—husband for his wife. On bill by a wife against the heirs of a deceased person to specifically enforce a verbal agreement of the deceased to convey a certain lot to a trustee for use of the complainant, made after the deceased had given a bond for a deed to her husband, and with the assent of the husband at the time, the latter is a competent witness for his wife to prove the agreement to convey to her. If, however, he- had assigned his claim merely to render him competent, he would be incompetent by the terms of the seventh section of the act entitled “ Evidence and Depositions.”</p> <p>3. Specific performance—requires clear proof after great delay. A decree for the specific performance of an alleged verbal agreement to convey land will not be granted where the bill is not filed until more than ten years after the alleged agreement and after the death of the other party, on slight evidence of the agreement, especially when the conduct and acts of the complainant for many years before are inconsistent with the existence of the right claimed, and such as to lead to the conviction that if the complainant ever had any claim to the relief sought, it must have been settled and adjusted long before.</p>

<p>1. Carrier—limiting his liability. A shipper of goods is not hound by a clause in a carrier’s receipt or bill of lading given on the receipt of goods for transportation, limiting the common law liability of the carrier, unless the shipper assents to the same.</p> <p>2. Same—assent to limitation not presumed. The assent of a shipper to the conditions in a receipt or bill of lading limiting the carrier’s liability will not be inferred from the mere fact of acceptance of the bill or receipt without objection,—and this without regard to the fact whether the bill of lading is used in trade wholly within this State, or in inter-State trade or in foreign commerce. Nor will it be conclusively inferred from the fact of the previous acceptance of a large number of similar bills of lading, not filled up by the shipper or held in his possession to be filled up.</p> <p>3. Same—evidence of assent to limitation. The acceptance of a bill of lading containing a restriction of the carrier’s liability and the previous practice of giving and receiving similar bills of lading, are evidence tending to show that the limitation of liability therein was assented to by the shipper, but neither one nor both such facts would be conclusive evidence thereof.</p>

Writ of Error to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding. David H. Thornton and others filed their amended bill in chancery in the' court below against William Gr.

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

<p>1. Placeta—construed as to when court convened. Where the plací ta of a record shows that the court convened on the third Monday of April, 1877, being the day fixed by law for the court to meet, which is stated parenthetically to be on the 28th day of that month, the latter date, not being required to be stated, will be treated as surplusage or as a mere formal misprision.</p> <p>2. Appeal from justice—amount of judgment. Where a justice of the peace has jurisdiction of the amount due upon a note, and an appeal is taken to the circuit court, judgment may be rendered in that court for a sum above the justice’s jurisdiction, if such excess is for interest accruing since the judgment below.</p> <p>3. Judgment—certainty as to amount on remittitur. A judgment that the plaintiff have and recover of the defendants $205.79, his damages assessed by the jury, less the sum of $5.79, remitted as aforesaid by the plaintiff, is substantially a judgment for $200, and is not erroneous for uncertainty.</p>

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

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

<p>Appeal from the Court of Common Pleas of the City of Elgin.</p>

Edwin S. Leland, Judge, presiding. It was agreed in the court below that the following statement of facts are and shall be taken as true: “It is stipulated and agreed by and between the parties to this suit, that the same shall be tried by the court, without the intervention of a jury, upon the following facts, and the law governing the same, to-wit: On the seventh day of March, A. D. 1873, Morgan A. Lewis, the complaining witness in this cause, got on board the regular mail…

W. K. McAllister, Judge, presiding. This suit was brought by appellees against appellant in the court below, to recover for certain goods delivered to the latter to be carried for the former, and which were destroyed by ;! the great fire in Chicago, October 9, 1871.

W. W. Far well, Judge, presiding. . Bill was filed by Samuel Olsen, in the court below, against Antonio Coari, Ebeuezer Wakeley and Angelo Crescio, for the cancellation of a deed executed by Wakeley to Coari and a mortgage executed by Coari to Crescio, and for conveyance of- title, to Olsen.

<p>1. County clerk—delivery of tax books. It is the duty of the county clerk to deliver the tax book and warrant to a town collector only when the latter has given bond and taken the oath of office. If this has not been done the book and warrant should not be given to him.</p> <p>2. Presumption—that officers will noiviolate their duty. No presumption can be indulged that a public officer will do that which the law forbids him to do.</p> <p>3. Answer—evidence to overcome. The sworn answer or disclaimer of a county clerk to a bill for an injunction, clearly showing he does not intend to. deliver the tax book of a certain town to the collector until such collector should give bond and take the oath of office, is not overcome by the testimony of four witnesses testifying to a single conversation of the clerk as to his intention in the matter.</p>

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

<p>Appeal from the Circuit Court of Kane county) the Hon. H. H. Cody, Judge, presiding.</p>

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

Theodore D. Murphy, presiding Justice, and the Hon. Geo. W. Pleasants and Hon. J. M. Bailey, Justices. This was an action of trespass, brought by the appellee against the appellant, for an injury to a certain lot on the South Branch of the Chicago river. The material facts are stated in the opinion of the court.

<p>1. Apremíate jurisdiction of the Supreme Court—Practice act of 1877—of its constitutionality as respects the subject of the act and its title. The Practice act, as amended in 1877, has the following title: “An act to amend an act entitled ‘an act in regard to practice in courts of record.’ ” It is held, that sections 67 and 88 of the act, in assuming to increase the jurisdiction of the Appellate courts and restrict the jurisdiction of this court., are not in violation of section 13 of article 4 of the constitution, which provides that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.”</p> <p>2. Same—and herein, what is comprehended in the word “practice.” The mode and order of procedure in obtaining compensation for an injury by action or suit in the courts, from the inception of such' suit until it ends in the final determination of the court of last resort, are all comprehended in the term “practice.” The relative jurisdiction of the several courts, the modes by which, and the extent to which controversies may be transferred for trial or review from one tribunal to another, and, when several transfers are allowed, the order of sequence in such transfers, are all included in what is called the practice of the courts. So the sections of the statute mentioned appertain to the course of practice in the courts of record, and are germane to the subject expressed in the title.</p> <p>3. Same—of the right as provided by the constitution. The constitution, by section 2 of article 6, confers upon the Supreme Court original jurisdiction in certain cases, “and appellate jurisdiction in all other cases,” but this does not give the option to a party as to whether he will go to the Appellate court in any case: It may well be, under section 11 of the same article, that this appellate jurisdiction “in all other cases,”, shall be acquired through the intermediate appellate courts therein provided.</p> <p>4. Moreover, construing these sections 2 and 11 together, as should be done, the constitution does not give the right of appeal to this court in all cases, either direct from the trial court or through the intermediate courts.</p> <p>5. Same—in suits in chancery. Since the first day of July, 1877, this court has no jurisdiction of an appeal from a decree in a chancery suit directly from the circuit court, when such appeal has been allowed and perfected after that date.</p> <p>6. Appellate courts—extent of their jurisdiction. There is no constitutional restriction as to what jurisdiction the Appellate courts should have, except that such courts 'must be of uniform organization and jurisdiction, and that their determination shall not be'final in certain cases.</p> <p>7. Jurisdiction—can not be conferred by consent. ■ The power to hear and determine a cause is jurisdiction, and consent of parties can not confer jurisdiction upon a court in which the law has not vested it. Consent can not give this court jurisdiction of an appeal in a chancery case directly from the circuit court.</p>

<p>Writ op Error to the Circuit Court of Will county.</p>

<p>1. Appellate jurisdiction—in respect to contested election cases in county court. The statute does not give the right of appeal from the county courts to the Appellate courts in contested election cases. In that class of cases an appeal lies from the county court directly to the Supreme Court.</p> <p>2. Elections—presumption of right to vote. Where an election board permits a person to vote, that creates a prima facie presumption of his right to vote, which must be overcome by proof on a contest of the election.</p> <p>3. Same—vote on separate piece of paper from ballot. A vote for a candidate on a separate slip of paper folded within the numbered ballot deposited, not attached to the ballot in any way, is properly rejected, the statute requiring the names of all the candidates voted for to be upon the same ballot.</p>

Joseph E. Gaey, Judge, presiding. This was an action brought in the name of David A. Gage, for the use of the city of Chicago, upon a bond to said Gage in the penal sum of $500,000, signed by Ira Holmes, Charles Comstock, James Kelley, J. A. Holmes, W. A. Butters, and William M. Tilden, who were all directors, and Ira Holmes also president, of the Manufacturers’ ¡National Bank of Chicago, and by one other person—Samuel J. Walker.

• Writ of Error to the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding. This was an action of debt on the bond of William H. Harper, as chief inspector of grain for the city of Chicago.

<p>Conveyance—reservation—sufficiency of description. Where the owner of a tract of land had laid out a block thereon subdivided into lots, placing stones at the corners of the block, and had sold two of the lots in the block, and after possession taken by the purchaser, conveyed the whole tract, “excepting five lots in first block and second lot in second block, south of the railroad and plank road, as the same shall be hereafter subdivided into village lots ” by the grantee or his assigns, “said lots having been heretofore sold by ” said grantor, it was held, that the exception in the deed was not void for uncertainty, and that the title to lots previously sold did not pass by the deed.</p>

Theodore D. Murphy, presiding Justice, and the Hon. Geo. W. Pleasants and Hon. J. M. Bailey, Justices. This was a bill in chancery for an account, exhibited in the circuit court of Cook county. The cause was heard before the Hon. E. S. Williams, Judge, presiding. From the decree rendered in the circuit court an appeal was taken to the Appellate Court of the First District, wherein the decree was affirmed. An appeal was thereupon taken from the Appellate Court to this court. -

<p>1. Texas and Chebokee cattle—statute unconstitutional. The statute entitled “An.act to prevent the importation of Texas or Cherokee cattle into the State of Illinois,” (Rev. Stat. 1874, p. 141,) so far as it attempts to prohibit the importation of such cattle, and prevent any person in this State from owning or having such cattle in possession between the first days of October and March following, is void, under the constitution of the United States, as interfering with inter-State commerce.</p> <p>2. Former decision—overruled. The case of Yeazel v. Alexander, 58 Ill. 254, holding that the statute to prevent the importation of Texas and Cherokee cattle into this State, etc., was a proper and legitimate exercise of the police power of the State, and not in violation of the constitution of the United States, is overruled.</p> <p>3. Police power op State—must not interfere with commerce. While a State may pass sanitary laws, and laws for the protection of life, liberty, health or property within its borders, and may prevent persons and animals suffering under contagious or infectious diseases, etc., from entering the State, and, for the purpose of self-protection, may establish quarantine and reasonable inspection laws, it may not interfere with transportation into or through the State, beyond what is absolutely necessary for its self-protection. The police power of a State can not obstruct foreign commerce, or inter-State commerce, beyond the necessity of its exercise.</p>

Thomas F. Tiptoe, Judge, presiding. This is a suit in assumpsit for money borrowed by the defendants of one S. A. Holbrook, who transferred the orders issued therefor by indorsement to the plaintiff. The defendants demurred to plaintiff’s declaration, the demurrer was sustained by the court, and plaintiff appeals.

Chauncey L. Higbee, presiding Justice, and the Hon. Oliver L. Davis, and Hon. Lyman Lacey, Justices. This was an action on the case, brought by the appellee against the appellant, to recover damages for a personal injury received by a collision of the defendant’s train, on August 31, 1877, with a wagon in which the plaintiff was riding.

<p>1. Parol . evidence—to locate land from description. Parol testimony is admissible to aid in locating land by the description contained in a deed or mortgage, and that is not, in fact, reforming the deed.</p> <p>2. Same—to show what land grantor owned. The parol testimony of a witness as to what the records show in relation to the land owned by a party at the time of the execution of a mortgage, is not admissible. The deeds, or the record of the same, where the originals can not be obtained, are the best evidence.</p> <p>3. Description—aiding uncertainty therein. Where land in a mortgage is described as, “ a certain tract or parcel of land, containing about seventy acres, being a part of the E. ¿ S. E. J sec. 17, T. 21 N., R. 2 W., or however else the same may be bounded or described,” the same may be identified and located by proof that the mortgagor, before the execution of the mortgage, owned the east half south-east quarter section 17, containing 80 acres, and had conveyed a part thereof, which, deducted, would leave “ about seventy acres.”</p>

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

This was a proceeding by attachment against the supervisor and town clerk of the town of Barnett, for a contempt of this court in neglecting and refusing to execute and deliver to the relator, the Illinois Midland Railway Company, on its order, certain bonds of the town of Barnett, which had been voted as a subscription to the capital stock of a railway company. The facts of the case appear in the opinion.

<p>1. Impeaching judgment—of the manner thereof and for what causes. A record of a court imports a verity and can not be contradicted by parol evidence. It must be taken as showing the absolute truth, and must be tried by itself. What is or is not a record, is a matter of evidence, and any instrument offered as such may be shown to be forged or altered.</p> <p>2. Where a bill in chancery seeking to enjoin the collection of a judgment at law, on the ground it was rendered by one having no judicial power and not the judge of the court, shows that the judgment is upon the records of the court, and that the record thereof still remains, and that there is no error apparent on the face of the record, and, moreover, its affirmance by the Supreme Court, it shows a valid judgment as tested by the record set out in the bill.</p> <p>3. To impeach a judgment shown to be valid by the record, the party complaining must make it manifest that the judgment was the result of either fraud, accident or mistake, and that it is unjust, and was not the result of laches or misconduct on his part.</p> <p>4. Where a bill to enjoin a judgment shows by its averments, and the implications flowing therefrom, that the plaintiff and defendant knowingly and willfullyengaged in the perpetration of a fraud upon the law and the courts.—that, having a suit pending in the circuit court, they conspired together and had the issue submitted to a trial before one whom they knew to be a mere intruder upon the bench,—that they knowingly and willingly went through the trial before such person, and equally participated in the submission of a motion for a new trial, and in arrest of judgment, and in bringing the record to the Supreme Court showing the trial had been before the lawful judge, when, in fact, the judgment had been entered by such intruder upon the bench, and that they joined in palming off such record as the genuine record, it was held, that the complainant, being a party to such fraud, was not entitled to equitable relief. If such judgment was a fabrication, a party assisting in its fabrication and in giving it a standing as a judgment, of a court, can have no standing in equity, to vacate the same, and be relieved from the consequences of his own act.</p> <p>6. If the wrongful acts of parties result in harm to the one and profit to the other, equity will not relieve the wrongdoer from the consequences of his own conduct. The court of chancery will close its doors against all who invoke its aid with unclean hands, and will leave them to their naked legal rights as best they may get them, in the courts of law.</p> <p>6. Estoppel—admission of judgment by appeal bond. The recital of a judgment in an appeal bond estops the obligors from denying the existence of such judgment, and if this estoppel is not so broad as to preclude an injunction as to a forged or fraudulent judgment, in equity, yet, if the party seeks in equity to be relieved from such solemn admission, he must not show himself a particeps criminis in the fabrication of the judgment, or in the fraud.</p>

<p>Writ of Error to the Appellate Court of the Third District; the Hon. Chauncey L. Higbee, presiding Justice, and the Hon. O. L. Davis, and Hon. Lyman Lacey, Justices.</p>

C. L. Higbee, presiding Justice, and the Hon. Oliver L. Davis, and Hon. Lyman Lacey, Justices. This was a suit, brought to recover a penalty, under sections 50 and 51, chapter 114, Revised Statutes 1874, and comes to this court on an appeal from the Appellate Court.

Chattncey L. Higbee, presiding Justice, and the Hon. Oliveb L. Davis, and Hon. Lyman Lacey, Justices. This was a bill in equity brought by the appellant against the appellees, to enjoin the sale of stock referred to in the opinion, and praying to have the stock transferred to the bank on the books of the railway company.

Writ of Error to the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding. The proof in this case shows that the defendant sold whisky and other liquors to various parties upon the prescriptions of physicians, the defendant or clerk retaining the prescriptions, and that he also sold the same for culinary purposes to one Frank Ater three times, the liquor being used for that purpose.

<p>Failure of consideration—retaining deed until payment. Where a purchase of laud was made through an agent for $6000, of which sum $2000 was to be paid down, and the balance secured by note and deed of trust, the conveyance of the land being left with the agent for delivery upon a compliance with the terms of the sale, and the purchaser being unable to make the cash payment, the agent agreed to take his note, with personal security, for $2100, the $100 being the agent’s commissions, it was held, that the non-delivery of the deed for the land could not constitute a failure of the consideration of the note given to the agent, as it was not to be delivered until after payment of such note.</p>

<p>Appeal from the Appellate Court of the Third District; the Hon. Chatjncey L. Higbee, presiding Justice, and the Hon. Oliver L. Davis and Hon. Lyman Lacey, Justices.</p>

<p>1. Master and servant—liability of master to servant for injury from defective machinery. Employers are only required to provide machinery of- good material, and to have it constructed in a good and workmanlike manner. They, whether as individuals or corporations, are not insurers of their employees against injury from its use.</p> <p>2. Where an engineer of a railway company was killed by the explosion of a boiler of a locomotive, and it appeared the boiler was made of the best material, and by first-class manufacturers, and had not been used long enough to create any suspicion of its unsafe condition, and the defect was not of such character as could have been discovered by any of the tests usually employed for the purpose, and there was no sign or indication of its unsafety, it was held, that the company was not liable for the injury.</p>

C. B. Smith, Judge, presiding. The appellee Horace B.'Shinri filed his bill in the circuit court of Moultrie county, at its October term, 1872, to foreclose a mortgage alleged to have been executed to him by the appellant Clement L. Shinn, on the 6th of January, 1865, conveying certain land lying in the county of Moultrie, described in the bill.

Joseph Sibley, Judge, presiding. This was a bill in chancery exhibited in the court below, by Francis A. Aneals, against William M. Jaffers, Margaret Jaffers, and others, to set aside a conveyance of land from the said Margaret to the said William, on the allegation such conveyance was intended to hinder, delay and defraud the complainant as a creditor of the said Margaret. The principal facts connected with the transaction are set forth in the opinion of the court.

Writ of Error to the County Court of Piatt county; the Hon. William McRetnolds, Judge, presiding. On the trial of this cause the evidence showed that the defendant was a practicing physician and a druggist. The sales of liquor made by the defendant and his clerk were all upon the Avritten prescriptions of some other practicing physicians, or upon representations by the purchasers to the defendant of sickness.

C. B. Smith, Judge, presiding. This was replevin, by appellees against appellant, for 100 acres of corn. The declaration contains two counts. The first is for taking and detaining, and the second for detaining.

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

Writ of Error to the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding. This was an 'indictment against Zera Brown for burglary. The record shows that the defendant was a weak, simple minded person, and the only evidence against him was his admissions and statements, induced after various threats and promises had been made to him.

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

<p>1. Fraud—by failure to give information. There is no fraud in failing to give information to another of a fact of which he is ignorant, when the information is as accessible to one person as to the other. One person is not required to act as the agent of another when the latter, by reasonable diligence, may acquire the information necessary to protect himself.</p> <p>2. Same—by payee in neglecting to inform, surety. If a person, knowing another to be utterly insolvent, proposes to credit him if he will procure sureties, he can not be held guilty of a fraud by failing to apprise the surety of the insolvency of his principal; but if the person giving the credit makes use of any artifice to throw the surety off his guard and lull him into a false security, and he is thereby deceived, this will amount to a fraud.</p> <p>3. Where a party becomes surety upon the bond of a treasurer of a secret society, for the faithful application of moneys in his hands, payable to the society, the fact that the officers and members of the society knew of his previous mis-appropriations of the funds entrusted to him during the prior year, and with such knowledge re-elected him, and failed to communicate such fact to his sureties, no inquiry being made of them by the sureties, and they doing no act to put the sureties off their guard or preventing them from ascertaining the facts, no fraud can be imputed to the society which can be set up in avoidance of the sureties’ liability on the bond.</p> <p>4. Surety—'when can not show defalcation of officer occurred in previous term. Where an officer is re-elected and becomes his own successor, and at the commencement of his second term reports a certain sum in his hands, and gives bond with sureties to account for and pay over the moneys coming to his hands during the term, his sureties, when sued, will be responsible for the sum so reported in his hands, and will not be allowed to show that the defalcation, in fact, occurred during the previous term, and throw the liability on his sureties for that term.</p>

<p>Appeal from the Appellate Court of the Third District; the Hon. Chatjncey L. Higbee, presiding Justice, and the Hon. Oliver L. Davis and Hon. Lyman Lacey, Justices.</p>

This was a proceeding by mandamus, commenced in this court by the relators against the county commissioners of Jersey county.

<p>1. Paupers—liability of county for services rendered. Under the present statute relating to paupers the overseer of the poor of a town has no power to render temporary relief to an indigent or poor person not required to be supported wholly by the county, contrary to the regulations and limitations prescribed by the county board, but he is bound by such regulations.</p> <p>2. A rule and regulation of a county board that in case of need of medical aid by a poor person not required to be wholly supported by the county, the county physician should be resorted to, is a reasonable one, and if disregarded, and another physician renders medical services in defiance of the rule, though by direction of an overseer of the poor, he can not' recover for such services of the county.</p> <p>3. Former decisions. Since the cases of The Board of Supervisors, etc. v. Plaut, 42 Ill. 324, and Supervisors of LaSalle Qouniy v. Reynolds, 49 id. 186, the statute has been materially modified in respect of the questions above mentioned.</p>

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

<p>1. Constitutional law—impairing obligation of contract. A change in the law, giving a more speedy remedy to enforce a party’s contract or covenant to surrender possession of land, does not impair the obligation of the contract,</p> <p>2. Thus, where a party, in his deed of trust, covenanted with the trustees to give immediate possession to the purchaser in case of a default and sale, and after the execution of the trust deed the law relating to forcible entry and detainer was changed, extending that remedy to sales under deeds of trust, it was held, that forcible detainer would lie against him under such law, upon his refusal to give possession on a sale.</p> <p>3. Forcible detainer—when it lies. Where a party, in giving a trust deed acknowledges himself the tenant of the trustee, and covenants that if he fails to surrender immediate possession to the purchaser in case of a sale under the power therein, an action of forcible detainer may be employed to dispossess him, the action will lie against him upon the happening of the contingency, independent of the statute extending the remedy to sales under powers in mortgages and deeds of trust.</p> <p>4. Same—sale under trust deed before debt is all due. In forcible detainer for land sold under a power in a deed of trust, where the sale has been made before the principal sum was due, for default in the payment of interest notes, under a provision that upon default In the payment of any such notes the payee might treat the entire debt as due, and require the trustee to sell, the plaintiff, who is the purchaser, is not bound to prove, independent of the recitals in the trustee’s deed to him, that there had been a default in paying the interest, and that the holder of the notes had elected to treat the principal as due, and require the trustee to make the sale.</p> <p>5. Same—usury in the debt secured by the trust deed—remedy. The grantor in a deed of trust which authorizes a sale on the non-payment of interest, for the entire debt, can not show, in an action of forcible detainer against him by the purchaser, that there was no interest due, on account of usury in the transaction. The purchaser’s title can not be questioned for such cause in this action, and the grantor’s remedy, if any, is in a court of equity.</p> <p>6. Trust deed—remedy on sale when nothing is due. If a sale is made under a power in a deed of trust when nothing is due, there being no power to sell, if the title passes the grantee will be held a trustee for the debtor; but that can not be inquired into in an action at law.</p>

John Burns, Judge, presiding. The appellant commenced his suit against the appellee, in ejectment, to the circuit court of Mason county, to recover the possession of a certain parcel of land described in the declaration. The summons was returned to the November term of that court, 1873, and the declaration filed of that term. The defendant pleaded not guilty, in the usual form, and, on leave, filed certain special pleas, each of which was held bad on demurrer.

<p>1. Dower—may be barred by provision in nature of jointure. Any reasonable provision, whether secured out of realty or personalty, which an adult person, previous to marriage, agrees to accept in lieu of dower, will be a good jointure, in equity, and operate as a bar to any subsequent claim to dower.</p> <p>2. Same—ante-nuptial contract, as barring dower. Where parties in contemplation of marriage entered into an ante-nuptial agreement in 1857, in which it was recited that hotji were then the owners of real and personal property, and that the intended wife, as an heir, would be entitled to other property, real, personal and mixed, and which then provided that each should retain and possess all his or her property, real, personal and mixed, in possession and expectancy, forever, absolutely free from the claim, right and control of the other, as fully as if such marriage had never taken place, and renouncing forever all claims in law and in equity of curtesy, dower, survivorship or otherwise, in and to all lands, etc., that then or might thereafter belong to or be acquired by the other, which was kept and observed by the parties after their marriage, it was held, that the contract was a reasonable one, and not prohibited by public policy, and was such as a court of equity would enforce, and compel the survivor to abide by and perform, and that on the death of the husband it might be set up as a bar to the widow’s claim of dower.</p> <p>8. Homestead—extends to widow and children. The policy of the law in relation to homesteads is to preserve the same for the benefit of the family as well as to the householder himself, and not to allow the same to be defeated by any ante-nuptial contract by the father and mother, so as to deprive their minor children of its benefits in case of the death of either.</p> <p>4. Same—on partition, in favor of minor children. On a proceeding for partition by the heirs of a deceased owner of lands, his widow is entitled to have a homestead set oif to her, to the extent in value of $1000, for the benefit of herself and the minor children, notwithstanding she may have relinquished forever all claims upon the estate of her husband by an ante-nuptial agreement. The provisions of the statute can not be defeated by mere private contract between persons not alone within its protection.</p> <p>5. Husband and wife—which bound to support children. The wife is not bound, in the first'instance, to apply her separate estate to the support of the children of the marriage. That obligation, primarily, is cast upon the husband’s estate.</p>

C. B. Smith, Judge, presiding. Ira James brought an action of ejectment against the Indianapolis and St. Louis Eailroad Company for the possession of “ all the land occupied by the defendant for a right of way across the north half of,the west half of the north-west quarter of section 22, township 12, range 7 east of the third principal meridian, being fifty feet on either side of the center of said railroad track, across said described land,” claiming title thereto in fee.

J. W. Bearick, Judge, presiding. This was an application by the collector for judgment against certain lots in Petefish’s and in Beers’ additions to the city of Virginia, for the taxes due thereon for the year 1877. All the taxes were tendered except the city taxes, the payment of which was resisted on the ground that said lots were not within the corporate limits of the city, and, consequently, not subject to taxation by the city.

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

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

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

Owen T. Reeves, Judge, presiding. The declaration in this case is on a promissory note made by A. C. Funk and John W. Funk, bearing date April 21, 1874, for the sum of $3000, payable to Hiram Buck or order, twelve months after date, with interest from date at the rate of ten per cent per annum; and if not paid promptly at maturity, fifteen per cent per annum thereafter, as liquidated damages for non-payment.

Chauncey’ L. Higbee, Judge, presiding. Appellants filed their bill in chancery, in the court below, against appellees, alleging therein that on the 7th of May, 1867, the appellant William J. Wyatt, and the appellee Milton Mayfield, executed and delivered to the appellant Robert Seymour their promissory note for $1000, due-after date, with interest at ten per cent per annum, on which Mayfield was principal and Wyatt was surety; that, afterwards, Mayfield, Wyatt, and appellant…

<p>1. Forgery—sufficiency of evidence to show. Where the name of an intestate upon a note of $1000 which had been allowed against his estate, was shown not to be in his handwriting, and it was not shown that any one had general authority to sign notes for him, or special authority to execute this particular one, and the intestate’s name was signed just after that of one M . and if written by M was not in his usual, but in a simulated handwriting, and that M, when charged with the forgery, absconded from the State, and the payee offered no explanation whatever, and it appeared the note was not presented until nearly two years after the testator’s death, and about the same length of time after maturity, it was held that these facts and other circumstances were sufficient to show that the pretended' signature of the intestate was a forgery.</p> <p>2. Administration—when letters fraudulently obtained. The procuring of letters of administration by the attorney of claimants in pursuance of a prearranged plan to procure the allowance of their claims, without notice to the heirs, and without defence, is a fraud not only upon the heirs but also upon the court.</p> <p>8. Same—payment of fraudulent claim prevented in equity. "Where the holders of two forged notes procured the appointment of their attorney as administrator after consultation with him, and by collusion, and the administrator, without notifying the heirs, or filing any inventory or making any inquiry as to the personalty, gave notice for the presentation of claims and consented to the allowance of such forged notes, without requiring any proof, or even a sufficient affidavit from the claimants, and afterwards procured an order for the sale of real estate to pay such claims, the heirs being lulled into repose by the forger acting with the claimants, upon conference with the administrator, it was held, that a court of equity, in view of the fraud and collusion and imposition upon the heirs, would prevent the payment of the unpaid purchase money of the land to such claimants, and order it paid to the heirs whose property had been wrongfully sold.</p> <p>4. Estoppel—when not allowed in equity. Persons pretending to hold claims against an estate will not be allowed to take advantage of the estoppel of an order for the sale of the lands of heirs, as against such heirs, where such estoppel grows out of a mere neglect to defend, and that neglect was induced by the conduct of such claimants and their attorney acting as administrator, and no merit is shown in their claims.</p>

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

<p>1. Special assessments—appointment of commissioners by county court not unconstitutional. The act of 1872, conferring power upon the corporate authorities of cities, etc., to make local improvements by special assessments, etc., is not in violation of sec. 9, art. 9, of the constitution because it authorizes the appointment of commissioners by the county court to assess benefits. The legislature clearly has the power to so authorize the appointment of commissioners, where the corporate authorities have determined that the improvement shall'be made, and what its character and cost shall be.</p> <p>2. Same—validity of ordinance appointing engineer to fix grade. An ordinance for the improvement of a street of a city is not rendered invalid by the fact it requires the city engineer to fix the grade of the street, where the cost has been estimated by a committee appointed by the council, and their report is approved. This is not a delegation to the engineer of power to fix and determine the cost, or the extent and character of the improvement.</p> <p>3. Same—ordinance may confine special assessments to contiguous properly. While the provision of the constitution relating to special assessments is broad enough to authorize the assessment of property benefited by a proposed improvement, though not contiguous to the street to be improved, yet it does not require that such assessments shall be made on all the property benefited. Therefore, an ordinance is not invalid because it requires only contiguous property to be assessed.</p>

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Notice — of unrecorded deed. Where a subsequent purchaser was informed by Ms grantor that he had made a prior deed to the same land, but the trade was broken off and the deed had not been delivered, and the purchaser and grantor then went to the recorder’s office and inquired if such prior deed had been left for record, and finding it had not, then went to a notary’s office and inquired to see the papers between the grantor and the prior grantee, and was shown what he took to be a deed, this was held conclusive notice to him of the prior unrecorded deed.</p> <p>2. Fraud—in procuring deed does not render it void. A deed for land, though procured by fraud, is not void, but voidable only. Until set aside by the action of the parties, or a decree in chancery, it will pass the legal title to the grantee.</p> <p>3Deed—delivery. Where a party acknowledges before a proper officer the execution and delivery of a deed made by him, and allows the officer to hand the same to the grantee without objection, this will amount to a delivery.</p> <p>4. Evidence—question assuming a fact. In an action of ejectment, where the question was whether a deed relied upon by one of the parties had ever been delivered, it was held to be error to allow a witness to be asked the question as to what agreement was made about the delivery of the deed,without first showing there was some agreement made on the subject.</p> <p>5. Same—mode of proving agreement by parol. The safe and proper way of proving an agreement by parol is, to require the witness to state what was said, if anything, by either of the parties in the presence of the other on the subject. If the witness can not give the words of the parties, he may state the substance of what was said, but he ought not to be allowed to substitute his inferences from what was said, or his understanding.</p>

Writ of Error to the Appellate Court of the Third District; the Hon. Chatjncey L. Higbee, presiding Justice, and the Hon. O. L. Davis and Hon. Lyman Lacey, Justices.

<p>Interest—on money collected by an attorney. Where an attorney 'collects money for his client and tenders him an insufficient amount after deducting his fees, interest may be allowed against the attorney on the sum due from him, to the time of the verdict.</p>

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

<p>1. Parties—when executor must sue—not devisee. The sole devisee of a deceased person can not maintain an action in his own name for a tort, or conversion of the property of the testator in his lifetime, but the suit must be brought in the name of his executor or administrator.</p> <p>2. Where a party died pending an action by him to recover for a quantity of coal the defendant had mined, removed from the plaintiff’s land, and converted, and after his death his sole devisee suggested the death, and by leave of court was substituted as plaintiff, no letters having been taken out, and recovered judgment, it was held, that no recovery could be had in the name of such devisee, and that the judgment should have been arrested.</p> <p>3. The appointment of an executor to carry out the provisions of a will vests the legal title to the goods, chattels and choses in action of the testator in the executor, as a quasi trustee for the use of the creditors, distributees and legatees, and he alone, when qualified, can maintain the proper actions for the recovery of such property, or for injury thereto or its destruction.</p> <p>4. Same—holder of legal title must sue. An equitable title never confers the right to sue at law, but the action must be in the name of the person invested with the legal title.</p> <p>5. Practice—when wrong person sues. Where a person not having the legal title sues at law for an injury to property, the defendant need not plead in abatement to take advantage of the want of a proper party plaintiff, but the error is fatal under the general issue, and if apparent on the face of the declaration, on demurrer or motion in arrest of judgment.</p> <p>6. Pleading—errors cured by verdict. Where a declaration, on its face, discloses no cause of action, the defect will not be cured by the verdict.</p>