Volume 92 — Illinois Reports

<p>1. Administration—widow’s award—passes title to her. Where a widow’s award exceeds the appraised value of the personal property, and she elects in writing to take the personal property at its appraised value in lieu of the specific articles, and the balance in money, and files her receipt therefor as administratrix, which is approved by the county court, the title to the personal estate will be vested in her as her sole and separate property forever, except that it may in a certain event be charged with the payment of the funeral expenses, and upon her death it will pass to her administrator.</p> <p>2. If the estate is insolvent, the widow’s allowance will be encumbered with the payment of the funeral expenses, and if the estate consists of personal property only, and it is barely sufficient, when taken at its appraised value, to meet her award, she will be required to pay the funeral expenses before she is entitled to receive the property, but it is otherwise if the intestate leaves real estate sufficient to pay all his debts.</p>

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

<p>1. Oral contemporaneous agreement varying note. An oral agreement, made at the time of the execution of a promissory note, that the same might be paid by a transfer of a certain patent right for the State of Iowa, can not be pleaded to vary the terms of the note.</p> <p>2. Costs—in Supreme Court. Where the only error in the record is obviated or cured by a remittitur of a part of the judgment, in this court, the judgment will be affirmed, and all the costs accruing in this court to the date of entering the remittitur will be taxed to the appellee.</p>

<p>Former recovery—when a bar to second suit. A recovery of damages for the deterioration in the value of the plaintiff’s premises by the erection and maintenance of gas works in the vicinity, polluting the water of the plaintiff, is a bar to any further prosecution for the same cause, and it is error to refuse proof of such former recovery in a second action for a continuance of the injury.</p>

<p>1. Municipal corporation—power to allow railroad track in streets. It is well settled in this State, that a city may authorize the laying of railroad tracks in its streets, and where a city, under a resolution adopted, conveys a street absolutely to a railway company, the resolution and deed will give the company the right to construct, maintain and operate its tracks upon the street, even if invalid to pass the entire dominion in the street, and when such right is exercised, the city can not resume the grant to the exclusion of the company.</p> <p>2. Same—publication of resolution presumed from long acquiescence. The recognition by a city for over twenty years of a resolution granting a right to lay railroad tracks in certain streets as being in foi’ce, and its acquiescence thereunder, affords presumptive evidence of its due publication, if such proof were necessary to give it force.</p> <p>3. Same—mode of granting right to lay railroad track in streets. Although a city charter may provide that the city council shall have power to make all ordinances necessary and proper for carrying into execution the powers specified iu the act, the action of the city council, though in the form of a resolution, in connection with its deed granting the use of streets for railroad tracks, will be a sufficient grant of permission to so use the streets.</p>

Chauncey L. Higbee, presiding Justice, and the Hon. Oliver L. Davis and Horn Lyman Lacey, Justices. This was a bill by the town of Pana and others, tax-payers, against Charles E. Lippincott, State Auditor, the State Treasurer, county clerk and collector of Pana, in the circuit court of Christian county.

Oliver L. Davis, Judge, presiding. This was a suit by the appellee against John S. Bradbury, administrator of the estate of Peter H. Bradbury, deceased, upon a claim filed in the county court of Clark county for services, etc., and taken by appeal to the circuit court, where, a trial being had, it resulted in a verdict and judgment in favor of the claimant for the sum of $1000, to reverse which this appeal was taken.

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.</p>

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

Lyman Lacey, Judge, presiding. This was an action by Dustin against Skelton as indorser of a bill of exchange, as follows: $455.14 “ Skelton, 111., September 7, 1875. At sight pay to the order of John R. Skelton four hundred and fifty-five dollars and fourteen cents, value received, and charge the same to account of. To W. C. Barrett & Co., H. W. Barker. Indianapolis, Ind.” Across the face is written: “Good. Sept. 10, 1875.

Chables S. Zane, Judge, presiding. The first count of the declaration, as amended, is as follows, omitting the caption: “William A. Pennell, who sues for the use of Albert H. Barber, plaintiff in this suit, by W. S. Coy and Frank J. Crawford, his attorneys, complains of John A. Chesnut, the defendant in this suit, who has been summoned, etc., of a plea that he render to the plaintiff the sum of $1000, which he owes to and unjustly detains from him. “ For that, whereas, prior…

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

<p>Appeal from the Circuit Court of Bond county; the Hon. William H. Snyder,-Judge, presiding.</p>

M. C. Crawford, Judge, presiding. For a particular statement of facts in this case reference is made to Hall et al. v. Davis, 44 Ill. 495, (June term, 1867,) where one branch of this case was before this court. The cause having been remanded, Mary J. Hall filed her cross-bill against Davis and others, on May 19, 1868, for partition, and for an account of rents; and Harriet B. Hall filed her cross-bill on May 20,1868, for dower, and for partition and an account of rents.

<p>Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.</p>

Monroe C. Crawford, Judge, presiding. This suit was originally brought before a justice of the peace by William Peoples against the Cairo and St. Louis Railroad Company, to recover double the value of a cow alleged to have been killed on the 30fch day of January, 1876, by a train on defendant’s road.

<p>1. Partnership—when it does not exist. Where there is no joint expense, no joint property, no joint fund, no joint losses, no joint profits and no arrangement to share loss and profit, there is no partnership. A communion of profit is of the very essence of the contract of partnership, for without this communion of profit, a partnership can not, in contemplation of law, exist.</p> <p>2. Where there was an arrangement between different railroads connecting with each other whereby each road agreed to carry the cars of the others having the name “ Green Line ” painted thereon, over its own road, without, breakage of bulk, at such rates as might be agreed on, each company fixing its own rates of freight passing over its own road and collecting the same as the freight passed over its .road, and having no interest'in freights not reaching its road, each road desirous of making a through rate over other roads via these Green Line cars, would ascertain the rates the intermediate road or roads charged, and, adding the same to its own rates, fix its own schedule of through rates, which it termed “ Green Line Rates,” and there was no joint expense or loss or profit, except that where a loss could not be located on any particular road a pro rata share of the loss was borne by all that carried the freight, it was held, there was no partnership as between the different roads.</p> <p>3. Estoppel. And where there was an arrangement like the foregoing, the fact that the words “ Green Line ” were painted on the roof of a wharf-boat, and were also printed at the top of the bills of lading, the name of the railroad company being also printed on the bills of lading, would not estop such railroad company from denying there was such a partnership.</p>

Tazewell B. Tanner, presiding Justice, and the Hon. George W. Wall and Hon. James C. Allen, Justices. The appellant declared against the appellee, in the court below, on an account stated.

Amos Watts, Judge, presiding. This was a trial of the right of property between Nicholas Welsch and Joseph Welsch, as mortgagees of Maria A. Wiesenborn, and an execution creditor of the mortgagor, resulting in a verdict and judgment in favor of such execution creditor. The mortgagees appealed.

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

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

This was a petition in this court filed by Henry Harms, the relator, against Ernst F. C. Klokke, county clerk of Cook county, Samuel H. McCrea, treasurer, and Henry C. Senne, chairman of the board of commissioners of Cook county.

<p>Appeal from the City Court of East St. Louis.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a suit originating before a justice of the peace, and taken by appeal to the circuit court. On the trial of the garnishee proceeding, the defendant appeared before the justice and denied indebtedness to Avery. In the circuit court the garnishee appeared by attorney and denied the alleged indebtedness.

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

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

James C. Allen, Judge, presiding. This was an action of assumpsit on a policy of insurance. The parts of the declaration to which objection was made are sufficiently set forth in the opinion of the court. A default was entered for want of plea, and an assessment of damages had. The policy was for the sum of $1800, as follows: $600 on a frame building occupied as a saddlery and harness store, $1100 ou stock of saddles and harness, and $100 on harness makers’ tools.

David J. Baker, Judge, presiding. This was a bill in chancery, exhibited in the name of the People of the State of Illinois against the Cairo and Vincennes Eailroad Company, for an injunction to restrain that company from operating its railroad on certain streets in the city of Cairo, in violation of the ordinances of the city under which it obtained leave to construct and operate its road within the limits of the city. >.

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

<p>Writ of Error to the Circuit Court of Crawford county; the Hon. James C. Allen, Judge, presiding.</p>

<p>1. Sale—without change of possession, fraudulent as to creditors. All sales of personal property, when the possession is permitted to remain with the vendor, are fraudulent per se, and void as to creditors and subsequent purchasers, unless the retaining of the possession be consistent with the deed or bill of sale.</p> <p>2. Appeal—trial of right of properly. The statute requiring the bond to be given within five days from the entry of judgment, on appeals from the trial of the right of property before justices of the peace, is mandatory. If the bond is not given within that time the superior court, acquires no jurisdiction, and can not try the appeal except by consent of the appellee.</p> <p>3. "Where the appeal bond in such a case is not filed within the time required by law, the appellate court should dismiss the appeal upon the appearance and motion of the appellee, at any time while the cause remains on the docket; and his right to have the same dismissed can not be taken away or affected by any rule of court.</p> <p>4. Practice—rules of court. While circuit courts and other courts of record have undoubted power to make all reasonable rules for the transaction of the business before them, yet their rules must be in furtherance of law, and not in contravention of it. All rules of court must be subordinate to the general laws of the State, and such as are not are binding on no one. Nor is it competent for such courts to make rules whereby they may obtain jurisdiction of a cause when it is not conferred by the general law.</p>

<p>Appeal from the Appellate Court of the Fourth District; the Hon. Tazewell B. Tanner, presiding Justice, and the Hon. David J. Baker and Hon. James C. Allen, Justices.</p>

<p>Payment to one not an agent. Payment of money to a third person not authorized to receive it, and known by the person making the payment not to have any authority, will not avail as a defence in a suit by the person entitled to the money.</p>

David J. Baker, Judge, presiding. This was an action of ejectment, and was brought by James A. Parrott to recover a tract of land claimed by plaintiff in fee, and averred to be unlawfully withheld by defendant, the Cairo and St. Louis Railroad Company. On the first trial the jury found for plaintiff, but a new trial was granted to defendant under the statute.

<p>1. Statute or Frauds—parol contract of sale of land—part performance. In a suit for dower in lands claimed by the defendant, who was a son of the complainant’s deceased husband by a former marriage, the defence set up a parol sale of the land by the father to the son. It appeared the land in question was the home place upon which the father had ever lived from a time previous to the birth of the defendant until after complainant’s marriage, and defendant lived with his father on that home place from his birth until after such marriage. The alleged consideration for this pretended contract of sale was this: That long prior to complainant’s marriage, the father entered another and different tract of land from the government, in his own name, the son furnishing half the purchase money, the son going into possession and making improvements to the value of $2000 to $3000, alleging no contract, however, in regard to it; that subsequently, but long before complainant’s marriage, the son gave up to the father all his claim to the land so entered from the government, and all claim for improvements thereon, and released his father from all claim for wages for labor done after the son became of age ;■—that in consideration for all this the father “sold and set apart” this home place to the son as his own, subject to the condition that the latter should keep and take care of his father during his life, and the son alleges that thereupon he, in pursuance of said agreement, at once entered into the actual possession of the home farm, and has been in open possession ever since, and has made permanent improvements thereon of the value of $3000 to $4000, and in all things performed his said agreement. At the time of this alleged agreement the father was 64 years of age, having then a former wife living with him on the place, and the son was a single man. All the lands were improved and cultivated by the father and son together, and subsequently to the time of such pretended contract of sale they had a settlement in regard to the profits, in which they were to share equally. The lands were always assessed to the father, and the taxes paid from their proceeds: Held, even if the alleged contract were clearly proven, there was not such a part performance as would take the case out of the operation of the Statute of Frauds.</p> <p>2. It has been held that “ the mere possession of land, under a parol agreement of sale, even with the superadded fact of valuable improvements, will not be deemed part performance, if the possession was obtained otherwise than under the contract.” The possession here was not taken under the contract and for the purpose of performing it, but the defendant was in the possession at the time of the making of the alleged contract, and had been for a long time before.</p> <p>3. Furthermore, it does not appear that the defendant was induced by the contract to make the improvements alleged to have been made, over and above what was required by ordinary husbandry, for which he was amply compensated by the rents and profits.</p>

<p>Appeal from the Appellate Court of the Fourth District ; the Hon. Tazewell B. Tanner, presiding Justice, and the Hon. David J. Baker and Hon. James C. Allen, Justices.</p>

<p>1. Interlineations and erasures—must be explained. In an action of ejectment the plaintiffs, who vtev'é husband and wife, relied upon a deed which the evidence showed, as originally drawn by the scrivener, was in form a conveyance to the husband alone, and was subsequently, by interlineations and erasures, so changed as to make it in form a deed to the husband and wife. It was held, the deed, when offered in evidence, being in this condition, it devolved upon the plaintiffs to satisfactorily account for the interlineations and erasures before the jury would be warranted in regarding it as a valid deed.</p> <p>2. Witnesses—competency—party to suit. The defendant in an action of ejectment defended simply as the heir of his father, and not under any conveyance from him, so it was held that under the second section of the act of 1867 concerning the competency of witnesses, the plaintiff in the suit was not a competent witness in his own behalf, the case not falling within any of the exceptions in that section.</p> <p>3. The rule under the statute that where one sues or defends as heir, devisee, etc., no adverse party, or party having an interest in the event of the suit, can, on his own motion, testify, applies to all persons alike, whether such adverse parties proposing to testify hold the relation of husband and wife or otherwise;—and there is nothing in the fifth section of the act, which has reference to the competency of husband and wife as witnesses for or against each other, that will, in any case, have the effect of rendering one competent as a witness, who is incompetent under the first and second sections.</p> <p>4. Same—as to husband and wife. Where husband and wife, .as plaintiffs in ejectment, seek to recover under a deed conveying the land to both of them, such deed being made prior to the Married Woman’s act of 1861,* the wife can not invoke the fifth section of the act of 1867 concerning the competency of witnesses, as rendering her a competent witness because of the litigation being in reference to her separate property, for in such case neither the husband nor the wife has any separate property in the land, they being seized as one person of the whole estate or as tenants by entirety.</p>

<p>Writ of Error to the Circuit Court of Clay county; the Hon. James C. Allen, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Parties on appeal. Where the defendant in proceedings to condemn land for right of way has died, Ms executor can not properly take an appeal therein, unless it affirmatively appears such executor has some interest in the land by virtue of the will of the testator. Nothing being shown to the contrary, it will be assumed the fee is in the heirs, and not in the executor, and in such case the heirs alone can prosecute an appeal.</p>

<p>Appeal from the Circuit Court of Clinton county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>1. Criminal law—indictment for libel. An indictment for libel is substantially good which charges that the defendant on, etc., unlawfully and maliciously contriving and intending to villify and defame A, B and C, and to bring them into public scandal and disgrace, etc., unlawfully and maliciously did compose, print and publish, and cause and procure to be composed, printed and published in a newspaper printed and published at, etc., called, etc., a certain false, scandalous, malicious and defamatory libel of and concerning the said A, B and C, and of and concerning each of them, containing therein among other things the false, malicious, defamatory and libelous words and matters following, that is to say: “Now, my worthies, A, B and C, a beautiful trio you are,—three as milcLa-mannered and smooth tongued scoundrels as ever scuttled ship or cut a throat," concluding in the usual form.</p> <p>2. Demurrer to evidence—its office. The office of a demurrer to evidence is to withdraw a case on trial from the jury and present to the court in a formal manner such facts as were actually proved, and such other facts as the evidence before the jury tended to prove, for the purpose of obtaining the judgment of the court as to their legal sufficiency to establish the plaintiff’s charge or claim as against the defendant.</p> <p>3. Same—what it must contain and admit. When the facts are controverted, if the defendant seeks to withdraw the case from the jury by a demurrer to the evidence, he must admit not only the established facts, but also all such facts as the evidence tends or conduces to establish. When properly framed the court has nothing to do with the facts, but only to apply the law.</p> <p>4. If ip a civil case the plaintiff is compelled to join in a demurrer to the evidence which does not contain an admission of all facts which the evidence or circumstances tend to prove, it will be error, and he should except to the ruling of the court and preserve the exception, together with the evidence, in a bill of exceptions.</p> <p>5. But if the plaintiff in such a case takes issue thereon, and refers the facts as well as the law to the decision of the court, the court may or may not pass upon the whole case, depending upon the particular circumstances of each case. If the merits of the controversy are substantially presented by the demurrer, the court may properly decide the case, including questions of fact as well as law, but if it is so inartificially drawn and the facts or evidence are so improperly stated as to leave the rights of the parties doubtful, then the court should not pass upon the merits of the case, and to do so would be error.</p> <p>6. A demurrer to evidence should state facts and not the evidence which tends to prove those facts, and where the evidence is oral and merely tends to prove or disprove some important fact or facts in issue, the demurrer should not set out the evidence, but the fact or facts it tends to establish, and if it does not it is informal and insufficient, and the plaintiff is not bound to join in such demurrer.</p> <p>7. Where a demurrer to the evidence in a criminal case, in which there was a joinder, failed to set out the facts themselves and the evidence of such facts, and showed affirmatively that the most important evidence before the jury and which was indispensable to a conviction was omitted in the statement, it was held that the court erred in passing upon the case.</p>

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

<p>Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.</p>

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

<p>Appeal from, the Circuit Court of Jackson county; the Hon. Monroe C. Crawford, Judge, presiding.</p>

Amos Watts, Judge, presiding. This was a bill in chancery, filed by Thomas H. Burgess against B. F. Pope, J. F. Stacy, B. W. Jones, Lauretta J. Jones and E. B. Rushing, to review and set aside a former decree rendered in favor of the appellees B. F. Pope and J. F. Stacy, giving them each a mechanic’s lien on the premises of Lauretta J. Jones. The material facts appear in the opinion.

<p>Appeal from the Circuit Court of Randolph county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Specific performance—when granted. The specific performance of contracts is within the sound discretion of the court. To entitle a party to a decree for a performance of the agreement, it must be reasonable, fair and equitable. If wanting in any of these particulars specific performance should never be granted, for it is only on the principle that it is unjust and inequitable to permit the contract to remain unexecuted that a court of chancery assumes jurisdiction to enforce it.</p> <p>2. Same—never enforced when ,it would involve breach of official duly. The court should never compel the specific performance of a contract which would involve the breach of duty of an officer or trustee or the perversion of trust funds or property,—for a court of equity also has jurisdiction to preserve and prevent the misapplication of such a fund.</p> <p>3. Same—when contract tainted with fraud. The court will not enforce a contract tainted with or into which fraud has entered, or when wrong and injustice would be inflicted on the parties or others. To entitle a party to relief he must come into court with clean hands and a cause that appeals to equity for relief.</p> <p>4. The supervisor of the village of Cahokia was authorized by statute to cause the commons of the village to be surveyed, platted and the plat recorded, and to lease the same for a term of not exceeding one hundred years to the highest bidder at a public letting, after due advertisement, and the statute provided that the proceeds arising from such leasing should be applied to the education of the children of the inhabitants of the village. Power was also given the supervisor to lease the lots at private letting at the average rent of other lots leased. Appellants submitted a proposition to the supervisor to lease a portion of the commons for ninety-nine years at an annual ground rent of twenty-five cents an acre and a cash bonus of $10,000. This"proposition was submitted to the inhabitants of the village, and they voted in favor of accepting it, on the understanding that the bonus should be divided amongst the inhabitants. Appellants were at this meeting and were aware of the design to misapply the trust fund, and that it was a scheme of- the inhabitants and supervisor to defraud the school fund. The average rent of other lots was sixty cents per acre: Meld, the contract to lease would not be specifically enforced in favor of the complainants.</p> <p>5. Public officer—persons dealing with, must take notice of his powers and duties. A public officer derives all his powers from, and his duties are prescribed by the statute, and all persons dealing with him in reference to public affairs are bound to take notice of those powers and duties, and see that he is acting within the scope of his authority.</p>

<p>Chancery—new trial at law. A court of equity will not grant a new trial in a case at law on the ground of newly discovered evidence which is merely cumulative and is not of a conclusive and decisive character, nor will it be granted to enable witnesses to be impeached, or to allow a party to introduce evidence that he might have obtained on the trial at law by the use of proper diligence.</p>

<p>1. Highway—-jurisdiction to alter, how obtained. The presentation to the commissioners of highways of a petition signed by the requisite number of persons qualified to sign the same, asking for the alteration of an existing highway, the petition having been posted according to law, and the giving of notice of the time when and place where action would be taken on the petition, confers jurisdiction upon the commissioners to hear and decide, and their proceedings will not be null and void for irregularity in the same, and can not be assailed collaterally.</p> <p>2. Same—indefiniteness as to part of road changed. The fact that the description of the alteration of an old road, as given in the order declaring it to be made, is not as definite as it should be, will not deprive the commissioners of the jurisdiction previously obtained, and their acts will be valid until set aside or reversed in some direct proceeding.</p> <p>3. Same—equitable jurisdiction. Where commissioners of highways, having acquired jurisdiction, make an order changing and altering a previously established road, and in doing so proceed illegally or irregularly, the remedy for any one aggrieved is by appeal or certiorari, and if he neglects to avail of his legal remedy a court of equity will not interfere in his behalf.</p>

<p>Appeal from the Circuit Court of Randolph county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>1. Schools—employment of teachers for the current or succeeding year—what board of directors have the power. The statute has appointed the first Saturday in April in each year as the time for the election of a school director in each district, and the school year commences at that time. An annual reorganization of the board of directors is required, and the intention of the statute is that the board organized for a given year shall exercise the powers and control the schools of their district during that year.</p> <p>2. In this case one of the members of a board of school directors, on the 25 th of March, made a verbal agreement with a person to employ him to teach a school in the district for three months from the 17th day of April following, this agreement to be reduced to writing when the board should meet. On the 5th day of April the director who made this verbal agreement, and one other director, reduced the verbal agreement to writing and executed the same, antedating it to the 25th of March. The third director had no knowledge of this arrangement at the time it was entered into. The 5th day of April was subsequent to the day appointed by the statute for the election of a director.</p> <p>But the election was not held on that day, having been deferred to the 15th of the month, when another person was elected in the place of the one who had made the verbal agreement with the teacher. A majority of the new board refused to sanction or recognize the contract, and rightly so. A single director had no power to make such a contract. Moreover, the old board of directors had no authority to employ a teacher under a contract to be performed in the succeeding school year.</p>

<p>Appeal from the City Court of Alton; the Hon. Henry S. Baker, Judge, presiding.</p>

<p>1. Monet had and deceived. In order to recover upon a count for money had and received, it must be shown that the defendant has received money for the use of the plaintiff.</p> <p>2. Evidence—declarations of directors of a corporation. It is not competent to show by the parol declarations of the individual directors of a corporation for what specific purpose a fund reserved in a contract made by the corporation was to be used. Such fund can be appropriated by the board of directors only.</p>

Tazewell B. Tanner, presiding Justice, and the Hon. David J. Baker and Hon. James C. Allen, Justices. The facts in this case, as found in the Appellate Court, are: On the first of February, 1874, John B. Koehler made his eight promissory notes, bearing that date, and payable to “Chas. & Wm. Feickert,” in one, two, three, four, five, six, seven and eight years, for unequal amounts, but aggregating $2,900, all bearing interest at the rate of ten per cent per annum.

<p>Writ of Error to the Circuit Court of Saline county; the Hon. Oliver A. Harker, Judge, presiding.</p>

<p>1. Possession—taking possession under chattel mortgage—whether sufficient. A mortgagee of an undivided two-thirds interest in a portable engine, in order to show he had taken possession of the property under the mortgage, made the facts appear as follows: The engine had been taken to a foundry by the owner of the other one-third interest, in whose possession the property was, for the purpose of repairs. The mortgagee found the engine at the foundry, and told the owner of the foundry to look after it for him, and he said he would retain it, and let the mortgagee know if anything should happen; and upon the interest of the owner of the one-third of the engine being attached, the owner of the foundry notified the mortgagee of the fact. This was all the possession the mortgagee took, and in view of the ponderous nature of the property, and being already on the premises of a third party claiming no interest in it, such a taking of possession was all the law required.</p> <p>2. Chattel mortgage—possession in mortgagee as obviating defect in acknowledgment. Where a mortgagee of chattels has taken possession of the property under his mortgage, as to the rights of third persons subsequently acquired it is immaterial whether the mortgage was acknowledged before the proper officer, or, indeed, whether it was acknowledged at all.</p> <p>3. Same—mortgagee taking possession prematurely — who may object. The question, whether a mortgagee of chattels has taken possession of the property before he had a right to do so under the terms of the mortgage, is one which concerns the mortgagor alone, and can not be raised by third persons who had no interest in the property at the time the possession was taken.</p> <p>4. Same—where part interest of another in the property is attached—duty of mortgagee, as to purchaser under the attachment. Where a mortgagee of a part interest in a chattel has reduced the property to possession, and the part interest of another therein is levied upon under an attachment against such other person, and in pursuance of the levy the officer takes the property into his possession, the mortgagee at the time having no knowledge of the levy, it. is not necessary to the preservation of his rights under his mortgage as against the attaching creditor that he should pursue the property and attempt to reclaim it from the officer.</p> <p>5. Same—and herein, of taking possession of a chattel by an officer who levies upon a part interest therein. Indeed, in such case the mortgagee would have no right to reclaim the possession of the chattel from the officer, nor, if he had been present at the time of the levy, would he have had any right to interfere with the officer in taking possession under the levy, because an officer has the right, under a writ against one tenant in common of a chattel, to take possession of the property to the exclusion of the others.</p> <p>6. Same—when mortgagor’s equity of redemption is levied upon—duty of mortgagee as to subsequent purchasers under such levy. Nor is it essential to the preservation of the rights of a mortgagee of a chattel who has acquired the possession of the property under his mortgage, in case of a levy by attachment upon the mortgagor’s equity of redemption, to interpose his superior right of possession for the purpose of-selling under the mortgage, and thereby prevent the sale of the mortgagor’s interest under the attachment. So far as purchasers under such attachment are concerned, it is at the option of the mortgagee, as his interest may suggest-, whether he will, under such circumstances, assert his superior right to subject the property to sale for the satisfaction of his debt.</p> <p>Syllabus.</p> <p>7. Tax lien—as respects personal property—rights of purchasers under tax sale as against subsequent purchasers of the property. The mere assessment of taxes in respect of personal property will not create a lien upon such property. The warrant for the collection of such taxes will, however, become a lien upon the personal property of the person assessed, from the time it comes to the officer’s hands. But if the party assessed should sell or mortgage the property before the warrant comes to the hands of the officer, the purchaser or mortgagee will be protected as against any subsequent seizure and sale of the property under such warrant for the taxes assessed against the vendor or mortgagor.</p> <p>8. And where a chattel is levied upon under an attachment against the then owner, and subsequent to such levy the tax warrant comes to the hands of an officer, the rights of a purchaser under a judgment rendered in the attachment suit will relate back to the date of the levy of the attachment and he will hold the property free from any lien under the warrant for taxes.</p> <p>9. In such case, as against a mortgagee of the chattel prior to the time the tax warrant came to the hands of the officer, a purchaser under a levy of such warrant would have no claim for reimbursement of-the sum he may have paid at the tax sale.</p> <p>10. Bes adjümcata. One tenant in common of a chattel can not maintain replevin against his co-tenant, for the whole property. So, where a mortgagee of a two-thirds interest in a chattel brought replevin against the owner of the other third, the plaintiff and defendants were regarded as tenants in common of the property and the action could not therefore be maintained, and a general judgment in that action against the plaintiff, and awarding a return of the property, if such judgment was given by reason of the relations of the parties as tenants in common, could not operate to determine the rights of the plaintiff as mortgagee, so as to preclude him from foreclosing the mortgage for the satisfaction of his debt.</p> <p>11. Foreclosure of chattel mortgage where property is in possession of another —whether a sale should be ordered, or the party in possession be decreed to pay the value. A mortgagee of a two-thirds interest in a portable engine brought his suit in chancery for foreclosure. One of the defendants in the bill was the owner of the other third interest in the engine, and had the property in his possession in another State, to which he had removed it from this State, for the purpose of defeating the rights of the complainant as mortgagee, and denying the complainant’s rights altogether. The decree directed the party thus in possession of the property to pay the complainant two-thirds of its value instead of ordering a sale. This was held to be proper, in view of the circumstances named, and of the further fact that defendant did not propose or evince a willingness to return the property within the jurisdiction of the court in order that it might he sold, and also in consideration of the difficulty and expense which would attend the removal of such property.</p>

<p>Appeal from the City Court of the City of Alton; the Hon. Henry S. Baker, Judge, presiding.</p>

<p>Appeal from the County Court of Richland county; the Hon. Horace Hayward, Judge, presiding.</p>

David J. Baker, Judge, presiding. This action was brought under section 110, chapter 24, Rev. Stat. 1874, by the City of Cairo, against Cicero N. Hughes, to recover of him $2 on each $100 of the net receipts of premiums for foreign insurance companies doing business in the city of Cairo, for which defendant was agent. The cause was submitted to a jury, who found the issues for plaintiff and assessed its damages at $200.

<p>1. Confession of crime—whether it will authorize a conviction. The confessions of a party to an individual merely, uncorroborated by circumstances, and without proof aliunde that a crime has been committed, will not justify a conviction.</p> <p>2. It has been said, in the United States, the prisoner’s confession, when the corpus delicti is not otherwise proved, has been held insufficient for his conviction.</p> <p>3. Same—and herein, of the sufficiency of the proof. In this case the prisoner was indicted for the larceny of a horse. The confession of the prisoner was relied upon. The most to be derived from that was that he took the horse and traded it off, and upon going to the person to whom he said he had traded the horse, it was found in that person’s possession. One witness testified that the o wner had the horse in his possession before the time he was said to have been taken. The witness saw the horse put in a stable the evening before the time in question—heard about the horse being taken next morning. Another witness testified that he saw the horse in the owner’s possession not long before the time “he was said to have been stolen: ” Held, the proof did not sufficiently show that a larceny had been committed, to justify a conviction.</p> <p>4. Amendment of record in criminal cases—at a subsequent term. An indictment for larceny was found at the October term of court, but there was no entry of record of the fact at that term. At the subsequent May term a trial was had and the defendant found guilty. At the same May term, after the rendition of the verdict, and before judgment thereon was entered, the court, on motion of the State’s attorney, permitted the record to be amended by the entry of an order nunc pro tunc showing the return of the indictment into open court at the proper term: Held, the proof introduced showing the fact, the action of the court below allowing the amendment was correct.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action for slander, on the trial of which the plaintiff recovered a judgment for $2500.

<p>1. Punitive damaqes:—whether allowable in trespass guare clausum, fregit. Where one engaged in mining and removing coal from his own land, crosses the line and proceeds to mine and remove coal from the land of another, not by mere mistake, but knowingly and wilfully, in an action of trespass by the owner of the land so intruded upon, the jury will be warranted in giving punitive damages.</p> <p>2. Weight of evidence and credibility of witnesses—in what manner determined. In determining the weight to be given to testimony the number of witnesses being greater upon the one side or the other, while it is a consideration always to be looked to, yet that of itself is by no means to be regarded as a controling one. There are many other equally important tests of truth,— chief of which is that of a cross-examination in the presence of the court and jury. The witness’ manner, demeanor and bearing upon the stand,—his replies, whether frank and open, or reluctant and evasive,—his manner of expressing himself, whether moderate, dignified and respectful, on the one hand, or extravagant, impertinent and reckless, on the other; the intelligence of the witness, and means of information in respect to the matters of which he speaks,—his relation to the parties to the suit,—his interest in the result,—all these are of vital importance in determining the credit to be given to the witness. But these can not all be presented in a record and be transmitted to another court to enable it to review the testimony by the same lights,—hence the rule that this court will not reverse upon the evidence merely because it may appear to us that the preponderance may be against the verdict.</p> <p>3. Measure of damages—in an action of trespass guare clausum fregit for mining and carrying away coal from the land of another—-former decisions. It was held in the cases of Robertson v. Jones, 71 Ill. 405, and Illinois and St. Louis Railroad and Goal Go. v. Ogle, 82 id. 627, that in an action of trespass for mining and taking coal from the plaintiff’s land, he may recover the value of the coal at the mouth of the pit, less the cost of carrying it there from the place where it was dug, allowing the defendant nothing for digging. In this case, after a full review of the question, the rule of damages as above laid down is adhered to.</p>

<p>Writ of Error to the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Writ op Error to the Appellate Court of the First District; the Hon. Theo. D. Murphy, presiding Justice, and Hon. Geo. W. Pleasants and Hon. Jos. M. Bailey, Justices.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.</p>

William H. Snyder, Judge, presiding. Appellees filed their bill in chancery, in the court below, on the 21st September, 1872, alleging that James A. Steele, being the owner of a certain 85i acre tract of land, undertook to convey the same March 1, 1853, to the Mississippi and Atlantic Railroad Company for the consideration of $2127; that, by mistake in description, a part of the right land was left out and other land not intended was included—about 40 acres; that on February…

<p>1 Amendments—change of form of action allowable. An amendment permitting a change in the form of action from assumpsit to debt is authorized by the statute.</p> <p>2. Estoppel—by execution of bond. Where a bond is given by a collector to the sheriff in a county not under township organization, the obligors on such bond are estopped by the execution thereof from denying the official capacity of the sheriff, the power to appoint the deputy collector, and the rightfulness of the appointment.</p> <p>3. Pleading and evidence—set-off. Where, in an action upon a bond, the plea of nil debet contains a notice of set-off, all evidence is admissible thereunder that would be admissible under a plea of set-off.</p> <p>4. Practice—time to object for want of bond for costs. The objection of the want of a bond for costs can not be taken for the first time in this court. The provision of section 3, chapter 33, Rev. Stat. 1874, that “ the right to require security for costs shall not be waived by any proceeding in the cause,” has no application in the Supreme Court, where the question is as to the correctness of the judgment below.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action of*assumpsit, brought in the court below by McKee against Peeples. A trial resulted in a judgment for the plaintiff for $485, from which the defendant appealed. The purpose of the suit was the adjustment of accounts between the parties in connection with matters detailed in the testimony.

<p>1. Criminal law—variance. As the sale, and the giving away, of intoxicating liquor to persons in the habit of getting intoxicated, are distinct and separate offences, proof of the one will not sustain a count in an indictment for the other.</p> <p>2. Same—selling liquor to one in the habit of getting intoxicated. The statute makes it a crime to sell intoxicating liquor to a person in the habit of getting intoxicated, whether the vendor has or has not knowledge of the habits of the person to whom the sale is made. Therefore, proof that the vendor did not know that the person to whom he sold the liquor was in the habit of getting intoxicated, will constitute no defence.</p> <p>3. Same-—indorsement on indicim'ent does not vitiate. Where an indictment for selling and giving away intoxicating liquors to a person in the habit of getting intoxicated, and each count thereof, states the offence in the language of the statute, it will not be vitiated because the offence indorsed on the back of the indictment is not in the precise language of the statute.</p> <p>4. Instruction—when refusal to give can not be considered. This court will not consider the propriety of refusing instructions where those given for the party are not preserved in the record.</p>

<p>Appeal from the Appellate Court of the Fourth District; the Hon. Tazewell B. Tanneb, presiding Justice, and the Hon. Jas. C. Allen and Hon. Geo. W. Wall,* Justices.</p>

Clair county; the Hon. George W. Wall, Judge, presiding. On the 29th day of July, 1878, J. B. Bowman, mayor of the city of East St. Louis, presented a petition to Hon. W. H. Snyder, one of the judges of the third judicial circuit, for leave to file an information in the nature of a quo warranto against Michael Murphy and Frederick Hinze, claiming to act as police commissioners for the city of East St. Louis—and, by consent of the defendants, such leave was granted.

<p>1. Appeals—whether to the Supreme Court or to the Appellate Court—whether an offiee is a franchise. An office is not a franchise, within the meaning of the constitution and the statute prescribing the appellate jurisdiction of the Supreme and Appellate Courts.</p> <p>2. So, upon quo warranto in the circuit court to oust the defendants from the office of school directors, which it was claimed they had usurped, when in fact there was no such office for the reason the territory they pretended to represent had never been lawfully created a school district, it was held, as the proceeding was not a criminal case, nor one involving a freehold, a franchise, or the validity of a statute, an appeal from the judgment therein would not lie to this court, but must be taken to the Appellate Court, under the act creating and defining the jurisdiction of the Appellate Courts and sections 88 and 90 of the Practice act.</p>

<p>1. Surety—discharge under the act of 1877-—construction of the statute. The act of May 11, 1877, providing for the discharge of any surety on the bond of any “ trustee of any fund or property appointed by any court,” upon application by petition to the court in which such bond is filed, applies only to cases where the trustee shall be appointed by the court,—and was not intended to embrace cases where the trustee may be appointed by act of the parties, and gives bond with sureties that he will faithfully execute the trust.</p> <p>2. In this case several heirs of a deceased person, in the adjustment of a dispute betxveen them in respect to the division of the property, executed an agreement wherein it was provided that a certain portion of the estate should be placed in the hands of a trustee, to be held, used and controlled by him for the benefit of certain of the heirs named. The agreement further provided, that if the parties should be unable to agree as to who should act as trustee, the “judge of the Gallatin circuit court” should appoint the trustee. The parties failing to agree, the then presiding judge of that court made the appointment, the person appointed executing bond with sureties, which was filed in the office of the clerk of the court mentioned. It was held the appointment was not made by the court, in its judicial capacity; but by the judge of the court, in pursuance of the agreement of the parties, and therefore the case was not within the statute so as to enable the sureties to apply to the court for a discharge from their liability on the bond.</p>

<p>1. Evidence—declarations made by savant—whether admissible against the master. Where a railway company directed its servants to set fire to the dry grass, weeds, and other combustible material which had accumulated on the right of way, and in the carrying out of such orders the fire spread to the premises of an adjacent owner and destroyed his property, it was held, in a suit to recover for the damage thus occasioned, that any statements made by the company’s servants while engaged in the performance of the act, concerning the same, were admissible in evidence against the company, as a part of the res gestee.</p> <p>2. So, in such a suit it was held proper to ask a witness what any of the men in the employment of and then at work for defendant, said to him;—the question eliciting this answer: “He said, ‘we set the fire out to burn the grass on the right of way, and it got away from us.’ He was putting out the fire. Know he was employed and worked on railroad.”</p> <p>3. Neqmgenoe—comparative. In an action to recover for an injury alleged to have resulted from the negligence of the defendant, an instruction that the jury can not find for the plaintiff unless they “believe from the evidence that the injury complained of was caused by the negligence of defendant, and the plaintiff was without fault,” is stronger than the law will justify, as ignoring the doctrine of comparative negligence.</p> <p>4. Instruction construed, as to whether it usurps the province of the jury. In a suit to recover for injury resulting from fire communicated from the right of way of a railroad company, where it was set by the servants of the company, and by its direction, the jury were instructed: “If you believe, from the evidence, the servants of the defendant, for the purpose of clearing and freeing its right of way from dry grass, weeds and combustible matter, where the same run through the lauds of the plaintiff, put out fire on a day when the wind was high, and, in consequence of such high wind, such fire escaped from such servants without the negligence or fault of plaintiff, and from such right of way to and upon the lands of the plaintiff, and burned plaintiff’s apple trees and destroyed or damaged same, then the defendant is liable to such damage as the plaintiff may have sustained in consequence of such fire:” Held, the instruction was not obnoxious to the objection that it took from the jury the question of negligence which it was their province to pass upon and determine. From the facts supposed, the jury would have the right to find the company guilty of negligence.</p> <p>5. Same—os to leaving jury to judge of effect of the pleadings. An instruction which tells the jury if the plaintiff has made out his case as laid in his declaration they must find for the plaintiff, is not liable to the objection that it. makes the jury the judges of the effect of the averments in the declaration;—it merely empowers them to determine whether the proof introduced sustains the averments made in the pleadings, which they may well do.</p>

<p>1. Municipal subscriptions and bonds—of elections held prior to the new J constitution—constitutional prohibition—estoppel. Where it is sought to compel a county to issue its bonds in payment of a subscription to the stock of a Tailroad company, the subscription having been made since the adoption of the constitution of 1870, but, as alleged, in pursuance of an authority conferred by an election held for that purpose, under laws then existing, prior to the adoption of the constitution, it is incumbent upon the party seeking such relief to show the validity of the subscription, and of the election which it is assumed authorized the same to be made, in order to establish the right under the proviso to the constitutional prohibition on that subject.</p> <p>2. And where, in such proceeding, it appeared that the county court, at a time subsequent to the adoption of the new constitution, entered an order reciting that the election previously held was duly held in pursuance of law, and directing the subscription to be made, it was held such finding in respect to the alleged validity of the election could not operate to estop the county from denying that the election was properly held, or relieve the party claiming the benefit of the subscription from the burden of showing it was so held.</p> <p>3. Nor will the county be estopped, by the completion of the road according to the terms of the attempted subscription, from denying the legality of the election. No notice that the want of power to make the subscription would be relied upon was required to be given when the bonds were called for in payment of the subscription; nor would the company claiming the benefit of the subscription be heard to urge, as against the right of the county to deny the existence of the power, that they had performed labor and incurred liabilities on the faith of the supposed subscription.</p> <p>4. In such case, where the election in pursuance of which the subscription is claimed to have been made was a special election, authorized by law to be held for the specific purpose of determining whether and upon what conditions the subscription should be made, the act prescribing the notice which should be given, the question of notice lies at. the foundation of the power, and if it is not shown that the notice was properly given, as required by the statute, there will be no inferences in favor of the validity of the election, and the power will fail. In this the rule is different from that which prevails in cases of elections held under the general election law where the time of holding the election is fixed by the statute.</p> <p>5. Same—effect of the new constitution upon a curative act passed prior to its adoption. An act was passed in 1869, intended to cure any irregularities which might, have intervened in elections previously held for t.he purpose of voting subscriptions by municipalities to the stock of railway corporations, declaring such elections legal and binding, and purporting to authorize subscriptions to be made in pursuance thereof. It was held, without considering the question as to the validity of such an act in other respects, that the new constitution, in its absolute prohibition of any municipal subscription for the purpose indicated, except when- made in pursuance of an election held prior to the adoption of the constitution, under laws then existing, operated to repeal such curative act, and if the authority intended thereby to be given, to make the subscription independently of the question of the original validity of the election, were not exercised before the adoption of the constitution, it could not be exercised afterwards. The proviso to the prohibitory clause of the constitution saves the power only in cases where it was conferred by a vote of the people, not where it depended alone upon legislative grant.</p>

<p>1. Indictment for perjury—of its requisites. It is not necessary, in an indictment for perjury, to set forth so much of the proceedings of the former trial as will show the materiality of the question on which the perjury is assigned,— it will be sufficient to allege generally that the particular question became a material question.</p> <p>2. So, where the perjury was assigned upon a statement made by the accused in his testimony before a grand jury, upon the investigation of a charge of embezzlement against a banker, that he had deposited with the banker a package containing a certain specified sum in county orders, in the name of his wife, upon objection that the indictment failed to show that the banker sustained any fiduciary relation to the witness, it was held that it was enough that the indictment alleged that the question upon which the perjury was assigned was a material question in the investigation of the charge of embezzlement, without setting out minutely the transaction in respect to the alleged deposit.</p> <p>3. The testimony of the accused before the grand jury, in respect to which the perjury was assigned, was to the effect that he had deposited with the banker a package containing $525.71 in county orders, and that while the package was in the banker’s custody it was opened and a certain amount of the county orders abstracted, and retained when the package was returned. In view of this testimony it was important to state in the indictment against the witness for perjury the precise amount contained in the package, and the indictment was not bad because it did so state.</p> <p>4. It was not necessary to give a description of the county orders alleged to have been deposited, in the indictment for perjury.</p> <p>5. Instruction—modification confining jury to the evidence. Upon the trial of a person under an indictment for perjury, the court instructed the jury, substantially, that intention was the gist of the charge, and although they might believe the accused had sworn falsely, yet unless they believed, from the evidence, that -he had so sworn wilfully, corruptly, and falsely, and not by mistake, they must acquit. The court added: “provided any such mistake appears in the evidence.” It was held, as the object of the modification was to confine the jury to the evidence, it could do no harm, and was not objectionable.</p>

<p>Weit of Ereob to the Circuit Court of Randolph county; the Hon. Amos Watts, Judge, presiding.</p>

E. S. Williams, Judge, presiding. This was a bill in chancery, by Allen C. Calkins, James O. Cleveland and Henry F. Jennison, pew-owners in the house of worship of Christ Church Parish, Chicago, filed in May, 1872, in behalf of themselves and such other members of said parish “as adhere to the laws, doctrines, worship, discipline and government of the Protestant Episcopal Church in the United States of America, and in the diocese of Illinois, and in behalf of such other…

<p>1. Homestead eight—whether put in issue in suit to foreclose mortgage. Where a bill to foreclose a mortgage contained no allegation in regard to a right of homestead, and the answer of the mortgagor merely stated that defendant “ further alleges that said described premises is his homestead where his family resides,” and prayed that commissioners might be appointed to set off his homestead, etc., and the mortgagor’s wife in her answer alleged that it had been made known to her that the laws of the State provided for a homestead exemption to the value of §1000, and that as the mortgage did not waive the homestead, prayed that commissioners might be appointed, etc., it was held those allegations were insufficient to put in issue the homestead right in such foreclosure suit.</p> <p>2. Same—how availed of. Where a mortgage does not contain a release of the homestead, and in a suit to foreclose the mortgage the homestead right is not put in issue, and a decree is rendered under which the premises are sold and a deed issued to the purchaser, in ejectment brought by such purchaser the mortgagor may avail himself of his homestead right.</p> <p>3. Same—when judicial sale of, confers no title. Where there has been no release of the homestead, no right will pass by a judicial sale of it under a decree of foreclosure, which can be enforced at law in an action of ejectment, when the owner of the homestead right is occupying it at the time of the sale.</p> <p>4. Admission—what can be availed of as such. Where a defendant offers in the court below to prove certain facts, which facts would have destroyed his defence, and the offered evidence is excluded upon the objection of the plaintiff, the latter can not, in this court, avail himself of such offered evidence as an admission.</p> <p>5. Ejectment—what may be shown as defence. A defendant in an ejectment may show, by way of defence, title in himself or an outstanding title in a third party.</p> <p>6. Practice—order in which defendant s proof may be offered. The defendant in ejectment, in establishing title in himself or another, has a right to commence anywhere in his chain of title he pleases. If, when he is through, a link is wanting, the whole of his evidence must on motion be excluded from the jury. ’</p>

<p>1. Contract—money paid—non-performance. A person having been indicted for an alleged offence, his brother paid to an attorney at law a sum of money, and also gave to him his promissory note for a further sum, the agreement being that the attorney should defend the party so indicted, and procure his acquittal and discharge at a certain specified term of the court in which the indictment was pending, it being further specially agreed that if the* accused should not be released at the time mentioned, the attorney was to return the money and the note. The accused failed to appear at the term specified to answer to the indictment, so the attorney, without any fault on his part, was unable to proceed with the trial or to procure the discharge of the accused: Held, the contingency upon which the attorney was to be entitled to retain the money and to collect the note, not having occurred, he was liable to an action for the money, and could not recover upon the note.</p> <p>2. But for what services the attorney in good faith rendered, in pursuance to the terms of the agreement, before ascertaining that its performance had become impossible, he was entitled to compensation, and that sum he could rightfully retain out of the money he had received.</p>

Amos Watts, Judge, presiding. This was a suit in chancery, commenced in the circuit court of Jefferson county, and removed upon change of venue into the circuit court of Washington county. A decree was entered granting the relief sought by the bill, and the defendants appealed.

<p>Appeal from the Appellate Court of the Fourth District.</p>

W. K. MoAllistek, Judge, presiding. This was an action of ejectment, brought by appellants, to recover an undivided part of the south thirty feet of lot 6, in block 2, fractional section 15, addition to Chicago, the property being situated on the east side of State street, between Madison and Monroe, in the city of Chicago.

Nathaniel J. Pillsbury, presiding Justice, and Hon. Geo. W. Pleasants and Hon. Lyman Lacey, Justices. This was an action of debt, brought by the People, against James Mix, Helen M. Mix, H. C. Todd and Stephen R. Moore, upon an appeal bond, in the circuit court of Kankakee county. The bond was given upon an appeal from a judgment of the county court of Kankakee county to the Supreme Court.

S. M. Moobe, Judge, presiding. Prior to, and on October 18, 1866, one Hull was the proprietor of two town lots described as 101 and 102, Hull’s subdivision in one of the additions to Chicago. On that day he entered into a contract with one O’Brien to sell to O’Brien these lots. The record shows that the price was to be paid in instalments, but fails to show the amount, or the time within which it was required by the terms of the contract to be paid.

Theodore D. Murphy, presiding Justice, and Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices. This was a petition, filed by Dennis O’Donnell and Patrick Walsh, against John Downey and wife, in the circuit court of Cook county, to establish and enforce a mechanic’s lien against a certain lot and building. The following is a copy of the architect’s certificate: “Chicago, November 15, 1873.

<p>Appeal from the Appellate Court of the Second District; the Hon. Joseph Sibley, presiding Justice, and the Hon. E. S. Leland and Hon. Nathaniel Pillsbury, Justices.</p>

<p>Writ of Error to the Appellate Court of the First District; the Hon. Theodore D. Murphy, presiding Justice, and Hon. George W. Pleasants and Hon. Joseph M. Bailey, Justices.</p>

Theodobe D. Murphy, presiding Justice, and Hon. Geo. W. Pleasants, and Hon. Joseph M. Bailey, Justices.

<p>1. OmciAii bonds — liability as county treasurer, or as collector. Where a county treasurer in a county under township organization, who is also collector, receives taxes belonging to the county, he will be considered as holding the same as collector until he reports them to the county clerk as required in see. 290 of the Revenue act, and until this is done his sureties on his bond as treasurer are not liable for the same, but his sureties as collector are liable.</p> <p>2. In counties under township organization, there are distinct duties involved in the offices of county treasurer and county collector, though exercised by the same person, and his bond as collector secures the performance of duties not covered by his bond as treasurer, such as relate to State, corporation and other taxes not given to the county.</p>

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

Writ of Error to the Appellate Court of the Second District. This was a bill by James T. Rogers and Moses Pettengill, against Simeon J. Hicks and wife, and William A. Herron and Joseph Elder, to foreclose a mortgage given by Hicks and wife to complainants.

<p>1. Evidence—to show mistake in written contract. The evidence to show a mistake in a written contract and justify its correction must be clear, strong and satisfactory.</p> <p>2. Contract—construed as to who shall pay for land for a street. Where an agreement is made between A of the one part and B and C of the other, that A is to buy at public sale a tract of land lying west of the premises owned by him, and that B and C are to extend a street north and south through such tract at their exclusive expense, and that A is to retain all of the tract west of his premises to such street, and B and C to take the balance, each paying in proportion to his or their part thereof, A will not be required to pay for any part of the land covered by the extension of the street, but only for the land retained by him to the street.</p> <p>3. Costs—discretionary in chancery. In chancery it is discretionary with the court as to who shall pay tlxe costs, and a party uniting as complainant and being willing to execute a contract as really made, and as insisted by his co-complainants, is properly exempted from the payment of costs.</p> <p>4. Party—in chancery. The fact that a necessary party to a bill in chancery is made a complainant when he might properly have been made a defendant, presents no obstacle to a proper adjudication of the rights of the parties.</p> <p>5. Chancery—hill — whether multifarious. Where, at a sale of land, A, under a contract with B and C, purchases the same for himself, and also as the agent for B and C, each to take distinct parts thereof, in which contract there is a mistake in drafting the same, a bill by the vendors to specifically enforce the contract of sale, and to reform the mistake in the contract made between the purchaser and those interested with him in the purchase, is not subject to the objection of being multifarious. In such a case the subject of both contracts and the parties thereto are not improperly embraced in one bill.</p>

<p>Weit op Ebbob to the Circuit Court of Stark county; the Hon. D. McCulloch, Judge, presiding.</p>

Writ of Error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding. This was an indictment in the Knox circuit court against William Logg, John Logg, and James Logg, for a riot. The seventh and eighth instructions given for the People are as follows: “ 7.

Nathaniel J. Pillsbury, presiding Justice, and Hon. Geo. W. Pleasants and Hon. Lyman Laoey, Justices. This was a proceeding by scire facias, brought by appellant to the February term, 1879, of the JoDaviess county circuit court, to revive a judgment rendered in that court on the 25th day of May, A. D. 1864, in favor of appellant, and against appellee, for the sum of $996.75 and costs.

<p>Appeal from the Appellate Court of the Second District; the Hon. Nathaniel J. Pillsbury, presiding Justice, and Hon. Joseph Sibley and Hon. E. S. Leland, Justices.</p>

Nathaniel J. Pillsbury, presiding Justice, and Hon. Joseph Sibley and Hon. E. S. Leland, Justices. This was a bill in chancery, by Frederick Richards, against Samuel W. Raymond, county treasurer of LaSalle county, to enjoin the collection of a school tax. The court below, the Hon. Edwin S. Leland, presiding, sustained a demurrer to the bill and dismissed the bill. The case was taken by writ of error to the Appellate Court, where the decree of the circuit court was affirmed.

<p>1. Judgment—determination of county court on application for judgment for taxes. The determination of the county court upon an application for an order for the sale of land for taxes due thereon is a judgment, whether the same is adverse or in favor of the party resisting the same, and is conclusive upon the parties, where the court has jurisdiction, until it is reversed or set aside by some legal proceeding instituted for that purpose.</p> <p>2. Same—binding though erroneous. Where there is.no want of jurisdiction, an erroneous judgment is just as binding on the parties to it, until reversed, as a judgment entirely free from error.</p> <p>3. Former adjudication—as a bar to second suit. The judgment of the county court holding that lands are not liable to taxation for certain years, on application for judgment against the same, is a conclusive bar,- until reversed, as against a second application for judgment for the taxes of the same years.</p> <p>4: There is no difference in this respect between a judgment in a proceeding to collect taxes and any other judgment.</p>