Volume 93 — Illinois Reports

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

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

Theodore D. Murphy, presiding Justice, and the Hon. Geo. W. Pleasants and Hon. Jos. M. Bailey, Justices. Held: or owned by Smith, was acquired out of his own means, and, at all times, held and owned by Smith, for himself, alone, and that complainant never, at any time, had any right, title or interest therein, etc. This answer was properly sworn to.

<p>1. School house—temporary use of, for religious worship, not forbidden by the constitution. The provisions of the statute that school directors may grant the temporary use of school houses, when not occupied by schools, for religious meetings and Sunday schools, for evening schools, for literary societies, and such other meetings as they may deem proper, is not repugnant to any constitutional provision, and the use of a school house for temporary religious meetings, which do not interfere with the schools, will not be enjoined as illegal.</p> <p>2. An incidental use of a school house for the holding of religious meetings not interfering with school purposes is not, in any reasonable sense, inconsistent with its faithful application to the object of a gift or donation for school purposes, and such an use of the same is not an appropriation or payment from any public fund in aid of any church, etc.</p> <p>3. Religion and religious worship are not so placed under l,he ban of the constitution, that they may not be allowed to become the recipient of any incidental benefit whatever from the public bodies or authorities of the State.</p>

<p>1. Mechanic’s iien—work not done in accordance with plans. Although work done on a building by a sub-contractor may not be exactly according to the plans and specifications referred to in the original contract, yet if it as a whole is done to the satisfaction of the owner of the property, except in a few minor matters, which the sub-contractor offers to correct, and is prevented from so doing by the owner, and the cost of such correction is trifling, the sub-contractor may enforce his lien, and defects not arising from the execution of the work, but from the architecture, will not defeat the lien.</p> <p>2. Same—estoppel. If the owner of a building, when called on by a subcontractor to state the original contract, neglects to do so, but promises to see that the sub-contractor is paid for his work, which is performed on the faith of such assurance, such owner will be estopped from setting up as against the sub-contractor a provision in the contract for payment in land, or from setting up that the principal contractor had been fully paid.</p>

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

Theodore D. Murphy, presiding Justice, and Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices. On the 16th of March, 1877, appellees sued out of the circuit court of Cook county a writ of attachment against the estate of appellant, which was on the same day levied on certain lands as the property of appellant.

<p>Weit of Eeeoe to the Circuit Court of Lee county; the Hon. John V. Eustace, Judge, presiding.</p>

<p>1. Mechanic’s men—apportionment between lien and prior mortgage. As between a prior mortgage and a mechanic’s lien, under the statute, the former is entitled to satisfaction out of the land, and the latter out of the building. On a sale of the whole under a proceeding to enforce a mechanic’s lien, the proceeds of the sale represent and stand in the place of the land and the building, and the parties have the same proportionate share in the proceeds that they had in the property before it was sold.</p> <p>2. Where land is sold under a decree for a mechanic’s lien, upon which there is a prior incumbrance by mortgage, and the proceeds of the sale are not sufficient to pay both the claims as found by the decree, they will be apportioned, and the mortgagee will take such a share of the net proceeds of the sale as the value of the property before the improvements were put upon it bears to the total value of the property after the improvements were made, and no more.</p>

W. K. McAllister, Judge, presiding. This, was an action of assumpsit, brought upon a policy of insurance, by John Chipp against the Union Insurance Company.

Theodore D. Murphy, presiding Justice, and Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices. This was an action of assumpsit, brought by Michael Hogan against Thomas E. Courtney and John Hawley upon their indorsement of a promissory note, in the Superior Court of Cook county, which was tried before the Hon. Joseph E. Gary, Judge, without a jury.

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

<p>1. Exceptions and bills op exceptions—when necessary—and effect thereof. This court is precluded from reviewing the action of the circuit court in denying a defendant in an indictment the privilege of making a statement in person to the j ury after his counsel has spoken, when the record fails to show that any exception was taken to the ruling.</p> <p>2. This court, on error, must conclusively presume in all cases that a bill of exceptions speaks the facts as they really existed, and can not act upon the statements of counsel, or even upon their own personal knowledge of facts omitted in the bill of exceptions by mistake or even by fraudulent design.</p> <p>3. New trial—upon the evidence in criminal case. A conviction of crime clearly contrary to the weight of evidence will be set aside, and more particularly if any material allegation of the indictment is not proved. But where there is conflicting evidence, and the question seems to be one of doubt, the verdict must stand, even though the court may differ from the jury as to the preponderance of the evidence.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.</p>

<p>1. Appellate jurisdiction op Supreme Court—-from an Appellate court— in forcible detainer. The 90th section of the Practice act, as amended by the act of 1877, controls in the matter of jurisdiction in the Supreme Court to review, upon appeal or error, the rulings of an Appellate court.</p> <p>2. Under that section, an appeal will not lie to the Supreme Court to review the decision of an Appellate court, in an action of forcible detainer between landlord and tenant, the record containing nothing to show that the sum or value in the controversy exceeds $1000. In such action there is no freehold involved, to give the right of appeal,—it is purely a possessory action, in which the title is not drawn in question.</p> <p>3. Same—as to alleged conflict between the 90ZA section of the Practice act and the 8th section of the Appellate Court act. There is no conflict, in respect to the character of case mentioned, between the 90th section of the Practice act of 1877, controlling appeals from the Appellate courts to the Supreme Court, and section 8 of the act creating the Appellate courts, giving the right of appeal in certain cases direct from the trial court to the Supreme Court. This case is not within either of those sections.</p> <p>4. Same—amount involved—how ascertained. Where the right of appeal is claimed on the ground that the amount involved in the controversy exceeds §1000 exclusive of costs, that fact must be shown by the party appealing, and it must appear from the transcript of the record. It will not be presumed, nor will evidence be heard in this court to establish the fact.</p>

<p>1. Appeals—creature of the statute only. The right of appeal does not exist at common law, but is conferred alone by statute. This being so, the time ; and manner of appealing must be governed by the statute, and an appeal can only be taken when thus allowed.</p> <p>2. Supreme Court—appellate jurisdiction is limited. The judgments of the Appellate courts are final in actions ex contractu where the amount involved is less than,$1000 exclusive of costs, and in all actions sounding in damages where the judgment of the circuit, or other lower court, is for less than $1000, exclusive of costs, and it is affirmed by the Appellate Court. In such cases this court has no jurisdiction to review the decision of the Appellate Court on appeal or writ of error, except in criminal cases, or where a franchise or a freehold or the validity of a statute is involved, or where the judges of the Appellate Court certify that the case involves questions of such importance, either on account of principal or collateral interest, as that it should be passed upon by this court.</p> <p>3. Same—how fads must he shown to give this court jurisdiction of appeals, etc. In order to give this court jurisdiction to review the judgment of an Appellate court on the ground that the amount in controversy exceeds $1000, it must appear from the record that the sum involved or value of the property in litigation exceeds that amount exclusive of costs. This can not be shown, by the averments in the declaration, nor will this court hear evidence to determine the question.</p>

Theodoee D. Muephy, presiding Justice, and Hon. Geo. W. Pleasants, and Hon. Joseph M. Bailey, Justices. This was an action of assumpsit, brought by Potter Palmer against the city of Chicago, in the .circuit court of Cook county, upon an award of damages to the plaintiff upon a proceeding to condemn lands to widen State street in the city of Chicago from Madison to Jackson street.

Mason B. Loomis, judge, presiding. This was an application in the court below for judgment against certain real property for delinquent taxes for the current year, to which were added back taxes due on the same property, together with interest, penalty, etc. One of the objections made to the entry of the judgment was that “the amount for which judgment was asked on lands forfeited was too large, by reason of the addition of interest upon interest and penalty, as well as upon…

<p>Mines—whose duty to report accident. Under section 9 of ch. 93, Rev. Stat. 1874, relating to mines, as amended by the act of May 11, 1877, the person whose duty it is made to report any accident in any mine or colliery causing loss of life or serious personal injury, to the mine inspector, etc., and upon whom a fine is imposed for neglect of such duty, is the one who has the immediate personal charge of the mine or colliery. The owner and operator of the mine or his agent is not within the penalty unless he has the personal charge of the mine.</p>

This was a petition filed in this court for a mandamus to compel the respondents, as commissioners of highways of the town of Oswego, in Kendall county, to levy a tax to pay the damages assessed on the laying out of a highway by three supervisors on appeal, in said town, and take all necessary steps to lay out and open the road. The defendants answered the petition, and to the answer the relators demurred.

Theodore D. Murphy, presiding Justice, and the Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices. This was a bill in chancery, filed by appellees, Henry T. Steele and Wear L. Drake, in the circuit court of Cook county, on the 8th day of March, 1877, against Augusta Meacham, Robert W. Meacham, Augusta R. Meacham, his wife, Rebecca Miner, and George A. Follansbee.

Writ of Error to the Appellate Court of the Second District. This cause was taken to the Appellate Court by appeal from the circuit court of Marshall county, the Hon. J. W. Cochran, Judge, presiding.

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.. This was a suit in chancery, commenced in the circuit court of Kane county, and tried therein before the Hon. Hiram H. Cody, Judge, presiding. Afterwards, upon writ of error from the Appellate Court, the decree of the circuit court was affirmed.

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. This was a creditor’s bill, filed by the -First National Bank of Sioux City and three other parties, against the firms of Gage Bros. & Rice and Gage & Rice, upon five judgments, and also against others.

<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>

Nathaniel J. Pillsbtjry, presiding Justice, and Hon. Joseph Sibley and Hon. E. S. Leland, Justices. On the 23d of May, 1878, appellant filed in the LaSalle county circuit court a petition for a mandamus against appellee for the purpose of compelling the latter to issue to him licenses authorizing him to keep a dram-shop and pool table within the corporate limits of the village of Crotty.

<p>1. “Banking powers”o/ corporation—within the meaning of the constitution of 1848. The act of the legislature of 1867, to incorporate the International Mutual Trust Company, giving it power to have, hold and loan money, and to buy or sell exchange, bills, notes, bonds and other securities, and to issue letters of credit, is not in violation of section 5 of article 10 of the constitution of 1848, because not submitted to and approved by a vote of the people.</p> <p>2. While such corporation is invested with some banking powers, it has not full banking powers, as it. is not authorized to issue bank notes to circulate as money. The words “ with banking powers,” as used in section 5 of article 10 of the constitution of 1848, which provides that no act of the General Assembly authorizing corporations or associations with such powers shall go into effect, or in any manner be in force, unless the same shall be submitted to a vote of the people, and approved by such vote, mean with power to issue notes to circulate as money. It was not intended by such section to prohibit the conferring of some of the other banking powers upon corporations without a vote of the people.</p> <p>■3. Same—with banking powers recognized by present constitution. The provisions of sections 2, 5 and 7 of article 11 of the present constitution may properly be regarded as a constitutional recognition of pre-existing corporations with banking powers.</p> <p>4. Constitution of 1848 construed—objects of sections 2 and 4 of article 10. The object and purpose of sections 2 and 4 of article 10 of the Constitution of 1848 was to make some provision of security for the debts and liabilities of all private corporations, section 4 applying to corporations possessing banking powers, and section 2 to all others.</p> <p>5. Section 5 of article 10 is to be read and construed in connection with the preceding section, which relates to banks of issue in express terms. The 4th section relates to the individual liability of stockholders in banks of issue, and the 6th provides for the mode in which such corporations having power to issue paper money shall be created.</p> <p>6. Construction—when resort may be had to. Where the words of a constitutional provision admit of doubt as to the sense in which they were employed, resort may be had, not only to the context, but the courts may also consider the evil intended to be remedied, contemporaneous exposition, and the consequences to follow.</p> <p>7. Same—contemporaneous. Great weight is to be attached to contemporaneous exposition of statutes or constitutional enactments, and a long acquiescence in a particular construction by all^departments of the government gives it almost the force of a judicial exposition.</p> <p>8. Statute—construction—-from consequences. Where there has been a practical construction which has been acquiesced in for a considerable period by the public and officers in the discharge of their duties, and rights have accrued in reliance upon it which would be divested by holding such construction erroneous, and large interests are involved in sustaining this construction, and the true construction is a matter of doubt, the argument ab inconvenienti is allowed to have great weight.</p> <p>9. Same—whether title expresses subject. The act entitled “An act to incorporate the International Mutual Trust Company,” adopted in 1867, is not in violation of the provision in the constitution of 1848, that “ no private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title.” Such act does not embrace more than one subject, and that is embraced in its title,—that is, the subject of a creation and administration of a trust fund, and the powers given are incidental and auxiliary thereto.</p> <p>10. Same—of the passage of laws—in which Souse amendments to a pending bill appear to have been made. A bill originating in the Senate was read twice in that body, and then amended by the Senate and ordered to be engrossed for a third reading. Some days afterward the bill came up in the Senate and was regularly passed, and sent to the House, asking its concurrence in the passage of the bill. There was no report of the committee, or other entry in the Senate journal, more than such order for engrossment, tending to show that the bill was in fact engrossed before its passage. In the House, the amended bill as passed by the Senate was read a first and second time and referred to a committee, and afterwards a member of that committee “reported the same back with amendments, and recommended its passage as amended,” and it was passed; and the House then “ordered that the clerk inform the Senate thereof,” and the clerk of the House reported to the Senate that he was directed to inform the Senate that the House had concurred with them in the passage of the bill “amended as per amendments attached thereto.” On the objection that there were amendments made to the bill by the House which were not duly concurred in by the Senate, it was held, it did not sufficiently appear that the bill was amended in the House at all.</p> <p>11. Same—presumption—burden of proof. Where an act of the legislature appears signed by the speakers of both houses, and approved by the Governor, and it is duly published as a law of the State, the presumptions should all be in its favor as a law duly passed. The burden is upon the party assailing the validity of the act in this respect, to show its invalidity, and make out a case.</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>

<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>

John A. Jameson, Judge, presiding. This was an action of debt, by the International Bank against Elliott Anthony, Robert H. Foss and John A. Lomax, upon an appeal bond signed by them on the appeal of a case from the Superior to the Appellate Court. The issues presented by the pleas involved the validity of the charter and the constitutionality of the act of incorporation, the power of the company to change its name, and its right to sue and be sued.

Theodore D. Murphy, presiding Justice, and Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices. This was an action of debt, by Edward C. Stanley against Henry V. Bemis, in the circuit court of Cook county, upon the record of a foreign judgment. The cause was decided upon demurrer to the defendant’s plea of the Statute of Limitations, the Hon. John G. Bogers, Judge, presiding.

D. McCulloch, Judge, presiding. On the 16th of March, 1869, John F. Cottingham was the owner in fee of the east half of the east half of section 20, in township 8 north of range 6 east of the 4th principal meridian, being the east half of the north-east quarter of said sec-tion, and the east half of the south-east quarter of the same section.

<p>1. Municipal corporations—their powers. A municipal corporation possesses and can exercise the following powers, and no others: First, those</p> <p>granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; and third, those essential to the declared objects and purposes of the corporation,—not simply convenient, but indispensable. Neither the corporation nor its officers can do any act or make any contract, or incur any liability not authorized by the statute or charter by which it is created.</p> <p>2. County—investment of sinking fund. The county board of Cook county has not the power to order the county treasurer to invest moneys in his hands collected from taxes levied to create a sinking fund to pay the bonds of the county, issued and sold under the act. of February 23, 1872, in the purchase of county bonds issued in 1879 for the purpose of building a court house, and the treasurer is not bound to obey such order. n</p> <p>3. Thé court is not disposed to deny all power of investment whatever of the moneys of a sinking fund, and compel them to remain in specie in the county treasury, and lie idle and unproductive until required to be applied. But it seems the investment must be made in public securities readily convertible into cash.</p>

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

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

Theodore D. Murphy, presiding Justice, and the Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices. This was a proceeding for the partition of real estate, commenced in the Superior Court of Cook county, where it was tried before the Hon. Samuel M. Moore. On appeal to the Appellate Court the decree of the Superior Court was affirmed. Thereupon an appeal was taken to this court.

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

Nathaniel J. Pillsbujry, presiding Justice, and the Hon. Joseph Sibley and Hon. E. S. Leland, Justices. This was a bill for an injunction, filed by H. E. Silliman, E. H. Preston, Hiram Reed, John Cutler, Mary R. Webster, John Sturm and Wallace Sturm, in the Peoria county circuit court, against Lucas Hicks, on the 3d day of October, 1877.

<p>1. Remedy—on rescission of sale for fraud. Where a sale of goods on a credit is rescinded by the vendor for fraud in the purchaser, the contract is treated as a nullity, and the vendee is treated not as a purchaser, but as a person who has tortiously obtained possession of the goods, and the form of action in such case is trover or replevin. In such case assumpsit will not lie before the expiration of the time of the credit, unless the party has converted the goods into money or money’s worth.</p> <p>2. A contract can not be rescinded in part and affirmed as to the residue. If a party treats a transaction as a contract at all, he must take it altogether and be bound by all its terms, and by bringing assumpsit for the price of goods sold, the plaintiif affirms the contract of sale. Where there is an express contract the law will not imply one. The doctrine of the New York courts that the vendor may rescind as to the credit procured by fraud, and affirm the sale, is not approved.</p>

<p>1. Mistake—reforming policy of insurance as to mistake in description of premises. Where it is shown that there was a mistake in a policy of insurance in the description of the premises, in which were the stock of goods and fixtures insured, such mistake being mutual between the parties to the contract, it is competent for a court of chancery to reform the policy in that regard.</p> <p>2. Pleading and evidence—matter of defence in chancery must be within the scope of the answer. It is a rule of equity pleading that a defendant is hound to apprise a plaintiff by his answer of the nature of the ease he intends to set up, and that, too, in a clear, unambiguous manner; and that a defendant can not avail himself of any matter in defence which is not stated in his answer, even though it should appear in his evidence.</p> <p>3. Same—as to admissions in the pleadings. So, too, it has been held, where a fact is alleged in a bill and admitted in the answer, the admission is conclusive, and evidence tending to dispute it should not be considered.</p> <p>4. Same—in the particular case. Upon bill filed by the assured to correct an alleged mistake in a policy of insurance in the matter of description of the premises in which were the goods insured, the defendant company, in its answer,' admitted that the policy alleged in the bill was issued in the form as it there appeared, and was issued by competent agents, upon a valid consideration, and no question was made but that for loss occurring under its provisions the company was liable,—the sole question made being whether there was a mistake in the description of the premises as alleged in the bill. Under this state of the pleadings it was held-inadmissible for the defendant company to set up in defence any alleged fraudulent conduct on the part of the assured in procuring the policy to he issued, or that the contract of insurance preliminary to the issuing of the policy was made with a person not authorized to bind the company,—such defences not being within the scope of the answer, or contrary to admissions contained therein.</p> <p>5. Insurance—adjustment by company’s agent—how far conclusive. Where an insurance company sends an agent to adjust a loss, it is estopped to subsequently deny that it had proper notice of the loss, and it is, in the absence of fraud, concluded by the adjustment made by such agent,—so in such case there is no ground for the objection, in a suit on the policy, that the assured failed to make proofs of loss as required in the policy.</p> <p>6. Same—excuse for not suing within the time prescribed in the policy. Pending a suit by the assured on his policy of insurance, which was brought in proper time, the company made repeated promises to pay the loss, insisting there was no need of proceeding in the courts to enforce payment. The same promises were made after the then pending suit was dismissed for want of prosecution, the suit having remained on the docket for a year or more. In a suit subsequently brought, but not within the time prescribed in the policy, it was held such promises and declarations were a sufficient excuse for not bringing suit within the prescribed time, or the non-prosecution of a suit properly commenced.</p> <p>7. Interest—as against insurance company on amount of loss. Where there is an express promise on the parttof an insurance company to pay a loss which has occurred, interest is allowable on the amount, upon such promise.</p>

This is an appeal from the circuit court of Knox county, to reverse a decree rendered by that court, June 30, 1877, in a suit in chancery, wherein Margaret Rafferty was complainant, and John Slattery and E. Erickson (whose Christian name does not appear in the proceedings) were defendants. The bill was filed August 22, 1873, and sought to reform a mortgage (alleged to have been executed by Edward Slattery to the complainant,) and to foreclose the same.

<p>1. New trials—how many may be granted. The provision in the Practice act, that no more than two new trials upon the same grounds shall be granted to the same party in the same cause, applies only to trial courts and not to the appellate courts.</p> <p>2. Same—presumption in favor of finding. A circuit judge who tries a case is not required to make the same presumptions in favor of the findings of the jury, that this court is compelled to do, as he sees and hears all that occurs on the trial and acts on evidence heard and witnesses seen, which is denied to an appellate court.</p> <p>3. Negligence—contributory—when it will prevent a recovery. Where an engineer on a railway train who, by his gross negligence in running the train at much greater rate of speed than his written instructions required, and this over a part of the road known by him to be in bad condition, when his duty was to slacken the speed, was injured, his own negligence contributing to the injury, if not producing it, it was held no recovery could be had by him of the company, even if it was also guilty of negligence.</p> <p>4. This court has often announced that a plaintiff is not precluded from recovering even though he has been guilty of slight negligence, when the defendant has been guilty of gross negligence. But no case has been found holding that a plaintiff who has been guilty of gross negligence contributing to his injury, may recover, whatever may be the degree of negligence on the part of the defendant.</p>

<p>1. Constructive trust—title obtained by fraud. Where a person obtains the legal title to land by imposition and fraud, and under such circumstances that he ought not in equity to hold and enjoy the beneficial interest, a court of equity, in order to administer complete justice between the parties, will raise a trust by construction out of such circumstances, and declare the offending party a trustee of the legal title, and order him to hold it, or execute it, in such manner as to protect the rights of the defrauded party.</p> <p>2. Where a conveyance is made of land by the holder of the legal title upon false representations made to him by a third person, which were neither authorized nor sanctioned by the grantee, and against whom no fraud is shown, he will not be declared a trustee to hold the land for the parties who have’been defrauded by the conveyance.</p> <p>3. Specific performance—after forfeiture under contract. Where a contract for the sale of land provided that, if a payment was not made by a certain day, or immediately afterwards, the purchaser was to forfeit all payments and rights in the land, and such payment was not made or offered until a long time after the same was due, and many years after a forfeiture of the contract had been manifested by the sale and conveyance of the property to another, and a recovery in ejectment by the second purchaser, it. was held that a bill for specific performance of the original contract of sale was properly dismissed.</p> <p>4. Same—discretion. A party is not entitled, as a matter of right, to call upon a court of equity to specifically enforce a contract for the sale of land, but the- exercise of the power rests in the sound discretion of the court, in view of the contract and surrounding circumstances.</p> <p>5. ' Same—laches. .A bill will not be maintained to enforce the specific performance of a contract for the sale of land, unless the vendee shows that he has always been ready, willing and eager to perform on his part. If guilty of gross laches, unexplained by equitable circumstances, his bill will' be dismissed.</p>

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

Writ op Error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding. In 1865 L. Douglass sold to C. M. Hall the north-west quarter of section 36, and the south-west quarter of section 25, township 9 north, range 3 east, giving a bond for a deed upon payment of the purchase money, and taking notes therefor payable on time at six per cent interest.

<p>1. Instruction—should not assume a question of fact. Parties met at the office of a conveyancer, one executing a note payable to the other, and executing and acknowledging a mortgage to secure the same. The papers were left with the officer. Subsequently, the mortgagee brought replevin against the officer for the note and the mortgage. In that suit it was held the court properly refused an instruction that if the ¡note and mortgage were left by the parties with defendant without any agreement as to when they were to be delivered, or as to the condition upon which they were to be delivered, then defendant had the right to hold them until both parties agreed to the delivery—and that until such agreement, there could be no unlawful detention by defendant. The instruction assumed there had been no actual delivery to the mortgagee before the leaving of the papers with the defendant, and the court had no right to take that question from the jury.</p> <p>2. Bill or exceetions—what it should contain. In the same case, the bill of exceptions did not purport to contain all the instructions given for the defendant, so, for aught that appeared, the jury may have been fully charged on the questions involved in the refused instruction,—and for that reason there was no error in its refusal.</p>

Theodore D. Murphy, presiding Justice, and Hon. Joseph M. Bailey and Hon. Geo. W. Pleasants, Justices. This was originally a proceeding in chancery, commenced in the circuit court of Cook county, by Jacob P. Willard, appellant’s testator, against appellees.

E. S. Leland, presiding Justice, and Hon. Joseph Sibley and Hon. Nathaniel J. Pillsbhry, Justices.

<p>1. Practice—finding of facts by Appellate Court. Where there is no controversy in regard to the facts of a case, this will obviate the necessity of a special finding of the facts by the Appellate Court.</p> <p>2. Bankruptcy—right to retain money paid under order after its reversal. Where the assignee in bankruptcy pays the claim of a creditor under an order of the District Court of the United States, and after such payment the order of the District Court is reversed or vacated on appeal, the creditor can not retain the money so paid to him, but it becomes assets for the payment of other creditors, and where the bankrupt is restored to his rights in the property, etc., in the assignee’s hands, by effecting a composition with his creditors, he may maintain an action in his own name to recover the money so paid under the reversed order.</p> <p>3. Same—effect of composition. The effect of a composition of a bankrupt with his creditors upon an offer to pay a certain per cent, and be restored to all the property so remaining in the assignee’s hands, when perfected in accordance with the law, is to restore to the bankrupt, not only the property in the assignee’s hands, but also to invest him with the same rights of action as previously existed in the assignee.</p> <p>4. It is not. enough to impeach a composition made by a bankrupt, that it was not with all the creditors. It is enough that it is binding upon all the creditors who were made parties to it, and this includes all who were parties to the proceeding in bankruptcy. Creditors having due notice of the proceeding for compounding,.are bound by the result or final order of the court, though not assenting.</p> <p>5. Same—who is a creditor. Where a party presenting a claim against a bankrupt is paid by the assignee, and after payment the order of the District Court allowing the same is reversed by the Circuit Court of the United States, the person so presenting his claim can not, after such reversal, insist that he is not a creditor and therefore not bound by proceedings discharging the bankrupt on a composition with his creditors.</p> <p>6. Same—jurisdiction of State courts. Rights growing out of proceedings in bankruptcy may be enforced in the State courts. It is only where the proceeding is to administer the bankrupt law itself that the United States courts have exclusive jurisdiction.</p> <p>7. Same—payment under composition order. Where a creditor has already received full payment of his claim, wrongfully, as adjudged by the Bankruptcy court, and the order of court confirming a composition with creditors required the banki'upt to pay twenty-five cents on the dollar as a condition, it was held, that the bankrupt was not bound to pay such creditor who already had in his hands seventy-five cents on the dollar more than he was entitled to receive.</p> <p>8. Same—whether creditor has lien. Where A and B, as the owners of adjoining lots, agreed that A, who was then ready to build on his premises, should build on the division line, making a party wall, and that when B built he should pay him one-half the cost of the wall, and B afterwards built, but before payment was adjudged a bankrupt, it was held that A was not entitled to a vendor’s lien, and was not entitled to any priority or preference over any other creditor.</p>

John G. Rogers, Judge, presiding. In the year 1870, the appellee, Thomas Richmond, deposited with Horton & Co., the appellants, a firm engaged in buying and selling grain on commission in the Chicago market, $5000, upon which he was to receive, interest at the rate of ten per cent per annum. This sum was, from time to time, increased by further deposits, and reduced by moneys drawn out.

<p>1. Divorce—burden of proof to show impotency. Where a wife seeks a divorce on the ground of the impotency of her husband, the burden of proof is on her to establish not only the impotency as charged, hut also that it is incurable.</p> <p>2. Same—admissions of defendant. Where a divorce sought upon such ground is refused on the proof of the husband’s admission of impotency, in the absence of anything to the contrary appearing, it will be presumed the court was not satisfied of the sincerity of such admission, and that there was no abuse of discretion in that regard.</p> <p>3. Same—on testimony of complainant. Under the statute the court is not bound to take the testimony of a party as true. The statute requires that the cause for divorce be fully proven by reliable witnesses,—and while this does not authorize the court to capriciously and arbitrarily disregard evidence, or refuse to act when the proof is reasonably clear, still it vests the court with a considerable degree of discretion in regard to the proofs.</p> <p>4. Same—lapse of time. When a wife seeking a divorce on the ground of the impotency of her husband, admits that she lived with him for ten years, during all which time he was impotent, her living with him and making no complaint is a circumstance that may be considered as tending to'show her story is a fabrication.</p>

<p>1. Continuance—of the diligence required. After the reversal and remanding of a cause for a new trial, the defendant asked for a continuance on the ground of not being prepared for trial, and the affidavit filed in support of the motion stated that the party had made diligent efforts to ascertain the Christian names of the witnesses since the order remanding the cause was filed, but failed to show when that diligence began, and what those efforts were, or that he caused inquiries to be made as to the whereabouts of a particular witness. The remanding order was filed two weeks before the commencement of the term: Held, that the application was properly overruled, due diligence requiring immediate action after the time when notice was given of the filing of the remanding order.</p> <p>2. Evidence—to impeach claim of permanent injury. On the trial of an action brought by the plaintiff against a city to recover damages for a personal injury caused by the unsafe condition of the sidewalk, from which the plaintiff fell into an excavation in the night time, not properly guarded, the plaintiff produced evidence tending to show he was suffering from an ailment known as Bright’s disease of the kidneys, and that this was caused by the fall. The plaintiff was asked, on cross-examination, if at a. former trial of the cause he had endeavored to show that he had any difficulty or trouble with his kidneys, or any peculiarity in his urine, which the court refused to allow. He was then asked if he would furnish the defendant with some of his urine for chemical examination, to which an objection was sustained, when he was asked if he refused to answer the last foregoing question, to which the court sustained an objection: Held, that in the several rulings the court erred, the evidence tending to show that a chemical and microscopic examination of the urine might determine with reasonable certainty whether the plaintiff had such disease or not.</p> <p>3. When a plaintiff on the second trial of a cause for a personal injury claims, for the first time, an injury to his kidneys in consequence thereof, the defendant will have the right to show that no such claim was made on the first trial. Such a fact, unless explained, is proper for the consideration of the jury in determining whether the claim is well founded or is an afterthought.</p> <p>4. When a plaintiff claimed an injury to his kidneys by a fall, in a suit against a city, caused by the unsafe condition of a sidewalk, and on the trial proved that albumen was found in his urine, which was a symptom of Bright’s disease, but not sufficient of itself to prove its existence, and that other examinations, microscopic, etc., would be necessary to arrive at certainty as to the fact, it was held, that the defendant had the right to put before the jury the best evidence attainable on the subject, and if in the power of the plaintiff, it was his duty to furnish the means of making the proper tests, and that it was the duty of the court to permit his refusal to do so to be shown to the jury as a fact tending to show that his claim was a fiction which an examination would expose. •</p>

<p>1. Homestead—only to value of $1000. The homestead which is exempt from levy and sale and from the laws of conveyance, etc., as provided by law, is an estate of homestead to the extent in value of $1000, occupied as a residence. If the premises so occupied exceed this value the householder, under the statute, is entitled to a homestead therein of that value and no more, and the value above that sum is subject to the debts of the householder and controlled by the laws of conveyance in the same manner and to a like extent as if no exemption had been provided by law.</p> <p>2. Where a husband, being the owner of real estate occupied as a residence, conveys the same without his wife joining in the deed and releasing' the homestead, and afterwards deserts her-, and the property is worth more than §1000, the wife will succeed to his estate of homestead, and the grantee may apply to a court of equity and have the homestead set off, or in case this can not be done, have §1000 awarded to the wife in lieu of her homestead right, and thus acquire the possession of the granted premises.</p>

<p>1. Pleading—joinder of counts upon several penal bonds. In suits upon official bonds the plaintiff has no right to join counts upon several bonds in the same declaration, and recover judgment in debt for the gross amount of the penalties to be satisfied by the payment of the damages, against one who is surety on all the bonds. The penalty in each bond stands as security for damages for the breach or breaches of that particular bond only, and a plaintiff holding several such bonds has no right to have as security for the breaches of any one of the bonds, the gross sum of all the penalties in his several bonds. The plaintiff must take a separate judgment for the penalty of each bond.</p> <p>2. Surety—right to contribution. Where a surety on all of several official bonds is compelled to pay damages on any one of them, he will have the right to call on his associates on that bond for contribution, and when his associates are different in the other bonds, this right would be defeated by a recovery in one suit upon more than one bond.</p>

Samuel M. Moore, Judge, presiding. On the 7th day of November, 1871, Charles Sonne executed a trust deed to Francis A. Hoffman, of the south half of lots 22 and 23 in Egan’s south addition to Chicago, in the county of Cook; which trust deed purported to secure the payment of k promissory note made by said Sonne, bearing even date with the trust deed, for the sum of $2500, payable to the order of Frederick W. Jaeger one year after its date, with interest.

<p>1. Bill of exceptions—when necessary—presumption where motion is not preserved. Where a motion for a new trial is not preserved in a bill of exceptions, it will be presumed that it was properly overruled.</p> <p>2. Where the evidence upon which a defendant is found guilty of a crime is not preserved in the record by bill of exceptions, this court, on writ of error, will presume it was conclusive of his guilt, and contained nothing of a palliating character.</p> <p>3. New trial—in criminal cases. Where the court has some doubt as to the guilt of the accused, hut not enough to authorize it to grant a new trial for that reason alone, any misconduct of the jury pending the trial should demand a more prompt interposition on the part of the court than in a case where there is no question as to his guilt; and where the punishment is light, or not disproportionate to the character of the offence and its enormity, the court is not under the same obligation to set aside the verdict for improper conduct in the jury in reaching an agreement, as where, under like circumstances, the punishment fixed is all the law will allow.</p> <p>4. Same—in criminal case, motion should be made in apt time. An application for a new trial in a criminal case should be made at the first opportunity. Where there is an unreasonable delay, the cause of the delay should be distinctly stated in the affidavit or affidavits upon which the application is founded,</p> <p>5. Same—verdict, the result of chance. Where, under any circumstances, it is clear or probable that a verdict is the result of chance, and not the result of the judgment of the jurors, and application is made to the court in due season, it should be set aside, and a new trial granted.</p> <p>6. Where, in a criminal case, all the jurors concur in opinion as to the guilt of the accused, which is apparent, but differ as to the length of time he should be sentenced, and agree that each will state the time he thinks proper, and that the aggregate of these sums, divided by twelve, shall be the verdict, after which some dissent, and the odd months are struck off, and all then agree as to the time thus fixed, understandingly, and there is great delay in making a motion for a new trial, the motion is properly overruled.</p>

Samuel M. Moore, Judge, presiding. Appellee filed her petition in the Superior Court of Cook county, on the 27th of March, 1874. Held: or to be acquired in said lands, passed to his grantees, and has become vested in defendant; that said Kinzie did not thereafter become revested with the title to said, lands, and was not at the time of his intermarriage with petitioner, or thereafter, seized of any estate, or interest therein, entitling petitioner to dower in any…

Prior to June, 1873, the Chicago, Danville and Vincennes Railroad Company—having a charter' to build and operate a railroad from Danville,… Held: and from Beed’s hands and with Walker’s consent twenty of these bonds were delivered to the International Bank and twenty of them were delivered to the National City Bank, and these banks transferred these forty bonds to Loewenthal, who afterwards filed this bill to foreclose the trust deed of the Chicago, Danville and Vincennes…

<p>1. Mechanic’s men—cross-bill for damages not allowed. The owner of the building against which a mechanic’s lien is sought to be enforced has not the right to file a cross-bill against the petitioner for the purpose of procuring a personal decree against him for damages for delay in the work, and to have certain suits at law growing out of the building contract enjoined. If the lien is defeated, which can be done by answer, the petition must be dismissed and the party remitted to his action at law.</p> <p>2. The remedy to enforce a mechanic’s lien is purely statutory, and nothing can be adjudicated under this proceeding except the existence and amount of the lien. If no lien exists, that ends the case, and the parties must seek their remedy, if any, at law.</p>

Theodore D. Murphy, presiding Justice, and Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices. This action was case ex delicto. Appellee recovered judgment in the circuit court of Cook county, against appellant, for $1558, and that judgment was affirmed, on appeal, in the Appellate Court of the First District. Thereupon this appeal was prosecuted.

<p>Weit or Ebeoe to the County Court of Jo Daviess county.</p>

<p>Writ of Error to the Circuit Court of DeKalb county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>1. Practice in Supreme Court—points in reply brief. Ordinarily, except for good cause shown, this court is not disposed to consider a point raised and discussed by the. appellant’s counsel for the first time in his reply brief; but where an estate of a deceased person is sought thereby to be protected, the court is disposed to hold a less inflexible rule, and to consider the point, if it goes to the merits, after allowing the opposite party to be heard upon it.</p> <p>2. Same—specific objection below. It is sufficient that an objection taken in the circuit court embraces the question presented in this court, when it does not affirmatively appear that it was not considered in the court below or discussed.</p> <p>3. Subscription—must have a consideration. Where notes are given by way of voluntary subscription to raise a fund, or to promote an object, they are( open to a defence of a want of consideration, unless money has been expended,' or liabilities incurred on the faith of the promise, which by a legal necessity must cause loss or injury to the person expending money, or incurring liability^ if the notes are not paid.</p> <p>4. In the absence of any one claiming rights as a bona fide assignee before maturity, promissory notes given for money with which to purchase a church bell, are not in any material respect different from an ordinary subscription, whereby the subscriber agrees, under his hand, to pay so much in aid of a church, school, etc., where there is no corresponding undertaking by the payee.</p> <p>5. The promise in such case stands as a mere offer, and may, as a necessary consequence, be revoked at any time before it is acted upon. It is the expend- ¡ ing of money, etc., or incurring of legal liability on the faith of the promise, which gives the right of action, and without this there is no right of action.</p> <p>6. Same—when revolted by promisor’s death. A note given by a person to the trustees of a church, to enable them to procure a bell, is a mere offer until acted upon, as 'till then there is no .mutuality, and being only an offer, and susceptible of revocation at any time before being acted upon, it follows that the death of the promisor before the offer is acted upon is a revocation of the offer, and the note can not be collected though a bell is purchased after his death.</p>

J. W. Cochran, Judge, presiding. This was an action of ejectment, brought by Lucius L. Day against Samuel S. Clark, for a strip of ground seven feet wide on Madison street, in the city of Peoria, and extending the same width the whole depth of the lot, the same being part of lot 8, block 24, in Morton, Voris and Laveille’s addition. The question presented was one of boundary between lots 7 and 8.

Benjamin Lombard, being the owner of lot 13 and the south half of lot 12, in block 139, School Section addition to the city of Chicago, on August 22,1872, executed a mortgage thereon to the United States Mortgage Company, a corporation created by a law of the State of New York, and whose place of business was in the city of New York, to secure the payment, in gold coin, of §50,000, in five years, at uiue per centum interest per annum, which was duly recorded.

<p>Resulting trust—when it arises. A person made a contract for the purchase .of a tract of land, the terms in respect to payments being agreed upon between him and his vendor,—a portion of the purchase money to be paid down in cash, and the balance in certain deferred payments. The cash payment was made by the purchaser himself. The papers concerning the purchase were adjusted by the father of the purchaser,—he, the father, taking the deed in his own name, giving his own notes for the deferred payments, and executing a mortgage on the premises to secure those notes. The father also paid the larger part of the purchase money embraced in the notes; but these payments were made by the father under a contract with the son, by which the former promised to make the deferred payments in consideration that the latter would not move to another State: Meld, the payments so made by the father would be regarded as having been made by the son'—the real purchaser,—and from the transaction would spring a resulting trust in favor of the son.</p>

Edwin S. Leland, Judge, presiding. Both parties claim the title to the property in controversy that was in Durfee Chase.

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

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

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

<p>Appeal from the City Court of LaSalle; the Hon. Geo. H. Looey, Judge, presiding.</p>

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

Theodore D. Murphy, presiding Justice, and Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices. In the spring of 1860, Francis Johnson and Michael Diver- • sey entered into co-partnership in the wholesale liquor business in Chicago. Johnson was already engaged in the business, having a stock on hand. Articles of co-partnership were drawn up and executed by the parties.

On the 29th of November, 1872, Arnold & Sisson sold and delivered to Barrett B. Clark, appellant, a stock of goods for the sum of $4910.72, to be paid for in specified installments. By the agreement Clark was to give Arnold & Sisson eight notes, for the sum of $500 each, and another for the sum of $910.72.

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

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

<p>Legacy—when payable—interest thereon. Where legacies or bequests in a will are by their terms to be paid when the testator’s estate is settled, the legatees can not demand the same until the happening of the contingency. If the executors should fail to settle the estate when by law they ought to do so, the county court can compel them to make such settlement, and then the legacies might be demanded, and the’ legatees will not be entitled to interest upon the legacies before the principal is properly demandable.</p>

<p>1. Fraudulent conveyance—evidence of fraud. A person in failing circumstances, by written agreement, sold all his real estate below its actual value to his son-in-law, who was to assume a mortgage debt thereon, and agreed to pay the vendor $3000 cash, or in sums up to that amount, from time to time, as the vendor might demand, less certain sums of money due from the vendor to the vendee, without stating the amount of such indebtedness, the purchaser having knowledge of the vendor’s indebtedness to others, and the vendor, after making conveyances, still remained in possession, and made contracts for improving the property: Held, that the written contract,, on its face, bore evidence of fraud, and, it not appearing the vendor had remaining sufficient property to pay his debts, that a decree subjecting the property to payment of a debt of the vendor was properly rendered.</p> <p>2. Where a sale is made by a failing debtor, and it appears from the transaction that it was designed the vendor should retain a secret use in the property, it must be condemned as fraudulent and void as to creditors.</p>

<p>1. Condemnation—sufficiency of verdict. A verdict in a proceeding to condemn land for right of way by a railroad company which finds that the land owner “is entitled as compensation the sum of $420, and as damages the sum of $411.25, a total sum of $831.25,” is sufficiently certain.</p> <p>2. Same—whether cross-petition necessary. Where the petition for right of way for a railroad shows that the defendant is the owner of an entire tract of land, and the petitioner proposes to appropriate a strip running through the tract described, it is not necessary for the defendant to present a counter petition in order to obtain damages for land not taken, in the same proceeding.</p>

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

<p>1. Libel—evidence—articles referred to. In an action for libel in the publication of a card in a newspaper, in reply to a previous card of the plaintiff published in the same paper, and to certain publications following the same in the same issue, called “locals,” to which defendant’s card refers, an'd from which it makes quotations, where these words in the latter, when read in connection with the publications of the plaintiff, have a signification very different from their meaning when read alone, it is error to refuse to allow the defendant to give in evidence the “locals” referred to in the plaintiff’s card.</p> <p>2. In libel and slander it is important to the proper understanding of the meaning of the words written or spoken, and of the motives and purposes of the same, that it should be shown to the court and jury what was the subject matter about which the defendant was writing or speaking.</p>

<p>1. Pleading—general issue in assumpsit. A plea of the general issue in assumpsit., that the defendant did not “promise in manner or form,” omitting the words, “undertake or,” is good, and it is error to sustain a demurrer to the same.</p> <p>2. Practice—special demurrer—amendment. If the plea were defective in this particular, it could only be taken advantage of on special demurrer, and it would be the duty of the court to allow the formal amendment to be made at once, without prejudice to the rights of the party asking leave. Not to do so, should leave be asked for that purpose, would be an abuse of discretion.</p>

<p>Pleading-—general issue. It is error to sustain a special demurrer to the plea of the general issue in assumpsit, on the ground the words “undertake and promise” are used instead of the words “undertake or promise.” These words being equivalent, the use of either constitutes as effectual a traverse as both of them, and it matters not whether they are connected by “and” or “or.”</p>

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