Volume 94 — Illinois Reports

<p>1. Statute—repeal by implication. The repeal of statutes by implication is not favored by the courts, and unless the two statutes can not be reconciled they must be allowed to stand.</p> <p>2. Same—as to penalty for obstructing highway—whether repealed. Section 68 of chapter 121, Revised Statutes of 1874, entitled “ Roads,” and which provides for a penalty for obstructing a road, etc.,' in favor of the town in which the offence is committed, is not repealed by section 221 of the Criminal Code, subsequently enacted, which provides a different punishment for the same offence by indictment, and a party obstructing a public highway may be punished under both statutes.</p> <p>3. Criminal law—double punishment for same act. While a man may not be put in jeopardy twice for the same offence, yet when his act constitutes two separate offences, one against the laws of the United States, and the other against the laws of the State, or against the State law and also against an ordinance of a city or town, he may be tried, convicted and punished under both laws, and the legislature may make the same act, as, the obstruction of a highway, punishable as an offence against the town in which the act is committed, and also as an offence against the public generally, by indictment for a nuisance, and the accused will not be in jeopardy twice for the same offence, but only once for each offence.</p> <p>4. Highway—evidence of dedication. In order to constitute a dedication of land for a public highway, it is not essential that the intention be evidenced by words, either written or spoken. If the acts of the party indicate an intention to dedicate the land to the public use, it is sufficient, and if. the dedication is accepted by the public, as by use and travel, it is complete. It is true the acts may be 'explained by an agreement or other circumstances rebutting the intent to dedicate, but if the acts are unexplained they will prove a dedication.</p> <p>5. Same—vacated if not opened in five years. Unless a public higWvay is opened for its entire length within five years from the date of its establishment, it is vacated by operation of the statute, and where there is evidence tending to show that a part of a highway laid out had not been opened within five years, in a suit for obstructing the same the defendant has a right to have the jury instructed that unless they believe from the evidence the entire road was opened within five years after its establishment it was vacated.</p> <p>6. Same—obstructing highway—effect thereof—and right of removal. Where a highway after its establishment has once been opened for travel, no subsequent obstruction can be considered in determining whether the entire road has been opened within the five years, and such obstruction can be removed, without notice, by the officer or any person whose travel is interrupted by it.</p>

Theodore D. Murphy, presiding Justice, and Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices. This was an application made originally to the county court of Cook county, for confirmation of a special assessment made by the village of Hyde Park, for the cost of constructing a brick sewer in Forty-first street, from State street to Lake Michigan.

Writ of Error to the Circuit Court of Winnebago county; the Hon. John V. Eustace, Judge, presiding.

<p>1. Trespass—of the plaintiffs possession. If a party in possession of real estate is wrongfully ousted by another, the latter can not by such wrongful act acquire a possession which it will be a trespass in the former to disturb, provided the re-entry of the person so wrongfully ousted involves no breach of the peace.</p> <p>2. If a defendant acquires possession of land only by wrongfully ousting the plaintiff, his possession is not lawful, but is unlawful, and the plaintiff may regain possession in a peaceable manner, and if again dispossessed by the defendant, he may maintain trespass for the injury.</p> <p>3. - Same—possession sufficient against a wrongdoer. A person in the peaceable possession suing for a trespass to the freehold can never be put upon proof of his title in order to recover against a wrongdoer having no title.</p> <p>4. When a person in the peaceable possession of land is ousted by a mere wrongdóer without the authority or command of the real owner, the party in possession not being a tenant, he may recover the full damages done, not only to his possession, but to the land itself, the same as if he were the real owner. The trespasser in such case can not be allowed to show title in another, and thereby mitigate the damages so as to prevent a recovery for all damages beyond the actual injury to the possession. The rule it seems is different when the plaintiff is a mere tenant.</p> <p>5. There is a»broad distinction between a case where a mere trespasser commits the wrong to the possession of another without title, and where it is done by the owner of the title, or by one authorized by him to commit the trespass. In the last case the person in possession can only recover the damage he has sustained to his possessory right.</p> <p>6. Former recovery—when a bar to another. A recovery in trespass by a person in the peaceable possession of land, who is not the owner and is not a tenant of the owner, for dispossessing him and injuring the land, is a bar to any subsequent spit by the real owner for the injury to the soil.</p> <p>7. Practice in Supreme Court—passing on fads. Where the Appellate Court sustains the verdict of a jury as to the damages found on the trial of an action for trespass to land, they depending on controverted facts, the judgment of the Appellate Court as to the right to the damages recovered is final,' and this court can not examine the evidence as to the damages.</p>

Tazewell B. Tanner, Judge, presiding. This was an action brought in the court below, by Patton, against the town of Mt. Vernon, to recover for services as an attorney at law, under a contract alleged to have been made with the supervisor of the town.

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

<p>1. Swamp lands—when selected by Illinois Central Railroad Co. Swamp and overflowed lands selected by the Illinois Central Railroad Company in lieu of other lands sold or pre-empted, after the list thereof properly certified was filed for record in the proper county, can not be recovered by the county in which they lie, as the legal title to such lands is in the railroad company and not in the county.</p> <p>2. Under the two grants to the State of Illinois of lands for the purpose of constructing a railroad, and that of swamp and overflowed lands, the State took the whole legal title, with full power of disposition, without regard to the uses for which the lands were granted.</p> <p>3. Upon the selection of the lands granted the State for railroad purposes, by the Illinois Central Railroad Company, as provided in the statute, the grant to the State under the act of Congress of Sept. 20, 1850, became certain, and the grant attached to the particular lands selected, and the title to them vested in the railroad company.</p>

Tazewell B. Tanner, presiding Justice, and the Hon. James C. Allen and Hon. David J. Baker, Justices. This was an action of assumpsit, brought by Josiah O. Low, trustee, for the use of the Grand Tower Mining, Manufacturing and Transportation Company, against William C. Buchanan, in the circuit court of St. Clair county, and tried before the Hon. William H. Snyder, Judge, presiding.

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action of assumpsit, brought by the Wiggins Ferry Company, against the Ohio and Mississippi Railway Company, to the April term, 1876, of the St. Clair circuit court.

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

<p>Writ op Error to the Appellate Court of the Fourth District; the Hon. Tazewell B. Tanner, presiding Justice, aud Hon. James C. Allen and Hon. George W. Wall, J ustices.</p>

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. William H. Barnum, Judge, presiding.</p>

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

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

<p>Wbit of Ebbob to the Circuit Court of Williamson county; the Hon. Monboe C. Cbawfobd, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Wayne county; the Hon. James M. Pollock, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. George W. Wall, Judge, presiding.</p>

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

Writ oe Error to the Appellate Court of the Fourth District. In the year 1866, Victor Buchanan, as administrator de bonis non of the estate of John C. Riley, deceased, in pursuance of an order of the county court of Lawrence county, sold at public sale divers tracts of lands belonging to the estate of said Riley. Israel A. Powell became the purchaser for the price of $4178.

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

This was an action of replevin, brought by appellant against appellee, to the September term, 1878, of the St. Clair circuit court, for the recovery of certain United States bonds, amounting in the aggregate to '$4000.

<p>Contested elections—jurisdiction. The county courts have no jurisdiction to hear and determine the contest of an election in respect to the office of alderman in a city organized under the general law for the incorporation of “cities, villages and towns.” That jurisdiction is conferred by the general incorporation law upon the city council of the city in which the election has been held, under the provision which makes the council the judge of the election and qualification of its own members.</p>

<p>l. Boundary line between counties of Perry and Jefferson—of the Little Muddy river. Under a proper construction of the act of 1835, “to change the county line between Perry and Franklin counties,” the Little Muddy river forms the eastern boundary of only so much of Perry county as abuts upon Franklin county, and does not constitute the eastern boundary of that portion of Perry county which abuts upon Jefferson county. The boundary line between Perry and Jefferson counties is the third principal meridian, as established by the act of 1827 creating the county of Perry.</p> <p>—construction of act of 1835. Jefferson county abuts upon Franklin on the north,—both these counties abut in part upon Perry on the east. The Little Muddy river crosses the north line of Perry county a short distance west from its north-east cornel-, thence running south-easterly, crosses the east boundary line of Perry into Jefferson county, thence meandering in a southerly direction through Jefferson and Franklin to a point not far north of the south-east corner of Perry, where the river takes a south-westerly course, crossing again the east boundary of Perry, passing into that county and cross-*n8 its south boundary line, thus cutting off the north-east and south-east corners of Perry county. The letter of the act of 1835 would constitute the Little Muddy river the east boundary line of Perry county, to the entire extent of the county, thus making it the boundary line between Perry county and the counties of Franklin and Jefferson abutting Perry county on the east. But to give the act that effect would attach to Franklin county that part of Perry situate in the north-east corner, which is cut off by the river, and which is entirely detached from Franklin county proper, and upwards of three miles from it. To avoid this absurd result the letter of the act must yield to the evident intention of the legislature as deduced from the whole act taken together, giving due consideration to the title of the act, and the situation of the territory to be affected.</p> <p>3. So, the point of commencement as intended to be fixed by the act is the middle of the river at the point where it crosses the north boundary line of Franklin county, thence west on the county line to the third principal meridian, thence north to the north-east corner of Perry county as established by the act of 1827, thus leaving the meridian line as the boundary between Perry and Jefferson counties.</p> <p>. 4. Construction or statutes—of the title of an act. Although the title of an act is commonly said to be no part of the act, it is not to be wholly disregarded in putting a construction upon the statute. The object of the legislature is very often avowed in the title as well as in the preamble; and where the mind labors to discover the design of the legislature, it seizes upon everything from tvhioh aid can he derived; and in such case, the title of an act claims a degree of notice, and will have its due share of consideration.</p> <p>5. Same—as to following the letter of the statute. Statutes must be interpreted according to the intent and meaning, not always according to the letter. A thing within the intention, is within the statute, though not within the letter; and a thing within the letter is not within the statute, unless within the intention. There is sufficient authority to warrant departure from the words of a statute when to follow them would lead to an absurd consequence.</p>

<p>1. Measure Of damages—on failure to deliver grain sold. The measure of damages for a breach of a contract to sell and deliver grain, where the price has not been paid, is the difference between the market value at the time of default and the contract price, with six per cent interest thereon.</p> <p>2. Variance—as to lime of delivery under contract. Where a declaration in a suit for the breach of a contract for the sale of wheat, alleged that by the contract the wheat was to have been delivered “in a reasonable time,” and the proof was, to be delivered on payment and demand, “at any time within five weeks,” it was held that the variance would have been fatal if the objection had been made on the trial, unless the declaration had been amended.</p> <p>3. Practice—time to object. Where an objection could have been obviated by amendment, and it is not made on the trial, it will be too late to urge the same in this court for the first time. So held of a variance between the declaration and proof as to the terms of a contract.</p>

<p>Appeal from the County Court of Madison county; the Hon. M. Gr. Dale, Judge, presiding.</p>

<p>1. Administrator’s bond—setting aside will does not release sureties. A decree of the circuit court setting aside a will and directing an administrator with the will annexed to administer the estate as intestate property, will not release the sureties on his bond for the funds coming to his hands when he continues to act as administrator and closes the administration of the estate.</p> <p>2. Administrator — guardian — in which capacity liable. Where an administrator of an estate is also guardian for the sole heir and distributee, and closes the administration of the estate substantially, though he makes no report of the same to the county court, and charges himself in a private book with the funds due the heir, and pays the necessary expenses of his ward and collects the rents as guardian, and a reasonable time has elapsed for completing the administration of the estate, his sureties as administrator will be released, and his .sureties as guardian will be liable for the funds which came into his hands in the capacity of administrator.,</p> <p>3. Where a person sustains the dual relation or trust of administrator and of guardian of the sole distributee, and before his death makes no settlement of his accounts, or does any other act showing an election as to the capacity in which he holds the unexpended funds of the estate in Ms hands, it will be presumed after a reasonable time for settling the estate has elapsed, and especially after the administration of the estate has been completed, that he held such funds as guardian, and his sureties as guardian alone will be liable for the same. An order of the county court transferring the funds in liis hands as administrator is not indispensable in such case to charge his sureties" as guardian.</p>

<p>1. Taxation—whether for corporate purpose, and herein, as to the validity of an enabling act in respect to back taxes. The tax ordered to be levied by the common council of the city of Chicago for municipal expenditures for the years 1873 and 1874, was for a corporate purpose and within the appropriation ordinances of those years, and the act of 1877 authorizing cities and towns to collect back taxes, the collection of which had been defeated, does not require the imposition or levy of a new tax, but the act is merely remedial to aid in the remedy to enforce a pre-existing right, and therefore the collection of such back taxes is not for the payment of debts contracted in excess of the constitutional limitation of the power of the city to create indebtedness.</p> <p>2. AYhere a city levies a tax within its authorized powers but fails to collect the same, the levy being defective in not having been made in the time required by law, and because not certified to the county clerk for extension, it is competent for the legislature subsequently to authorize their collection by certifying the proper amount of the levy to the county clerk, and having the same extended upon the assessment of the year for which they were levied, the same as might have been done at the proper time.</p> <p>3. Under the act of 1877 for the collection of unpaid back taxes, the common council has nothing to do in the way of the imposition of taxes, but is merely to ascertain and cause to be certified what was done by the former common councils, and the only limitation is that such amount shall not exceed the appropriation ordinances for the years in which such taxes were levied.</p> <p>4. The fact that the municipal expenses of a city have been paid for certain years in which the collection of its taxes was defeated, presents no constitutional or other grounds why such back taxes may not be collected under appropriate enabling legislation, it being a cardinal principle of taxation under the constitution that each shall contribute his share towards governmental expenses in proportion to the value of his property.</p> <p>5. Nor will the fact that such back taxes levied are not now needed, and will not be applied to the particular corporate purposes for which they were originally required when attempted to be collected, render their collection improper. They will still belong to the corporation for municipal purposes, and, like any other surplus, will remain in the treasury subject to future appropriations, and thereby lessen future taxation.</p> <p>6. Same—actual levy not essential to lien. It is not essential to the lien given by law for taxes, that an actual levy should be made within the year. If not made within the year and the taxes are not paid, it is competent by subsequent legislation to enforce the lien, by authorizing the levy and collection in subsequent years upon the assessment of the proper year or years.</p> <p>7. Same—uniformity. Where the collection of a tax has been defeated for defects in the levy, or other proceedings not going to the right to levy the same, and some of the taxes have been voluntarily paid, a law authorizing the proper extension and collection of such taxes, which provides for giving credits to the parties paying personal taxes and to the land for the taxes voluntarily paid on the same, is not in violation of the constitutional provision requiring uniformity.</p> <p>8. Same—construction of act of 1877. The act of 1877, giving power to the common council to determine and certify the amount which was required to be raised by taxation for all municipal purposes for any prior years, for or during which an assessment or levy was attempted to be made, means the amount that was by the action of the city council in such prior years required to be raised by taxation for those years, and not merely for a sum sufficient for the city expenses over and above the means and revenue derived from licenses and other sources.</p> <p>9. Appropriation ordinance—when passed. Where an appropriation ordinance was passed within the time limited by law, and the mayor afterwards vetoed some of the items, and after the time fixed for passing such ordinance the city council passed most of the vetoed items over the veto, it was held that the ordinance was passed in time, the subsequent action of the council amounting in law merely to an adherence to appropriations already made.</p>

<p>1. Taxation of lands owned by the Illinois Central Railroad Company—exemption. Section 22 of the charter of the Illinois Central Railroad Company, providing that the lands selected under the act of Congress approved September 20, 1850, which made a grant of lands to certain States named, in aid of the construction of a railroad from Chicago to Mobile, should be “ exempt from all taxation under the laws of this State until sold and conveyed by said corporation,” has been held to be a constitutional enactment, and is a contract between the company and the State which it"is not competent for the legislature to disregard or in anywise impair.</p> <p>2. These lands may be sold by the company on a credit, and on failure of the purchaser to pay the purchase money the company may, if the contract so provide, declare a forfeiture thereof.</p> <p>3. So, where the company had entered into a contract of sale of certain of its lands, no conveyance being made, and the purchasers failed to pay the purchase money according to the terms of the contract, whereupon the company declared a forfeiture of the contract of sale, it was held, the lands were not subject to taxation. They had not been “ sold and conveyed,” within the meaning of the 22d section of the charter.</p> <p>4. If the clause in section 61, chapter 120, Rev. Stat. 1874, which declares that “Illinois Central Railroad lands and lots shall be taxable,” after having been sold, “ from and after the time the last payment becomes due,” was intended to change the rule of taxation of these lands as prescribed in the 22d section of the company’s charter, then the General Assembly has transcended its powers in that regard.</p>

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

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

This was a bill in equity, by Frederick G. Jansen and others, against Anton Binkert, in the circuit court of Adams county, and heard before the Hon. John H. Williams, judge, presiding. The object of the bill was to enjoin the collector, Anton Binkert, from the collection of certain unpaid city taxes of the city of Quincy for the year 1878.

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

<p>1. Juror—competency, in what manner to be questioned. This court can not inquire into the competency of a juror, where the record fails to show that the question of his competency was presented to the court below by challenge for cause or otherwise, the bill of exceptions simply showing that after the juror was examined touching his competency, he was challenged peremptorily.</p> <p>2. Same—competency of a juror as having formed an opinion. A person called as a juror in a criminal case where the defendant was indicted for murder, stated, in response to questions touching his qualifications as a juror: “I have read newspaper accounts of the commission of the crime with which the defendant is charged, and have also conversed with several persons in regard to it since coming here, and during my attendance upon this term of court,—do not know whether they are witnesses in the case or not—do not know who the witnesses in the case are. From accounts I have read and from conversations I have had, I have formed an' opinion in the case, and would have an opinion in the case now if the facts should turn out as I heard them, and I think it would take some evidence to remove that opinion. Would be governed by the evidence in the case, and can give the defendant a fair and impartial trial according to the law and the evidence.” A challenge for cause in behalf of the defendant having been denied, the juror was challenged peremptorily. It was held, the juror was competent. The opinion formed seems not to have been decided, but one of a light and transient character, which, at no time, would have disqualified the juror from serving. But aside from this, all objection as to his competency in respect to any opinion he seems to have formed was removed by the statute. Rev. Stat. 1874, 633, g 14.</p> <p>3. Same—effect of peremptory challenge where challenges not exhausted. In this case the defendant, in the selection of the jury by whom he was tried, exhausted only two of his peremptory challenges, so that even if the juror was erroneously held to be competent, and the defendant thus compelled to accept him or to challenge him peremptorily, no harm could have resulted, and the error would not be ground of reversal.</p> <p>4. Criminal law—self-defence. The law does not allow a person to wilfully bring an attack upon himself for the purpose of getting an opportunity to kill his assailant, and then justify on the ground that he was acting only in his necessary self-defence. So where a person pursues another to his place of refuge, with malice, and actuated by a desire for revenge, and invites the peril of an attack upon himself in order that he may have an opportunity to kill his assailant, if he thus draws an attack and kills his assailant, the act of killing is murder.</p> <p>5. Same—threats. Where threats to take life are made, it has been held thatr before a party may attack or inflict harm upon the person making the threats, there must be some overt act from which an intention may be reasonably inferred to carry into effect the threats, and the danger must be imminent.</p> <p>6. Same—of evidence as to motive of witness. One McDonald, while in the store of another, was shot and killed by one Zack Wilson. On the trial of a brother of Zack, on the charge of murder, as having advised and aided in the act of killing, the proprietor of the store in which the killing was done, and who was present at the time, was a witness, and in answer to the question by the prosecution: “Will you tell the jury how you came to load your gun?” said: “I had an intimation that Zack was coming there to shoot McDonald, and I was loading my gun to protect my house.” As original testimony this would doubtless have been objectionable. But on cross-examination the defendant had drawn from the witness the fact that he was loading his gun when Zack approached McDonald, necessarily with the view to raise some unfavorable inference against the witness, or some favorable inference in behalf of the defendant,—and under the circumstances there was no impropriety in getting at the motive of the witness in loading his gun.</p> <p>7. Same—as to declarations of the person killed. In the case mentioned, inasmuch as the line of defence justified the shooting of McDonald as in necessary self-defence of Zack, it was competent, in rebuttal of that theory, to show that McDonald was not aggressive, but on the contrary acting on the defensive, and to that end, any of his declarations explanatory of accompanying acts would be admissible as a part of the res gestee.</p> <p>8. Same—declarations of a co-conspirator. Where several persons have conspired t.o have done an unlawful act, the declarations of one of them in respect of the subject matter of the conspiracy, made after the conspiracy has been formed, are admissible in evidence against his co-conspirators.</p> <p>9. But declarations in respect to the proposed unlawful act, made by one of the parties before the conspiracy was entered into, will not be competent evidence against other persons who subsequently joined in the conspiracy to do the threatened act. Though in this case the admission of such declarations against a subsequent co-conspirator was held not to be ground of reversal, as the evidence could have done no harm, under the circumstances of the case, to the party against whom they were admitted.</p> <p>10. Error—improper argument by counsel. Although a State’s attorney may have indulged in much intemperance of speech in his closing argument in a criminal case, yet, if it does not appear that the attention of the presiding judge was called to the circumstance, it can not be said the court erred in not checking the counsel.</p> <p>11. Error will not always reverse. But even if there were error in that regard, it would not authorize the reversal of a judgment clearly right under the evidence. Where the result reached by a judgment is clearly right, it will never be reversed for errors which do not affect the substantial merits of the case.</p>

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

Chauncey L. Higbee, presiding Justice, and Hon. Oliver L. Davis and Hon. Lyman Lacey, Justices. On appeal from the Circuit Court of McLean county; the Hon. Cyrus Epler, Judge, presiding. This was an action of debt, brought in the name of Shelby M. Cullom, Governor of the State of Illinois, for the use of McLean county, against Samuel F. Dolloff and others, his sureties, upon the official bond of Dolloff as clerk of the circuit court of McLean county.

<p>This was an application for a mandamus in this court by the relator, Franz Schaclc, against Hardin B. Brayton.</p>

<p>1. Appeal from Appellate Court—whether the finding upon the facts shall he reviewed. In an action on the case to recover damages for an injury resulting from the alleged negligence of the defendant, the question of contributory and comparative negligence arose upon the evidence, and a judgment in favor of the plaintiff in the trial court, was affirmed on appeal to the Appellate Court, and it was held, on appeal from the Appellate Court to this court, that the affirmance by the Appellate Court of the judgment of the trial court amounted to a finding of the facts upon the question of negligence in favor of the plaintiff, and, so far as that question was a question of fact, such finding was conclusive upon this court.</p> <p>2. Same—as to excessive damages. In such case, however, this court did inquire and determine whether the damages assessed by the jury were excessive.</p> <p>3. Excessive damages—:for personal injuries from negligence of another. A guest at a hotel, while proceeding to his room, by mistake opened a door near the door of his own room, which led into an “elevator” opening, and in attempting to step into what he supposed was his room, he fell into the “ elevator ” opening, down to the basement of the building, receiving very severe and permanent injuries, which disabled him from pursuing his usual avocation. The accident was the result of negligence on the part of the hotel keeper in not having the opening properly guarded. A verdict in favor of the plaintiff for $2000 was considered not excessive.</p> <p>4. Instruction—omission to state the rule of comparative negligence. In an action to recover upon the alleged negligence of the defendant, the question of contributory and comparative negligence was presented on the proofs. In a series of instructions for the plaintiff, the first laid down the rule on that subject fully and accurately,—the second merely defined negligence, without reference to the rule as to comparative negligence. It was held, the second instruction merely laid down an abstract principle of law, and it was not essential it should repeat the rule concerning comparative negligence, which was fully given in the preceding instruction.</p> <p>6. Negdigence—duly of inn keepers to protect their guests from harm. A guest at a hotel was assigned a room which he had occupied on a former occasion, and, supposing he could find it without difficulty, declined the services of a bell-boy proffered him to show the way. In going to his room the guest, by mistake, opened a door which was very near to the door of his room, but led into an “elevator” opening. It was in the night time, and the hall only dimly lighted. The guest, not discovering his mistake, stepped into the doorway and fell to the basement of the building, receiving serious injuries. There was no guard or protection against accident in case of such a mistake; and an employee of the house had previously been injured by a similar accident at the same place. This was known to the landlord, and no steps taken to prevent a recurrence of the accident. It was held to have been the duty of the hotel keeper, in the exercise of ordinary care for the safety of his guests, which the law required of him, to secure the opening in such way as not to endanger persons under like circumstances, arid the omission of such duty was gross negligence.</p>

<p>1. Intoxicating liquors—liability for injuries resulting from sale of intoxicating liquors. Where an intoxicated person in going to his home in the night lias to cross a railroad, and next morning is found on the track, killed by being run over by a1 train of cars, the intoxication will be held the proximate cause of his death, and the party furnishing him the liquor, and the owner of the premises where the liquor is furnished to him, will be liable to his widow, under the statute, for injury to her means of support.</p> <p>2. Same—statute must have practical construction. It is not the intention of the statute that the intoxicating liquor alone, exclusive of any other agency, shall do the whole injury for which a civil remedy is given. The statute was designed for a practical end and to give a substantial remedy, and should not be so construed as to defeat the purpose designed.</p> <p>3. Pleading and evidence—when averment need not he proved. Where a declaration in a suit by a widow to recover damages for the death of her husband by the sale of intoxicating liquor to him, alleged that he was killed by a train of cars in consequence of his intoxication, without any fault on the part of the railway company, it wits held that in the absence of proof of fault on the part of the company it would be presumed there was none, and that the allegation not being material, was not necessary to be proved.</p>

<p>Generad demurrer to declaration—one good count. A general demurrer to a declaration containing several counts can not be sustained if there be one good count, however many bad counts the declaration may contain.</p>

This was an action by the City of Springfield against Edwin S. Walker, in the Sangamon circuit court, to recover a penalty for the violation of an ordinance of the city.

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

<p>1. Change of venue—may be upon equitable terms. Under the Rev. Stat. of 1874, an order for a change of venue in a civil case may be made subject to such equitable terms as safety to the rights of the parties may require, and the court, in prescribing the terms and conditions, must exercise a sound discretion, and the exercise of such discretion is no ground of error unless there is an abuse of it clearly prejudicial to the rights of the party complaining.</p> <p>2. Where the defendants in an action of ejectment applied for a change of venue, and it was made to appear by affidavit of the plaintiffs that they had bought the land from parties who obtained title from the defendants, or some of them, and that the use of the property was worth $600 per annum, that two of the defendants resided out of the State, and that the others had no property out of which the rents or damages for withholding the property could be recovered, and that the case had once been tried resulting in favor of the plaintiffs, and that the plaintiffs had been subjected to a loss of not less than $600 annually since the commencement of the suit, by being deprived of the use of the premises, it was held no abuse of discretion, and no error, in requiring the defendants, as a condition to granting a change of venue, to execute a bond to the plaintiffs in the sum of $500, conditioned to secure the plaintiffs in the payment of rents for the premises in the event of a recovery by them.</p> <p>3. Description of land in a patent. A description of land in a patent from the United States as “ the west half of the south-west quarter of section 9. in township 15 north, range 10 west, in the district of lands offered for sale at Springfield, Illinois,” is sufficiently certain. It is not essential to name the county in the patent, and describing the land as in the district of lands offered for sale at Springfield, Illinois, shows sufficiently the State in which the land is situated.</p> <p>4. National bank—may take conveyances of land in payment of debts. A national bank has the right to acquire the title to real estate in satisfaction of a pre-existing indebtedness.</p> <p>5. Conveyances of real estate to national banks are valid for all purposes until called in question by a direct proceeding instituted for that purpose by the government. They can not be attacked collaterally, as, in an action of ejectment.</p> <p>6. Judgment—in ejectment. Where the plaintiff in ejectment claims to own the premises in fee, and the verdict finds the defendants guilty, and that the plaintiff is the owner in fee of the premises described in the declaration, a judgment that the plain tiff is entitled to and shall have and recover of and from the said defendants the possession of the premises described in the declaration, to-wit, etc., though technically defective, when considered in connection with the verdict is sufficient 'to show the estate recovered, and is substantially good.</p>

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

<p>Appeal from the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.</p>

Charles S. Zane, Judge, presiding. This was an action of ejectment by appellees, claiming as heirs at law of Michael Walsh, deceased, against appellants, claiming as trustees of his estate, to recover possession of certain lands lying in Montgomery county. The case was tried by the court without the intervention of a jury, and judgment was rendered in favor of appellees, to reverse which this appeal is prosecuted.

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

<p>1. Partnership—right to an accounting. A bill by a partner filed before the end of the term the partnership was to run, alleged violations of the partnership contract, and asked for the dissolution of the partnership, and that an account be taken. During the pendency of the suit the term of the partnership expired. A supplemental bill was filed by leave, stating this fact, and charging a misappropriation of the partnership assets by the defendants, and asking for an accounting between the partners. Answers were filed to both bills, and replication thereto, and proofs were taken and the cause referred to a master, who made a report showing there was due to the complainant from one of the other partners several thousand dollars, and considerable amounts due the firm. The court on the hearing, without any exception having been taken to the report, dismissed the bills: Held, that the complainant was entitled to a decree settling the accounts and providing for the disposition of the effects of the firm, and that the court erred in dismissing the bills.</p> <p>2. Chancery practice—master’s report. If there is no ground for setting aside a master’s report on a bill to adjust partnership accounts, a decree should be entered upon it, and if otherwise, the report should be set. aside, and the matters again referred to the master to state the account correctly.</p>

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

<p>1. Appeals in criminal cases—whether appeal will lie—and to what court. Under the statutory enactments in force since July 1, 1879, appeals from and' writs of error to the circuit courts, etc., in all criminal cases below the grade of felony, must be taken directly to the Appellate Court, and not to this court.</p> <p>2. Prior to the first of July, 1879, an appeal did not lie to this court in a criminal case.</p> <p>3. Same—statutes construed. The provisions of section 8 of the Appellate Court act and section 88 of the Practice act of 1877, that appeals from and writs of error to circuit courts, and the Superior Court of Cook county and city courts, might be taken directly to the Supreme Court, in all criminal cases and cases in which a franchise or freehold was involved, are not to be construed as giving a right of appeal in a criminal case, but only as allowing appeals and writs of error to this court in those several enumerated cases according as appeals and writs of error lay in such cases under the then existing laws, namely: a writ of error in criminal cases, and in the other cases named both a writ of error and an appeal, and not requiring those cases to be first taken to the Appellate Court.</p>

This was a motion on behalf of the unsuccessful party in this suit, the appellee, to quash a fee bill from the office of the clerk of this court in the Central Grand Division.

<p>Appeal from the Circuit Court of Adams county; the Hon. Joseph Sibley, Judge, presiding.</p>

<p>„ „ . 1. Limitation—saving clause, when plaintiff is non-suited. The clause in section 24 of the limitation law which provides, that if the plaintiff be non-suited, and the time limited for bringing the action has expired during the pendency of the suit, a new action may be brought within one year after such judgment against the plaintiff, refers to involuntary non-suits as known to the common law, and not to voluntary non-suits authorized by our statute.</p> <p>2. Voluntary non-suit—its effect. Since 1845, a plaintiff may take a non-suit, but it most usually occurs in the progress of a trial. In either case there is a judgment against the plaintiff for costs, but the judgment is not in bar, nor will it preclude him from recovering on the same cause of action. In this respect it is precisely the same thing, in effect, as a dismissal by the plaintiff.</p> <p>3. Non-suit—difference between voluntary and involuntary. A voluntary non-suit is an abandonment of a cause of action by a plaintiff, and an agreement that a judgment for costs be entered against him; but an involuntary non-suit is where the plaintiff neglects to file his declaration or to appear when called for trial of the case, or where he gives no evidence upon which a jury can find a verdict in his favor. At common law there could be no non-suit except on the motion of the defendant.</p> <p>4. Same—involuntary, on the evidence.* Where the plaintiff gives evidence tending to establish his right to recover, the court has no right to take the evidence from the jury, or to instruct them to find one way or the other; but if the plaintiff introduces no evidence, and the defendant moves the court for a non-suit, it may be properly granted, although the plaintiff objects. So, where the plaintiff may introduce some evidence, and yet it lacks all the essential elements of proving his right to recover, and wholly fails to make a case, the defendant may move to exclude it, or move for a non-suit, and if not assented to by the plaintiff, the court may grant the non-suit, and in such case it would be involuntary. If the defendant introduces evidence on his part, he can not, afterwards, move for a non-suit or to exclude all the plaintiff’s evidence.</p> <p>5. Pkgading—requisites of special demurrer. It is not sufficient, in a special demurrer, to assign for special cause in general that the' pleading demurred to is double or lacks form. It must show in what the duplicity consists, or wherein the form is deficient.</p>

C. L. Hiebee, Judge, presiding. This is an action of ejectment, brought by appellee against appellant, at the March term, 1876, of the circuit court of Brown county, for the recovery of the south half of the south-east quarter of section 34, township 1 south of range 2 west of the fourth principal meridian.

<p>Writ op Error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>1- Limitation act of 1839—saving clause as to married women abrogated by Married Woman’s act. Since the passage of the Married Woman’s act of 1861, the saving clause in favor of married women in the Limitation law of 1839 has no force, and the statute since that time applies against a married woman equally as against an unmarried woman, without regard to whether the property of the unmarried woman he strictly, in legal contemplation, before the passage of the act, her separate property or not, and without regard to the time of its acquisition, whether since or before the passage of the act, and whether before or during coverture.</p> <p>2. Where land was acquired by a woman in 1842, by devise from her father, and she married in 1846, and in June, 1865, a party went into possession of the same under claim and color of title, and he and those succeeding to his claim and color of title, while in possession, paid all the taxes thereon for seven successive years before suit brought by her to recover the land, it was held, that the action was barred under the Limitation law of 1839.</p> <p>3. Same—bow defeated. The limitation of 1839 might have been prevented by the payment of the taxes by the owner, and the outstanding title in the husband formed no impediment to their payment since the act of 1861. The taxes should have been kept paid, not on any one’s particular interest in the land, hut on the whole land.</p>

<p>1. Mining—injury to surface land by leaving no sufficient supports. Where the surface of land belongs to one, and the minerals to another, no evidence of title appearing to regulate or qualify their rights of enjoyment, the owner of the minerals can not remove them without leaving support sufficient to maintain the surface in its natural state.</p> <p>2. The rule is well settled that when one owning the whole fee grants the minerals, reserving the surface to himself, his grantee is entitled only to so much of the mineral as he can get without injury to the superincumbent soil.</p> <p>3. Same—injury to building by subsidence of earth. While it is doubtless true the party owning the minerals under the land of another, or having a lease to remove the same, is only bound to leave support for the superincumbent soil in its natural state, and is not required to leave support for additional buildings erected on the surface, yet the mere presence of a building I or other structure upon the surface will not prevent, a recovery for injuries to ! the surface, unless it is shown that the subsidence would not have occurred j from the act, if no buildings existed upon the surface. The act creating the. subsidence is wrongful, and renders the owners of the mine liable for all; damages that result therefrom, as well to the buildings as to the land. '</p> <p>4. The act of removing all support from the superincumbent soil is prima facie the cause of its subsequently subsiding; but if the subsidence is in fact caused by the weight of buildings erected on the surface after the execution of a lease to the defendant, authorizing him to take the mineral beneath the surface, that may be shown in defence as contributive negligence.</p> <p>5. Mining lease—construed. Where a mining lease stipulated that no pillars should be withdrawn within 600 feet of the shaft, and the whole clause relates to the manner of working the mine and the condition in which it should be left, it was held that the lessees were not by implication authorized to withdraw pillars or supports not within the prescribed distance so as to cause a subsidence of the superincumbent soil.</p>

<p>Parties in chancery—on bill to set aside deed obtained by fraud. Upon bill to set aside a conveyance of land executed by the complainant, and alleged to have been obtained by fraud, and also to set aside a series of conveyances subsequent thereto, of the same land, alleged to have been made in aid of the fraud, the heirs of an intermediate grantor who had conveyed with covenant of warranty are not necessary parties, unless it appears that they have assets from the ancestor who made the covenant. If the heirs have received nothing from the covenantor they can by no possibility be made liable upon his covenant, and therefore would have no interest to be aifected by the decree.</p>

Chauncey L. Higbee, presiding Justice, and the Hon. Oliver L. Davis and Hon. Lyman Lacey, Justices. This was an action of assumpsit, brought by James Jarrett against John Ruff and others, upon a promissory note. The case was tried in the circuit court of Adams county, the Hon. Joseph Shops, judge, presiding, and taken by appeal to the Appellate Court. Messrs. Arntzen & Moore, for the appellants.

<p>1. Resulting trust—when it arises. Where land is purchased with the money of one person, and the deed taken in the name of another, a trust results by operation of law in favor of the person whose money is used.</p> <p>2. In this case, one of two joint defendants in execution purchased land at the execution sale, paid the amount of his bid, and received from the officer a certificate of purchase. Under a misapprehension as to his right to become a purchaser at the sale, he surrendered bis certificate of purchase to the officer and procured another to be issued to a third person, but retaining it in his own'hands until the time of redemption expired. He then, under some agreement not involving the payment of the money, delivered this second certificate of purchase to the person in whose name it was issued, who thereupon assigned it to his wife, and she at. once took a sheriff’s deed in her own name. The wife had knowledge of all the facts, and was a mere volunteer. It was held, a resulting trust would arise in favor of the person who paid the money at the execution sale.</p> <p>3. The mere fact that the purchaser at the execution sale procured the second certificate of purchase to be issued to a third person, could in nowise operate to bar his rights in the premises. That act was not in contravention of any rule of public policy so as to prevent a resulting trust from arising in his favor.</p> <p>4. Nor would the fact that the person so alleging the resulting trust offered to accept a settlement in respect to the subject of the controversy, in any way militate against his claim.</p> <p>5. Purchaser—who may become a purchaser at an execution sale. One of two . defendants in an execution may properly become a purchaser at the execution sale of the land of his co-defendant;—and especially would this be the case where the purchaser was surety for his co-defendant in respect of the debt for which the judgment upon which the execution issued was rendered.</p>

<p>1. Secondary evidence—notice to produce. Where the proof shows that the opposite party has not a deed in his possession, no notice to him to produce the same is necessary, to admit parol evidence of its contents. Proof of the loss of the deed is sufficient.</p> <p>2. Same—diligence of search for lost deed. Where the grantor of land in the State of Iowa, after the delivery of the deed in this State with covenants of warranty, took the deed with him to have the same recorded in the proper county in Iowa, and on his return said it had been recorded, and some six months afterwards, when informed that it had not been recorded, stated that it was on file with the recorder, but that he had forgotton to pay the fees for recording, and on the trial he testified he had left the same with the recorder in Iowa, whose name he thought was Morgan, and the opposite party produced an affidavit of one Beach, the then recorder, stating that no such deed was on file, it was held, that there was no error in admitting secondary evidence of the contents of the deed. If the grantor had informed the grantee, or his agent, in apt time of the name of the person with whom he left the deed, it may have been that proper diligence would have required the grantee to have made inquiry of such person, but giving his name on the trial was too late to require this.</p> <p>3. Same—loss of deed may be shown by affidavit. As to matters directly in issue, the testimony of witnesses must be taken in open court or upon deposition, so as to afford an opportunity of cross-examination, but as to some collateral matters, among which is the loss of a document, affidavits taken ex parte are competent evidence.</p> <p>4. Witness—not bound to criminate himself. Where a witness has testified that whatever judgment might be recovered was for his benefit, it is a proper question, to discredit his testimony, to ask him whether he had not gone through bankruptcy without mention of the claim in dispute in his schedule of credits, but the witness is not bound to answer the same, as it tends to criminate him.</p>

<p>1. Practice—finding of Appellate Court conclusive as to the facts. Where the Appellate Court, affirms the judgment of the circuit court, it must of necessity find that the evidence sustains the judgment below, and such finding is, upon that question, conclusive on this court, on appeal or error.</p> <p>2. Insurance—neglect of agent to report acts to insurance company no evidence of collusion. Where an insurance agent, having full power to issue policies of insurance and to grant special permits, having issued a policy, some six days afterwards cancelled the same, and issued a new one, and granted a special permit to the assured, which he failed to report to his principal, it was held, that evidence of his neglect to report the same, without an offer to show collusion with the assured, or any evidence to connect the assured with the omission, was properly refused on the trial of an action on the new policy, and that such evidence did not tend to show a collusion.</p> <p>3. Same—false statements in application, made by agent. Where the application for an insurance is prepared, signed and presented by the assured, the insurer has the right to rely upon the truth of the statements therein contained ; and if the statements are false in a material point, the insurer may refuse to be bound by the policy.</p> <p>4. But where the assured makes a full and complete disclosure of the title and situation of the property to the agent of the insurance company, and the agent deliberately writes false answers, to be signed by the assured, saying it does not amount to anything, the company will be estopped from denying its liability.</p> <p>5. Error will not always reverse. The exclusion of evidence which works no injury, as, where the same thing proposed to be shown by it clearly appears from other evidence, though technically an error, is no ground for a reversal.</p> <p>6. Evidence—its relevancy. In a suit on a policy of insurance, by a wife, to recover for the loss of hay, etc., embraced in the policy, the insurance company offered in evidence a deed of assignment, made by the husband of the plaintiff, of a lot of hay and other property, which the court refused to admit: Held, no error, as the evidence was wholly irrelevant, without proof that the property in the deed of assignment was the same included in the policy.</p> <p>7. Instruction—must be based on evidence. Although an instruction may contain a correct proposition of law, yet, if there is no evidence of the facts upon which it is predicated, there is no error in refusing it.</p>

<p>Writ op Error to the Circuit Court of Champaign county; the Hon. William E. Nelson, Judge, presiding.</p>

Writ oe Error to the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding. This was an indictment against Charles Johnson for perjury.

<p>Appeal from the County Court of Cumberland county</p>

<p>1. Change of venue—waived by going to trial without objection. Where, two years after applying for a change of venue, the parties submit the cause to hearing before the same judge against whom the petition for the change was filed, the party applying for the change of venue making no objection, this court will not inquire whether the court erred in overruling the application. By going to trial before the same judge without objection, the party waives any error, if any, in the previous ruling upon the motion.</p> <p>2. Former adjudication. Where the vendor of land, after the full payment of the principal of the purchase money, tenders the vendee a deed, demanding the payment of interest which he claims to be due on the purchase money, and, on refusal to pay the same, brings suit to recover such interest, and, on a trial, fails, and judgment is rendered in bar against him, that judgment will be conclusive evidence against him that the vendee owes him no interest, in all courts, whether of law or equity, and he can not defeat a bill for specific performance by his vendee by setting up in defence that the vendee owes him interest.</p>

<p>1. Amendment—of record at succeeding term. After the expiration of the term at which a judgment is rendered, as a general rule, the court has no power over the judgment, except to amend it in matters of form or to correct clerical errors.</p> <p>2. During the term at which a judgment is rendered, the court has control over the record, and for a sufficient cause appearing, may amend its judgments and decrees or vacate and set them aside, but when the term is ended, the judgment entered, and the case goes off the docket, that power ceases and an amendment of a substantial character can not be made.</p> <p>3. Same—after term, closes affidavits can not be received to impeach or alter the record. After the close of a term at which a judgment is rendered, its absolute verity can not be overcome or even attacked by affidavit.</p> <p>4. Error—when no ground of reversal. It is a familiar rule that an error which does no harm is not a sufficient ground to reverse a judgment. Thus, where an order was made referring a cause to an attorney for trial, and after-wards at the saíne term the parties waived a jury and submitted the cause to the court for trial, who heard the evidence and rendered a judgment for the plaintiff, it was held, that if the order of reference was erroneous, it worked no injury and afforded no ground of reversal.</p>

<p>Appeal from the Appellate Court for the Third District.</p>

<p>Appeal from the Appellate Court for the Third District; from judgment affirming judgment below, on appeal from the Circuit Court of Edgar county.</p>

<p>1. Grant—when not confined to grantee. Where a city, under special authority of law, grants to a railroad company the right to use certain parts of its streets for railroad tracks, the grant containing no clause restricting the use of the streets to the grantee, the right to such use of the streets may be transferred to another railroad company which is authorized by law to acquire and succeed to all the property, etc., of the grantee company.</p> <p>2. Same—construed as to condition or limitation. Where a city by deed grants to a railroad company rights of user of parts of four streets for railroad tracks, not in one single clause, but by four separate and distinct paragraphs, each granting rights and privileges, and immediately after the last grant it is provided, “ said right and privilege to be enjoyed and exercised until,” etc., limiting the same in respect of time, the condition or limitation will be construed to apply only to the last of the four grants.</p> <p>3. Mortgage—of after acquired property. Where a railroad company is, by its charter, authorized to borrow money and mortgage the whole or any part of its road, property or income then existing, or thereafter to be acquired, the company may not only mortgage its present property and rights, but such as it may thereafter acquire, and such after acquired property will be subject to be sold on foreclosure; and this seems to be the rule, independent of the authority given in the charter.</p> <p>4. Costs—in ejectment on disclaimer as to part. Where a defendant in ejectment disclaims as to part of the property sued for, and pleads not guilty as to the residue, and judgment is rendered in favor of the plaintiff for the part to which the disclaimer applies, and judgment for the defendant on the trial as to the balance, it is proper to give judgment against the plaintiff for the costs of the suit.</p>

<p>1. Mortgage—depends upon the debt it secures. The existence of the debt is essential to the life of the mortgage given to secure it, and when the debt has been paid, discharged, released, barred by the Statute of Limitations, or a judgment or decree is rendered in favor of the mortgagor in a proceeding to recover the debt, the mortgage is gone and has no longer any legal effect.</p> <p>2. Same—sate under, good if debt is.not barred. Where a sale of land was made under a power in a mortgage more than sixteen years after the debt became due, so that the debt was barred as to all the other makers of the note, but not as to the mortgagor, owing to his absence from the State, it was held, that as the note was at the time of the sale legally enforcible against the mortgagor, the sale was valid and passed title to the purchaser.</p> <p>3. Limitation—a personal defence. A plea of the bar of the Statute of Limitations is personal to the debtor, and can not be interposed by a stranger. But such a defence may be set up by an executor, administrator or heir when sued on the contract of the intestate or ancestor, or by a co-maker as surety on a contract.</p>

<p>1. Carrier—exemption from liability by reason of military control. Where a railroad company was under the military control of the government of the United States, and operated by its officers in the transportation of troops, munitions of war and supplies in the suppression of the late rebellion, so that it was not in the free and unrestrained exercise of its francise: Held, that the company was not liable as a common carrier for refusing to receive freights for transportation, it not being safe to undertake their carriage.</p> <p>2. Same—where freight is accepted for transportation. A railroad company can not be excused for delay or neglect to transport freight, on the ground of military interference on the part of the United States, where it accepts the same with a knowledge at the time that it could not. properly transport the same, on account of such interference.</p> <p>3. Same—estoppel. An agreement by an agent of a railroad company to furnish cars, at a future day, in which to transport grain, and to receive and ship the same, will not estop the company, when sued in tort upon its common law obligation to receive and carry the same, from showing its right to refuse to receive the grain, owing to the military control of its road by the officers of the army of the United States.</p> <p>4. Same—pleading and evidence. Where a carrier is sued in an action on the case, to enforce a common law liability for not receiving grain for transportation, if relieved from that liability, the plaintiff can not recover upon a contract to furnish cars and receive the grain for carriage. The contract can avail no further than as a question of fact of governmental control, as relieving from the common law duty.</p> <p>6. Limitation—to new cause of action introduced by amendment of the declaration. Where an original declaration against a common carrier declared only upon the common law liability for refusing to receive grain when tendered for transportation, and afterwards, under leave of court, additional counts were filed for not carrying the grain after its acceptance, and the defendant pleaded the Statute of Limitations, that the cause of action in the new counts did not accrue within five years before such counts were filed, it was held, that the defendant had the right to file such plea, and that it was error to sustain a demurrer to the plea, the additional counts introducing an entirely different cause of action.</p> <p>6. Estoppel. It is an element of an estoppel in pais that there must have been a representation concerning some material fact. An agreement of an agent of a railroad company to furnish cars, and receive and ship grain at a future time, is no admission of a common law obligation to receive and ship the grain when offered, and presents no estoppel on the company to deny the existence of such duty at the time the grain is offered for shipment. The rule might be different in a suit upon the contract itself.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a bill in chancery, filed by James H. Biggin, an insane person, by his next friend, Ignatius Biggin, to the September term, 1875, against Luther Brown and Bobert Allyn, executors of the last will and testament of Elizabeth M. Biggin, impleaded with Edward B. Biggin and others, to contest the validity of the will and testament and three several codicils thereto.

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

<p>1. Default—setting aside discretionary. A declaration was filed in apt time, with an affidavit of claim, and a default was taken, and an affidavit of a meritorious defense was filed by the defendant, and also that of his attorney that he had prepared a plea a few days before the term, and the defendant attached thereto an affidavit verifying his plea and setting out his defence, and the attorney placed the plea and affidavit in the hands of a young man in his office, who usually attended to having his papers filed, with directions to file them, and the attorney supposed they had been filed until the day of the default, and he learned of the default on the tenth of the month, and a motion to set aside the default was not made until the seventeenth day of the same month, and no explanation was given for the delay in making the motion: Meld, that this court could not say there was any such abuse of discretion in refusing the motion as to authorize a reversal of the judgment.</p> <p>2. The setting aside of a judgment by default is a matter of discretion of the court in which the default is entered, the exercise of which will not be interfered with except when it appears such discretion has been abused.</p>

This was a proceeding, in the county court of Will county, for judgment for delinquent taxes due to the city of Joliet, and to the county and State. Judgment having been entered for such taxes, the cause is brought to this court on error.

<p>Bah—after conviction—fending writ of error. This court will not admit a prisoner to bail pending a writ of error to reverse a judgment of conviction for larceny, unless it is very clear there can be no conviction upon another trial.</p>

Writ of Error to the Appellate Court for the First District. This was a suit in chancery, commenced in the Superior Court of Cook county, by Dennison, as receiver, against Wallace. The cause was heard in that court on the 21st of December, 1878. After the hearing, and before the entry of any formal decree in the case, Wallace died.

This was a suit in chancery, brought in the circuit court by Jacobson, as receiver of the Bank of Chicago, against Hatch, as a shareholder in the bank. A decree was rendered against Hatch for $10,000, which, on his appeal to the Appellate Court, was affirmed. He thereupon appealed to this court.

This was an action of forcible detainer. Mr. Thos. P. Bonfield, for the appellee, moved to dismiss the appeal upon the ground that there was no question of law certified from the Appellate Court, there being no other matter involved which could give the right of appeal to this court.

This was a motion in behalf of Kirchner, in this court, for an order that Mason B. Loomis, county judge of the county of Cook, show cause why he should not be compelled to sign a certain bill of exceptions which had been tendered to him for that purpose, and which he had refused to sign,—and why a peremptory writ of mandamus should not issue to compel him to sign the same.

This is an appeal from an Appellate court, the original transcript from the trial court being filed in this court.

This was a writ of error to the Appellate Court for the Second District. An action of debt was instituted in the circuit court by the trustees of schools against Cassady, as a security upon the official bond of a township treasurer. Upon a trial in the circuit court judgment was recovered by the plaintiffs, and on appeal by defendant to the Appellate Court that judgment was affirmed. Cassady, the defendant, thereupon sued out this writ of error.

<p>This was a motion in this court for the re-taxation of the costs.</p>

At the April term, 1874, of the circuit court of Alexander county, Ira Malin & Co. recovered a judgment against Harry Walker for the sum of $367.20, and costs. Subsequently an execution was issued upon that judgment, which was returned no property found.

Cyrus Epler, Judge, presiding. ■ This was an action on the case, brought by^appellee against appellant, to recover damages for injuries sustained by her whilst a passenger on one of appellant’s steamboats.

<p>1. Constitutional law—taking private property for public use. The constitutional limitation that private property shall not be taken for public use without just compensation, to be ascertained by jury when not made by the State, has reference only to the exercise of the power of eminent domain, and not to special taxation of contiguous property for the building of a sidewalk or other public improvement by cities, towns and villages.</p> <p>2. Same—special taxation by cities for local improvements. The general requirement in sec. 1, art. 9, of the present constitution requiring taxation to be by valuation, so that every person and corporation shall pay a tax in proportion to his, her or its property, is modified by seo. 9 of the same article, so that the corporate authorities of cities,'towns and villages may make local improvements by special taxation of contiguous property or otherwise, and does not apply in such case.</p> <p>3. Municipal corporations—sidewalks by special taxation. The constitution of 1870 has authorized the legislature to vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise, and this justifies an enactment whereby a town lot may be made chargeable with the entire expense of the construction of a sidewalk in front thereof. There is no limitation in this regard in respect of equality and uniformity, in the constitution of 1870, as in that of 1848.</p> <p>4. Same—special lax for sidewalk may exceed benefits. Whether or not a special tax on contiguous property in a city or town for a local improvement, as, a sidewalk fronting the same, exceeds the actual benefit to the lots taxed, is not material. It may be supposed to be based on a presumed equivalent, and where the corporate authorities determine the frontage to be the proper measure of probable benefits, this can not be disputed or disproved.</p> <p>5. A statute investing the corporate authorities of cities, towns and villages with power to tax contiguous property for the expense of constructing sidewalks, leaving it to them as they may think just and equitable to determine whether the former mode by general taxation, or special assessment, shall be pursued, or whether there shall be special taxation of contiguous property, either by a levy on the property of the cost of making the sidewalk in front of it, or by a levy of the tax in proportion to its value, frontage or superficial area, is not unconstitutional, but is a valid law.</p> <p>6. Former decisions. The cases of the City of Chicago v. Larned, 34 Ill. 203, and the City of Ottawa v. Spencer, 40 id. 211, holding a special assessment for local improvements on the basis of the frontage of lots on the streets to be improved, were invalid, were made under the peculiar limitations of the constitution of 1848, which are omitted in that of 1870, and hence these cases are no longer authority on the subject.</p>

<p>Appeal from the Appellate Court for the Third District.</p>