Volume 95 — Illinois Reports

Writ of Error to the Appellate Court for the First District. A bill was filed by Samuel J. Walker, on the 28th day of February, 1874, against A. D. Eich, trustee of the National Trust Company, and other persons, to enjoin him from selling certain lands named in the trust deed, made by Walker to Eich, to secure large indebtedness evidenced by promissory notes given by. Walker to the Trust company.

This was an action on the case, brought by appellant against appellee, to recover damages for an injury to the person.

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

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

M. F. Tuley, Judge, presiding. Mary Hoag filed her petition, under the “ Burnt Records act,” on the first of June, 1876, in the circuit court of Cook county, to establish her title to certain real estate in the city of Chicago, hereinafter more particularly described. She alleges in her petition that on the 18th of November, 1858, Joseph AY.

<p>Writ of Error to the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding.</p>

Writ of Error to the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding. This was an action of ejectment by Andrew Yeates against David Briggs originally, but afterwards Elizabeth Briggs, his wife, was substituted as defendant.

<p>Appeal from the Circuit Court of Stephenson county; the Hon. John V. Eustace, Judge, presiding.</p>

<p>1. Practice—filing additional pleas. Where leave is asked to file additional pleas eighteen months after the issues have been made up, and on the eve of the trial, there will be no abuse of discretion or error in refusing the same, especially where no affidavit is filed showing a reasonable excuse for the delay.</p> <p>2. Where a defendant, after filing the general issue and a continuance of the cause has been had, discovers that he has a substantial defence not admissible under the general issue, he should at the earliest convenient day ask for special leave of the court to file an additional plea, so as not to take the plaintiff by surprise or delay the business of the court.</p> <p>3. Continuance—diligence to take deposition. Where due diligence has not been used to procure the deposition of a party or witness, a motion for a continuance, based on the fact that such deposition has not been returned, is properly overruled.</p> <p>4. Evidence—secondary. Where an original paper is in the hands of a third person residing out of the State, and he refuses to attach the same to his deposition when taken, and requested so to do, a sworn copy taken by another person present, who attaches such copy to his deposition, is admissible in evidence.</p>

District. This was assumpsit by appellants, against appellee, upon a guaranty of a promissory note, as follows: “ 1-5000.

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

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.</p>

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

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

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

<p>Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Winnebago county, the Hon. John V. Eustace, Judge, presiding.</p>

<p>1. Criminar practice—■when judgment of conviction is affirmed. Where a judgment of conviction is affirmed on writ of error, it is error to reinstate the case on the docket, and enter a second judgment for the same offence. The first judgment is not vacated by its affirmance, and to reinstate the case is entirely useless and the entry of the second judgment does not vacate the first.</p> <p>2. Where a judgment is affirmed on error, nothing further remains to be done in the lower court. It remains only for the proper officer to execute that judgment. If the defendant is bailed from the sheriff he should be surrendered to that officer, who must proceed to execute the judgment. If bailed from the warden of the penitentiary, he should be surrendered to that officer.</p> <p>3. Where there is a valid judgment of conviction the entry of a subsequent erroneous order will be no ground for reversing the judgment, but the order will be set aside and vacated by this court without costs against the defendant, with directions to execute the original judgment.</p>

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

John G. Rogers, Judge, presiding. Appellant, being a constable of Cook county and having in his hands a ft. fa. from a justice of the peace against the property of one Mrs. Herman, in favor of one Johns, by the advice and directions of Johns seized certain personal property, which is alleged to be the property of a firm known as “The Chicago Furniture Company,” and of which one Stadelman (a son of Mrs. Herman) was a member; and having seized the same, gave the same into the…

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

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

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

<p>Writ of Error to the Appellate Court for the Second District; the Hon. Joseph Sibley, presiding Justice, and the Hon. Edwin S. Leland and Hon. N. J. Pillsbury, Justices.</p>

This was an action of covenant, on articles of agreement for the sale of and payment for a tract of land in Cook county, in this State. Defendants demurred to the declaration and the demurrer was sustained by the court, and plaintiff failing to plead, judgment was rendered against him in bar of the action. He prosecutes an appeal and questions the decision of the court below in sustaining the demurrer.

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

<p>Appeal prom an Appellate Court—whether it will Ik. On bill in chancery to compel tlie removal of a dam which was alleged to cause the complainant’s land to be overflowed, and a final decision thereon in the Appellate Cour.t, it was held, there being no franchise, or freehold, or the validity of a statute involved, and the value in controversy not appearing to be $1000, and there not being any certificate that the case involves questions of law of such importance that they should be passed upon by this court, the appeal from, the Appellate Court should be dismissed.</p>

<p>Practice in Supreme Court — when error will not reverse. Although an instruction may be faulty in directing the attention of the jury and giving undue prominence to a certain sale of other property in the vicinity of land sought to be condemned, on the assessment of the damages, yet, when the verdict and judgment are just and fully warranted by the evidence as to the damages found, the judgment will not be reversed.</p>

This suit was commenced originally in the Superior Court of Cook county, and tried before the Hon. Samuel M. Hooke, Judge, presiding. On appeal to the Appellate Court the decree of the Superior Court was affirmed.

<p>Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Mercer county, the Hon. Geo. W. Pleasants, Judge, presiding.</p>

George Chandler, as trustee for certain certificate holders,, filed his bill in chancery in the circuit court of Cook county, against Samuel D. Ward, receiver of “The Merchants, Farmers and Mechanics’ Savings Bank,” to enjoin him from taking notes, mortgages, and securities, and mingling them with the general assets of the bank.

<p>Appeal from the Circuit Court of Woodford county; the Hon. ¡N". M. Laws, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. 1ST. J. Pillsbury, Judge, presiding.</p>

M. F. Tuley, Judge, presiding. On the 15th of September, 1864, Alexander Campbell and Charlotte C. Campbell, his wife, signed and properly aeknowledged a deed conveying the property in controversy to one Alexander McEwen. The consideration expressed in the deed was $3000, but, in fact, no consideration was paid or contracted, the execution of the deed being purely voluntary.

<p>Writ op Error to the Appellate Court for the Second District.</p>

The Commercial National Bank of Providence, Rhode Island, sued out a writ of attachment againt Davis, Towne, Tew and Sackett, copartners, under the firm name of Sackett, Davis & Co., which was levied on certain real estate, the legal title whereof was- in Sackett.

<p>1. Compensation op county officers—clerk hire, etc. — power of county board to change them during a term of office—construction of the constitution. The 10th section of article 10 of the constitution of 1870, after requiring the county board to fix the compensation of county officers, with the amount of their necessary clerk hire, stationery, fuel, and other expenses, provides “ that the compensation of no officer shall be increased or diminished during his term of office.” This is a limitation merely, upon the power of the county board to change the salary of t.he county officer—the compensation for the personal discharge of official duty by him—during his term of office, and has no reference to the fixing of the amount to be allowed for necessary clerk hire, stationery, fuel, and other expenses, the allowances for such purposes being at all times under the control of the county board. The compensation or salary is to be fixed in advance, and can not be changed during the term of office. The expenses are to be determined from time to time by the necessity which the business of the office may develop.</p> <p>2. Fees of county officers—paying surplus into county treasury—control of county board over that subject. The county board has no authority to relieve a county officer from his duty to make regular reports of his receipts from the fees of his office, or from his duty to pay into the county treasury the excess of such receipts over his fixed salary, by any contract with the officer in respect to the expenses of the office. Such a contract, so far as it might assume to relieve the officer from such duties, would not be binding, though so far as it provided a different mode of defraying the expenses of the office from that intended by a previous order of the board, fixing the amount to be expended for such expenses, the contract would operate to do away with such previous order, and leave the matter of expenses to be adjusted upon a proper basis between the officer and the county board.</p>

<p>Appeal from the Circuit Court of Douglas county; the Hon. Oliver L. Davis, Judge, presiding.</p>

Theo. D. Murphy, presiding Justice, and the Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices. This was an action of debt, by Francis Agnew, for the use of Henry B. Horton, against Henry Lawrence & Sons, and Franklin D. Gray, upon a replevin bond, brought in the circuit court of Cook county, and tried before the Hon. John G. Rogers, Judge, presiding. The defendants pleaded : 1. Non est factum. 2. Nil debet. 3.

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

<p>Wbit of Ebbob to the Circuit Court of White county; the Hon. Thomas S. Casey, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District; ■—heard ip that court on appeal from the Circuit Court of Clinton, county, the Hon. Geo. W. Wall, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Jackson county, the Hon. M. C. Crawford, Judge, presiding.</p>

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

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

<p>Writ of Error to the Circuit Court of Wayne county; the Hon. C. S. Conger, Judge, presiding.</p>

<p>1. Self-defence—as to whether the danger is real or only apparent. Where a person is assaulted in such a way as to induce in him a well grounded and reasonable belief that he is in actual danger of losing his life or suffering great bodily harm, he will be justified in defending himself, although the danger be not real but only apparent. He will not be held responsible criminally, if he acts in self-defence from real and honest convictions as to the character of the danger, induced by reasonable evidence, although he may be mistaken as to the extent of the actual danger, when other reasonable and judicious men would have been alike mistaken.</p> <p>2. So, upon the trial of a person on a charge of manslaughter, the theory of the defence being that the party accused acted in self-defence against an attack made upon him, the court instructed the jury that if they believed from the evidence that the defendant killed the deceased, as charged in the indictment, in order to find the defendant not guilty they must believe from the evidence either that the killing was done in necessary self-defence, or in the defence of habitation or property. The instruction was held to be erroneous, as ignoring the doctrine of justification even in the absence of actual danger, if the other elements mentioned existed.</p> <p>3. Instruction—when erroneous, whether cured by others which are correct. Upon the trial of a party, under an indictment for manslaughter, the court erroneously instructed the jury substantially that the act of killing could not be justified except the defendant acted in his necessary self-defence, ignoring the rule that under proper circumstances a person who is assaulted may act in self-defence, although the danger be not real but only apparent. Some of the instructions given for the defendant laid down the correct rule. Upon a vital question in the case — as to which party made the attack — the evidence was conflicting. It was held not enough that some of the instructions were correct. The court could not know but what the jury followed the erroneous instruction in finding the defendant guilty. Where a case is close in its facts, or where there is a conflict in the evidence on a vital point in the case, the rights of parties can not be preserved unless the jury are accurately instructed.</p>

<p>Appeal from the Circuit Court of Pulaski county; the Hon. O. A. Harker, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Williamson county; the Hon. Daniel M. Browning, Judge, presiding.</p>

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

<p>Appeal-from, the Circuit Court of Williamson county; the Hon. Moneoe C. Cbawfobd, Judge,- presiding.</p>

<p>1. Taxation in the oily of Fast St. Louis—of the rate per cent allowed. Section 1 of article 3 of the special charter under which the city of East St. Louis is organized, provides, that “ the city council shall have power to levy and collect an annual tax, not exceeding one per centum per annum, upon all property, real and personal, within the jurisdiction of the city, upon the assessed value thereof.” This limitation is upon the grant of the power to levy and collect taxes generally,—and its effect is, in no case shall the entire tax of the city, in the aggregate, to be levied annually, exceed the rate mentioned.</p> <p>2. Section 22 of article 7 of the same charter authorizes the levy and collection of a tax, not exceeding three mills on the dollar, upon each annual assessment of the taxable property of the city, for the purpose of paying interest upon registered bonds, scrip and certificates of indebtedness. There is no repugnancy between this section and section 1 of article 3, in respect to the limit of the rate which may be levied for all purposes. The rate allowed to be levied under section 22 of article 7 is not in addition to the rate limited in section 1 of article 3, but is a limitation upon the amount of taxation allowed for the specific purpose named in that section, which amount, when levied, is to be deducted from the aggregate amount which may be raised under the limitation of one per cent, for every purpose.</p> <p>3. So, also, in respect to the operation of section 1 of chapter 81 of the Revised Statutes of 1874, entitled “Libraries,” which authorizes cities to levy and collect a tax annually, not exceeding one mill on the dollar upon each annual assessment, to be known as the “library fund,”—this statute was not intended to interfere with clauses in the special charters of cities limiting the rate per cent of taxation, but the grant of power to tax for library purposes must be held to be subordinate to such limitations in special charters.</p> <p>4. The act in regard to the assessment and collection of municipal taxes, approved May 23, 1877, and in force July 1, 1877, it has been held, has reference only to the mode or manner of assessing taxes,—the purpose being to require uniformity in that regard, and has no relation whatever to the rate of taxation, so it does not in any way aid the view that the city of East St. Louis can exceed the rate of one per cent limited in its charter, in taxation for any purpose whatever.</p> <p>5. The “ act in regard to the assessment, levy and collection of the taxes of incorporated cities in this State, for years prior to the year 1877,” approved May 5, 1877, does not in anywise relate to or attempt to regulate the rate per cent of taxation which may be levied by cities.</p>

Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal «from the Circuit Court of Grundy county, the Hon. H. Goodspeed, Judge, presiding.

Josiah McBoberts, Judge, presiding. This was a bill in equity, filed in the court below by Frederick Krause, to set aside and cancel certain conveyances of real estate.

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

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

<p>Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

<p>1. Evidence—as to motive of party in making special contract. In an action by a real estate broker, against a person whose land the plaintiff claimed to have sold, to recover for services in making the sale, under an alleged special agreement in regard to the amount per acre to be paid as compensation, evidence offered by the plaintiff, showing all the negotiations between the parties relating to the sale of the land as the inducement to make the particular terms relied upon, might well be rejected as having no bearing on the issue being tried.</p> <p>2. Exception—when necessary. A party can not avail of any supposed error of the trial court in the rejection of evidence offered, unless it appears an exception was taken to the decision of the court in making such ruling.</p> <p>3. Instructions—if inconsistent, but working no injury. In an action to recover for services the court gave on behalf of the defendant two instructions, in one of which was laid down the correct rule to govern the jury in case there was evidence to justify a recovery on a quantum meruit. The other, in substance, directed the jury that no recovery could be had unless a special contract was proven. The plaintiff stated, on the trial, that he expected to recover only upon a special contract, and did not offer any evidence as to the services rendered or their value. While the two instructions were not entirely in harmony with each other, it was considered the jury were not likely to have been misled by them; so, the objection that they were not consistent would not avail as ground of reversal.</p>

Wm. Brown, Judge, presiding. This was assumpsit, by appellants against appellee.

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

<p>Wbit of Eeeoe to the Appellate Court for the First District.</p>

N. J. Pillsbury, presiding Justice, and the Hon. Joseph Sibley and Hon. Edwin S. Leland, Justices. Held: by virtue of his mortgage, upon the before described premises, so far as the same might affect the deed of trust and the security of the said Bates thereby, but no further.

Nathaniel J. Pillsbttby, presiding Justice, and Hon. Joseph Sibley and Hon. Edwin S. Leland, Justices, —heard in that court on appeal from the Circuit Court of McHenry county, the Hon. Hiram H. Cody, Judge, presiding.

William Brown, Judge, presiding. In June, 1859, Marshall H. Began (then a resident of Illinois) and his wife, Lucinda M. Began, and their daughter, Marian Began, were traveling in Indiana on the Michigan Southern and Northern Indiana railroad, when the wife and daughter were both killed in what was known as the “ Mishawaukee accident,” as was claimed, by the wrongful act or omission of the railroad company.

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

<p>Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.</p>

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

<p>Agreed case from the Circuit Court of Cook county; the Hon. John A. Jameson, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook County j the Hon. S. M. Moore, Judge, presiding.</p>

<p>1. Conspiracy—defined. A conspiracy may be regarded, a combination of two or more persons, by a concerted action, to accomplish a criminal or unlawful purpose, or a purpose not in itself criminal by unlawful or criminal means.</p> <p>2. Where a person, arrested upon a charge of bastardy, makes a settlement in respect thereto, giving his notes for an amount agreed upon with the persons managing the prosecution, if the persons who instituted and were prosecuting the suit in behalf of the woman interested, honestly believed from her statements that the charge was true, and were thereby induced to act in the matter, they could not properly be charged with conspiring to extort money from the accused unlawfully, even though as a matter of fact the person so charged was not guilty of the oifence.</p> <p>3. Duress—what constitutes—in avoidance of a contract. It is not enough to establish duress, that a party was imprisoned at the time of making a promise or executing a contract in respect to the subject concerning which he had been arrested. Imprisonment, when lawful, is by no legal intendment an abridgement of the free and voluntary volition of the mind in the management of business transactions. To put the party under duress, the imprisonment must be unlawful, or there must be an abuse of or an oppression under lawful process or legal detention.</p> <p>4. So, where a person had been arrested upon a charge of bastardy, under a warrant regularly issued, and while under arrest but not actually in prison, or even under such restraint as would prevent him from going where he pleased, he executed his promissory notes in settlement of the subject matter of the charge, it was held, the party was under no such duress as would enable him to avoid the contract.</p> <p>5. Consideration—agreement not to prosecute for a crime. A promissory note given in settlement of a crime is without consideration, and can not> while it remains in the hands of the payee, be enforced in a court of law or equity.</p> <p>6. Contract—in settlement of bastardy. It is competent for a person charged with bastardy to compromise the matter with the woman alleged to have become pregnant, and if the party so charged, upon being arrested under a warrant issued in such proceeding, shall enter upon a settlement, not induced by fraud or oppression, and shall give his promissory note for a sum of money for the benefit of the alleged injured party, such settlement will be conclusive upon the person charged, in respect to the question whether the woman was, in fact, pregnant or not.</p> <p>7. Consideration—compromise of doubtful claim. In order to render an agreement to forbear, and the forbearance of a claim, a sufficient consideration for a promise to pay money, it is essential that such claim shall be sustainable, at law or in equity, in favor of the person to whom or for whose benefit the promise is made.</p> <p>8. Same—settlement of threatened prosecution for seduction. Therightof action for the seduction of a female in her minority is in the parent, who is entitled to her services. So, a promise to pay money on the agreement of the female herself to forbear in respect to a threatened prosecution for her alleged seduction is without consideration.</p>

An action of debt was brought in the circuit court of Cook county, by the city of Chicago, against David A. Gage, late treasurer of the city of Chicago, and John B. Sherman and others as sureties upon what was alleged to be the official bond of said Gage, to recover a sum of money which it was alleged he had refused to pay over to his successor in office. Pleas of non est factum were filed by all of the defendants and verified by a part. of the sureties.