Volume 96 — Illinois Reports

Writ of Error to the Appellate Court for the Second District; the Hon. Nathaniel J. Pillsbury, presiding Justice, and the Hon. Joseph Sibley and Hon. Edwin S. Leland, Justices.. On the 6th of April, 1876, defendants in error filed a bill in chancery in the Winnebago county circuit court against John Allen, Thomas Allen, Ephraim Sumner, Joseph Brantingham, Freeman Graham, John H. Warren and the “Rockford National Bank,” the last four defendants being mere nominal parties.

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

Theodore D. Murphy, presiding Justice, and the Hon. George W. Pleasants and Hon. Joseph M. Bailey, Justices,—heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.

<p>Appeal from the Circuit Court of Bock Island county; the Hon. Geoege W. Pleasants, Judge, presiding.</p>

<p>Appeal from the County Court of Cook County; the Hon. M. E. M. Wallace, Judge, presiding.</p>

Nathaniel J. Pillsbury, presiding Justice, and the Hon. Geo. W. Pleasants and Hon. Lyman Lacy, Justices;—heard in that court on appeal from the Circuit Court of Henry county; the Hon. A. A. Smith, Judge, presiding. . .... . . ..

This was an application for a writ of habeas corpus by F. E. Hinckley, to be discharged from imprisonment in the county jail of Will county.

<p>Fraudulent conveyance—of wife to husband. Where the only proof that a conveyance was fraudulent was the fact that it was made by an indebted wife to her husband, and they both testified that the conveyance was executed in consideration that the husband undertook to pay certain specified debts of the wife, which was not a grossly inadequate price for the property, and that he had since paid the same, the intent to hinder, delay, or defraud creditors being expressly denied, and it appeared that the debt under which the conveyance was assailed was incurred by the wife as surety, and both she and her husband denied any knowledge of the existence of such debt when the deed was made, supposing it was paid, or otherwise secured, it was held there was not sufficient proof of fraud to defeat the husband’s equitable title.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. E. S. Williams, Judge, presiding. On the second day of November, 1878, John Lamb and George Freeman were indicted in the Criminal Court of Cook county for the murder of Albert Race, a police officer of Chicago. At the March term, 1879, of that court Lamb, alone was put upon his trial. The jury by their verdict found him guilty of the charge, and directed the infliction of the death penalty.

Writ of Error to the Circuit Court of DeKalb county; the Hon. C. W. Upton, Judge, presiding. This was an indictment against George Alexander for the murder of his wife by shooting her. On March 24, 1879, Anna Alexander was shot by the defendant, from which shot she died. The defendant was a negro, and his wife, the deceased, was a white person. On the day mentioned she left Sycamore, her home, and went to DeKalb.

Peoria county. One branch of the controversy involved in this record has been previously before this court, in the case of Sumner et al. v. Waugh et al. 56 Ill. 531, and the entire cause was before the court again in the case of Cable v. Ellis et al. 86 Ill. 525. In the latter case will be found a statement of the facts, and iu the former the written contract of September 30, 1858, upon which the questions in the case so largely arise, will be found set out in full.

Writ of Error to the Superior Court of Cook county. The Chicago and Western Indiana Railroad Company instituted proceedings in the county court of Cook county for the condemnation of a right of way across the right of way and railroad track of the Lake Shore and Michigan Southern Railway Company, and also across the right of way and railway track of the Chicago, Rock Island and Pacific Railroad Company, in the city of Chicago.

Writ op Error to the Appellate Court for the Second District.

Writ op Error to the Appellate Court foi* the Second District. This cause was continued at the present term for want of service of process, or publication of notice, the defendant in error being a non-resident. Subsequently the plaintiff in error entered his motion to set aside the order of continuance, and to place the cause on the hearing docket for this term.

This was an action of trespass, instituted in the circuit court of Grundy county, in which the plaintiff recovered a verdict and judgment for the sum of $917.40. On appeal to the Appellate Court that judgment was affirmed. Thereupon the case was brought to this court for review.

Writ of Error to the Appellate Court for the First District; the Hon. Theodore D. Murphy, presiding Justice, and Hon. George W. Pleasants and Hon. Joseph M. Bailey, Justices;—heard in that court on appeal from the Superior Court of Cook county, the Hon. Samuel M. Moore, Judge, presiding.

E. S. Williams, Judge, presiding. On the 26th day of May, 1876, appellants filed in the circuit court of Cook county their petition for a mechanic’s lien upon certain lots in the city of Chicago, alleging the making by them of a verbal a con tract, on July 31, 1875, with S. S. Hayes, the owner of the lots, for the doing of work and the furnishing of materials for the erection of brick dwellings, to be completed before January 1, 1876.

<p>Cbimtnai, law—indictment for attempting to steal. An indictment under section 273 of the Criminal Code for an attempt to steal the property of another, which simply states that the defendant attempted to steal, is not sufficient to sustain a conviction. To obtain a conviction under this section the people must prove acts done towards the perpetration of the offence, and not mere intention, and such acts being necessary to show the crime, they must be specifically averred.</p>

<p>Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of "Warren county, the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Livingston county; the Hon. FT. J. Pillsbury, 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, the Hon. Samuel M. Moore, Judge, presiding.</p>

Hath aniel J. Pillsbijry, presiding Justice, and the Hon. Joseph Sibley and Hon. Edwin S. Leland, Justices. This was an appeal by Mary L. Pratt from a decree rendered in the circuit court of McHenry county on a hearing before the Hon. C. W. Upton, Judge, presiding.

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

<p>Jraoit—competency —freeholder. The fact that a person is not a freeholder does not disqualify him from serving on a jury under the laws of this State, and it is, therefore, no ground of challenge. At the time of the adoption of the constitution of 1870, declaring that the right of trial by jury as theretofore enjoyed shall remain inviolate, and for many years before its adoption, the want of a freehold interest was not a legal exception to a juror.</p>

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

Wbit of Error to 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;—heard in that court on error to the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.

<p>Appeal from the Appellate Court for the Third District;— heard in that court on.appeal from the Circuit Court of Shelby county; the Hon. W. B. Welch, Judge, presiding.</p>

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

Writ op Error to the Criminal Court of Cook county; the Hon. Sidney Smith, Judge, presiding. This was a proceeding for a writ of quo warranto.

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

<p>1. Dower—release in trust deed. A widow and heirs borrowed money with which to pay debts against the estate, and to secure the same and a debt against the estate, they gave deeds of trust, and a mortgage containing a covenant of warranty against all incumbrances, and afterwards, on bill filed by a creditor on behalf of himself and other creditors, the debts owing by the estate were declared a lien upon the lands embraced in the trust deeds and mortgage, and the lands were ordered to be sold for the payment of all the debts, including those secured by the trust deeds and mortgage, the decree, however, not setting aside those instruments, but only depriving them of any priority of lien in exclusion of the creditors of the estate, and the lands were sold as decreed: Held, the sale under the decree did'not render the widow’s release of dower in the trust deeds and mortgage inoperative, and restore her. dower as against the grantee in the deeds of trust who became the purchaser under the decree for the benefit of the parties secured by the trust deeds and mortgage.</p> <p>2. Same—estoppel by covenant of warranty. Where a deed of trust is made by a widow in connection with the heirs of an estate, to secure a debt due from the estate and money borrowed to pay other debts, the deed containing a covenant of warranty against all incumbrances, this will operate to estop the widow from afterwards setting up a claim to dower in the same lands as against parties claiming title under the trust deed, and the fact that the lands have been also sold under a decree of court for the benefit of all the creditors of the estate, placing the debts secured by the trust deed upon an equal footing with the other debts of the estate, will not prevent the application of this rule.</p>

<p>1. Right of wat—.over another right of way. One railroad company is entitled to have condemnation, under the statute, for its right of way across the,right of way of a previously constructed railroad, but the company whose right of way is condemned is entitled to be fully compensated for all damages it may sustain in consequence thereof.</p> <p>2. Same—of the compensation. Where the right of way is sought across or under the track of another railroad company, or through its embankment, the latter company is entitled to receive such sum of money as will enable it to place its ' track over the point at which the ground is condemned in as safe a condition, as nearly as the nature of the case will admit, as it was before the making of the excavation. The damages should cover additional expense for watchmen when travel over the excavation is rendered hazardous; the expense of building and maintaining permanent abutments, or retaining the walls; losses incident to re-building or repairing, and contingent losses by fire or otherwise, and if any other kind of bridge over the excavation is more safe than a wooden one, the compensation should be sufficient to enable the company to erect and maintain perpetually a bridge of that degree of safety, and likewise to reimburse it for all inconvenience and expense incident to the erection and maintenance of such a bridge.</p>

<p>' 1. Error—presumption in favor of judgment. The presumptions of law are in favor of the correctness of a judgment of a common law court of general jurisdiction, on error or appeal, and, unless the contrary affirmatively appears, such judgment will be affirmed.</p> <p>2. Special Taxation—-for sidewalk, not a personal tax. The act of April 15, 1875, providing “additional means for the construction of sidewalks in cities,” etc., by special taxation, in so far as it seeks to provide for a personal liability against the owner of property, is in conflict with the constitution, and void. The cost of a sidewalk constructed by a city or village, in pursuance of the provisions of such act, can not be made a personal charge against the owner of lots in front of which the same is built.</p>

Writ of Error to the Appellate Court for the Third District; the Hon. C. L. Higbee, presiding Justice, and the Hon. Oliver L. Davis and Hon. Lyman Lacey, Justices; —Iieard in that court on error to the Circuit Court of Vermilion county; the. Hon. Oliver L. Davis, Judge, presiding.

<p>1. Appeal—-from order vacating road—by whom. The right of appeal from an order of commissioners of highways vacating a road, or part of a road, to three supervisors, is not limited to persons whose lands adjoin upon the road, as the only ones interested. A person may have an interest in the establishing or vacating of a road merely as a thoroughfare for travel, without having any land to be taken or restored.</p> <p>2. The portion of a public road vacated by commissioners of highways did not actually touch the land of a party complaining, but was within a short distance of it, and not far from his house, which had been built with reference to such road, and the part vacated ran diagonally across an adjoining quarter section of land, the vacation carrying the travel around part of two sides of such quarter. The road so vacated was a portion of a road leading from the premises of the person so situated to the county seat, and to a railroad station which was his principal market. It was held, such person was entitled to an appeal from the order of vacation to three supervisors.</p> <p>3. Same—-former decision. In the case of Taylor et al. v. Town of Normal, 88 Ill. 526, it was held that no person has the right of appeal from the decision of commissioners of highways in laying out a new road, or vacating an old one, unless he is the owner of land adjoining the road to be laid out or vacated: If that is to be taken ip the strict meaning of touching the land, so that no person can appeal from such an order unless he is the owner of land which is actually touched by the road to be laid out or vacated, the construction adopted in that case was a too narrow one.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.

<p>Appeal from the Circuit Court of Macoupin county; the Hon. W. B. Welch, Judge, presiding.</p>

<p>1. Assignment—of insurance on life policy in equity. A party holding a policy in an association which entitled him, in case of personal injury, to certain benefits, and the sum of $2500 to his representatives, etc., on his death, on payment of all assessments against him, and he being absent from home and indebted for assessments which he was unable to pay, sent his wife a writing that he made his life policy read for her benefit in case of his death, and for her special benefit and all that might be derived therefrom; and also wrote to her of his inability to pay his dues, and that “ this makes the policy yours, if you will keep it up;” and she paid the assessments accordingly: Held, that this, in connection with the wife’s act, amounted to an equitable assignment of the sum payable by the policy on his death, but not of the sum payable for personal injury, and that on his death she was entitled to receive the sum due on the policy.</p> <p>2. Lite Policy—right to assign same. When neither the wife nor the children of an assured have any vested interest, conditional or otherwise, in an insurance of the party’s life so long as he lives, but the contract is between the assured and the insurer, the assured may make an equitable assignment of the same.</p>

Writ of Error to the Appellate Court for the First District; the Hon. T. D. Murphy, presiding Justice, and the Hon. George W. Pleasants and Hon. Joseph M. Bailey, Justices;—heard in that court on appeal from the Circuit Court of Cook county.

Writ of Error to the Appellate Court for the First District; Hon. Theodore D. Murphy, presiding Justice, and the Hon. George W. Pleasants and Hon. Joseph M. Bailey, Justices;—heard in that court on writ of error to the County Court of Cook County; the Hon. Mason B. Loomis, Judge, presiding.

E. S. Williams, Judge, presiding. This was a bill in chancery, filed in the circuit court of Cook county by appellee against appellants, for the foreclosure of a deed of trust. It alleged the following facts: On February 5, 1870, appellee loaned John Hash $4500, for which he executed to her his promissory note and a mortgage on certain premises, to secure the payment of the same, which note and mortgage were afterwards destroyed by the Chicago fire of 1871.

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a suit in chancery instituted in the court below, for the purpose of enjoining the collection of certain taxes.

<p>1. Chattel mortgage—right of mortgagee to take possession under insecurity clause. Under a clause in a chattel mortgage, that if the mortgagee shall, at any time before the debt becomes due, “ feel himself unsafe or insecure,” he shall have the right to take possession of the mortgaged property, the mortgagee has the right to judge of the crisis for himself, subject only to the limitation that his judgment of insecurity must be exercised in good faith, upon reasonable grounds or probable' cause.</p> <p>2. This rule does not require that there should be actual danger, or that the proof should furnish the court, at the time of the trial, with reasonable ground to decide that there was actual danger, but it will be sufficient if, at the trial, it appears that at the time of the taking of possession there was apparent danger, such that a reasonable man might, in good faith, act upon, or, in other words, there should be reasonable grounds to believe there was danger, or that the mortgagee did not act without probable cause.</p> <p>3. The feeling of insecurity mentioned in a chattel mortgage, as giving the mortgagee the right to take possession of the mortgaged property before the maturity of the debt., has reference to such feeling as is produced by some subsequent cause, or some cause not in being when the mortgage was executed. It is not sufficient that it arises from a question of law as to the validity of the mortgage as against third persons.</p>

<p>1. Taxation—description of property assessed. Property assessed for taxation must be described by reference to government surveys, or by metes and bounds, or, if land is divided into lots, then by reference to authenticated plats. If a piece of land is designated as a lot, when there is no plat to which reference can be had, to determine from what tract it has been formed, no judgment can be rendered against it for taxes, as it is not capable of location.</p> <p>2. While a government survey with a given number is a description of land well recognized, and which can be easily located, yet a lot therein of a certain number, does not represent any ascertainable part of the survey, unless a plat has been made and recorded by competent authority, which divides the survey into lots.</p> <p>3. Same—surveying and plaiting lots. The Revenue laws make it the duty of the owner, where a tract of land is divided into parcels so that it can not be described without metes and bounds, to cause such lands to be surveyed and platted into lots, the plat to be certified and recorded, and the law provides that, if the owner shall neglect or refuse to cause this to be done within thirty days after being notified by the county clerk, such clerk shall cause the survey to be made and recorded, and the expense thereof to be added to the tax levied on such property. When the land is so surveyed and platted, and the plat recorded, the lots may be assessed according to their numbers.</p> <p>4. A survey and platting of a tract of land by a deputy county surveyor, at the instance of an assessor, without any notice by the county clerk to the owner, or not at the request of the clerk, the plat not being recorded, is not a compliance with the statute, and such survey and platting are unauthorized and binding on no one, and will not change the original description of the land.</p>

<p>1. Subrogation — in favor of widow paying debt secured by trust deed. Where a widow, after the death of her husband, pays off a debt secured by a deed of trust given by the husband, and takes a release of the trust deed, the deed being a valid lien, and thereby preserves the property, she will have the right to foreclose the same for her own benefit.</p> <p>2. Delivery of a deed. Where the delivery of a deed, though to a stranger, for the benefit of the grantee, is absolute, it is good, but if a future control over the deed is reserved by the grantor, no estate passes.</p> <p>3. Where a grantor, after acknowledging a deed conveying his land to his three minor children, left the same with the acting magistrate requesting him to keep it for the grantor, saying if he wanted it he would call and get it, but if he should die, requesting its delivery to the grantees or their guardian, and after such deposit of the deed the grantor and his wife executed a mortgage on the same lands to a third person, it was held, that this latter act was equivalent to a withdrawal of the deed for the purpose of making the mortgage, and there being no subsequent act of the grantor showing an intention to make an absolute delivery, no title passed by the deed to the grantees.</p>

This was an application to this court for a mandamus, by L. B. Otis, against Mason B. Loomis, county judge of Cook county, and E. F. C. Klokke, clerk of the county court. The grounds of the application, and the material facts in the case, are set forth in the opinion of the court.

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

<p>1. Town plat—dedication•—by whom. The purchaser of land subject to a deed of trust has no power to lay out the land into town lots, and thereby dedicate the streets and alleys to the public so as to affect a purchaser at a sale under the trust deed. A sale under the trust deed will avoid and vacate such a plat.</p> <p>2. Conveyance—after acquired title. Where a deed, remising and releasing premises, contains a covenant that the grantor, his heirs, etc., shall warrant and defend the title to the premises to the grantee, his heirs and assigns forever, against all lawful claims of all persons claiming under the grantor, and the habendum clause provides that the grantee, his heirs and assigns, shall have and hold the premises, etc., forever, it will be a conveyance of the fee, and not a simple release, so that a title subsequently acquired by the grantor will inure to the grantee, unless it is derived from sale under an incumbrance assumed by the grantee.</p> <p>3. Same—construction of a deed as to assuming incumbrance by the grantee. Where a conveyance of land recited that the grantor and wife, in consideration of $4000, with incumbrances thereon, to him paid by the grantee, the receipt, whereof was acknowledged, did remise, quitclaim, etc., it was held, the evident intention was that- the consideration of the deed was the payment of $4000, and the grantee’s undertaking to pay the incumbrances on the land to the holders thereof, and that the grantee took the land subject to all incumbrances.</p> <p>4. Same—covenant against claims under the grantor. Where a conveyance of land is made subject to the incumbrances thereon made by the grantor, a covenant to warrant and defend against the claims of all persons claiming under the grantor applies only to the equity of redemption, which is all that such a deed purports to convey. •</p>

William IT. Snyder, Judge, presiding. Ryhiner & Co., creditors of George C. McCord, having obtained a judgment for over $4000 against him in the circuit court of Bond county, at the March term of 1876, and having taken other preliminary steps required for that purpose, on the first day of June, 1876, sued out process of garnishment against Nathaniel Dressor, in which it is recited that Dressor “is indebted to the said defendant, George C. McCord, or has effects or estate of…

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

Tazewell B. Tanner, presiding Justice, and the Hon. JamesC. Allen and Hon. David J.Baker, Justices; —heard in that court on appeal from the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding.

Clair county; the Hon. William H. Snyder, Judge, presiding. Lynch prosecuted before the county court a claim against the estate of one Fitzpatrick, deceased, of which Hirth was administrator. The claim was allowed by the county court, and Hirth, as administrator, appealed to the circuit court. The case was there tried before a jury and a verdict returned in the following words, as shown by the bill of exceptions: B. M. Lynch v. Estate op James Fitzpatrick.

<p>1. Taxation—double taxation. Where the local assessor assessed all of the lots in certain blocks, and also assessed 200 feet off the north side of the same as the property used for a railroad track, and the county assessor continued the assessment on his books, as to the latter strip of 200 feet, but in transferring the assessment, dropped the lots and entered the entire assessment upon the whole of the lots to the remaining 250 feet on the south side of the blocks : Held, that the latter strip could not be taxed for the entire blocks, but should be held for only a proportionate share of the whole valuation, to avoid double taxation.</p> <p>2. Same—change of assessment without notice. A county assessor is not authorized to change an assessment fixed by the local assessor upon property, without notice to the owner.</p>

Writ of Error to the Appellate Court for the Fourth District; the Hon. T. B. Tanner, presiding Justice, and Hon. J. C. Allen, and Hon. George W. Wall, Justices; —heard in that court on appeal from the Circuit Court of Madison county.

<p>1. Office—acts showing an abandonment. Where an alderman, elected in a city under a special charter, is afterwards elected in the same ward at a different date, on the assumption of the adoption by the city of the general law relating to cities, etc., and after a decision that the general law was not legally adopted, refuses to attend the meetings of the council, or appear, on notice, to show why he should not be removed, his subsequent election and refusal to attend the council meetings, may be treated as an abandonment of his office under the prior election, or as an implied resignation, and the office may be filled as in case of a vacancy.</p> <p>2. Same—implied resignation. One of the modes by which a member or officer of a municipal corporation may be said to impliedly resign his office, is by being elected and accepting an office incompatible with the duties of the former office.</p>

<p>1. Appeals from a trial court—whether to the Supreme or an Appellate Court— in suit on official bond. The act of 1879, which provides that appeals may be taken from the trial court directly to the Supreme Court, in “ all cases relating to the revenue, or in which the State is interested as a party, or otherwise,” has reference to cases for the collection of revenue—such as suits for taxes—and not every case which may, however remotely, affect the revenue.</p> <p>2. And the words of the statute, “in which the State is interested as a party, or otherwise,” mean a direct and substantial, as contradistinguished from a purely nominal interest.</p> <p>3. So an action of debt, in the name of The People, for the use of a county, upon a sheriff’s bond, to recover fees alleged to have been collected and retained by the Sheriff; in excess of the amount allowed him by the county board as Ms salary, is not within the statute, the State having, in the proper sense, no interest whatever in such a suit. In such case, there existing none of the special conditions requisite to the jurisdiction of the Supreme Court, an appeal from the trial court should be taken, in the first instance, to the Appellate Court.</p>

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

Monboe C. Cbawfobd, Judge, presiding. This is a suit in chancery, instituted in the circuit court of Jackson county, March 6,1874, by Mary E. Cady and Martha J. Man kin.

<p>1. Married women—the husband reducing wife’s property to possession. The mere fact that notes given for the purchase money of land belonging to a married woman, as her separate property, were taken in the name of her husband, the notes never having been collected by him, will not be regarded as a reduction of the wife’s property to the possession of the husband, so that, by the common law, the title would vest in him.</p> <p>2. Trust—:whether it arises. A married woman, holding lands as her separate property, sold the same, and notes for a part of the purchase money were taken by her husband, in his own name, but were not collected in his lifetime. Under the law of the domicil of the parties—the State of Louisiana— the notes, notwithstanding they were taken in the name of the husband, remained the absolute property of the wife. After the death'of the husband, the widow collected the amount of t-he notes in her own name. Subsequently she married again—this time in the State of Missouri, where the common law prevailed, under which the personal property of the wife became the property of the husband on the marriage. This second marriage was followed by a divorce, and a settlement between the parties, in respect to their property. Upon bill filed by the children by the first marriage against the second and divorced husband, alleging that he held moneys, and property purchased with money which was derived from the estate of their grandfather—their mother’s father—and that a trust arose in their favor, in respect to such property, it was held, that although the mother of complainants did inherit the lands mentioned, from her father’s estate, yet the proceeds of the sales of those lands were her separate property up to the time of her second marriage, never having belonged to her first husband, the complainant’s father, and on her settlement with the second and divorced husband, she had the right to permit him to retain that money if she chose so to do. So no trust arose as was claimed.</p>

<p>1. Taxation—of property in this State, of a railroad company, formed by consolidation, when one of the constituent companies was of this State, and others of other Stales. When a corporation is formed under our laws by the consolidation of other corporations, one of which was incorporated under the laws of this State, and the others in other States, the new, or consolidated company, is to be considered as “ incorporated under the laws of this State,” within the meaning of the last clause of the first section of the Revenue act of March 30, 1872, and the capital stock of such corporation in this State is subject to taxation here.</p> <p>2. Same—mode of finding value of capital stock and rolling stock of a railroad company, operating its road in this and other States. The State Board of Equalization found the value of the capital stock and rolling stock of a railroad corporation, operating its road and franchise in this and other States by a continuous line, by taking the value of the entire capital stock, and all the rolling stock of the corporation everywhere, and set apart so much of the entire value of each, for taxation in this State, as the proportion of the length of its main line, in this State, bore to the length of the entire line of the road owned and operated by it. It did not appear whether this was done from their own knowledge, or from information from other sources, and there was nothing to show fraud or illegality in their action: Held, in the absence of proof to the contrary, that the mode adopted by them, and the conclusion they reached, was fair and reasonable, and that this was not an assessment of any part of its property in the other States.</p> <p>3. Same—definition of classes of railroad property subject to taxation. Under the statute, the property of railroad companies is thus classified and defined for the purposes of taxation: the “capital stock” means all the property and rights of the corporation, of every kind and nature, wherever located. The “railroad track” embraces property held for right of way, including superstructures thereon, and this is declared to be real estate. “Rolling-stock” embraces the movable property of the corporation, which is declared personal property, and this is such property as, in its ordinary use, is taken from one part of the line to another, as cars, locomotives and their attachments, and usual accompaniments.' “ Personal property, other than rolling-stock,” embraces tools, materials for repairs, and all other property which, in its ordinary use, is not taken from one part of the line to another, and the local property, the railroad track, and rolling stock, constitute the tangible property of the corporation, and all other kinds of property, embracing the franchise and such other values as are inaccessible to the local assessors, the intangible property, and all those combined, constitute the capital stock.</p> <p>4. Same—object of the law in taxing railroad companies. The object of the legislature, in regard to the assessment of railroad corporations, was and is to subject each railroad company in the State to taxation, in proportion to the value of all its property liable to be taxed, whether tangible or intangible, real, personal or mixed, embracing, among other kinds of property, the franchises granted or exercised within this State.</p> <p>5. Same—mode of assessing capital stock in excess of value of tangible property. A rule adopted by the State Board of Equalization, for the assessment of the capital stock of corporations, that the value of all shares of the stock, and the value of all the debts, excluding those for current expenses, should be added together to ascertain the fair cash value of the capital stock, or entire property, including the franchises, and that from this sum should be deducted the amount of the value of all tangible property, and that the remainder should be taken as the fair cash value, to be assessed for taxation, was sustained on an application to enjoin the collection of a tax levied upon such sum, when equalized, by the board, with other property.</p> <p>6. While it is true that the statute must be understood as applying only to such property of railroad corporations, operating in this and other States, on the same line of road, as is subject to taxation in this State, the fact that the value of the whole property, both in and without the State, is used in the computation by which to arrive at the value of that part thereof to be assessed here for taxation, will not render the assessment or the taxes levied thereon invalid.</p>

<p>Taxation—railroad property—distribution among counties. A railroad tax will not be enjoined because the distribution of its taxable property, other than its local property, among the several counties through which its road runs, was made by the clerk of the Board of Equalization after the adjournment of the board, when it is made on the basis as fixed by the statute, and the "burden on the railway company has not been increased by the apportionment. This is but a ministerial act resting in computation, and does not require the exercise of any discretion.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Union county.</p>

Tazewell B. Tanner, presiding Justice, and Hon. James C. Allen and Hon. David J. Baker, Justices;— heard in that court on appeal from the Circuit Court of '• St. Clair county; the Hon. William H. Snyder, Judge, presiding.

Tazewell B. Tanner, presiding Justice, and Hon. .George W. Wall, and Hon. James C. Allen, Justices;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.

<p>1. New trial—no exception taken to ruling. Where the bill of exceptions fails to show an exception taken to the decision of the court overruling a motion for a new trial, it will be understood that the party acquiesced in the decision, and it can not be assigned for error.</p> <p>2. Official bond—misappropriation of funds in former term—liability of sureties. In an action upon a county treasurer’s bond, given for his term of office commencing December, 1877, to recover for moneys misappropriated and not paid to his successor after his removal from office, the sureties pleaded that the principal was treasurer of the county for a term of two years from December 1, 1875, to December 1, 1877; that he defaulted during that term, and that the sum of money alleged to have been in his hands on the day mentioned in the declaration had been misappropriated during that term;—to which plea the court sustained a demurrer: Meld, that the court erred in sustaining the demurrer. If the defaulting officer misappropriated funds thst came to him in his official capacity, during a term of office when defendants were not his sureties, they were under no legal obligation to make good such defalcation.</p>

<p>1. Lien fob taxes—remedy to enforce the same—jurisdiction in chancery. A court of chancery has no jurisdiction to enforce the lien upon real estate given by statute for taxes assessed thereon. Such lien is purely legal in its character, the creature of the statute, not arising upon contract, and can be enforced in the mode provided by the law of its creation, and in no other mode.</p> <p>2. If the Revenue law be defective in respect of the remedy provided for enforcing such a lien, that is a matter of legislative concern, not calling upon the courts to provide a remedy by extending the equitable jurisdiction beyond its recognized limits.</p> <p>3. Nor does the fact that it is the State which is seeking to enforce the lien, operate in any way to change the rule upon the question of jurisdiction. The officers of the State, in the collection of revenue, are as much bound to observe the law and to proceed in the mode pointed out by the statute, as an individual is required to observe the law in the enforcement of any right.</p>

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

This is an application for a writ of mandamus, by the National Cigar Company against the Commissioners of the Illinois State Penitentiary at Joliet, to compel the performance of a contract for the hiriug'of convict labor. The material facts appear in the opinion of the court.

E. S. Williams, Judge, presiding. This was a bill in chancery by Abraham J. Bockafellow, against Charles E. Grant .and Mary A. Newcomb and. one Saunders, to set aside a certain deed given by Miss Newcomb to Grant, and a deed from Grant to Saunders, as a cloud upon the title of the complainant in certain lands. On September 21, 1868, Bockafellow conveyed to Miss Newcomb the .premises in question. Bockafellow resided in Galva, Illinois, and Miss Newcomb in Galesburg.

Murray F. Tuley, Judge, presiding. This was a suit for partition, brought by William B. Bonner, in the circuit court of Cook county.

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

<p>^ Chancery jurisdiction—enjoining sale under execution at the suit of another creditor. A court of equity will not entertain jurisdiction of a bill by a creditor, whose debt is merely a legal one, to enjoin the sale of the goods of his debtor under an execution against him, upon the ground that the execution issued upon a judgment fraudulently confessed by the debtor in favor of one to whom b® was not indebted at the time, where the complainant has not obtained judgment vpon his demand, even though not due. In such a case the complainant must first establish his demand at law before he can impeach the bona fides of the judgment, execution and levy upon his debtors’ goods.</p> <p>2. Same—creditor’s bill to remove fraudulent incumbrance. When the creditor seeks to remove a fraudulent incumbrance or conveyance out of the way of his execution, he may file his bill as soon as he obtains his judgment at law.</p>

<p>Writ of Error to the County Court of Will County.</p>

<p>1. Evidence—to disprove fact admitted in pleading. Where a complainant states or admits a material fact in Ms bill, evidence on Ms part to the contrary can not avail him anything, and the defendant need not prove the fact so admitted.</p> <p>2. Chancery—leave to open case after hearing, and offer evidence after amendment. A creditor’s bill to set aside a conveyance of real estate bjr a debtor to his wife and subject it to sale on execution, alleged that, on a day prior to the marriage, the debtor .conveyed the property to' his intended wife, »nd after the hearing the court allowed the bill to be amended by changing the word “conveyed” to “attempted to convey,” and the words “ was conveyed” to “ was attempted to be conveyed” against the objection of the wife. She thereupon moved for a rehearing of the cause, and to offer evidence upon the subject of the delivery of the deed to her, which motion the court overruled : Held, that the court erred, as, if the deed was delivered before the marriage, it would have been an antenuptial settlement, and if after the marriage, a post nuptial settlement, one of which might have been sustained, while the other might not.</p> <p>3. An allegation in a bill that A, before his marriage with B, by his deed, conveyed real estate to B, implies that A delivered the deed to B before that event.</p>

This is a petition by John D. Catón, Thomas Drummond, Lyman Trumbull, Robert T. Lincoln, Potter Palmer, Ralph Plumb, B. F. Fridley, Gustavus Kcerner, and Melville W. Fuller, against Thomas B. Needles, Auditor of Public Accounts, for a writ of mandamus to compel him to draw his warrant for $1200 on the State Treasury, out of money not otherwise appropriated, as directed by the certificate of a majority of the relators, and also for his warrants, from time to time thereafter,…

<p>Appeal from the Circuit Court of Montgomery county; the Hon. H. M. Vakdeveer, Judge, presiding.</p>

<p>1. Instruction-—intimating an opinion on facts as evidence. In a proceeding by quo warranto against a gravel road corporation to deprive it of its franchise for not properly constructing its road, and not keeping the same in repair, the court should not in an instruction say to the jury they might take into consideration the fact of the gates being open, voluntarily on the part of the corporation, to show that such act was an admission by the defendant that the road at such times was not in proper repair, it being wholly a matter for the jury to say what effect, if any, should be given to such fact, without any intimation from the court as to any inferences to be drawn from it.</p> <p>2. Same—presenting a false issue. AVhere the question in issue was whether the defendant had made a good gravel road, of which fact there was evidence in the case, it was held, that an instruction leaving it to the jury to find if the road was constructed of a certain kind of gravel, and if the jury found such gravel was not good material out of which to construct a good gravel road, suitable for travel at all seasons, as a general rule they should find the defendant guilty, was calculated to mislead the jury, calling their attention from the true issue. ,,</p> <p>3. Same-—misleading and argumentative. An instruction which fails to present to the jury the real issue of fact, but presenting to their consideration subordinate and minor questions of fact, and which is argumentative and recites the testimony, is erroneous.</p> <p>4. Evidence—certified copies of reports of road inspectors. Under section 17, of “An act to provide for constructing, maintaining and keeping in repair plank, gravel or macadamized roads or pikes by a general law,” in force April 26, 1859, the reports of the road inspectors appointed by the county authorities are admissible as evidence for or against any corporation formed to construct such a road, not only in suits between such corporations and individuals respecting the payment of tolls, but also in a proceeding in the nature of a quo warranto to deprive such corporation of its franchise for not keeping its road in proper repair. c</p> <p>5. Statute—repeal, but not for all purposes. Although the act of 1859 respecting the construction of plank, gravel and macadamized roads was repealed by the general law of 1874 (Rev. Stat. 1874, p. 1026, No. 378) by section 2 of the repealing law, yet such law was continued in force as to all corporations theretofore formed under tksj,t act.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. D. McCulloch, Judge, presiding.</p>

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

<p>1. Cbiminal law—joinder of counts in indictment. Counts in an indictment may properly be joined, for larceny, the buying and receiving of the same property, knowing it to have been stolen, for the defendant’s own gain, and to prevent the .owner from again possessing the same, and in like manner, and for like purpose, with receiving and aiding in the concealment of the same property; and a trial may be had upon all of the counts, and the prosecution will not be required to elect as 'to either count, the charges all relating to one transaction.</p> <p>2. Although it is not proper to include separate and distinct felonies in different counts of .the same indictment, it is Allowable to state the same offence in different ways, although the judgments on the several counts be different.</p> <p>3. Evidence in criminal cases—effect of statements of one defendant as to others. Where three persons are indicted for larceny, the statements of one of the defendants, in the absence of the others, while evidence -against the one making them should not affect the others, and when offered the court should be asked to restrict its effect entirely against the party making such statements. If the court is asked to rule out ihat part of them relating to the other two defendants, being competent against one, the court may properly refuse to rule out any part of it.</p> <p>4. Same—what accused said when stolen property was found in his possession. Where it was proved -on the trial of one for larceny, by a witness, that he found the -stolen property, and that two of the defendants went with him to the place where it was found: Meld, that the defendants had the right, when called as witnesses, to state what they said as to how they came by the property, and it was error to refuse to allow such testimony.</p> <p>5. It is a well settled rule that what explanations a person makes while in -the possession of stolen property, at the time of finding it in his possession, are admissible in evidence for st$ch party, as explanatory of the character of his possession, and it is for the jury to weigh them and consider whether they were made in good faith, and were true, or only for the purpose of self-exculpation.</p>

<p>1. Appeal from Appellate Court—review of questions of fact. On appeals from the Appellate Court this court can not consider any controverted questions of fact, excepting in criminal cases, and cases in which a franchise or freehold, or the validity of a statute is involved.* </p> <p>2. Same—and herein, when the Appellate Court should recite the facts found. The 87th section of the Practice act imperatively requires the Appellate Court, on making a final determination of a cause as the result wholly or in part of the finding of the facts different from the finding of the trial court, to recite in its final order, judgment, or decree, the facts found, and it is error not to make such recital.</p> <p>3. When the Appellate Court fails to recite any facts in its final judgment, it will be inferred that it did not find the facts differently from the trial court, and in such case, if it simply reverses the judgment below, without remanding the cause, it will be inferred that the Appellate Court held the facts thus found did not constitute a cause of action, or that taking the evidence in the record it did not prove or tend to prove a right of recovery. In such case this court on appeal or error will look into the evidence as on a demurrer to evidence, and if it proves or tends to prove a cause of action, will reverse the judgment of the Appellate Court.</p>

<p>1. Bank—deposit under order of court—when not entitled to preference. Where the clerk of a court, under an order of the court, making a bank a depositary of court funds, and of funds of its officers, makes a deposit of funds belonging to the court in such bank, and the bank afterwards becomes insolvent, and the deposit was not a special one, or a mere naked bailment, and there is no means of identifying the money deposited, even if the assets of the bank are in the hands of a receiver, it is error to require the receiver to pay such deposit in full, and the clerk must share pro rata with other depositors and creditors of the bank.</p> <p>2. Same—whether deposit is general or special. Where moneys deposited in a commercial savings bank were not kept separate from the general funds of the bank, or distinguished therefrom, and the entries of the same upon the bank books, and upon the deposit book of the officer making the deposit, were the same as with all other depositors, except that no interest was to be paid thereon, it was held, that the deposit, though made under a general order of the court, was not a special one, or a mere bailment, and that the money so deposited became that, of the bank, which was liable for its repayment the same as to any other depositor or creditor.</p> <p>3. PlEceiveb.—power of court to direct payment out of funds in his hands. Where the court places the assets of an insolvent bank in the hands of a receiver, it is for the benefit of all the creditors of the corporation, to be administered, distributed and paid according to the equitable claims of all such creditors, and such act. can not affect or change in the slightest degree the rights of a single creditor, and the fact that the court has acquired possession of the assets and funds, confers no legal right to retain its own general deposits in full, where the moneys deposited under its direction with the bank can not be identified.</p>

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

<p>Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Circuit Court of Cook County; the ^Hon. W. H, Barnum, Judge, presiding.</p>