Volume 97 — Illinois Reports

<p>1. Assignment—whether restrictive, as affecting the negotiability of a bill or note. As the negotiability of a bill or note can only be restricted by express restrictive words, the words “or order” need not be inserted in full, or any indorsement, to give the bill or note a subsequent negotiable quality. A direction to pay to a particular person does not necessarily import that it shall not be paid to any other person to whom he may indorse it, but only that it shall not pass without his indorsement.</p> <p>2. Same—right of holder filling blank indorsement to erase the same and make note payable to himself. The payee of a note indorsed the same in blank, and delivered it to an insurance company in which he was a stockholder, which company transferred the same to one H, who filled up the blank, making the note payable to a bank for collection on his account, and sent the same to the bank for collection, and the bank, on failing to collect the note, returned it to H, indorsed “ without recourse on us,” signed by the cashier: Held, that H, on the return of the note, had the right to strike out the indorsement he had written over the payee’s signature and fill up the indorsement to himself, and that the indorsement to the bank for collection did not destroy the negotiable quality of the note.</p> <p>3. Same—notice of payee's right by character of indorsement. Where the payee of a note put the same into the hands of another indorsed in blank, in which condition it came into the hands of H, who filled up the indorsement, directing its payment to a bank for his use, and the same was returned uncollected, indorsed in blank by the bank “ without recourse,” and H after-wards sold and delivered the note to another, who had no actual notice of any interest the payee had in the same, it was held, that the character of the indorsement written by H over the payee’s signature afforded no notice to the purchaser from H of the payee’s interest in the note, and that the purchaser was entitled to be protected as an innocent holder.</p> <p>4. Same—indorsement construed. An indorsement of a note over the signature of the payee to a bank for collection for account of H, is an indorsement for the benefit of H, and not for that of the payee, and such an indorsement does not destroy the negotiability of the note, but any stranger taking an indorsement from the bank would hold the same for the use of H, the same as the bank.</p>

<p>Reference to master—necessary when a long account is to be stated. W'v r; there is an account to be stated, which account is lengthy, consisting of i evy many small items, amounting in all to $30,000, and covering a period < f thirteen years, and the evidence is voluminous and conflicting, the cause should be referred to a master to state the same, and it is error not to do so.</p>

Appeal' from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding. - Appellants exhibited their bill in equity against appellees, and Jesse R. Eastburn and Richard Roberts, in the court below, alleging that one James Crozier, who died testate on the 17th of June, 1869, seized and possessed of a large amount of real and personal estate, by his last will and testament directed, first, that all his debts and funeral expenses be paid; second, he…

<p>Writ op Error to the Circuit Court of Grundy county; the Hon. F. Goodspeed, Judge, presiding.</p>

<p>Specific performance—-fraudulent agreement. A court of equity will not decree the specific performance of an agreement to convey land, made for the purpose of hindering or delaying creditors, when both parties participated in the fraudulent intent. In such case, a court of equity willnotassist either party, but will leave them in the position they have placed themselves.</p>

<p>1. Fraudulent conveyance—voluntary settlement. A voluntary conveyance to a wife or child when the donor is in embarrassed financial circumstances, is fraudulent as to pre-existing creditors, even though the party retains estate nominally in value equal or more than equal to all his indebtedness, when the event shows that the property retained is in fact not sufficient to discharge all his liabilities. In the case of a child, the conveyance or settlement must be a reasonable one, depending on the ability of the debtor at the time to withdraw the amount of the donation from his estate without the least hazard to his creditors, or in any material degree lessening their prospect of payment.</p> <p>2. A person in 1870 made a parol gift of 100 acres of land to his son, who was blind, and married the same year and moved upon the premises, and occupied and controlled the same ever after, making valuable improvements thereon to the amount of $2000, and paying all the taxes thereon. It appeared that the father at the time of the gift was in prosperous circumstances, and worth $50,000 clear of all indebtedness, and in nowise embarrassed, but when he executed the gift by making a deed to the son, was embarrassed and in failing circumstances, and soon after became insolvent. It was held, that the conveyance to the son in pursuance of the parol agreement, should relate back to the time of the parol gift, and, under the circumstances, was not fraudulent as to creditors of the father.</p> <p>3. Chancery—affirmative relief on answer. Several judgment creditors filed their bills to set aside a conveyance of land by their debtor as fraudulent, and other judgment creditors, not parties to the bills, levied their executions upon the land, and the grantee filed a bill to restrain the creditors from selling the same under their executions, and one creditor filed a cross-bill, all of which bills were consolidated and heard together on bills and answers, etc., making an issue whether the conveyance was fraudulent or not, and the court set aside the conveyance so far as the several creditors were concerned, holding that the land was liable to the liens of the several judgments: Seld, that the decree was not obnoxious to the objection it gave affirmative relief to the creditors not joining in the bill to set aside the conveyance, and that the grantee had no substantial ground of complaint in this respect.</p> <p>4. Same—decree in setting aside fraudulent conveyance. On setting aside a voluntary conveyance as in fraud of creditors, the decree should be an alternative one as to the grantee, that if the judgments are not paid by the time limited, the lands shall be sold, giving the grantee an option to pay the debts. It should not be a personal decree against the grantee.</p>

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

Writ of Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding. On the 12th day of September, 1873, plaintiff in error filed, in. the Superior Court of Cook county, a bill in chancery against defendants in error, alleging, in substance, that on or about the 20th of ¡November, 1855, Hugh Maher and one William H. Warder entered into a written contract with ThomasB.

<p>Appeal from the County Court of Ogle county; the Hon. Albert Woodcock, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers/ Judge, presiding.

<p>1. Paupers—power of legislature to impose their support on towns, etc. The legislature has the right to impose the support of paupers on counties, cities, incorporated villages or townships, as it may choose, this being a portion of the police power of the State, and the submission of the question whether paupers shall be a county or a township charge, to a vote of the people of the county, is not essential to the validity of a law making the paupers of a county a township charge.</p> <p>2. Same—curative act of 1871. If an election in a county in April, 1863, on the question of township support of paupers, was held before the act providing for the same had taken effect, under the constitutional provision in the old constitution, that no law should be in force until sixty days after its passage, unless otherwise expressed, section 34 of the Pauper act of 1871 cured the defect, if the townships had acted in good faith under the authority of such vote.</p> <p>3. Same—residence to make township or county liable to another for support. Under section 16 of the Pauper act, the county or town in which a person resided within six months before becoming a charge in another county or town, is made liable for the support of such poor person. It is not required that such person should have become a pauper in such township or county sought to be charged, but it is sufficient if he resided therein within six months before becoming a pauper, and the legislature had the constitutional power to make such municipalities liable.</p> <p>4. Same—notice to town ultimately liable. To hold'a town liable for the support of a pauper who had a residence therein within six months before becoming a pauper in another town, notice of the fact must be given to the town sought to be charged, and such notice must be given within a reasonable time, and it is a question of fact for the jury to say, from all the facts and circumstances, whether the notice given is a reasonable one.</p> <p>5. Constitutional law—retrospective curative statutes. If the legislature might have provided for township support of paupers, without submitting the question to a vote in the county, it may, by subsequent retrospective legislation, cure any defect of an illegal vote. If the defect in an act or proceeding consists in doing or omitting something which the legislature might have made immaterial by prior law, it may be made immaterial by subsequent law.</p> <p>6. Same—special legislation. A statute which provides that where counties have voted for the support of paupers by townships, and counties have acted in good faith for the period of five years, under the authority of such vote, the acts of such townships and counties shall be deemed legal and binding, notwithstanding any informality in the time or manner of holding such election, etc., is not a special act, within the constitutional prohibition.</p> <p>7. Parol evidence—to prove election, etc. Under section 34 of the Pauper act of 1871, the fact that an election had been held in a county, and that it resulted in favor of making paupers a township charge, and that the townships had acted under the vote in good faith for more than five years, need not necessarily be proved by record evidence, but such election and its result may be shown by secondary evidence when the proper foundation is laid.</p> <p>8. Municipal corporations—subject to legislative control. The powers, duties and liabilities of municipal corporations, unless restrained by constitutional limitation, are wholly under the control of the legislature.</p> <p>9. Instructions—in language of the statute. In a suit to enforce the statutory liability of one town to another, for the support of a pauper, an instruction was given in the language of the statute: Held, that there was no error in giving such an instruction. If the other party desired a construction of the language used, he should have asked an instruction for such purpose.</p>

Thomas A. Moran, Judge, presiding. This was an action of assumpsit, brought in the circuit court by McKnight against the insurance company, to recover upon a contract of employment.

Writ op Error to the Circuit Court of Piatt county. Mr. S. E. Eeed, Mr. A. Emerson, and Mr. C. A. Tat-MAN, for the plaintiff in error: Section 8 of the Swamp Land act (1 Purple’s Stat. 700) provides that the Auditor shall make a list of the swamp lands of the county and forward the same to the county clerk of the proper county, which list shall have the force and effect of patents issued for school lands.

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. H. M. Vardeveer, Judge, presiding,</p>

<p>1. Evidence in criminal cases—cross-examination. On the trial of one for murder, in applying the 'rules governing the production of testimony, all matters of doubt should be solved in favor of the accused, and anything throwing light upon the subject of inquiry tending to exculpate the accused, ought to be admitted freely, without drawing the lines too tightly on cross-examination of the People’s witnesses.</p> <p>2. Where the right of cross-examination as against the accused is unwarrantably restricted, and the greatest latitude accorded to the People, so that improper evidence is allowed for the prosecution, and the accused is denied the right to ask proper and relevant questions on cross-examination, a judgment of conviction will be reversed.</p> <p>3. On a trial for murder the prosecution proved by a witness that just before the difficulty he saw the deceased go into the office of the accused, and that before going in the accused had hailed him from the window by the title of “ Sooner,” which the evidence showed was used and understood in an offensive sense. /The witness also testified that there had been before that time some difficulty between the accused and deceased about their matters. On the cross-examination the defence asked this preliminary question : “ Tell the jury whether you had noticed Whitcomb (the deceased) about the office some days before that 7 ” to which the court sustained an objection: Held, that the question was proper and the court erred in refusing to allow it to be answered. It was proper as negativing the hypothesis that the deceased had gone into the office of the accused on account of the supposed insult, and tended strongly to disprove the alleged fact.</p> <p>4. In the same case a brother of the deceased was introduced by the People for the purpose of identifying the written statement of the deceased which was subsequently admitted in evidence as a dying declaration, and also to show the circumstances under which it was made. On cross-examination he was asked, if during a conversation of which he, had spoken as having occurred immediately before the written statement was made, or if during any conversation had with the deceased after that conversation, the deceased used profane language, which the court refused to allow the witness to answer: Be Id, that so far as this language related to the conversation of which the witness spoke in his examination in chief, there could be no doubt of its propriety, and that the question was also proper as tending to negative the assumption that the deceased, at the time of making the statement, was rational and had no hopes of life, and was not actuated by malice or revenge.</p> <p>■ 5. Evidence—conversation—other party entitled to whole of it. Nothing is better settled than, if a witness testifies to a part of a conversation, that the party against whom it is offered is entitled to have all that was said on the same subject in that conversation.</p> <p>6. Eying declarations-—requisite preliminary proof. Before a written statement is admissible in evidence as dying declarations, it must be shown that the deceased at the time of making it was in possession of his memory and mental faculties to such an extent as to understand the nature of the business in which he was engaged, and to be able to give a true and correct account of the facts to which the statement relates, and it must also be made to appear that it was made under a fixed belief and moral conviction that death was then impending and certain to. follow almost immediately, and otherwise under such circumstances as to exclude the supposition that the declarant in making it was influenced by malice, revenge or any conceivable motive to misrepresent the real facts.</p> <p>7. When dying declarations are offered in evidence, it is competent for the accused to show by cross-examination of the People’s witnesses, or by other witnesses, that the deceased in making the statements was in a reckless, irreverent state of mind, and entertained feelings of malice and hostility towards the accused, and proof of the indulgence in profane language at or about the time of making the statement is clearly competent for that purpose.</p> <p>8. Practice—general objection to evidence—of its effect. . A general objection to a question propounded to a witness must be regarded as going to the competency of the testimony sought and not to the form of the question, and if the testimony sought to be elicited is pertinent and competent, it is error to sustain such an objection.</p>

Writ op Error to the Circuit Court of Scott county; the Hon. Cyrus Epler, Judge, presiding. This was a bill in chancery, filed in the Scott county circuit court on the 12th day of December, 1878, by plaintiffs in error, against Amelia Hewitt, Ann Beedham and Sarah Boyal, for the partition of certain lands.

<p>1. Limitation—under act of 1839. A defendant in ejectment received a warranty deed for the land in suit on November 5, 1859, and paid all taxes thereon for the years 1859 to 1878 inclusive, and the proof showed it was timber land and was never inclosed, but that he used it every year since the date of his deed as occasion required in procuring therefrom rails, firewood, posts, etc., without let or hindrance: Held, whether the land was in possession, or vacant and unoccupied, the bar of the Statute of Limitations was complete under the law of 1839.</p> <p>2. Evidence—judicial notice of signature of public officer. Proof of the execution of official instruments is not always necessary. As a general rule courts take judicial notice of the public officers, and in some cases their signatures, within their respective jurisdictions, and when the trial court in such cases acts upon such judicial notice, this court will presume, in the absence of any evidence to the contrary, that it acted properly.</p> <p>3. Practice—general objection to evidence. A general objection to tax receipts as evidence goes only to their competency or relevancy, and not to any objection that might be obviated by the party offering them. Under such an objection the party is not bound to prove the signatures of the officers signing the same.</p>

W. B. Welch, Judge, presiding. This was an action of debt, commenced in the Sangamon circuit court on the 26th of September, 1878, on a penal bond executed by the defendants and certain other citizens of Sangamon county, since deceased, on the 8th day of August, 1871, in the sum of $500,000, conditioned that the obligors would, upon demand, either procure for the State, free of cost, such additional capitol grounds as the State might indicate, not to exceed four acres, to…

<p>1. Confession of judgment—whether power of attorney authorizes it in vacation. Where a power of attorney authorizes any attorney at law of the State to appear before any court of record in the State and "confess judgment for the amount due upon a' note to which it is attached, the power may be exercised by the confession of judgment either in term time or in vacation, before the clerk of the court.</p> <p>2. The power to confess a judgment must be clearly given and strictly pursued or the judgment will not be sustained. But this rule, like all others, has its reasonable limitations, and must not be applied so rigidly as to defeat the manifest intention of the parties to the instrument granting the power.</p> <p>3. Same—in vacation, has the same force and effect as if in term time. Where a judgment is entered in the circuit court, in vacation, in pursuance of a proper warrant of attorney, as soon as the entry is made it becomes, by the force and sentence of law, a judgment in a court of record, and, as such, has the same force and effect as any other judgment.</p> <p>4. Power of attorney—mode of executing a general one. Where a power of attorney authorizes a thing to be done generally, without any limitation as to the manner of doing it, and it may be lawfully done in two or more ways, the donee of such power may execute it in either of the ways, and it will be well executed.</p> <p>5. Courts—-open at all times for certain business. For the purpose of suing out writs, entering judgments upon powers of attorney, and perhaps in other matters, the circuit courts are.open at all times, except on Sundays and legal holidays. But when the business requires a judicial inquiry, it can only be done during term time. •</p>

<p>• Assignment of negotiable paper secured by mortgage—notice to subsequent incumbrancer. A negotiable instrument secured by mortgage was assigned before maturity. The mortgage described the instrument thus secured, showing its negotiable character and the date at which it would mature, and was duly recorded. The mortgage itself was not assigned, except as it passed in equity by the assignment of the instrument it was given to secure. Subsequent to the recording of the mortgage and the assignment of the instrument, and before the maturity of the instrument, the mortgagor effected a loan from a third person, and gave a mortgage upon the same premises embraced in the prior mortgage, it jgeing the understanding that a portion of the money thus obtained should be applied in satisfaction of the prior mortgage. The mortgagor did pay the amount of the first mortgage debt, out of the money received from the second mortgagee, to the payee thereof, who thereupon gave what purported to be a release of the first mortgage. Upon bill filed by the assignee of the instrument secured by the first mortgage, for foreclosure, it was held, it not appearing that the payee, to whom the money had been paid, was authorized to receive the same in behalf of complainant, or had paid it over to him, the second incumbrancer held subordinate to the lien of the first mortgage. The second mortgagee having notice of the prior mortgage was thereby advised of the negotiable character of the paper secured by it, and that it was not yet matured, and he was put upon inquiry as to whether it had been assigned. Being so put upon inquiry, he was chargeable with notice of the rights of the assignee.</p>

Writ op Error to the Probate Court of Cook county; the Hon. Joshua C. Knickerbocker, Judge, presiding. . This was a proceeding by the People of the State of Illinois, in the probate court of Cook county, against plaintiff in error, for an alleged contempt.

W. ft. Welch, Judge, presiding. This is a bill in chancery filed by complainants, against the defendants, in the Shelby county circuit court, on the 29th day of July, 1876, for the purpose of enjoining a tax levied for the payment of the interest on certain railroad donation bonds, amounting in the aggregate to $40,000, issued by the town authorities of the town of Prairie, and registered in the office of the Auditor of Public Accounts, under the act of April 16, 1869.

<p>1. Pleading—non est factum in assumpsit. The plea of non est factum, in an action of assumpsit brought upon interest coupons attached to corporate bonds, is not a proper plea, and there is no error in striking it from the files.</p> <p>2. Same—where evidence is admitted under general issue no error in sustaining demurrer to special pleas. Where all of the evidence is admissible under the general issue, that could have been presented under special pleas to which a demurrer was sustained, and such evidence was so admitted, the court will not consider an assignment of error for sustaining the demurrer.</p> <p>3. Municipal bonds—power of towns to issue. Under sections 8, 9 and 10 of the charter of the Bloomington and Ohio River Railroad Company, adopted March 10, 1869, power was conferred on towns along the line of such road to vote, under the notices therein specified, for and against the issue of township bonds as a donation in aid of the construction of its road, and upon a vote in favor of the same, the power was conferred to issue such bonds.</p> <p>4. Same—of the notice of the election. Under a law providing for a vote whether a township shall issue bonds in aid of a railroad, which requires the town clerk, upon receiving the proper petition, to “immediately give the notice required by law for an election,” etc., it was held, that three notices were all that were required to be posted of the time and place of the election, the same as of an annual town meeting, and not five, as the law then required in case of a special town meeting.</p> <p>5. Same—who are corporate authorities of a town to issue its bonds voted. Under a law which authorizes the “proper corporate authorities” of a township to issue the bonds of the town when so authorized by a vote of the electors at an election called for that purpose, the supervisor and town clerk must be regarded as the proper corporate authorities for the issue and delivery of the bonds, it being but a ministerial act., though they are not such for the purpose of creating the indebtedness. There is a broad difference between the creation of a debt and merely executing the evidence of it.</p>

<p>Taxation—valuation of capital stock by Slate Board. The decision of this court in the case of Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 111. 561, and subsequent cases, as to the validity of the rules adopted by the State Board of Equalization for ascertaining the value of the capital stock of railroad companies for taxation, is re-affirmed and followed.</p>

This is an action of ejectment, brought against the corporation, to April term, 1873, in the circuit court of the county tif Bock Island, by the widow and heirs-at-law of William Brown. The last trial of the issue was in 1878, which resulted in a finding for defendant, and judgment thereon, from which plaintiff appeals to this court. The land involved in the action was owned, in 1844, by one Periander Pollock.

John J. Glenn, Judge, presiding. William Morris, on the 12th day of August, 1847, conveyed, by deed, the remainder, after the termination of his life estate, (which was expressly reserved,) in certain lands in Knox county, to his children, Canada, Jane, Josiah, Hiram, Rhoda, Margaret and Mahulda. Mahulda died intestate in 1854.

<p>Appeal from the Appellate Court for the Third District: heard on appeal from the Circuit Court of Effingham county; the Hon. James C. Allen, Judge, presiding.</p>

This was an application in this court, by Matthew N. Escott, for a discharge on writ of habeas corpus against John Hoffman, sheriff of Cook county.

FT. J. Pillsbury, presiding Justice, and the Hon. Joseph Sibley and Hon. Edwin S. Leland, Justices;— heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. J. McBoberts, Judge, presiding.

Francis Goodspeed, Judge, presiding. Hezekiah Merritt died intestate on the 23d day of February, 1877, seized in fee simple of 106.70 acres of land, in which he had a homestead, and leaving him surviving Lydia Merritt, his widow, of the age of 65 years, and several children and descendants of children, none of whom, except the widow, resided with him at the time of his death.

<p>1. Negligence in railroads—failure to erect and maintain fences—agreement of adjacent owner to perform that duty. Wlieré the owner of land adjoining the right of way of a railway company, under an agreement with the company, erected a fence along the line between his land and the right of way, and took upon himself to maintain it, it was held, that as between such owner, and those holding under him with knowledge of his duty, on the one part, and the railway company on the other, the duty of maintaining and repairing the fence did not rest on the company.</p> <p>2. A tenant of such owner, while in the occupancy of the premises, and with full knowledge of the undertaking of his landlord in respect to keeping the fence mentioned in repair, and with knowledge of the condition of the fence, placed his live stock .in the inclosure which was separated from the right of way by this fence. The stock in some manner got upon the railway track through the fence, and were killed by a passing train. In an action by the tenant against the company to recover for the stock killed, it was held, that he could not allege any want of sufficiency in the fence as a ground of recovery.</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. E. S. Williams, Judge, presiding.</p>

<p>1. New TKiAt—on evidence, in criminal cases. In cases where the evidence is conflicting, depending upon the credibility of the opposing witnesses, the finding of the jury must be regarded as conclusive, unless it is reasonably clear that an error has been committed. It is only where the court is able to say, from a careful consideration of the whole of the testimony, that there is clearly a reasonable and well founded doubt of the guilt of the accused, that it will interpose on the ground the evidence does not support the verdict.</p> <p>2. CnnmrAi, iaw—right of the jury to disbelieve testimony of the accused. In a capital case, the jury have the right, under certain circumstances, as in this case, to disbelieve the testimony of the accused, except so far as corroborated by other witnesses, from the fact, that if guilty, he has the most powerful and urgent of motives to misrepresent the real facts.</p> <p>3. Same—instruction as to self-defence—reference to evidence. An instruction as to the doctrine of self-defence, almost literally in the language of section 149 of the Criminal Code, except, in place of the words in the statute, “it must appear that the danger was so urgent,” the instruction read, “it must appear, from the evidence, the danger was so urgent,” etc. It was objected that the interpolation of the words, “from the evidence,” rendered the instruction bad, as ignoring how it reasonably appeared to the accused, and placing the right of self-defence upon how the facts appeared to the jury from the evidence: Held, that the use of those words did not vitiate the instruction.</p> <p>4. Same—instruction ignoring apparent danger. An instruction for the People on a trial of one upon the charge of murder, that “ where the defendant pleads self-defence as an excuse for the killing, it must appear, from the evidence, that the danger was so urgent and pressing, that in order to save his own life, or prevent, his receiving great bodily harm, the killing of the other was absolutely necessary,” etc., was held, as standing alone, to be erroneous, as ignoring the doctrine of apparent danger; but when such an instruction is only one of a series on the subject, and the law of self-defence is properly laid down in other instructions in respect to apparent danger, the error will not be ground of reversal.</p> <p>5. Same—accused must not act from malice. In order to show justification in taking human life in self-defence, the defendant must show to the jury the actual state of facts, whether deceptive or otherwise, which surrounded him at the time of the homicide, in order to enable them to determine whether they were sufficient to excite the fears of a reasonable person, and whether the accused, in taking the life of the deceased, in good faith really acted under the influence of those fears, and not in a spirit of revenge.</p> <p>6. If the accused seek and bring on a difficulty with the deceased at the time of the killing, he will not be allowed to avail of the right of self-defence in order to shield himself from the consequences of the killing, however imminent the danger in' which he may have found himself in the progress of the affray which he brought upon himself.</p> <p>7. Same—instruction limiting difficulty where there have been two. Where one accused of murder, and the deceased, had two difficulties or affrays on the same day of the killing, an instruction in regard to the right of self-defence, which refers to the difficulty “at the time of the hilling,” will be sufficiently explicit to show that it was the last difficulty that was meant.</p> <p>8. Same—presence of bailiff during the deliberation of the jury. The presence of a bailiff in charge of a jury in a capital case, in the jury room during a part of their deliberations, is a grave irregularity and a breach of duty on the part of the officer, which will, or will not vitiate the verdict, depending on the circumstances in each particular case. Where it affirmatively appears that the officer was not influenced by improper motives, and that his conduct, outside of the mere fact of being in the presence of the jury, is unexceptionable, and the court is unable to discover, after due inquiry, any thing connected with the transaction from which it may reasonably be inferred the jury were improperly influenced, or the rights of the accused prejudiced, there will be no sufficient reason for setting aside the verdict.</p> <p>9. Where a bailiff in charge of a jury in a capital case, who has given, material evidence against the accused upon controverted points, is present with the jury while considering of their verdict, this will vitiate their verdict where the jury find the defendant guilty, as tending to prevent that free discussion of his testimony which the ends of justice demand.</p>

Writ op Error to 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. This writ of error is prosecuted to reverse a judgment of the Appellate Court affirming a decree of the Superior Court of Cook county in a chancery proceeding, wherein plaintiff in error was complainant and defendant in error was defendant.

Writ op Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding. On June 10, 1876, defendant in error sued out a summons against the plaintiff in error, which is a corporation having its place of business in Cook county, Illinois.

<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. S. M. Moore, Judge, presiding.</p>

<p>Appeal from the-Appellate Court for the First District; —heard iu that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p>

John A. Jamesou, Judge, presiding. This is a prosecution for an alleged violation of sections 1, 2 and 6 of what is known as the Game law of this State, entitled “An act to revise and consolidate the several acts relating to the protection of game, and for the protection of deer, wild fowl and birds,” approved May 14, 1879.

<p>1. Lunatic—not affected by laches or Statute of Limitations. A confirmed lunatic or idiot can not be held accountable for any apparent negligence, laches or delay in seeking redress through the courts, or otherwise, for any wrong or injustice that may have been done him or her with respect to property owned by such person, nor will such person he affected by any statutes of limitation that now exist or have heretofore existed in the State, which, but for the lunacy or idiocy, would have barred his or her rights.</p> <p>2. Same—Slate succeeds to the powers of the English Crown in respect to. In theory of law the State, in its character of parens patriae, may rightfully exercise the same powers and control over the persons and property of lunatics and idiots that was exercised by the Crown of England through the Lord Chancellor.</p> <p>3. Same—application by conservator to sell his lands, is not adverse to ward— ward need not be made a party. A proceeding by the conservator of a lunatic or insane person for an order of court to sell Ms land for Ms support, etc., is not adverse to the ward, but, on the contrary, it is for his benefit, and hence the ward is not a necessary party to the proceeding.</p> <p>4. Same—conservato',—validity of his appointment can not be questioned collaterally. The validity of the appointment of a conservator for a lunatic, like that of an administrator, can not be attacked or questioned in a collateral proceeding, such as in a suit to set aside the sale of land by the conservator under a decree of court,</p> <p>5. Same—-jurisdiction to render decree for sale of land by a conservator presumed. A circuit court ordering the sale of a lunatic’s land by her conservator, must be presumed to have had the requisite jurisdiction, unless the contrary affirmatively appears from the record; and when the want of jurisdiction does not affirmatively appear, the decree or judgment can not be attacked collaterally for errors or irregularities in rendering the same.</p> <p>6. Same—jurisdiction of courts of equity to order sale of lunatic’s land for her support and maintenance. At the time of the entering of a decree for the sale of the land of a lunatic, by her conservator, there was no statute which, in terms, authorized courts of chancery to entertain applications for the sale of real estate belonging to idiots or insane persons, yet it was held, that the court of chancery, under its general powers over the estates of infants and lunatics or distracted persons, had jurisdiction to order the sale of a lunatic’s land for her support and maintenance, on a proper application by her conservator, or to pay the conservator for moneys expended by him in supporting such ward, he having no remedy at law.</p> <p>7. Resulting trust—-from conversion of money by administrator into land. Where an administrator of an estate uses the money of the estate to procure the title to lands for the benefit of the heirs of the estate, the heirs may adopt his act and claim the land, and in a suit by the conservator of one of the heirs to set aside a sale of such heir’s portion of the land, the party in possession' will not be allowed to set up in defence that the administrator had no right to make the investment, and that such heir’s claim is only for his share of the money so invested.</p> <p>8. Constitutional law—distribution of powers of government. The powers of government are, in their very nature, either legislative or executive. The executive powers are, in their nature, either judicial or ministerial. But., for convenience of administration, the powers of government are, by the constitution of this State, divided into three classes: legislative, executive and judicial, which is a complete disposition of the whole. From this it follows that neither branch of government to whom these powers have been thus delegated can exercise any of those conferred upon either of the others.</p> <p>9. Same—of the judicial power. While each department of government is, in theory, independent of the others, and must, therefore, in the first instance judge of its own powers, yet when any property right is drawn in question in a legal proceeding, depending upon an alleged usurpation of power by either of the other departments, and not with respect to a matter of which such department is made the exclusive judge, the ultimate power of determining the question belongs to the judiciary.</p> <p>10. The judicial powers of the State are exercised by courts established, under the constitution, in conformity with the usages and principles of the common law, or in the manner prescribed by the legislature. They have no power to make laws, but are only permitted to declare what the law is, and apply it to existing controversies, when brought before them by some appropriate proceeding. But they have power, in the absence of legislation, to make and enforce rules of practice, and to punish for contempt; and the very fact of establishing a court, by implication, confers upon it all such powers, not expressly given, as are necessary to the efficient transaction of all such business as it is by law authorized to perform.</p> <p>11. In every suit claiming a right when it is denied, it is the duty of the court to ascertain, in the first place, whether the fact or combination of facts exists upon which the right depends, and in the next place, to determine whether the law, as applicable to the facts found, gives the right claimed, and the performance of those duties is the exercise of judicial power.</p>

<p>1. Will—devise on condition precedent—condition must be performed. Where a father devised a tract of land to his son upon condition that he should pay certain legacies named, to his daughters, within one year after the testator’s death, and also pay all notes, etc., for which the testator was bound as hi's surety, and settle the estate without any charge to the same, it was held, that the conditions upon which the devise was made were conditions precedent, and that if either of them had not been performed within the time limited, the devise to the son never took effect.</p> <p>2. New trial—on the evidence.- Where the trial court has twice found the disputed facts the same way, this court will not reverse the decree on the sole ground that the finding of the trial court is erroneous, unless this court is able to say it was clearly so.</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. John A. Jameson, Judge, presiding.</p>

<p>School law—modern languages may properly be taught in schools. Under that section of the School law, specifying the branches of studies to be taught in the common or free schools, the words, “ and in such other branches, including vocal music and drawing, as the directors, or voters of the district, at the annual election of directors, may prescribe,” the German or any modern language may be taught. While the medium of communication must be the English language, the teaching of the modern languages is not prohibited.</p>

<p>1. Chancery practice—right of complainant to dismiss Ms bill. Under our practice a complainant in chancery has the right, at any time before decree is rendered, to dismiss his bill, unless a cross-bill has been filed.</p> <p>2. In a suit in chancery, upon the hearing the chancellor orally announced his own conclusions, which were adverse to the complainant, and thereupon, before any formal decree was entered, the complainant asked leave to dismiss his bill, which was granted, and the bill was dismissed, against the defendant’s protest. It was held, there being no cross-bill filed, the court made a proper disposition of the case.</p> <p>3. Cross-bill—what constitutes—of the answer as a cross-bill. A defendant in a suit in chancery can not make his answer a cross-bill, and under it obtain any specific decree in his favor. And conceding, as intimated in 'Theilman v. Carr, 75 111. 385, that there'is no objection, after concluding the answer, to proceed right along on the same piece of paper, and state the matter of the cross-bill—(and that is all that is intimated in that case touching the question as to what is requisite to constitute a cross-bill,) yet the statement should be sufficient to constitute a cross-bill if disconnected and a proper heading attached. If the answer is to be treated as a cross-bill, it should have the substantial requisites of a cross-bill. All parties in interest should be brought before the court and required to answer its allegations, or, at least, given an opportunity to do so,—and there should be such a prayer as will indicate that the appropriate relief is desired.</p> <p>4. Same—party filing, must take steps to have it answered. It is the duty of a party who files a cross-bill to take steps to have it answered, and where no such steps are taken and the parties voluntarily go to a hearing, the cross-bill may be regarded as abandoned.</p> <p>5. Publicamos—what parties affected by. A publication of notice to “the unknown heirs and legal representatives of” a deceased person, is not sufficient to bring before the court the known heirs of sucli person's deceased wife, whose interests are subsequently disclosed by the pleadings, on a bill for partition.</p>

<p>Appeal from the Circuit. Court of Jackson county; the Hon. Olivee A. Habkeb, Judge, presiding.</p>

Writ op Error to the Circuit Court of Clay county; the Hon. William C. Jones, Judge, presiding. This was a petition by defendants in error, against plaintiffs in error, in the Clay county circuit court, for the partition of lot 9, block 20, in the town of Flora, this State.

<p>1. Compensation of county officers—out of what fund to be paid. Section 10 of article 10 of the present constitution, and the legislation under it, make it the duty of the county board to fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel, and other expenses, and, in all cases where fees are provided for, such compensation shall be paid only out of, and shall in no case exceed, the fees actually collected. The compensation of such officers can not he increased or diminished during their term of office. All fees and allowances in excess of their compensation shall be paid into the county treasury.</p> <p>2. Same—compensation may include expenses of the office. Compensation of county officers may or may not include expenses of the office. It is lawful to fix a compensation that will include the expenses of the office as well as the personal services of the incumbent.,- but it is also lawful to fix one amount for the personal services of the officer, and another amount for the expenses of the office.</p> <p>3. Where the compensation includes expenses of the office, such officer is entitled to retain the full amount allowed, if the fees actually collected equal that amount. But where one sum is allowed to the officer as compensation for services, and another sum for expenses, such officer may retain out of the fees collected the amount allowed him for his personal services, but no more of the sum appropriated for expenses than the sum actually expended for that purpose.</p> <p>4. County otticebs—effect of approving reports of, as to fees collected, etc. The fact that a county board has approved of a sheriff’s report that showed an amount due him after deducting all fees actually collected, imposes no obligation on the county to pay him the deficit. The balance found to be due him on his final return may be paid to him out of any fees earned by him during his term of office, when afterwards collected by his successor.</p> <p>5. A county officer takes his office cum onere, and the county board has no power, even if willing to do so, to make up any deficiency that may exist, either for his own personal services, or for the expenses of the office, except out of fees earned by him and which shall be collected.</p>

Weit of Error to the Appellate Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.

W. B. Welch, Judge, presiding. This was an application, by Montgomery Hickman, to the probate court of Fayette county, asking that over $9000 be paid to him as guardian of the minor heirs of E. Capps, deceased, for the support and maintenance of the minors. On appeal to the circuit court, that court rendered judgment against the appellants, who took the case to the Appellate Court for the Fourth District by writ of error, where the judgment of the circuit court was affirmed.

David McCulloch, Judge, presidios:. George Olcott brought assumpsit, in the Tazewell circuit court, against the Hartford Fire Insurance Company on a policy of insurance. The clauses obligatory upon the company run as follows: “ The Hartford Fire Insurance Company. Hartford, Connecticut.

<p>1. Practice—allowing further examination of juror after closing, is discretionary. The giving the prosecution in a criminal case the privilege to re-examine a juror, after his acceptance by the State’s attorney, but before his acceptance by the defendant, and the allowance of a challenge "for cause shown on the re-examination, is a matter wholly within the discretion of the court, the same as permitting a further question to be asked of a witness after his examination has been closed.</p> <p>2. Error, will not always reverse—rejecting testimony—objection obviated by other testimony—as, on cross-examination to lay foundation to impeach witness. On the trial of one for murder, the-defendant’s oounsel-aslied one of the .people’s witnesses if he did not swear, on the examination before the justice of the peace, that he and another carried grub to those who were concealed to waylay and kill the'defendant. The court, on objection, excluded the question, but permitted the witness to be asked if he ever did carry grub to those who were concealed to waylay and kill the defendant, and the witness answered that he never did. This person was not a witness of the transaction, but of statements made by the defendant that he went to the place of the difficulty purposely to kill the deceased. There was other evidence of impeachment of this witness, but there was ample evidence, excluding his testimony, to sustain a verdict finding the defendant guilty: Held, that the error, if any¿ was not sufficient to justify a reversal.</p> <p>3. Same—objection obviated by the character of the finding. An instruction to a jury, in a capital case, that if they believe, from the evidence, that the defendant sought a difficulty, or provoked a difficulty with the deceased, for the purpose of killing him, and in the fight, did kill him, in pursuance of his malicious intention of taking the life of the deceased, they should find him guilty of murder, is not rendered erroneous by the use of the word “malicious,” where the jury finds the defendant not guilty of murder, but only of manslaughter.</p> <p>4. Instruction—when it need not refer to the evidence. Where an instruction states only a legal proposition, it need not make reference to the evidence, and need not be so restricted.</p> <p>5. Same—construed as not having reference to the evidence. On a trial of one indicted for murder, the court instructed the jury, that, under the indictment, they could find the defendant guilty of murder or manslaughter, and then stating the several punishments applicable to each, is not open to the objection that it conveys an intimation to the jury that, upon the evidence, they could find the defendant guilty of either of those crimes. It is simply informing the jury, that, on an indictment for murder, they may find the defendant guilty of murder or manslaughter, without having in view at all the evidence in the case.</p> <p>6. Same—construed.as not referring to the degree of evidence required. An instruction to the jury, in such case, “if yon find’’ so and so, “ you will find the defendant guilty of manslaughter, without making such finding dependent upon the jury finding such and such facts established beyond a reasonable "doubt, from the evidence, is not erroneous. Such an instruction has no reference to the quantity of evidence required, but is directed solely to the result of the finding certain'facts, assuming that the finding will be in due form and upon proper warrant. It is but saying, that on such facts as stated, the result would be as named.</p> <p>7. Same—objection obviated by other instructions—as to the credibility of defendants witnesses only. The court, on a trial for murder, instructed the jury, that, in passing upon the evidence of the witnesses for the defendant, they might take into consideration their interest, if any, in the result of the trial, their feelings towards the defendant, if any, their manner of testifying and their appearance on the stand, and give it such weight as they might think it entitled to under all the circumstances: Held, that it would have been better in form, had it been general as to all the witnesses in the case, but there being two other instructions of similar import, though not embracing all the particulars of the first, which was general, there was no error.</p> <p>8. Same — taking two instructions together. On a criminal trial, in which it was claimed that a witness for the people was impeached, the court instructed the jury that everything said by the witnesses on both sides, if not excluded by the court, was before them, and should be considered in making up their verdict, but, in a subsequent instruction, the jury were told, that, although the witness had been attacked for truth and veracity, before they could wholly disregard his evidence, they should inquire whether he had sustained himself by witnesses testifying their willingness to believe him under oath, and whether or not he had been corroborated in his testimony by other evidence, or by the circumstances of the case, and then as to such points wherein he was corroborated, if he was so corroborated, they should not disregard his evidence, but give such weight to it as they might think it deserved, for the jury were the judges of the credibility of all the witnesses: _Held, that taking the two instructions together, the defendant had no just cause of complaint.</p> <p>9. Same—as to self-defence. On a trial for murder, the court instructed the jury, on the part of the prosecution, that before the defendant could successfully claim that he committed the homicide in self-defence, the jury “must believe, from the evidence, that the danger was so great and pressing, that, in order to save his own life, or to save himself from great bodily harm, the killing seemed to the defendant to be absolutely necessary. It was objected the word “ absolutely ” rendered the instruction bad, but the court held, that in their application to this case, there was no essential difference between the expression “ absolutely necessary ” and the word necessary.</p> <p>10. Same—as to character of modification. The modifying of a defendant’s instruction in a criminal case, “so as to make it read very much as though it was one of the people’s instructions,” is no sufficient ground of complaint by the defendant.</p>

<p>1. Practice—objection for variance should be specific. A general objection to an instrument offered in evidence, on the ground of a variance, is not sufficient. The party objecting should point out wherein the variance exists, so' as to give an opportunity of obviating the same by amendment.</p> <p>. 2. Assignment—policy, of insurance. The writing of directions by -the holder on the back of a policy of life insurance, that the sum secured should be distributed among certain beneficiaries, is not an assignment of , the policy.</p> <p>3. Evidence—parol, to show sum due on policy. Where a policy of life insurance contains a provision to pay the assured, or his legal representatives, one dollar for every member of the society of the same division or divisions, “at the time of such payment,” parol evidence is admissible to show the number of members at the time payment should be made, in order to arrive at the measure of damages.</p> <p>4. "Life insurance—construed with reference to time of payment. Where, in the body of a policy of life insurance, reference is made to the indorsements on its back, they may be considered in connection with the policy in determining when the policy is payable, where that is left doubtful in the body of the policy. Where such a policy was indorsed, “Mutual assurance on the life of A B,” “ Due at the death of members $1,” and the body of the policy contained expressions such as, should the assured “come to his death by the hands of the law,” or “should die by suicide, or without heirs or assigns,” only $50 should be paid, it was held, that, taking into consideration these expressions, with the indorsements, the intention was manifest that the policy was to become due on the death of the assured.</p>

<p>Writ of Error to the Circuit Court of Jasper county; the Hon. William C. Jones, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Wabash county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

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

<p>Appeal from the City Court of East St. Louis; the Hon. Challes T. Wajre, Judge, presiding.</p>

Writ of Error to the Superior Court of Cook county; the Hon. M. F. Ttjley, Judge, presiding. The plaintiffs in error brought this suit in the Superior Court of Cook county, by bill in chancery, against the defendant in error, seeking to enjoin the further prosecution by the defendant of certain proceedings, pending in the county court of Cook county, to which plaintiffs in error were made parties defendant.

W. W. Farwell, Judge, presiding. This was a bill in chancery, filed by appellants George F. Starr and Louisa I. Starr, together with… Held: used and enjoyed by her as a home for herself and our children during their minority, and at her death to be equally divided between them. “ Third.^-lt is my will, and I direct, that my two sons, George F. Starr and William Ei Starr, shall each, on arriving at the age of majority, receive the sum of seven thousand dollars, to be paid…

<p>1. Corporations—capital stock a trust fund for creditors. The capital stock of a corporation is a trust fund, that the directors may not give away or misappropriate to the prejudice of parties whom they have invited to deal with the corporation. The State grants the franchise on the understanding the corporation created will have a capital stock, which is usually fixed, which is for the security of all persons who deal with the corporation, as well as to afford the means to accomplish the objects of the incorporation.</p> <p>2. Same—right of stockholders to limit their liability to creditors. Where the charter has fixed the minimum amount of capital stock, the stockholders have no warrant for saying a less sum shall constitute the same, as it would abrogate, by private agreement, the provisions of their charter. Any device, by which the members of a corporation seek to avoid the liability which the law imposes upon them, is void as to creditors, whether binding or not as between themselves. Nor is it in the power of shareholders, by private agreement with the corporation, to make the shares of stock issued to them non-assessable, so as to excuse payment for such stock at its par value as against creditors.</p> <p>3. Where a private corporation, organized under a special charter which did not. make stockholders personally liable for the debts of the corporation, and its capital stock was fixed at $200,000, in shares of $100 each, by the charter, with the privilege of increasing the same to $1,000,000, and the stock was afterwards, by resolution, increased to $300,000, and various persons subscribed under a written agreement incorporated into the subscription paper, that no assessment should be made upon the stock of the company, and that each subscriber was to pay $10 upon each share of stock subscribed, as the sum total he was to pay, it was held, that while such contract might be binding between the corporation and the stockholders, it was invalid and void as against creditors of the corporation who had no notice of the same at the time of dealing with the corporation, as being against public policy and justice, and that such creditors could enforce payment of such stock to the extent of their demands against the corporation.</p> <p>4. Same—contracts with stockholders—estoppel. It is competent for a corporation to contract with its stockholders. A corporation has no existence apart from its officers conducting its affairs and who represent the shareholders. As between themselves, any contract fairly entered into would seem to be valid. At all events a corporation will be estopped to say its contract is ultra vires, and to sue its stockholders upon obligations arising by implication of law, that it has once solemnly waived. But no such doctrine can be applied to creditors of a corporation.</p> <p>6. Same—under charter before present constitution, not affected by, or the general law passed, thereunder. Where a charter of a private corporation was passed in 1867, before the adoption of the present constitution, and before the passage of the general Incorporation act, it was held, that such charter was not affected either by the constitution or the general law on the subject.</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. Gaby, Judge, presiding.</p>

John A. Jameson, Judge, presiding. This was an action on the case, brought by Benjamin Mumford against the Chicago City Bailway Co. to recover damages for a personal injury resulting from the negligence of the company. On the second trial of the case, the jury found for the plaintiff, and assessed his damages at §8,000. The plaintiff entered a remittitur of §3,000. A motion for a new trial was overruled, and judgment entered against the defendant for §5,000.

Writ of Error to the Appellate Court for the First District;—heard in that court on error to the Circuit Court of Cook county.

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. W. W. Farwell, Judge, presiding.

■ 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. W. Farwell, Judge, presiding.

<p>1. Abatement—pendency of another suit. The ordinary mode of taking advantage of the pendency of another suit for the same cause of action, is by plea in abatement, and it is essential to such plea that it should contain an averment that the former suit is still pending.</p> <p>’ 2. Same—writ of error—appeal to another court. So where the record on a writ of error from the Appellate Court shows the. taking and perfecting of an appeal to the Supreme Court, but fails to show that the appeal is still pending in that court, a motion to dismiss the writ of error because of such appeal, which does not contain an averment that the appeal is still pending, is properly overruled.</p> <p>3. Dismissal op appeal—whether it will operate as an affirmance of the judgment below. The dismissal of an appeal to this court is equivalent to a.regular, technical affirmance of the judgment below, so as to entitle the party to claim a forfeiture of the appeal bond, and have his action therefor. But this is the extent of the rule. The dismissal will not operate as an affirmance so as to defeat the jurisdiction of an Appellate Court on writ of error in respect of the same judgment. ' •</p> <p>4. Acknowledgment—of deed in another State. Where the acknowledgment of a deed or power of attorney taken in another State is shown to have been in conformity to its laws by the statute of such State, it will be sufficient under our law.</p> <p>5. Certificate of evidence—must be taken as appears of record. This court can take no notice of statements made as to what a certificate of evidence as filed showed, when there is no evidence thereof preserved in the record, but the certificate must be taken as it appears in the record.</p> <p>6. Practice—grounds of motions must bepreserved in the record. Where the record from the Appellate Court shows only the making and overruling of certain motions, without preserving in the record the grounds of the motions, this court can not say the rulings were erroneous.</p> <p>7. Same—compelling production of documentary evidence. The circuit court has, by statute, express authority, upon motion and sufficient cause]shown, to require parties to produce books and writings in their possession which contain evidence pertinent to the issue to be tried, and when the affidavit on which a party was compelled to produce an abstract of title is not preserved, in the record, it will be presumed the order was made upon good and sufficient cause shown.</p> <p>8. Conveyance—by one who has parted with his title passes nothing. AY here a party has once conveyed all the interest he has in land, a subsequent quitclaim deed from him will pass no title..</p> <p>9. Tax title—on sale by city collector on judgment rendered before the adoption of present constitution. A sale of land or lots by a city collector, under a judgment against the same for taxes and special assessments rendered in March, 1870, before the present constitution was adopted and went into effect, is not void because not made by some general officer of the county authorized to receive taxes. The constitutional provision is not retrospective and has no application to judgments for taxes before it took effect, and before the necessary and appropriate legislation was had under such provision.</p> <p>10. Same—notice of sale before deed. Where a lot sold for taxes has not been assessed in the name of any person, and notice of its sale for taxes has been served upon the only person in possession of the same, it will be sufficient under the statute and constitutional provision, although such occupant is not the owner.</p> <p>11. Same—sufficiency of notice in description. There is no substantial defect in a notice served upon the occupant of a lot sold for taxes, which describes the premises as “lot5, lot 23 in Carpenter’s addition,” etc., instead of “lot 5 in block 23,” as the person served could not be misled by it, and would understand it was the lot 5 of which he was in the occupancy.</p> <p>12. Constitution—construction. There is a difference between enforcing an inhibition of a constitution in a proceeding instituted after it took effect, in disregard of its plain terms, and a retroactive construction which would carry the provision back and apply it to a case fully determined and in judgment, with vested rights, before the adoption of that instrument. The latter construction would contravene section one of the schedule to the constitution.</p> <p>13. The constitutional provision that no sale shall be made of any real estate for taxes, etc., except by the general county officer to be provided by law, having authority to receive State and county taxes, is to be construed together with section one of the schedule of the constitution, and such a construction should be given to the former as to allow the latter to stand in full force.</p> <p>14. It is a rule of construction to give a statute a prospective operation1 only, unless its terms show a legislative intent that it should have a retroactive effect, and the same rule applies in construing a. provision of a constitution.</p> <p>15. Burnt records act—petitioner bound by statements in petition. On a petition under the Burnt Records act to establish and confirm the petitioner’s title to real estate, in which a tax sale of the premises is sought to be set aside upon the sole ground that the sale for taxes was made by a city collector in 1871 under a judgment rendered before the adoption of the constitution of 1870, and after the affirmance of the judgment by this court, section twenty-three of the Burnt Records act, which declares that no tax deed based on any proceedings, the record of which shall be destroyed, shall be received as prima facie evidentfg'of the regularity of such proceedings, but the burden of proof shall be upon the person claiming under such deed to show the regularity and legality of such proceeding, etc., is not applicable, and the party asserting the tax title is not required to meet any other objection than is made to it in the petition, or is made on the trial to its introduction in evidence.</p> <p>16. Same—sec. S3 does not apply to party defending. The provision of sec. 23 of the Burnt Records act, requiring a person claiming under a tax deed to make proof of the validity and regularity of all the proceedings anterior to his deed, and depriving him of all presumptions otherwise provided by law in favor of the legality of such proceedings, does not apply to onenot seeking the aid of its provisions, who is in possession under his title and is made a defendant. The legislature can not deprive one of a vested right in this manner. If he should revert to the act for relief it might apply to him.</p> <p>17. Practice—party confined to specific objections to evidence made on trial. When a specific objection is made to the introduction of a document in evidence on the trial, it isa waiver of all other objections which might be obviated by proof. So when a tax deed is offered in evidence and the only objection made to it is the defect of authority in the officer to make the sale, it may be regarded as an admission that the title and proceedings are otherwise valid.</p> <p>18. Estoppel—by judgment—binds party and privies in estate. Where the owner of real estate makes himself a party to an application for judgment to sell his land for taxes, and contests the same unsuccessfully, and on his appeal to this court the judgment against the land, and ordering its sale, is affirmed, both he and his privies in estate will be stopped from denying the validity of any antecedent step to the judgment and from denying the liability of the land to be sold for taxes.</p> <p>19. Where the owner of a lot sold for taxes, just before the time of redemption expires files his bill against the purchaser and others, alleging various irregularities in the judgment and tax sale, and praying for an injunction against the county clerk from issuing and the other defendants from making or obtaining any deed thereon, and that the judgment and tax sale be can-celled, and the temporary injunction issued in the case is afterwards dissolved and the bill dismissed, this will operate as an estoppel upon such owner and all others claiming under him from disputing the validity of the judgment and tax sale.</p> <p>20. Former adjudication—dismissal of bill in chancery. It is a well settled rule, that a decree or order dismissing a bill upon its merits, when there is no direction that the dismissal be without prejudice, is conclusive until reversed, and is a good plea in bar to a new bill for the same matter.</p> <p>21. Chancery—dismissal of bill presumed to be on merits. When it appears by the stipulation of the parties that an injunction in the case was dissolved, and the bill dismissed without stating on what ground, or for what cause, it will be held to have been dismissed on the merits.</p>

<p>1. Pieading—plea of want of consideration. In a suit upon a promissory note, in which the declaration contained a special count on the note and also the common counts, the defendant pleaded, that the special and common counts in the declaration were for one and the same cause of action, and that said note in the plaintiff’s declaration mentioned “was got and obtained of the said defendant without, any good or valuable consideration whatever, by practicing unlawfully what is known as the confidence game by the criminal laws of the State of Illinois, used and practiced upon him by said plaintiff: ” Held that the plea was good on general demurrer, as a plea of want of consideration, omitting the words “by practicing unlawfully what is knowm as the confidence game,” etc., which may be treated as surplusage.</p> <p>2. A plea of want of consideration, alleging that the note sued on “ was got and obtained of said defendant without any good or valuable consideration,” instead of averring, in the language of the statute, that the note was made and entered into without a good and valuable consideration, while it may be bad in form and obnoxious to a special demurrer, is good in substance and not subject to a general demurrer.</p> <p>3. Same—difference in plea of failure of consideration and want of consideration. In a plea of failure of consideration it is necessary to show what the consideration was, and then aver wherein the consideration has failed, but when a plea of want of consideration is relied upon, the plea will be sufficient if it avers, in the language of the statute, or any equivalent language, that the defendant made the note described without any good or valuable consideration therefor.</p> <p>4. Same—use of words “ actio have” in plea. The use of the words “actio have” in the introductory part of a plea, instead of “actio non,” was regarded a clerical mistake, and while such a mistake in ¿he use of a single word might render the plea bad on special demurrer, it will not be bad in substance, and the defect can not be reached by general demurrer.</p> <p>5. Same—whether plea is an answer to whole declaration. A plea to a declaration containing a special count on a note and the common counts, commenced: “And for a further plea in this behalf the said defendant sa.ys actio have, because he says that the special count and the common counts in plaintiff's declaration are one and the same cause of action,” and then set up a want of consideration to the note in the special count: Held, that the plea 'was substantially good to the whole declaration, and that the defect in the introductory part could be reached only by special demurrer.</p> <p>6. Pleading and evidence—proof admissible under general issue. The failure of consideration, or want of consideration, can not be proven under a plea of the general issue, but a defence of that character must be specially 'pleaded.</p>