Volume 99 — Illinois Reports

E. S. Williams, Judge, presiding. This was a suit in chancery, instituted in the court below by Henry W. Newberry, Louisa Cook Can dee, Fanny L. Edgerton, Oliver N. Edgerton, Walter A. Newberry,… Held: used and occupied by her during her life as she may see fit.

<p>Wktt of EpuBOR to the Criminal Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.</p>

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

<p>1. Win — whether passes life estate, or mere power of appointment. A devise of real estate to a woman, to have and to hold the same in trust for and during the natural life of her husband, and upon his decease directing her or her successor in trust, to convey the same to the heirs at law of the husband, with a proviso that if the husband, during his lifetime, should request her or her legal successor in trust to convey the same to himself, or to any other person, she or her successor should promptly comply with such request, and that the title should pass to the grantee, does not invest the husband with a life estate in the property. He will take no estate of any kind, but merely a naked power of appointment.</p> <p>2. Same — who are cestuis que trust in a devise for life. Where a testator devised certain real estate in fee to A, subject to the payment of two legacies to the sons of B, and after the marriage of A and B, by his codicil, in lieu of such bequest, devised the same to A, to have and to hold the same in trust for and during the natural life of her husband, B, and directed that upon his decease the trustee should convey and deliver the same, to the heirs at law of B, provided, however, that in case the said B should, during his life, so request, the said trustee should convey and transfer the same to him or to any other person or persons: Held, that A, the trustee, took a life estate and held the fee in trust for the heirs of B, her husband, subject to the power in B to defeat both estates by appointing a conveyance to himself or to another.</p> <p>3. Power — exercise of, not enforced for benefit of creditors. Courts of equity wil! not aid creditors of a donee of a power, where there is a non-execution of the power, by compelling him to execute the same in his own favor. But where there has been a defective execution, the court will supply the defective execution in favor of a purchaser, creditor,.wife or child.</p> <p>4. No title or interest in the thing vests in the donee of a power until he exercises the power. It is virtually an offer to him of the estate or fund, that he may receive or reject at will, and like any other offer to donate property to a person, no title can vest until he accepts the offer, nor can a court of equity compel him to accept the property offered, against his wish, even for the benefit of creditors.</p>

Writ of Error to the Appellate Court for the First District; — heard in that court' on appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding. This was an action of assumpsit, brought by Samuel S. and D. B. Gardner, against the Clinton Wire Cloth Company, for the recovery of a year’s rent, on the ground of a holding over.

<p>Writ of Error to the Circuit Court of Mercer county; the Hon. George W. Pleasants, Judge, presiding.</p>

Josiah McRoberts, Judge, presiding. Petition was filed by appellee, in the circuit court of Grundy county, for a common law certiorari. An order was made by one of the circuit judges, in vacation, that the writ issue.

<p>Writ of Error to the Circuit Court of Knox county • the Hon. Arthur A. Smith, Judge, presiding.</p>

This was a bill by Francis M. Woolley and Hartson C. Woolley, executors of the last will ofBenjamin F. Woolley, deceased, against Eliza J. Alexander, John W. Alexander, Harrison Alexander, Device Metzler ami Horace Alexander, heirs of Clement C. Alexander, deceased, to foreclose a mortgage given by Clement C. Alexander to Henry ICeneagy, and by him transferred to Benjamin F. Woolley, deceased.

<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. Murray F. Tuley, Judge, presiding.</p>

<p>1. Municipal indebtedness — to be incurred without a vote — but not by compulsion. Under the constitution of 1848, the legislature could properly confer upon a city the power to incur indebtedness and issue its bonds for a corporate purpose, without any vote of the people, but it could go no further. It could not compel a city or incorporated town to incur a debt, unless the legislative department of the city or town saw proper to do so.</p> <p>2. Same — issue of bonds with conditions. Where an act conferring power upon a city council to incur an indebtedness and issue its bonds therefor, is silent in regard to the time when the bonds shall be made payable, and in regard to the terms and conditions upon which they shall be payable, such matters will be left to the city and the person to whom the bonds are to be issued, to be settled, and when agreed to, the city may make the payment of such bonds depend upon conditions mutually assented to.</p> <p>3. Bonds — when part of condition is void. Where a bond contains two conditions, one authorized by law and good, and the other unauthorized and bad, and the conditions are in their nature severable, the latter may be rejected and the other held good and the bond sustained.</p> <p>4. The city of Aurora, under an act of the legislature authorizing it to issue its bonds as a donation to a railway company to secure the location of its machine shops in the city, passed an ordinance for the issue of such bonds, to be conditioned that both the principal and interest should be paid out of moneys to be raised by special tax, to be levied and collected of property in the east division of the city, and that if such a tax could not be legally assessed, the obligees should procure the passage of a law authorizing the levy of such a special tax, and that if any of the conditions were not fulfilled, the bonds should be void. Under this ordinance the city issued her bonds, conditioned as the ordinance required. It was contended by the holder of the bonds, that the condition being void, for the reason the city could not, under the constitution, levy and collect a special tax except over its entire territory, therefore the bonds were payable as though there was no condition : Held, that the conditions were such as the city had the right to impose, and it being the intention of the parties that they should not be obligatory if the conditions could not be performed, the bonds were not collectible.</p> <p>6. Contbacts — construction. In the construction of all written contracts, the controlling consideration always is to arrive at the intent of the parties, and in doing this, every part of the instrument is to be considered and properly weighed. So, the condition of a bond may be considered to explain the obligatory part.</p>

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

Writ of Error to the Circuit Court of Lake county; the Hon. Charles Kellum, Judge, presiding. On the 12th day of April, 1870, Benjamin C. Luce, defend-, ant in error, being the owner of a farm in Lake county, consisting of 544 acres, sold to William Darby 188 acres of the place for $8186, payable, $3000 January 1, 1872, $3000 April 22, 1873, and $2186 April 22, 1874.

John A. Jameson, Judge, presiding. The Union Mutual Life Insurance Company exhibited its bill, on the equity side of the Superior Court of Cook county, against Talmadge E. Spaids, Susie E. Spaids, Kate Louise Spaids, Kate H. Spaids, Levi D. Boone and James D. Smith, alleging that on the 27th of May, 1871, Susan M. Harris, being the grandmother of Susie E. and Kate Louise Spaids, made her deed of trust to Henry Hopson, of Utica, Hew York, and Talmadge E. Spaids,' of Chicago,…

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

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

<p>Writ oe Error to the Circuit Court of Ogle county; the Hon. William Brown, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Second District; — heard in that court on appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.

<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, pre'siding.</p>

<p>1. Bankruptcy — what estate the assignee takes, as against third persons. An assignee in bankruptcy and all persons claiming under him, succeed only to such rights as the bankrupt himself had at the time of the adjudication, and land bought at the assignee’s sale passes the bankrupt’s interest, subject to all liens by mortgage or judgment against him.</p> <p>2. Same — redemption from prior mortgage by one claiming through a sale by the assignee — effect upon a junior judgment lien. A judgment at law became a lien upon the debtor’s land, subject to a pre-existing mortgage. Subsequently the debtor was declared a bankrupt, and the land was sold by the assignee in bankruptcy. A remote claimant under the sale by the assignee redeemed from a sale under the mortgage. It was held, the only effect of such redemption from the mortgage sale was to defeat the title of the purchaser under it, and leave the premises subject to the lien of the judgment, in the same way as if the redemption had been made by the bankrupt (the mortgagor) himself.</p> <p>3. Same — judgment after bankruptcy of debtor, becomes no lien on Ms lands. A judgment recovered against a person after he is adjudged a bankrupt, becomes no lien upon the lands of the bankrupt.</p> <p>4. Satisfaction — of one of two judgments rendered for the same demand— purchaser — recording act. It does not follow, where two judgments have been obtained, in part against different parties, on account of the same claim, that a satisfaction of one is necessarily a satisfaction of the other, within the meaning of our recording laws.</p> <p>5. Where there are two judgments for the same demand, the second being upon an appeal bond given in the first case, and the records, by an erroneous entry, show the satisfaction of the latter judgment only, a purchaser of land of the judgment debtor will buy at his peril. The records must affirmatively show a satisfaction of both judgments, or there must be an actual satisfaction and discharge of both, before a purchaser may safely buy.</p> <p>6. Purchaser — must have paid, to be protected. A purchaser of land who has not paid or advanced anything on his purchase, can not claim protection as an innocent purchaser, except so far as the parties through whom he claims may have equities.</p> <p>7. Same — with notice of lien. If an execution issued upon a judgment is erroneously returned, by inadvertence or mistake, as satisfied, and an entry of satisfaction is entered upon the judgment and execution dockets, a purchaser of land which is subject to the lien of such judgment, who has notice that such judgment is not in fact satisfied, will take subject to such lien, and can not have a sale under the judgment enjoined.</p> <p>8. Subrogation — of surety paying judgment. Where there are two judgments against a party for the same debt, the last one being upon an appeal bond given by him on appeal from. the first judgment, his sureties on the appeal bond, on paying the last judgment, will be subrogated to the rights of the holder under the first judgment, and in such case, notwithstanding the satisfaction of the second judgment, the first one will continue in force for the benefit of the sureties.</p> <p>9. Admission — by the pleadings. The admission of certain facts, in a bill in chancery, must be taken as true against the complainant.</p> <p>10. Notice — lis pendens. Where notice has been served upon a-defendant of an application to have set aside an entry of satisfaction of the judgment against him, on the ground of its entry by inadvertence and mistake, and the papers and motion to set aside are on file in the court before the purchase of the land by a third person, he will be'chargeable with notice lis pendens.</p>

John G. Rogers, Judge, presiding. This case originally was two suits in ejectment, brought February 17, 1866, by Seth W. Hardin and Maurice Wake-man, each plaintiff filing a separate count in his own favor, the first being against Andrew Forsythe, for all of section 3, town 33 north, range 10, east of the third principal meridian, in Will county, and the other against James Kirk, for the east half of the south-east quarter of the same section.

N. J. Pillsbury, Judge, presiding. i This was an action on the case, brought by Amanda Perdue against the city of Bloomington, for damages for an injury claimed to have been received from a defective sidewalk. The plaintiff was a young woman twenty-eight years of age. At the time of the injury she was living at the ladies’ boarding hall, and attending school at the Wesleyan.

<p>1. County oitioebs — limited to amount fixed for clerk hire, etc. A clerk of the circuit court can not recover from the county, money actually expended by him for necessary clerk hire, in excess of the amount allowed him by the county board for that purpose, separately from his compensation for personal services, within the limit of fees actually received. If the amount paid for clerk hire falls short of the sum fixed by the county board, the officer can retain only the sum actually expended by him, but can not recover for any excess actually paid by him.</p> <p>2. Same — power to change allowance for cleric hire. etc. It is the duty of the county board to fix the amount necessary for clerk hire, fuel, etc., and if in so doing the board commits an error of judgment, in not allowing enough for that purpose, the amount, when fixed separate from the officer’s personal compensation, may be changed from time to time, during the term of office, as the board may see fit. But this can not be changed when fixed with the officer’s compensation, in a gross sum.</p>

<p>1. Deceit — of the necessary elements. In order to support an action for deceit, it must appear that the misrepresentation complained of was a mate-, rial one.</p> <p>2. Nor will the action lie if the plaintiff has omitted to exercise ordinary care to guard against deception and fraud, except where he was led to do so by the other party.</p> <p>3. The fraud and the scienter constitute the 'grounds of the action. A knowledge of the falsity of the representations must rest with the party making them, and he must use means to deceive.</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>

<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 Circuit Court of Cook county; the Hon. W. H. BabUum, Judge, presiding.</p>

Writ op Error to the Circuit Court of Will county; the Hon. Josiah McEoberts, Judge, presiding. Coon was indicted in the court below for an assault with intent to commit a rape. A trial resulted in a judgment of conviction. The defendant thereupon sued out this writ of error.

Josiah McRoberts, Judge, presiding. This was an. action of ejectment, brought by Edmund S. Holbrook against Jacob Debo, in the LaSalle circuit court, for lots 3, 4 and 5, of block 65, of that part of the city of Peru known as “the town of Rinawa,” or “the Ninawa addition to Peru.” A trial was had at the June term, 1878, before the court, without a jury, resulting in a finding and judgment for the defendant.

Writ of Error to the Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding.

<p>Writ of Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p> <p>This writ of error is prosecuted by Melissa Carter and Hannah Primm, only.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a bill filed by Daniel Knecht and Augustus Lenz, against William Kcelle, John Koslle and Christian Koelle, and the Louisville and Nashville Railroad Company, to enjoin the carrying of freight or coal over the complainants’ switch on their land, except the freight and coal of complainants, or persons licensed by them. A decree was rendered in accordance with the prayer of the bill.

<p>1. Covenants in deed — when extends to equitable claim. Where there is an outstanding equitable title which is entitled, as against the grantee as well as the grantor, in a deed with full covenants, to have united to it the legal estate, and so defeats the estate assumed to be conveyed by the deed, by claim paramount, the covenants in the deed will extend to and embrace such equitable claim.</p> <p>2. Where, after bill filed by a partner to have a conveyance of a lot set aside, on the ground that the consideration of the deed was partnership goods, exchanged by 'the other partner for the lot, who fraudulently took the deed in his wife’s name, and during the pendency of such bill the lot is conveyed by the latter partner and wife to another, by deed, with the usual covenants of warranty, and afterwards a decree was rendered in the suit subjecting the lot to sale in payment of the partnership debts: Held, that the purchaser taking during the pendency of the suit to avoid the title of his grantors, and all persons afterwards claiming under him, was bound by the decree which was rendered, and therefore the covenants in the deed embraced the equitable title under which.the land was sold and the legal title divested.</p> <p>3. Same — eviction. Where a party suing on the covenants in a deed has been evicted under a paramount title, it is not material whether the steps taken to procure a writ of assistance were regular or not, as the party might voluntarily yield to the adverse title.</p> <p>4. Secondary evidence — sufficiency of search, for lost deed. Where a witness testified that he was the solicitor of the grantee, and to the execution, acknowledgment and delivery of a master’s deed; that he, the witness, placed it on his desk in the court room, with another paper, and both were lost; that he had never been able to find them afterwards; that he had made diligent search for them, and that the deed had never been recorded: Held, that the search was sufficient to admit secondary evidence of the contents of the deed, and that it was not necessary to show a search in the recorder’s office, or that inquiries had been made of the grantee.</p> <p>6. Same — proof of contents of lost deed. When taken in connection with the record of a master’s sale and his certificate of purchase, the courts will not require so full proof of the contents of a master’s deed when it is lost as otherwise might be.</p> <p>6. Same — not allowed when proferí is made. In a suit upon a deed or sealed instrument, where a proferí, or an excuse for the want of it, is necessary, if the plaintiff makes proferí, and thereby professes to produce the deed when he is not prepared to do so, and the defendant pleads non est factum, the plaintiff, on objection, will not be permitted to give evidence of its loss or destruction, or its being in the defendant’s possession, and then make proof of its contents.</p> <p>7. Limitation — of suit against administrator and heirs. Where the cause of action does not accrue until more than two years after the death of the debtor, and the grant of letters and the settlement of his estate, the two years’ limitation of the statute, as to claims against estates, will not apply to an action brought by the creditor against the administrator arid heirs of the deceased debtor.</p> <p>8. Judicial sale — executing master’s deed after party’s death. Where land is properly sold under a decree in the lifetime of the defendant, the master’s deed may properly be executed after the defendant’s death, without any revival of the suit against his heirs.</p> <p>9. Judgment — form in suit against administrator and heirs. In a suit against the personal representative and heirs of a deceased person, the court found the amount that descended to each heir, and then rendered judgment againsf all the heirs and the administrator for the sum found due, to be satisfied out of the estate so descended to the heirs, with express provision that neither of the heirs be subjected to a greater liability than the sum he.received by descent, and that the judgment against the administrator be guando aeciderint: Meld, that there was no objection to the form of the judgment.</p>

<p>1. Freehold — removing cloud from title — right of appeal. A freehold is involved in a suit in chancery to remove a cloud from the title of real estate by setting aside a judicial sale of the premises, and the case is properly brought before this court for review on appeal or error, directly from the trial court.</p> <p>2. Chancery jurisdiction — to advise executors and trustees. A court of equity has always assumed jurisdiction to control and advise as to the management of ti’usts and trust estates. It has jurisdiction of a bill by executors asking the advice of the court as to the manner in which the trust resting upon them shall be performed, where the trust becomes embarrassed, or their duties under the will are complicated by circumstances not foreseen or provided against by the testator.</p> <p>3. Where a bill filed by executors alleged that it was their duty under the will to sell certain town lots, either at private or public sale, to pay the debts of the estate, and that no such sale could be effected without a ruinous sacrifice of the property and great detriment to the parties interested therein, and that there were salable lands belonging to the estate, and asking the advice of the court as to the manner in which the trust should be performed: Held, that the court had jurisdiction to give the necessary advice, and having obtained jurisdiction for one purpose, it could afford such relief as pertained to right and justice, and that a sale of the lands under its decree to a stranger to the record was valid, and should be protected.</p>

Writ of Error to the County Court of St. Clair county ; the Hon. Frederick H. Pieper, Judge, presiding. Application for judgment against delinquent lands and lots of plaintiffs in error was made by Herman G. Weber, collector of St. Clair county, for the taxes due the city of East St. Louis for the year 1876, which taxes were extended at the rate of 22 mills upon the dollar of the assessed valuation of the property.

William C. Jones, Judge, presiding. This was an action of ejectment, brought by appellee against appellant, to the October term, 1879, of the Wayne county circuit court, for the recovery of the east half of the northeast quarter of section 1, township 1 south, range seven east.

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District; — heard in that court on writ of error to the County Court of White county; the Hon. Orlando Borrill, Judge, presiding.

Writ of Error to the Appellate Court for the Fourth District; — heard in that court on appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding. Horthrup & Arrick were the owners of a warehouse in Cairo, Illinois. Horthrup lived at St. Louis, Missouri. The warehouse was upon ground not owired by them, but entered upon by them under a lease, which had expired.

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

<p>Writ op Error to the County Court of St. Clair county; the Hon. Frederick H. Pieper, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District ; — heard in that court on writ of error to the Circuit Court of Williamson county; the Hon. D. M. Browning, Judge, presiding.</p>

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

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

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

Writ of Error to the Circuit Court of Clay county; the Hon. William C. Jones, Judge, presiding. This was a suit in chancery instituted in the court below, by Margaret Kenley against William H. Hudelson and Henry S. Watson.

Oliver A. Harker, Judge, presiding. This was a proceeding by information in the nature of a quo warranto, on the relation of Frank H. Hall, against Helen A. Sohuchardt, in the Union circuit court.

<p>Writ of Error to the Appellate Court for the Fourth District; — heard in that court on appeal from the Circuit Court of Hamilton County; the Hon. William C. Jones, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Clay county; the Hon. Thomas S. Casey, Judge, presiding.</p>

<p>1. Administrator — when chargeable with interest on estate moneys. The mere fact that an administrator mingles the trust funds with his own by * depositing the money belonging to the estate in his own name, as he does his individual money, can not be held a sufficient ground to charge him with interest on the same. There is no law requiring an administrator to keep the funds of the estate separate and distinct from his own. So long as he has the money belonging to the estate at his command, ready to answer the order of the court, this is all the law requires.</p> <p>2. The latter part of section 113, chap. 3, Rev. Sink 1874, p. 124, which requires executors and administrators to be charged ten per cent interest on all moneys and assets in their possession or control after two years and six months from the date of their letters, is intended to embrace all cases in which they shall be chargeable with interest, and in no case should they be held liable for interest until after that time, unless they shall have received interest on the trust fund.</p> <p>3. Where an administrator, by his report, made after the expiration of two years from the grant of administration, showed a certain amount in his hands, and no debts remained unpaid, it was held, as it was his duty to have procured an .order of distribution, and paid out the same, he was properly chargeable with ten per cent interest, after two years and six months from the date of his letters.</p>

<p>1. Supreme Court — jurisdiction—validity of a statute. The statute providing for writs of error from and appeals to this court, in cases where the validity of a statute is involved, was not intended to embrace all cases involving the validity of a statute, in the extended sense of the term. It was intended to apply only where the validity of the statute, as originally passed, is the primary subject of inquiry, and not where its validity is incidental or collateral to the main controversy.</p> <p>2. Where a city charter gave power to license merchants, and provide a penalty for carrying on the business without a license, and the city after-wards adopted the General Incorporation act, which authorized licenses, but did not name merchants in the clause, and the only question presented was whether the power in the original charter was repealed by implication, it was held, that the validity of a statute was not involved, within the meaning of the term in the law providing for appeals and writs of error, and that a writ of error from the Supreme Court to the trial court directly, did not lie.</p>

<p>1. Tax titee — who may purchase at tax sale. A purchase of land at a sale for taxes by one whose duty it was to pay the taxes, will operate as a payment of the taxes only, and the purchaser will not be permitted to acquire any title by such a purchase.</p> <p>2. Where the land of the party making the purchase was taxed as one parcel with that of another, and the whole is sold together, no title will pass to the purchaser or his assignee. Before he can purchase he must pay the taxes on the part owned by him, and he may then acquire a title to the other part of the tract, the same as a stranger.</p> <p>3. If a person owning a part of a tract of land is furnished with money to pay the taxes on the entire tract, no matter by whom he is so furnished, which he assumes to pay, but does not, he will be disqualified from becoming the purchaser of the land at a tax sale.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. The bill in chancery in this case, filed November 12, 1880, shows that on June 18, 1880, Nicoll, the complainant, purchased of the defendants, John J. Scott and Mary Scott, certain real estate in the bill described, for the sum of $14,700, $500 of which was paid in cash, and the promissory note of Nicoll given for $9900, payable November 1, 1880, without interest till maturity, and that the defendants gave to Nicoll…

Charles S. Zane, Judge, presiding. This was a suit in chancery, instituted in the court below, by Caroline Ebelmesser, the widow, and Peter Ebelmesser, Carl Ebelmesser, and Erestine Ebelmesser, the children and heirs at law, of David Ebelmesser, deceased, against Charles Ebelmesser and Samuel W. Bode. The bill alleges that David Ebelmesser died intestate, in May, 1876, being at the time of his death the owner of a tract of land described in the bill.

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

<p>This was a petition for a mandamus, filed in this court by the relator.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. ■ This was a suit brought in the circuit court by the trustees of schools, on the official bond of John B. Lovingston, as township treasurer for town 2 north, range 10 west, in St. Clair county.

<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. W. Harwell, Judge, presiding.</p>

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

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

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

Writ of Error to the Appellate Court for the Second District; — heard in that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.

S. M. Moore, Judge, presiding. Prior to December 4,1873, the Union National Bank was the holder of four promissory notes, one dated September 15, 1873, at 60 days, for $5000, made by W. F. Windate and Samuel Smith; one dated September 16, 1873, at 60 days, for $10,000, made by the Swansea Smelting and Defining Company; one dated October 4, 1873, at 60 days, for $10,000, made by the Swansea Smelting and ¡Refining Company; and one dated October 4,1873, at 60 days, for $5000,…

<p>1. Mechanic’s lien — when petition shows an assignment. The mere bringing of a suit to enforce a mechanic’s lien for the use of another, is not tantamount to an averment of an assignment of the claim to such person, so as properly to present the question whether the lien is assignable.</p> <p>2. Same — not released by the appointment of a receiver. The mere appointment of a receiver under a creditor’s bill against one entitled to a mechanic’s lien, with an order to make an assignment to him, where none is shown to have been made, and the receiver has made no claim to the debt, will not operate to release the lien.</p> <p>3. Limitation — must be pleaded to avail. The Statute of Limitations must be pleaded or relied on by answer to entitle a defendant to its benefit.</p> <p>4. Same — of six months — against mechanics lien. A purchaser under a deed of trust intervening in a proceeding to enforce a mechanic’s lien against the same premises, who answers, making no objection that the beneficiary under the trust deed was not made a party, but only the trustee, can not afterwards take advantage of the omission to make the beneficiary a party within six months from the time the debt matured for which a lien is sought.</p> <p>5. Contract — when payment in property becomes a money demand. A stipulation in a contract for services to pay a certain sum in hardware, on default of payment when due becomes an obligation to pay the amount named in money.</p>