Volume 126 — Illinois Reports

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

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

<p>Appeal from the County Court of Gallatin county; the Hon. B. D. Youngblood, Judge, presiding.</p>

<p>Appeals—under the Drainage law—section 76 of the act of 1885. Section 76 of the Drainage law of 1885, relating to districts by user, was intended to bring this particular class of drainage within the operation and effect of the several preceding provisions of the act, so far as the same are applicable. Hence the right of appeal, given in preceding sections, from the assessment of benefits, extends to and embraces cases arising under section 76.</p>

Alfred Sample, Judge, presiding. This was a hill filed July 20, 1882, by Elizabeth A. Reynolds, widow, and Sarah R. Hitt and Mary R. Diaz-Albertini, only heirs-at-law, of William E. Reynolds, deceased, against Edward C. Sumner.

<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. Cyrus Epler, Judge, presiding.</p>

<p>Wbit of Ebbob to the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Exemption from taxation—Illinois Central Railroad Company — whether exempt from s-peeial assessments or special taxation for local improvements. The provision in the charter of the Illinois Central Railroad Company exempting it from all taxation of every kind except as therein provided, has no application to special assessments or special taxation of contiguous property for local improvements. As affecting this question, there is no difference between a special assessment and special taxation of contiguous property, neither being included within the meaning of the general word “taxation.”</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. E. S. Williamson, Judge, presiding.</p>

Writ of Error to the Circuit Court of Menard county; the Hon. Cyrus Epler, Judge, presiding. Held: that whatever damage was done to the lands described in the cross-petition, by reason of the original construction of the road, accrued to Bennett, and not the defendants, his subsequent grantees, as held in the court below, and for that reason the judgment was reversed.

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

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

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Criminal Court of Cook county'; the Hon. M. F. Tuley, Judge, presiding. Plaintiff in error was indicted in the Criminal Court of Cook county for obtaining money under false pretenses.

<p>Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p> <p>This was a proceeding in mandamus, in the circuit court of Sangamon county, upon the petition of Henry W. Rokker, Thomas Rees and Charles T. Strattan, partners, under the firm name of H. W. Rokker & Co., against Henry D. Dement, 'Charles P. Swigert, John R. Tanner and George Hunt, Commissioners of State Contracts, and also Charles P. Swigert as Auditor of Public Accounts.</p> <p>It is, in substance, alleged in the petition, that on the 13th day of September, 1886, the firm of H. W. Rokker & Co., then composed of the petitioners and one Clarence H. Davenport, ■entered into contract with the People of the State of Rlinois, by the Commissioners of State Contracts, under and by virtue of the laws of the State of Rlinois, to-wit, “An act to revise the law in relation to State contracts, ” approved March 31, 1874, in force July 1, 1874, and the several acts amendatory thereof, for the public printing of the State of Rlinois for the two years from October 1, 1886, to September 30, 1888, designated by the laws of Rlinois as printing of the first, second, third; fourth, fifth and sixth classes, but which said contracts were by said Commissioners of State Contracts required to be dated as of the 7th day of September, 1886. They further show, that after the execution and filing of said contracts, to-wit, on September 23, 1886, one of said partners, to-wit, Clarence H. Davenport, sold and assigned aU his interest in each of said contracts to his co-partner, Henry W. Rokker, of which sale and assignment said Commissioners of State Contracts then and there had notice; that upon the said execution of said contracts for said six classes of printing, said firm of H. W. Rokker & Co. executed and filed with the Secretary of State of Illinois, as required by law, their obligations, with sufficient surety, approved by the Governor, for the faithful performance of all said contracts, the amount of said bonds aggregating $27,000. They further show, that the petitioners entered upon the execution and performance of said printing contracts, to-wit, on October 1,1886, and from thence hitherto, and until the filing of this petition, have fully and faithfully executed and performed, all and singular, the agreements and undertakings on their part undertaken and agreed in said printing contracts, and in accordance with the laws of the State of Illinois in relation thereto; that between the 12th day of January, 1887, and the 21st day of April, 1887, there were delivered to petitioners, through the Secretary of State, as required by law, 1194 several orders for public printing of the first class, in and by which said orders petitioners were required, under the law and their said contract for said first class, of printing, to execute and iDerform, aggregating in amount, according to the conditions of the said contract, the sum of $6916.20; that petitioners did execute and perform the Work specified in said several orders, according to law and their said contract, and the work so executed at the several dates thereof was by petitioners delivered to the Secretary of State, at the State capítol, and accepted by him, and the same was appropriated, used and consumed by the various State departments- and agencies; that between the 14th day of October, 1886, and April 22,1887, there were delivered to petitioners, through the Secretary of State, as required by law, 675 several orders for public printing of the sixth class, in and by which said orders petitioners were required, under the law and their said contract for said sixth class of printing, to execute and perform, aggregating in amount, according to the conditions of said contract, the sum of $8443.35; that petitioners did execute and perform the work specified in said several orders according to law and their said contract, and the work so executed at the several dates thereof was by petitioners delivered to the Secretary of State, at the State capítol, and the same was accepted by him, arid appropriated, used and consumed by the various State departments and agencies; that between December 20, 1886, and April 14, 1887, there were, by the Secretary of State, as required by law, delivered to petitioners 46 several orders for public printing of the second class, in and by which said orders petitioners were required, under the law and their said contract for the second class of . printing, to execute and perform, aggregating in amount, according to the conditions of said contract, the sum of $17,362.56; that petitioners did execute and perform the work specified in the said several orders, according to law and their said contract, and the work so executed at the several dates thereof was by petitioners delivered to the Secretary of State, at the State capítol, and the same was accepted by him, and appropriated, used and consumed by £he various State departments and agencies. They further show that said several amounts for the work executed and performed, and accepted, under said contracts for public printing of the First class amounted to......$6,916.20 Second class amounted to..... 17,362.56 Sixth class amounted to...... 8,443.35</p> <p>Aggregating the sum of.....$32,722.11</p> <p>But that prior to May 1, 1887, said Commissioners of State Contracts had caused to be certified to the Auditor, and so paid on account thereof, the sum of......... 24,000.00</p> <p>Leaving unpaid the sum of $8,722.11</p> <p>They further show, that on May 7, 1887, the petitioners presented the detailed, itemized statement and accounts of the orders for public printing, and by petitioners executed and performed, heretofore herein referred to, to the Secretary of State, who then required the printer expert of the State of Illinois to examine and compare the same with petitioners’ said contracts, and the vouchers and orders relating thereto, as required by law; that said statements and accounts were then received by said printer expert, and the same were by him examined and compared, as required by law, and the same being found correct, were by said printer expert so certified to said Commissioners of State Contracts,—and which original certificate is here exhibited, viz:</p> <p>[[Image here]]</p> <p>“The foregoing aggregate charges in classes 1, 2 and 6 agree with my books, and are correct, to the best of my knowledge and belief.</p> <p>Jno. C. Hughes, Printer Expert.”</p> <p>They further show, that on said day, to-wit, May 7,-1887, and after said accounts of petitioners had been so certified to be correct by said printer expert, said Commissioners of State Contracts examined said accounts, and compared them with petitioners’ said contracts for first, second and sixth classes, and with the vouchers and orders relating thereto, and then and there found said accounts to be correct; that on the same day, to-wit, May 7, 1887, the unexpended balance of the appropriation for printing then being in the treasury of the State of Illinois, was $9172.05, and which unexpended balance of said appropriation- was then, and is now, available, under the law, for the payment of the orders for public printing so made and delivered as aforesaid, and so executed and performed by petitioners as aforesaid, and so represented and shown by petitioners’ said accounts so certified by said printer expert, and so found .by said Commissioners of State Contracts to be correct, as aforesaid; that on the same day, to-wit, May 7,1887,. petitioners demanded of said Commissioners of State Contracts that they certify petitioners’ said accounts to the Auditor of Public Accounts of the State of Illinois, as said Commissioners of State Contracts were then and there, under the law and practice in such case, bound and required to do, that thereupon the said Auditor might draw his warrant for the said S8Y22.il, unpaid balance of said accounts, and in favor of petitioners, as said Auditor, on such certificate, was then and there ready and willing to do, yet said Commissioners of State Contracts then wrongfully and unlawfully refused, and still do refuse, to so certify said accounts to said Auditor, as by law it was and is their duty to do, by means whereof the petitioners are prevented from receiving payment, out of the moneys appropriated, and then and now lying and being in the State treasury, for public printing, of the unpaid balance of $8Y22.11 due the petitioners on their said correct accounts, and to which they are justly and lawfully entitled; wherefore petitioners pray a writ of mandamus, directed to Henry D. Dement, Secretary of State; George Hunt, Attorney General; Charles P. Swigert, Auditor of Public Accounts; and John R. Tanner, State Treasurer, Commissioners of State Contracts of the State of Illinois, commanding them, as Commissioners of State Contracts, to forthwith certify petitioners’ said accounts to the Auditor of Public Accounts of the State of Illinois, as corrected, and payable from the appropriation for public printing, and commanding said Charles P. Swigert, Auditor, etc., to then forthwith draw his warranj, in petitioners’ favor, upon said John R. Tanner, Treasurer, etc., for said $8Y22.11, payable out of said appropriation, and commanding said Treasurer to then pay the same to petitioners, etc.</p> <p>The defendants answered, that they, by virtue of their respective offices, constitute the Commissioners of State Contracts of the State of Illinois; that on or about the 5th day of July, 1886, the Commissioners of State Contracts caused advertisements to be published, as required by law, asking for bids for doing the several classes of printing required to he done for the State of Illinois for the term of two years, beginning the 1st day of October, 1886,—all said bids to be filed with the Secretary of State on or before the 6th day oí September, 1886, and to be opened and the contracts awarded to the lowest and best bidder having complied with the law, on the 7th day of September, 1886. Defendants admit that bids were filed by H. W. Bokker & Co. for doing the several classes of printing for the State for the two years beginning October 1, 1886, which bids for doing the first, second and sixth classes of printing were the lowest and best bids received in compliance with the law, and said bids were accepted, and the contracts for' doing the said first, second and sixth classes of printing were awarded to said H. W. Bokker & Co., and in pursuance thereof, on the 13th day of September, 1886, contracts were signed by the Commissioners of State Contracts, and petitioners, with one Clarence H. Davenport, under the name of H. W. Bokker & Co., for doing said first, second and sixth classes of printing for the term of two years, beginning October 1, 1886. Defendants admit that bonds were executed, as required by law, to the amount of $27,000, conditioned for the faithful performance of the said contracts by said H. W. Bokker & Co. Defendants neither admit nor deny that Clarence H. Davenport sold his interest to Henry W. Bokker, or that he at any time owned one-fourth interest in the contract, but require strict proof. Defendants admit that H. W. Bokker & Co. entered upon the performance pf the contracts, and did work thereunder to the amount of $32,722.11, at the rates specified in the contracts; that the sum of $24,000 has been allowed and paid thereon; also, that there is in the State treasury an unexpended balance of $9172.05, appropriated b.y the General Assembly for the payment of printing done within two years, ending June 30, 1887; that petitioners have presented" their account, and demanded that the defendants, as Commissioners of State Contracts, certify the same to the State Auditor of Public Accounts for payment, and that defendants have refused to so certify the same. Defendants, further answering, say, that on or about the 6th day of September, 1886, Henry W. Bokker, Fred G-ehring, Phillips Bros., (including D. L. and J. L. Phillips,) Frank Hudson, Jr., Thomas S. Pinckard, Thomas W. S. Kidd, Charles Edwards, Clarence H. Davenport, Thomas Bees and Charles T. Strattan, formed a combination for the purpose of making bids for the several classes of printing to be done for the State of Illinois for the two years beginning October 1,1886, in accordance with the terms of the advertisement hereinbefore referred to, which said combination was formed in the form of a partnership, and for the purpose of obtaining the contracts for said printing at a high rate, and at higher rates than could otherwise be obtained, and for the further purpose of preventing the several members of said ■combination from competing with each other for the contracts for doing the said printing; and it was then agreed by the members of said combination, that bids on behalf of said persons so combining should be made and filed in the office of the Secretary of State, under the name or title of “H. W. Bokker & Co.,” for the several classes of printing,—all which matters and things were then, and until after the letting of the contracts referred to, and until after performance of the work for which payment is asked in this proceeding, unknown to the Commissioners of State Contracts, these defendants. Bids were filed in accordance with said agreement, in the name of H. W. Bokker & Co., then constituted as last aforesaid, for ■doing the several classes of printing for the two years beginning October 1, 1886, and the contracts for doing the first, second and sixth classes of printing were awarded to the said H. W. Bokker & Co., upon said bids; and as a part of and in pursuance of the agreement under and by which said combination or partnership was formed, and before the execution ■of the contract, set forth in the petition in this case, the petitioners herein, and said C. H. Davenport, paid to each of the other members of said combination, namely, Fred Gehring, Frank Hudson, Jr., Phillips Bros., T. W. S. Kidd, Charles Edwards and Thomas S. Pinckard, a large sum of money, to-wit, $1000, in consideration of their becoming members of said combination or partnership, and refraining from competing fox* the said several classes of printing, and in aiding the petitioners herein, and the said C. H. Davenport, to obtain such contract, and for no other consideration. Defendants aver that the said persons named above as constituting the firm of H. W. Rokker & Co., as last aforesaid, represented and included substantially all persons and firms or organizations in the city of Springfield who were engaged in the business of job printing, or who had facilities for doing the said several classes of printing, and included all persons in or out of the city of Springfield known to these petitioners to be likely to make bids for doing the several classes of printing. These defendants then had no knowledge as to who constituted the firm of H. W. Rokker & Co., and various members of the said firm or combination, namely, Fred Gehring, Charles Edwards, (using the name of the Shober & Carqueville Lithographing Co.,) Frank Hudson, Jr., and Phillips Bros., (composed of D. L. and J. L. Phillips,) separately filed bids for the same classes of printing included in the bids of H. W. Rokker & Co., all of which bids were at higher rates than the bids of H. WRokker & Co., except the bid of Fred Gehring, which was-irregular in form, and not in compliance with law, so that the same could not be accepted, and were made and filed fox-the purpose of deceiving and misleading the Commissioners of State Contracts. By the filing of separate bids, as aforesaid, the commissioners were deceived, and wrongfully led to believe' that the said several bidders -wei-e in competition with each other and with H. W. Rokker & Co., while, in fact, all were' interested in and parties to the bids of H. W. Rokker & Co., and thereby the Commissioners of State Contracts, these defendants, were misled, and unlawfully induced to award the-contracts for doing the first, second and sixth classes of printing to H. W. Rokker & Co., and subsequently to make and execute contracts for the same with these petitioners and said Clarence H. Davenport,—these defendants then understanding and being led to believe by these petitioners and the persons so combining with them, as aforesaid, that the petitioners and C. H. Davenport were the same persons represented and included under the style and title of H. W. Rokker & Co., in the bids filed for the several classes of printing, as aforesaid, which are the same contracts referred to and relied on in the petition for the writ of mandamus filed therein. Defendants aver that the said combination was formed in violation of the laws of the State of Illinois, and the contracts relied upon by the petitioners were procured by unlawful means, and by fraud upon the part of these petitioners, and through violation of law; and defendants further aver, that the said alleged contracts are null and void, and the same are of no binding force or effect upon the People of the State of Rlinois or these Commissioners of State Contracts, and no further payment ought to be made to these petitioners, or any other persons, by reason or on account thereof; wherefore the defendants pray judgment of the court here, whether the petitioners ought to have a writ of mandamus in this behalf, and that they, the defendants, be hence dismissed, with their costs, etc.</p> <p>The petitioners demurred to the answer, and the court sustained the demurrer, and thereupon, gave judgment that the writ of .mandamus issue as prayed. This writ of error is to bring in review that judgment, and the errors assigned bring before the court the questions discussed in the opinion.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the… Held: that upon the undisputed facts, the notice and demand of January 18 were not reasonable; that such being the case, it should have been submitted to a jury to determine whether or not Parker, by his acts and words, had waived his rights upon his previous demands for margins, and whether or not Perin had, before said last demand,…

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Macon county; the Hón. James F. Hughes, 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. Richard S. Tuthill, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Sangamon county; the. Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Conveyance—what estate passes—whether the fee. A conveyance of a strip of land on each side of a railway, for the expressed purpose of constructing, maintaining and operating thereon a single or double track railroad, with all its necessary appurtenances, etc., to have and to hold the same to the company, it successors and assigns forever, “for all lawful uses and purposes incident to a full and indefeasible title in fee simple,” etc., while it may not pass an estate in fee, yet so far as the right of possession for railroad purposes is concerned, the estate conveyed has most of the qualities of a fee. Under such a deed the right of possession conveyed is exclusive, and wholly inconsistent with the subsequent possession of the land, or any part of it, by the grantor.</p> <p>2. Limitation—twenty years’ adverse possession—and herein, what constitutes an adverse possession. The hostile possession of land under claim of title, when such possession is inconsistent with the owner’s title, constitutes an adverse possession, and when such possession continues for twenty years, the owner of the title will be barred from his action for the recovery of such land.</p> <p>3. To constitute an adverse possession sufficient to defeat the right of action of the party who has the legal title, the possession must be hostile in its inception, and so continued without interruption for the period of twenty years. It must be an actual, visible and exclusive possession, acquired and retained under claim of title inconsistent with that of the true owner. It need not, however, be under a rightful claim, or even under a muniment of title.</p> <p>4. Nor is it essential that there should be proof that the party in possession made oral declarations of claim of title, but it will be sufficient if the proof shows that he has so acted as to clearly indicate that he did claim title. The occupation and use of land is the ordinary mode of asserting a claim of title, and no words can more satisfactorily assert such a claim.</p>

<p>Writ of Error to the County Court of Ford county; the- ' Hon. Hugh P. Beach, Judge, presiding.</p>

Lyman Laoey, Judge, presiding. In September, 1883, one DeLand borrowed of John Warner $2700, for which he gave his note, payable in six months, with his daughter, Emma L. Magill, and W. H. Wheeler, as sureties, secured also by a chattel mortgage on a lot of mules.

M. F. Tuley, Judge, presiding. This is a bill, filed in the Circuit Court of Cook County on January 28, 1885, by appellee against the appellant and one J. C. Dunbar, to set aside an award rendered under an agreement of submission theretofore entered into between the said complainant and the defendants, for the purpose of settling the liability for a collision, that had occurred on August 19, 1882, in Lake Michigan near-the Chicago Crib, between the schooner “R. B. King,” of…

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the County Court of LaSalle .county; the Hon. F. P. Snyder, Judge, presiding.</p>

Dorrance Dibell, Judge, presiding. This was a bill in chancery, brought by James Chaplin against the Highway Commissioners of the Township of Wheat-land, in Will county, to restrain said commissioners from digging or opening a ditch or drain across certain lands of the complainant.

<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>Writ oe Error to the Circuit Court of Bureau county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Appeal from the' County Court of Cook county; the Hon. Bichard Prendergast, 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. Kirk Hawes, Judge, presiding.</p>

T. A. Moran, Judge, presiding. This was a hill in chancery, brought by Emma A. Strong against William W. Strong, Philo Carpenter and Amos J. Snell, for an accounting in relation to the moneys in the hands of Carpenter arising from the sale of certain lots of land by him to Snell, and for the payment out of said moneys of a certain claim in favor of the complainant. The bill was afterward, on the complainant’s motion, dismissed as to Snell.

Logan county; the Hon. Geokge W. Hekdhan, Judge, presiding. This is a hill in chancery, filed in the circuit court of Logan county, by John E. Wiley, against Joshua Day and John D. Gillett, to set aside the discharge of said Day as guardian of Wiley, entered by the county court of that county, and for a decree against Day and Gillett for the sum due to complainant, as shown by the report of said Day, as guardian of Wiley, June 22, 1869, and interest thereon.

<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 P. Altgeld, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Carroll county; the Hon. John V. Eustace, Judge, presiding. This action, as originally commenced, was a bill in equity, brought by Daniel Belding, against Duncan Mackay, to cancel a certain lease, to declare certain deeds to he mortgages, for an accounting, and for general relief.

. Appeal from the Appellate Court for the First District;—. heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kibk Hawes, Judge, presiding.

<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>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, 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. Rollin S. Williamson, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding. The present record embraces the proceedings and decrees in two separate suits in chancery heard together in the Superior Court, and also in the Appellate Court, by stipulation of the parties, and brought to this court from the Appellate Court by writs of error.

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

<p>1. ¡Negligence—want of due care on the part of the plaintiff—in what it may consist—burden of proof. In an action to recover for a personal injury on the ground of negligence in the defendant, the burden of proof is upon the plaintiff, to establish, either that he himself was in the exercise of due care, or that the injury was in no degree attributable to any want oí ordinary care on Ms part. If he shows that he brought the injury on himself by his own carelessness, he can not recover.</p> <p>2. In an action against a railway company, to recover for the death of plaintiff’s intestate through alleged negligence, the plaintiff showed that at the time of the accident, when the deceased was struck by the locomotive engine, he was a trespasser upon the right of way of the defendant, which fact is of itself evidence of a want of ordinary care, and there was no evidence that the injury was willfully or wantonly inflicted: Held, that the court properly instructed the jury to find for the defendant.</p> <p>3. So where a person is killed by an engine or train while wrongfully on a railroad track,— as, when he is walking thereon for mere convenience or pleasure, not at a public crossing,—he will be guilty of such gross negligence as to preclude a recovery by his personal representative against the company operating the engine or train, unless his death is caused willfully or wantonly, or the company is chargeable with such gross negligence as is evidence of willfulness.</p> <p>4. Same—over-speed of railway train—as an excuse for the want of ordinary care. In an action against a railway company for causing the death of the plaintiff’s intestate by a train of cars while he was on the track, the fact that the train was running at a greater speed than allowed by ordinance, may be considered by the jury in determining whether defendant was guilty of such negligence as caused the death, if the deceased was lawfully on the track at the time, or otherwise was in the exercise of ordinary care.</p> <p>5. The fact that a railway company was running its train within a city at a speed prohibited by ordinance, will not relieve a party injured from the exercise of ordinary care for his personal safety, and the speed of the train will not, of itself, furnish a sufficient reason for holding that the injury was willful or wanton.</p> <p>6. Same—allegations and proofs—as to ordinance <requiring signal. In an action against a railway company for killing a person on the railroad track not at a street crossing, the plaintiff, to prove negligence, offered in evidence a section of an ordinance, “that the bell of each locomotive engine be rung continually while running within said city.” There was no allegation in the declaration that there was such a requirement of the city code, and its violation: Held, that the evidence was properly excluded for want of such allegation.</p> <p>7. Same—what is a street crossing—within the law requiring hell to he rung. The statute requiring a bell of thirty pounds weight to be rung eighty rods from a street crossing, has no application to a street where no travel passes over the track, except upon a viaduct above and ' over the tracks.</p> <p>8. Limitations—as to additional count on same cause of action. In an action by a personal representative against a railway company, for causing the death of the intestate, the plaintiff, more than two years after the injury, by leave of court, amended his declaration by adding a new count, which, however, was a mere re-statement of the cause of action set up in the original counts. The defendant pleaded the two years Statute of Limitations to the new count, which the court held good, on demurrer: Held, that the court erred in so holding.</p> <p>9. Ebrob will not always reverse—overruling demurrer to plea. "Where the court erroneously sustained a plea to an additional count in a declaration, but the plaintiff introduced evidence, on the trial, under the other counts that he could have given under the additional -count, it was held, that the error in overruling the demurrer was a harmless one.</p> <p>10. Appeal—reviewing the facts. "Where the trial court instructs the jury to find for the defendant, or sustains a demurrer to the evidence, this amounts to holding that the evidence is insufficient, in law, to sustain the action, admitting all it tends to prove to be true, and when such action is assigned for error this court will review the evidence, in order to determine whether such ruling was correct.</p>

Writ of Error to 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>Appeal from the County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding.</p>

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

<p>Í. Contract—in respect to weighing and transferring grain for shipment—contract construed as to relative rights of weigher and carrier—as to the use to be made of the weights furnished. The inventor and owner of a patent for a new device for weighing and transferring grain in cars, entered into a contract with a railway company, under which he erected the necessary buildings, etc., upon land leased to him by the company, and by which contract he was to weigh grain transferred to the company for shipment, without charge to the latter, except one-half of any saving of expense over the former mode of weighing and transferring. The patentee was to have the right to charge the owners of grain such fees as might be agreed upon between him and them, for weighing and transferring, and it was provided that the railway company was to make no use of the weights given it, for any other purpose than billing the grain to its destination. It appeared that the weights so fimiished had a market value of seventy cents per car-load of grain, and that the company, in violation of the contract, gave the weights so obtained, to connecting roads, and thereby prevented the patentee from selling them: Held, that the company was liable to him for the value of such weights so given to other companies, or, seventy cents on each car-load of grain.</p> <p>2. The contract provided that the weigher should “receive, weigh and transfer all products contemplated by this agreement, which may be delivered to his said transfer-house by or under the direction of” the company. The preamble of the contract provided, that one of its objects was “to provide a cheaper method of transferring grain,” and for this purpose to use the device of the second party. There was a covenant that “if said second party shall fail to transfer as fast as required, the said first party may transfer by such other method as it deems proper.” Another covenant provided that an additional building should be erected “to meet all the necessities of the party of the first part: ” Held, that under this contract the party of the second part was to have all the weighing and transferring which it was in the power of the company to give, to the extent of the capacity of his building and appliances.</p> <p>3. Same—custom—as controlling the effect to be given to a contract. It will not be presumed that parties make their contract with a view to a particular usage of trade, when they exclude the presumption by the terms of their contract, or where it is shown they had no knowledge of such custom.</p> <p>4. So where a railway company contracted with a party to weigh and transfer grain shipped to it from the west to be sent eastward, and it was expressly agreed that the company should make no use of the weights furnished it by the weigher, for any other piupose than billing the grain to its eastern destination, the weigher reserving the right to sell the weights to the original shippers and owners, it was held, that ■even if there was, at the time of making the contract, a custom for the railway company to furnish the western roads with the weights of the grain when ascertained, it was excluded by the express terms of the contract limiting the use of the weights to the purpose of billing the grain to the east. \</p> <p>5. Same—measure of damages, when one party is prevented by the ■other from performing. The inventor of a new method of weighing grain in cars and transferring the same, under a contract with a railway ■company for the exclusive right to weigh and transfer grain sent to and forwarded by the latter, erected the necessary buildings and appliances to enable him to perform the duties assumed, and while engaged in such weighing and transferring, the buildings used by him for that purpose were injured through the fault of the servants of the company, and while they were unfit for use, by reason of such injury, several hundred cars of grain were transferred and weighed by other means and agencies : Held, that the inventor was entitled to receive the compensation provided in the contract for the weighing and transferring of the grain in such case weighed and transferred by other means, he having, been prevented from performing that service through the fault of the railway company.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.</p>

Lorin C. Collins, Judge, presiding. This is a bill to redeem.

<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. Gaey, 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. Lorin C. Collins, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This was an action on the case, against Seth F. Ilanchett, sheriff, for misconduct and negligence in and about the service of a writ of attachment in plaintiff’s favor. The first count avers, that after attaching-a large amount of personal property on the writ of attachment in his hands, the sheriff wrongfully surrendered the same, and returned falsely that he had done so by the authority of the plaintiff.

Thomas M. Shaw, Judge, presiding. This was a bill in chancery, brought by Elizabeth James, by William Stafford her conservator, against Arthur Keithley, Nancy Heaton, Alice Heaton, Edmond Heaton and Albert James, to contest the validity of the last will and testament of Edmond Heaton, deceased.

Gwynn Garnett, Judge, presiding. In May, 1885, William A. Tyler was married to a second wife. He then resided in Broome county, New York, and owned real estate in that county, and notes, bonds and mortgages, of the value of $100,000, or more. John B. Tyler was the son of William A. T3'ler, by his first wife, and at that time resided at Conneaut, Ohio. This second marriage was infelicitous, and a separation followed within a few months.

<p>1. Appeal—what matters to be considered—on appeal from Appellate Court. An appeal from the Appellate Court brings to this court only such matters as might lawfully have been considered in that court, and when that -court has dismissed the appeal to it for want of jurisdiction, that question only can be considered in this court. If this court finds that the Appellate Court had jurisdiction, correct practice requires that the order of dismissal be reversed, and the cause remanded to that court, with instruction's to find upon the issues of fact and render final judgment on the errors assigned, otherwise this court will affirm the order of dismissal.</p> <p>2. Same—want of jurisdiction—dismissal—as to any further action. Where the Appellate Court has no jurisdiction of an appeal, all it can do is to dismiss the same; and no mandate can issue from that court to the court below, and any attempt to issue the same will be void for want of jurisdiction.</p> <p>3. Same—whether freehold involved. Where the owner of land claims title in fee to the right of way over an adjoining tract, and files a bill to enjoin the defendant from interfering with its use, and to compel him to remove obstructions thereon, and his claim of title is denied by the defendant, a freehold will be involved, and the Appellate Court will have no jurisdiction of an appeal by the defendant from a decree granting the relief sought.</p> <p>4. An estate of inheritance in real property, whether it be a corporeal or an incorporeal hereditament, is a freehold estate.</p> <p>5. Same—former decision. The language employed in Lucan v. Cadwallader, 114 HI. 285, is broad enough to include inheritable easements or easements for the life of the grantee, and in holding that a freehold is not involved therein, is incorrect, and, in so far as inconsistent with the rule now announced, is not to be regarded as authority.</p> <p>6. Easement—grant of right of way—whether a mere easement, or a grant of the land. The owner of a ten-acre tract of land conveyed the west one-third thereof in fee, and for the benefit of the land so conveyed, and as incident thereto, a right of way fourteen feet wide over the remainder of the tract, to a public street: Held, that the grant of the strip described as a right of way was not of the land,-but created an easement therein for the land conveyed, and a servitude upon the land over which it was granted.</p> <p>7. Same—whether in gross, or appurtenant. It will never be presumed that the grant of a right of way, or easement, is in gross, when it can fairly be construed to be appurtenant to some other estate.</p> <p>8. Such an easement is an incorporeal hereditament, though imposed upon corporeal property, and consists simply of a right which, in its nature, is intangible, and incapable of being the subject of livery. It lies only in grant by deed. It is not divisible from the estate to which it is appurtenant, and passes by the conveyance of the principal estate, as an appurtenance thereof.</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. Egbert Jamieson, Judge, presiding. In 1882, a deed for the real estate hereinafter mentioned •and described was made to Jane Kelly, and in 1885 a two-story house was bought and moved onto said real estate, and the house repaired and improved.

Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.

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

Gwynn Garnett, Judge, presiding. The firm of Ferris & Avery were merchants doing business in Chicago. On the 13th day of October, 1884, they being in good credit, though really insolvent, borrowed of the appellee bank $1600, and gave their note at ninety days, accompanied with a power of attorney to confess judgment thereon at any time before or after the note became due.

<p>Appeal from the Superior Court of Cook county; the Hon. Henby M. Shepabd, Judge, presiding.</p>

Joseph E. Gaby, Judge, presiding. This was an action on the case, prosecuted by Mary Boedecker, administratrix of Henry J. Boedecker, deceased, to recover damages for the death' of her intestate.

Elliott Anthony, Judge, presiding. In this case, the appellant filed in the Superior Court of Cook county his complaint in an action of forcible detainer, verified by affidavit, alleging that he was entitled to the possession of certain premises in Cook county, and that the appellee unlawfully withheld the possession thereof from him.