Volume 127 — Illinois Reports

<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. Bichard W. Clifford, Judge, presiding.</p>

<p>1. Removing cloud upon title—question of possession—or that the premises are vacant and unoccupied. On bill to remove alleged clouds upon the title to land, the burden of proof is on the complainant to make out a case,—and this is not done unless he shows that he was in possession, or that the property was vacant and unoccupied, at the time of the filing of the bill. It is not sufficient to prove that the premises were vacant at some time after the suit is brought.</p> <p>2. Same—setting aside tax title—upon terms. .It is error to decree that certain tax titles be set aside as a cloud upon title, except upon the condition that the complainant shall pay to the parties entitled thereto, the amount found by the court to be equitably due. If there is doubt as to which of several defendants is entitled to receive the same, the money should be ordered into court for the use of the parties entitled.</p>

<p>Appeal from tile Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. J. B. Hay, Judge, presiding.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Municipal indebtedness—constitutional limitation—as to the time when the debt is incurred. Where a city enters into a contract to pay a sum of money when certain work shall be done and accepted, the obligation thereby assumed will constitute a debt, within the meaning of the constitutional limitation of its power to incur indebtedness. Such indebtedness will be regarded as having been incurred from the date of the contract, and not postponed to the time of the completion and acceptance of the work.</p> <p>2. Same—the assessment of what year shall govern—in respect of the limitation. A city contracted for the construction of water works in August, 1887, by which it was to pay for the works, when completed and accepted, the sum of $11,619. The equalized value of the taxable property in the city was not fixed until October 1, 1887: Held, that the valuation of the property for the year 1886 governed as to the limitation of the amount of corporate indebtedness allowed to be incurred, and the valuation for that year being $209,061, the city was prohibited from incurring any greater indebtedness than $10,453.05, being five per cent upon the preceding year’s assessment, and that the debt in excess of that sum, being $1165.95, was void, but up to $10,453.05 was valid and enforceable.</p> <p>3. Same—upon what assessment. It is the assessment as finally fixed by the State Board of Equalization that must govern, in determining the basis of the limitation of the power to create municipal indebtedness.</p> <p>4. Same—City of Fulton—power to borrow money and issue bonds for water works. The city of Fulton, under its charter and the laws of the State, has the power, by ordinance adopted by a vote of the people, to borrow money with which to build and construct a system of water works, and to issue its bonds for the same, not exceeding the constitutional limit.</p> <p>5. Municipal taxation—injunction as to a part, if divisible. A tax can not be levied to pay a municipal debt forbidden by the constitution, but when the tax levied is only in part to pay such a debt, and the residue for a lawful purpose, only the illegal part will be enjoined. The tax levied within the limit of the lawful power of the body imposing it, will be sustained, when it can be separated from the portion that is illegal.</p> <p>6. SAME'—appropriation ordinances—as to cities, etc., acting wider special charters—general law not applicable. Section 2, of article 7, of the “Act to provide for the incorporation of cities and villages,” approved April 10,1872, requiring an appropriation ordinance to be passed within the first quarter of the fiscal year, as a prerequisite to the validity of an ordinance for the levy of municipal taxes, has no application to cities, towns and villages incorporated and acting under special charters, but applies only to cities and villages incorporated under the general law.</p> <p>7. Same—extent of power as to rate of assessment—the rule in special chm-ters controlled by subsequent legislation. Although the charter under which a city is organized may limit its power of taxation to one-half of one per cent of the assessed value of taxable property, yet it may, by a majority of the members of its council, exceed the rate so limited, under the provisions of the “Act authorizing cities, incorporated towns and villages to construct and maintain water works,” approved April 17, 1873, and “An act in relation to the rate of taxation in cities, villages and incorporated towns,” approved May 30, 1881, and “An act in relation to the levy and collection of taxes for sewerage and waterworks in cities of this State,” approved June 21, 1883. These acts may be regarded as repealing the limitation in such special charter as to the extent or rate of the levies authorized.</p>

C. W. Upton, Judge, presiding. Hiram Bauder, of Kendall county, was the owner of four hundred acres of land in that county, forty acres of wood land in the “big woods,” in Kane county, a house and lot and block of land in Montgomery, Kane county, and was possessed of $5000 in value of personal property, consisting of horses, cattle, farming tools, etc., and money.

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

<p>Mobtgage—strict foreclosure—what interest passes by the decree. A decree of strict foreclosure of a mortgage, after finding the sum due on the mortgage, and that the value of the mortgaged premises was much less than that sum, ordered and decreed that the defendants pay the sum so found due, with six per cent interest thereon, within ninety days, and that in default of such payment within the time fixed, the defendants be forever barred and foreclosed of all right and equity of redemption in and to the mortgaged premises, and every part thereof, and that on such default, all the right, title and interest, both legal and equitable, of the defendants in and to said premises, and every part thereof, should become vested, absolutely and forever, unconditionally, in the complainant: Held, that the decree was a final one, and vested the title and estate of the mortgagor in the complainant, without any further order or decree of the court after the time allowed for payment has elapsed.</p>

M. F. Tuley, Judge, presiding. On January 13, 1877, Sylvanus Town and Henry B. Town, of Aurora in Kane County, composing the firm of S. Town and Son, made a general assignment for the benefit of their creditors to Isaac M. Howell, as assignee, therein conveying all their property, real and personal, and partnership and individual.

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

Egbert Jamieson, Judge, presiding. The following instrument was executed by the parties thereto at the date therein stated: “This agreement, made this second day of.

Writ of Error to the Criminal Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding. The plaintiff in error was indicted under the 25th section of the Warehouse act.

<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. Charles Blanchard, Judge, presiding.</p>

<p>1. Eminent domain—elements of damages—in respect to a leasehold interest—evidence. In a proceeding for the condemnation of a leasehold interest in a lot or building used for business purposes by the tenant, the jury called to fix the compensation may properly take into consideration evidence tending to show the actual value of the leasehold interest of which the tenant is sought to be deprived; the actual injury to be suffered by him from the loss, destruction or depreciation of the improvements placed by him on the property specially adapted to his business, if any is shown; the reasonable cost of removal and of refitting in another locality for the further conduct of business, as shown by the evidence; and also any injury the jury may find, from the evidence, will result to the tenant by reason of the, unavoidable interruption of his business, incident to its present site and his establishment in a new location during the period of such interruption, if any is shown.</p> <p>2. On the trial, the petitioners offered to prove the rental value derived from similar premises in the near vicinity, which the court refused to allow. The proposed evidence failed to show the property inquired about was similar, or in the near vicinity: Held, no error in refusing the testimony so offered.</p> <p>3. In the same case, the tenant was allowed to state his average monthly profits during the year preceding the hearing: Held, that this was competent as tending to prove, with other testimony, the loss which he would incur by the suspension of business during the time necessarily consumed in moving to another place.</p> <p>4. Same—new trial—verdict against the evidence. While the personal view of the jiuy in a condemnation case is in the nature of evidence, and is to be considered by them in connection with other evidence, yet this, nor any other court, has ever held that the jury may ignore all the other evidence, and fix the compensation and damages directly contrary thereto. It is only when the evidence is conflicting, that the jury may draw their own conclusions from a personal view.</p> <p>5. Where there is a conflict of evidence, and the verdict is consistent with all the facts and circumstances in the case, it will not be set aside merely because the court may regard the weight of evidence in the record as against it; but when it clearly appears that the amount fixed is inconsistent with and contrary to all the proofs, it is the duty of the court to interfere, and submit the case to another jury.</p> <p>6. Same—new trial—excessive damages. Where the jury have evidently acted either from passion, prejudice or mistake, and award as compensation for a leasehold interest sought to be taken, a sum which, at first blush, strikes a fair mind as being entirely too large, the court ought to set aside their verdict and grant a new' trial.</p> <p>7. Same—right of entry pending appeal. Where a railway company' appeals to the Supreme Court from the judgment awarding compensation, it will be entitled to an order of the court permitting it to enter upon the property sought to be condemned, on filing its appeal bond in conformity with the order granting the appeal. It is error to refuse such order, but when the company otherwise obtains the order, as, upon the payment of the money into the county treasury, the error will not reverse.</p> <p>8. Section 13 of the Eminent Domain act gives the petitioner the right to enter upon the use of the property sought, pending an appeal from the assessment of compensation and damages, and section 12 of the act gives the right of appeal. The exercise of one of these rights is not a waiver of the other,—they are concurrent. It matters not that on a reversal and a second trial the buildings wrhich were upon the premises at the time of the first trial may have been removed, and thus prevent a personal view by the jury. A trial may be had without such view.</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. John C. Bagby, 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. Oliveb H. Hobton, Judge, presiding.</p> <p>This is a bill filed on December 28, 1885, in the Circuit Court of Cook County by the appellees, Michael Sampter, Otto Sampter, Arnold Sampter, Morris Sampter and Sigmund Simon, composing firm of M. Sampter Sons & Co. of New York City, against appellants Lewis Wight and J. Franklin Wight, members of the firm of Wight Brothers of Boston, Massachusetts, and Amalie Beak, Alfred Bucher, Mrs. Alfred Bucher, Joseph Tillman, Simon Minchrod, Seth F. Hanchett, - Hecht. The bill was finally dismissed as to the five defendants last named. Amalie Beak and Alfred Bucher prosecuted no appeal from the decree of the Circuit Court, which was in favor of the complainants below. This appeal is prosecuted by the Wights alone from the judgment of the Appellate Court, which affirmed the decree of the Circuit Court.</p> <p>Answers were filed by the Wight Brothers, by Amalie Beak and by Alfred Bucher and wife, to which general replications were filed.</p> <p>The bill, as originally filed and as subsequently amended, is, so far as the principal defendants, Beak and Bucher, are concerned, an ordinary creditor’s bill, praying for discovery of ..assets, injunction, receiver, etc. It alleges that complainants recovered a judgment by confession for $9943.00 on December 28, 1885, in the Superior Court of Cook Co., against Beak and Bucher, upon which there was due, when the bill was filed, the sum of $7716.40; that execution had been issued on the same and returned unsatisfied; that on December 26, 1885, judgments by confession were entered up in the same court against Beak & Bucher, one for $27,200.00 in favor of said TJ'llman, and one for $8400.00 in favor of said Minchrod; that, under executions, issued upo.n the last named judgments, the Sheriff of Cook County had levied upon, and then had in his hands, the stock in trade of Beak & Bucher, who were carrying on a wholesale fur and cloak business in Chicago; that such stock is insufficient to satisfy the executions so levied upon it; that Beak & Bucher had a large number of outstanding accounts against parties in Illinois and other States, some of which have been assigned to Wight Brothers and some remain unassigned; that, on August 10, 1885, complainants, being creditors of Beak & Bucher, to the amount of about $20,000.00 and being desirous of forcing the collection of their claim, made what is alleged to be “an agreement partly oral and partly evidenced by writing” with Wight Brothers, who were also creditors of Beak & Bucher to the amount of about $40,000.00, but were opposed to beginning legal proceedings against them, by the terms of which complainants agreed to abstain from legal proceedings, and, in consideration thereof, Wight Bros, agreed to and did guarantee $10,000.00 of the debt due to complainants from Beak & Bucher, and Wight Bros, are also alleged to have agreed “to take charge of” the balance of the claim of complainants represented by a judgment note, dated August 10,1885, for $9706.40, and “force it against said principal defendants whenever they, Wight Bros., would find it necessary to do so for the interests of” complainants ; that this arrangement was known to Beak & Bucher; that complainants thereafter looked to Wight Bros, to protect their interests; that the assignment of the said accounts to Wight Bros, on December 26, 1885, in liquidation of their own indebtedness against Beak & Bucher, was in fraud of the rights of complainants; that Wight Bros, intended thereby to collect their own claim and leave that of complainants uncollected; that complainants are “equitably entitled either to have a portion of said claims or all of them assigned to them;” that “Wight Bros, are trustees for orators in that behalf” and have no property in Illinois subject to execution; that the accounts so assigned are believed to be from $20,000.00 to $30,000.00; that the Ullman judgment was entered for more than was due; that the Minchrod judgment did not represent a bona fide indebtedness; that the Wight Bros, are interested in such judgments, and the amount of such interest should go to complainants, and to the extent thereof Ullman and Minchrod are trustees for complainants; that Beak & Bucher have no property except said stock and accounts; that Beak & Bucher owned a retail store and stock of goods therein at Milwaukee, Wisconsin, and have transferred said stock to one Hecht, their employe, and manager, in fraud of their creditors, etc. The prayer of the bill is that Hecht be enjoined from interfering -with the stock and that Wight Bros, be enjoined from removing the books of account out of the jurisdiction and from collecting or assigning the accounts.</p> <p>The answer of Wight Brothers admits that the judgment in favor of complainants was rendered, but charges that the debt represented by it had been paid and satisfied, and that an alias execution had been issued upon it, ’which was then in the sheriff’s hands subject to executions in favor of Henry Gr. Savage and Ullman and Minchrod; alleges, that the Minchrod judgment was entered for the benefit of complainants at the request of Beak & Bucher, and that the Sheriff has realized out of the property of Beak & Bucher and applied upon the execution issued upon the Minchrod judgment the sum of $3337.17, and that $3337.17 of said amount has been paid to and received by complainants; that, when complainants’ judgment was entered, the sheriff was in possession of the stock of Beak & Bucher under an execution in favor of Savage for $2857.60, being a first lien, and the executions in favor of Ullman and Minehrod, the latter being second liens and sharing pro rata as between the two; that, on December 28, 1885, complainants began an action on the case for $5000.00 damages against Wight Brothers in the Circuit Court, which action is still pending and involves the same matters involved in the present suit; further alleges, that, on December 26, 1885, Beak & Bucher sold and assigned all their book accounts and two notes owned by them to Wight Brothers in payment of $25,000.00 of an indebtedness of $32,422.70 then due to Wight Bros, from Beak & Bucher; that Wight Bros, have no security for the remaining $7422.70 of their indebtedness which is still due to them from Beak & Bucher; that the value of said accounts and notes is less than the $25,000 paid off by their assignment; admits that defendants signed the written directions, dated August 10, 1885, and hereinafter set forth, to the attorneys of complainants, and that they guaranteed $10,000.00 of complainants’ claim against Beak & Bucher, which -has since been paid; but the answer denies, that Wight Bros, made any agreement in relation to the balance of complainants’ claim, to-wit: the note for $9706.40, except as contained in the writing of August 10, 1885; denies that defendants agreed to take charge of the claim for $9706.40 or to force it against Beak & Bucher, or that they did so, but avers that said claim was put into the hands of complainants’ own attorneys, to whom also Wight Bros, entrusted their own notes under said written directions; alleges, that complainants and their attorneys collected $2000.00 of said $9706.40; denies that defendants have any interest in the Ullman and Minehrod judgments, or that the assignment of the accounts was in fraud of the rights of complainants, or that defendants have taken any action against Beak & Bucher upon their own notes mentioned in the writing of August 10, 1885, or that they knew of the Ullman and Minchrod notes until December 26,1885; denies that Wight Brothers are trustees for complainants or that complainants are entitled to any of said accounts. The answer of Wight Brothers further sets up the arrangement of March 10, 1885, and the circumstances connected with the execution of the writing of August 10, 1885, substantially as stated in the opinion.</p> <p>The answer of Alfred Bucher is the same as that of Wight Brothers; it further alleges, that Beak & Bucher, on December 26,1885, being embarrassed and unable to go on in business, and owing Savage $2700.00, Ullman $22,483.45, (then supposed to be $26,200.00), Wight Brothers $32,422.70, Sampter Sons & Co. $7716.40, assigned to Wight Brothers two notes of $2500.00 each, received from Hecht in payment for the Milwaukee stock, and all the book accounts, in return for a cancellation of $25,000.00 of indebtedness, and confessed judgments in favor of Savage, Ullman and Minchrod, the first to be a first lien on the stock and the last two to be a second lien sharing pro rata, and that the Minchrod judgment represented the debt due to complainants; that the -Milwaukee stock was fairly sold to Hecht for $10,000, which has been used in payment of debts; that $3737.17 has been realized on the Minchrod judgment and paid to complainants and accepted by them, etc.</p> <p>It was afterwards agreed that the attorneys of appellants should collect the accounts and notes so assigned, and it is admitted, that $19,000.00 have been collected.</p> <p>The Circuit Court, in its decree, found the allegations of the bill to be true, and that, after August 10,1885, Wight Brothers stood in a relation of trust towards complainants as to the claim of the latter against Beak & Bucher; that, on December 26,1885, Wight Brothers could have made the claim of complainants out of Beak & Bucher’s assets but failed to do so, that by collusion they received claims amounting'to the actual value of about $20,000.00 and used the same in payment of their own debt; that Wight Brothers on August 10,1885, had agreed to first pay complainants’ claim out of the claims that might he assigned to them; that Wight Brothers were hound to hold the notes and claims assigned to them in trust to first pay complainants and then to pay themselves; that $19,000.00 have been collected and $3337.17 paid; it is then decreed, that Wight Brothers and Beak and Bucher pay to complainants $4773.00, the balance due to them from Beak & Bucher, “which sum has come to the hands of said Wight Brothers from the assets of said Beak & Bucher; and which, in equity, they now hold in trust for the said complainants.”</p> <p>The following agreement in the form of a letter was executed by the subscribers on August 10, 1885:</p> <p>“Chicago, August 10th, 1885.</p> <p>“Messrs...............Attmneys at Law:</p> <p>“Gentlemen—We have this day deposited with you the following notes of Beak & Bucher, of Chicago, Illinois, and retain you as our attorneys in connection with same:</p> <p>“First—The note for $9706.40, dated Chicago, August 10th, 1885, payable to the order of M. Sampter Sons & Co., one day after date, with power of attorney to confess judgment thereto annexed.</p> <p>“Second—Note for forty thousand dollars, dated Chicago, March 14th, 1885, payable to the order of Wight Brothers, due one day after date, with warrant of attorney to confess judgment thereto annexed.</p> <p>“Third—Note for ten thousand dollars, dated Chicago, August 10th, 1885, payable to the order of Wight Brothers, one day after date, with warrant of attorney to confess judgment thereto annexed.</p> <p>“We hereby jointly and severally instruct and direct you to take no action whatever on said notes, or any or either of them, and not to enter judgment thereon until instructed so to do by the firm of Wight Brothers, or some member of said firm, or by the agent thereof. In case judgment is entered</p> <p>on said notes or any of the same, at any time hereafter, under said instructions or otherwise, you are directed and instructed to prefer said claim of M. Sampter Sons & Co. over said claim of said Wight Brothers, and to make said claim of said M. Sampter Sons & Co. a lien upon the property of said Beak & Bucher prior to said claim of Wight Brothers, or any members thereof.</p> <p>M. Sampter Sons & Co.,</p> <p>(Signed) Wight Brothers.”</p> <p>The following guarantee was executed on August 10,1885 :</p> <p>“For and in consideration of the sum of one dollar to us in hand paid, the receipt of which is hereby acknowledged, and in further consideration of the extension of the time of payment of ten thousand dollars of the amount of the indebtedness due at this time from Messrs. Beak & Bucher of Chicago, Illinois, to Messrs. M. Sampter Sons & Co. of New York, the evidences of which indebtedness are now surrendered and cancelled, which said extension is shown by five certain promisory notes hereinafter described, and in consideration of the benefit accruing to the firm of Wight Brothers of Boston, Massachusetts, as creditors of said Beak & Bucher, from such extension, that said firm of Wight Brothers, and J. Franklin Wight, a member thereof, do hereby jointly and severally guarantee the payment at maturity of each and all of the following promissory notes of Beak & Bucher, about to be executed by said Beak & Bucher and delivered to M. Sampter Sons & Co., concurrent with the execution of this guaranty and by reason of the same:</p> <p>“First—The note of B. & B. for two thousand dollars, dated Chicago, July 14th, 1885, payable three months after date.</p> <p>“Second—Note of B. & B. for two thousand dollars, dated Chicago, July 21st, 1885, payable three months after date.</p> <p>“Third—Note of B. & B. for two thousand dollars, dated August 7th, 1885, payable three months after date.</p> <p>“Fourth—Note of B. & B. for two thousand dollars, dated Chicago, August 13th, .1885, payable three months after date.</p> <p>“Fifth—Note of B. & B. for two thousand dollars, payable three months after date.</p> <p>“Failure to pay any one of said notes at maturity shall constitute a breach of this guaranty.</p> <p>“Witness our hands this 10th day of August, 1885.</p> <p>Weight Brothers,</p> <p>J. Franiclin Wight.”</p> <p>It furthermore appears from the evidence that in December, 1885, Beak & Bucher executed judgment notes to three of their creditors, Savage, Ullman, Minchrod, the latter for the benefit of M. Sampter Sons & Co.; that, on December 26, 1885, the attorneys of Beak & Bucher had the papers prepared, necessary to the entry of judgments on said notes, so as to give Savage the first lien on the stock and Ullman and Minchrod the second liens thereon, and, during the forenoon of that day, J. F. Wight was for the first time informed by Bucher and his attorneys of the existence of said notes, and was told that judgments were to be entered up in favor of Savage, Ullman and Minchrod in the afternoon, and that unless he accepted the accounts and Hecht notes in payment of $25,000.00 of his indebtedness he would get nothing, and that all the arrangements were perfected to enter such judgments before judgments could be entered on the notes mentioned in the letter of August 10, 1885, by the attorneys to whom the same was addressed; that thereupon the accounts were assigned to Wight Brothers, and they cancelled $25,-000.00 of their indebtedness against Beak & Bucher; that in the afternoon of December 26, 1885, judgments were entered in favor of Savage for $2857.60, Ullman for $27,200.00 and Minchrod for $8400.00; that the stock of Beak & Bucher was at once levied upon, and, from the proceeds of such levies, Savage has been paid in full, and the balance of the proceeds divided pro rata between Ullman and M. Sampter Sons & Co.; that the amount received by the latter from such proceeds is $3300.00 or thereabouts.</p> <p>So much of the balance of the testimony, as is necessary to understand the points involved, is set forth in the opinion.</p>

Lobin C. Collins, Judge, presiding. This was a bill in equity, by appellants, against appellees, in the circuit court of Cook county, to compel Henry R Barnes, who held the legal title to a tract of land therein described, to convey the same to appellants.

<p>Appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, 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. Oliver H. Horton, 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 Knox county; the Hon. Arthur A. Smith, Judge, presiding.

Oliver A. Harker, Judge, presiding. On the 4th day of November, 1884, George A. Cruse, husband of appellant, Julia Ann Cruse, was, while intoxicated, thrown from his horse, and received injuries from which he shortly afterward died. Thereupon, said Julia Ann Cruse, his widow, prosecuted this suit in the circuit court of Union county, against Adde Aden, since deceased, and obtained against him judgment for $800 damages.

<p>Appeal from the County Court of St. Clair county; the Hon. John B. Hat, 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. John P. Altgeld, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Marshall county; the Hon. T. M. Shaw, 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. Lobin C. Collins, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. M. F. Ttjley, Judge, presiding.</p> <p>This was an information in chancery, filed by the Attorney General, on behalf of the People of the State of Illinois, against the Chicago Mutual Life Indemnity Association and its officers, praying that said officers be required to show cause why they should not be removed from office, or the business of the association closed, and that if it should appear that said officers or any of them had been guilty of fraud, or any material irregularity or violation of law to the injury of the association, or of non-compliance with any of the provisions of the act under which the association was organized, the court should decree a removal from office of the guilty party or parties, and the substitution of a suitable person or persons to serve until the regular annual meeting, or until a successor or successors should be regularly chosen or elected; or, if it should appear to the court that- the interests of its members or the general public so require, that it decree a dissolution of the association and a distribution of its effects.</p> <p>The information alleges that said association is a corporation organized January 13, 1885, under the “Act to provide for the organization and management of corporations, associations or societies for the purpose of furnishing life indemnity or pecuniary benefits to widows, orphans, heirs, relatives and devisees of deceased members, or accident or permanent disability indemnity to members thereof, ” approved June 18,1883; that said association entered upon the exercise of its corporate franchise and the transaction of business under its certificate of organization on or about January 13, 1885, and had continued the same until the date of filing said information, its principal office being located in the city of Chicago; that on or before March 1,1887, its president and secretary filed with the Auditor of Public Accounts a statement under oath of its business for the year ending December 31, 1886, as required by law, showing its financial condition, assets, liabilities, total amount of indemnity in force, number of members, number whose membership had terminated during the year and cause thereof, total receipts and sources thereof, total expenditures and object thereof, and the average amount paid on each certificate ; that said statement was willfully false and untrue, and that the Auditor so found on examination of the books and papers of the association and such other examination as he had deemed necessary; that the business of the association had been conducted fraudulently and in willful violation of the provisions of said act, and that the association had transacted business different from that authorized by its certificate of incorporation; that the Auditor had communicated such facts to the Attorney General as required by law, and that the Attorney General, in pursuance of the duty imposed upon him by law, applied to the court for relief, according to the statute in such case made and provided, and for cause of such application further and more particularly showed :</p> <p>That in pursuance of a resolution of the board of trustees of the association adopted November 19, 1886, a new department called the “Industrial Department” of the association had been established and was still in active operation, wherein members had been and were accepted at any age between the limits of ten and sixty years, and benefit certificates issued to them in sums less than $1000 as well as in sums above that amount; that benefit certificates had been issued by said department to persons under lawful age, wherein the association pretended to contract with such persons in consideration of statements, warranties and agreements made by them with the association; that over one hundred benefit certificates, representing an aggregate insurance of $87,555, had been issued by said department from which no revenue whatever had been received by the association; all of which acts were in willful violation of the provisions of said act, and constituted a fraud upon all its members who had become such in good faith.</p> <p>That no true record had been kept of the money affairs of the association; that many of its receipts had never been entered upon its books of account or any record thereof kept; that it was impossible to ascertain from the books and records of the association what funds had been collected for the payment of death benefits, or for the accumulation of its surplus or guarantee fund; that no trial balance, or.even a cash balance, had ever been made from its books of account, and that it had never been possible to make either balance on account of the want of the necessary records from which to make them.</p> <p>That the by-laws of the association provided for the accumulation of a surplus, general or guarantee fund, to be known as the “Tontine Reserve Fund,” by setting apart twenty-five per cent of the net amount raised by assessments for death benefits, to be invested as required by said act, and to be applied in payments of future assessments as required by law, or otherwise used for the promotion of the objects for which said reserve was specially provided and set apart, at the ojition of the member; but that in fact the association, its officers, trustees and agents, in violation of the provisions of the bylaw's and of said act, had fraudulently advertised and held out to the world that the association was empowered by law to and would, at the option of Any member, refund to him in cash, at the expiration of the period of ten years from the date of his certificate, all of the “Tontine Reserve Fund” and its accumulations to which such member should at that time he entitled, and that divers persons, relying upon such false and fraudulent representations, had been induced to and had become members of the association.</p> <p>That on the back of blank applications for membership in the association was printed a blank proxy constituting the person whose name should be inserted therein the member’s proxy to vote for him at all meetings for the election of trustees, and upon all questions arising before the association; and subjoined to such blank proxy was printed a request or direction to the applicant “to sign the proxy in blank, to be filled in by the secretary;” that all applicants were requested to sign such proxy, and that the signing of it was made a condition to the admission of the applicant to membership in the association; that by reason of the ignorance of the effect of the proxy, the large majority of the applicants had signed and were signing the same, and that by reason thereof and by means of the fact that it was impossible in the nature of things for many of the members to attend the meetings of the association, the secretary had it in his power alone to control and that he did control all elections for trustees of the association contrary to equity, and in fraud of the rights of the members.</p> <p>That certain amendments to the articles of association claimed to have been adopted at a meeting of the members held January 19, 1886, provided that the other officers of the association should be elected by the trustees, but that the secretary and manager should be elected by the members at the annual meeting, at which the votes should be by ballot, and each member entitled to one vote, either in person or by proxy; that by reason of such amendment, and of the proxies signed in blank by applicants for membership and held and controlled by the secretary, he had it in his power alone to control and did alone control the election of his own successor and that of the manager; that said power and control in effect removed the secretary and manager from all control by the trustees or members of the association, and made the annual election an empty form; that the secretary and manager were the active officers and transacted the business of the association with its members and the public, and that the affairs of the association were therefore at the mercy of the secretary and manager, and had been and were grossly mismanaged and fraudulently transacted, as in other parts of the information stated and shown.</p> <p>That the manager and other officers of the association, without any power or authority so to do, have pretended and do habitually pretend to waive and alter the conditions of the benefit certificates, after the same have been issued, by indorsing written stipulations thereon, and falsely and fraudulently represented that said stipulations were binding on the association.</p> <p>That in its printed advertisements and circulars the amount of insurance or indemnity covered by the benefit certificates was greatly exaggerated, and its liability for death losses greatly understated; that said advertisements and circulars were intended and used for general circulation, and were calculated to and did deceive the public, and that divers persons relying thereon had been and were being induced to become members.</p> <p>■ That for the purpose of falsely and fraudulently representing the condition of the affairs of the association, the benefit certificates issued by it had been and were being numbered with numbers much larger than the number of benefit certificates actually issued.</p> <p>That no assessments had been made for certain deaths which had occurred among the members of the association in good standing, and that by reason thereof certain death losses had not been paid, to the damage and loss of the beneficiaries named in the certificates of such deceased members; that to avoid the payment of its death losses, the association had permitted suit to be brought against it by such beneficiaries, and that in such suits it had set up fictitious and frivolous defenses to delay and defeat a recovery.</p> <p>That the “Tontine Reserve Fund” above mentioned had never been set apart or accumulated out of the assessments levied on the members of the association for death losses, nor out of any other funds, nor had any such fund been invested in any of the securities or in the manner required by said act; that no accounts whatever had been kept of the amount of money due or belonging to such fund out of the receipts of the association, nor had any attempt been made by the association or its officers to invest such fund as by law required; that representations had been made by the association and its officers of the existence of such fund, but that such representations had been and were wholly false and fraudulent.</p> <p>That no membership fees had been accounted'for on the books of the association; that large commissions to agents were being paid out of such membership fees, and that whatever remained from that source and whatever income had been or was received from assessments for expenses were being appropriated by the officers and directors of the association as their own personal perquisite without accounting therefor, and that the association and its members were receiving no benefit from and had no voice in the disposition of such receipts.</p> <p>That on or about February 16, 1886, the trustees of the association passed a resolution authorizing the manager to use for proper expenses of managing the association, the advance mortuary assessments, to be replaced to the credit of the association from annual dues as soon as expedient, and that the legitimate expenses of the trustees incurred in attending the meetings of the association be considered proper expenses as aforesaid; that in pursuance of this resolution and otherwise, a large part of the funds collected by the association for the payment of death benefits had been applied by the manager for other purposes, in willful and direct violation of said act, and of the provisions of the certificate of incorporation and by-laws of the association, and in gross fraud of all its members and of the beneficiaries named in the benefit certificates; that by reason of such wrongful application and expenditure of said funds there was a shortage in the.mortuary fund and the “Tontine Reserve Fund” of more than $1098.87 ; that the funds of the association had been théreby reduced so that it had been and was unable to meet its death losses, and was largely in arrears to the beneficiaries.</p> <p>That the association had never since its organization fulfilled the purpose for which it was created; that it had issued benefit certificates for large amounts of indemnity, in which however its liability was limited to the amount contributed to the mortuary fund by one assessment upon all who were members at the time of the death of the member named in the certificate, and that the membership of the association had never been and was not large enough to pay all or nearly all of the amount named in a large portion of the certificates by means of one assessment; that the whole number of certificates pretended to be in force was only six hundred; that of that number about one hundred were in the “Industrial Department” of which a large proportion were issued to persons under lawful age; that the amount which would be realized for the mortuary fund by one assessment, if they all paid, would be about $2400, and that if twenty-five per cent be deducted for the “Tontine Reserve Fund,” there would remain to apply to the payment of a death loss only about $1800, and in spite of which fact the association had been for two years and was still issuing benefit certificates naming therein indemnities of $3000 and $5000 and upwards, and representing that such amounts would be paid upon the death of the -member named in the certificate; that no care had been taken to apply the assessments for the mortuary and tontine reserve funds to the purposes for which they were collected, as required by law, or to keep any account of the same, but that said funds had been applied to other purposes as aforesaid; that as a consequence, of the five death losses which had occurred, only two had been paid and those only in part; that the association was in fact insolvent; that in the face of these facts the association, its officers, trustees and agents, were continuing to solicit and were inducing divers persons to become members of the association, by falsely and fraudulently representing that it was financially sound and solvent, its membership large and increasing, its death losses small and fully paid, and its affairs generally in a flourishing condition, all of which acts and representations were contrary to public policy and to equity and good conscience.</p> <p>Answers to the information and replications were filed, and the cause coming on to be heard on pleadings and proofs, a decree was entered finding the facts to be substantially as stated in the information, and also finding that the interests of the members of the association and the general public required that said association should be dissolved and its effects distributed, and it was thereupon ordered and decreed that said association be ousted of its franchises and be dissolved, and that its effects be distributed equitably, after first paying the costs of this proceeding. A receiver of the effects -and property of the association was appointed, and the officers and trustees of the association were perpetually enjoined from performing- any further duties or exercising any further rights as officers or trustees of the association and from transacting any business in its behalf. From said decree the association and certain of its officers have appealed to this court.</p>

Gwynn Garnett, Judge, presiding. The following statement, prepared by the Appellate Court, brings out the facts sufficiently for the comprehension of the questions discussed by the Appellate Court and this court upon this record: In 1866, A. Nisbet Turnbull, being the owner in fee of certain parcels of land in the city of Chicago, by an indenture of lease, demised to James H., George 8. and Chauncey T. Bowen, five lots, by the following description: “Lots numbered one (1),…

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

G-wynn Gabnett, Judge, presiding. The second, fourth and fifth items of the will of Jerusha Maxwell, deceased, are as follows: “Item 2d—Subject to the above, I devise and bequeath all my property and estate whatsoever, which may belong to me in my own right, at my decease, to the children of Ophelia, the late wife of Joel C. Walter, in equal shares,—the share of Charles Joel to be vested in a trustee for him, as hereinafter provided.

<p>1. Special assessment—amendment of assessment roll. On application by a city to the county court to confirm special assessments of benefits upon lots by the construction of a sewer, the caption to the assessment roll returned by the commissioners appeared as their “asT sessment of a special tax,” etc.: Held, that the designation as of a special tax was a clerical error, and that an amendment of the caption to make it conform to the fact was properly allowed.</p> <p>2. Same—for construction of sewer—assessment limited to benefits. In a proceeding for special assessment of contiguous property for the construction of a sewer, it is the duty of the commissioners to examine the locality where the proposed improvement is to be made, and each contiguous tract of land or lot affected thereby, to determine the amount of special benefits accruing from such improvement, and apportion the cost thereof, not exceeding the amount of special benefits, upon the several lots, in the proportion that they will be severally benefited.</p> <p>3. No lot or tract of land can be assessed any greater sum than it is specially benefited by the proposed improvement. There must be assessed to each lot the special benefit it will derive from the improvement, and if a sufficient sum is not thereby raised to make the improvement, the residue must be paid out of the general funds of the city. A report of the commissioners that they have assessed the expense of the improvement according to the frontage of the contiguous lots, without finding that the special benefits are in that proportion, will not be a compliance with the law.</p> <p>4. Same—basis for ascertaining benefits—correcting assessment. The law has not prescribed what basis for ascertaining the benefits shall be adopted by the commissioners, but ample provision is made for the correction of errors in the assessment. The county court may change, alter or annul the assessment, and when the roll is corrected, it is the duty of the court to confirm the same by its order.</p> <p>5. Same—report of commissioners as to mode of assessment—will not vitiate, where the fact appears. The fact that the commissioners, in their report, gave the frontage of the lots upon the street, or that they assessed against each lot the exact cost of the sewer in front of the same, will not, of itself, vitiate the assessment, when it appears that they determined that the benefit to each lot was equal to the cost of the sewer in front of such lot.</p> <p>6. Same—of the ordinance—sufficiency—former decision. The case of City of Springfield v. Mathus et al. 124 Ill. 90, in relation to the sufficiency of an ordinance for the construction of a sewer by special assessment, is cited and followed.</p>

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

<p>Appeal from 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>

<p>Appeal from the County Court of Iroquois county.</p>

<p>1. Appeal—certificate of importance—whether necessary—and within what time to he given. Where the amount involved in a suit is less than $1000, no appeal lies from the Appellate to the Supreme Court, except upon the certificate of the judges of the Appellate Court that the case is of such importance, on account of direct or collateral interests, that it should be passed upon by this court; and such certificate is a condition precedent to the perfecting of an appeal. This court will not, therefore, continue a cause brought before it by appeal from the Appellate Court, to enable the appellant to procure such certificate.</p> <p>2. The Appellate Court has jurisdiction to grant a certificate of importance only for the period during which an appeal can be taken,— that is, twenty days after the entry of judgment.</p>

Writ óe Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.

<p>1. Lease—uncertainty in description of premises—cured by possession. A lessee, after having executed the lease, having taken possession under the contract and having paid rent under it, can not repudiate the lease merely because it does not definitely describe the demised premises.</p> <p>2. A leased to B premises in the city of Chicago, etc., “known and described as follows, to-wit, the house known and numbered as No. — Thirty-second street,” etc., at a rental of $35 per month, payable in advance, the term to begin January 1,1885, and end April 30,1886. B took possession of the house, and occupied the same till April 12, 1886, paying the rent thereof to the lessor until June 1,1885, and afterward to the assignee of the lessor up to the time he left, except for the month of August, 1885, which he refused to pay, claiming a set-off. On. suit by the assignee, the tenant resisted judgment, on the ground that the lease sued on was void for uncertainty in the description of the house leased: Held, that the possession of the tenant and use of the property leased had the legal effect of removing all uncertainty as to the property intended to be described.</p> <p>3. Paeol evidence—to identify subject matter of written, contract. Extrinsic proof is always competent to identify the subject matter of a contract, if necessary; and this in no way violates the rule that parol testimony is never admissible to contradict or vary the terms of a written contract. The admissibility of parol evidence, in such case, does not depend upon the distinction between patent and latent ambiguities.</p> <p>4. Ebbob will not always bevebse — admission of improper evidence. A judgment will not be reversed because improper evidence may have been admitted upon the trial, when it is apparent that the result must have been the- same had it been excluded.</p>

<p>1. Cloud upon title—in what it may consist. A cloud is the semblance of a title, either legal or equitable, or a claim of an interest in land appearing in some legal form, but which in fact is unfounded, or which it would be inequitable to enforce.' If the claim sought to be removed is valid, and may be enforced, either at law or in equity, it is not a cloud.</p> <p>2. Contract—giving option to purchase land—validity of contract. A written contract by the owner of land, giving the person therein named an option or right, at his election, to pinchase the same at a certain price, and within a time therein specified, if fairly made upon sufficient consideration, is valid and binding. If not otherwise provided, such a contract may be assigned, and is of value to the holder.</p> <p>3. Same—contract for purchase of land—options held in the interest of several—relation between th,e latter. A, the owner of certain options for the purchase of a number of lots of land, transferred the same to B, to be held and used by him on joint account. B gave back a writing, certifying that A was interested in the options assigned by him, and concluding : “B is to hold said options for the joint and equal benefit of A and B. In case B is able to trade for the property, he agrees to give A one-half of the net profits after he has received in full the purchase price, with eight per cent interest on that amount for the time he has held it. The property is not to be sold for less than $175,000 until after May 1,1887, unless by consent of both A and B Held, that when B acquired the lots,' under the options, he held the title in trust, to reimburse himself for the purchase money and interest thereon, and the balance for himself and A in equal shares, and that this vested an equitable interest in A to the lots.</p> <p>4. Same—merger of contract rights—effect of a subsequent contract in relation to same subject matter, but which is abandoned. In the same case it appeared that A and B entered into a contract with 0 in respect of the property, which was based upon the contingency that a hotel company should be organized, with a capital stock of not less than $400,000, and this contract provided that the hotel company should lease the ground from B at an annual rental of $12,000, and taxes and assessments thereon, the lease to run ninety-nine years. Of the rent, three-fourths was to be paid to B and one-fourth to A, so long as B retained the title. The contract gave C an option to purchase the premises, including the proposed lease thereof, at any time before September 1,1887, for $205,000, and provided that if C failed to make such purchase, B might sell the same, and pay himself and divide the balance. The hotel company never, in-fact, organized, except on paper, and C, the principal promoter, proved insolvent, and no lease was ever made of the property: Held, that this tripartite contract having proved abortive from the failure of the enterprise upon which it rested, and being abandoned by all parties, did not have the effect to deprive A of his interest in the lots under the prior contract, and vest the same in B. The latter contract never having taken effect, there was no merger of the prior contract between A and B.</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. Kibe Hawes, Judge, presiding.</p>

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

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

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

'Charles Blanchard, Judge, presiding. The facts in this case are sufficiently stated in the following opinion of the Appellate C8urt: Lacey, J.: “This was a bill brought by the plaintiffs in error, judgment creditors of defendant in error, Osman J. Wilson, in aid of the assignee, for the benefit of the creditors of said Wilson, the assignee neglecting and refusing to bring the suit.

John P. Altgeld, Judge, presiding. Appellee sued appellants in assumpsit, in the Superior Court of Cook county, for the price of stone delivered under a contract, of which the -following is a copy: “Chicago, March 20, 1885. “It is hereby agreed between Enterprise Stone Company of Chicago, Illinois, and J. & J. Titley, of the same place, that for the sum of seven dollars per cord, and the use of a derrick to unload same, provided there are two derricks on dock, Enterprise…

Writ oe Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding. Held: and the deed made by the said George W. Smith, as trustee, to the Calumet and Chicago Canal and Dock Company be also can-celled and for naught held, and the said deed of trust be satisfied and cancelled, and that in default of such payment of the amount of principal and interest due upon said notes, and the taxes and assessments, and…

<p>This was a petition for a mandamus, filed in this court by the relators, Charles A. Dupee, Noble B. Judah and Monroe L. Willard, against Charles P. Swigert, Auditor of Public Accounts.</p>

<p>1. Oruhnaii law—finding a new indictment—to obviate defects in the original. Where defects are found in an indictment, it is proper to apply to the grand jury, and have that body return a new one, avoiding the defects in the first; and it is no good ground of abatement that the former has not been actually discontinued when the latter is returned.</p> <p>2. Same—reasonable doubt. In a criminal case, the court, for the prosecution, told the jury to give the prisoner “the benefit of any reasonable doubt arising out of the evidence in the caseHeld, that there was no error in confining the reasonable doubt to such as should arise from a consideration of all the evidence.</p> <p>3. Same — inferences and presumptions—of instructions in respect thereto. On atrial for murder, the defendant asked the court to instruct, that “while circumstantial evidence is legal and proper evidence in criminal cases, yet no inferences or presumptions should be indulged in by a jury, that do not, in their minds, necessarily arise from circumstances proved,” etc.: Held, that the vice of the instruction was the use of the word “necessarily,” and that it was properly refused.</p> <p>4. On a prosecution for murder, where the evidence was circumstantial, the defendant asked the court to instruct the jury as follows: “And if it is possible to account for the death of the deceased upon any reasonable hypothesis other than that of the guilt of the defendant, then it is your duty, as jurymen, to so account for it, and find the defendant not guilty,”—which the court refused, but it was held that the refusal worked no injury to the defendant, because such instruction was substantially embodied in several others.</p> <p>5. Same—twice in jeopardy—requisites of the plea. A special plea to an indictment of a former jeopardy must show how and in what manner the prisoner was put in jeopardy.</p> <p>6. Same—new trial granted—former conviction no bar. If a new trial is granted on the defendant’s application in a criminal case, the trial will not be a bar to a second trial on the same or an amended indictment.</p> <p>7. Same—calling on defendant before sentence. While it is the better practice to call upon the defendant to say why he should not be sentenced, yet the omission to do so is no ground for a reversal in any case.</p> <p>8. Same—facts sustaining conviction for murder. In this case, the evidence, which is chiefly circumstantial, is reviewed by the court, and held sufficient to sustain a verdict of murder against the accused.</p> <p>9. Evidence — circumstantial. Circumstantial evidence is of two kinds, viz.: Certain, or that from which the conclusion in question necessarily follows; and uncertain, or that from which the conclusion - does not necessarily follow, but is probable, only, and is obtained by a process of reasoning.</p> <p>10. Same—in criminal case—exclamation of (mother in presence of accused. On the trial of one for the alleged murder of his step-son, it appeared that the accused and the .boy went away from their home together. On the return of the accused to the house he found his wife’s brother there. The two walked away in company, and came upon the dead body of the boy. The accused and his brother-in-law came back together, the latter going into the house and informing his sister that her boy was drowned, whereupon the mother exclaimed: “I knew it, I knew it; my heart has ached for two hours. Oh, Alfred!”—the accused. At this point, the latter, who was lingering behind, but in hearing, dodged into the house and caught his wife, and told her to “hush, not take on.” It was held, the exclamation of the mother was admissible in evidence, as giving character to the conduct and the cautionary words of the accused.</p> <p>11. Same—conversation between husband and wife. While the law will not permit husband and wife to testify as to their confidential communications with each other, yet a third person hearing a conversation between husband and wife may give evidence of it.</p> <p>12. PRACTICE-—improper remarles of counsel to jury—time to object— bill of exceptions. If a party desires to assign for error improper remarks of counsel to a jury, against one tried for murder, or the ruling of the court in giving or refusing instructions in regard to such remarks, he must object at the time to the improper utterances, and take an exception, and such objection and exception must be preserved in the bill of exceptions. A copy of counsel’s speech is no part of the record.</p> <p>13. Assignment of ebboe—of that which is favorable to the party complaining. A defendant in a criminal case can not assign for error the giving of an instruction more favorable to him than he was entitled to. On the trial of one for murder, the court instructed the jury, for the People, defining voluntary and involuntary manslaughter. The jury found the defendant guilty of murder. It was held, that the instruction could have had no injurious effect.</p> <p>14. Instetjction—must have some basis in the record. Instructions must be based upon the evidence, and instructions based upon the supposed remarks of counsel, about which the record is entirely silent, and to which the bill of exceptions makes no reference, will not be considered by this court.</p>

<p>Appeal from the Circuit Court of DuPage county; the Hon. C. W. Upton, 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>1. Descents—illegitimates—meaning of the words child” and children." Prior to 1822 the common law in regard to illegitimates had not been modified by statute, and a bastard could not inherit, even from its mother. The words “children” and “child,” when used in a statute, are construed to embrace only legitimate children.</p> <p>2. „ Same—presumption in favor of legitimacy. The law will presume that every child is the offspring of a lawful rather than a meretricious union of the parents, and that consequently the mother, either by actual marriage or by cohabitation and recognition, was the lawful wife of the father.</p> <p>3. Inasmuch as the presumption of the legitimacy of offspring attaches to every child, the burden of showing illegitimacy is cast on those who allege it. Mere rumor is insufficient to bastardize issue, or require positive proof of actual marriage. If the presumption is false, that may be shown by-repellan! facts, otherwise the presumption, from mere filiation, must stand.</p> <p>4. Estoppel—of grantee, as to recitals in deed. The grantee in a deed is estopped to deny the recitals therein, and after the deed is recorded in the proper county, all persons claiming through him will be equally estopped. When such deed names a person as the wife of another, in reciting the grounds for a conveyance, the grantee and those claiming under him will not be allowed to deny the lawful marriage of such person, and bastardize her issue.</p> <p>5. Estate by the cubtesy. On the death of a married woman, in 1832, seized in fee of land and leaving issue, the husband took an estate by the curtesy in the wife’s lands, and the children, the heirs of both, will have no right of entry in the lifetime of the father.</p> <p>6. Tenancy by the entirety—deed to husband and wife. Where the owner of land conveyed the same to “T. 0., and S. 0., his wife, and their heirs and assigns forever,” in 1825, it was held, that the conveyance being to a husband and wife, they took the estate granted as tenants by the entirety, and neither one was capable of claiming or holding adversely to the other.*</p> <p>7. Limitations—color of title—whether acquired in good faith. Where a husband, with both actual and constructive notice of his wife’s title to land, fraudulently procured a decree in a suit to which she was a stranger, under which a deed was made to the husband, of such lands, it was held, that such deed could not be relied on as color of title, because it was acquired fraudulently, and not in good faith.</p> <p>8. Same—when the statute begins to run—as against a remainder-man. Until the death of the life tenant, no statute of limitations will begin to run against the remainder-man, and laches will be imputed to him only from the time his right of entry accrues.</p> <p>9. A party in the actual possession of land may safely lie by until his possession is invaded or his title attacked. Until this is done, laches will not run against him.</p> <p>10. Decree—upon whom binding—parties and privies—who regarded as privies. It is only parties, and their privies in blood or estate, that are estopped by a decree or judgment; and parties to a decree, in the eye of the law, are those only who are named as such in the record, and are properly served with process or enter their appearance. A privy in blood or estate is one who derives his title to the property in question by descent or purchase, and a privy to a judgment or decree is one whose succession to the rights of property thereby affected occurred after the institution of the particular suit, and from a party thereto.</p> <p>11. Same—as to one not a party. A decree of court finding the title to a wife’s land to be in her husband, who files the bill, will not bind the wife when she is not made a party to the suit.</p> <p>* See Cooper v. Cooper, 76 Ill. 57; Almond v. Bonnell, id. 537; Harrer v. Wallner, 80 id. 197.</p>

<p>1. Factor—what will constitute. Where milk is furnished by parties to a manufacturer of butter and cheese, to be made into those commodities and sold by him on their account, he will be the factor of his patrons. The fact that he is to prepare the product for market, will not render him any the less a factor.</p> <p>2. Same—factor may give guaranty as to results. The principal may, by contract, require the agent or factor to guarantee the price of all goods sold, and the factor may guarantee that the property of his principal shall realize a certain sum, and secure this by deed of trust upon his land, or by personal security.</p> <p>3. Same—factor giving his principal’s property in pledge. A factor can not pledge the goods of his principal for his own debt, and if he does so, no title will pass.</p> <p>4. Sale—not a mere bailment. Where the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the "title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at .liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed,—it is a sale.</p> <p>5. Confusion of goods—burden of proof to identify property. If a party unlawfully or fraudulently mixes and confuses his goods with those of another, held by him as an agent or "factor, so that they can not be distinguished, the innocent party will be entitled to take the whole. The burden is upon the party thus confusing his goods with those of another, to identify his own property.</p> <p>6. Deed of trust—description of beneficiaries. It is not essential to the validity of a deed of trust, that the beneficiaries shall appear therein by name. It will be sufficient if they are so described or designated that they may be ascertained and distinguished.</p> <p>7. A deed of trust was given by a dairyman to a trustee, to secure all persons who might furnish milk to be made into butter and cheese, and sold by the maker on their account, but failed to state the names of the beneficiaries who were to be thereby secured: Held, that the beneficiaries were those who should thereafter furnish the factory with milk, to be made into butter and cheese under the grantor’s verbal agreement. In such case, the trust deed is a continuing offer by the maker to all persons who might patronize him.</p>

C. B. Smith, Judge, presiding. This was an action of debt, for the amount of benefits assessed against certain highways. The defendants demurred to the declaration, but the court overruled the demurrer, and the defendants electing to stand by their demurrer, and refusing to answer over, judgment was given for the plaintiffs.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding.

Lorin C. Collins, Judge, presiding. This was an action on the case, brought by Eegina Gattman, against the Hamburg-American Packet Company, to recover damages for the failure of said company to carry a certain box of goods belonging to the plaintiff, from Hamburg, Germany, to the city of New York, and to deliver the same to the plaintiff at New York, whereby said goods became lost to the plaintiff.

This was a proceeding by mandamus, commenced in this court by John Peair, against the Board of Education of Upper Alton school district.

<p>1. Taxation—road and bridge tax—only one assessment in each year. The commissioners of highways are authorized bylaw to make but one levy of road and bridge taxes for each year. When a levy is once made their power is exhausted for that year.</p> <p>2. Same—assessment by the State board—how far conclusive. The decision of the State Board of Equalization in fixing the value of railroad property for the purpose of taxation is quasi judicial in its nature, and can only be questioned for fraud or want of jurisdiction.</p> <p>3. Same—fraudulent assessment—presumption—proof to establish fraud.. Eraud in respect to the assessment of property for taxation is not to be presumed, but must be established by the evidence, or follow as a conclusion of law from the facts proven. No mere discrepancy between the valuation of such property and the judgment of the court in that regard is sufficient to impeach such assessment for fraud.</p> <p>4. Cross-errors—when necessary. The rule is, that unless cross-errors are assigned, objections made by the appellee will not be considered.</p>

<p>1. Negligence—what will constitute. A construction train on a railroad, in approaching a station, made a flying switch, whereby a collision occurred between the tender of the engine and the caboose car, after which the engine moved forward and struck one of the cars standing on a side-track, throwing it forward against a car upon which iron was being loaded by men under a section-boss, without any notice to them. One of the men, in attempting to reach the platform, was struck and killed by the train coming down the track at the rate of eight miles an horn-: Held, that the jury might well infer negligence on the part of the railway company from these facts, and that it could not be said there was no evidence tending to show negligence.</p> <p>2. Same—fellow-servants—whether the relation exists. A section-hand, whose duty it was to repair tracks, etc., under the direction of his section-boss was required to go upon a construction train and assist in unloading rock for ballasting the road. After this was done, the section-hand returned to his station and resumed his labors as such in loading iron on a car on the side-track, and while so engaged was killed by the construction train: Held, that when the accident occurred the section-hand was not a fellow-servant with those in charge of the construction train, and owed no duty to them.</p> <p>3. Appeal'—reviewing facts—negligence as a question of fact. Whether the death of a person was caused by his own negligence or that of the defendant, is a question of fact, not reviewable by this court in an action by the personal representative of the deceased.</p> <p>4. Same—fellow-servants—question of fact—not reviewahle. Whether a servant of a railroad company killed by a construction train is a fellow-servant of those in charge of the train at the time of the accident, is a question of fact, and not one of law for the court, and the finding of the Appellate Court as to such fact is conclusive.</p> <p>5. So in an action against a railway company to recover damages for the killing of the plaintiff’s intestate while engaged as a laborer in loading iron upon a car on a side-track, by a construction train, the defendant asked the court to instruct the jury, that under the facts detailed in evidence, showing the relations of the train crew and the deceased, gnd their association with him at the time of the injury, the deceased and such crew were fellow-servants, and, being such, the jury should find for the defendant, which was refused: Held, properly refused, as, if given, the instruction would have invaded the province of the jury, it being a question of fact whether the crew of the train and the deceased were fellow-servants.</p>

<p>1. Wills—devise vrith limitation over—who will take in remainder— and as to what estate will pass. When a devise is to one and his heirs, or to the heirs of Ms body, it is competent to show that the word “heirs,” or “heirs of the body,” are used as synonymous with the word “children” or “descendants,” and for this purpose every part of the will is to be taken into consideration.</p> <p>2. In case of a devise of the homestead of the testator and a bequest of all his personal estate to his wife for life, and directing that on the death of the wife the homestead shall go to A, Ms youngest son, to have and to hold the same to himself and his heirs forever, in the absence of any other provision in the will showing a different intent, A, the son, will take the fee in remainder, which, upon Ms death before the termination of the life estate, will pass to his heirs.</p> <p>3. But when the will further provides that on the wife’s death the personal property shall be equally divided between the testator’s three sons, A, B and 0, except the household furniture, which the wife may divide among his daughters, and the testator devises another farm to Ms son A, and gives a sum of money with which to buy a farm for his son B, and the will then provides that in case any of Ms sons shall die without heirs of his body, the real estate given to him shall go to his surviving brothers or brother, and his personal property to all the other heirs, equally, and the youngest son, 0, dies before the termination of the life estate, the land devised to him will vest in fee in his surviving brothers, and will not go to his heirs generally.</p> <p>4. Where the death of the first taker is coupled with circumstances which may or may not take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect according to the ordinary and literal meaning of the words, upon death under the circumstances indicated, at any time, whether before or after the death of the testator.</p> <p>5. Where lands are devised to the sons of the testator in severalty, and the will provides that on the death of any of the sons without heirs of hisbody the real estate given to him shall go to his surviving brothers or brother, and on the death of the testator’s wife the personal property given to her for life is to be equally divided between his three sons, this will indicate that the three sons will be alive at the death of the wife, and the death of a son, in the event of which without heirs of his body the real estate is devised over to the surviving brothers or brother, and the personalty to all the other heirs equally, must have been subsequent to that distribution.</p> <p>6. In case of a devise for life to the testator’s widow, with remainder to a son and his heirs, with a provision that in case of the death of the son without heirs of his body, the estate given to him shall go to Ms brothers surviving him, the devise to the son will be of a fee, determinable upon his dying without heirs of Ms body, and the devise over to Ms brothers surviving can be sustained only as an executory devise, for the reason that a fee can not be limited upon a fee.</p> <p>7. Where the devise over is to the survivor or survivors of a class to which the first devisee belonged, as, to surviving brothers, it necessarily means a devise to a person in being at the death of the first devisee, and so must relieve the devise over of the objection of indefinite remoteness.</p> <p>8. Same—estate tail, at common law, only an estate for life under the statute. There are no estates tail in this State, but, on the contrary, when an instrument is executed which would at common law be held as creating an estate tail, our statute declares it shall vest only a life estate in the grantee or donee in tail, and the remainder in fee in the designated heir or heirs.</p> <p>9. Same—construction. In the absence of anything appearing to the contrary, language used in a will must be presumed to have been intended to have the legal effect which the law assigns to it. So, language used, which, at common law, would create an estate tail, must be held to give a life estate in the first taker and a fee in the heirs.</p>

<p>1. Continuance—absence of witnesses — diligence required. On a second application for a continuance by a defendant corporation, on the ground of the absence of material witnesses, officers of the corporation, the affidavit showed that at a prior day of the same term the defendant had all of the witnesses in court ready to testify, they being non-residents of the State. When so present, no attempt was made to subpoena them or efforts made to take their depositions. The case had been continued once before by the defendant, on account of the absence of the same witnesses: Held, that the application was properly denied, for the want of diligence to subpoena the witnesses or take then-depositions.</p> <p>2. Evidence—telegrams—what regarded as originals. Where the person to whom a telegram is sent takes the risk of its transmission, or is the employer of the telegraph company, the message delivered to the operator is the original, and must be produced as the best evidence; but when the person sending the message takes the initiative, so that the telegraph company is to be regarded as his agent, the original is the message actually delivered at the end of the line, and it is primary evidence of the contents of the message sent.</p> <p>3. Same—cross-examination—whether matter is pertinent thereto. In an action by the plaintiff to recover of the defendant for work, labor and services of the former in superintending the erection of an ice house, and cutting, storing and purchasing ice for the defendant, the plaintiff, while on the stand in. his own behalf, was asked by the defendant as to the defendant’s solvency and his own insolvency during the period which intervened between the accruing of the indebtedness and the commencement of the suit. On the plaintiff’s direct examination no question was put to him involving those subjects: Held, that the defendant was not entitled to put the questions relating to its solvency or the insolvency of the plaintiff, as they were not proper subjects of cross-examination.</p> <p>4. In an action to recover, among other things, for the contract price of purchasing, cutting and storing ice, the plaintiff testified only as to the contract price, and not as to the gross cost. On cross-examination the defendant asked him the gross cost of putting up the ice, to which the court sustained an objection: Held, that the court properly refused the question, for two reasons: Eirst, because not a proper cross-examination; and second, because if there was an express contract as to the compensation, the gross cost was immaterial.</p> <p>5. Exception—whether necessary—as to excluded evidence. If a party wishes to assign for error the sustaining of objections to questions put to the other party calling for the contents of a letter which is lost, he should preserve in the record an exception to the ruling of the court, otherwise the propriety of the ruling is not open to review.</p>