Volume 139 — Illinois Reports

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

<p>, Writ of Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.</p>

<p>Appeal from the County Court of McLean county; the Hon. Colartin D. Myers, Judge, presiding.</p>

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

<p>Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.</p>

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

John P. Altgeld, Judge, presiding. This case was commenced by a petition of the city of Chicago for the widening of a street known as Archer avenue, whereby the city sought the condemnation of divers parcels of land, including lots 1, 2, 3 and 4, of block 10, in the South ' Branch addition to Chicago, a subdivision of section 28, in township 39 north, range 14, east of the third principal me.ridian, in the city of Chicago, and made the owners of and persons interested in…

Joseph E. Gary, Judge, presiding. This is an action of assumpsit, brought by Jacob Weidenmann, against the Mount Hope Cemetery… Held: at which the following resolution was passed and entered of record: “Whereas, J. Weidenmann, the superintendent of the association, has refused to obey the instructions of the association as given him at various times' by the executive committee of the association; and whereas, he has not devoted his entire time to the service of the…

<p>Writ of Error to the Circuit Court of Livingston county; the Hon. Alfred Sample, Judge, presiding,</p>

<p>Bank—liability for wrongfully refusing payment of depositor’s check. If a banker refuses to pay the check of a customer drawn in favor of a third person, when the drawer has funds on deposit in the bank sufficient to pay the same, the banker will be liable to such drawer, in an ■action, for substantial damages, without proof of any actual damage, or any malice on the part of the banker.</p>

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

<p>This is a petition in this court for a writ of mandamus. The facts of the ease are stated in the opinion of the court.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, 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. Murray F. Tuley, Judge, presiding.</p>

Henry M. Shepard, Judge, presiding. January 21, 1890, appellant filed his hill in the Superior Court of Cook county, alleging, in effect, that on or about March 1, A. D. 1889, he and appellee entered into an agreement by which they were to secure a ground lease of property in Chicago, “and to secure a loan for the purpose of building upon and improving the same, and to purchase said ground lease,” which, it was averred, was first estimated to cost $150,-■000, but was…

<p>1. Btjeglaey and dabcent—proof thereof—possession of stolen prop-, erty. On the trial of one for burglary, the proof clearly showed, the, burglary and the larceny of a watch at the same time. On the afternoon following the burglary the defendant sold the watch, of the value; •of eight dollars, for one dollar and a quarter, and failed to give a satisfactory account of his whereabouts on the morning of the burglary. He testified that he bought the watch of a stranger for one dollar, and introduced a witness who testified to his purchase of the same for the price of two dollars or two dollars and a half. The reputation of this latter witness for truth and veracity was shown to be doubtful: Held, that the evidence was sufficient to sustain a conviction.</p> <p>2. Possession of the fruits of a burglary immediately or soon after the crime is committed, unexplained, is presumptive evidence that the party having that possession used the means by which the owner was deprived of his property.</p> <p>3. Criminal law—presumption of innocence. On a criminal trial, an instruction that the jury must presume the defendant innocent of the crime charged until the evidence proves him guilty beyond a reasonable doubt, and that “if it is possible, from the evidence, to account for the commission of the crime charged, by some other person than the defendant," is erroneous, and properly refused.</p> <p>4. Witness—in support of reputation of another witness for truth and veracity—competency of witness. The fact that witnesses called to sustain another witness’ reputation for truth and veracity do not know his reputation, and state that they have never heard his reputation in that respect called in question, is not proper to be considered by the jury in determining whether or not the witness proposed to be impeached is entitled to belief.</p> <p>5. The evidence of witnesses in support of another witness whose reputation for truthfulness is impeached, is only admissible because the reputation of that other witness has been assailed, and the rule is, without exception, that the witnesses speaking for or against the one assailed must first state that they know what is generally said of him,, in respect of his character for truth and veracity, by those among whom lie dwells or with whom he is chiefly conversant.</p>

<p>Writ of Error to the Circuit Court of Christian county; -the Hon. Jacob Fouke, Judge, presiding.</p>

<p>1. Eminent domain—jurisdictional facts to be shown in petition in condemnation proceedings. The conditions to the right of a railway -company to exercise the power of eminent domain are, its corporate •existence under the laws of this State, and the fact that it has located' its railway over the land sought, and that it has been unable to agree with the owner, if the owner is competent to contract, upon the compensation to be paid therefor; and these are jurisdictional facts, which must be shown by the petition.</p> <p>2. Same—proof of allegations of petition. While no formal pleadings ■after the petition are proper or allowable, yet if the land owner traverses the material allegations of the petition,—that is, those averments necessary to confer jurisdiction,—the court must determine their truth -or falsity, and whether the facts exist warranting the appropriation of the land for the particular public use proposed, and that the use is a public one. The necessity exists, in all such cases, for the petitioner •to introduce such evidence as will, prima facie, at least, prove the disputed allegations of the petition.</p> <p>3. Same—traversing allegations of petition for condemnation. While -this court has held that no answer or other formal pleading is required •of the defendant, or even allowable, it was not thereby intended to hold that the averments of the petition can not be traversed, or that .such averments are conclusive upon the land owner.</p> <p>4. Same—jurisdictional facts determined by the court. As the jurisdictional facts must exist to authorize such ascertainment by a jury, it follows that the court should, preliminary to the finding by the jury, •determine that the right to condemn in the particular case exists, if -the necessary facts do not exist, the petition should be dismissed; but if they are found by the court to exist, a jury should be impaneled to fix the just compensation. These preliminary questions are to be de-termined summarily by the court, and its rulings will be subject to review.</p> <p>5. Same—discretion of railway company as to amount of land necessary. Every railway company is vested with a large discretion to determine, within statutory and constitutional limitations, the amount of' land necessary for its corporate purposes. In a modified degree such a company is permitted to judge for itself the amount of land it needs. This right is, however, subject to the limitations named, and subordinate to the right of the courts to prevent an abuse of the power.</p> <p>6. Where a railway company locates its railway across a lot, and determines that such lot is necessary for its right of way, in the absence of anything showing, or tending to show, that the taking of the land proposed to be appropriated is unreasonable, this will be held to show, prima facie, the necessity for its appropriation.</p> <p>7. Same—exercise of the power determined by the legislature. The-legislative branch of the government alone determines whether the exigency exists which calls for the exercise of the power of eminent 1 domain, and for its delegation to municipal or other public corpora- ' tions of its creation.</p> <p>8. Same—sole purpose of condemnation proceedings, to determine-compensation. The sole purpose of a condemnation proceeding is to-</p> <p>' ascertain the just compensation to be made to the land owner for the ■property taken, and the statute contemplates the submission of no-other question, in such cases, to the jury.</p> <p>9. Same—evidence of value of land—proof-of voluntary sales. On the-■trial of a condemnation proceeding, evidence of voluntary sales of other lands in the vicinity, and similarly situated, is admissible in-evidence to aid in estimating the value of the land to be condemned but it is incumbent on the party offering such proof to show that the-</p> <p>. lands so sold were similar in locality and character to the land in-, question.</p> <p>10. Same—admissibility of deed to other lands to show value. On a- . proceeding to condemn land for a right of way, the defendant offered, in evidence a deed, for the purpose of showing a sale of property in the locality of that sought to be taken, but no evidence was offered to-show that the sale was voluntary or in good faith, or whether the premises were improved or not, or if improved, the nature and character of the improvements, which the court refused to admit: Held, that the-deed was properly excluded.</p> <p>11. The recital of the consideration in a deed, as between the parties thereto, may be admissible as evidence tending to show the amount paid, but even as between them it is not conclusive. As to strangers, or those not parties to it or in privity with the title, such recitals are but ex parte statements of the parties to the deed, and hearsay, and are not competent evidence.</p> <p>12. Attobnet—right of county judge to practice as. Where one-county judge holds court for another, either from necessity or convenience, while so presiding he is prohibited by the statute from practicing as an attorney in the same court; but the fact that a county judge has some time in the past presided in another court in particular cases will not necessarily disqualify him from afterward practicing as-an attorney in such court.</p> <p>13. Juror—examination on voir dire—acquaintance with an attorney. On the examination of a juror on his voir dire, the court may, in his discretion, allow the juror to be asked if he knows an attorney who is claimed to be directly or indirectly interested in the case, for the purpose of enabling counsel to judge whether he will exercise his right of a peremptory challenge.</p> <p>14. Practice in Supreme Court—error will not always reverse. The-court, in a condemnation proceeding, refused to submit to the jury the issue whether the petitioner was unable to agree with the owner as to-just compensation, but it afterward heard evidence which showed an inability to agree: Held, that if it was error not to try this issue before the hearing before the jury, it was one that did not prejudice the defendant.</p>

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

Writ op Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court «of Champaign county; the Hon. C. B. Smith, Judge, presiding. This was a motion, in the circuit court of Champaign county, to quash an execution.

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court ; of McLean county; the Hon. Owen T. Eeeves, Judge, presiding.

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

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

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit'Court of Ogle county; the Hon. William Brown, 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>1. Practice—of notice of setting cause for trial. On September 22,. 1890, an order of the circuit court of Cook county was entered that all city condemnation cases appearing on the calendars be stricken therefrom, and that all the cases be set for trial before Judge Tut-hili on the first day of the October term, (October 20,) in the order as set-down on calendar of said cases. The particular cause was reached November 5, 1890, on the regular call, and in the absence of defendant, a jury was selected, sent out to view the premises, and several witnesses examined, when the court adjourned. On the opening of court the-next day defendant appeared and moved the court for a venire de novo, which was denied. The order of September 22 was duly published in the Daily Law Bulletin, with the announcement that a calendar of such cases had been prepared for distribution. Defendant’s case appeared in such calendar, and his counsel had a copy thereof: I-Ield, that defendant had sufficient notice that the case was liable to be called for trial, and that the court properly overruled his motion and proceeded, with the trial.</p> <p>2. Same—publishing call of cases in the Law Bulletin—mistake in-name. The fact that there was a mistake as to the defendant’s name in the case, as appeared in an announcement in the La-w Bulletin of the-time the cases were set for call, unless it is shown that t-lie publication was sanctioned by top court, affords no sufficient excuse for the defendant not being present when the case was actually called for trial.</p>

<p>1. Corporations—formed under the laws of two or more States. While several States may not create corporations by joint acts of legislation, there may be corporations chartered by them, respectively, which, under the sanction and by authority of the respective States, may become consolidated, and thereby a new corporation be brought into being, existing under and by virtue of the laws of the several States, and possessing all the rights and immunities of the several corporations consolidated, in the several States in which the constituent corporations were chartered.</p> <p>2. Criminal law—proof of existence of corporation—user. The purpose of the act of 1889, which provides, “that in all criminal prosecutions involving proof of the legal existence of a corporation, user shall be prima facie evidence of such existence,” is to avoid, in the first instance, the necessity of proving the legal existence of the corporation whose property has been stolen, burglarized, etc., and is not confined to corporations organized under the laws of this State. It applies equally to corporations of other States doing business in this State.</p> <p>3. Indictment for burglary—building owned by a corporation organised under two or more States. An indictment for burglary is not necessarily defective because it avers that the room or building burg= larized was that of a corporation organized under the laws of two different States.</p> <p>4. Same—allegation as to building entered. An indictment for burglary charged that the defendant entered “the engine room of” a railway company, “a corporation organized,” etc.: Held, that the indictment was bad in failing to allege that the entry was into a building.</p> <p>5. "Where a railway company occupies no other portion of a building than a room designated as an engine room, if the use thereof by the company is of a permanent and exclusive character, it will be sufficient, in an indictment for burglary, to describe the place entered as a house or building of the corporation.</p> <p>6. Instruction—bad for ambiguity. On the trial of one upon an indictment for burglary for entering an “engine room” of a railway corporation, the court instructed the jury, that if they believed, from the evidence, beyond a reasonable doubt, that the railway company used the railway which conducted the shops in which the engine room was situated, in running their cars over the railroad, as a part of the general system of the company, that is sufficient: Held, that the in- e struction was erroneous, as leaving wholly in doubt as to what facts upon which it was predicated were to be taken as sufficient.</p>

heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. N. J. Pillsbury, Judge, presiding. The Plymouth, Kankakee and Pacific Railroad Company-having been organized for the purpose of constructing, owning and operating a railroad from Plymouth, Indiana, to Bureau.

Writ ok 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 Hon. A. N. Waterman, Judge, presiding.

<p>Appeal from the Circuit Court of Peoria county • the Hon. Thomas M. Shaw, 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 Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorbance Dibell, Judge, presiding.</p>

James A. Creighton, Judge, presiding. This was a bill by appellee, against appellants, to restrain them from obstructing his free use of a roadway.

<p>Appeal from the Circuit Court of Cook county; the Hon. S. P. McConnell, Judge, presiding.</p>

<p>Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county ; the Hon. Alfred Sample, 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. Julius 8. Grinnell, Judge, presiding.</p> <p>This was an action of debt, brought July 17, 1885, upon the transcript of a decree of the Supreme Court of the District, of Columbia, rendered June 17, 1880, in favor of appellant, and against appellee and one Thomas S. Dickinson, now deceased, for the sum of $667,434.21. The defendant filed five, pleas,—first, that the cause of action did not accrue within five years before the commencement of this suit; second, mil tiel record; third, that there was no personal service or appearance of defendant in the court in which the decree was entered, and therefore the court rendering the same had no jurisdiction; fourth, that such decree was obtained by fraud on the part of appellant, consisting in his falsely representing to appellee that he would abandon the suit and take no further steps therein, whereby the latter was induced not to interpose his defense; and fifth, a discharge in bankruptcy, dated November 18,1876, as to all of appellee’s liabilities which existed on November 23, 1871, and his failure to plead the same, induced by and in consequence of the fraud and imposition practiced upon him by appellant, as set forth in the fourth plea. The second and third pleas were afterward withdrawn, and a demurrer sustained to pleas four and five.- A demurrer was overruled as to the first plea. Appellee stood by his fourth and fifth pleas.</p> <p>By leave the plaintiff filed two replications to the first plea: First, the absence of the defendant from the State when the cause of action accrued, and the bringing of the suit within five years after his return to the State; and second, that after the action accrued the defendant departed from the State of Illinois, and resided in the State of New York, and elsewhere out of this State, from June 27, 1880, for about one year. Issue was taken upon these replications, trial had, and very considerable evidence introduced by the parties to sustain the issues on their respective parts.</p> <p>Plaintiff asked several instructions, all of which were refused, and the court gave the following instruction:</p> <p>“The court instructs the jury that the evidence presented in this case is not sufficient to warrant a verdict for the plaintiff upon the issues submitted, and you will therefore find a verdict for the defendant.”</p> <p>The jury returned a verdict accordingly, whereupon the plaintiff moved the court for judgment non obstante veredicto for the amount of the decree, with interest, which motion was overruled. Motion for new trial was also entered and overruled, and the court rendered judgment on the verdict. Exceptions were duly taken to the various orders as they were entered. From this judgment the plaintiff appealed to the Appellate Court, where the judgment was affirmed, and plaintiff below prosecutes this further appeal.</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. Loein C. Collins, Judge, presiding.</p> <p>Certain persons signed articles of incorporation, bearing date June 15, 1881, in which they declare that they associate themselves under an act of the legislature of Michigan, entitled “An act to revise the laws providing for the incorporation of companies for mining, smelting and manufacturing iron, copper, silver, mineral coal and other ores or minerals, and to, fix the debts and liabilities of such corporations,” approved May 11, 1877. They declare the name of the corporation to be the “Chicago Mining Companythat it was formed for the purpose of mining, smelting and refining iron, silver, lead and copper ores and minerals, and more particularly for mining iron ore, upon a parcel of land in the city of Negaunee, county of Marquette and State of Michigan; that the capital stock should be $500,000, in 20,000 shares, of $25 each; that the amount paid in was $50,000, which was paid by the 'assignment by Joseph F. Stevens, to the company, of a lease' of its mining lands in Negaunee, Michigan; that the names of its stockholders, their residences, and number of shares held by each of them, were as follows: John N. Glidden, of1 Cleveland, State of Ohio, owns of said capital stock 3000' shares; William Sturges, of the city of Chicago, State of Illinois, owns 3000 shares; Joseph F. Stevens, of the city of Negaunee, State of Michigan, owns 4000 shares; William S. Calhoun, of said city of Negaunee, owns 4000 shares; Edward Breitung, of said city of Negaunee, owns 1000 shares; James F. Foley, of said city of Negaunee, owns 1000 shares; John Q. Adams, of said city of Negaunee, owns 1000 shares; Henry M. Atkinson, of said city of Negaunee, owns 1000 shares; Joseph M. Gannon, of said city of Negaunee, owns 500 shares;. Louis D. Cyr, of said city of Negaunee, owns 250 shares; Thomas M. Wells, of said city of Negaunee, owns 250 shares; Daniel F. Wadsworth, of Ishpeming, in said State of Michigan, owns 1000 shares; that the business office of the company should be in Negaunee, Michigan, and its business should be carried on in said county of Marquette, Michigan; that there should be seven directors, one of whom should be president and secretary, and a treasurer; that John N. (Hidden, William Sturges, Joseph F. Stevens, William S. Calhoun, James F. Foley, John Q. Adams and Daniel F. Wadsworth were directors for the first year; that the corporation should continue in existence ten years.</p> <p>The first stockholders’ meeting was held June 22,1882, and at that meeting William Sturges was elected president. Other corporate officers were also elected, and an agent was appointed and instructed as to proceeding with the mining business of the corporation. On the next day (June 23) certificates of stock numbered 18, 19 and 20, of 1000 shares each, were issued to William Sturges, and they were afterwards endorsed with assignments by William Sturges to John V. Farwell. On the stubs of these certificates, as also on the stubs of three other certificates of stock for like amounts issued to William Sturges, were written the words “in trust,” bearing date June 25,1881, and on that date a certificate of stock numbered 35 was issued to John Y. Farwell, for 3000 shares. This was in lieu of the' three certificates of 1000 shares each issued to Sturges, and assigned by him to Farwell. When these certificates were., delivered to Farwell does not clearly appear, though they were' delivered some time after the last named date.</p> <p>It is contended by counsel for Farwell, and he so testified, that these certificates of stock were simply pledged to him to secure indebtedness of Sturges, and that he accepted them on pledge, believing, in good faith, that they were fully paid, for to the corporation. It is contended on behalf of appellee, first, that Farwell was an original subscriber for the stock, through Sturges, his trustee; and second, that if he was not, he accepted the stock with notice that only two dollars and a half on the share had been paid, and that he held himself out to the world as owner of the stock, having been elected; director and president of the company, respectively. Farwell denies that he ever held himself out to the world as owner of the stock,.and denies that he ever accepted and qualified as either director or president of the company.</p> <p>Various provisions of the statutes of Michigan, under which the corporation "was organized, and of other statutes of that State claimed to be obligatory upon the corporation and its shareholders, relating to the liability of shareholders for unpaid stock, the mode of enforcing such liability, and the mode of transferring shares of stock and the consequent liability, were read in evidence and are copied in the record; and it is contended by counsel for Farwell, and the Appellate Court so held, that the remedy thus provided by statute for collecting the balance due on unpaid shares of stock is exclusive of all other remedies, and so is a denial of that sought here. It is also contended by counsel for Farwell, that being a Iona fide pledgee of stock, without notice that it was unpaid, he is protected from all liability on account of its possession.</p> <p>Daniel F. Wadsworth was a director in and he was also treasurer of the corporation, from its organization until July 7, 1883. He kept no books as treasurer,. but carried the account of the transactions of the corporation in the private books of the bank, whereof he was part owner and manager. He was thoroughly familiar with all the business and transactions of the bank, and he remained the owner of 1000 shares of the stock of the corporation until after a period when he says it became insolvent and ceased to do business, and then transferred 900 of them to a clerk under him, for a nominal consideration, only. Wadsworth did a banking business with Harvey Diamond, at Negaunee, Michigan, under the firm name of D. F. Wadsworth & Go., from 1881 until in 1883. After the organization of the Chicago Mining Company, and before June 9, 1883, that company became indebted for advances to the firm of D. F. Wadsworth & Co., for which, on the last named date, they obtained judgmerit for $14,590.79 in the circuit court of Marquette county, Michigan. Execution was issued upon that judgment and levied upon certain property of the corporation, which was sold for a sum which reduced the amount due on the judgment to $12,363.29. On the 9th of November, 1883, William Sturges filed a bill in chancery in the circuit court of Marquette county, Michigan, against the Chicago Mining Company, Daniel F. Wadsworth, Harvey Diamond, and others, to review and set aside this judgment and to settle the affairs of the corporation. The appearance of -the defendants was entered, a receiver was appointed, and the suit is still pending in that court. Suit was commenced by Wadsworth and Diamond, on the record of their judgment in the circuit court of Marquette county, Michigan, against the Chicago Mining Company, in the circuit court of Cook county, to the November term, 1883, of that court. The Chicago Mining Company subsequently appeared and pleaded to the action, and judgment was rendered therein, in favor of the plaintiffs, on the 23d of January, 1886. Execution was issued upon the judgment, which was afterwards returned by the sheriff unsatisfied.</p> <p>The present bill was filed on the 9th day of November, 1886. It makes John Y. Farwell and David Irwin defendants; but since the circuit court dismissed the bill as to Irwin, it is unnecessary to notice any allegations affecting him. The bill is a creditors’ bill, and seeks to enforce payment of the amount of complainants’ judgment from Farwell and Irwin, because of the unpaid stock held by them. Farwell and Irwin were personally served with summons; but the sheriff returned that the Chicago Mining Company could not be found in his county.. Thereupon there was filed- an affidavit that the Chicago Mining Company was non-resident, and notice was given it by publication. The Chicago Mining Company did not enter its appearance and make any defense, and decree was entered against it pro confesso. On hearing, the court decreed against Farwell, in conformity with the prayer of the bill. Farwell appealed from that decree to the Appellate Court for the First District, and that court reversed the decree of the circuit court and remanded the cause, with direction to dismiss the bill. This appeal is prosecuted by Young and others, volunteer assignees in bankruptcy of D. F. Wadsworth & Co., who were substituted in the record for D. F. Wadsworth & Co. as complainants.</p>

<p>Writ of Error to the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.</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 Hon. Richard S. Tuthill, Judge, presiding. This is an action for libel.

<p>Appeal from the County Court of Adams county; the Hon. B. F. Serbian, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on ivrit of error to the Circuit Court of Gallatin county; the Hon. C. C. Boggs, Judge, presiding.

<p>Writ of Error to the Circuit Court of Pike county; the Hon. Charles J. Scofield, Judge presiding.</p>

<p>1. Chattel mortgage—made after maturity of notes—extending the• time of payment. A chattel mortgage was given to secure six promissory notes, all of which were past due, except one, which fell due about two months after the date of the mortgage. The mortgage provided that if the mortgagors should, on or before two years from its date, well and truly pay their respective notes, (describing them,) then the mortgage should become void: Held, that this provision in the mortgage did not extend the time of payment of the notes, and that the failure of the mortgagee to take possession of the chattels upon default of payment of the note last falling due, rendered the transaction fraudulent as to creditors of the mortgagors.</p> <p>2. Same—possession, of chattels by mortgagor, after maturity—fraud per se. Where the mortgagor is allowed to retain possession of the chattels after the maturity of the notes secured by the mortgage, such possession will be considered fraudulent as to creditors and purchasers-■of the mortgagor; and evidence of an outside agreement to extend the time of payment is not admissible in aid of the mortgage, as no collateral agreement between the mortgagor and mortgagee can make the continued possession of the mortgagor consistent with the mortgage.</p> <p>3. Although a chattel mortgage may authorize the retention of the possession of the property by the mortgagor, the mortgagee, upon default of payment of the notes secured, must change the possession of the chattels to himself within a reasonable time thereafter, and a failure to do so is a fraud per se, not subject to explanation.</p> <p>4. The indebtedness described in a chattel mortgage can not be due in the sense that the creditor may enforce its collection, and. at the same time not due, for the purpose of justifying him, as mortgagee, in leaving the mortgaged chattels in the possession of the mortgagor.</p>

<p>Writ of Error to the Appellate Court for the Second District ;—heard in that' court on appeal from the Circuit Court •of Ogle county; the Hon. William Brown, Judge, presiding.</p>

<p>Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Bock Island county; the Hon. John J. Glenn, Judge, presiding.</p>

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

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. 0. H. Horton, Judge, presiding.</p>

M. F. Tuley, Judge, presiding. A drainage district was organized within the village of Hyde Park, in Cook county, and drains were made and maintained in certain of the village streets therein by special assessment, •pursuant to ordinances of the village.

<p>1. Payment of money—presumption as to cause. Where one pays money to another and there is no explanation of the cause of payment, the ordinary presumption is that the money was paid because it was due and owing, and not by way of a loan. This is undoubtedly the rule when only business relations exist between the parties, but when other-relations exist a different presumption may arise.</p> <p>2. Same—to wife or to child-^presumption. Where a husband hands money to his wife, or a father to his child still dependent upon him the presumption naturally arising is, that the act is in performance of the legal obligation resting upon the husband or father to maintain and support the wife or child, or in obedience to the affection naturally growing out of the relation, and in such cases the transaction isprima facie a gift, and not a payment or loan.</p> <p>3. Same—by wife to husband—presumption. While the statute vests a married woman with most of the legal capacities of a feme sole, it does not so far abrogate the marital relations as to lay a foundation for a presumption that the mere handing over of a sum of money by a wife to her husband is a loan, thus creating between them the relation of debtor and creditor.</p> <p>4. A wife filed her claim against her husband’s estate for moneys-alleged to have been loaned to him, and the only evidence in support of the claim was that of a witness that, some eight or nine years before, he saw the wife hand to her husband two different sums of money, amounting to $3500. There was no proof as to whom the money be longed, or as to the circumstances or occasion of her handing it to him r Held, no error to instruct the jury that there was no evidence tending to prove the wife’s right to recover.</p> <p>5. Limitation—plea of, in probate court. No formal pleadings being required in the probate court, the Statute of Limitations will constitute a defense to a claim against an estate without being specially pleaded, in the absence of evidence tending to take the case out of the statute, or to bring the case within any of the exceptions therein contained.</p> <p>6. Bmli of exceptions — decision on motion for continuance — how preserved for review. In order to bring up the decision of the court on a motion for a continuance for review on appeal or error, the motion, the grounds upon which-it is based, the decision of the court thereon, and the exception to such decision, must be made to appear by bill of exceptions. The entries on the record by the clerk in relation to such a motion do not preserve the same in the record.</p> <p>7. Pbactice in Supbeme Cotjbt—evidence not preserved by bill of exceptions. Where the bill of exceptions contains no evidence of certain entries in a book as to the réceipt or loan of money, their sufficiency to establish a right of recovery can not be considered by this court.</p>

<p>1. Chancery practice—motion for leave to file intervening petition after bill is dismissed. A husband and wife gave a mortgage on real estate of the latter, to secure a debt of the former, which contained a .power of sale. The wife filed her bill to enjoin a sale, on the ground that the debt was paid if the usury paid was deducted. The husband was not made a party. The court, on a stipulation of the wife, dismissed her bill. At the same term the husband appeared and made an oral motion to set aside the order of dismissal, and to allow him to intervene in the case as co-complaiuant. No disposition was made of this motion for several terms, when it was overruled, on the ground it was shown that the wife was not of sound mind when she signed the stipulation to dismiss: Held, that the husband had a right to intervene as a complainant, and that the court erred in denying his motion.</p> <p>2. A person interested in the subject matter of a bill, who is a necessary party, has the right, on his motion, to intervene and become a party to the suit, even after the bill has been dismissed under a stipulation of the complainant, when his motion is made at the same term the suit is dismissed.</p> <p>3. One having the right to be made a party to a bill in chancery, necessarily retains the right to move the court to become such upon the record at any time the case is within the control of the court.</p> <p>4. Same—motion instead of writ of error coram nobis. A motion may be made instead of suing out a writ of error coram nobis, at the same term at which a decree is rendered, to correct errors which at common law could be corrected only upon the return of that writ. During the term at which the decree is rendered the case is within the control of the court.</p> <p>5. Same—motion—continued by operation of law. Where a motion of a person interested, to intervene and become a party to a suit in chancery, is not decided by the court at the term when made, it will be continued, by operation of law, from term to term, till decided.</p> <p>6. Same—affidavit in support of motion. The presenting of a petition at a succeeding term, seeking the jsame object as by the oral motion, will not supersede such motion. Affidavits in support of the motion will be in time if presented at the term when such motion is considered and decided.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, 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. Oliver H. Horton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Mason county; the Hon. George W. Herdman, Judge,' presiding.</p> <p>This was an information in the nature of a quo warranto, filed on the 5th day of April, 1889, in the Circuit Court of Mason county, on the relation of James M. Samuel, Sr., charging Mark Cooper, Andreas Furrer and William H. Buchanan with having unlawfully usurped and intruded into, and with unlawfully holding and executing the office and franchise of commissioners of the Central Special Drainage District in the county of Mason. The information contains six counts. The first count alleges, in substance, that the defendants, on the .first day of December, 1888, and on divers other days within eighteen months prior to the filing of said information, unlawfully held and executed and still hold and execute the franchise and office of commissioners of said Drainage District, and during all that time have unlawfully usurped and intruded into and do so usurp and intrude into said franchise and office, contrary to the statute, etc.</p> <p>The second count alleges that the defendants, on the 20th •day of November, 1888, and on divers other days during said period of eighteen months, have unlawfully acted within this State as a corporation, to-wit, as the corporation of the commissioners of said drainage district, without being legally incorporated, and still do unlawfully act as such corporation without being legally incorporated, contrary to the statute in such case made and provided and to the damage of the People <of the State of Illinois, and especially to the damage of the relator in this: that he is a resident and tax-payer in the ■town of Sherman in said county, owning and residing on his farm, to-wit: (describing a farm consisting of about 140 acres of land lying mostly within said town), on which said farm said defendants, claiming to act as such corporation, did, on the 20th day of January, 1888, at said county, as commissioners of such corporation, levy a heavy assessment for constructing drains in said district, amounting to, to-wit, $800, •and being in addition to a former assessment for said purpose for, to-wit, $5000, that they had as such commissioners then and previously imposed thereon, without corresponding benefits therefor, for which assessments installments became due ,and payable according to the terms thereof; and to obtain payment of which, said defendants, on, to-wit, the 1st day of December, 1888, proceeded to collect from said farm by levies, suits, prosecutions and sales, and threaten to so collect the-same in their assumed capacity of commissioners as aforesaid, notwithstanding the relator has received and can expect, to receive little or no benefit therefor, and none commensurate with the amount thereof. Also, in that the defendants, assuming to act as such incorporated commissioners, have take» possession and appropriated to themselves a large ditch dug by the relator through and across a part of his said farm at a cost to him of, to-wit, $2500, and have not paid or offered to. pay or in any manner compensate him therefor, though he-has often requested them so to do. Also, in that the defendants, assuming such authority as commissioners, have filled up and rendered useless another large ditch dug by the relator across another portion of his said farm to an outlet to drain said farm, at a cost of, to-wit, $2000, and have paid him nothing therefor, though often requested so to do. Also, i» that the defendants assuming authority as such commissioners, in the drainage of the relator’s farm, have cut off from the north-west corner thereof, by a ditch forty-five feet wide and ten feet deep, about seven acres of land, without giving or offering him any compensation therefor, though often requested so to do. Also, in that the defendants are otherwise harassing and damaging the relator in their assumed capacity as such corporate commissioners, unlawfully and with malicious intent, to-wit, in said county.</p> <p>The third count alleges that said defendants, for said period of eighteen months, have, and still do, intrude into and usurp and hold, and unlawfully execute the franchises and offices of commissioners of said drainage district, and so have and still do claim to act as said corporation, without being legally incorporated, and so have and still do use and exercise as such-corporation powers not conferred by law, and so have and do claim to hold and exercise privileges improperly and without .warrant of law, to-wit: the powers and privileges of assessing ¡the lands and property of the relator and others over whom said defendants claim jurisdiction for that purpose as in said district; of appropriating and taking exclusive possession of the ditches and property of the relator and others without giving or offering just compensation therefor; of taking the lands of the relator and others without such compensation; of filling up the ditches and injuring the drainage of said relator and others; of levying on and selling the lands and property of the relator and others to pay said illegal assessments, claiming jurisdiction as aforesaid for all said purposes only from and by pretended elections by persons owning lands within the claimed and alleged bounds of said alleged district, which persons are not and then and there were not citizens of the United States, entitled to vote under the Constitution and laws of this State, but were females, foreigners and minors, and which pretended elections were held in pursuance of section 54 of an act of the Legislature of this State entitled, “An Act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named,” approved June 27, 1885, which section of said act is, as relator and this information show, invalid, illegal and contrary to the Constitution of this State, as giving to those who are not electors in said State the right to vote for and elect drainage commissioners of special drainage districts, with large powers to assess, tax, condemn and take away private property, such commissioners not necessarily being, under said enactment, citizens of the United States or voters under said Constitution, and said act is believed to be in many other respects unconstitutional and void, whereby said privileges and powers claimed and derived as aforesaid, and still claimed and exercised by the defendants, are and were improperly and without warrant, of law, so exercised by them, as coming from and being granted by and under the choice of unauthorized persons at said pretended elections held at said county on the third Tuesday of November in the years 1888, 1887 and 1886, and December 15, 1885, and at divers other times, under which elections said defendants claim to hold the office of commissioners as aforesaid, and as coming from and being granted by said unconstitutional law, and said elections held and conducted thereunder.</p> <p>The fourth count alleges that the defendants, in said county, for said space of eighteen months then last past, had unlawfully executed said franchise and offices of commissioners of said alleged drainage district, and claim to hold and exercise the powers and privileges aforesaid over said lands, drains and property of the relator without right, title and due authority of law, in that the proceedings in and by which it was attempted to extend the jurisdiction of said alleged commissioners over said lands, drains and property of said relator were illegal and not according to the statute in such case made and provided or the Constitution of the State, and especially the petition,to extend the area of the alleged original district so as to include said lands of the relator was not signed by the requisite number of adult property owners of the land lying in the district as proposed to be enlarged, neither did said petition set forth the boundaries or describe the tracts of land, or contain the statements required by the drainage law, nor was notice of the presentation of said petition required by said law given and published as therein required, either as to form or time of notice. i That the notice given required those interested to appear before the defendants as commissioners, they being interested parties and having themselves gotten up said petition and secured the signers thereto; that upon such petition they made or attempted to make the annexation of said land, without the intervention of any other court or tribunal, well knowing that many of the signatures to said petition were fraudulent, and not those of adult bona fide land owners, and that if the petition had been freed from said fraudulent signatures, it would not have been signed by the number of landowners required by said statute; that the proceedings of the defendants were otherwise irregular and void in that they did not hold an adjourned meeting to hear objections, or themselves go on the land and make report with plans and specifications to such adjourned meeting, as required by section 52 of said act, but made the pretended annexation at the first meeting; that the proofs of publication as required by said act were not filed at or before said meeting; that the notices of said meeting were not posted or mailed as required by said act; that the order of annexation was informal, uncertain and contrary to the statute; that the lands of the relator so attempted to be annexed are and were not of the class specified by said act, viz, wet and overflowed lands needing drainage more than they already had, or that would or could be benefited thereby, inasmuch as the relator had made all necessary or useful drains on and for said land, with sufficient outlets for their complete drainage, before said pretended district was attempted to be enlarged over them, or attempted to be formed. That said assessment proceedings were contrary to the rights of the relator, in that no notice of the making or filing of the assessment roll was ever given, and the relator never in fact had an opportunity to contest the same, or show that the assessment exceeded the benefits to the land, as in fact was the„case; in that the taking of the relator’s drains and ditches without having givén or offered him any compensation therefor, or for the work, labor and expense of constructing the same, amounting to more than $2000, was and is contrary to the statute, and exceeded the powers of the defendants; in that the filling up of the relator’s ditch as aforesaid, thereby turning the surface water back on relator’s land without providing means for its escape, was likewise in excess of their powers, and the taking and cutting off of the relator’s land as aforesaid without giving him compensation or damages therefor was also in excess of their powers; that they have trespassed upon and appropriated the lands of the relator by piling dirt taken from their ditch without authority, all of which the defendants have done for said period and are still doing, under the assumption by them of authority as such commissioners.</p> <p>The fifth count alleges that the defendants, for said space of eighteen months, have unlawfully held and exercised said franchise and offices, and still do hold and exercise the same unlawfully, assuming the powers, authority and privileges as aforesaid, especially the power of making and collecting assessments on the lands of or within said alleged district, and especially over the lands of the relator; that the first assessment on the said lands was for a total of $113,862, made December 2, 1886, without notice or chance of appeal or chance in fact to show, as is the fact, that the proportion of said assessment levied on relator’s land far-exceeded and exceeds the benefits of any and all ditches made or proposed by said alleged commissioners ; that notwithstanding this, the defendants, on, to-wit, January 2, 1888, made another assessment on the lands claimed to be in said district, including the lands of the relator, amounting to $17,070, without notice or any chance of contest or appeal. Also that said second assessment is beyond all benefits or claim of actual benefits derived from said ditches made or proposed, so far as the relator’s land is concerned; that to collect the first installment of said §rst assessment, said commissioners, in August, 1887, commenced .and have prosecuted a suit in chancery against the relator and his wife for the proportion levied on relator’s lands, according to the scale of benefits imposed thereon by the defendants; that in said ease said alleged commissioners succeeded, by a breach of a stipulation between their attorney and the relator’s attorney, in getting a default and decree in the Circuit Court of Fulton county to which the suit had been removed, without the knowledge of the relator until too late to have the same set aside on motion; that the relator has filed his bill in the Circuit Court of Mason county to have said decree set aside; that under said fraudulent decree, the defendants have caused all the relator’s lands to be sold by the master in chancery of •Mason county to one Wallace, one of the attorneys of said commissioners; that said lands were in fact purchased by said Wallace for and on behalf of said pretended eommis•sioners which transaction is in excess of the powers and authority of said defendants and therefore illegal and void; •all of which actings and doings of the defendants are contrary to the form of the statute, etc.</p> <p>The sixth count, which was subsequently filed, “by leave of 'the court, as an additional count, alleges, that the defendants have, during said period of eighteen months and longer, been ■and still are, usurping, intruding into and unlawfully holding and executing the offices and franchise of commissioners of the Central Special Drainage District in the county of Mason, ■and claiming to hold and exercise the powers, privileges and franchises aforesaid, and exercising the same as aforesaid, without being legally entitled so to do, and without warrant ■of law, and without being legally incorporated as such incorporation, having such franchises, privileges and authority, and that the statute under which only they claim or ever have ■claimed the right to act, to-wit, “ The Act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named,” approved June 27,1885, is nugatory and void to confer said powers, privileges and franchises, be■eause it is in conflict with the Constitution of the United States, in authorizing the annexation of new areas of land to drainage •districts already formed by the commissioners of such district without requiring notice of such annexation to be first given to all whose property is affected or liable to be affected thereby ; in authorizing such annexation to be made by the commissioners of such district, an interested tribunal, without giving any appeal from their decision; in authorizing assessments to be made on the lands of citizens without first giving them notice thereof and ample chance and time to show that such lands can not be benefited to the amount of such assessments by the drains, ditches and improvements for which such assessments are made; in subjecting the property of such citizens to such assessments by a corporation essentially private,, and composed of persons and having for its electors persons not required by the statute to be citizens or voters of said State or of the United States, having private purposes for its object,, and proceeding after the manner of a private corporation and not being a municipal body, and authorizing taxation of the lands of the district belonging t.o such citizens by such corporation, and without any practical limit of such taxation to the-benefits to such lands; and that by said unconstitutional provisions of said statute used and exercised by the defendants,, in assuming to annex the relator’s lands to said district, and in levying such assessments, without notice to the relator, the-relator has been and is damaged, and other good and lawful citizens of the United States and of this State have been and are damaged and oppressed.</p> <p>A general and special demurrer to the several counts of said petition having been interposed by said defendants, said demurrer was sustained to the second, third, fifth and sixth, counts, and overruled to the first and fourth counts. To said first and fourth counts the defendants filed five pleas. The first plea sets out in detail the proceedings commenced October 21, 1885, in the County Court of Mason county, under the-Drainage Act of June 27, 1885, for the organization of said special drainage district, embracing lands situate in at least three towns in said county, said plea showing the taking of' each of the several steps and proceedings prescribed by said Drainage Law for the full and complete organization of said-district and the election and qualification of said defendants. as the commissioners of said district, and their entry upon the-duties of their office. Said plea also alleges the presentation to said commissioners, on the first day of May, 1886, of a petition for the enlargement of the boundaries of said district by attaching thereto new areas of land which were involved in the same system of drainage and which required for outlet®. the drains of said district, the lands of the relator being included in the territory thus sought to be annexed to said district, and the plea alleges the taking of each of the several steps and proceedings required by said Drainage Law for the-proper enlargement of said district by the annexation thereto-of said lands. It also alleges the subsequent election and qualification of the defendants as such commissioners, as their terms of office severally expired, in manner and form as provided in said Drainage Law, so as to vest them with the title to said office at the time of the commencement of this suit.. To said plea the state’s attorney filed two replications, one-containing a general traverse of all the allegations of the plea, and the other traversing its allegations in detail and setting-up certain irregularities and insufficiencies in the proceedings-for the organization and for the enlargement of said district,, and in the elections of said commissioners, and among them, that at said elections, women voted and determined the result thereof. Issue was taken on said replications.</p> <p>The second plea alleges, in substance, that the information-is prosecuted at the special instance and for the benefit and advantage of the relator, and that at the hearing and determination by said commissioners of the petition for the enlargement of said drainage district, the relator appeared in person and by attorney and interposed and filed exceptions to said petition and resisted the granting of the prayer thereof, and that such proceedings were then and there had in the matter of said petition and the relator’s exceptions thereto, that it was found by said commissioners that the material facts stated in said petition were true, and that the prayer of said petition should be granted, and that an order to that effect was thereupon made by said commissioners, whereby the relator’s exceptions were disallowed and overruled and the validity of said-proceedings adjudicated and determined, and that said order of said commissioners still remains in full force and effect.</p> <p>The third plea alleges, in substance, that said information •is prosecuted at the instance and request and for the special benefit and advantage of the relator; that after the entry of the order for the enlargement of said drainage district, several ■of the owners of the land within the area attached to said district, the relator being one, entered into a mutual agreement in writing, by which they agreed with each other, that they would prosecute or cause to be prosecuted the proper legal proceedings for quashing, annulling and avoiding the record -of the said enlargement of said district, and would contribute and pay the necessary expenses thereof, and that thereupon and in pursuance of said agreement, a writ of certiorari was sued out of the Circuit Court of Mason county, directed to said •commissioners, commanding them to certify and bring up to said court the record of the said proceedings for the" enlargement of said district; that said proceedings were thereupon •duly certified to said court, and that afterwards, on motion of said commissioners, said writ of certiorari was quashed by said •court, and that on appeal by said land owners to the Appellate ■Court said order quashing said writ was in all things affirmed.</p> <p>To said second and third pleas a replication was filed alleging that the information was presented and was being prosecuted by the state’s attorney, in the name and by the authority -of the People of the State of Illinois, under and in pursuance ■of the statute in such case made and provided, against the defendants because of their unlawful acts by them done and performed, and not for the cause in said pleas alleged. A further application to said third plea denies that the parties therein named, in pursuance of any agreement between them, ever commenced or carried on any prosecution in the name of the People of the State of Illinois against said defendants or either •of them for or on account of the illegal acts complained of in the information, and that the proceeding set up in said plea by way of estoppel was only a civil proceeding to bring the record of the action of said commissioners on the petition to. enlarge said district before said court for review. To both of said replications a similiter was added.</p> <p>The fourth plea alleges that said information was filed and is prosecuted at the special instance and procurement and for the sole benefit and advantage of the relator; that to procure a right of way 120 feet wide and 920 feet long for the main outlet ditch of said district, and which runs across a certain tract of land owned by the relator and included within the area of land attached to said district by said extension of the boundaries thereof, said commissioners impleaded the relator in the County Court of Mason county, in a suit for the condemnation of said right of way and the assessment of damages therefor to the relator, in which suit the relator made default, and thereupon such proceedings were had in such suit that it 3 was considered by the court that the relator have and recover of said commissioners for his said damages the sum of $10, which was tendered to said relator, and that to procure another right of way for one of the other ditches of said district across another tract of land owned by the relator which was also included within the lands attached to said district as aforesaid, said commissioners impleaded the relator in another suit in said County Court for the condemnation of said last mentioned right of way, and the assessment of damages to the relator therefor, and that the relator appeared in said suit both in person and by attorney and maintained and defended his rights and urged a recovery of damages therein, and that such proceedings were had in the latter suit that it was considered by said court that the relator have and recover of said commissioners for his said damages the sum of $500 and also the costs of said suit, and that said damages were afterwards tend jred to said relator by said defendants, and the defendants aver that the relator is thereby estopped and barred from calling in question or assailing the validity of the extension of the boundaries of said district and from prosecuting said writ of quo warranto.</p> <p>The fifth plea alleges that said information and writ of quo warranto are prosecuted at the special instance and procurement and for the sole benefit of the relator; that the relator owned and still owns lands, and resided and still resides in said district, and that mainly to procure the necessary funds with which to construct the combined system of drainage in said district, a classification of the lands and premises in said district having been made out and confirmed, said commissioners, according to their best judgment, ordered that the sum of $113,862 be raised by special assessment upon the lands of said district which were benefited; that in the judgment of said commissioners the payment of said tax for the completion of said work would be too heavy a burden upon the owners and persons interested to pay in time to be used in said work; that thereupon, after said levy had been made, said commissioners postponed the payment thereof not longer than fifteen years from the date of said levy; that for the construction of said proposed work, said commissioners borrowed of divers and sundry persons the sum of $92,000, and secured the payment thereof by the bonds of said district, bearing interest at not to exceed seven per cent per annum, which said bonds became and are a lien on said assessment or levy, upon the faith and credit of which they were issued; that said bonds are owned by divers and sundry persons who are innocent holders thereof, and that with said moneys so borrowed, and other moneys, said commissioners in the years 1887 and 1888 constructed said combined system of drainage in said district, at an expense of about $115,000, of all which the said petitioners, as well as the said relator, had full notice and knowledge, and interposed no objections thereto, and acquiesced and encouraged the same, and the defendants therefore aver that the petitioners and the relator are estopped and barred thereby from prosecuting their information and writ.</p> <p>To the fourth and fifth pleas a replication was filed alleging, that it is not true that the information was filed and is prosecuted at the special instance and procurement and for the sole benefit and advantage of the relator, but that it was commenced and is carried on by the state’s attorney in the name and by the authority of the People of the State of Illinois and on their behalf, for and on account of the wrongful acts of the defendants against the peace and dignity of said People.</p> <p>A further replication to said fifth plea alleges that the relator never accepted or took from the defendants said damages alleged to have been awarded to him, but has always refused to recognize the defendants receiving or holding the office or franchise of commissioners of said drainage district.</p> <p>A further replication to the third, fourth and fifth pleas alleges, that this prosecution was commenced and is carried on in the name of the People of the State of Illinois against the defendants for usurping, intruding into and unlawfully holding and misusing the offices and franchises of commissioners of said drainage district and for no other reason or behalf, and that the matters and things in said pleas alleged as and for an estoppel of this prosecution, were not done or adjudicated by and between the parties to this suit, or in any suit or proceeding where said People in their sovereign capacity were a party, and that in none of said pj oceedings was or could the question be raised or adjudicated whether the defendants had usurped, intruded into, unlawfully held or had misused the franchises or offices of commissioners of said drainage district.</p> <p>A further replication to said third, fourth and fifth pleas expressly denies all the matters and things in said pleas alleged. Upon all of said replications issues of fact were taken.</p> <p>The cause coming on to be heard, the parties, by stipulation, waived a jury, except as to the issues expressly submitted to the jury by the court. The issues thus submitted consisted of those raised by the second replication to the defendant’s first plea. Said issues were formulated in said replication in eleven separate clauses, and they were submitted to the jury in the form in which they there appear, with the addition to each of the words: “Was it or was it not true ?” The issues thus submitted were as follows:</p> <p>“Clause 1—That the petition for the original formation of said drainage district was signed, and notice of the hearing thereof given, and the form and contents of said petition and notice were as required in and .by said act to provide for drainage for agricultural and sanitary purposes, concluded in said plea, Was it, or not, true ?</p> <p>“Clause 2—That the election for commissioners vouched in said plea, and each of them, or any of them, were and are a warrant for the action and doings of said defendants complained of in said information, because at said elections, and each of them, women voted and determined the result thereof contrary to the constitution and laws of the United States of America and laws of Illinois. Was it, or not, true?</p> <p>“Clause 8—That the petition for the enlargement of said district was signed, and notice of the hearing thereof given, and form and contents of said petition and notice are and were as required in the above mentioned act. Was it, or not, true ?</p> <p>“Clause á—That the new area of land so attempted to be added to said district did require for outlet the drains, or any drain, of said district made or proposed to be made, hut large tracts thereof had sufficient drainage and outlet before the said formation or alleged formation of said district. Was it, or not, true ?</p> <p>“Clause S—That there were several infant owners of lands in said new areas proposed to he attached, at the time of said meeting of said acting commissioners and their alleged annexation of said areas; that said infants were notified of said meeting, or represented thereat by guardian or otherwise, and said acting commissioners had jurisdiction to annex their said lands, or any lands in said new areas, without such representation. Was it, or not, true ?</p> <p>“Clause 6—That there were persons owning lands in said new areas under guardianship, not represented at such meeting by their said guardian, and over whose lands said acting commissioners acquired no jurisdiction for annexation purposes. Was it, or not, true ?</p> <p>“Clause 7—The said commissioners did go upon said lands proposed to be annexed, and report to an adjourned meeting as required in said act. Was it, or not, true ?</p> <p>“Clause 8—That the petition for annexation was signed by a majority in number of the adult owners of land lying in the new area proposed to be annexed, or of the district as proposed to be enlarged, owning in the aggregate more than one-third thereof, or either thereof, or by the owners of the major part of the lands constituting one-third or more of the owners of the land in said new areas or said district as proposed to be enlarged. Was it, or not, true ?</p> <p>“Clause 9—That large areas of land in said new areas were not benefited at all by the ditches made or proposed to be made by said district, and have not been so benefited, though assessed therefor. Was it, or not, true ?</p> <p>“Clause 10—That the new areas of land, and large portions thereof, were not involved in the same system of drainage as that proposed for said original district. Was it, or not, true ?</p> <p>“Clause 11—That said defendants have misused the franchise of drainage commissioners, in their actings and doings as such, by taking and injuring the property of a citizen and citizens of said State of Illinois without just compensation therefor; by taking the ditches of such citizen and citizens without allowing anything therefor; by flooding the lands of such citizen and citizens without any compensation therefor ; and mother ways, as shown in said information.”</p> <p>The jury,' after hearing the evidence, returned a general verdict upon said issues in favor of the defendants. The state’s attorney thereupon moved the court to set said verdict aside and award a new trial on the grounds, that the verdict was contrary to the evidence; that improper evidence was allowed to go to the jury; that competent and proper evidence offered was excluded, and the issues in the cause were not presented to the jury in manner and form as required by law. Said motion for a new trial was overruled by the court, and j udgment was thereupon rendered in favor of the defendants in accordance with the verdict. The relator no w brings the record to this court by appeal.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Hancock county; the Hon. T. M. Shaw, Judge, presiding.

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.</p>

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

<p>Appeal from the County Court of Adams county; the Hon.. B. F. Bebbian, Judge, presiding.</p>

M. F. Tuley, Judge, presiding. On the 26th day of July, 1886, James 0. Walker filed his creditor’s bill against Almon D. Ellis, alleging the recovery against said Ellis, on said 26th day of July, 1886, of a judgment at law for $2231.14, and costs, the issuing of an execution on said judgment and the return thereof on the same day wholly unsatisfied.

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

Cyrus Bpler, Judge, presiding. This was a bill in chancery, brought by John Rodgers, against William S. Lurton and Lou C. Lurton, to set aside a sheriff’s deed, and to redeem from the sale in pursuance of which said deed was executed.

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

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

Julius S. Grinnell, Judge, presiding. This was assumpsit, upon the following instrument : “Chicago, III., June 25, 1884. “This day sold to Robert Henderson, of New York City, fifty shares of the capital stock of the Big Laramie Land, Cattle and Improvement Company, of $100 each, for the sum of $5000, the receipt of which is hereby acknowledged, upon the following express condition: At the expiration of three years from the date hereof, if said Robert Henderson elects to…

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Henry M. Shepard, Judge presiding.</p>

Joseph E. Gary, Judge, presiding. This is an action on the case begun on September 28,1886, in the Superior Court of Cook County, by the appellee, as administrator of the estate of Philip Bodemer Jr., deceased, to recover damages for the death of said Philip Bodemer Jr., who was killed, while trying to cross the tracks of the appellant company at a point between Twenty fifth and Twenty sixth Streets in the city of Chicago.

<p>Appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.</p>

This is a petition filed in this court by Mary A. Ahrens, against William J. English and others, the board of election commissioners of Cook county. The respondents demurred to the petition. The material facts of the case appear in the opinion.

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

<p>1. Negligence—master and servant—unsafe appliances. Where a workman in a shop is injured while at service, in consequence of the smooth and slippery condition of the floor, which was of hard wood, the fact that the superintendent of the works, or any one else in charge thereof, directed a carpenter to put down a soft wood floor, is a circumstance to be considered by the jury, in connection with other evidence, whether the floor as laid and used was safe or not. Evidence that the floor was changed after the accident is not strictly proper. But when the evidence in chief of such fact is stricken out, leaving the cross-examination, the error is too slight to require a reversal.</p> <p>2. Same—promise of employer to remove the danger—due care, etc.— questions of fact for the jury. Whether the floor that the master has provided for the servant to stand on in front of a machine was in an unsafe and dangerous condition, whether the servant exercised due care, and whether he notified the master’s foreman of the condition of the floor, and was promised by those who had authority to remedy the difficulty that the floor would be made safe, and relying upon such promises he was induced to remain in the master’s employment until he was injured, are all questions of fact for the jury.</p> <p>3. Same—right of servant to rely on promise of employer to remove clanger. If a servant is assured, from time to time, that an unsafe floor will be supplied with a better one, he will have the right to rely on such assurance, and such reliance can not be overcome by a fact or facts which may create a bare suspicion that the change will not be made.</p> <p>4. Same—promise to repair—suspicion the promise will not be kept— instruction thereon. In a suit by a servant against his master to recover for apersona! injury from negligence in fixing a floor in a proper manner for safety, the proof showed the making of three promises to him to change the floor, which tended to prove that plaintiff was induced to remain in the service by such promises. Defendant asked an instruction, in substance, that if, between the promise made to plaintiff and the time of the injury, sufficient time had intervened within which to change the floor, and such time had elapsed attended with any circumstances that were calculated to raise in the mind of a prudent person, situated as the plaintiff was, a suspicion that the floor was not going to be fixed, then it was plaintiff’s duty to quit, etc.: Held, properly refused, as entirely ignoring the several promises, and allowing the jury to act on the first promise alone, and as requiring plaintiff to act on mere suspicion.</p> <p>5. Same—promise to repair floor—authority of foreman. Where it is the duty of a foreman in a wagon factory to see that the material for all the wagons goes into the factory, and goes out in proper shape made into wagons, it can not be said that he has no control of the floors in the shops. Having control of the material used, and of the shop floors, and of the men engaged in work, if the shops or machinery should get out of repair or be unsafe, so that the material could not be safely manufactured, he will have power to bind his employer by promising to have a dangerous floor replaced with a safe and proper one, and a servant to whom made may rightfully rely on such promise of the foreman.</p> <p>6. Same—two or more acts alleged—but one need be proven. Where the plaintiff in an action to recover damages for a personal injury, alleges two or more acts of negligence producing the one injury complained of, he is not bound to prove the several acts alleged, but he may recover on proof of any one of the grounds of action which is sufficient.</p> <p>7. So where a servant sued his master for a personal injury while engaged in service, and alleged two grounds of actionable negligence, viz., negligence in failing to remedy a defect in the floor of the shop where the plaintiff was employed, and also secured a promise of the defendant to place guards over certain knives used in the shaping of materials and a failure to do so, it was held, that the plaintiff might recover without any proof of the promise to place guards over the knives.</p> <p>8. Same—proof of dangerous condition of floor. In an action by a servant against the master to recover for a personal injury caused by the unsafe condition of the floor used by the plaintiff while performing service, it is proper .to show that the floor as constructed was unsafe, and a witness having the proper skill may testify what would or would not remedy the difficulty or lessen the danger in its use.</p> <p>9. Witnesses who have experience in the use of a machine called a “shaper,” and who are thereby possessed of a peculiar skill, may be allowed to give their opinions whether a hard wood floor, when laid in front of a shaper, becomes slippery by use, and whether a soft wood floor does not.</p> <p>10. SAME'—instruction as to comparative negligence. On the trial of an action by a servant against his employer for an injury, based on the defendant’s negligence, the defendant asked an instruction to the effect that the plaintiff could not recover unless certain propositions of fact, including the negligent acts charged and the freedom of negligence of the plaintiff, were proved by a preponderance of the evidence, which the court modified by adding the words, “unless you shall find that the negligence of the plaintiff was slight and the negligence of the defendant was gross when compared with each other, as more particularly in the second instruction read to you,” and gave the same so modified : Held, that while it might have been better practice if the law on the subject of comparative negligence had been left to rest on the plaintiff’s second instruction, yet as the modification merely called attention to the other instruction, and reiterated the doctrine stated therein, the modification was not error.</p> <p>11., Personal injury—elements of damage. In an action to recover damages for the loss of a hand through negligence, the fact, of itself, that the plaintiff has not been able to get work is not an element of damage; but if he is incapacitated for labor on account of the injury, that is a proper element of damage for the consideration of the jury.</p> <p>12. Employer—duty in furnishing machinery. The law imposes on the employer only the obligation to use reasonable and ordinary care and diligence in providing suitable and safe machinery. The machinery is not required to be the best or most improved kind, or to be absolutely safe. It is sufficient if it be reasonably safe.</p> <p>13. Practice—refusal to strike out the answer of a witness—motion afterwards allowed. Where the court refused to strike out the answer of a witness because no objection was made to the question, but the answer was afterward stricken out by consent of counsel conducting the examination, it was held, the party moving to strike out the answer had no legal ground of complaint.</p> <p>14. Same—leading questions. Leading questions in the examination of witnesses, as a general rule, are so much within the discretion of the court as that the allowance of such a question alone will not ordinarily be a sufficient ground for the reversal of a proper judgment.</p> <p>15. Same—directing what the verdict shall be. Where there is no evidence tending to show a right of the plaintiff to a judgment, or when the evidence if so insufficient that the trial court would be required to set the verdict aside if for the plaintiff, the court may properly instruct the jury to find for the defendant, but not if there is evidence tending to support the allegations of the declaration.</p> <p>16. Instructions—need not be repeated. There is no error in refusing an instruction when another one given contains its substance, or at least all that is essential in the one refused.</p> <p>17. There will be no error in refusing instructions asked, when the jury are fully instructed upon each and every question involved in the case, in others which are given.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.