Volume 140 — Illinois Reports

<p>1. Warrant or attorney—with promissory note—how construed. A promissory note contained a power, as follows: “Now, therefore, in consideration of the premises,____do hereby make, constitute and appoint H., or any attorney of any court of record, to be____true and lawful attorney, irrevocable, for____and in____name, place and stead, to appear in any court of record, ■ * * * to waive the service of process and confess a judgment in"favor of the said Park National Bank, or its assigns, upon said note,” etc. The note and power were upon the same paper, and signed by P., ánd the payee was. M. T. R.: Held, that the donor of the power was the maker of the note and warrant of attorney, and that the words omitted from the blank spaces could be no -other than “I,” “my” and “me,” and that these words could refer to no other person than the signer.</p> <p>•2. The form used in drawing up a note and power of attorney was a printed form, in which the name of “Park National Bank” was printed in the body of the note as payee thereof, and in the body of the warrant of attorney as the party in whose favor the judgment was to be confessed. The draftsman erased the words “Park National Bank” from the note, and inserted in their stead the name “M. T. Roberts,” leaving the word “the,” which preceded the name of the bank, but failed to erase the name of the bank from the power of attorney and to insert the name of Eoberts: Held, that the evident intent was to authorize a confession of judgment in favor of Eoberts or his assigns. Any different construction would make the two parts of the single instrument repugnant to each other.</p> <p>3. Promissory note and power of attorney—construed by rules governing written contracts. Where a promissory note, and power of attorney to confess judgment thereon, are both written, or partly written and partly printed, over the maker’s single signature, they must be regarded as one instrument, and to be construed by the same rules which govern the construction and application of written contracts in general. Its terms must be sufficiently definite to indicate the intention of the maker. If the language used makes the effect in view clear and certain, and accurately defines the power delegated, it is sufficient.</p> <p>4. The real meaning of such a contract is to be ascertained from a consideration of the entire instrument, and the intent will not be defeated by such inaccuracy of language as proceeds from the omission of a word which it was the evident purpose of the signer to insert.</p> <p>5. Written instruments—rules of construction. In the construction and interpretation of written instruments, every clause and every word should, when possible, have assigned to it some meaning. When this ■can not be done, and there remains a repugnancy, it must be got rid of by rejecting what will free the writing from it. Inaccuracy of language which results from inserting a word not meant, or using the wrong word, will not be permitted to defeat the intention, when it can be distinctly ascertained.</p> <p>6. Judgment by confession—set aside only on equitable grounds. A motion to set aside a judgment confessed in term time, under a warrant of attorney, appeals to the equitable jurisdiction of the court, and will not be granted except upon equitable grounds. Where no defense to the merits is shown, the court will refuse to vacate such judgment.</p> <p>7. Same—motion to set aside—affidavit of intention in signing not admissible. On motion of the debtor to set aside a judgment entered against him by confession, under a power annexed to his promissory note, in favor of the assignee of the payee, the affidavits of the payee and maker of the note that it was their intention to execute a simple and not a judgment note, are properly disregarded. A party to a written contract is not permitted to testify to his unexpressed motive, intent or belief at the time he signed the same or received it.</p> <p>8. Parties—after voluntary assignment—who to sue. An action upon a promissory note, where the payee has made a voluntary assignment for creditors, is properly brought in the name of the payee, for the use of his assignee.</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. Dorrance Dibell, Judge, presiding.</p>

A. G. Abney, Judge, presiding. This was an application, by the collector of taxes of Saline county, for judgment against block 15, in Wilson & Frazel’s addition to the town of Harrisburg, for delinquent taxes for the year 1890.

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

<p>Appeal from the County Court of Iroquois county; the Hon. Moses H. Euans, Judge, presiding.</p>

<p>1. Pbaotice—directing what the verdict shall be. It is error to instruct the jury, in an action for negligence and consequent injury, that if they believe, from the evidence, that the plaintiff was injured by the negligence of the defendant, as charged in .the declaration, and that the plaintiff was at the time in the exercise of ordinary care and prudence, the plaintiff is entitled to recover for such injury, if there is no conflict in the evidence, taken as a whole, if all the evidence on both sides does not tend to show a right of recovery.</p> <p>2. Where a defendant whose motion to exclude plaintiff’s evidence, made as soon as the plaintiff rests, is overruled, fails to stand by such motion, or to renew it when all the testimony is in, or to request that the jury be instructed to find for the defendant, but introduces testimony of his own to contradict the case made by the plaintiff, and requests that the jury be instructed to pass upon the issues involved, and to determine thereon according to the preponderance of the evidence, he thereby waives his right to object to the action of the court in overruling his motion, and is estopped from assigning it for error in a court of review.</p> <p>3. Where the defendant demurs to the plaintiff’s evidence, he will be held to admit not only all that the plaintiff’s testimony proves, but all that it tends to prove. He thereby admits all the conclusions of fact which a jury may fairly draw therefrom. Hence, if there is evidence tending to prove the issues in favor of the plaintiff, the judgment must be in his favor, and the motion to exclude must be overruled.</p> <p>4. A motion by the defendant to exclude the evidence operates as a demurrer to the plaintiff’s evidence.</p> <p>5. Where a defendant's demurrer to a declaration is overruled, he-may either stand by his demurrer and suffer judgment to go against him, trusting to the higher court to sustain his position, or he may plead to the declaration, and if he does the latter, he loses any rights he may have had under his demurrer if he had stood by it. The same rule applies to a defendant’s motion to exclude the evidence when the plaintiff rests his case.</p> <p>6. If the evidence of both sides may be considered in order to decide-whether the plaintiff has made such a case as should go to the jury, itshohld be made to appear to this court, by proper rulings obtained from the trial court, that the plaintiff was not entitled to go to the jury upon all the evidence, before this court will reverse upon the alleged ground that the case ought to have been taken from the jury.</p> <p>7. Appeal—question of excessive damages. In an action to recover damages for a personal injury, this court can not decide whether the damages recovered are excessive.</p>

<p>1. Contracts—in restraint of trade—to prevent competition—to control prices. A combination or conspiracy among a number of persons engaged in a particular business, to stifle or prevent competition, and thereby to enhance or diminish prices to a point above or below what they would be if left to the influence of unrestricted competition, is contrary to public policy, and the courts will refuse their aid to the enforcement of contracts by which such combinations are sought to be effected.</p> <p>2. So a contract entered into by the members of a stenographic association in a city, by which the prices of reporting legal proceedings by shorthand are to be kept up by the prevention of competition, although such association may embrace but a comparatively small part of the stenographic reporters engaged in the business, but which is open for the admission of all reporters who may be induced to join, and by which a schedule of prices is fixed, and by which any member violating its rules as to prices is subject to a fine, is void, as tending to prevent a free and unrestricted competition in business.</p> <p>3. Same—in partial restraint of trade. Contracts in partial restraint of trade which the law sustains are those which are entered into by a vendor of a business and its good-will with his vendee, by which the vendor agrees not to engage in the same business within a limited territory ; and the restraint, to be valid, must be no more extensive than is reasonably necessary for the protection of the vendee in the enjoyment of the business purchased.</p>

Alfred Sample, Judge, presiding. This is an appeal from a decree of the circuit court of McLean county, on a bill by appellees, Samuel B. F. Sholty,. Edward Sholty, Harry Sholty, Nellie Sholty and Ruby Sholty,. the last four being children of the said' Samuel, (three of whom are minors,) suing by their father, as next friend, against the appellant.

<p>1. Easement — will not be extended beyond the terms of the deed.. "Where an easement is given, by deed," to parties in a private alley between their lots, and the court, on bill, finds that a privy erected by the defendant in the alley is not an obstruction to the reasonable use of the alley, this will be understood as referring, not to the use which the complainant happened to be making of the alley as a matter of fact, but to the use which, under his grant, he was entitled to make.</p> <p>2. Same—change in dominant estate does not affect easement. In such case, a change in the use or necessities of the dominant estate can not have the effect of enlarging the nature or scope of the easement. That will remain precisely as before, its nature and scope having been fixed by the grant creating it. The erection of a wood and coal shed near the alley will not give the complainant any rights in the alley which he did not have before.</p> <p>3. Ghanceby—decree limited to case stated in the bill. Where a bill seeks to enjoin the defendant from the use of a privy in a private-passage-way belonging to both parties, and to have the same removed, •on the ground that it interferes with the proper use of the alley, and, makes no complaint as to the manner in which the privy is kept, the •complainant will be confined to the grounds of complaint as stated in the bill, and can not recover by showing that the privy was not kept in a clean and wholesome condition.</p> <p>4. Same — supplemental bill — waiver of objections to right to file. Where the defendant makes no proper objection to the filing of a supplemental bill, but answers and contests the equities thereby set up, ■on the merits, he will waive his right, on appeal or error, to object that the case is not a proper one for a supplemental bill, and insist that the •dismissal of the bill should be affirmed, because a supplemental bill was not proper when the dismissal was on the merits, and was not based ■on the question of pleading. In such case it matters not what the bill is called, and this court will pass upon the merits of the case presented.</p> <p>5. Same—decree conclusive. Where the court, on original bill, determines the complainant’s right to an easement in a private passageway, and the nature and extent of such easement, and holds that a privy ■of the defendant in a corner of the way is not an invasion of the complainant’s rights, the decree will be conclusive upon the complainant, .and he can not, by the erection of a coal-shed near such privy, relitigate the right of the defendant to maintain such privy.</p> <p>6. Appeal—what matters involved. On an original bill to enjoin the obstruction of a private alley for the joint use of both parties, the court found that defendant’s privy, in a corner of the alley, was not an ob•struction to the use of it. Complainant afterward, by a supplemental ■bill, stated that when that decree was rendered the privy was not an ■obstruction as it was then used, but set up subsequent improvements as to which the privy was an obstruction: Held, on writ of error bringing up the entire case, that the complainant was estopped from insisting that the finding in the original decree was erroneous.</p> <p>7. Where a supplemental bill is filed after final decree on the original bill is dismissed on the merits, and the cause is taken to the Appellate ■Court by writ of error within five years after the decree on the original ¡bill, both decrees will be properly before 'the Appellate Court for review. If brought up by appeal after the time for appealing from the •original decree, it might be true that only the latter decree would be involved.</p> <p>8. Reversal aitd remandment—remanding order construed. A bill merely called in question the complainant’s right to have the defend.ant’s privy removed from a passage-way, but made no case warranting the court in imposing on the defendant any order as to where the privy ■should or should not be located in the future, or whether it should be located anywhere, provided it was not again placed within the limits of the said private alley. The prayer, however, asked for a decree directing the location of such privy to some point on the defendant’s premises. On the hearing, the court dismissed the bill, and on writ of error the Appellate Court reversed this decree and remanded the cause, with direction to grant the prayer of the bill: Held, that the mandate of the Appellate Court might properly be construed as a direction to the circuit court to enter a decree in all respects as broad as that prayed for, which was much broader than was warranted by the allegations of the bill.</p>

John P. Altgeld, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming two judgments rendered in the Superior Court of Cook county, in favor of two intervening claimants of certain •moneys sought to be recovered by the appellants, Glover and Willcomb, by attachment and garnishee process.

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

<p>Appeal from the 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>

C. W. Upton, Judge, presiding. This was a bill for specific performance, brought by Charles Warner, against Fanny Searles Cradle, to enforce an alleged agreement contained in a lease for the conveyance of certain property situated in the city of Waukegan, in Lake county.

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

<p>1. Bank deposit—whether general or special. A deposit of a sum of money was made with a bank, to be kept by the bank until it could invest the same in a mortgage on real estate, and a bank book was delivered to and accepted by the depositor, showing that the bank was-debtor to him in such sum, and the money was mixed with the other-moneys of the bank. It was held, that the deposit was a general one, and created the relation only of debtor and creditor, and no trust at-' tached to thó money so deposited.</p> <p>2. Where money is deposited with a bank and a pass book given to>the depositor showing such deposit, the entries in the pass book are evidence of indebtedness, and will amount to an implied contract on-the part of the bank to restore, not the same funds, but an equivalent, sum, as the same may be demanded by check.</p> <p>3. Same—whether depositor is entitled to preference. Money which is delivered to a bank, even though it may be for some specified purpose, as, for investment in a mortgage security, but has been mingled with the funds of the bank, the depositor will not be entitled to preference in payment above any other creditor, in the administration of the-estate of the bank on a voluntary assignment.</p> <p>4. Bailment—distinguished from debt. If the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment; but where the obligation is to return other things of the-like kind and equal in value, it becomes a debt.</p> <p>5. Tbust—beneficial owner may pursue trust property if it can be-identified. Where a trustee changes the form of the trust property, the-right of the beneficial owner to reach it and compel its transfer may-still exist if the property can be identified as a distinct fund, and is not so mixed up with other property that it can no longer be specifically separated. If its identity can not be traced and shown, resort must be had to the personal liability of the wrong-doing trustee.</p> <p>6. Same—identification of fund. While it may not be necessary to-point to the particular pieces of money or particular bank bills that were deposited with the trustee, if the trust property be money, yet there must be a preservation of the distinctness of the trust fund. The-means of identifying the fund fails when the money has been mixed and confounded in a general mass of property of the same kind..</p>

Henry M. Shepard, Judge, presiding. In this action, appellee, by bill in chancery in the court; below, sought to have her title established to a certain lot in a subdivision in Kedzie’s addition to Ravenswood.

<p>1. Municipal corporation—ordinance—validity—prior appropriation. A city charter prohibited the making of any contract or the incurring of any expense unless an appropriation was first made concerning the same, and also required all ordinances to be published within thirty ■days after their passage. The fiscal year of the municipality began on January 1, and all appropriations were required to be made during the first quarter of the fiscal year. In the proper time $1500 was appropriated for printing. When an ordinance was passed enough of the ■appropriation remained unexpended to pay for the publication of the .same : Held, that the ordinance was valid, and that if other debts contracted thereafter for printing were in excess of the appropriation, that •could not affect the validity of the ordinance.</p> <p>2. Where an ordinance is passed and published in the proper mode, it will become a valid ordinance, although the city authorities may have exceeded their authority in incurring or contracting a debt for its publication. If the appropriation was exhausted when such ordinance was published, any tax-payer of the city might, no doubt, in an ■appropriate action, enjoin the payment of the debt thereby incurred, but that would in no way affect the validity of the ordinance.</p> <p>3. Ordinance for paving—cost to be paid by special taxation— sufficiency. An ordinance for the improvement of a street by special taxation, provided that the curb-stones already set, when necessary, should be taken up and re-set, so as to leave a roadway sixty feet wide in the center of the street; -that the space between curb-stones ’■ a graded and paved with paving brick of the best quality made; that the roadway should be excavated a depth of ten inches below the permanent pavement grade; that upon the bed so excavated, a bed of gravel five inches in depth should be placed, and after being rolled and pressed in shape, the brick pavement should be laid upon the gravel bed in such manner as to bring the upper surface of the brick pavement up to and parallel with the pavement grade of the street, and that the materials used should be selected under the supervision of the city engineer and street committee: Held, that the ordinance was not obnoxious to the objection that it failed to properly and sufficiently describe the nature and character of the improvement.</p> <p>4. An ordinance for paving a street provided that the cost of the improvement, “exclusive of the cost of making and improving street and alley intersections,” should be paid by special tax thereby levied upon contiguous real estate according to frontage, and that the cost of paving street and alley intersections should be paid by the cityHeld, that the ordinance was sufficiently certain, though it failed to show, in dollars and cents,-the amount to be levied as a special tax and the amount to be paid by the city. It is sufficient that the datum is given by which the several amounts maybe fixed.</p> <p>5. Same—lime of passing appropriation ordinance. Where an ordinance for the paving of a street by special taxation is passed so late in a fiscal year that the improvement can not be made in that year, an appropriation ordinance for the payment of the cost of the intersections of streets and alleys by the city may be made in the next succeeding fiscal year, and the fact that such appropriation ordinance is not passed before the institution of the proceedings will not invalidate the ordinance or proceedings.</p> <p>6. Commissioners to assess special tax—compensation, how paid. The commissioners appointed by the court to assess a special tax for the improvement of a street by a city are officers of the court and not the employes of the city, and their fees or compensation are a part of the expense of levying and collecting the tax, and no appropriation is required of the city to pay for the same.</p>

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

Clair county; the Hon. B. R. Burroughs, Judge, presiding. On the 6th day of February, 1890, Grustavus A. Koerner and Timothy McCarthy filed their bill in chancery, in the Circuit Court of St. Clair county, alleging, in substance, that, on the 13th day of October, 1886, Bussell Hinckley was indebted to Benjamin Higgins, in the sum of $21,700; to Benjamin Smith in the sum of $12,728, and to Joseph Ogle in the sum of $20,000, and that being so indebted, he executed to each of…

<p>1. Tenants IN common—right of one to buy adverse interest. Tenants in common stand in such, confidential relations as to one another’s interest, that one of them is not permitted, in equity, to acquire an interest in the property hostile to that of the other. Therefore a purchase by one of an incumbrance on the joint estate, or an outstanding title to it, is held, at the election of the other tenant, within a reasonable time, to inure to the benefit of both, upon contributing an equal part of the consideration actually paid.</p> <p>2. Same—tenants in common of leasehold estate—right of one to acquire the fee. One of two tenants in common in a leasehold estate may, before the expiration of their estate, purchase of the landlord the fee ■for Ms own exclusive benefit, but he will not thereby acquire any right ..greater than Ms grantor had.</p> <p>3. There being no hostility between the title of a landlord and that •of his tenants, no conveyance by him of the fee can possibly affect the rights of his tenants, and as to the fee held by the landlord, tenants in common for a term of years can owe no different duty to each other t;han they do in respect to any other distinct estate, for their privity ■does not extend to the estate remaining in their landlord.</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. S. P. McConnell, Judge, presiding.</p>

E. H. Gary, Judge, presiding. On August 31,1888, Samuel Bliss made a voluntary assignment for the benefit of creditors, to George M. Bogue, assignee. The deed and inventory of the assets of Bliss were filed September 1, 1888, in the office of the clerk of the county court of Cook county, showing the assets and liabilities of the insolvent.

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court, of Cook county; the Hon. L. C. Collins, Judge, presiding.

<p>1. Deed sufficiency of proof of delivery. In 1874, A, being in embarrassed financial condition, and for the purpose of securing his property against being subjected to the payment of a heavy security debt, with his wife inade and delivered two deeds to his brother, conveying his lands. The deeds were recorded at once, and on the same day the brother and his wife made two other deeds for the same lands to A’s wife, which were not recorded until after the death of the first grantor, in 1888, when they were found in his trunk of papers. In 1876, being released of his liability, his brother and wife conveyed the same lands back to A, which deed was immediately recorded. A occupied the land to his death and paid all taxes thereon, and the property was taxed in his name, and his widow set up no claim to the same, or any part thereof, until the deeds were found : Held, that these facts were sufficient, prima facie, to establish the fact that the two deeds to the wife were never delivered to or accepted by her, and therefore never became operative.</p> <p>2. Witness—competency of widow in partition proceeding by heirs. Where the widow of a deceased person sets up a claim to land sought to be partitioned by the heirs of the decedent, she is not a competent witness in her own behalf to testify to facts not within the exception in section 2 of chapter 51 of the statute, for the purpose of defeating the title of the heirs to the land.</p> <p>3. Evidence—statements of widow after husband’s death. In a suit between a widow and the heirs of her deceased husband in respect to the title of land, the widow can not, by statement of facts after the husband’s death, or of past transactions, make evidence in her own behalf, and prove them on the trial as evidence in her favor.</p>

<p>1. Fobmeb adjudication ■—whether bar to second application for judgment for taxes. An order of the county court refusing judgment for taxes is not a bar to a subsequent application for judgment, unless-it was rendered upon the merits. If the former application for judgment was denied for informalities, only, in the mode of levying the tax, it will not constitute a bar to the subsequent collection of the same tax.</p> <p>2. A railway company filed objections to the rendition of judgment against it for the road tax of 1889, for the following reasons: First, because the board of supervisors did not cause such tax to be levied as required by law; second, because there was no order of record showing the levy; third, because no notice was given to the company to appear and work out such tax; fourth, because the overseer did not deliver the list of delinquent road tax to the supervisor in the time required bylaw; fifth, because the county collector failed to designate on the tax books to what district the tax belonged; and sixth, because the property was not properly described in the collector’s advertisement. The court sustained the objections: Held, that the judgment was no bar to a further application for judgment for the same tax and that of the next year.</p> <p>3. Delinquent taxes — application for judgment—proof of prima facie case—how overcome. The collector’s delinquent list, with proof of the notice of application for judgment, makes out a prima facie case entitling the State to judgment, and such prima facie case will not be overcome by introducing a judgment rendered the previous year, sustaining objections to the manner of assessing and levying the tax. Such report and publication require the court to render judgment, unless the objector shall show that it is substantially unjust to render the same.</p> <p>4. Where the tax on property is “prevented from being collected” for a year by reason of what is claimed to be “erroneous proceedings,” the amount of such tax is properly added to the tax of the next year, unless the tax-payer shows that the defects for which judgment was first refused continue to exist.</p>

<p>1. Special assessments—extending sewer beyond corporate limits. A city or village, under its express power to construct local improvements, may make a sewer in its streets with, an outlet or an extension-beyond the corporate limits, when the same is necessary, following Shreve v. Town of Cicero, 129 Ill. 226.</p> <p>2. Same—power to condemn land beyond corporate limits. Where an-ordinance for the making of a sewer in a city or village with an outlet extending beyond the corporate limits, requires the taking or damaging of private property beyond such limits, the power to condemn such property is expressly given by section 4 of the act relating to cities and villages.</p> <p>3. The general rule that a municipal corporation can only exercise its powers within its corporate limits, is founded on the fact that generally no authority is given by its charter to act beyond such limits. Hence, corporate authorities are restricted in that regard, as in all other attempts to exercise corporate authority, by the general rule that they can exercise only such powers as are granted by express words.. This general rule is subject to the qualification that such authorities may also do those things which are necessarily or fairly implied in or incident to the powers expressly granted.</p> <p>• 4. Same—before acquiring right of way. An assessment for the purpose of constructing a sewer, before the corporate authorities have acquired the right of way over private property, by condemnation or otherwise, will be valid. The necessary steps to condemn may be taken after the assessment of benefits has been made and confirmed.</p> <p>5. Same — description of improvement essential to valid ordinance. Ho ordinance for a local improvement by special assessment is valid which does not describe the improvement contemplated, and if in that description it shows an attempt to do that which it is not authorized to do, the ordinance is void on its face.</p> <p>6. Same—instruction as to form of verdict. On the trial of an application of a village f.or the confirmation of a special assessment, the-court instructed the jury, that if they found the issues for the petitioner, the form of their verdict should be, “We, the jury, find the premises of objectors are not assessed more or less than their proportionate share of the cost of the improvement, and that they are not assessed more or less than they will be benefited by the proposed improvement Held, that the instruction was not subject to the objection that it took from the jury the right they had, under the statute, to reduce the assessment against the objectors’ property, and was not erroneous. Such an instruction does not indicate the form of the verdict in case it was against the petitioner.</p> <p>7. Same—new trial in proceedings to confirm. Where the jury, in a. proceeding to confirm a special assessment for a local improvement, view the property sought to be assessed, and the location of the improvement, after which they are fairly instructed as to the law, and they sustain the assessment as made by the commissioners, a new trial will not be granted unless the verdict is clearly against the weight of the evidence.</p> <p>8. Practice—misconduct of counsel. Where counsel, in the selection of a jury and in the examination of witnesses, makes improper remarks and statements calculated to prejudice the jury, the court should promptly sustain objections thereto; and this court, in a doubtful case,, will reverse the judgment for that cause, notwithstanding the court instructs the jury to disregard such remarks and statements, but not. when the verdict shows that the jury were not prejudiced.</p>

<p>1. Municipal corporation—liability for injury to business from constructing viaduct over street. A city will not be liable to a saloon-keeper for the diversion of customers from his saloon by the erection of a viaduct over a street adjoining his place of business. If access to and egress from his premises are not cut off or injured by a street improvement, he will not be entitled to damages to his property. He has no vested legal right in having the street so kept as to attract the largest amount of travel by his premises, so as to bring the largest number of customers to his saloon.</p> <p>2. Evidence—to show injury to business and leasehold property. In an action against a city to recover damages to the plaintiff’s business and leasehold property from the construction of a viaduct near the premises, which tended to diminish the travel in that vicinity, the plaintiff offered to prove the average monthly receipts of his saloon business at its former location for the six months next preceding the erection of the viaduct, and compare them with his average monthly receipts in his new location since the viaduct was built, which the court refused to allow: Held, that the evidence was properly refused, even if a diminution oí the plaintiff’s business was an element of damages in the case.</p>

<p>1. Trustee—of special trust by construction of law. A wife, after the-sale of her real estate under a decree, and the expiration of the time of redemption, obtained from the purchaser a-contract for the sale of the-certificate of purchase on the payment of a sum of money by a day-named. Laboring under sickness, and in fact upon her death-bed, her husband repeatedly urged her to transfer her rights to him, promising-that he would make the payment and save the property for her children, and thereby induced her to transfer the title to him. He obtained a loan on the property and paid the sum required to perfect the title-in him, using some of the wife’s means: Held, that the law would hold him as trustee of the property, for the use of his wife’s children. Such case is different from one where a party voluntarily conveys property to another upon a parol trust.</p> <p>2. Statute of Frauds—express trust—trust by construction of law-An express trust created by parol is within the Statute of Frauds, and void; but where the trust exists by construction of law, by reason of the circumstances and the fraudulent conduct of the alleged trustee, whereby he obtained the title to land, the Statute of Frauds will have-no application!</p>

Oliver H. Horton, Judge presiding. This was a hill in equity, brought by Henry M. Shepard, ■ as administrator cle bonis non, with the will annexed, of the estate of Charles W. Eicketson, deceased, against James P. Speer and others. It is alleged in the bill that Eicketson died in Pennsylvania, in September, 1866; that William Phillips was appointed administrator of his estate by the Orphans’ Court of Alleghany county; that Benjamin 3?.

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

<p>1. Landlord and tenant—tenant holding o-uer after expiration of term—rights of landlord. Where a tenant holds over after the expiration of his term, without any new contract in respect thereto, the landlord will have the option to treat him as a trespasser, or waive the wrong of holding over and treat him as a tenant, and the acceptance by the landlord of the rent reserved will amount to an election on his part to continue the tenancy, and the tenancy will be continued on the same terms as before.</p> <p>2. Same-—agreement to reduce rent—want of consideration. Where a landlord, at the request of the tenant, agrees to reduce the rent reserved in the contract of leasing, and there is no evidence tending to show the tenant had surrendered the premises or that he offered to do so, and refused to execute the terms of the lease, or that there was any reason why he could then have surrendered the premises and refused to execute the terms of the lease, such parol agreement to reduce the rent will be void for want of consideration, and the landlord may collect the rent provided for in the written lease.</p> <p>3. Where the tenant is not shown to have changed his position in consequence of the agreement to reduce the rent, and there is nothing to show any injury or loss to the tenant or gain or benefit to the landlord in consequence of such agreement, the latter will not be estopped from demanding and collecting the rent originally agreed to be paid; and such agreement to accept a reduced rent will not have the effect of an executed gift as to the difference in the original rent and that afterward agreed to be taken, when no receipt or release is given for the rent.</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. Egbert Jamieson, Judge, presiding.</p>

Lorin C. Collins, Judge, presiding. On May 1, 1888, Alice M. Kirby, the appellant, filed her hill in the Cook circuit court to enjoin appellees from causing the sale, under a decree of foreclosure rendered by said court on March 1, 1876, of certain real estate belonging to her. On the final hearing the temporary injunction was dissolved and the bill dismissed for want of equity. That decree was affirmed in the Appellate Court. This appeal brings the record here.

<p>1. Benefit society—notice of assessment—sufficiency. A notice from & subordinate lodge of Knights of Honor to a member, of an assessment, was as follows: “Jan. 26, 1886. Dear Sir and Bro.:—Assessment Ho. 175, amounting to $....... is now due and must be paid within thirty days from this date.............. Reporter,”—to which was affixed the seal of the lodge. The member’s assessment was one dollar, as fixed at his admission. The envelope containing this notice was addressed to the member at his residence, and the notice was received by him, and he failed to pay the one dollar due from him, for which failure he was suspended: Held, that the notice to him was sufficient to justify his suspension. The omission of the member’s name in the notice, and that of the reporter, was not considered as a substantial defect.</p> <p>2. Same—waiver by member, of defects in notice of assessment—binding on beneficiary. A member of a mutual aid society may waive defects ■and informalities in the notice of assessments on the death of members, and such waiver will be binding on his beneficiary, when such beneficiary has no vested right to receive compensation on such member’s death; and when a member suspended for non-payment of an assessment applies for re-instatement without making any objection to defects in the notice of such assessment, this will be treated as a waiver of defects in the notice to him of the assessment.</p> <p>3. Where the payment of money on the death of a member of .a mutual benefit society depends upon his good standing at his death, and where he had the right to surrender his certificate raid take another payable to a different person, or refuse to pay assessments and thereby forfeit his membership, he may waive an informality in a notice of an assessment for the non-payment of which he is suspended, and such waiver will be binding on his beneficiary.</p> <p>4. Same—subordinate lodge—rules concerning dues and fines construed. By the laws of a mutual benefit society or order each member was required to pay all assessments made by the supreme grand lodge within thirty days after notice, under pain of suspension and forfeiture of all rights. By the laws of the subordinate lodge a member was liable to the payment of dues and fines, and was entitled to five dollars per week when sick, and he could not become in arrears for dues and fines when sick, as they were required to be taken out of his weekly benefit: Held, that under these laws the sickness of a member, and his right to. weekly benefits, did not relieve him from his obligation to pay assessments by the supreme grand lodge, and that his sick benefits could not be applied to their payment, such application being confined to the dues and fines of the subordinate lodge.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Divorce—of sufficient proof of extreme and repeated cruelty. On bill for divorce by a husband against his wife, based on the charge of extreme and repeated cruelty, the evidence showed that the assaults claimed to have been made by the wife were but little more than exhibitions of impotent rage, there being no painful or permanent injury inflicted, and the husband had no difficulty in protecting himself and asserting his mastery, and it was not free from doubt that he was not in most instances himself the aggressor, and it was shown that there was cohabitation between the parties after the last act of physical violence was proved, and the husband for more than three years after he left his wife lived in the same State, and took no steps there for obtaining a divorce : Held, that under the evidence and the facts of the case no sufficient cause was shown for a divorce.</p> <p>2. In no instance is a single act of physical violence a sufficient .-ground for divorce; and when the husband is complainant, it is not .•sufficient to show slight acts of violence upon the part of the wife toward him, so long as there is no reason to suppose that he will not be .able to protect himself by a proper exercise of his marital powers.</p>

<p>Writ of Error to the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.</p>

<p>1. Master and servant—duty of master to point out dangers to an inexperienced servant. Employers owe it as a duty to inexperienced servants to point out the dangers of which they themselves have or ought to have knowledge, and to give such warnings as may lead to the avoidance of injury by the exercise of ordinary care. More especially is this so when the danger and the means of avoiding it are not apparent or fully within the comprehension of the servant. But the burden is upon the injured servant to prove the existence and breach of such duty.</p> <p>2. Same—hazard to minor servant—duty of master to instruct concerning. It is a general rule that when a contract of employment is añade with a minor, he assumes the ordinary"hazards of such employment in the same manner as an adult assumes them. But the rule is modified in case of young persons of inexperience and immature judgment, who are not capable of understanding and appreciating the perils to which they are exposed. They are entitled to recover for injuries which result from such perils, unless they have been instructed how to avoid them.</p> <p>3. If it is the duty of the master to give a minor whom he takes into his service, such instructions and precautions, graduated to his youth, ignorance and inexperience, as are necessary to make him aware of his danger, and to place him in the same situation with reference to it as though he was an adult, then it must be made to appear that such minor understands, as well as that he has the capacity to understand, before he can be denied the right of recovery.</p> <p>4. Same—action by servant against master—instruction as to intelligence and experience of servant. In an action by a servant against his employer, to recover for an injury while employed in operating machinery in making brick, the court modified certain of the defendant’s instructions by adding to the requirement that plaintiff had sufficient intelligence to comprehend the movements of the machine on which jhe was working, the further requirement that he knew and understood and appreciated the same: Held, that the modification was not erroneous.</p> <p>5. In an action by a minor servant to recover damages for personal injury received in his service, the court instructed the jury that if the defendant company and its officers knew or had reason to know the danger and peril to which the plaintiff was and would he exposed while in his work or employment, and did not explain or give notice of such danger to the plaintiff, and that at the time of the injury the plaintiff was not guilty of negligence, and was exercising ordinary care, and that from his youth and inexperience he failed to know, understand or appreciate, and in fact did not so know and appreciate, the danger to which he was exposed, in consequence of which he was injured, then She defendant was liable: Held, that the instruction was not erroneous, as assuming the machine used was a dangerous one.</p> <p>6. In the same case the court modified one of defendant’s instructions which announced that if the plaintiff, in the exercise of ordinary care and caution, might have seen the danger and avoided it, and his omission to do so directly contributed to the injury, he could not recover, by stating to the jury that in determining what was ordinary care on the part of the plaintiff they might take into consideration his age, intelligence and discretion, and his knowledge of or experience with machinery, etc.: Held, that the effect of the modification was not to tell the jury that want of intelligence and discretion on the part of the servant would excuse contributory negligence on his part. The same degree of care is not expected of a mere boy as is required from a person of mature years.</p> <p>7. Special interrogatory—refusing to submit. There is no error in refusing to submit special interrogatories to the jury, when it is plain that the most favorable answers that could be made to them would not constitute a finding inconsistent with the general verdict.</p> <p>8. Evidence—action for personal injury—proof of prior similar accidents. In an action by a servant to recover for a personal injury in the use of machinery, the defendant introduced evidence to the effect that it was not possible for the injury to have occurred as stated by the .plaintiff. The latter, in rebuttal, may show that similar occurrences had happened in the same way as with the plaintiff. He may showthnt the injury in the way claimed was not only possible, but had actually taken place.</p>

<p>Appeal from the Circuit Court of DeKalb county; the Hon. Charles Kellum, 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. A. N. Waterman, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Lee county; the Hon. William Brown, Judge, presiding.

Lorin C. Collins, Judge, presiding. This is a bill filed in the Circuit Court of Cook County on February 11, 1889, by the City of Chicago against Orrington Lunt, Sarah E. Yon Campe, H. Yon Campe, her husband, Augusta L. Von Alten, Eberhardt Yon Alten, her husband, and Frank L. Stevens to foreclose the five mortgages hereinafter described upon parts of wharfing lots 24 and 25 in the City of Chicago.

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

Richard S. Tuthill, Judge, presiding. This was an action of assumpsit, brought by William Harmon against the city of Chicago, to recover back the sum of $300, paid by the plaintiff on compulsion and under protest, for tug boat licenses.

<p>1. Special assessment — how made — certificate of commissioners. Under an ordinance for a system of sewerage, to be paid for by special assessments upon the property benefited and by general taxation, the commissioners certified that they estimated what proportion of the total cost would be of benefit to the public and what proportion would be of benefit to contiguous property, and apportioned the same between the city and such property, so that each should bear its equitable proportion ; that the amounts assessed by them as special benefits to each lot, etc., were shown upon the assessment roll; that they apportioned and assessed the amount found to be of benefit, upon the several lots, etc., in the proportion in which they will severally be benefited by the improvement, and that no lot, etc., was assessed a greater amount than it would be actually benefited: Held, that such an assessment was in conformity with the statute.</p> <p>2. Same—according to frontage. While a special assessment made on the basis of frontage, merely, and without regard to special benefits, .would be invalid, there is no rule of law precluding the commissioners (from taking into consideration the number of feet frontage of the several lots upon the street or improvement as an element in their ascertainment of benefits. •</p> <p>3. Same—must correspond to benefits. The fact that the commissioners assess against each lot the exact cost of the improvement in front of the same, or the fact that the several amounts assessed against the several lots are in exact proportion to the frontage of said several lots, will not, of itself, vitiate the assessment, provided it appears that the special benefits are equal to such cost and in proportion to such frontage.</p> <p>4. Same-—;for sewerage system—before water mains are laid. A special assessment of benefits on lots to pay for the construction of a system of sewerage is not invalid merely because the water mains of the city .water-works have not been extended along the streets upon which .portions of the property assessed.for sewerage purposes are located, provided such lots are benefited to the amount assessed thereon, by the improvement. 6</p> <p>5. Same—sufficiency of petition to county court. The statute merely requires that the petition of the city to the county court for a special assessment “shall be in the name of the corporation, and shall recite the ordinance for the proposed improvement and the report of such commission, and shall pray that the cost of such improvement may be assessed in the manner prescribed by law.” Therefore a petition is not fatally defective for the reason that it does not allege, in direct terms, that the commissioners were “competent persons,” or for the reason it contains no direct allegation that such three persons were appointed commissioners.</p> <p>6. Same—sufficiency of elerh’s certificate of passage of ordinance for. An ordinance for a public improvement was passed July 7,1890, and on July 21,1890, the estimate of the cost of the improvement was approved by the city council. The city clerk’s certificate was, that the annexed was a true copy of the ordinance; also, a copy of estimate of cost, with order of approval, “which was duly passed by the city council of said city on the 7th day of July, 1890.” The certificate further stated “that the ordinance was duly approved and signed by the mayor of said city on the 9th day of July, 1890Held, that the words “which was duly passed,” etc., had reference to the ordinance, and not to the order of approval.</p> <p>7. It is not material that the city clerk does not certify that he is the custodian or keeper of the report of the commissioners appointed to estimate the cost of the proposed improvement, and of the record which shows the order of its approval, as the statute declares him to be such keeper, and makes copies of all papers duly filed in his office, and transcripts from the records and files in his office, certified by him under the corporate seal, evidence in all courts, in like manner as ii the originals were produced.</p> <p>8. Same—city council judge of competency of commissioners. The city council are, at least primarily, the judges of the competency of the persons to be appointed by them to estimate the cost of the proposed improvement; and in the absence of any allegation or proof to the contrary, it will be presumed that they performed their duty, and that the persons designated as commissioners were “competent persons.”</p> <p>9. Same—filing objections—waiving defects in notice. Where the owners of property specially assessed for a proposed public improvement appear and file objections to the confirmation of the assessment on the merits, they thereby waive any and all defects in the notice of the application for judgment.</p> <p>10. Same—ordinance providing for sewer emptying into lake or river— no defense to special assessment. Section 277 of the Criminal Code, prohibiting the pollution of rivers, etc., is not to be construed as absolutely prohibiting cities and towns located upon the shores of lakes or banks of rivers from emptying their sewers into such lakes or rivers, and the- fact that an ordinance of a city for a system of sewerage provides for the discharge of the sewage into a river, constitutes no defense to a proceeding by the city to collect special assessments made to defray the cost and expense of the work.</p> <p>11. Amendment—certificate of publication—presumption. Where the record shows that after hearing the evidence of a witness on a motion to amend a certificate of publication, the court granted the motion, but fails to preserve the evidence, it will be presumed that the evidence was sufficient to justify the action of the court in allowing the amendment.</p>

Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding. This action was begun by defendant in error in the Superior Court of Cook county, by bill in chancery, to subject certain “merchandise and fixtures” alleged to be in the hands of plaintiff in error, for the payment of two promissory notes held by said bank.

<p>1. Corporation—change of name—adopting name similar to existing corporation. An existing corporation may, by a vote of its stockholders, at a meeting duly called, change its name; but the new name assumed or adopted must not be the same, or similar to, or be liable to be-mistaken for, the name of any other corporation of the State, without the consent of such other corporation.</p> <p>2. A corporation in changing its name can not adopt the name of ■another without its consent, even though the latter is not fully organized, and is therefore incapable of consenting. After the corporation is licensed it must be regarded as a corporation, whose corporate name is protected against its use by others.</p> <p>3. Same—who may effect change of name—Secretary of State refusing certificate of change. The steps necessary to the change of the corporate name are to be taken by the corporation itself, and its officers and .stockholders. The State or Secretary of State has nothing to do in the matter to accomplish such change, unless the Secretary of State has the right to refuse to receive the certificate of the vote of the stockholders, or refuse to allow it to be filed in his office, when he knows that the new name is the same as that of some other corporation already existing or in process of organization.</p> <p>4. Same—whose duty to see that a corporation does not adopt the name of another corporation. Where an existing corporation undertakes to •change its name, the stockholders must see that the new name adopted is not similar to or likely to be mistaken for the name of some other ■corporation of the State; bub where a new corporation is formed the Secretary of State is required to see that the license is not issued to a •corporation having the same name as that of another.</p> <p>5. Since the stockholders of a corporation are prohibited from adopting a new name similar to that of any other corporation, it follows ■that they should take steps to ascertain whether any other company in the State has the name they propose to take, or a name similar thereto. Such fact can be learned by inquiry at the office of the Secretary of State.</p> <p>6. In the formation or organization of new corporations the Secretary of State is prohibited, by section 2 of the act of April 18,1872, from issuing any license to two companies of the same name. The several statutes on this subject are intended to prevent, if possible, two or more-corporations doing business under our laws from making use of the same name.</p> <p>7. Same—notice of change of name. The notices required by section 2' of the act of March 26, 1872, of a stockholders’ meeting for the purpose of voting on the change of a corporate name, are intended only for the stockholders, and not the general public. The notice of "the change which is required to be given to the public is the final notice provided for in section 5, hence the notice of the meeting of the stockholders is-no notice to the proposers of a new corporation of the new name proposed to be adopted.</p> <p>8. Same—power of Secretary of State to revoke license to organize-The law confers no power on the Secretary of State 'to revoke the license to organize a corporation, except for failure to complete organization within two years. That officer can not revoke the license because some other corporation has taken the first steps under the statute to-change its name to that adopted by the new corporation.</p> <p>9. Statutes—passed at same session construed together. ’ Although two statutes passed at the same session of the legislature may take effect at different dates, yet so far as they, or any of their provisions, relate to the same subject matter, they may be properly construed together to-ascertain the legislative intent.</p> <p>10. Mandamus—granting petition in part. Where a petition for a-writ of mandamus asks the court to compel the performance of two dif"ferent acts, it maybe issued for a part of the relief sought and denied, in part.</p> <p>11. Same—not granted in useless or doubtful cases. The writ of mandamus will not be granted as a matter of absolute right, and when it can be seen that it can not accomplish any good purpose, or that it will 'fail to have a beneficial effect, the writ will be denied. It is never i granted in doubtful cases, nor unless the party calling for it has a clear right.</p>

Edward P. Vail, Judge, presiding. This was a bill in chancery, filed by the Peoria, Decatur and Evansville Railway Company, against Elisha B. Durfee and others, to enjoin the occupancy of the right of way across twenty-five acres off the south end of the south-east quarter of the south-west quarter of section 10, in township 16, range 2, east of the third principal meridian, in the county of Macon, and State of Illinois, of the width of one hundred feet.

<p>1. Special assessment—error to confirm, against lands not benefited.. Where the evidence introduced on a proceeding to confirm special assessments fails tó show that the lands of the objectors will be specially benefited by the construction of a sewer which does not reach such, lands, and which are used for farming purposes, it will be error to confirm the assessments made upon such lands.</p> <p>2. Same—for benefits by future improvements. No assessment can be-made upon lands lying beyond the terminus of a proposed sewer for benefits to accrue thereafter by an extension of the sewer.</p> <p>3. Same—on lands lying beyond the benefits of the improvement.. Where an ordinance for the construction of a sewer contains no provision allowing property holders of lands beyond its terminus to use the same for draining their lands, there can be no legal assessment of such lands to aid in the construction of such sewer,' as land not benefited by a proposed improvement can not be specially assessed therefor.</p>

Amos Watts, Judge, presiding. This was -an action of assumpsit, by appellee, as assignee of the Water, Light and Power Company of St. Louis, Mo., against appellant, to recover damages for a refusal to accept and pay for certain water hydrants. The declaration consisted of one special count and the consolidated common counts.

<p>1. Deed—delivery to third person—presumption in favor of grantee. The owner of real estate made and executed a deed for the same to his four infant grandchildren, reserving the use of the property during his life and that of his wife, who united with him in its execution and . acknowledgment. Afterward he caused the deed to be placed in the hands of a neighbor and friend to be taken care of, but gave no specific •directions to hold it until the death of the grantors and then deliver it to the grantees. His previous statements to the custodian, however, showed an intention that the grantees should have the property after his death: Held, that such statements, in connection with the fact that the grantor never took the deed from the custodian, but let it remain •until his death, showed that the delivery was intended for the grantees • therein named.</p> <p>2. Same—delivery to third person—effect of destruction of deed by one ■ of the grantors. Where the grantor of land delivers the deed to a third person to keep for the grantees, who are infants, until his- death and that of his wife, the fact that after his death his wife may obtain and • destroy the deed will not affect the question of its delivery.</p> <p>3. Same—presumptions of delivery in voluntary settlements made to ■infants. The law presumes much more in favor of the delivery of deeds in case of voluntary settlements, especially when made to infants, than it does in ordinary cases of bargain and sale.</p> <p>4. Same—no formality required to constitute delivery. To constitute a delivery of a deed no particular formality is required, provided it • appears that the grantor intends to part with his title and the control. of the instrument passes to the grantee, or to some third person for the-grantee. When the deed reserves the control of the property during the life of the grantor, the delivery may be made to a third person forth e benefit of the grantee, and such delivery -will not be inconsistent-with the rights so reserved.</p>

<p>1. Municipal bonds—void when donated in lieu of. authorised subscription to capital stock. Where a subscription by a county of $100,000' to the capital stock of a railway company is authorized by a vote of the-people, if the company enters into a contract .with the county board, by which the latter sells its stock to the company for $30,000 of its bonds, and issues only $70,000 of bonds, this will amount to a donation by the county of $70,000 of its bonds to the railway company, and such bonds,, as between the county and the railway company, will be void.</p> <p>2. Same—judgment for taxes—absence of proof as to innocent purchasers. In such a case, a tax levied by the county to pay interest on such bonds, in the absence of proof of their passing into the hands of innocent bona fide purchasers, is illegal, and it will be error for the-county court to enter judgment against an objector’s lands for such tax.</p>

<p>1. Dower—in land mortgaged before marriage. A widow, under the statute, is entitled to dower in land mortgaged by her husband before marriage, as against every one except the mortgagee or those claiming under the mortgage. She will be entitled to dower as against the purchaser of the mortgaged premises at the administrator’s sale, he occupying the same position as a purchaser from her husband.</p> <p>2. Same—foreclosure after death of mortgagor—extinguishment of dower. Where a wife joins with her husband in the execution of a mortgage of his land, in which her dower is released, a foreclosure and sale of the property after the death of the husband will pass all the wife’s rights therein to the purchaser, and after the time of redemption has expired her dower will be extinguished.</p> <p>3. Chancery practice—preserving evidence—presumptions in support of decree. Where the evidence introduced on the hearing of a bill in chancery is not preserved in the record, by certificate of evidence or otherwise, it will be presumed that it warranted the finding of facts in the decree.</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 First District;—■ heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p>

<p>1. Practice in Appellate Court—reciting facts in final judgment. "Where the judgment of the Appellate Court is a final determination,, made as the result, wholly or in part, of the findings of the facts concerning the matters in controversy different from the findings of the-trial court, it is the duty of the Appellate Court to recite in such final judgment the facts as found by it.</p> <p>2. Same—rendering final judgment for plaintiff on reversal. The-Appellate Court is not authorized to render final judgment for the plaintiff on a reversal, except when there is no evidence tending to support the issues for the defendant, and there is no substantial conflict in the testimony in regard to the issues, or where the evidence-given at the trial, with all the inferences that can be justifiably drawn from it, is so insufficient to support the finding for the defendant that, the trial court would have been warranted in finding for the plaintiff,, but failed to do so. ></p> <p>3. Same—remanding cause on reversal. Where the Appellate Court-reverses the judgment of the trial court for errors in its rulings of law,, it should remand the cause for a new trial.</p>

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

<p>1. Special taxation—local improvement—ordinance necessary. The passage of an ordinance for the making of a public improvement is essential to the levy of a special assessment or special tax on property to be benefited. Without such ordinance there is nothing on which the proceeding can rest.</p> <p>2. Until an ordinance is passed for such improvement, specifying its nature, character, locality, and giving a proper description, the committee can not act and ascertain its probable cost, and this is required as a safeguard for the protection of the property owner.</p> <p>3. Local improvements'—power of city or village over. In the exercise of the right of special taxation for local public improvements, a city or village has such power, and such only, as is conferred upon it by the statute, and that power must be exercised in the manner provided by the statute.</p> <p>4. Same—ordinance for levy of special tax. An ordinance, not for the making of a local public improvement, but after the same is completed, for the levy of a special tax for its payment, is void, and can not form the basis for such taxation. Until an ordinance is passed for the making of the improvement, no expense can be incurred which can become a charge on the property holder.</p>

<p>1. Master and servant—servant improperly discharged—right of recovery. Where a contractor employed to furnish materials and to do certain work has been improperly prevented by the employer from completing the contract, or,' in other words, has been improperly discharged from the performance of the work before its completion, he may recover, under the common counts, what is due him for the work he has actually performed under the contract.</p> <p>2. Where a servant is discharged, without sufficient legal excuse, before the expiration of his term, he may elect to treat the contract as rescinded, and at once bring an action for the value of the services rendered.</p> <p>3. Statute of Limitations—when it begins to run. Where there is no special contract, the law will imply an agreement to pay for the materials as delivered and the work as done; but when one continuous piece of work, consisting of a number of parts or items, is to be performed, the Statute of Limitations does not begin to run upon the completion of each separate part or item, but upon the completion of the whole. If the several items are merely parts of one transaction, the statute begins to run from the date of the last item.</p> <p>4. Same—action for wrongful discharge of servant—when barred. Where a workman is forced to abandon work he has agreed to perform, before its completion, by or through the wrongful act of his employer, a cause of action for the breach of the contract will at once accrue, and the Statute of Limitations will commence to run from the time he is so prevented, and a suit to recover damages for a breach of the contract will not be barred before the expiration of five years from that time.</p> <p>5. Where the plaintiff was employed, by a written contract, to furnish the materials and do all the plastering on certain buildings, and performed most of the work, when he was prevented by the defendant, the employer, from completing his contract, and he brought an action to recover for the materials furnished and labor done, one day before the expiration of five years from the time he was discharged, it was held, that the Statute of Limitations was no bar to the action, and that the plaintiff might recover for the entire work done and materials fur- ' nished.</p>

R. W. Clifford, Judge, presiding. This was an action on the case, for negligence, brought by appellee, against appellant, in the Cook circuit court.

<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. S. P. McConnell, Judge, presiding.</p>

<p>1. Appeal—in bastardy proceedings. Since the amendment of the-eighth section of the Appellate Court act, an appeal from the judgment of the county court in a bastardy proceeding lies directly to the Appellate Court.</p> <p>2. Same—section 8 of Appellate Court act construed. The amendment to section 8 of the Appellate Court act, giving that court jurisdiction of all matters of appeal or writs of error from the final judgments, orders- or decrees of the county court, in any suit or proceeding at law or in chancery other than criminal cases not misdemeanors, etc., operates as-an amendment to section 88 of the Practice act, and should be read and construed as a part thereof.</p>

George W. Herdman, Judge, presiding. This was an action of debt, brought by the commissioners of Mason and Tazewell Special Drainage District, against Mason county, to recover certain fees or commissions which the collector of Mason county had turned over to the treasurer of the county. The drainage district was organized in the county court of Mason county, but it includes lands both in Mason and Tazewell counties.

<p>Appeal from the County Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding.</p>

<p>1. Assignment fob the benefit of cbeditors—effected by appointment of a receiver—compelling discovery of assets. Where a partner-of an insolvent firm files a bill for the dissolution of the firm, and for the appointment of a receiver to collect the firm property and convert the same into money for the benefit of its creditors, and the other partners consent thereto and a receiver is appointed, this will amount to an assignment of the partnership assets for the benefit of the creditors, to be administered by or under the direction of the court, which will thereby give the court jurisdiction to require the several partners-to turn over the partnership assets to the receiver, and to submit to an examination under oath before the master in respect to the assets, and to enforce obedience to such order by fine or imprisonment-, or both.</p> <p>2. In such case, the court having jurisdiction to make the order, the partners can not refuse obedience merely because of irregularity or error in the proceeding. They should at least obey the order to the extent that it is regular, and ask the protection of the court against that part which is erroneous.</p> <p>3. Discoveby—not confined to creditors bill. In proceedings under a creditor’s bill, the court may order parties in possession of property sought to be reached, to turn the same over to a receiver, and to submit to an examination on oath as to such property, before the court or a master; and such power is not confined to creditor’s bill.</p> <p>4. Contempt op court—disobeying erroneous order. A party can not be guilty of contempt of court for disobeying an order which the court had no authority to make. But want of power must not be confused with mere irregularity in the exercise of power. If the court has jurisdiction of the parties and of the subject matter, and legal authority to make the order, the party can not refuse to obey it, however improvidently or erroneously made.</p> <p>5. Same—compelling obedience to chancery order—civil proceeding. A proceeding to compel a party to obey an order made in a chancery suit, for the benefit of creditors of an insolvent firm, is a civil action, though in some respects carried on as a criminal proceeding.</p> <p>6. Appeal—from judgment of Appellate Court affirming order of commitment for contempt in chancery proceeding. "Where a party to a chancery suit to close up the affairs of an insolvent partnership in which a receiver is appointed, refuses to submit to an examination under oath as to the assets of the firm, and is fined and ordered to stand committed, and the Appellate Court affirms the order of the court below, an appeal will lie from the judgment of the Appellate Court, the proceeding being a civil suit not sounding in damages.</p>

<p>l. Unrecorded deed—recorded mortgage—putting purchaser on inquiry. The record of a mortgage or deed of trust on part of a tract of land, from a son, securing a note of his father, although the records may show title to the whole in the father, is sufficient to put a purchaser from the father on inquiry as to any unrecorded deed from the father to the son. '</p> <p>2. Same—possession notice of title. The actual occupancy of land, as notice, is equal to the record of the deed under which the occupant claims, and a purchaser is bound to inquire by what right or title he holds, and will take subject to that title or interest, whatever it may be.</p> <p>3. Same—infants in possession—effect of statements by mother or grandfather. Where infants are in the possession of land inherited from their father, which is rented and managed by their mother and-grandfather, no acts or statements made by such mother or grandfather can be allowed for the purpose of affecting or depriving infant owners " of their title.</p> <p>4. Chancery practice—right to file cross-bill. A father, after conveying a half section of land to his son, who took and retained the possession, mortgaged the same and other lands to secure a debt. He released one of the quarters conveyed to the son, in the mortgagee’s name, which he then conveyed to a daughter, and afterward made a •deed for the other quarter to the heirs of such son, who was then dead, the first deed being lost. The mortgagor died, and his widow bought the mortgage and notes and sought to foreclose the same, alleging in her bill the release as to one tract, but praying for the sale of the mortgaged premises. The infant heirs of the deceased son answered by guardian ad litem, and filed their cross-bill, showing the making of a prior unrecorded deed by the mortgagor, and seeking to set aside the mortgage and the deed to the mortgagee’s daughter as a cloud on their title: Held, that as the cross-bill sought only equitable relief to the whole half section, the court properly allowed the same to be filed.</p> <p>5. A court of equity abhors a multiplicity of suits, and'whenever it has jurisdiction of a subject matter and of the parties in interest, it seeks to do complete justice. Therefore a defendant has a right to file a cross-bill, and state new facts connected with the subject matter of the original bill.</p> <p>6. "Witness—competency of parties in foreclosure against heirs. Where, the holder of notes secured bymoitgage seeks to foreclose the same on' land claimed by the occupants as heirs, he will be incompetent to ’testify as a witness in the case against such heirs; and so is one attempting to assert rights against them as purchaser of a part of lands claimed by them, as a purchaser for value, and without notice of their equities.</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. S. P. McConnell, Judge, presiding.

<p>1. Specific performance—contract must be clearly established and', upon a valuable consideration. It is well settled that the specific performance of a contract for the conveyance of land will not be decreed: unless the contract is established by competent evidence, and is free-from doubt or suspicion, clear and definite in its terms, and founded, upon a valuable consideration.</p> <p>2. Chancery practice — court not confined to master’s report and exceptions thereto. On the coming in of the master’s report containing findings of fact, the court may make additional findings of fact, if the evidence accompanying the master’s report warrants the same. The court is not confined in its review of evidence to the mere question of ascertaining whether the exceptions filed to the report, or any of them, should be sustained.</p> <p>3. Same—exceptions to master’s report. Where the master’s report is-returned into court, the party objecting to it may file exceptions, upon the hearing of which the whole evidence is brought forward and passes, in review before the court.</p> <p>4. Same—stipulation as to objections and exceptions to testimony before the master. Where the parties to a bill in chancery stipulate that objections and exceptions to testimony taken before the master may be-made and taken before the court, on the hearing, without being made or taken before the master, the court may properly consider objections to testimony, whether embraced in the formal exceptions to the findings of the master’s report or not.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.</p>

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

<p>1. Estoppel—to enforce contract to convey, where complainant has been a party to adverse conveyance. Where a person is a party to an arrangement by which his debt is paid by the conveyance of a tract of land to his creditor, he and his heirs will be estopped from specifically enforcing a contract of the grantor to devise the same land to him, and thus defeat the payment of his debt.</p> <p>2. Specific performance—addressed to the sound legal discretion of the court. A court of equity will not always enforce the specific performance of a contract. Application for a specific performance is addressed to the sound legal discretion of the court, and will not be granted if there is anything which makes it unconscionable for equity to lend its aid. A party asking equity must do equity, or at least offer to do equity.</p>

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

<p>Insane person—parties—bill to set aside deed of lunatic—who may sue. A bill will not lie in the name of a lunatic or insane person, by his next friend, to set aside or avoid a deed made by such lunatic or insane person. Such suit, in equity, must be brought in the name of the conservator, who is invested by law with the care and management of the property and estate of the lunatic or idiot. The action of the court requiring the next friend to file bond for costs, will not authorize him to sue as next friend of the lunatic.</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. Reeves, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District; —heard in that court on writ of error to the Circuit Court of Morgan county; the Hon. C. Epler, Judge, presiding.

<p>1. Removal op cause—to United States court—sufficiency of affidavit. An affidavit upon which a petition is based for the removal of a cause from a State court to the Circuit Court of the United States, which states that from prejudice or local influence the defendant will not be able to obtain justice in the court where the action is pending, or in . any other State court to which the defendant, under the laws of this State, has the right, on account of such prejudice or local influence, to remove said cause, is wholly insufficient to give the right to a removal of the cause, for the reason it is in the alternative, and argumentative and ambiguous.</p> <p>2. Under the act of Congress of 1887, to entitle a party to have a cause removed to the United States court on account of prejudice or local influence, the court must be legally (not merely morally) satisfied of the truth of the allegation that from prejudice or local influence the defendant will not be able to obtain justice in the State court. The affidavit should be by a credible person, and should contain a statement of "facts sufficient to evince the truth of the allegations therein contained.</p> <p>3. Appeal—finding of Appellate Court conclusive as to facts. The judgment of the Appellate Court affirming that of the trial court in an action sounding in damages or based on a tort, conclusively settles all questions of controverted fact in favor of the finding below. It therefore decides that the verdict of the jury was authorized by the evidence. In such case the appellant can not be allowed to show that the. facts were not passed upon by the Appellate Court.</p> <p>4. Practice in Appellate Court—passing on questions' of fact-opinion not part of the record. What the Appellate Court may have found the facts to be, or whether it has passed upon all controverted questions of fact, can not be determined by w'hat that court has said in its opinion. The opinions of that court are not a part of the record, and the clerk can not make them so by copying them into the transcript of the record.</p> <p>5. The Appellate Court is required to pass on all controverted ques- ■ tions of fact, but it is not required to state in its opinion that such duty has been performed, nor by what process of reasoning it reaches its conclusions; and what that court may have assigned as reasons for its decisions can in no way affect the correctness of its judgment.</p> <p>6. Witness—plaintiff testifying—instructing jury as to consideration of his interest. An instruction to the effect that the jury may take into ■ consideration the plaintiff’s interest in the result of the suit, is properly refused, as singling out the plaintiff when the same test of credibility i is applicable to other witnesses in the case.</p> <p>7. Same—interest does not disqualify. By the statute, interest in the ■ event of a suit, as a party or otherwise, does not disqualify a person as a witness, but such interest may be shown for the purpose of affecting his credibility. That test, when applied, must extend to all witnesses alike who are interested, either as parties, agents, or servants of parties, or otherwise; and when asked, it is the duty of the court to tell the jury what are the legal tests in weighing the testimony of witnesses.</p> <p>8. Instructions—refusing all—giving on motion of court. The refusal of all the instructions asked by a party, when the court, on its own motion, gives a series to the jury covering all the material points in the case, which are as favorable to the party as the law of the case will allow, will be no error of which he may complain.</p>

<p>1. Railroads—power of two or more to make joint contract. Whether, as a general proposition, corporations may contract joint obligations, there is no doubt of the power of two or more railway companies whose roads form a continuous line, to enter into a joint arrangement for operating their roads as one line, and to become jointly liable for all money borrowed to be used in furtherance of the business of such line.</p> <p>2. Contract—alleged fo he made “in the fall of 1887”—evidence supporting the averment. Where the evidence showed that four railroad companies opened an aecount with a bank on March 6,1887, and their agreement to pay interest on overdrafts was made some time between that date and the October following, this will be suiflcient to support an instruction submitting the question as to the making of the contract in the fall of 1887, as September is regarded as a fall month. Moreover, the dispute was as to the joint liability of the defendants, and not as to the agreement to pay interest.</p> <p>3. Appellate Court—judgment of affirmance conclusive as to joint liability of defendants. The judgment of the Appellate Court affirming that of the circuit court, against several defendants, is conclusive as to their joint liability in an action ex contractu, as well as of the other controverted questions of fact.</p>

Writ of Error to the Circuit Court of Macon county; the Hon. S. P. Vail, Judge, presiding.

Arthur A. Smith, Judge, presiding. This was a proceeding in chancery in the court below, by appellee, against appellant, her husband, James Russell, and Knox College.

<p>1. Contract—guaranty construed. By a -written contract a party agreed to sell to another binder twine at Peoria, 111., Omaha, Neb., and various other points, amounting to 424,548 pounds, at certain prices-therein named, free of charge for freight, storage, etc., until the warehouse receipts for the same should be turned over, payable by notes on receipt of invoice, one-third on September 10, one-third on October-10, and one-third on November 10, following, the vendor guaranteeing that the twine sold was in good condition and a merchantable article : Held, that the guaranty had reference to the condition and quality of the twine at the time the contract was made, and not to the time when the warehouse receipts were turned over, although possession of the goods would not pass until the warehouse receipts were delivered.</p> <p>2. Same—of sale with guaranty to reduce price to price of future sales —effect of future sale with privilege of returning unsold goods. Where the vendor of twine guaranteed to the purchaser that if he or another party named should sell twine at a less price than that charged to the purchaser he would make a corresponding reduction on the twine so sold, and it appeared that the vendor had sold twine to another party at the same price, but with a privilege of returning at the end of the season any twine unsold, it was held, that the privilege of returning unsold twine was not necessarily a reduction of the price, and that the first purchaser could not claim a reduction without proof that the last sale affected the market value of the twine.</p> <p>3. Same—of sale of personal property—when title passes. On a contract for the sale of personal property the title thereto will pass, if such is the intention of the parties, although measuring or weighing is to be had at a subsequent time, in order to ascertain the amount to be paid.</p> <p>4. So where a written contract for the sale of twine states the number of pounds sold and the location of the property, leaving nothing to be done to place the purchaser in full possession thereof except to pass over to him the warehouse receipts held by the seller, the title to the property sold will, as between the parties, pass upon the execution of the contract.</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. Frank Baker, Judge, presiding.</p>