Volume 142 — Illinois Reports

<p>1. Railroads — company using a railroad is liable for damages caused by its defects. A railroad company is responsible for accidents caused by a defective track, and it is bound to exercise due care in carrying the passengers and property intrusted to it. It is therefore its duty to see that the road which it uses for such transportation is safe and in good repair, whether such road is owned by it or not. If it uses the track of another company for such -purpose, it will be liable for damages to its passengers or freight by reason of defects in ’the road soused. This rule applies as between the railroad company and its employes.</p> <p>2. Where the employe of a railroad company is directed to use the road of another company in the business of his employer, he has the right to treat such road as the road of the company employing him; and every railroad company whose employes use the road of another company under its direction or for its benefit, owes it as a duty to such employes to see that the road is not in a condition which will unnecessarily endanger their lives or limbs.</p> <p>3. Same — several companies using a track — jointly and severally liable for its defects. Where several railroad companies form an association and share the expense of operating a line of road, whether interested in the profits or not, if they use a defective track for their joint benefit and in their joint service they will be jointly liable for any injury to their employes, resulting from the use of such track for the use of which they were jointly responsible, and they will also be severally liable.</p> <p>4. Same — operated by trustees for bondholders — liability for injury to employes — caused by defective track. It is no defense to an action by a servant of a railroad company to recover for a personal injury growing out of the use of a defective track, that at the time of the accident the road was operated by certain trustees for the bondholders, where there is no evidence that such trustees, if in possession, gave notice of any kind to third parties or to the employes of the company that they were operating the road, or that they were operating it in their own names as trustees, but it appears if they operated the road at all it was in the corporate name of the company.</p> <p>5. A railroad company which has voluntarily placed itself and its property and franchise in the hands of trustees to secure its debt to bondholders, can not lie by when sued for a tort which it claims to have been committed by such trustees, and shield both itself and the trustees from liability by concealing the fact that the trustees are operating the road, until an action is barred by the Statute of Limitations.</p> <p>6. Same — operated by trustees for the company and the bondholders— trustees regarded as agents. Where trustees of a railroad, selected by the company and its bondholders, are placed in possession of the road, who operate the same to earn money to be applied in payment of the debts of the corporation, exercising only the right and franchise of the company, such trustees must be regarded as the agents of the corporation in so far as relates to the transaction of business with third persons.</p> <p>7. Same — operated by trustees — name by which the company may be sued. Where the trustees of a railway company incur a liability while operating the road in the name of the corporation, while they may be sued in their names as trustees, no reason is seen why an action can not be maintained against them in the name they use.</p> <p>8. Same — liability for acts of mortgagees in possession. The court is not to be understood as controverting the general doctrine that a railroad company is not liable at common law, or under the statutes imposing liability for injuries resulting in death, for the negligence of mortgagees who are operating the road under a possession taken and held adversely.</p> <p>9. .A mortgagor out of possession and control of property, real or personal, ought not to be liable for the acts of the mortgagee who is in possession of such property, and has an independent and adverse control of it.</p> <p>10. Touts — Joint and several liability. If several persons are jointly-, bound to perform a duty, they will be jointly and severally liable for omitting to perform or for performing negligently. The law treats all torts as several as well as joint. The injured party may, at his election, sue all the partners or joint tort feasors, or any one or more of them, for the tort. The rule is not confined to partnerships, but extends to all cases of joint torts, at the common law, whether positive or constructive.</p> <p>11. Where a person has received an actionable injury at the hands of two or more wrongdoers, all, however numerous, will be severally liable to him for the full amount of damages occasioned by such injury, and the plaintiff will have his election to sue all jointly, or he may bring his separate action against each or any one of the wrongdoers.</p> <p>12. Same — liability of partners. Partners are liable, jointly and severally, for torts committed in the course of the partnership business.</p> <p>13. Practice — directing what the verdict shall be. Where there is evidence which tends to show the liability of the defendant, this will be sufficient to justify the submission of that question to the jury, and an instruction to find for the defendant will be properly refused.</p> <p>11. New trial — not granted for cumulative or impeaching testimony. A new trial will not be granted for newly discovered evidence which is merely cumulative to that given on the trial, nor for the purpose of impeaching the testimony of a witness.</p>

Henry M. Shepard, Judge, presiding. October 27, 1887, plaintiff in error filed his petition in the Superior Court of Cook county, in which it was alleged that Eleanor L. Cole filed her bill for divorce in the said court, against him, and that on the 20th day of May, 1885, a decree of divorce was entered dissolving the marriage, and decreeing that the petitioner pay said complainant, as and for alimony, the sum of $50 per month, commencing June 1, 1885, and continuing until…

<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>

Writ of Error to the Appellate Court for the First District; —heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.

<p>1. Replevy op pee bill — what judgment may be rendered thereunder. The replevy of a fee bill, pursuant to section 27, chapter 33, of the Revised Statutes, is a purely statutory summary proceeding, bringing before the court the questions, only, whether any item, or charge contained in such fee bill is not authorized" by law, or is for services not actually rendered, or any item is charged higher than is allowed by law; and the only judgment the court can thereupon render is, either one quashing the fee bill and bond, and correcting the taxation of the costs for which such fee bill was issued, or refusing to do so.</p> <p>2. Tee bill — no part of the record. A fee bill is no p&rt of the record of the case in which it is issued. It is entirely separate from the judgment in the case.</p> <p>3. Writ op error — what record brought up by it. A writ of error upon a judgment of conviction in a criminal case will not bring up the record in a*proceeding to replevy a fee-bill issued in the case, and re-tax the costs, and k writ of error in the latter proceeding does not bring up the record of the judgment of conviction.</p> <p>4. Re-taxing costs — jurisdiction to review action of circuit court. This court has no jurisdiction to issue a writ of error to review the action of the circuit court in refusing to re-tax costs in a criminal prosecution. Such writ must be issued from the Appellate Court.</p>

Dorrance Dibell, Judge, presiding. ■Edward M. Snyder, a son, and Mary L. Wedgate and Mrs. T. A. McGinnis, married daughters, of Mrs. Mary T. Snyder, filed their petition in the probate court of LaSalle county on the 10th day of May, 1889, in which they alleged that Mary T. Snyder was a distracted person and a person of feeble mind, and that she owned real and personal estate consisting chiefly of a homestead, dower and widow’s award, and a distributive share in the personal…

Dobbance Dibell, Judge, presiding. Tarjon O. .Hobbett, widow of Olsen Hobbett, deceased, brought her action in the circuit court of LaSalle county, against Ambrose Betting and John L. Whitman, under the ninth section of the Dram-shop act, for causing, in whole or in part, the intoxication of the plaintiff’s husband, by reason whereof he was killed by a railway train.

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

Henry M. Shepard, Judge, presiding. Christena Sass filed her bill in equity in the Superior Court of Cook County, wherein she alleged that she is the owner of lots 9 and 10, in block 1, in Hamilton’s subdivision of the east 501 j6^ feet of the north 1622 feet in the north half of the east half of the north-west quarter of section 18, town 39 north, range 14; that she has buildings thereon, and occupies the same as a residence; that Frank V. Newell is the owner of and in…

<p>Writ of Error to the Circuit Court of Hamilton county ; the Hon. E. D. Youngblood, 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. B. W. Clifford, Judge, presiding.</p>

<p>1. Burnt Records act — evidence admissible to establish title under that act. In a proceeding to establish, title under the Burnt Records •act, when the foundation is laid by the filing of a proper affidavit, the petitioner has the right to offer, and the court shall receive, as evidence, any abstract of title, or letter-press copy thereof, made in the ordinary course of business prior to the loss or destruction of the records; and it is made lawful for any such party to offer, and the ■court shall receive, as evidence, any copy, extract or minutes from such destroyed records, or from the originals thereof, at the date of such destruction or loss, in the possession of persons then engaged in the business of making abstracts of title for others for hire. Section 24 hlso provides that “a sworn copy of any writing admissible under this section, made by the person or persons having possession of such writing, shall be admissible in evidence,” etc., subject to the proviso therein named.</p> <p>2. Same — original and secondary evidence. The deeds and other instruments, and the records thereof, are the original evidence under this statute, and the abstract of title made as required by section 24 is secondary evidence. It is, however, only one kind of secondary evidence. The copies, extracts or minutes mentioned in section 24 are another kind of secondary evidence. So a party may introduce either the abstract of title or the copies, extracts or minutes, and the latter are not secondary evidence of the former. To require proof of the loss ■of the abstract of title before allowing copies, extracts or minutes to be introduced, is to require secondary evidence of secondary evidence, which is not permissible.</p> <p>3. Same — must support the allegations of the petition. A petition for establishing the title to land in the plaintiff alleged that a railroad ■company, by its trustees, who held the legal title, conveyed the prem- ■ ises to James Allen, under whom plaintiff claimed to own the land, but the evidence failed to show any such conveyance: Held, that a decree ■finding the title in the plaintiff, and confirming the same, must be reversed for want of proof of title.</p> <p>4. Evidence — parol evidence to explain the abbreviations in written instruments. The minutes in an abstract of title as to a deed from a railroad company to one Allen showed in one column the words, “111. ■O. R. R. Co.,” in another, “Jas. S. Allen,” in another, “D.,” in another, “Mar. 5, ’69,” and in another, “E. $ S. W. £ (W. of Little Calumet Biv.) 18, 37,15.” A witness who was familiar with the system of entries and making of abstracts by abstract makers, and knew their rules, and had worked with their men before a fire which destroyed the records, and assisted them daily in taking off minutes of deeds from the records, testified that the first abbreviation meant, “Illinois Central Bailroad Company,” grantor; the second, “James S. Allen,” grantee; the third meant “deed,” and the others indicated the date of the deed and the description of the property: Held, that the testimony of the witness was properly admitted.</p> <p>5. Parol evidence may be received to explain the meaning of abbreviations in written instruments, and- to show the words for which they stand.</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. Henby M. Shepard, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Monroe county; the Hon. W. H. Snyder, Judge, presiding.</p>

George W. Wall, Judge, presiding. This was a bill in equity, brought by John Zick and Theda Bockhoff, against Sophia, Helena and Rudolph J. Bockhoff and William Guebert, to set aside a deed executed on the 27th day of June, 1885, by Helena Bockhoff to William Guebert, in which she conveyed an undivided one-fourth interest in and to certain property in Red Bud, Randolph county, to Guebert, and also to set aside another deed, bearing the same date, executed by Rudolph J.…

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

E. S. Williamson, Judge, presiding. This was assumpsit for rent, brought in the Cook circuit court by the Davis Sewing Machine Company, appellee, against the Chicago Attachment Company, appellant. The former recovered judgment for $2788.59, and the judgment wa's affirmed in the Appellate Court.

<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. B. B. Bubboughs, Judge, presiding.</p>

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

Chaeles Kellum, Judge, presiding. This was a bill in equity, brought by Margaretha Dierks, against the commissioners of highways of the township of Addison, in the county of DuPage, and the village of Benson-ville, for the abatement of a nuisance caused by the drainage of the sewage of the village upon complainant’s farm, and to enjoin the commissioners from entering upon her farm and constructing a ditch across the same to conduct the sewage from a certain highway over her…

<p>Appeal from the Circuit Court of Madison county; the Hon. B. R. Bubboughs, Judge, presiding.</p>

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

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

Louis; the Hon. B. H. Ganby, Judge, presiding. This was a suit by attachment, commenced by M. E. Dougan against J. O. Brown and George P. Seymour, in East St. Louis, before a justice of the peace,,the plaintiff’s claim being for the sum of $21 due on a promissory note executed to him by the defendants.

O. H. Horton, Judge, presiding. On December 18, 1879, Frank Kieffer died testate, in Cook county, this State, leaving surviving him, Mary Kieffer, his. widow, and Jacob, Peter, Annie, Katie, Maggie, Frank, and Nicholas, his surviving children, and also a posthumous son, named Christian.

<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>Writ oe Error to the County Court of Lee county; the Hon. B. S. Farrand, Judge, presiding.</p>

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

<p>Appeal from the County Court of McLean county; the Hon. Colostine D. Myers, Judge, presiding.</p> <p>This is an appeal from a judgment of the county court of McLean county, against certain lots owned by appellant in the city of Bloomington, for special taxes, interest, costs and penalties rendered on the report of the county collector of said county, to the effect that he had been unable to collect a city special tax for the year 1890, for paving and laying service pipes on Main street, in said city, south of Jefferson street. To the application for said judgment appellant appeared and filed objections. On his first appearance he filed a single objection, as follows: “Objector says that there are no valid assessments against his said property for paving South Main street, or for service pipes, or otherwise, levied or assessed, by any valid law or ordinance, or by any valid confirmation judgment, or otherwise, due or to become due to the People of the State of Illinois, to the county of McLean, or firms of persons, or to any corporation, as alleged in the application for judgment herein, or otherwise.” Subsequently, by leave of court, he filed twelve additional objections. The first of these, like the preceding one, points out no particular illegality or irregularity in said special assessment proceedings, but charges generally “that they are wholly without authority of law, and are therefore null and void.” The second, third, fourth, fifth - and. twelfth, are, in substance, the same, in each "of which the point of objection is, that when a street has been .once paved by a city at the expense of abutting property owners, by special assessment or special taxation, “all the particular benefits to the locality derived from the improvement have been recovered, and the property can not be assessed a second time for a like improvement. ” The sixth alleges that a large majority of the property owners on said street protested and remonstrated against said “alleged ordinance and assessment. ” The seventh, that no public necessity existed for said pavement. The eighth, that if any necessity existed for repairing said old pavement, the city had now adopted the policy‘of making all repairs on streets at the common expense of the city, and to impose the burthen of the tax in question upon abutting property owners, as a means of repairing the pavement, is unjust and oppressive. The ninth, that the work of paving said street is about to be done in a manner different from that prescribed by the ordinance. The tenth, that the judgment of the county court of McLean county, confirming said tax assessment against the property of objector, is void for want of jurisdiction of the subject matter, because commissioners to estimate the cost of said improvement, and make the assessment as required by the statute, were never appointed by said court. The eleventh, that said special tax proceeding, and the confirmation thereof, are null and void, because at the time of the said confirmation there was no entry, and never had been, on the record or docket of the county judge of the county court of said county, or upon any other court record of said county, of the appointment of commissioners to make said assessment.</p> <p>The grounds of reversal urged are: ■ First, the record fails to show that the city of Bloomington has adopted “article 9, of the general" Incorporation act, in relation to cities, villages and towns, from which source alone comes the power to levy the alleged special tax assessment "attempted to be collected in this case;” second, there is an “entire absence in this record of any ordinance authorizing' any local improvement to be made, and imposing either special taxes or special assessments upon the property of appellant for the payment of the same;” third, the record “contains no evidence'whatever that there was ever any confirmation judgment for the alleged special tax assessment against the property of appellant. Nor is there a particle of evidence that appellant ever knew or heard that there were any confirmation proceedings instituted by the city to confirm the special tax attempted to be assessed against his property for local improvements;” fourth, “the record contains nothing that makes the collector’s return of special taxes or special assessments prima facie evidence of anything it contains;” fifth, the city had no “lawful authority to take up a good and substantial pavement in a street then in good repair and suitable for the public use, that had been laid by the city at the expense, in whole or in part, of the abutting land or lot owners, and to lay in its stead an entirely new pavement, with other and different material, and assess the entire cost of such new pavement upon the same abutting lands or lots, and do that when and as often as fancy or caprice may move it to act.” Also, the court below 'committed the following errors in its rulings and decisions at the hearing: First, in overruling appellant’s motion to have a jury called to try all questions of fact raised by his objections; second, in refusing to allow appellant to call witnesses to prove the facts alleged in each and every of his objections; third, in overruling each and every of said objections of its own motion, and rendering judgment of sale, etc.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Logan county; the Hon. George W. Herdman, Judge, presiding.</p>

<p>1. Quo warranto — to dissolve village corporation — less than three hundred inhabitants. In a proceeding by information in the nature of a quo warranto to test the legality of the formation of a village, the relator may reply to the plea setting out the proceeding to incorporate, that at the time of the filing of the petition with the county clerk there was not within the territory designated a population of at least three hundred inhabitants, as required by the statute, and such replication will be good on demurrer.</p> <p>2, Practice — quo warranto — carrying demurrer to replication bach to plea. Where a demurrer to a replication to a plea in a proceeding by quo warranto is overruled, it is irregular to carry the demurrer back and sustain it to the plea, but if the respondents stand by their demurrer to the replication, and allow judgment to go against them on that issue, and the replication is good, the error in carrying the demurrer back to and condemning the plea will be harmless.</p>

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

<p>Appeal from the Circuit Court of DeKalb county; the Hon. Charles Kellubi, Judge, presiding.</p>

Henry M. Shepard, Judge, presiding. August 28, 1882, appellants, the Traders’ Insurance Company and the Agricultural Insurance Company of Watertown, New York, issued their several policies of insurance on a frame dwelling, and furniture therein, to Sarah Hirsch, owner, running five years, in the sum of $2500 each on the house and $500 on the furniture, aggregating $6000 of insurance against loss or damage by fire.

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

<p>Appeal from the Circuit Court of Douglas county; the, Hon. E. P. Vail, 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. William H. Snyder, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Edgar county ;• the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

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

<p>1. Chancery— sufficiency of evidence to support decree. Where the evidence in a suit for divorce is taken orally in open court, and it is conflicting, the finding of the chancellor will not be disturbed by this court merely on the ground that the record fails to show, on its face, that the preponderance of the evidence is with that finding, for the reason that the chancellor has had better opportunity of judging of the weight to be given to the testimony of the several witnesses from their manner of testifying and their appearance on the stand.</p> <p>2. Witness — credibility—-judged by manner of testifying. Sometimes the countenance, tone of voice and manner of a witness while testifying will contradict and deny the truth of his words, and the law does not require that the chancellor shall believe the testimony of one thus self-impeached, especially if it is inherently impossible.</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>Constitutional law — weighing coal before screening — depriving persons of property rights. The act of 1891, which requires the owners and. operators of coal mines, when the miner is paid on the basis of the amount of coal mined and delivered by him, to weigh the coal on pit cars before it is screened, and to pay on such weights, is in violation of section 2 of article 2 of the State constitution, as depriving a class of persons of the liberty and of the property right of making contracts, without due process of law.</p>

<p>1. Husband — his estate, at common law, in his wife’s lands. At common law, by virtue of the marriage alone, and without the birth of issue, the husband was seized of an estate during coverture in the lands held, by his wife in fee. He was said to be seized of the freehold jure uxoris, and took the rents and profits during the joint lives of himself and wife. This estate terminated on the death'of either the husband or the wife.</p> <p>2. A husband’s marital estate, at common law, in his wife’s land was such as might be sold on execution against him. It was a vested estate in him, and it was not competent for legislation, without his consent, to take it from him and give it back to his wife.</p> <p>3. A husband’s estate jure uxoris in his wife’s real estate, at common law, on the birth of issue capable of inheriting, is changed in its character, and he becomes tenant by the curtesy initiate, and, as such, entitled to an estate in his wife’s lands in his own right and for his own life.</p> <p>4. Same — effect of Married Woman’s act of 1861. Since the Married Woman’s act of 1861, the husband has not had such an interest in his wife’s land by the curtesy initiate as to amount to a vested interest. His interest is contingent until the death of his wife, and before her ■death a law cutting off the estate by the curtesy is valid, and defeats the husband’s estate or interest, whatever it may be.</p> <p>5. The Married Woman’s act of 1861 had the effect of abolishing the •estate known as the estate during coverture or tenancy by the marital right, but it did not destroy the estate of tenancy by the curtesy initiate. That estate, however, was materially modified by the act. Under the act the husband, as tenant by the curtesy, had no control over his wife’s lands. His interest as such tenant could not be conveyed by him, nor was it. subject to execution. His estate became consummate only •on the death of his wife seized of the property. It was liable to be ■defeated by her disposition by will.</p> <p>6. Estate by the oubtesy — -its requisites and qualities. Four things, at the common law, are requisite to an estate by the curtesy: lawful marriage, actual seizin of the wife, issue capable of inheriting, and death of the wife. The first three constitute tenancy by the curtesy initiate; •on the death of the wife it became consummate. The estate by the curtesy initiate could be sold under execution against-the husband. It is a vested estate, of which the holder can not be deprived by subsequent legislation.</p> <p>7. Vested rights — what constitute — not destroyed by legislation. An interest in property which can be seized on execution, and sold by creditors in payment of their debts, is such a vested interest as the fundamental law will protect from destruction by retroactive legislation.</p> <p>8. Same — not a mere expectation of property. It is well settled that a mere expectation of property in the future is not a vested right, and may be changed, modified or abolished by legislative action.</p> <p>9. Dower — not a vested interest before the death of husband or wife. The right of dower, to which a married woman is entitled in her husband’s real estate before his death, is not a vested interest, and may be changed by the legislature at any time before the death of the husband. The same rul e applies to the husband’s dower in his wife’s land . The case of Russell v. Rumsey, 35 Ill. 362, in so far as it holds otherwise, is overruled or not followed.</p> <p>10. Same — husband’s dower. A woman, in 1858, became seized in fee of land. In 1868 she married, and in 1870 a child was born of the marriage, and she died in 1878: Held, that her husband had no estate by the curtesy, but had the right only to dower in the wife’s lands.</p>

<p>1. Evidence — of the worth of services. On the trial of an action for a personal injury to the plaintiff, he was asked what his services were reasonably worth, in his estimation, per day, for the time he lost on account of such injury. He answered: “Well, I would say this: that for just my services alone, a dollar and a half a day. May be that is high, and may be it is notHeld, that the answer was but the expression of the opinion of the witness of the fair and reasonable pecuniary value of his services by the day during the time mentioned, and the-evidence was clearly competent.</p> <p>2. Appeals — reviewing the facts. In an action on the case to recover damages for a personal injury, the affirmance of a judgment for the plaintiff by the Appellate Court is conclusive evidence in this court on-all questions of fact. The decision of that court that the evidence sustained the verdict of the jury, and that the plaintiff used ordinary care, is final, and can not be reviewed by this court.</p> <p>3. Pbactice in the Sttpbeme Coubt — error will not always reverse. Where the evidence is atople that a railway train, at the time of inflicting a personal injury in a village, was running at a speed prohibited by ordinance, and that fact is not controverted, the testimony of two-witnesses that the train, before reaching the village, was running at a greater rate of speed than allowed by such ordinance, is not such errólas to call for a reversal, as it can work no prejudice to the company.</p>

<p>1. Evidence — expert testimony — when it is admissible. In an action against a railway company to recover damage to crops by flooding plaintiff's upper lands by means of an embankment across a watercourse, the defendant called a witness as an expert, and sought to show by him that the overflow which produced the injury was the result of natural causes, and not of the construction of the embankment, which the court refused to admit: Held, error to refuse the proposed evidence.</p> <p>2. Upon questions relating to the arts or sciences the opinions of persons who have made the. subject matter of inquiry the object of particular study and attention are admissible.</p> <p>3. Where the subject matter of inquiry is of such a character that it may be presumed to be within the common experience of all men of common education moving in ordinary walks of life, the opinions of experts are inadmissible.</p>

Charles J. Scofield, Judge, presiding. This was a bill in chancery, brought by Margaret Brown .-and Mary E. Kirk, against Ellen Brown, James A. Brown, Jr. and others, for the recovery of dower and for partition.

<p>Appeal from the Circuit Court of Adams county; the Hon. Oscar P. Bonnet, Judge, presiding. '</p>

<p>1. Taxation — where personal property should be taxed. A party having a farm situate partly in one county and partly in another, is taxable on his personal property in the county in which he has his actual residence, no matter what may be his motive for choosing one county in preference to the other.</p> <p>2. At common law, personal effects follow the owner, and have their situs with him or at his domicile for many purposes, including that of taxation. A personal property tax is to be assessed against the owner at the place of his residence, except so far as the rule may be changed by statute.</p> <p>3. Same — where live stock should be assessed. Where a man pastures his cattle on his own land in another county than his residence, and feeds out his grain there through his hired hands, after which he moves them to his home farm, such cattle should be assessed against him at the place of his residence, and not in the other county. Section 9 of the Eevenue law does not apply in such case, as the cattle are within his control all the time, and the hired man is not his agent.</p> <p>4. Same — live stock connected with a farm in different townships or counties. Section 8 of the Eevenue law, which requires live stock connected with a farm upon which the owner does not reside to be assessed in the district where such farm is situated, does not apply where the farm on which the stock is kept lies in several districts or two different counties, and the stock passes from one part of the farm to another. A farm may consist of any number of acres, of one or many fields, and may lie in one township or county, or in more than one.</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 Christian county; the Hon. Jacob Eouke, Judge, presiding.

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

George W. Herdmae, Judge, presiding. On the 5th day of May, 1889, Starkey B. Powell died at his residence in Winchester, Scott county, testate. Held: we think the appellant can make no complaint in this respect. Objection is made to the following, which was held at the instance of the appellee: “6. Under the laws of this State handwriting can not be proven by comparing an alleged signature with a genuine one.

Colostine D. Meyebs, Judge, presiding. This is a petition, filed in the County Court of McLean County on November 19, 1891, by the City of Bloomington, for the appointment of commissioners to assess the special taxes to pay for the opening and extension of an alley in a block in that city, “including compensation for property taken, or damaged, if any, or both, and the cost of an assessment of a special tax to pay therefor, and of the collection of the same, and of…

Wbit of Error to 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; This is a writ of error to the Appellate Court for the Third Appellate District, to bring in review the judgment of that court on appeal from the circuit court of Sangamon county.

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

<p>1. Administration op estates — duty of creditor to file claim %n county court within two years. The statute requires all claims to be exhibited to the county court within two years from the granting of letters of administration, and declares that “all demands not exhibited within two years, as aforesaid, shall be forever barred.” Under this statute, although the administrator may be informed of the existence of a claim, and may so state to the court that a certain debt is outstanding, with a view to lay a foundation to institute proceedings to sell land to pay debts, still those facts will not relieve the creditor of the duty of filing his claim in the county court for adjudication, if he wishes to prevent the running of the statute.</p> <p>2. Same — effect of decree of foreclosure on the two years’ limitation’. The filing of a bill against the administrator and heirs of a deceased mortgagor to foreclose, and obtaining the usual decree of sale on the failure of the defendants to pay the sum found due within a time fixed, when the decree does not require the administrator to pay any deficiency after the sale of the mortgaged premises, will not take the case out of the two years’ Statute of Limitations as to such deficiency, or excuse the failure of the mortgagee to exhibit the note to the county court within two years, after grant of letters.</p> <p>3. A decree for the foreclosure of a mortgage, on bill against the administrator and heirs of a deceased mortgagor, finding the sum due upon the mortgage, and providing that on default of payment by a day named the premises be sold, is to that extent binding on the administrator, but no further.</p> <p>4. Same — foreclosure against estate — decree for deficiency. Where the statute (chap. 95, sec. 6,) is followed in a proceeding to foreclose a moitgage as against the personal representative of a deceased mortgagor, on bill filed within two years after the grant of letters, and a decree rendered for the amount of the deficiency of the debt left after sale, to be paid by the administrator in due course of administration, such deficiency may be collected from the assets of the estate as other claims of the seventh class.</p> <p>5. A decree of foreclosure of a mortgage finding the amount due on the mortgaged premises, provided that the administrator of the estate of the deceased mortgagor pay, or cause to be paid, such amount to-the complainant in twenty days, with interest and costs, and that on default of such payment the premises be sold, etc. Sale was made, leaving a balance of $1,489 unpaid, which was reported and approved by the court, but no decree was entered requiring the administrator to pay this amount in due course of administration, or otherwise: Held, that the decree could not be regarded as one for the payment of money against the administrator, which would entitle the complainant to share with other creditors in the assets of the estate.</p> <p>6. Same — judgment against administrator in a suit brought within two years. A judgment or decree obtained in a suit, in any court of competent jurisdiction, against an administrator, which is brought within two years from the grant of letters of administration, is as binding on the estate as if the claim had been presented and allowed in the county court.</p> <p>7. Same — effect of report of administrator to remove the bar of the Statute of Limitations. Within two years after the grant of letters of administration the administrator presented his report to the county court, showing the amount of claims allowed against the estate, the claims filed and not allowed, and also showing that a creditor had a claim, and its amount, which was approved, but such last named claim was never filed in that court, nor any copy thereof: Held, that the action of the administrator and the court was not sufficient to take the claim out of the two years’ Statute of Limitations.</p>

This was a bill in chancery, brought by the Hazelton Boiler Company, a corporation organized under the laws of New York, against the Hazelton Tripod Boiler Company, a corporation organized under the laws of Illinois, and Charles B. Holmes, Milton W. Hazelton, Charles B. Hallett and W. E. Kirkpatrick, to restrain the defendants from using the name “Hazelton Tripod Boiler Company,” the name “Hazelton Boiler,” and the word “Hazelton,” in their business of manufacturing and…

Jesse J. Phillips, Judge, presiding. This is an action on the case, begun on April 17, 1890, in the Circuit Court of Sangamon County by the appellee against the appellant company. In the trial court, the verdict and judgment were in favor of the plaintiff, which judgment has been affirmed by the Appellate Court. The declaration consists of two counts.

<p>Writ of Error to the Circuit Court of Coles county; the Hon. James T. Hughes, Judge, presiding.</p>

<p>1. County poor house keeper — duration of appointment. A county board of supervisors is empowered by statute to acquire land for a poor house, and to appoint a keeper thereof, and to make provision for the care, custody and support of the poor; but such board has not the power to contract with the person appointed as poor house keeper, for the management of the poor house and farm and care of paupers, for a period extending to three years, and if such contract is attempted to be made it will be void.</p> <p>2. Counties — source, nature and manner of exercise of their powers. Counties are political divisions of the State, created for governmental purposes, and they possess such powers as have been conferred by the constitution and legislative department of the State. Their powers are of a public nature, conferred mainly for public purposes, and they should be exercised in such a manner as will best promote the interests and advance the welfare of the people.</p>

Wbit of Ebeob to the Appellate Court for the Third District; —-heard in that court on writ of error to the Circuit Court of Menard county; the Hon. Cybus Eplee, Judge, presiding.

<p>1. Insurance — of the change of title to the property — contract of sale. A party holding a policy of insurance, which provided that if any change should take place in the title or possession, except by succession or death, the same should become void, contracted to sell the property to a third person, without leave of the company, for the price of $275, of which $175 was paid and a note given for $100, due in forty days after date. The possession was not changed, and the note and bond for a deed were placed in the hands of another person, with instructions to deliver the bond to .the purchaser on payment of the note, but if he failed to pay, the bond was to be returned to the vendor. The note was never paid, and the premises were destroyed before the maturity of the note: Held, that the facts stated did not constitute a change of the title to the property, and therefore would not defeat a recovery on the policy.</p> <p>2. Although the assured may have contracted for the sale of the premises insured without the written consent of the insurer before a loss, this will not necessarily render the policy void. Unless the title of the assured had passed to the purchaser at the time of the fire, there will be no change of title. A mere executory contract, by force of which it might pass at some future time, will not of itself constitute a change of title.</p> <p>3. Same — breach of condition — a question of law and fact. Where a. policy of insurance against loss by fire contains a condition that in case any change shall take place in the title or possession, except by succession or by reason of the death of the owner of the property, without the written consent of the company indorsed thereon, it shall be null and void, a contention of a breach of condition presents a mixed question Of law and of fact.</p> <p>4. Same — waiver of requirements of policy. A policy of insurance required notice of a loss to be given, under oath, within sixty days after the loss. Within sixty days an adjuster of the insurance company made out the statements of the loss from information derived from the assured, but this was not signed or sworn to by the assured. He left the same with the local agent thus incomplete, promising to get a decision from the company within a few days: Held, that evidence of these facts tended to show a waiver by the company of the production of proofs of loss. Whether such w'aiver is proved is a question of fact.</p> <p>5. Practice — trial without a'jury — preserving questions of law. In an action upon a policy of insurance, where the trial is had before the court without a jury, if the defendant wishes to raise the question whether a transaction constitutes an incumbrance on the property within the meaning of a condition therein, he should submit to the court a proposition presenting the question. Without this course the trial court is not called upon to rule on that question, at least in such form as to preserve its rulings in the record for review.</p> <p>6. The rule is well settled that in suits at law where a jury is waived and a trial is had before the court, and there are no rulings as to the admission of evidence to which exception is taken, and no propositions are submitted to be held as the law in the decision of the case, as provided by section 41 of the Practice, act, no questions of law are so preserved in the record as to be reviewed in this court.</p> <p>7. Same — refusing proposition of law embodied in other propositions marked “held.” There is no error in the court refusing to mark “held” a proposition of law on a trial without a jury, where the rule therein contended for is fully embodied in the propositions which were adopted and marked “held” by the court.</p>

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

B. S. Tuthill, Judge, presiding. This is an action of assumpsit, begun in the Circuit Court óf Cook County on May 20,1889, by the appellee against the appellant Association, to recover the benefits, or life insurance, claimed to be due to her by reason of the death of her husband, H. H. Loomis. The trial in the Circuit Court, resulted in a verdict and judgment for $2500.00 in favor of the plaintiff, which judgment has been affirmed by the Appellate Court.

S. P. McConnell, Judge, presiding. This is a quo warranto proceeding, to test the legality of the organization of the village of Harvey, in Cook County, this State.

<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. O. T. Beeves, Judge, presiding.</p>

Jesse J. Phillips, Judge, presiding. This is an action of assumpsit, begun in the Circuit Court of Macoupin County on May 16, 1889, by Marcus A. Wolff against the appellant, -Dorsey, to recover, as attorney’s fees, the sum of ten per cent upon the amount found to be due upon the promissory notes hereinafter mentioned in a suit theretofore brought upon said notes. The defendant demurred to the declaration. The demurrer was overruled.

<p>Appeal from the Circuit Court of Ford county; the Hon. Alfred Sample, Judge, presiding.</p>

<p>1. Bridges — county aid to build — record essential to support petition. The determination by the commissioners of highways that a necessity exists for the construction or repair of a bridge, which will serve as the basis of an application to the county board for aid under the statute, is the exercise of a corporate power vested in the commissioners, which can only be exercised at a meeting of such commissioners, and only be shown by the record of their proceedings required by the law to be made and kept.- It can not be shown by parol evidence.</p> <p>2. Same — mandamus to compel county aid — defect in records waived. The fact that the records of the commissioners of highways, at the time of the refusal of the county board to grant aid in rebuilding a bridge, fail to show that they had made the proper orders required of them, will not prevent them from maintaining a mandamus to compel the county board to grant such aid, when its refusal is placed on other insufficient grounds, and the highway commissioners show, by an amendment of the records of their proceedings, that they had, before applying for aid, made the necessary determination and order.</p> <p>3. Highway-commissioners — amending records. The commissioners of highways, in a proceeding by mandamus to compel a county board to aid in the construction of a bridge, may show that an amendment of their proceedings was made by or under the direction of the same town clerk who was in office when the first meeting of that body was held, and whose duty it was to make a full and correct record'of the proceedings of such meeting, and made while he was still in office, and if he is prevented, by death or other necessity, from perfecting the record, they may show that the amendment was made by the direction of the same commissioners as were at the first meeting, acting officially at a meeting, under evidence that justified their action.</p> <p>4. Where the official action of the commissioners of highways necessary to invoke county aid in the construction of a bridge has in fact been had, but by reason of some accident or oversight, or for some other cause, has been omitted by the clerk, it is competent to amend the record so as to correspond with the fact, and when such amendment is made the record as amended, unless impeached, is conclusive.</p> <p>5. Same — defects in record cured by amendment. ■ Where the amended record showed that prior to the presentation of petitions for county aid the commissioners of highways had officially determined that it was necessary to construct a new bridge immediately, and that a delay in so doing would be detrimental to the public interest; that the cost of such bridgé would be more than twenty cents on the $100 on the latest assessment of the town; that the levy of the road and bridge tax for the year was for the full amount of sixty cents on each $100 allowed by law for the commissioners to raise, and that the major part of thi's was needed for the ordinary repair of roads and bridges, and that said commissioners had unanimously voted that such bridge should immediately be built and that aid should be asked of the county board, this will entitle the commissioners to county aid, although at the time of the refusal of the county board the records of the commissioners failed to show such official determination and order, if the record of such action is afterward amended to show the facts.</p> <p>6. Pbactice — objections to evidence waived. Where an amendment •of a record of the proceedings of commissioners of highways in determining the necessity of rebuilding a bridge is given in evidence without objection, it will not be assumed that if objection thereto had been made the commissioners would have been unable to show the amendment was properly made.</p> <p>7. Where the record of a proceeding at law fails to show any objection, either general or specific, was made in the trial court to the introduction in evidence of the records of the-commissioners of highways,' if there is any valid objection to their admission it must be considered as waived.</p> <p>8. This court has repeatedly held, in actions and proceedings at law, that when no objection to the admission of testimony is made in the court below, an objection to it can not be urged, for the ñrst time on appeal or error.</p> <p>9. Appeals and whits oe ebboe — judgment of Appellate Court as to facts. The judgment of the Appellate Court affirming the judgment of the circuit court in awarding a mandamus, conclusively settles all questions of fact in favor of the plaintiffs.</p>

<p>Writ of Error to the Circuit Court of Coles county; the Hon. Francis M. Wright, Judge, presiding.</p>

<p>1. Mortgages and deeds op trust — qualification of party to purchase umder. A party, to secure the repayment of a sum of money in five years, took a deed of land, which was to become absolute if not paid in five years, and which was subject to a prior and first lien of a deed of trust. Before the maturity of his debt the debtor informed him of his inability to pay, and abandoned all claim to the land. The party holding such de'ed then procured the trustee to make a sale of the land under the power of sale, and became the purchaser, and obtained a deed: Held, that after such abandonment the creditor did not sustain such a. relation to the debtor as to preclude him from becoming a purchaser under the trust deed, and that a judgment creditor of the debtor could not redeem from the deed taken as a mortgage, and subject the land to the payment of his judgment.</p> <p>2. SAME' — sale under, to subsequent mortgagee. A sale and conveyance of land under a trust deed, in accordance with its terms, executed and recorded in 1877, tó a party not disqualified from purchasing, which trust deed was the prior lien on the land, will pass the title to the purchaser, although he may have had a mortgage on the land growing out of a transaction subsequent to the execution and recording of the deed of trust.</p> <p>3. Evidence — of abandonment of claim — quit-claim deed. After a party has abandoned his claim of the right to have a conveyance of property for inability to make payment therefor, a quit-claim deed from him, although no title may pas's thereby, is admissible to corroborate other evidence that he has abandoned all claim to the property.</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. R. W. Clifford, Judge, presiding.

Alfbed Sample, Judge, presiding. This is a hill in equity for an injunction, by John Wilson, against J. N. Bondurant and the commissioners of highways of the town of Wall in Ford óounty.

<p>Appeal from the Circuit Court of Champaign county; the Hon. Ferdinand Bookwater, Judge, presiding.</p>

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