Volume 150 — Illinois Reports

<p>1. Exceptions — preserving in the record. Where no exception is preserved to the ruling of the court in the giving, refusing or modifying of instructions, or in overruling the motion for a new trial, the assignments of error questioning such rulings will not be before this court for consideration.</p> <p>2. Same — whether limited, to the judgment, or extended to embrace motion for a new trial. The language of a bill of exceptions was as follows: “But the court overruled the motion” (for new trial) “and rendered judgment in accordance with the finding of the jury, to the rendition of which judgment the defendant then and there excepted Held, that the exception did not embrace the ruling on the motion for a new trial, but expressly limited the exception to the entry of the final judgment.</p> <p>3. New tbiaii — overruling motion — exceptions. The statute (sec. 61, chap. 110,) gives the right to assign error upon the decision of the court overruling motion for new trial, only in case the party has excepted to such decision.</p>

Philip Stein, Judge, presiding. This was a bill, in the Superior Court of Cook county, to redeem, brought by Mathias Helbreg and Sophia E. Schumann, as conservators of Julius Schumann, an insane person, against Gustav Schumann, Theodor Guenther, Magdalena Yon der' Heide, and Thomas J. McGrath, trustee.

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

B. B. Burroughs, Judge, presiding. This was a hill in chancery, in the circuit court of Perry county, brought hy appellees, as heirs-at-law of Philip C. C. Provart deceased, against the widow and other co-lieirs-at-law, and their respective husbands and wives, to set aside and have annulled certain deeds purporting to convey to five of his sons, in severalty, certain lands in said deeds described, to have said lands declared a part of decedent’s estate, the dower and…

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the County Court of Hancock county; the Hon. John D. Miller, Judge, presiding.</p>

<p>1. Deed — delivery necessary to validity. Where a party signing and acknowledging a deed- to his two sons is shown to have had a fixed purpose to give his land to them to the exclusion of his daughter, and believed he had accomplished that purpose by such deed, yet if he did not deliver the same in his lifetime, or intend it to take immediate effect without delivery, it will be void, and pass no title.</p> <p>2. A father had made a deed of land to his two sons, and placed the • same in the hands of his wife, and the day before his death he had his wife bring him the deed, and he then gave the same to one of his sons, stating that was for him and his brother: Held, that these facts showed the delivery of the deed.</p> <p>3. Wild — recital of a gift not made. Where the testator, in his will, recites that he has, by some instrument other than the will, given property to a person named, when, in truth and in fact, he has not done so, such erroneous recital will not disclose a purpose and intent to give by the will. In such case resort must be had to the other instrument, and not to the will.</p>

<p>Writ of Error to the Circuit Court of McLean county; the Hon. Thomas E. Tipton, Judge, presiding.</p>

Samuel D. Wead, Judge, presiding. At the May term, 1892, of the county court of Peoria, county, upon petition of the city of Peoria for confirmation of a special assessment for the improvement of that part of Main street, in said city, lying between the upper line of Water street and the upper line of Bluff street, a decree was1 entered confirming such assessment.

<p>1. Local improvements — -discretion of municipal authorities. In the passage of an ordinance providing for a local improvement, the city council is clothed yith power to determine what improvement is required,its nature and character, when it shall be made, and the manner of its construction. These are matters resting in the discretion of the city council, and that discretion, when honestly and reasonably exercised, can not be reviewed by the courts.</p> <p>2. Cities and Villa&es aot — amendments—article 9. The sections-of the act of April 29, 1887, relating to cities and villages, were passed to amend article 9 of the general Incorporation aot, and became a part of it. By the aot of June 15,1891, sections 55 and 63 of the act of 1887 were amended, and the aot of 1893 is to he regarded as an amendment to the act of 1887, as amended by the aot of 1891, as it relates to the same subject matter, and, in effect, changes the sections of the act of 1887 relating to the oolleetion of special assessments.</p> <p>3. The mere fact that the act of 1893 does not, in its title, profess to-amend article 9 of the Cities and Villages act, is unimportant. If the later aot made a change in the mode of procedure, it may be regarded as an amendment to the other aot, and the act of 1893 includes special taxes as well as special assessments, which may be made payable ih installments.</p>

<p>1. Negligence — what constitutes contributory negligence. Contributory negligence is nothing more or less than negligence on the part of the plaintiff, and the rules of law applicable to negligence in a defendant are applicable thereto. In general, the question of negligence is one of fact. Hence an instruction is properly refused which tells the jury, as a matter of law, that certain facts per se constitute negligence. Knowledge of a defect in a sidewalk by a person injured, before he goes upon the same, or before the injury, does not per se establish negligence on his part.</p> <p>2. "While one may voluntarily and unnecessarily expose himself or his property to danger without thereby becoming guilty of contributory negligence, as a matter of law, yet it is an established rule that when one does knowingly put himself or his property in danger there is a presumption that he, ipso facto, assumes ail the risks reasonably to be apprehended from such a course of conduct. But knowledge in this respect does not necessarily constitute contributory negligence. One may exercise due care with full knowledge of the danger to which he is exposed or to which he may lawfully expose himself.</p> <p>3. The mere fact that a traveler is familiar with a road or sidewalk, and knows of a defect therein, will not impose on him the duty to exercise more than ordinary care in avoiding it. Such knowledge is a circumstance, but it should be submitted, with the other facts of the case, to a jury, for them to determine whether, with such knowledge, the plaintiff exercised ordinary care in proceeding on a way known to be dangerous, or, in proceeding, used ordinary care to avoid injury. But the mere fact that the obstructed or defective street was out of the way of the point at which the traveler was arriving, or that he might have taken a nearer way, is immaterial, as it is the duty of the town to repair all of its sidewalks.</p> <p>4. Same — notice of danger — evidence of negligence. The exposure of person or property to injury with knowledge of the danger to which the same is exposed, is evidence of negligence, as a matter of fact. Therefore, if a person attempts to pass over a sidewalk, bridge or other structure, knowing the same to be in a dangerous condition, and in such attempt receives injury, his knowledge of the danger will presumptively establish contributory negligence. But such presumption is not conclusive. It may be rebutted by evidence of the exercise of ordinary care under the circumstances of the particular case.</p> <p>5. Contributory negligence is not shown by proof that after knowing the condition of the street the plaintiff traveled on it after dark; and the fact that a traveler on a highway perceives that an obstacle therein is dangerous to persons attempting to pass it, is not conclusive that he does not use due care in making the attempt. Nor does the mere fact that the plaintiff might have taken better and safer sidewalks than the one he did take, charge him with want of ordinary care.</p> <p>6. In an action against a village for a personal injury resulting from a hole in a sidewalk, one of the ultimate facts for the jury is, was the plaintiff guilty of contributory negligence. And the fact that he or she returned home in the night time over the defective sidewalk, with knowledge of its unsafe condition, is a circumstance proper to be shown, as tending to establish such negligence. It is an evidentiary fact proper to go to the jury, as having a tendency to prove the ultimate fact in question.</p>

■ Appeal from the Circuit Court of Piatt county; the Hon. Francis M. Wright, Judge, presiding.

<p>1. Lease — extension of term — option of lessor to extend or sell to lessee —construed. In 1875 the owner of premises leased the same from May 1, 1875, to May 1, 1880. The lease was extended, from time to time, by indorsements made thereon, the last being April 23, 1890, extending the lease from May 1, 1890, to May 1, 1895, which indorsement was as follows: “This lease * * * is extended five years from May 1,1890, upon the same terms and conditions of above extension made and dated April 8, 1885. At expiration of this extension it shall be the privilege of the party of the first part, or his heirs or assigns, to extend the said lease from May 1,1895, at $1200 per year, payable in monthly installments, with all the conditions of the original lease, or to sell * * * the party of the second part * * * for $30,000, the said party of the second part accepting the above conditions and terms:” Held, that the extension of 1890 gave the lessee no rights in the property after May 1, 1895.</p> <p>2. The advantage to be derived from the privilege was a part of the consideration for the extension of the lease from May 1,1890, to May 1, 1895, and the fact that the lessee accepted the terms and conditions of the extension from May 1,1890, to May 1,1895, including the privilege in question, did not operate to impose upon the lessor a contract to either extend the lease to May, 1900, or sell the premises at the figure named.</p>

<p>1. WiliiiS — devise construed — “heirs” a word of limitation. A testator provided by his will as follows: “After the death of my wife, as aforesaid, I give and bequeath unto my beloved daughter, N., during her natural life, and after her death to descend and vest in her legal heirs, thirty-five acres,” describing the land; Held, that the daughter took the title to the land in fee.</p> <p>2. Bulb in Shelly’s case — the word “heirs.” The rule is, whenever the ancestor takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, either in fee or in tail, the word “heirs” is one of limitation of the estate, and not of purchase, and the ancestor takes the fee.</p> <p>3. The word “heirs” being used in the generally accepted legal sense, is, under the rule, one of limitation, and no intention of the testator, however clearly expressed, can change it into a word of purchase.</p>

<p>1. Election — organization of village — form of ballot. A ballot east at an election to organize certain territory as a village, which reads, “Against corporation,” can not be counted on the question of incorporation. The ballots should be “Eor village organization under the general law,” or “Against village organization under the general law,” as required by the statute.</p> <p>2. Continuance — motion not supported by affidavit. On the contest ■of an election for the organization of a village, a ballot of a voter was informal, being “Against corporation,” instead of “Against village .organization under the general law.” After this fact was discovered by those contesting, and during the trial, they asked the court to postpone the trial, to enable them to produce the voter to explain his vote, but the application was not based upon any affidavit showing diligence in producing the voter as a witness, or excuse for the want of diligence: Held, that the postponement was properly denied.</p> <p>3. Practice in the Supreme Court — objections not raised in trial court — coming too late. The rules of practice will not justify the reversal of a judgment upon a ground not suggested in the trial court, and raised in this court for the first time by way of reply, and when it is too late for the other side to be heard upon it. The general rule is, that the appellant must abide by the case made in his opening brief, and if he does not there show a sufficient ground for a reversal of the judgment, he can have no ground for complaint if it is affirmed.</p>

<p>land to correspond with an old road not laid out, without acceptance after that by the public, does not constitute a highway by dedication.</p> <p>2. Same — establishing by prescription — passive use. The user of private property, to ripen into a prescriptive right, must be adverse to the owner. Mere passive use is never sufficient. It must also be open, adverse and under claim of right.</p> <p>3. Same — by prescription — over uninclosed lands. In order to establish a public highway, by prescription, over uninclosed lands, there must be something more than mere travel over it by the public. It must appear that the user is under a claim of right in the public, and not by mere acquiescence on the part of the owner. Express notice is not necessary, but there must be such conduct on the part of the public authorities as to reasonably inform the owner that the highway is used under a claim of right.</p> <p>4. Where a road through uninclosed land was on a tortuous line, the little work done on it in all the years it had been traveled can not be said to be notice that it was being used under a claim of public right. Where the authorities allowed other parts of the way to be fenced up and changed, the owner of the land had the right to presume that the road over it was being used by the public just as it was over other lands, and that by permitting it to be so used none of his rights were waived.</p> <p>5. Same — prescription—suffering parts of the road to be closed. On the question whether a road is a highway by prescription, and especially where it is at least doubtful whether the user over a party’s land was adverse, under a claim of right, or merely by permission, it is proper to show how the public authorities treated the road at other places, and that they suffered the owner of the lands to fence up the road.</p> <p>6. Same — changes in the line. In determining whether, under the evidence, a public highway has been established over a defendant’s land, the testimony as to changes at other points is also to be considered, as it is a part of the evidence in the case bearing on that question.</p>

Writ on 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, John P. Altgeld, Judge, presiding.

<p>Weit of Ebboe to the Circuit Court of Greene county; the Hon. Geoege W. Heedman, Juclge, presiding.</p>

Edward P. Yail, Judge, presiding. Appellee, administrator of the estate of Jacob Grimes, Sr., brought assumpsit against appellant, counting on two promissory notes, in several counts, each note bearing date August 15, 1876, due five and ten years after date, respectively, without interest, made by appellant to his intestate, and alleging in the several counts that said notes had been lost or destroyed, and after du'e search could not be found.

<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.</p>

<p>1. Practice in the Supreme Court — plea of release of error — reversal on demurrer. Where a demurrer is filed to a plea of release of errors, if the plea is held bad the judgment below must be reversed, without reference to the question whether the errors were well assigned.</p> <p>2. One of the objections in the circuit court to the record of the proceedings laying out a highway was, that it did not contain a written release of damages by P., one of the land owners over whose land the road was established. To the writ of error the defendants in error pleaded that on, etc., P., by his deed of that date, released to them “any and all errors in the record and proceedings aforesaid, so far as the same relate to himHeld, that the plea ivas clearly bad on demurrer, and that P., not being a party to the writ of error, could not release errors assigned by the plaintiffs in error.</p>

B. S. Tuthill, Judge, presiding. On the 16th day of July, 1889, the law firm of Dent & Black was garnisheed by John Q. Savage, for the use of Frank W. Harding, the action being predicated upon a judgment by confession obtained by Harding against Savage for the sum of $2203.91, rendered at the-June term of the circuit court, of Cook county, 1889. William M. Gregg filed an amended inter-veiling petition, to which the plaintiff demurred, and the court sustained the demurrer.

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

<p>Writ op Error to the Circuit Court of Johnson county; the Hon. A. K. Yickers, Judge, presiding.</p>

<p>1. Practice — special finding — precluding recovery on general verdict. In au action against a .manufacturing corporation to recover for a personal injury resulting from negligence, the jury found for tlie plaintiff, and in response to tlie question, “Could tlie plaintiff, by reasonable attention or the exercise of ordinary prudence, have known that it was dangerous to use a stick in the machine in the manner testified to by himself,” answered “YesHeld, that while this finding tended to establish the fact that the plaintiff failed to exercise ordinary care, it was not conclusive, and that there may have been other evidence tending to relieve the plaintiff’s act of such negligence as to preclude a recovery.</p> <p>2. Same — presumption in favor of general verdict. All reasonable presumptions will be entertained in favor of the general verdict, while nothing will be presumed in aid of the special findings of fact. The inconsistency between the general verdict and the special findings must be irreconcilable, so as to be incapable of being removed by any evidence admissible under the issues, to warrant the court to set aside the general verdict.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. A. S. Wilderhan, Judge, presiding.</p>

0. H. Horton, Judge, presiding. This was a bill for partition, brought by Anna Carr, against Katharine McDonald and others, to divide a certain lot in Young and Clarkson’s subdivision of a certain forty-acre tract of land in Cook county. There is no substantial controversy in this case in regard to the facts.

Writ oe Error to the Appellate Court for the Fourth District; — heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. B. E. Burroughs, Judge, presiding.

<p>1. Contract or sale — 1purchaser to pay indebtedness of vendor— discounting claims — right of vendor to the benefit thereof. A, failing to succeed in the brewery business, entered into an agreement with B, C and 33, by which a company was to be formed, and the property of A was to be turned over to the company so formed and his debts discharged. Stock was to be issued to the amount of $9000, of which $2000 was to be given to A, and he was to be employed by the company. The value of the property turned over by him was $14,000, or $9000 over and above a mortgage on the property. The stock received by A represented to him $2000 of its value. The others did not pay full value for their stock. They received $7000 in stock, representing $7000 in value of the property. For this they paid $7000 of A’s debts with only $1415.27, under a settlement with A’s creditors: Held, that they could not retain the discount, but must account to A for the same.</p> <p>2. The purchase money agreed to be paid was $14,000, and after applying the stock issued to A, his remaining indebtedness was $12,000, being' $5000 due on the mortgage and $7000 of other debts of A. B and the corporation paid this sum, on settlement with the creditors of A, with $4415.27: Held, that B and the corporation were liable to A for the amount of this discount at which they settled the indebtedness agreed to be paid, — in other words, they were liable to A for the difference between $7000 and $1415.27, to-wit, $2584.73.</p> <p>3. Same — construed—payment of debts of vendor. A, the owner of lots having a brewery thereon, sold the real estate to B for $13,000, and personal property connected with the brewery for $1000, the price to be paid as follows: $2000 in shares of stock in a brewery company as soon as organized, and the remainder to be by B applied on the debts of A, including a mortgage of $5000 on the lots sold. The company was formed and the lots conveyed to the company. A received his stock and applied $1000 thereof in payment of the personal property and a like sum toward payment of the $13,000, leaving a remainder of $12,000. A’s debts amounted to $12,000. There were ninety shares of stock issued in all, of the value of $9000: Held, that the stock issued to A was subject to its proportion of the burden of the incumbrance.</p> <p>4. Vendor’s lien — ■notice to second, purchaser. If the purchaser of lan d knows that his vendor is still owing a part of the purchase money, for which no security has been given, he will take the land subject to the implied lien of the original vendor.</p> <p>5. Same — promise to pay creditors of vendor. Where the grantee of land agrees with the grantor to pay a definite part of the purchase money upon debts of the latter, the lien of the vendor will not be waived. On principle there is no good reason why there shall not be a lien for unpaid purchase money due the vendor, whether such money is to be paid into the hands of the vendor himself, or into the hands of a creditor for his benefit. Equity looks to substance, and not form.</p> <p>6. Saids — in case of exchange of lands — promise to discharge liens. It has been held, that where there is an exchange of lands, a covenant by one of the parties to pay off the liens on the lands transferred by him, as part of the consideration of the land deeded to him, is as much an agreement to pay a part of the purchase money as though there had been an agreement to pay that amount directly to the vendor to enable him to pay off the liens.</p> <p>7. Same — limited to unpaid purchase price. The grantor’s lien is only permitted as a security for the unpaid purchase price of land sold, and not for any other indebtedness or liability. There must be a certain, ascertained, absolute debt owing for the purchase price. The lien does not exist on behalf of any uncertain, contingent or unliquidated demand.</p> <p>8. Same — waiver of the Ken. Where the obligation of the vendee to discharge a definite amount of indebtedness owing by the vendor appears to be substituted for the purchase money, or to be taken instead of the purchase money, or as a direct security for it, the lien is lost.</p> <p>9. Where land and personal property are sold together, under one contract, at a gross price, without stating the separate price of the land; and personalty, so that it can not be determined what part of the gross j>rice is for the one and what part is for the other, there will be a waiver of the vendor’s lien, as it will be presumed that the vendor intended to rely upon the personal responsibility of the vendee.</p> <p>10. Consideration — recital in a deed — subject to explanation. The formal clause in a deed reciting the consideration, is always open to explanation; and such a recital d oes not waive or destroy the vendor’s lien, but is only prima facie evidence of payment. The fact of the non-payment of all of the purchase money may be shown, and when such fact appears, a lien may be declared, notwithstanding the formal receipt for the purchase money.</p> <p>11. It is well settled that the recital of the consideration in a deed or bill of sale is not conclusive on either party, and that it maybe shown by parol what the true amount of the consideration is, and how it is to be paid.</p> <p>12. Corporation — -notice to officer or agent. Notice to the head officer or managing agent of a corporation may usually be regarded as notice to the corporation itself.</p> <p>13. Payment — election as to application. The debtor is entitled to elect on which of two debts a payment shall be credited, and it is the duty of the creditor to so apply it. But this election must be made at the time of the payment. Where the debtor pays generally, or fails to make the application when he might do so, the creditor may apply the payment to whatever debt he pleases, unless there are circumstances which would render the exercise of such discretion by him unreasonable, and unjust to the debtor. If no application is made by either party, the court will make it according to the equity and justice of the case.</p> <p>14. Practice — amending bill on the hearing. It is within the discretion of the court to allow a complainant to amend his bill on the hearing, where the amendment works no injustice or hardship to the defendant. Where the record shows that the defendant is also granted leave to amend his answer, and it does not appear that any exception was taken to the ruling of the court overruling the objection to the complainant’s amending his bill, or that any suggestion was made of surprise or of the necessity of a continuance, and there is nothing in the record to show that the defendant was injured by the action of the court, it can not be said that there was any abuse of discretion, or error, in permitting the amended bill to be filed.</p>

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

Writ op Error to the Appellate Court for the First District ; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding. This was a bill in chancery, brought by the Newberry Library, a corporation organized under the laws of Illinois, to obtain a construction of certain provisions of the will of Walter L. Newberry, deceased.

O. H. Hoeton, Judge, presiding. Appellant, being the legal holder of a note secured by trust deed upon certain property in Chicago, the title to which was in one Duncan, during his life, on August 26,' 1891, filed his bill to foreclose said trust deed.

James Goggin, Judge, presiding. This was an action brought by A. L. Pacaud and George W. Pacaud, a firm doing business under the name and style of A. L. Pacaud & Co., against the Traders’ Insurance Company, on a policy of insurance issued by the defendant to J. H. Million, of the firm of Million & Bott, doing business at Kahoka, in the State of Missouri, for the sum of f3500, with the recital therein, “loss, if any, payable to A. L. Paeaud & Co., as interest may appear.” It…

E. W. McCartney, Judge, presiding. On the 25th day of January, 1890, one John A. Fisher made his last will and testament, thereby disposing of all of his real and personal estate to divers persons therein named. The will was witnessed by J. J. Carson and Carrie F. Spence. Georgia Ann Carson, the wife of the said J. J. Carson, and Thomas W. Spence, the husband of the said Carrie F. Spence, are devisees and legatees under the will.

Writ or Error to tlie Appellate Court for the Eirst District ; — heard in that court on writ of error to the City Court of the City of Aurora; the Hon. Russell P. Goodwin, Judge, presiding.

<p>1. Drainage district — may include a village. A drainage district organized under the Farm Drainage act may include within its limits a part of the territory of a village already organized under the general law relating to cities and villages.</p> <p>2. It can not be doubted that the legislature has the power to authorize the organization of municipal corporations for one purpose, embracing territory situated wholly or partly within the boundaries of another municipal corporation already organized for another purpose.</p> <p>3. Section 11 and subsequent sections of the Farm Drainage act, which provide for the formation of districts for combined drainage out of territory lying within a single town, merely provide that the territory to be embraced in the proposed district shall lie within one town. Those sections are sufficiently broad to embrace any and all contiguous territory within a town which is so circumstanced as to require a combined system of drainage for agricultural or sanitary purposes, irrespective of whether any portion of it is already included within the boundaries of a pre-existing municipal corporation or not.</p>

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

Charles Kisllum, 3’udge, presiding. This is an appeal from a judgment of the Appellate Court, affirming a decree of the circuit court. The facts disclosed by the record are sufficiently stated by the Appellate Court, as follows: “In the year 1888 Thomas Lynch, Sr., died in DeKalb county, seized of two farms, one in DeKalb county and one in LaSalle county, leaving no widow, but seven children, his only heirs-at-law.

<p>1. Voluntary assignment — what constitutes. A transfer of property,, to be treated as a voluntary assignment under the statute, must be-a conveyance to an assignee in trust for the creditors. A transfer of' property by an insolvent directly to his creditor, for the purpose of securing or providing the means for the payment of that creditor, only, is not a voluntary assignment.</p> <p>2. Same — whether effected by giving judgment notes. The giving of judgment notes by an insolvent corporation, due on demand,.to three-of its creditors, followed by the entry of judgments thereon and the levy of executions on all the tangible property of the corporation, will not, of itself, constitute a voluntary assignment, nor is it, in any proper ■ sense, a diversion or misappropriation of a trust fund.</p> <p>3. Insolvent corporation — preferring creditors. The mere fact that a corporation may be insolvent does not so far charge its directors and officers with the character and functions of trustees as to take from them the power to make preferential transfers of the corporate assets, so long as they act in good faith, and do not attempt to prefer themselves.</p> <p>4. Same — misapplying funds — effect on innocent creditors. A corporation being unable to meet its obligations, procured a loan of $5000 ■ from certain of its creditors to enable it to continue business, and gave them its judgment notes for their debts and such loan, which notes were payable on demand. The creditors, becoming fearful of trouble with other creditors, caused judgments to be entered on their notes,. and took out executions, which were levied on all the tangible property of the corporation. The $5000 loan was afterward paid over to the principal stockholder, to apply on indebtedness to her: Held, that the ■ misapplication of the loan could hot affect the creditors thus secured,, they being in no respect privy to such misapplication.</p>

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

Weit ok Eeeoe to the Circuit Court of Peoria county; the Hon. Thomas M. Shaw, Judge, presiding. This is a bill filed by plaintiffs in error against the defendant in error to enjoin the latter from interfering with the possession of, or title to, a block of ground, alleged to be a “public square,” and to declare a deed of the same executed to, and held by, defendant in error, to be null and void.

<p>1. Moktgage — of leasehold interest. A mere term of years may be mortgaged, and the lien thereby created will be co-extensive with the term, and become extinguished by mere lapse of time whenever the term ends.</p> <p>2. Same — right of mortgagee in an option of mortgagor to purchase. A lessee, under a lease to him of one year, had an option to purchase the demised premises, and during the. term gave a deed of trust on his interest in the same. The lessee and the party secured by the trust deed did not elect to purchase during the term, and failed to exercise the option before the retraction of the same by the lessor: Held, that the trust deed became inoperative as a security, and was a cloud on the title of the lessor and his grantee.</p> <p>3. Same — removing, as a cloud upon the title. Before a deed of trust given by a lessee can be declared a mere cloud upon the title of the lessor or his grantee, and removed as such, no fraud, accident or mistake being alleged, it must appear either that the deed was originally invalid, and ineffectual to convey to or vest in the trustee or his beneficiary any interest, either legal or equitable, in the property, or that by reason of some subsequent event such interest has terminated and ceased to exist, so as to render the deed no longer a valid security upon any interest or equity in the property. But if either of these facts appears, the deed of trust is only an apparent, but not a real, incumbrance, and should be removed from the title of the lessor or his grantee.</p> <p>4. Same — mortgagee’s title — no better than mortgagor’s. While the trustee in a deed of trust, and his beneficiary, acquire a lien upon the legal and equitable rights he] d by the grantor at the time the deed was executed, they will take no rights superior to those of their grantor. The equities to which their lien attaches are subject, in their hands, to the same contingencies, and are liable to extinguishment in the same manner, they would have been if they had remained unincumbered in the hands of the mortgagor.</p> <p>5. Same — surrender of title by lessee — effect on his mortgagee. Where the holder of a lease giving an option to purchase land mortgages his interest in the premises, his subsequent surrender and conveyance of all rights remaining in him, to the lessor, will in no manner affect the rights of the mortgagee.</p> <p>6. Option oontbaot — lease with option to purchase. A lease of land for one year contained an agreement that upon payment in full of the rent reserved, and the execution of notes and a deed of trust for $1600, in addition to the rents, the lessor would convey the property to the lessee, but imposed no obligation on the latter to purchase: Held, that the option thus given was more than a mere offer on the part of the lessor, which he was at liberty to withdraw at any time before acceptance.</p> <p>7. Same — consideration. In such case, the contract embodied in the lease is an entire one, and the same consideration which supports the other provisions of the lease will apply to the option therein given to purchase during the term; and, the lease being under seal, a consideration sufficient to support all its provisions will be presumed.</p> <p>8. Same — right of lessor to retract the option. A binding contract for an option for a given time prevents any retraction of the offer during that time. When an option is based upon a sufficient consideration, and is in the nature of a contract, it is only when the period of its continuance is definite that the right to retract is suspended.</p> <p>9. Same — withdrawal of option — notice. After the time for electing to purchase under an option has passed, a conveyance by the party giving the option, and his subdividing the property, with other adjoining land owned by him, before acceptance of the offer, being acts inconsistent with the option, are sufficient evidence of a retraction of the offer. So, too, the filing of a bill by him to set aside a deed of trust given by the holder of the contract giving the option, is an act of the same character.</p> <p>10. Same — withdrawal of the option — not a forfeiture. The withdrawal of an unaccepted offer to sell land, or the retracting of an option which the other party has not seen fit to exercise, involves none of the elements of a forfeiture. It deprives no party of any right and abrogates no contract, but is merely the exercise of the right by a party to recede from a proposition which the other party has not seen fit to accept.</p>

Writ of Error to the Appellate Court for the Third District ; — heard in that court on appeal from the Circuit Court of Coles county; the Hon. E. P. Yail, Judge, presiding.

<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. Thojias F. Tipton, Judge, presiding.</p>

<p>1. Bank check — assignment “for deposit” — charging back to depositor for non-payment. Tbe payee of a check indorsed tbe same to his banker “for deposit,” to be placed to tbe depositor’s credit, and sent tbe same by mail to his banker. ‘ On receipt of the check tbe banker gave tbe depositor credit, on account, for its amount. Tbe banker, after placing on tbe check, “For collection and return,” forwarded it to the drawer for payment: Held, that tbe deposit of tbe check was, in legal effect, a negotiation of tbe same, so as to vest tbe legal title in tbe banker, with tbe right, on bis part, to charge it back to the depositor in case it was not paid on presentment, and that, tbe credit given tbe depositor in bis account was a sufficient consideration for tbe assignment.</p> <p>2. Banks and bankers — -embezzlement—act of June 4,1879, construed. Tbe first section of tbe “Act for tbe protection of bank depositors,” approved June 4,1879, which makes tbe failure or suspension of any bank or banker within thirty days after receiving any deposit, prima facie evidence of an intent to defraud, on tbe part of such bank, etc., does not apply exclusively to criminal prosecutions under tbe act, but applies to civil proceedings as well, wherever acts done in contravention of that section are tbe subject of judicial investigation.</p> <p>3. Tbe statute making it embezzlement for an insolvent banker to receive on deposit from a depositor not indebted to him "any money, check, draft, bill of exchange, stocks, bonds or other valuable thing which is transferable by delivery,” embraces in its terms checks not transferable by delivery, merely. Tbe words “transferable by delivery,” were intended to qualify tbe words “other valuable thing.” So tbe receiving on deposit of any check, draft or bill of exchange, whether transferable by delivery or by indorsement, is within the meaning of the statute.</p> <p>4. Evidence — its sufficiency — objection on appeal. In a proceeding against the assignee of an insolvent bank to compel the surrender of a check to a depositor on the ground of fraud in obtaining the same by the bank, it appeared that the check was produced on the hearing, but the evidence failed to show by whom it was produced. It further appeared that the case was heard upon the tacit assumption that the assignee had possession of the check, the prosecution and defense being conducted wholly on other grounds. The objection that the proof failed to show that the assignee had the check was not made in the trial court: Held, that there was no such failure of proof as to require a reversal.</p>

<p>1. Contract — rule of interpretation. The great rule for the interpretation of covenants is, to so expound them as to give effect to the actual intent of the parties, collected, not from a single clause, but from the entire context. The scope and end of every matter are to be considered, and if these be satisfied, then is the matter itself and the intent thereof also satisfied.</p> <p>2. Same — liquidated damages. If, from the nature of the contract, the damages can not be calculated with any degree of certainty, or if there are peculiar circumstances contemplated by the contract, the stipulated sum will be held to be liquidated damages.</p> <p>3. Mining lease — construed as to time of payment by the lessee. A declaration alleged that by the terms of a mining lease the lessee agreed to begin mining coal within twelve months from its date, and to guarantee the lessor a yearly royalty of not less than $1200 after the expiration of twelve months from the date, and that if, after the expiration of one year, no coal should be mined, the lessee should pay monthly installments of $100 on its guarantee of $1200 a year, and said payments should be considered as advanced royalty; and said lessee was to have the right to mine coal sufficient to make the amount of coal mined equal to the amount of royalty paid, provided the royalty should not be less than $100 per month. The royalty to be paid was three-eights of a cent per bushel, and it was alleged that such royalty should be paid monthly, on the 20th day of the month, for coal mined the preceding month; Held, that the word “royalty” applied not only to the three-eighths of a cent per bushel to accrue from coal actually raised, but also to the monthly payments of $100 to accrue upon the guaranteed yearly royalty of not less than $1200.</p> <p>4. Same — whether a lease or mere license. An instrument under seal which invests the grantee or lessee with the “sole and exclusive right” to mine, and operate in coal, on certain lands, which grant is not limited to any particular vein or stratum, but extends to all coal under said land, and reserves an annual rent or royalty for the coal mined, is not a mere license, but is a lease. A license is an authority to do a particular act or acts upon another man’s land without possessing any estate therein. A lease of the right and privilege to mine or take away stone or coal from the lessor’s land is the grant of an interest in the land, and not a mere license to take stone or coal.</p> <p>5. Same — -recovery of rent reserved. Aprovisioninaleaseformining coal, that the lessee or bis assigns shall pay a royalty of $1200 a year, payable monthly, whether any coal is mined or not, is a reasonable one, and may be enforced as liquidated damages.</p> <p>6. In an action upon the covenant in a mining lease to pay to the lessor a royalty on coal mined, not less than $1200, it is not necessary to allege in the declaration that there was minable coal that the defendant ought to have taken out, in the absence of any covenant on the part of the lessor as to the extent of the coal in the land leased. In such case, if there was any fact in existence which would be a bar to the action, the burden is on the lessee or his assignee to plead and prove it.</p> <p>7. Estoppel — to claim, a lease is a mere license. In an action by the lessor of coal land, against the assignee, the declaration averred the making of the lease under seal, whereby the plaintiff leased, set over and assigned to the lessee, for the term of twenty-five .years, the sole and exclusive right of mining and operating in coal on the land described ; that the lessee, by its deed, granted, bargained, sold, assigned and transferred to the defendant the coal underlying said land, together with all the rights and appurtenances thereunto appertaining, as the same were conveyed or assured by such lease, and thereby covenanted with the defendant that such lessee was seized of a perfect title to the property thereby conveyed, and that the. defendant accepted such deed, and took and retained possession of the property conveyed under it, and used and controlled the premises: Held, that from these averments the defendant was estopped from setting up' the claim that the supposed lease was a mere personal license, and therefore not as'signable.</p> <p>8. Landlord and tenant — liability of assignee of lease not defeated by his assignment. If it be conceded that an assignee of alease is discharged from liability for subsequent breaches by his assignment of the lease, yet his transfer will not have the effect of discharging him for breaches of the covenant already committed, when there was a privity of estate between him and the lessor, and an implied provision to pay the damages occasioned by such breach.</p> <p>9. Pleading — declaration—for recovery on contract for payment in installments. Any number of installments due upon an instrument in suit may be declared for and recovered upon in one and the same count.</p> <p>10. Practice — waiver of objection to evidence. If there is any ground of objection to a lease given in evidence, the party should.make such objection in the trial court, and if overruled, take an exception, and failing to do so he can not make the objection for the first time in a court of review.</p> <p>11. Same — •trial by court — proposition that plaintiff can not recover. On a trial by the court without a jury, a request by the defendant to hold, as a matter of law, that there can be no recovery on the evidence, is equivalent to a demurrer to the evidence, and raises the question of law whether the evidence, with the most favorable intendments granted it, tends to establish the case of the plaintiff.</p> <p>12. A proposition of law that, under the facts proved, the plaintiff is not entitled to recover, is properly refused, if the evidence shows that the plaintiff is entitled to recover any sum.</p> <p>13. Appeals — affirmance by Appellate Court settles all disputed questions of fact. Where a judgment is affirmed by the Appellate Court, the judgment of that court is final, not only in respect to the principal and ultimate facts upon which the cause of action is based, but also in respect of the evidentiary and subordinate facts, which are mere evidence of the principal facts. This consequence extends to all inferences and deductions to be drawn from the evidentiary facts.</p> <p>14. Where a common law case is tried by the judge, without a jury, and no question is made as to the ruling on the admission or exclusion of evidence, and no written propositions of law are submitted, and the only exception taken is upon the rendition of the judgment, and the Appellate Court affirms such judgment, the record, on appeal from the Appellate Court, will not present any question for this court.</p>

<p>1. Special assessments — special benefits. If property is enhanced in value by reason of a public improvement, as distinguished from the general benefits to the whole community at large, it is specially benefited, and is to be assessed for the special benefits, notwithstanding every other piece of property upon or near the improvement may, to a greater or less degree, be likewise specially benefited. In other words, it is not such benefits as are special to the particular property, thereby excluding the consideration of such benefits as are common to other property similarly situated, but it is such benefits as that the particular-property is by the improvement enhanced in value, — that is, specially benefited, — that are to be considered.</p> <p>2. Eminent domain — set-off of benefits against damages to property not taken. In a condemnation proceeding the court instructed the jury, that though they believe, from the evidence, that some of the property of some of the respondents “will actually be benefited by reason of the construction and operation of the petitioner’s railroad, yet if the jury further believe, from the evidence, that such benefits are not special to the respondents’ property, and are shared by it in common with the generality of property in the vicinity of the line of said proposed railroad, then such benefits are not to be considered in determining whether or not the property of said respondents not taken will be damaged by reason of taking a part of their property and operating and maintaining the petitioner’s railroadHeld, that the instruction did not announce a correct rule of law, and was erroneous.</p> <p>3. If a piece of property is enhanced in value, its enhancement, or, in other words, benefits to the property, can not be said to be common to any other piece of property specially enhanced in value, and it is thus specially benefited within itself, and irrespective of the benefit that may be conferred by the improvement upon other properties.</p> <p>4. It follows that where the benefits are designated as “general benefits,” “benefits common to other property,” and the like expressions to be found in the decided cases, it is meant those general, intangible benefits which are supposed to flow to the general public from a public improvement. Thus, the paving of a street in a city may confer special benefits upon properties near it by an increase in their value, and at the same time, by the convenience afforded the general public, confer a general benefit.</p> <p>5. So a railroad built through a town or through the country may be a general benefit by affording additional facilities for travel and commerce, and thereby be of benefit to the community at large; but the effect of such general benefits upon any particular piece of property would be impossible of ascertainment, and speculative, and it has .always been held that such benefits are not to be considered for that treason.</p> <p>6. Same — measure of damages to land not taken. The measure of damages to property not taken is the difference in value of the land .before the proposed construction, and what it will be afterward. Hence, the effects flowing from the proposed work upon the particular property are to be considered, and if the value of the land not taken, considered as a whole tract, or separately, is equal to its value before the improvement, there is no damage to property not taken.</p> <p>7. The damage contemplated by the constitution is an actual diminution of the present value or price caused by the construction of the road, or a physical injury to the property that renders it less valuable in the market if offered for sale. The test of whether damages have accrued to the“land not taken, is, whether there has been a diminution in the market value of the land by reason of the proposed improvement. The effect upon the whole tract remaining after part is taken must be considered.</p> <p>8. The consideration of benefits by which the land not taken is increased instead of being diminished in value, is not the deduction of benefits or advantages from the damages, but it is ascertaining whether there is damage or not. It is but the estimation of damages, and seems to be the only fair and just mode of estimating them.</p> <p>9. If the property is worth as much after an improvement as before, then there is no damage done the same. If the benefits received from the making of -the improvement are equal to or greater than the loss, then the property is not damaged for public use. There can be no damage to property without pecuniary loss. If there is no depreciation in value there is no damage.</p> <p>10. The damages to property not taken must be real, and not speculative, and it must depreciate the price, or its use; and the depreciation is to be determined by comparing its value before and after the structure is made which produces the injury. Any benefits thus conferred should be considered, as well as injury inflicted by the structure, in estimating the damages.</p> <p>11. Special benefits are such benefits flowing from the proposed public work as appreciably enhance the value of the particular tract of land alleged to be benefited. On the one hand, the damages must be real and substantial; on the other, the benefits must be such as affect the market value or use of the land, and such as are capable of measurement and computation. Hence, all imaginary and merely speculative damages or benefits are excluded from consideration.</p> <p>12. Tlie consideration of such benefits as tend specifically to enhance the value of the particular property is not setting off benefits-against the damages to the property, but is the simple ascertainment of whether the land has been depreciated in price or worth, — that is, whether loss or damage has resulted to the owner. The fact that other property in the vicinity is likewise increased in value from the same cause, furnishes no reason for excluding the consideration of special benefits to the particular property in determining whether it has been damaged or not.</p> <p>13. There can be no damage to property without pecuniary loss, or injury which lessens its value. It therefore follows that every element arising from the construction and operation of the railroad, or other public improvement, which, in an appreciable degree, capable of ascertainment in dollars and cents, enters into th e diminution or increase of the value of the particular property, is proper to be taken into consideration in determining whether there has been damage, and the extent of it.</p> <p>14. The situation of the property, the use to which it is devoted and of which it is susceptible, the character and extent of the business to which it is adapted before and after the construction of the public work, and, indeed, every fact and circumstance legitimately tending to show a depreciation or increase of the value of the property, are proper to be considered, so far as they tend to show the actual value of the land with and without the proposed taking for the public use.</p> <p>15. 'On the other hand, a consideration of fadts and circumstances tending to show those general benefits supposed to flow to the community at large, or to the public generally, from the construction of the proposed railroad or other public work, and the effect of which, in determining the injury or benefit to the particular tract of land, can not be other than conjectural or speculative, should be excluded.</p> <p>16. IToEjMeb decisions — -cases explained. In St. Louis, Indianapolis and Springfield Railroad Co. v. Kirby, 104 Ill. 347, an instruction was approved which excluded the consideration of any general benefit to the land occupied as a farm which a railroad might be in making a better market or convenience in travel. By approving such instruction it was not intended by this court to exclude such benefits as would appreciate the market value of the particular tract of land.</p> <p>17. In McReynolds v. Burlington and Ohio River Railway Co. 106 Ill. 152, the jury were instructed, that if by the construction of the railroad the land would be specially benefited to the extent, or greater than, they would be damaged, then the jury should only find a verdict for the compensation for the land actually taken, which the court approved: Held, that the ruling was in harmony with the prior decisions of this court except the case of Keithsburg and Eastern Railroad Go. v. Henry, 79 Ill. 294.</p> <p>18. In the McReynolds case this court used the words, “benefits common to other property,” as designating those benefits which flow to the public generally, as distinguished from those which enhance the value of the specific property, without intending to exclude any elements arising from the improvement that tended to specifically enhance the value of the particular property.</p> <p>19. In Chicago and Evanston Railroad Co. v. Blake, 116 Ill. 163, the words in an instruction, “under the laws of this State no benefits or advantage which may accrue to lands or property in common with all other property along the line of the proposed railroad,” by reason of its construction and operation, can lawfully be set off, etc., was understood to mean those benefits of a general nature which each tract of land or parcel of property along the line of the railway shared in common by reason of increased facilities for traffic and commerce, and the like, and which, while resulting in benefit to the community at large, are incapable of measurement when applied to a particular tract of land.</p> <p>20. In Harwood v. Bloomington, 124 Ill. 48, this court held, that when the land owner interposes a claim for damages to that part of the land not taken, in consequence of the improvement, if the land not taken has received special benefits, — benefits not common to other property, —such benefits may be considered in arriving at the amount of damages the owner may have sustained to the property not taken. The court was not called upon to define what benefits were “common to other property,” and did not attempt to do so. The sense, however, in which the words were used in the opinion, is clearly indicated in the cases therein cited.</p> <p>21. The rule laid down in Keithsburg and Eastern Railroad Co. v. Henry, 79 Ill. 294, that the question of benefits can in no case be considered in estimating the value of land taken or in estimating the damages to land not taken, is not supported by any of the prior or subsequent cases.</p> <p>22. Instructions — requisites. The jury have little to do with the theory and policy of the law, and instructions should be so drawn as to be a concise and accurate statement of the law as applicable to the facts of the particular case. If they call the attention of the jury, in an argumentative manner, to matters with which they have no immediate concern, there will be no error in their refusal.</p>

<p>Writ of Error to the Circuit Court of McLean county; the 'Hon. Thomas E. Tipton, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Fourth District ; — heard in that court on appeal from the Circuit Court •of St. Clair county; the Hon. B. E. Burroughs, Judge, presiding.

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

<p>Writ oe Error to the Circuit Court of Clay county; the Hon. William C. Jones, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.</p>

This is an appeal from an order of the circuit court of Cook county, in the suit of Berkowitz v. Lester et al., imposing a fine upon John T. Lester of $200, for contempt in refusing to comply with an order of that court. Berkowitz brought suits in assumpsit for profits on the purchase and sale of certain stocks, the declaration containing only the common counts. Lester & Co., defendants, were stock brokers. The defendants filed the general issue.

Joseph P. Roberts, Judge, presiding. Serena A. Walton, appellee, commenced an action at law in the circuit court of Union county, against the Grand Tower and Cape Girardeau Railroad Company, to recover damages resulting to her in consequence of the construction of the railroad over and across certain lands owned by her in Union cpunty.

<p>Writ or Error to the Circuit Court of Massac county; the Hon. A. K. Tickers, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District ; — heard in that court on writ of error to the Circuit Court of Clinton county; the Hon. A. S. Wilderman, Judge, presiding.

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

<p>Writ of Error to the Circuit Court of Madison county; the Hon. B. H. Canby, Judge, presiding.</p>

E. D. Youngblood, Judge, presiding. This was an action of assumpsit, in the circuit court of Jefferson county, brought by appellee, to recover certain indebtedness, against appellant, alleged to be due and unpaid.

<p>1. Taxation — county board — reviewing, reducing or increasing the ■assessment. Under section 86 of the Revenue law, as amended in 1891, the power of the county board to review and reduce assessments on complaint of individual property owners, so far as it applies to assessments made prior to the fourth Monday of June, is purely apx>ellate, and can arise only when an appeal has been taken in the manner prescribed by the amendatory act. Any attempt by the county board to reduce an assessment made prior to the fourth Monday of June, except on appeal from the town board of review, is without legal authority, and inoperative and void.</p> <p>2. Where the county board attempts to reduce assessments on complaints presented- to it in the first instance, and not on appeal from the township board of review, its action will be ineffectual, and such attempted reduction will not authorize an addition to the assessment of the personal property of a town to make up the alleged deficiency caused by such attempted reduction.</p> <p>3. While a county board may equalize assessments, it has no power to raise or reduce the assessment above or below the amount returned by the assessors, and if the aggregate assessment is raised above that amount, the collection of the increased taxes on such assessment may be enjoined in a court of equity.</p> <p>4. If a county board acts illegally in changing assessments, its action will not vitiate or change the legal acts of the assessors of the towns, and until legally changed or vacated, the assessments are binding on the tax-payers.</p> <p>5. Same — county board — jurisdiction prior to 1891. As tire Kevenue law stood prior to the amendment of June 17, 3891, county boards, in counties under township organization, had no appellate jurisdiction over the action of township boards of review, and no original jurisdiction to hear complaints of persons aggrieved by the assessment of their property, except in case of property assessed after the first Monday of June.</p>

<p>This case involves precisely the same questions as the case of Drovers’ National Banlt v. O’Hare, 119 Ill. 646, and must be governed by that case.</p>

B. E. Bueeoughs, Judge, presiding. This was an action brought by the Chicago, Peoria and St. Louis Eailway Company, against the Terre Haute and Indianapolis Eailroad Company, to recover for the loss of a locomotive engine in a collision which occurred on the defendant’s road on the 21st day of May, 1892. A trial in the circuit court resulted in a judgment in favor of the plaintiff for $3207.48, which, on appeal, was affirmed in the Appellate Court.

<p>1. Special assessments — for improvement already made. A city can not, by accepting and adopting an improvement of a street, compel property owners to pay for it by special assessment or special taxation. The statute does not contemplate tbat the city council shall go on and make the improvement, and after it is completed levy and collect a special assessment or tax to pay for the same.</p> <p>2. The first step to be taken in making a local improvement to be paid for by special assessment, is the passage of an ordinance specifying the nature of the proposed improvement, and the mode in which the cost thereof shall be collected; and until such ordinance is passed, as required by the statute, no work can be done or expense incurred which can become a charge on the property of the land owner.</p> <p>3. Where the improvement has been ordered by ordinance, and the assessment has been annulled by the city council or boa'rd of trustees, or set aside by any court, a new assessment may be made as provided in section 46 of article 9 of the City and Village act. In such a case the existence of an ordinance when the work was done is the basis of the re-assessment; and even when the original ordinance proves defective, and insufficient to support an assessment, yet if not absolutely void it may be amended, or the defect cured by a supplemental ordinance, and a re-assessment made.</p>

<p>Corporation — individúala usurping corporate powers. An association or number of persons in the business of insurance, by professedly limiting their liability to the amount of money contributed by each, and assuming to give perpetuity to the business by making membership certificates transferable by the assignment of the member or his personal representatives, will thereby act as a corporation, and will be liable to judgment of ouster. And the fact that such persons may be held individually liable upon policies of insurance which they may have issued, will not relieve them of the charge of having acted as a corporation.</p>

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

M. P. Tuley, Judge, presiding. This was a bill in chancery in the circuit court of Cook county, brought by appellant, to restrain appellee, the Board of South Park Commissioners, from interfering with the construction, by appellant, of a balcony in front of his hotel building located on Michigan avenue, in the city of Chicago.

<p>Appeal from the County Court of St. Clair county; the Hon. Benjamin Boneau, 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. E. S. Tuthill, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Jackson county; the Hon. Oliver A. Harker, Judge, presiding.</p>

<p>1. Assessment fob taxation — money in bank — deducting amount of debts. A party having money in bank on the first day of May, is required, by item 26 of section 25 of the Revenue act, to list the same for taxation, and he can not refuse to do so on the ground that he owes-debts to an amount equal to such money. As to credits other than of bank, banker, broker or stock jobber he is allowed to deduct therefrom the amount of his bona fide indebtedness.</p> <p>2. There is nothing in the statute allowing deductions of indebtedness against tangible property owned by a tax-payer, no matter what may be the character of such property. Money, like horses, cattle or other chattel property, is made taxable under our statute, without reference to the indebtedness of the owner. But as to credits, viz., moneys-due, bona fide debts owing may be deducted.</p> <p>3. Same — duty of assessor to assess property not listed. If a taxpayer omits from his schedule of personal property, money in bank, it is not only the right, but the duty, of the assessor, on learning that fact, to place it on the schedule, and he is not required to give the taxpayer any notice whatever of his action in that regard.</p> <p>4. Same — deductions from credits. If a tax-payer deducts his indebtedness from his credits, it must be done in the manner provided by section 29 of the Revenue act. It is not for him to say the indebtedness equals or exceeds the credits, and therefore refuse to list the credits.</p>

R. S. Tuthill, Judge, presiding. This was an action by appellee, administratrix of the estate of James Hessions, deceased, for damages to the pecuniary support of the widow and next of kin. On October 9, 1890, James Hessions was struck by the engine of- a passenger train in the control of appellant’s servants, where appellant’s railway tracks cross Fifty-first street, -in the city of Chicago, and was instantly killed. The declaration contains seven counts.

Writ of Error to the Circuit Court of Williamson county; the Hon. A. K. Yiceers, Judge, presiding.

Geokge F. Blanke, Judge, presiding. An ordinance was passed by the city of Chicago for opening an alley from Seventy-third to Seventy-fourth street, and lying between Tates and Bissell avenues, in said city. The city filed its petition November 25, 1892, in the Superior Court of Cook county, praying that ascertainment be had of the just compensation to be made to property owners for property to be taken and damaged therefor.

<p>Appeal from the Circuit Court of St. Clair county; the Hon. A. S. Wilderman, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District ; — heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. A. S. Wilderman, Judge, presiding.

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

<p>All tbe questions raised in tbis case bave been fully considered in numerous cases previously decided in tbis court.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Philip Stein, 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. Clieeord, Judge, presiding.</p>

<p>1. Special assessments — sufficiency of description of proposed improvement. A substantial compliance with the statute, which requires the ordinance for a local improvement to specify “the nature, character, locality and description of the improvement,” will be sufficient.</p> <p>2. An objection to an ordinance for.the paving of a street, that it fails to_ provide for man-holes and catch-basins to convey from the pavement the surface water, dirt, etc., where a sewer has already been constructed in the street sufficient for the purpose, will not avail to defeat the assessment.</p> <p>3. Same — discretion as to extent of local improvement. The municipal authorities of cities and villages are made, by the statute, the judges of the utility of an improvement upon streets, and whether such improvement shall be treated as a local improvement in raising funds to pay for it, and their decision on these questions is final. Where the ordinance provides for an improvement complete in itself, it will not follow that the ordinance is to be deemed void because the utility of the improvement might be enhanced by the addition of something more which has been omitted.</p> <p>4. Same— personal view by jury. In a proceeding to confirm a special assessment by a city or village for a local improvement, the court has the power, in the exercise of a reasonable discretion, to permit, in proper cases, a view of the property assessed, or the locus in quo, by the jury, on the issue of benefits to the property specially assessed.</p> <p>5. PbactiOE — viewbyjury—when allowed. At common law a personal view of premises was not granted as a matter of right, but the power-rested in the sound discretion of the court, to be exercised whenever, in the nature of the case, it became necessary or important to a clearer Understanding of the issues, and to enable the jury to properly apply the evidence.</p> <p>6. The design of the practice of allowing a view by the jury was to enable them better to understand the matter in controversy between the parties; and it was not confined to real actions, but was allowed in several personal actions for an injury to real estate, as, trespass quare clausum fregit, trespass on the case, and nuisance.</p> <p>7. At common law, as the same was adopted in this State, the view was allowed, or not, as the judge or court determined, in his or its discretion, that the view was proper or necessary to enable the jury better to understand and apply the evidence introduced on the trial. The effect of the view may be controlled by an instruction to the jury.</p> <p>8. Same — -improper remarks of counsel — waiver of objections. If improper remarks are made by counsel in the presence of the jury, the attention of the court should be called to them in apt time, so as to enable the court to take proper action. If the court, upon objection being made, fails or refuses to make the proper order, the question should be saved and presented for review, otherwise the party will be deemed to have waived his objection.</p> <p>9. Same — tampering with jury — ground of new trial. ■ Tampering with the jury by the successful party litigant, or doing any act out of the presence of the court which would have a tendency to bias or prejudice them in the consideration of the cause, will ordinarily afford sufficient ground for granting a new trial.</p> <p>10. The parties, during the separation of the jury, are not permitted to show them unusual civilities and attentions, and such attentions practiced by the successful party, his counsel or partisans, and which excite suspicion as to the motives of the party or the effect upon the jury, will ordinarily afford sufficient ground for the granting of a new trial. And furnishing the jurors with refreshments, and the like, the extension to and acceptance by them of gratuities, or, indeed, any other approach to the jury casting suspicion that they have been tampered with or that their verdict has been improperly influenced, not satisfactorily explained, will ordinarily avoid the verdict, whether there was any actual intent or design to influence them or not.</p> <p>11. It does not, however, follow, that customary offers of civilities, or ordinary hospitality oi courtesy extended by the successful litigant, when not designed or calculated to influence the juror or jurors in their consideration of the case, and which are devoid of suspicion, will afford sufficient ground for setting the verdict aside.</p> <p>12. In a proceeding to confirm a special assessment by a city, while the jury were out of court, viewing the property assessed, they were furnished a free lunch by the attorney for the city. It appeared that the lunch was given on the suggestion of the court, before the jury went out. It was not shown that the jury, or any of them, knew, before they were finally discharged, that the lunch had been provided at the expense of the city: Held, that the case was not such as to vitiate a verdict in favor of the city.</p>

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