Volume 151 — Illinois Reports

Owen T. Beeves, Judge, presiding. This was an action on the case to recover damages for the death of Silas M. Legg, son of appellee. The declaration charges that the City of Bloomington erected a fountain on North Main street, to be used for drinking purposes and for watering horses. That around the fountain was a basin, into which water was conducted by two spouts; that the spouts were placed where the heads and bridles of the horses would come when drinking.

<p>1. Quo Warranto—of the pleadings. In a proceeding by information in the nature of a quo warranto, the defendant must answer by 'a disclaimer of title, or justify by showing title. If he disclaims, the People are at once entitled to judgment. If he justifies, he must set out his title specially. He must show on the face of the plea that he has a valid title to the office. The People are not bound to show anything.</p> <p>2. Cities and Villages—change of organization or name. When an information in the nature of a quo warranto charges certain persons, acting as the president and board of trustees of a village, with usurping the powers granted by the act of 1872, relating to cities and villages, a plea setting up the incorporation of a town of the same name is bad, if it fails to show how the incorporated town became converted into the village, as a mere change in the name from the town of F. to thewillage of F., can not change an incorporated town into an incorporated village.</p> <p>3. An act passed March 7, 1872, to enable any city, town or village in this State to change its name, provides the mode in which such change may be effected: by filing the proposed name with the Secretary of the State, and obtaining from him a certificate; by presenting a petition to the corporate authorities of the town for the change; by an order of such authorities, after notice and hearing, and by filing a copy of such order with the Secretary of State, and publication.</p> <p>4. But Art. 11 of the City and Village act provides an entirely different method by which an incorporated town may become organized as a village. By the terms of such article, upon petition of thirty voters, the president and trustees of the town must submit to the legal voters the question whether the town shall become a village, and fix a time and place for holding the election, and appoint the judges thereof, and give fifteen days’ notice by posting, etc.; the votes must be returned and canvassed; a statement of the result must be entered upon the records of the town, and provision is made, in case a majority of the votes is cast for organization as a village, for electing six trustees of the village, whereas, under the old law, a town was only entitled to five trustees.</p> <p>5. Limitations—of quo warranto proceeding. In the absence of any statutory period of limitation, it is held in this country that the attorney general may file an information in behalf of the people at any time; and that the lapse of time constitutes no bar to the proceeding, in conformity with the maxim, nullum tempus occurrit regi.</p> <p>6. Same—as against the State. It is a familiar doctrine that the State is not embraced within the statute of limitations, unless specially named, and, by analogy, will not fall within the doctrine of estoppel.</p> <p>7. Same—as against municipal corporations. Municipal corporations are not within the operation of the statute of limitations, as respects public rights, although the rule is different as to contracts, or mere private rights.</p> <p>S. Same—as against public rights. The legal existence of a municipal corporation is a matter of public right, and in a proceeding by information in the nature of a quo warranto to test its existence, or the right of its officers to exercise corporate powers, etc., the statute of limitations will not apply, nor the doctrine of estoppel, except in special and peculiar eases.</p> <p>9. Estoppel — quo warranto proceeding assailing the validity of a •municipal corporation. The doctrine of estoppel in pais is sometimes applied to municipal corporations, even when the quo warranto proceeding involves a question of public right, but such cases are exceptional, and, when they occur, the public is only held to be estopped on account of special circumstances, which would make it highly inequitable or oppressive to enforce public rights.</p> <p>10. Municipal Corporations—legislative recognition of existence. As municipal corporations are legislative creations, their legal organization may well be presumed from legislative recognition. But the fact that the Secretary of State ascertains the name of a village, and puts it on the list of the names of all the cities, towns and villages.in the State, and keeps it filed in liis office as a part of such list, has no significance as a recognition of corporate existence.</p>

George W. Herd man, Judge, presiding. This was ejectment in the Circuit Court of Greene county, by appellee against appellant and Thomas… Held: together with whatever may be received by either of them, under this will, whether in real or personal property, free from all debts contracted or to be contracted by them or either of them, in order to more fully secure the same to them and their descendants.” There are no other provisions of the will in any wise affecting these…

George W. Herdman, Judge, presiding. On February 12, 1876, Joshua Neely made and delivered to John Neely, plaintiff below, his promissory note, as follows : “$3,481.31 Jerseyville, Ill., Feb’y 12th, 1876.

The first case, an appeal from the Circuit Court of Vermilion County, the Hon. Ferdinand Bookwalter, Judge, presiding; and the latter case, an appeal from the Circuit Court of Sangamon County, the Hon. James A. Creighton, Judge, presiding.

<p>Appeal from the Circuit Court of Lake County; the Hon. Clark W. Upton, Judge, presiding.</p>

Thomas F. Tipton, Judge, presiding. This is a bill, filed in the Circuit Court of McLean county, on April 7, 1892, by Fannie Strauss, the appellee, against Daniel Mulcahey, Sr., and Julia, his wife, and their four children, Daniel Mulcahey, Jr., and Mary A. Mulcahey, adults, and Thomas F. Mulcahey and William H. Mulcahey, minors, and one William Scott Arnold, to foreclose a mortgage, dated March 1, 1890, upon 120 acres of land in said county, executed by said Daniel…

<p>1. Contract—action by party in default. A party who has failed to comply with his contract as to payment of machines actually received, accepted and disposed of by him, with full knowledge of a breach by .the vendor, as to the time of delivery and number delivered, can not maintain an action thereon to recover damages for the failure of the defendant to fully perform his part of the contract.</p> <p>2. Same—whether entire or severable. A contract by which the defendant agreed to deliver to the plaintiff on the cars at Chicago 300 Safety bicycles—the shipments to commence in January then next, and to be made thereafter in quantities and times as plaintiff should specify, and paid for by his acceptances at thirty days, though one contract, embraced independent obligations of the parties as to delivery on the one part, and payment on the other.</p> <p>3. The principal difference between such a contract and an entire contract is, that either party to one of the former kind, having fully performed as to any independent agreement, may maintain an action thereon for its breach by the other, without averring or proving performance, or its equivalent, on his part as to all, but subject to the defendant’s right to recoup for his failure as to others, in respect of which he is himself not in default.</p> <p>4. On general principles, either party to a contract, whether entire or several, may recover, as on an implied agreement, for a partial performance, which has been voluntarily accepted by the other, with full knowledge of the breach; but subject also to the right of the latter to recoup for the failure to fully perform the express contract.</p> <p>5. Same—party suing on—must show he is not in default of performance. A party to a contract, seeking damages for its non-performance by the other party, must allege and prove that he, the plaintiff, has himself complied with all the conditions of the contract required of him to be performed, and that the defendant is in default. If both parties are alike in default, neither can maintain an action on the contract for its breach by the other.</p> <p>6. A vendee who has accepted goods delivered under an express contract, but not at the time, or in the quantity required by it, with knowledge of the default of the vendor in these respects, who has himself failed without legal excuse to pay for them according to the contract, can not maintain an action on the contract for such default of the vendor.</p> <p>7. Set-off—when allowed. Set-off is a counter-claim, as to which the defendant is plaintiff, and he must establish his right as upon a distinct action; and, therefore,in case of a breach of the contract, he must show that he, himself, is not in default as to the agreement, whether entire or severable, on which he bases his claim.</p> <p>8. Becoupment—the nature and proof of. Although recoupment, considered as a right, enables a delinquent defendant conceding to the plaintiff a right of action to prevent a recovery or reduce its amount, it is not upon any merit of his own, but for the fault of the plaintiff, in connection with the same transaction on which he sues. The burden of proving such fault rests upon him, and is the same that it would be if he were plaintiff suing for the damages caused by it; and if that fault consists in the breach of another agreement, independent of the one in which the plaintiff sues, but contained in the same instrument, and relating to the same subject matter, he must show, in like manner, that he is not, himself, in default as to that agreement.</p>

<p>1. Insurance Companies—revocation of license by the auditor—petition for mandamus. A petition for a mandamus to compel the auditor of public accounts to revoke the license of a foreign insurance company, on the ground that such company applied for and obtained the removal of an action against it, brought in a State court upon a claim or cause of action arising out of a business transaction in fact done in this State, to the Circuit Court of the United States, and showing the facts, and the auditor’s refusal to revoke such license, is sufficient to entitle the relator to the writ.</p> <p>2. Same—mandamus to revoke license—citizenship of plaintiff. The statute authorizing the revocation of a license of a non-resident insurance company for removing or attempting to remove an action against it in the State courts to the Federal court, does not require that the plaintiff in the suit in which the removal is had shall be a citizen of this State, and a petition for mandamus to revoke such license need not allege the citizenship of such plaintiff.</p> <p>3. Mandamus—petition takes place of declaration. A petition for mandamus, under our practice, takes the place of a declaration in ordinary actions at law, and it is not necessary or even permissible in such actions to plead mere evidence. Where the petition alleges that certain properly certified copies of an application to remove a cause from a State court to the Federal court, etc., were delivered to the defendant, and a demand made to revoke a license, this will be sufficient as a matter of pleading. The admissibility and sufficiency of the copies will properly arise when offered in evidence.</p>

<p>1. Wix~r~s-mental capacity-old age and loss of memory. Advanced age and loss of memory do not necessarily and of themselves indicate a want of capacity to dispose of property by will.</p> <p>2. SAME-inequality of disposition as evidence of undue influence. Inequality in the distribution of property is not of itself conclusive evidence of undne influence. It may be considered as a circumstan~e tending to establish undue influence, but a testator may give one child more than another, without invalidating his will.</p> <p>3. SAME-setting aside will for undue influence. Undue influence, which will justify the setting aside of a will, must be such as to deprive the testator of his free agency; and a witness may properly give his observation as to the condition and surroundings of a testator, so that the court and jury may be able to determine whether his act is the offspring of his own or of another’s will.</p> <p>4. Same—evidence as to the will power of testator—whether too remote. On the contest of a will, a subscribing witness spoke of the testator as a man who could not be easily persuaded ‘'when he made up his mind what he wanted to do.” The witness also spoke of talking with the testator just before the will was drawn, and at the supper table just after: Held, that the remark of the witness might be considered as applicable to a time sufficiently near the execution of the will.</p> <p>5. Same—opinion as to mental capacity. An assessor, who visited the testator for the purpose of assessing his land, was asked, whether in his opinion he could have purchased the testator’s lands at less than their real value. The object of the question, in a general way, was to elicit the opinion of the witness as to the mental capacity of the testator to protect his property interests: Held, that the question was possibly objectionable, as calling for an opinion upon a matter to be determined by the jury; but that the error was not sufficient to reverse, as the witness had testified to the facts upon which his opinion was based.</p> <p>6. On the contest of a will, which is attacked on the ground of incapacity in the testator, a witness will have the right to state any fact known to him in relation to the testator’s capacity to transact business, and all he knows in regard to the vigor or strength of his mental powers. Neighbors and acquaintances, if men of good common sense, are competent to give their opinion as to his mental capacity.</p> <p>7. Same—statement of testator as to his disposition of property by former wills. A testator made his last will in 1SS9, which was attacked for want of sufficient capacity and for undue influence. He liad made two prior wills, one in 1882 and the other in 1886, and it was admitted that he was of sound mind and free from any undue influence when he made the former wills. He made statements about the time of the execution of the prior wills, as to the manner in which he disposed of his property by them. The disposition, which he stated in 1882 and 1SSG, that he had then made, approximated very nearly to the provisions of the last will: Held, that this circumstance tended to rebut the idea that undue influence had been exercised to procure the execution of the last will, and that proof of such statements was unobjectionai, even if conceded that the time of the utterance was too remote from the time of the execution of the last will, for the purpose of establishing mental capacity.</p> <p>8. Same—presumption of destruction of former will. As a general rule, if a will is traced into the testator’s possession, and at his death can not be found, the presumption is (in the absence of anything tending to show the contrary) that he destroyed it animo revocandi.</p> <p>9. Same—evidence of mental capacity too remote—when no ground of reversal. In determining the validity of a will, the mental capacity of the testator is that which exists at the time of the execution of the will. But if some of the testimony has reference to transactions which are too remote in time, its admission will not be sufficient ground to recover, when the preponderance of the evidence shows mental capacity at the time when the will was made.</p> <p>10. Same—contest—degree of evidence to shoio want of mental capacity. On the contest of a will, the court instructed the jury that when a will is proved, including soundness of mind and memory of the testator, by the testimony of two subscribing witnesses, and unsoundness of mind is alleged as a ground for setting the will aside, the fact of insanity or unsoundness of mind must be established with reasonable certainty by a preponderance of all the evidence; the evidence of insanity or unsoundness of mind should preponderate, or the will must be taken as valid, etc.: Held, that by the use of the words “with reasonable certainty,” if standing alone and not explained, the instruction stated too severe and exacting a rule, and the words complained of might well have been omitted.</p> <p>11. Same—poor memory as evidence of want of testamentary capacity. A failure of memory is not sufficient to prevent the testator from making a valid will, unless it is total, or extends to his immediate family and property.</p> <p>12. On the contest of a will, the court told the jury that the owner of property, who has capacity to attend to his ordinary business, has the lawful right to dispose of it, either by deed or by will, as he may choose; and that it requires no greater mental capacity to make a valid will than to make a valid deed; and that if such an owner chooses to disinherit his heir, he has a legal right to do so, and such disposition of his property is valid, whether it be reasonable or unreasonable, just or unjust, and that the reasonableness or justice or propriety of the will are not questions for the jury to pass upon : Held, that the instruction was unobjectionable.</p> <p>13. Same—statements of testator to invalidate—not admissible. As in the case of deeds, the parties making wills can not invalidate them by their own parol declarations made previously or subsequently. Therefore, an instruction that statements made by a testator, either before or after the execution of his will, in conflict with its provisions, do not invalidate it, or modify it in any manner, is properly given.</p> <p>14. Same—contest—evidence to overcome the presumption of sanity. Where the subscribing witnesses have testified to the testamentary capacity of the testator, the party asserting the validity of the will must prevail, unless the contradictory evidence is sufficient to overcome, not only such affirmative testimony, but the presumption arising from the general rule of law. that all men are presumed to be of sound mind until the contrary is shown. Hence, it is not sufficient that the evidence raises a mere doubt as to the sanity of the testator; the evidence must preponderate in favor of his unsoundness of mind. The preponderance need not be such as to remove all doubt, but such as is according to the reasonable probability of the truth of the charge of unsoundness.</p> <p>15. Sanity—presumption that insanity shown continues. The presumption that insanity once shown continues, only obtains when there is proof of an habitual or apparently confirmed insanity. Prior in competency or insanity of the testator, arising from temporary causes, accidental derangement, or the violence of disease, does not create a presumption of the continuance of the unsoundness of mind up to the time of the execution of the will.</p> <p>16. Witness—competency of party seeking to set aside a will. A party to a suit to contest the validity of a will, who is directly interested in the event thereof, a defendant defending as the devisee of a deceased person, is not a competent witness to impeach the will.</p> <p>17. Same-—objection as to competency. Where a question put to a witness is objected to on the ground of his incompetency, it is not necessary to repeat the special ground of objection to every question thereafter asked of the witness.</p> <p>IS. Instructions— need not be repeated. The refusal to give a proper instruction can work no harm, when its substance is embodied in other instructions which are given.</p>

<p>1. Partnership—liability of surviving partner for a firm debt. A partnership creditor has a remedy in equity against the estate of the deceased partner, when he shows the insolvency of the survivors, or his inability, to collect his debt from the survivors; such creditor may resort in the first instance, for his debt, to the surviving partner, or to the assets of the deceased partner.</p> <p>2. Same—rights of surviving partners. On the death of one of three partners, the survivors will have the right to continue in possession of the partnership assets, pay the debts, and settle the firm business, and account with the representatives of the deceased member. In paying partnership debts, the survivors are paying their own obligations as well as those of the deceased partner.</p> <p>3. Same—deceased partner—interest of his estate, as against firm creditors. The interest of a deceased member of a partnership in the firm assets, is only his proportional part of what remains after all the partnership debts are paid; and the surviving partners are regarded as trustees of the firm assets for the benefit of the firm creditors, and such trust still attaches to such portions of the assets as are paid over to the representatives of the deceased partner, before the firm creditors are fully paid.</p> <p>4. Same—release of estate of deceased partner by accepting interest on. firm, debt. After the death of a partner, the payment of interest by the survivors on a firm debt for an extension of the time of payment, will not release the estate of the deceased partner, in the absence of any new agreement that it shall have that effect.</p> <p>5. Surviving- partners, being charged with the duty of settling the partnership business and paying the debts of the firm, may rightfully pay interest on a debt they fail to pay when due, at the legal rate, provided there is no unnecessary delay in settling up the estate, and when, the surviving partners agree to pay interest on a debt after its maturity, and thereby obtain an extension of the time of payment, this will not</p> <p>■ amount to a new contract with the creditor, or give rise to the presumption that there has been a release of the estate of the deceased partner*</p> <p>6. Same—liability of retiring partner for debt assumed by successors. Where a firm is dissolved by the retirement of one of the.partners, and the remaining partners assume and agree to paythe firm debts, theretiring partner is not thereby relieved of his liability to pay the firm debts*</p> <p>In order to release the old liability and create a new one, there must be-assent on the part of the creditor, and of the original debtors, and of the persons who assume the debts.</p> <p>7. The agreement between the retiring and the remaining partners, that the latter shall assume the debts, can not bind the creditors who do not assent to the arrangement. If the creditor assents to such arrangement, or agrees to accept the continuing or surviving partners as his exclusive debtors, and releases the retiring partner', or the estate of a deceased partner, he may lose all claim against the latter, and there will be a novation of the debt; such assent or agreement on the part of the creditor may be either express, or implied from his subsequent acts or conduct.</p> <p>O</p> <p>8. Same—release of old firm by taking security or new promise from new firm. The mere fact that a creditor takes additional security from a new firm without releasing the old debt, will not absolve a retiring partner from bis original responsibility. The latter is not discharged when the new firm pays interest on the debt to the creditor, either at the new or the old rate, and the position of the estate of a deceased partner, with reference to the question of discharge by reason of a creditor’s dealings with the surviving partners, is very similar to the position of a retired partner, except in the matter of suretyship.</p> <p>9. If a creditor of a firm knows of the death of one of the firm, and continues to deal as before with the survivors, be does not lose the remedy which he had against the estate of the deceased partner, unless there is evidence showing an intention to abandon the right of having recourse thereto for payment.</p> <p>10. Even when a new partner has been introduced, a creditor of the old firm, who continues to deal with the new firm as he dealt with the old, 'and is paid interest by the new firm, as if the debt were its own, does not thereby deprive himself of his right to be paid out of the estate of a deceased member of the old firm. But in such case, the burden of proof is upon the retiring partner, or the representatives of the deceased partner to prove the contract of release.</p> <p>11. The giving of a note by surviving partners to the holder of a certificate of deposit given by the firm for its amount, will not release the estate of the deceased member, so long as such holder retains the certificate on which all of the partners were jointly liable, unless the note has been intended to have the effect of a release, and has been accepted in satisfaction of the certificate. In the absence of such intention and acceptance, the note will be merely regarded as additional security.</p> <p>12. Same—promissory note—when a payment of a prior debt. Where the creditor of a firm takes the notes of the surviving partners for the amount of his claim, he does not' release the estate of the deceased partner, unless it is so agreed at the time; and the onus of showing that it is an extinguishment lies upon those who allege it. To convert a partnership into a partner’s separate debt, the intention to do so must clearly appear. There must be a deliberate and mutual assent of creditor and debtor.</p> <p>13. Same—accepting interest—extension of time of payment to surviving partners. It has been held that, where a creditor of a partnership, after the dissolution thereof, knowing that one or several of the partners have agreed with the others to assume and pay the debts of the firm, takes the obligation of those who should pay, in payment of his debt, and thus extends the time of payment, he thereby discharges the other partners. This is upon the theory, that the retiring partner is merely a surety for the payment of the debts.</p> <p>14. If, after the retirement or death of one of these partners, their joint creditor leave his money in the hands of the surviving or remaining partners, and receives from them an increased rate of interest, in consideration of not calling in the principal, this is not such an assent to the sole credit of the remaining partners as will exempt the retiring or surviving partners from liability for the debt.</p> <p>15. If the payment of an increased rate of interest by the surviving partner to the creditor of the firm does not release the estate of the deceased partner, except as to the amount of such increase, then the payment of interest by the surviving partner, where interest is excluded from the contract, will not release the estate of the deceased partner as to the principal, but only as to the interest.</p> <p>16. Novation—requisites. It has been said, that in every novation there are four essential requisites: first, a previous valid obligation; second, the agreement of all the parties to the new contract; third, the extinguishment of the old contract; and fourth, the validity of the new one.</p> <p>17. Same—presumption of novation of a debt—by accepting interest from a new firm. A banking firm, composed of A., B. and C., gave to I), a certificate of deposit for $2,400, hearing six per cent interest, if left on deposit four months, the interest to cease at maturity, which was dated May 11, 1876. A. died July 30, 1876, and D. heard of the death soon after. The following endorsements were made on the certificate: “Interest paid to September 11, 1876, and extended four months from date;” “Interest paid to March 11, 1877, and extended to September 11, 1877;” and “Interest paid September 11, 1877, and extended to March 11, 1878.” Held, that no presumption that D. intended to release A.’s estate and accept B. and 0. as his debtor, could be inferred from the fact that he applied to the latter for his money, or accepted interest from them, and that the endorsement, made after they settled with A.’s estate, and began to do business under the name of B. and C., did not furnish any ground for the presumption of a novation.</p>

<p>Appeal from the Circuit Court of Sangamon County; the Hon. Jacob Fouice, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Bock Island County; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>1. Wills—contest of—undue influence—evidence of. Where the evidence fails to show that a testator, at the time of making his will, was subject to any such undue influence, either from the effects of sickness or from the pressure of improper persuasion, as deprived him of his free agency and rendered his act the offspring of another’s will, rather than the product of the exercise of his own free will, his will will not he set aside on the ground of undue influence. It is true, that the mind, when enfeebled by disease and long sickness, may become susceptible to influence; but influence secured through affection is not wrongful, and inequality in the distribution of property is not of itself conclusive evidence of undue influence.</p> <p>2. It has been held, that apparent inequality or unreasonableness in a testamentary disposition of property, though not of itself conclusive evidence of unsoundness of mind, or of undue influence, may be considered as a mere circumstance, tending to show such unsoundness or undue influence in connection with all the other facts and circumstances proven in the case.</p> <p>3. Where a testator is shown to be of sound mind and memory, and free from the control of undue influence, it makes no difference whether his disposition of his property is just or unjust, for the reason that the law is, that any person competent to make a will may dispose of his property in such manner, not inconsistent with the law, as he chooses. He is under no legal obligation to divide it equally among his children, but may cut off one or all, and devise it to a stranger.</p> <p>4. On the trial of a contested will, the court instructed the jury, “that if they find from the evidence that the deceased, in making the will in question, was influenced by affection, or attachment, or a disposition to gratify the,wishes of ‘his wife,’ or by her advice or entreaty, that would not be sufficient cause for setting the will aside;” * * and “that testamentary capacity exists when the testator has an understanding of the nature of the business he is engaged in, and the kind and value of the property devised, and of the persons who were the natural objects of his bounty, and of the manner in which he desires it to be distributed, unless affected by some insane delusion”: Held, that the last clause might well have been omitted, but its insertion would not authorize a reversal.</p> <p>5. Same—insane delusion defined, and its effect. Insane delusion consists in the belief of facts which no rational person would believe. In order that a testator may comprehend the relation which he holds to those having claims upon him, no insane delusion should influence his will; no disorder of the mind should poison his affections, pervert his sense of right, or pervert the exercise of his natural faculties.</p> <p>6. Unreasonable prejudices against relatives is not ordinarily a ground for invalidating a will; but a will maybe set aside when the testator’s aversion is the result of an insane delusion, and his conduct can not be explained on any other ground.</p> <p>7. Same—contest of—certified copy of will as evidence. On the contest of a will the proponents gave in evidence a copy of the will and its probate; the contestants sought to impeach the same on the ground of want of testamentary capacity and undue influence, and on the trial they had the original will in their hands, so that it could not be found in its proper place; it was held that, under these circumstances, the introduction in evidence of a certified copy of the will by the proponents was not error. In such case, if there was any point in favor of the contestants that could have been made by viewing the original will, they should have produced it.</p>

<p>1. Chancerv—the allegata and probata must agree. On a bill for the specific performance of a contract for the sale of land, the allegata and probata must agree. An averment, that the deferred payments of the purchase money were to be made in three installments, due in one, two and three years, drawing six per cent interest, and secured by mortgage on the property, must be sustained by the proof in order to make out a case, and the proof must show that the terms of the contract were agreed upon.</p> <p>2. Specific Performance—discretion in allowing. A court of equity will not always enforce the specific performance of a contract; such an application is addressed to the sound legal discretion of the court, and the court must be governed, to a great extent, by the facts of each case as it is presented. The contract must be reasonably certain as to its subject-matter, its purposes, its parties, and the circumstances under which it was made.</p>

John D. Crabtree, Judge, presiding. This was an action of assumpsit, in the Circuit Court of Lee county, brought by appellant against appellee, to recover damages alleged to accrue to appellant, by reason of the failure of appellee to perform his promise to obtain a chattel mortgage upon the personal property of one Ole Severson, to secure the payment of certain indebtedness of John and said Ole Severson, to appellee, and for which appellant was surety. .The declaration…

<p>1. Bes Judicata—a second appeal. Where a decree is reversed and remanded with specific directions, the action of the court below pursuant thereto can not be assigned for error, nor can errors be assigned for matters prior to the former decision, such matters being regarded as res judicata.</p> <p>2. The judgment of this court on a former hearing is conclusive on it, and can not be called in question in a subsequent proceeding in the same case. The only mode in which modifications .of the final judgments of this court can be obtained, is by petition for a rehearing.</p> <p>3. A party can not be permitted, after the cause has been' remanded for further proceedings in conformity with the opinion and judgment, to secure, in the court below, or on a further appeal to this court, that which he failed to obtain by his petition for a rehearing.</p> <p>4. Appeal—jurisdiction of Supreme Oourt—entering decree. The Supreme Court has jurisdiction of an appeal from the final decree in a consolidated case; and on reversal of such decree, it has power itself to enter such decree as, in its opinion, upon the whole case, is consonant with justice and equity, or it may, in its discretion, remand the cause to the court below with directions as to the decree to be entered; and in determining the nature and provisions of the appropriate decree, it is not limited to a consideration of the precise question upon which the court below has rendered its decision, but is at liberty to consider and adjust all the equities of the case so far as presented by the pleadings and proofs. If it inadvertently or otherwise passes upon the equities of' a bill, to which no answer has been filed, such action is a mere irregularity, which will in no way impair the binding and conclusive effect of its final judgment.</p> <p>5. Same—complaint by .party without interest. A party who has no further interest in the premises in controversy, can not be heard to complain that affirmative relief is granted to another without any cross-bill.</p>

H. M. Shepard, Judge, presiding. Appellant filed his bill, and afterwards, by leave of court, his amended and substituted bill, in the Superior Court of Cook county, against appellee, to enforce the specific performance of the contract alleged to be contained in the following written instrument: “Chicago, November 5, 1891. “I will give ten acres south of 108th street, fronting State street and Wentworth avenue; three acres, more or less, fronting State street and Michigan…

Henry B. Willis, Judge, presiding. This was a bill in equity, brought by Charles O. Boynton, appellant, against Daniel Pierce, Moses Dean and ¡Reuben J. Holcomb, to enjoin the sale of N. W. Qr. and ¡N. E. Qr. of Sec. 19—39 N. ¡R. 5 E., in DeKalb county, on an execution issued on a certain judgment in favor of Pierce & Dean against W. C. Wilcox, under which the premises were redeemed from a prior sale made under decree in a proceeding to enforce a mechanic’s lien in favor of…

<p>1. Park Commissioners—control of streets leading to parks. The West Chicago Park Commissioners have control of the streets leading to certain public parks; and when the commissioners have taken control of such streets, a railway company can not lay an additional track in one of such streets without a permit from the park commissioners.</p> <p>2. Same—city estopped to deny legality of control of streets by them. After the exercise of the control of the streets for many years by the park commissioners, with the consent of the city of Chicago, though never so informally given, and the expenditure by them of large sums of money therein in the way of improvements, without question of' their right so to do, the city will not be heard to question the rightfulness of their control of such streets.</p> <p>3. The individual citizen, who, together with all others affected thereby, has for many years acquiesced in the exercise of municipal authority, and who has, during such time, contributed by way of payment of taxes to the support thereof, and paid special assessments for local improvements which he has seen undertaken and perfected by the expenditure of vast sums of money, and to all of which he made no objection, can not after this be heard to insist upon a want of power in the municipality, upon the ground that in the original acquisition of' control, some provision of the law was not technically observed.</p> <p>4-, Parks—the Park act to be liberally construed. The Park act, creating the West Park Commissioners, is to be liberally construed in all courts and places in favor of the jurisdiction and powers thereby conferred, and of the proceedings under the same; and such construction is no less applicable to proceedings for the acquisition of streets leading to the park.</p> <p>5. Municipal Corporations—presumptions from acquiescence in exercise of corporate powers. Municipal corporations are created for the public good, and are demanded by the wants of the community; and the law creating them, after long continued use of corporate powers, and the public acquiescence, will indulge in presumptions in favor of their legal existence. The law will incline to sustain rather than defeat them.</p> <p>6. SAME'—jurisdiction—questioning collaterally by private party. After long continued acquiescence in the exercise of jurisdiction by a municipality, the validity of the proceedings by which the jurisdiction was originally acquired can not be called collaterally in question at the suit of a private party.</p> <p>7. Error—committed at the instance of the party complaining. A party will not be permitted, in a court of review, to insist upon error committed at his own instance, or contrary to his express stipulation upon which the lower court was induced to act.</p> <p>S. Railway Company—rights where street is laid out over its land. Where land of a railway company is condemned for a public street, and the just compensation for the land taken and damaged is paid, and the control of the streets is committed to the local municipal authorities, the rights of the company in the street, or under its charter, willbe subject to the paramount right of the general public to the use of the street, and the improvement of such street will be in the discretion of the local municipal authorities as the public interests may require.</p>

<p>Writ of Error to the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.</p>

Richard W. Clifford, Judge, presiding. On the 2d day of July, 1890, while Joseph Ouska was crossing the tracks of the Lake Shore & Michigan Southern Railway Company, on State street, near Sixty-third street, he was struck and killed by a passenger train coming from the East. This action was brought by his administratrix to recover for the death. The declaration contains two counts.

Charles Blanchard, Judge, presiding. On October 9, 1890, in the Circuit Court of Will county, five judgments were rendered, by confession, against George B. Cook and John A. McDonald, partners, as George B. Cook & Co., as follows: one in favor of Carson, Pirie, Scott & Co., for $1,752.01; one in favor of the Will County National Bank for $429.25; one in favor of George Cook for $419.25; and two in favor of John V. Farwell & Co., the first for $2,658.40, and the second for…

<p>1. PromissoryNote—effect of memorandum thereon. A memorandum either after the signatures to a bill or note, on the back, or written on the margin contemporaneously with the execution of the instrument, and by agreement of the parties, will form a part of their contract, ana bind them the same as if introduced into the body of the instrument.</p> <p>2. While it is competent for either party to show by parol when1 and for what purpose a memorandum upon a note was made, in the absence of all testimony on that subject, it will be presumed to have been made contemporaneously with the instrument, and as a part of it, and given the effect as if made in the body thereof.</p> <p>3. Negotiable Instruments—requisites thereof. It is indispensable that all bills of exchange or promissory notes, to be assignable under our statute or at common law, must be certainly payable, and not dependent on any contingency, either as to the event, or the fund out of which payment is to be made, or parties by or to whom payment is to be made.</p> <p>4. An instrument in the form of a promissory note had the following memorandum written under the signatures of the makers'at the time of its execution, viz.: “Ctf. of Stock, No. 113, for 50 shares of stock in the Hopkins Mfg. Co., to be surrendered on payment of this note:” Held, that the transaction was a purchase of the certificate of stock, to be delivered simultaneously with the payment of the money named in the note, that is to say, the money was to be paid upon the contingency of the readiness and ability of the payee to deliver the certificate of stock, and that that fact destroyed the negotiability of the obligation.</p>

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

<p>1. Practice in the Supreme Court—pointing out errors. If a party desires to question the propriety of the ruling of the trial court in modifying or refusing instructions, he should specify the instructions modified or refused, and point out the errors relied on. If he does: not, this court can not review the rulings below.</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. Philip Stein, Judge, presiding.</p>

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

Writ of Error to the Circuit Court of Cook County the Hon. O. H. Horton, Judge, presiding. On July 10, 1891, Emily Faithful Ames and Miner T.. Ames, minors, by their next friend, Irene C. Ames, and Irene C. Ames in her own right as widow of Miner T. Ames, filed a bill in the Circuit Court of Cook county against Knowlton L. Ames, Jane Rose Ames Ross and Harriet Chaffee Ames.

Frank Adams, Judge, presiding. This is an appeal from a judgment recovered at law by appellee against appellant for twu thousand dollars, in an action on the case for personal injuries resulting to the plaintiff through the negligence, as it is claimed, of the defendant, which judgment was thereafter affirmed by the Appellate Court. Defendant was owner of a factory in the city of Chicago, wherein he was manufacturing ornamental brass and iron goods.

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Kane County; the Hon. H. B. Willis, Judge, presiding.</p>

<p>1. Appeal—;from Appellate to Supreme Court—whenitlies. An appeal lies from the Appellate Court to the Supreme Court when there has been no trial of an issue of fact in the trial court, and the amount claimed in the pleadings exceeds $1,000.</p> <p>2. A judgment was rendered in the Circuit Court for costs, on demurrer to a declaration which claimed $5,000. During the same term the court, on plaintiff’s motion, set aside such judgment and allowed a non-suit, which last order was affirmed by the Appellate Court: Held, that an appeal lay from the judgment of the Appellate Court to this court.</p> <p>3. Judgment—■under control of court—during the term entered. It is a general rule of the law, that all the judgments or other orders of a court are under the control of such court during the term at whicli they are rendered, or entered of record, and may be modified, set aside or vacated during such term.</p> <p>4. Practice—plaintiff's right to take non-suit. Where no plea of set-off has been filed, and the jury have not retired from the bar, a plaintiff may take a non-suit at any time.</p> <p>5. Same—amendment. Where a demurrer has been sustained to a pleading, it is within the judicial discretion, and almost a matter of course, to allow an amendment; and where a demurrer to a pleading has been overruled, a like liberal practice prevails in this State, and it is almost or quite a matter of course to allow the party demurring to plead over.</p> <p>6. When the trial court, during the same term, set aside an order sustaining a demurrer to the plaintiff’s declaration, and a judgment for the defendant, on plaintiff’s motion, and allowed the plaintiff to take a non-suit without notice to the defendant, notwithstanding a special rule of the court requiring notice of contested motions: Held, that there was no error in allowing the motion without notice to the defendant.</p>

<p>1. Bill of Exceptions—when necessary. The object of a bill of exceptions is to preserve in the record such matters as occur during the trial which are not a part of the record, and in such cases, the erroneous ruling must be excepted to. But where an error appears in the record as made up by the clerk, no exception to the judgment of the court is necessary.</p> <p>2. Where objections to the confirmation of the roll in a special assessment proceedings are based on the insufficiency of the ordinance, and are questions of law only, presenting nothing to be tried by a jury, no bill of exceptions is necessary to enable the objectors to assign for error the ruling of the court upon such objections.</p>

Samuel D. Wead, Judge, presiding. On June 9, 1892, the Transcript Publishing Company made its promissory note to one Arthur Keithley, for the sum of five thousand dollars, with interest at the rate of seven per cent per annum, due and payable two years from date. To secure the said indebtedness, the company executed a chattel mortgage on certain of its property.

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.

<p>1. Appeals—where no question of law is preserved, the judgment of the Appellate Court is final. Where a declaration alleges a good cause of action, and there is issue, and no propositions of law are presented to the-trial court, and no exceptions are taken to the rulings of the court in admitting or excluding testimony, and no question of law otherwise arises on the record, as made before the trial court, the finding of that court on the facts, which is affirmed by the Appellate Court, is conclusive on this court, and no question of law exists to be considered by this court.</p> <p>.2. However erroneous any statement may be as to what the law is-in-an opinion on a case by the Appellate Court, this court can not look to that opinion to determine a question on a ruling of that court or of the trial court, but must look to the judgment.</p> <p>3. Same—certificate of importance—as raising a question of law. A certificate of the Appellate Court that a case involves questions of law by reason of principal and collateral interests involved, does not p’fesent questions of law for this court where the record of the trial court pre^ sents no question of law.</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. George H. Kettelle, Judge, presiding.</p>

<p>1. Chancery—weight attached to finding of facts where the evidence is-conflicting. Where the witnesses in a chancery suit are examined orally in open court, much weight will be given to the finding oí the court, because of the better opportunity of arriving at a correct conclusion as-to the facts, where the question is dependent on the credibility of trie witnesses and the weight to be given to their testimony.</p> <p>2. Same—conflicting evidence—disturbing the finding. A decree entered on evidence conflicting and evenly balanced, heard in open court, will not be disturbed, unless an error in the finding of the facts is clear and palpable.</p>

<p>1. Special Assessment—affidavit of mailing notice of application to ■confirm. Where an affidavit of the posting and mailing of notice of application to confirm a special assessment is otherwise iu conformity with the statute, it will not be vitiated by the insertion therein of a copy of the notice mailed which fails to give the year.in which the roll is made returnable, as such statement of the copy of the notice may be treated as surplusage.</p> <p>2. The statute does not require the affidavit of the service of notice of the application for the confirmation of the assessment roll to show what the notices contained. All the statute requires is, that the affidavit shall state that the commissioners have sent, or caused to be sent, by mail, the notice that the statute requires, to the owners, etc.</p> <p>3. Such affidavit is made, by the statute, prima facie evidence of a compliance with the law in regard to giving such notice. In the absence of anything showing that the proper notices were not sent or re-. ■ceived, the prima facie showing made by the affidavit must prevail.</p> <p>4. John Meyer and two others were appointed commissioners to make a special assessment for a local improvement. Their first and second assessment rolls returned were not approved, and the same were ordered by the court to be re-cast by the commissioners theretofore appointed. In the last order for re-casting the assessment the name George Meyer was inserted instead of John Meyer: Meld, that the insertion of “George” in place of “John” was a clerical error, and did not vitiate the roll.</p> <p>5. Same—swearing the commissioners. Where commissioners appointed to make a special assessment of the cost of a local improvement, are sworn, it will not be necessary for them to be re-sworn before re-casting their roll under a subsequent order of the court.</p> <p>6. Same—power of court to set aside and order the same re-cast. Where the court sets aside a former assessment, and orders it to be re-east, it will be presumed, in the absence of any showing to the contrary, that there was sufficient cause to sustain the action of the court.</p> <p>7. Where a special assessment is set aside and a re-casting of the same is ordered, a party who is not shown to have been injured can not be heard to complain of the setting aside of the prior assessment.</p>

Thos. G. Windes presiding. Proceedings by distress for rent were instituted before a justice of the peace of Cook county by appellee, where she recovered a judgment against appellant for $70.00, and an appeal was prosecuted to the Circuit Court, where the judgment was affirmed, and an appeal to the Appellate Court was ao-ain affirmed, O The facts proved at the trial were that appellant was the tenant of appellee, of premises consisting of a store and basement and a flat,…

Henry M. Shepard, Judge, presiding. This was a bill in chancery, in the Superior Court of Cook county, brought by appellant, to enjoin the City of Chicago from prosecuting condemnation proceedings for opening and extending St. Louis and Halman avenues, in said city, across the right-of-way, tracks and railroad yard of appellant. ■ The bill alleges, that appellant, many years before, became the owner of the land for railway purposes, and for the construction of tracks…

Frank Baker, Judge, presiding. This was a proceeding instituted by the City of Chicago, in the Circuit Court of Cook county, Illinois, to condemn 66 feet in width of appellant’s right-of-way for the opening of 60th street from State street to Wentworth avenue in Chicago.

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

<p>1. Attorney—purchase of matter in litigation. A solicitor can not secretly purchase the subject-matter in litigation, or any interest therein, and hold the same adversely to his client. Such a purchase is voidable as to his client.</p> <p>2. If he does so purchase, he will be held to be a trustee for his client as to the property or interest so purchased. The purchase of the subject-matter of litigation is forbidden as against public policy, and because it places the solicitor under temptation to be unfaithful to his trust.</p> <p>3. Same—procuring a decree for himself on his client's claim. Where an attorney, without notice to his client, procured an order or judgment that the claim in litigation belonged to the attorney, and that the suit proceed for the benefit of the latter, it was held the decree or order finding the attorney to be the sole owner of the claim, was improperly and fraudulently entered.</p> <p>4. Trust and Trustee—defenses by beneficiary. In a court of ■equity, a cestui que use may avail himself of all the defenses of which the trustee could.</p> <p>5. Chose in Action—purchase—title acquired. A purchaser of a ■claim, which is not negotiable, can only acquire such interest as the vendor has. He will take the claim subject to the equities between the vendor and a third person claiming the equitable title.</p> <p>6. Hot only does any purchaser of a chose in action take it subject to all equities of the original parties thereto, but a second or subsequent assignee takes it subject to all equities existing between any prior assignor and assignee.</p> <p>7. Fraud—concealment of material facts by a purchaser. An attorney concealed material facts respecting his client’s claim, and thereby obtained an assignment of the claim, which, if known to the assignor, he would not have obtained: Held, that concealment, under the circumstances, vitiated the assignment as much as misrepresentation or actual fraud.</p> <p>S. Limitation—in equity—bill to set aside fraudulent judgment. The statute of limitations is applied in equity only by analogy to the limitations at law, and a court of equity will not apply the statute when it would be inequitable to do so. The limitation of five years will not be applied to a bill to set aside an order obtained by fraud, while the original cause is still pending.</p> <p>9. Laches—ignorance of the material facts. The defense of laches, by reason of lapse of time and inaction of the party seeking relief, will not be permitted where the party was in ignorance of the material facts connected with the transaction which is attacked, or of his rights in relation thereto.</p>

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

James Goggin, Judge, presiding. This was an action of covenant, brought by George L. Dunlap et al. against The Chicago, Milwaukee & St. Paul Railway Company, on a lease, which was executed on the 18th day of February, 1880, by the railway company, as party of the first part, and Geo. L. Dunlap and others, as parties of the second part. The 1st, 2d, 3d and 4th ■clauses of the lease are as follows: “Witnesseth: 1.

<p>1. Wills—proof of signature—knowledge of contents—presumption as to validity. It is a general rule that on proof of the signature of the deceased, he will be presumed to have known and approved of the contents and effect of the instrument he has signed, such knowledge being essential to the validity of the will. But this presumption is liable to he rebutted by showing the existence of any suspicious circumstances.</p> <p>2. Therefore, if the testator, from want of education, or from bodily-infirmity, was unable to read, or if his capacity at the time of executing the instrument is a matter of doubt, or if the party who is materially benefited by the will has prepared it, or concocted its execution, or has been in a position to exercise undue influence, or if the instrument itself is not consonant with the testator’s natural affections- and moral duties, a more rigid investigation will be enforced, and ■probate will in general not be granted, unless the court be satisfied by additional evidence that the paper propounded does really express the true will of the deceased.</p> <p>3. Wills—contest of will—sufficiency of evidence to sustain the will. On the contest of a will, no witness testified who was present when the same was read to or in the presence of the testator, but both the subscribing witnesses testified to the testator’s admission that the will had been read over to him. They testified that they went to the office of an attorney at law at his request to act as witnesses to the will, etc., found the testator in the office. The attorney picked up the will, and asked-the testator if he wished the witnesses to witness it, to which he replied in the affirmative. The attorney then asked the testator if the paper was his last will, to which he replied, it was. To the questions of the attorney, if the will was made at his request, and if the signature thereto was his, he answered in the affirmative. The attorney asked him if the will had been read to him, he said it had. The attorney called the attention of the witnesses to certain erasures and interlineations in the body of the will, and the testator said they were made at his request: Held, that there was sufficient evidence of the testator’s knowledge of the contents of the will to sustain a verdict in favor of its validity.</p> <p>4. Same—admissions of testator—evidence that the will was read to Mm. The admissions by the testator that his will had been read over to him before he executed it, are competent evidence tending to prove that such was the fact.</p> <p>5. Same—power of testamentary disposition. A person of sound mind, and subjected to no restraint or undue influence, may dispose of his property by will as he sees fit. He may make those to whom he is bound by natural affection or moral duty the objects of his bounty, or he may dispose of his property to stranger!,. The mere fact that one ■disposition of his estate is made, rather than another, can, of itself, have no tendency to impeach the validity of his will. In other words, his testamentary capacity and his freedom from undue influence being conceded, the propriety or impropriety of his bequests is a matter with which courts and juries have nothing to do.</p> <p>6. Same—evidence of undue influence and mental incapacity. But where fraud, undue influence or want of testamentary capacity is charged, all the surrounding facts, including the bequest itself, its propriety or impropriety, its reasonableness or unreasonableness, in view of the situation, relations and circumstances of the testator, may be considered, as bearing upon the issues thus raised.</p> <p>. 7. On the contest of a will for want of sufficient mental capacity, and for fraud and undue influence, the court instructed the jury as follows t “The only question that you are to try and determine is whether the writing produced is, or is not, the will of 0.; and in passing upon this question, you have nothing whatever to do with the propriety or impropriety of the bequests mentioned in said writing, as to whether said bequests were just or unjust, or as to whether such bequests should or not have been made,” etc.: Held, that if the instruction had stood alone, it would have-been error to give it, as withdrawing the attention of the jury from the consideration of the propriety or justness of the bequests in the will.</p> <p>8. Sam®'—verdict of the jury on a contest—how far conclusive. The question of the capacity of a testator to make a will being preeminently a matter for the jury to determine, their verdict should not be disturbed, unless the court is able to say that it is clearly against the weight of the evidence.</p>

<p>1. Corporation—contract through one of its officers with himself'. A lease made by a railway company, through one of its directors, on the-one part, with himself and another, the owners of the demised premises, on the other part, is not void so as to be incapable of ratification.</p> <p>2. A lease for five years was executed by A. and B., the owners of the property in their own proper names, to a railway company, which, executed the same by A., its vice-president and general manager, and the company took and retained possession of the premises for three years, and paid rent: Held, that the lease was not void, but at the most only voidable.</p> <p>3. Where the president and directors of a railway company authorize its vice-president to make a lease of land of which he is part owner, and after its execution, the leasing of the premises is approved and ratified by the president and directors of the company, and there is no-fraud, the lease will be valid.</p> <p>4. Same—ratification of act done—how shown. A ratification of the act of an officer of a corporation in making a contract may be implied by the acts of the corporation, as well as expressed by its vote. The acts and assent of corporations, like those of individuals, may be shown, and inferred from facts and circumstances.</p>

G-eorge Wolf, Judge, presiding. The City of Freeport, incorporated under the general latv in force July 1, 1872, on the 29th of April, 1890, passed an ordinance for the improvement of one of its streets. An amendment to that ordinance was subsequently passed, and approved May 17, 1890, but it is unimportant in this case.

<p>1. Nuisance—abating by injunction—when jurisdiction is exercised. The restraining power of courts of equity by injunction, may be invoked by a private individual to prevent a special injury by the erection or continuance of a nuisance. But this jurisdiction is always reluctantly exercised until the nuisance has been found to exist by a jury, and never, unless both the nuisance and the resulting injury are clearly shown by the evidence.</p> <p>2. The question, what is a nuisance, is one peculiarly fitted for the investigation of a jury, and, in an ordinary ease, when the event of a suit in equity depends on a legal right, that right must be ascertained, in an action at law, before any relief can be granted in a court of equity.</p> <p>3. Where there is good reason to conclude that the nuisance complained of is temporary, the court will not grant a temporary injunction, in order that the plaintiff may bring an action at law, which may be nugatory. A mere diminution of the value of property by the nuisance, without irreparable mischief, will not furnish any ground for equitable-relief.</p> <p>4. On a bill to enjoin the keeper of a hotel from permitting dense smoke, dust and soot, to be emitted from the chimneys of his hotel, whereby the complainant’s carpets, curtains, draperies, etc., were injured, the proof showed that the defendant, in carrying on his business, was temporarily compelled to use coal which produced a dense smoke, to the injury of complainant, but that the injury was not a permanent one, but was one that could be compensated by an action at law; it was held that a court of equity had no jurisdiction to interfere, there being an adequate remedy at law.</p>

Jonas Hutchinson, Judge, presiding. This was an action for personal injuries sustained by appellee, resulting in the loss and amputation of his leg below the knee. Appellant owned a steam propeller used in towing its canal boats and barges through the waters of the Illinois and Michigan canal and Chicago river, which was under the control and management of Captain Cooley.

<p>1. Special Assessment—deviation from plan and character of improvement. The ordinance is the authority for, and the basis of, a special assessment for a local improvement, and the work must conform substantially to the “nature, character, locality and description” given in the ordinance, and any deviation therefrom which renders the improvement less beneficial to property assessed, should entitle the ■owner to relief against the assessment, and any such alteration, however slight, becomes to the owner a substantial and material change. The test should not be merely the identity of the location in the ordinance and place of construction, but the effectproduced to the assessed property.</p> <p>2. A lot owner has the right to refuse to permit a sewer to be built over his premises until his just compensation has been fixed in the manner provided by the statute, and paid, but if the city can avoid that expense and delay, by a slight change in its location, without decreasing the benefit to his property, it is its right and duty to other property owners to do so.</p> <p>3. Where the change in the location of a sewer produces no injury to a lot owner whose lot is assessed, and the proof fails to show that any benefits which could have accrued to his property by the improvement constructed in strict conformity with the ordinance, has been taken away or diminished by the change, no relief will be granted to such owner.</p>

<p>Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Circuit Court of Kane County; the Hon. Isaac Gr. Wilson, Judge presiding.</p>

<p>1. Decebe—whether binding on one not a party to the suit. The general rule that a decree is not binding on one not made a party to the suit, is subject to certain well recognized exceptions. Thus, when a party is before the court by representation, and in such a way that his interest must be deemed to have been as fully and effectually presented and protected as it would have been if he had been personally present, his rights will be concluded by the decree. Upon this principle it has been frequently held that where the owner of the vested estate is before the court, the interests of a contingent remainderman will be bound, although he may not be formally made a party.</p> <p>2. A party made a deed by which he granted an estate for life, after his death, to his four children, and to their issue or heirs of their bodies in fee, such issue to take per stirpes, subject to the proviso that if either of the grantees of the life estate should die without issue, the remainder, after the life estate of the grantor dying, should go to the surviving grantees for life, with remainder in fee to their issue or heirs of their bodies. If all the issue of a grantee should die in his or her lifetime, the remainder was to go, upon his death, not to the heirs at law of his or her deceased child or children, but to the surviving grantees for life, with remainder in fee to the issue or heirs of their bodies. After bill to foreclose a mortgage, and before final decree therein, one of the grantees had six children born, all of whom, except the youngest, were made parties, and a decree of foreclosure was entered: Held, that the decree was conclusive on all the children of such grantee, including the one not made a party.</p> <p>3. Remainder—whether contingent—deed construed. Where a deed grants an estate for life after the grantor’s death, to his four children, and to their issue, or to the heirs of their bodies in fee, the issue or heirs of their bodies to take per stirpes, but the grant is subject to the proviso that if either of the grantees shall die without issue or heirs of his or her body, the remainder, after the life estate of the grantee dying, shall go to the surviving grantees for life, with remainder in fee to the issue or heirs of their bodies, the interest acquired by the grandchildren, under such deed, will be contingent. The persons who are to take the remainder, on the death of either of the life tenants, are left dubious and uncertain, so that0 until such death it is impossible to ascertain the persons to whom the remainder will go.</p> <p>4. Same—in fee—limited after a fee. A remainder in fee maybe limited after a fee by will by way of an executory devise, but it can not be done by deed.</p> <p>5. Burnt Records Act—establishing title against a contingent interest. The provisions of the Burnt Records Act are broad enough to authorize the court to determine and establish a title even as against a party holding or claiming a contingent interest, especially where the cloud on the petitioner’s title grows out of the provisions of a deed made before the destruction of the records.</p>

R. W. Cliffobd, Judge, presiding. This was an action originally brought before a justice of the peace by the Town of Calumet in Cook county, against The Chicago, Rock Island & Pacific Railway Company, to recover a fine under section 35 of an “Act in relation to fencing and operating railroads,” approved March 31,1874, in force July 1, 1874. Starr & Curtis’ Ann. Stat., chap. 114, par. 90.

<p>1. Beal Estate Broker—sale partly on credit—proof of authority. In an action by a real estate broker to recover commissions on sale of real estate, where it appeared that the sale was to be partly for cash and partly on credit, without any express directions as to the portion of the purchase money that should be deferred, it was held that it would be inferred that the broker should exercise his own discretion as to the portion on which credit was to be given.</p> <p>2. Where nothing was said by the parties as to how the deferred payments were to be secured, the broker, in making a sale, stipulated with the purchaser that they should be secured by mortgage or deed of trust on the premises sold, bearing a fair and reasonable rate of interest: Held, that these provisions constituted no substantial departure from the terms of the authority conferred on the broker.</p> <p>3. Authority in a real estate broker to sell real estate in Ohicago, partly for cash and partly on time, when no further specific directions are given as to the terms of the contract of sale, will invest the agent with a reasonable discretion, to agree that the vendor shall furnish an abstract of title showing a good title, and provide for the return of the cash payment in case the title is not good, and making time material.</p> <p>4. Where the owner of land makes no objection to the terms on which his agent has sold the same, but repudiates the sale, solely on the ground of a higher offer, the contract being oral, and within the statute of frauds, his conduct in this respect will furnish some evidence that the agent had made the sale upon terms which were within the purview of his authority, and will tend to justify a recovery against him by the broker for his commissions.</p>

<p>1. Continuance—absence of witnesses—diligence. A party was indicted on March 2, 1S92, and on the 20th day of April the cause was placed on the trial docket, and on the next day the cause was called for trial, in the absence of his counsel. He filed an affidavit for a continuance, on the ground of the absence of certain witnesses, which motion was denied. The affidavit failed to show any effort to subpoena the witnesses until the day before the cause was called for trial, and even then no subpoenas were taken out. Defendant was out on bail until txvo or three days before the case was called for trial, during which time he made no •effort to procure the witnesses named in his affidavit, which also failed to state the residence of the witnesses: Reid, that the motion was properly overruled for want of diligence to procure his witnesses, and for the omission in the affidavit to state their residence.</p> <p>2. Same—discretion of the court. After the motion for continuance was overruled his counsel appeared and asked for time to prepare a formal written motion for a postponment of the trial, which application was denied. No reason for the absence of counsel was shown: Reid, that the application was a matter resting to a great extent in the sound discretion of the court, and that there was no error in refusing the application.</p> <p>3. Criminal Law—witness not indorsed on indictment. In the trial of a criminal case the people are not confined to the list of witnesses indorsed on the indictment, but the court, in the exercise of a sound discretion, may permit such other witnesses to testify as the justice of the case may require.</p> <p>4. Same—reasonable doubt. On the trial of one for forgery, the court modified an instruction asked by the defendant as to a reasonable doubt, which was too broad, so as to make it read: “The court instructs the jury as law, that if you have a reasonable doubt of the guilt of the defendant of the offense charged against him, you should find him not guilty”: Held, that the question of a reasonable doubt was thereby fairly and properly submitted to the jury.</p> <p>5. Same,—forgery—indictment—variance between allegations and proof . While it is not necessary to set out in an indictment a forgfed instrument in hcec verba, yet when the pleader does so, he is bound to set out each and every part thereof which constitutes any part of the written contract, and a failure to do so may be fatal on the trial.</p> <p>6. Same—materiality of variance. An indictment for forgery set out the forged bill as follows: “New York, June 16; 1S92—$250—No. 566. At sight pay to the order of G. O. G., two hundred and fifty dollars with exchange, value received,and charge to the account of O. C. B. & Co. To 0. C. B. & Go., 115 Broadway.” The draft admitted in evidence, instead of being addressed to„C. C. B. & Co., 115 Broadway, as alleged in the indictment, was drawn to “C. C. B.& Co., Broadway, New York”: Meld, no material variance, as the words, 115 Broadway, New York, were no more than a mere description of the residence of the drawees.</p> <p>7. Evidence—papers unlawfully obtained. Although letters or papers may be unlawfully obtained by an officer from the possession of a party charged with crime, this will afford no valid objection to their admissibility in evidence against him, if they are otherwise competent evidence.</p> <p>8. Same—admissibility on re-direct examination. On the trial of one for forgery, a witness on his re-direct examination, after a long cross-examination, was allowed to testify to the statement of a third person in relation to a certain transaction, over the objection of the defendant, that the evidence was not a proper re-direct examination: Held, that if the evidence was admissible at any stage, as the objection seemed to imply it would be, there was no error to allow it to be introduced on the re-direct examination.</p> <p>9. Practice—waiving opening argument. Under the practice in this State, the plaintiff may waive the opening argument to the jury, and if the defendant waives an argument on his part, the case will go to the jury without argument. But when the plaintiff waives the opening, and the defendant makes an argument, the plaintiff will have the right to close, although he has made no opening argument.</p>

<p>1. Homestead Loan Association—mortgage of another corporation to secure bonds of a member—its validity. Where a homestead loan assoelation made loans to certain of its members for the use and benefit of a corporation, and took the bonds of such members secured by deed of trust of the corporation receiving the money, it was held, that the bonds and deed of trust were valid and euforcible.</p> <p>2. A homestead loan association made a loan of money to two of its members for the use of a brewing company, which gave its deed of trust to the association to secure the loan, there being no fraud in the loan and nothing to mislead the parties in whose names the loan was made: Meld, that as the brewing company could not avoid its deed of trust under the plea of ultra vires, such parties were also estopped from availing of the defense, and that the deed of trust might be foreclosed as against them and other creditors of the brewing company having notice of the rights of the loan association.</p> <p>3. Same—corporations becoming membersandborrowing money. There is no express prohibition in the statute against corporations becoming members of loan and homesteadassociations for the purpose of borrowing money, or against such associations loaning money for other than building purposes.</p> <p>4. Ultra Vires—acts of corporations—whether ultra vires. Where acts of a corporation are spoken of as ultra vires, it is not intended that they are unlawful, or even such as the corporation can not perform, but merely that they are not within the powers conferred upon the corporation by the act of its creation, and are in violation of the trust reposed in the managing board by the shareholders, that the affairs shall be managed, and the funds applied solely for carrying out the object for which the corporation was created.</p> <p>5. Same—when the defense may be interposed. It is well settled, that a corporation can not avail itself of the defense of ultra vires when the contract has been, in good faith, fully performed by the other party, and the corporation has had the full benefit of the performance, and of the contract. The same rule holds e converso.</p> <p>6. While contracts ultra vires remain executory, courts will interfere to prevent their enforcement on the application of a shareholder, or other authorized persons, but where a contract has been carried into effect, and the corporation has received the benefit of it, it can not plead the excess of its power in discharge of its liability. And if the other party has had the benefit of a contract fully performed by the corporation, he will not be heard to object that the contract and performance were not within the legitimate powers of the corporation.</p> <p>7. The plea of ultra vires should not, as a general rule, prevail, whether interposed for or against a corporation, when it will not advance justice, but, on the contrary, will accomplish a legal wrong.</p>

<p>1. Dower—burden of proof. To entitle a widow to recover dower In land, the burden of proof is upon her to show that her deceased husband, during the coverture, was seized of a legal or equitable estate of inheritance in the premises.</p> <p>2. Estoppel—denying recitals in a deed. A party claiming under a deed will not be permitted to deny any of the recitals therein, however contrary to the truth. But where a party in possession, claiming the title, buys in an outstanding claim of title, he and his grantees may show that the grantors in the deed had no title, and that the grantee, and his assigns hold under a different title, which is paramount.</p>

<p>1. Negligence—due care of plaintiff—contributory negligence. Before a plaintiff can recover on the ground of mere negligence, he must-show that the injury of which he complained was caused hy the defendant, and that he, himself, at the time, was in the exercise of ordinary care.</p> <p>2. Where the party injured, at the time of the injury, is in the exercise of ordinary care, no contributory negligence is legally attributahleto him, although he may not have been in the exercise of the highest degree of care.</p> <p>3. In an action based on negligence, the court on its own motion instructed, in substance, that if the defendant was shown to have been-guilty of negligence, and that such negligence caused the injury complained of, and it was also shown that the plaintiff was not guilty of any negligence contributing to her injury, the jury should And for the plaintiff; and in one of defendant’s instructions it was held, that if the plaintiff had failed to prove that, at the time of the injury, she was in the-exercise of ordinary care and prudence, she could not recover: Held, that these instructions laid down with substantial accuracy the law applicable to the question of negligence of both plaintiff and defendant..</p> <p>4. In an action against a street railway company for a personal injury of the plaintiff while getting off the car, caused by catching her dress-in a bolt projecting above the floor of the car, the car having stopped to allow another car to pass, the court instructed the jury, that although they might believe from the evidence that the plaintiff got off from the car at the north side of D. street, when the usual place for alighting was on the south side of that street, that fact alone would not justify them in finding her guilty of such negligence as would bar a recovery, unless they further believed and found that it was the proximate cause of the injury: Held, that there was no error in the instruction.</p> <p>5. Such instruction is not liable to the objection, that the jury might have been misled by it in supposing that the defendant relied for its defense solely upon the negligence of the plaintiff in getting off on the north side of the street, instead of waiting until her car reached the usual stopping place, especially when the several defenses of the defendant were presented in its instructions. The contention of the defendant, at the trial, that the act of the plaintiff in getting off at the place she did was negligence, made it proper to give the instruction, on that point.</p> <p>6. Same—what constitutes — a question of fact, negligence, in all' cases of this character, is a mere question of fact, or, at most, a mixed question of law and fact, and whether the party is negligent in the particular instance, must be found by the jury, and not declared by the court.</p> <p>7. Whether the mere omission on the part of a defendant to perform a duty which it ought to perform, will render him liable, must depend upon the circumstances of such omission. If shown to have resulted in injury to the plaintiff, the court can not say, as a matter of law, that it, of itself, does not involve the defendant in liability to the-plaintiff.</p> <p>8. In an action by a party against a street railway company to recover for a personal injury received by catching the plaintiff’s dress on a bolt projecting from the floor of a car while she was getting off the same, the court was asked by the defendant to instruct the jury, in substance, that if the plaintiff knew, or by the exercise of ordinary care might have discovered the bolt, then her catching her dress on the bolt was negligence per se, and must be so declared as a matter of law, which was refused : Held, that the instruction was clearly erroneous.</p> <p>9. In such case, the fact, if it were a fact, that the plaintiff knew, or by exercise of ordinary care might have discovered the bolt upon which she caught her dress, would be evidence tending to prove negligence, but it can not be pronounced negligence as a conclusion of law..</p> <p>10. In the same case the defendant asked, and the court refused, an instruction, which held, that if the plaintiff’s fall and injury were due to her haste in endeavoring to alight from the car on which she was riding, and to cross the defendant’s north-bound track ahead of the northbound ear, then she was, as a legal conclusion, guilty of negligence: Held, that no doubt the facts stated in the instruction, if proved, constituted evidence tending to show contributory negligence, but they could not be held negligent pro se.</p> <p>11. Same—instruction as to contributory negligence. In the same case the defendant asked, and the court refused, this instruction: “The jury are instructed, as matter of law, that if you believe from the evidence that the plaintiff got off of defendant’s car at an improper place, or in an improper manner, and if you further believe that such an action on the part of the plaintiff was a want of ordinary care, which contributed to the injuries complained of, then your verdict must be for the defendant” : Held, there was no substantial objection to the instruction, and it might properly have been given.</p> <p>12. Excessive Damages—a question of fact—whether considered on appeal. In an action at law, to recover for a personal injury by negligence, the question of the defendant’s negligence as charged, and that of the plaintiff, are not open for consideration in this court. ÍTor can this court consider whether the damages are excessive, as that necessarily involves questions of fact.</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. Jonas Hutchinson, Judge, presiding.</p>

T. M. Shaw, Judge, presiding. This was a bill in equity brought by Chauncey C. Wood and Kate Wood, his wife, against Arthur Keithley, to redeem from an alleged mortgage, executed on the 1st day of November, 1889.

—heard in that court on appeal from the Circuit Court of Cook County; the Hon. E. W. Clifford, Judge, presiding. This was an action on the case in the Circuit Court of Cook county, by appellee against appellant, to recover damages alleged to have been caused to the property of appellee, by reason of the construction and operation of appellant’s railroad.

<p>1. Corporations—insolvent corporation—bill to wind up its affairs—jurisdiction. Where a private corporation, organized under the act of 1872, ceases business, leaving debts unpaid, a court of equity will have jurisdiction of a bill filed by a party who is both a stockholder and creditor, to wind up the affairs of the company, under section 25 of that act. The statute gives a remedy in the nature of a creditor’s bill, and is designed to aid creditors in the collection of their debts.</p> <p>2. Same—right to prefer creditors. It is the settled law of this State that corporations may prefer creditors. Their corporate property is not held in trust in such sense as to forbid the corporation from giving judgment notes, confessions of judgments or mortgages, or doing any other matter or thing in the exercise of the right they have to prefer one creditor to another.</p> <p>3. Same—exercise of right to prefer creditors—good faith of officers_ The persons to whom the corporation intrusts the exercise of its right to prefer creditors, must exercise the trust in the utmost good faith, without regard to the extent of their personal interest in the corporation or its property; and the fact that the corporation may be embarrassed with debts or may be well nigh or wholly insolvent, will not lessen the duty to exercise with fairness the power given them. They represent the corporation.</p> <p>4. Such agents or officers of a corporation have no right to join hostile creditors or hostile stockholders in a raid upon the corporation, or upon the corporate property; and incitement to adverse action is not less inconsistent with their duties. Their attitude must be at all times, on the side of the corporation, otherwise they cease to represent it.</p> <p>5. Same—power to borrow money. Power given by a corporation to its president to borrow money, and secure its repayment by judgment notes or otherwise, should be construed with strictness. The power to borrow money will not embrace the power to buy stock in the corporation, or other corporate stocks, or printing presses, paper and other materials for the company.</p> <p>6. Same—setting aside judgments obtained by fraud of officers. Where a president of a private corporation, who held a controlling share of the stock, was empowered to borrow money, as the agent of his wife sold her stock to the company, and gave her judgment notes payable on demand, upon which judgment was confessed in favor of the wife, under Which all the corporate property was sold, and the proof showed that the president in such transaction was seeking to break down the company, and transfer such property fraudulently to his wife, and had conspired with the secretary to wreck the corporation, it was held that the sales of the corporate property under the judgments confessed, were properly set aside on the bill of stockholders and creditors filed for that purpose.</p> <p>7. Insolvent Debtors—creditor accepting preference. Creditors may accept preferences, but not in consideration of promises, express or implied, to further the plans of the debtor to hinder, delay or defraud other creditors. The law favors the diligent and active creditor, but it warns him that he can enter into no bargain or plan, the object of which is not the collection of his own debt solely, but in part the defeat of some one else equally worthy with himself.</p>

<p>1. Drainage Law—constitutionality of act of June 22,1885. The act •of June 22, 1S85, to vest the corporate authorities of cities and villages with power to construct, maintain and keep in repair, ditches, levees, dykes, and pumping works for drainage purposes, by special assessment upon the property benefited thereby, is not unconstitutional.</p> <p>2. The clause in section 31, article 4, of the constitution, giving the legislature power to invest drainage districts with power to keep in repair ditches, etc., relates only to drains, ditches and levees constructed prior to the time such clause went into force. If the act of June 22, 1885, assumed to give the corporate authorities of cities and villages power to •do anything in regard to drains, ditches and levees, other than constructing and maintaining, and to require the same to be paid by special assessment upon property benefited thereby, such act to that extent would be unconstitutional and void.</p> <p>3. The word “maintain” and the expression “keep in repair,” as found in the amended section 31, article 4 of the constitution, are used as synonymous.</p> <p>4. Same—act of 1885 construed. The act of June 22, 1S85, relating to drainage, applies only to incorporated cities and villages. All the powers conferred by the act are conferred upon the corporate authorities •of cities and villages, and hence proceedings under it are not required to be carried on in the name of commissioners of the district.</p> <p>5. Same—drainage of a city^discretion of city authorities as to the method. In providing for a system of drainage in a city or village, the question whether the lands in the territory to be drained are so situated that they can be drained by the ordinary process of gravitation, or whelher it is necessary to adopt a system involving the construction of a central reservoir or well into which the sewage and water shall be •carried by means of drains and sewers, and thence be raised by means of pumping works to a higher level, so as to be discharged into a main trunk or sewer and pass off, is one for the determination of the city or village authorities. The choice of the mode of drainage is within the legislative discretion of the authorities of the city or village, and the courts will not interfere with such discretion, unless it has been clearly ..abused.</p> <p>6. In a proceeding to confirm a special assessment for the construction of a system of drainage, proof that some other mode would be less expensive, and answer the purpose intended, just as well as the one adopted, is properly excluded. The only question is whether the lands of the objectors are assessed more or less than they will be benefited, or more or less than their proportionate share of the cost thereof. /</p> <p>7. Special Assessment—order appointing commissioners—whether it includes the entire improvement. Where the order of the court appointing commissioners to make a special assessment for a local improvement refers to the petition filed by a city or village, which sets out the ordinance in full, and the oath of the commissioners, and the assessment roll refers to the ordinance which provides for a general system for drainage, an objection that such order is not broad enough to include the whole of the improvement, is properly overruled.</p> <p>S. Same—in a village, after its annexation to a city. After the annexation of a village to a city, a proceeding by such village to improve streets by special assessment brought before the annexation, should be carried on and prosecuted in the name of such village, and when this is done, a recital that the city attorney appear in the case will do no harm.</p> <p>9. Same—;for expense of operating a drainage system. A city or village can not pass a valid or lawful ordinance for a special assessment for the operation of or for defraying the running expenses of a drainage system and pumping works connected therewith.</p>

<p>1. Probate Judge—prohibited from acting as attorney in matterspending in his court. The law (R. S., eh. 13, sec. 10) prohibits a judge of the Probate Court from acting as an attorney and counsellor at law in all matters pending in his own court; and this prohibition is not confined merely to suits pending in the Probate Court, but extends likewise to all suits pending in other courts which are so connected with an estate pending in such Probate Court as that judicial action may be required therein with respect to the same.</p> <p>2. Where a suit is pending in the Circuit Court to set aside a will of a person whose estate is pending for administration in the Probate Court, the judge thereof is prohibited by law from soliciting or receiving from any person interested in said estate, any money, property or other valuable thing as compensation for inducing the executor of such estate to make a compromise or settlement of such will suit, regardless of what his motives may be. And if he receives any fee or compensation for services in effecting a compromise, it may be recovered back from him. The parties to such transaction are not in pari delicto.</p> <p>3. Illegal Contract—recovery of money paid where the parties are in pari delicto. It is true, as a general rule, that where two or more persons engage in an unlawful enterprise, or agree to do an illegal act, or one prohibited by public policy, and spend or pay out money to each other, or otherwise in aid of some unlawful enterprise, the law will aid neither, but will leave them where they place themselves, but there are exceptions to this rule.</p> <p>4. Same—whether the parties are in pari delicto. In cases where both parties are in delicto, concurring in illegal acts, it does not follow that they are in pari delicto, for there may be, and often are, very different degrees in their guilt. One may act under circumstances of oppression, imposition, hardship, or undue influence, or great inequality of age, so that his guilt may be far less in degree than that of his associates in the offense. And there may be, on the part of the court itself, a necessity of supporting the public interest or public policy, in many cases, however reprehensible the acts of the parties may be.</p>

<p>1. Statute—Constitutionality—subjects embraced. The act of 1SS9, relating to public parks, is not unconstitutional as being in contravention of see. 13, art. 4, of the Constitution, which provides that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in its title.” Nor is sec. 20 of the act of 1874, for the reason it introduces a new and independent subject, not embraced in the original act to which it was an amendment. The subject-matter of see. 20 falls within the general purposes expressed in the title of the act of 1871, which it amended.</p> <p>2. The amendments of 1874 andlSSl to the original act of June 10, 1871, relate to the same subject-matter, and are germane to the purposes and objects of the original act; and the title of the act of 1SS9 shows an intention to amend the act of 1871, as amended in 1874 by the addition of see. 20. Not only is reference made to the former act by its title, but it is to be amended as amended by the subsequent statutes named.</p> <p>3. Not only is the subject of the amendment embraced within the general words of the title of the act of 1889, but by reference to the section sought to be amended, the specific purpose was pointed out. The title of the act is sufficiently comprehensive within itself to reasonably indicate the objects which it assumes to effect, and this is all that is required by the constitutional provision.</p> <p>4. Judicial Notice—of organization of towns. Where the officers acting- are those elected by the people in towns organized under the general township organization law, the courts will be required to take judicial notice of the powers of such officers when thus acting, and that the town is within a county under township organization. In like manner the court is required to take judicial notice of the change of organization of any town or city from its original organization to organization under the general incorporation act for cities, etc.</p> <p>5. Towns—corporate authorities. The supervisor and assessor are the corporate authorities of a town, and special assessments for local improvements made by them are made by the corporate authorities of the town, within the meaning of the constitutional provision: Art. 9, sec. 9.</p> <p>6. Municipal Corporations—legislative power over. The power of the legislature to extend, abridge or abrogate, by general law, the powers and functions of the instrumentalities of government which it lias created, can not be questioned; and the right to impose additional duties and confer additional powers upon the municipalities of the State clearly exists.</p> <p>7. Parks—driveway—of the application for. The act of 1889, relating to parks, requires that the application made to the corporate authorities of the town for leave to open, establish and construct a driveway, shall describe the proposed location in detail. The park commissioners determine the value, character, locality and description of the improvement, and submit the same to the corporate authorities of the town, for their approval.</p> <p>8. The warrant for further proceedings in making such public improvement by special assessment, is the order or authority in writing given by the corporate authorities of the town for the opening, establishing and construction of the driveway, as determined upon by the park commissioners.</p> <p>9. Special Assessment—committee to estimate cost. Article 9, of the act for the incorporation of cities and villages, contemplates, in all cases of special assessment, that a committee shall be designated in the ordinance to make an estimate of the cost of the proposed improvement, and return the same, together with the cost of the levy and collection of the assessment, preliminary to the presentation of a petition, to some court of competent jurisdiction for the appointment of commissioners to apportion the assessment upon property benefited.</p> <p>. 10. Same—benefits to be assessed. The total amount of benefits to be assessed is fixed by the commissioners appointed to make an estimate of the cost, etc., of the improvement, and is thereby conclusively determined.</p> <p>11. Same—questions triable by jury. On application for the confirmation of a special assessment, the only questions the objectors are entitled to have tried by a jury, is whether their property was assessed more or less than it is benefited, or more or less than its proportionate share of the total cost of the improvement, as determined by the estimate returned.</p> <p>12. Same—judgment several as to each tract. A judgment of confirmation of a special assessment is several as to each tract or parcel of land assessed. A party, as to whose lots the assessment roll is complete, will not be affected by the courts setting aside the assessment as to lots in which he has no interest.</p> <p>13. The exercise of the power by the commissioners to determine what property shall or shall not be included in the assessment is not subject to review by trial by jury. The court may supervise, upon proper objection, the exercise of the power by the commissioners. The court has the power, at any time before final judgment, to modify, alter, change and annul or re-cast any assessment, and to take all such proceedings and make all such orders as may be necessary to make a true and just assessment according to the principles of the act.</p> <p>14. And in cases of fraud, corruption, oppression or departure from the principles governing in like cases, it will be the duty of the court to set it aside or to cause the same to be so changed as to make a just and true assessment. This, however, is for the court, and a matter with which a jury has nothing to do.</p> <p>15. For like reasons evidence offered tending to prove that the estimated cost was excessive, or that improper items entered into the consideration of the commissioners making it, is properly excluded from the jury.</p> <p>16. Same—matters not proper for the jury. On the trial of issues of fact in a proceeding to confirm a special assessment of property benefited, the court instructed that the jury “have nothing to do with the extent of the territory included in the district assessed in this proceeding. Tou are to take it for granted that the district is right, and that all the property benefited has been assessed. On this subject the determination of the commissioners is conclusive in the present hearing”: Held that the instruction was correct.</p> <p>17. Same—riparian rights—on question of damages. On a proceeding to confirm a special assessment to pay the cost of a driveway connected with a public park, the court instructed the jury, “that in determining the issues in the case as to property abutting on Lake Michigan, they are not to take into account the value of any riparian rights. The owner of such rights, if any, must be compensated for any damages he may suffer by interference therewith, in another proceeding.” The title over or across the tracts referred to in the instruction had not been acquired: Held, no error in giving the instruction.</p>