Volume 152 — Illinois Reports

<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> <p>An iron post, painted and used as a barber’s sign, which was about eighteen inches in diameter at the lower end and tapering towards the tóp, stood about twelve feet high, within five inches of the outer edge of the sidewalk, on a street of the -city of. Chicago. The post was estimated to be of a weight between five hundred and eight hundred pounds. For eighteen months the post had thus stood. From the bottom three prongs projected, which stood in holes drilled into the stone sidewalk. West of this post stood an iron tank, used as a plumber’s sign, about six feet distant. East of the barber’s sign stood a lamp post, six feet distant. West from the plumber’s sign, distant over twenty-one feet, stood a lamp post. A plumber’s shop was in the basement of the building, the entrance to which was nearly opposite but slightly to the west of the plumber’s sign. The outer edge of the curb was about five inches from the post,—the barber’s sign,—and the gutter next the curb was about twenty inches below the level of the sidewalk. The street a few feet away from the curb was higher than the bottom of the gutter. Defendant had in its employ a driver who was driving a team attached to a wagon, on which were loaded some supplies to be delivered at the plumber’s. The wagon, with the load, was heavy, and in backing the wagon up to the curb, after it reached near the curb it came back with much force, and the platform of the wagon projected farther back than the outer edge of the hinder wheels of the wagon, so that when the wheels rested against the curb the platform extended over the sidewalk, projecting five or more inches. As the dri er thus backed his wagon, the platform, so projecting over the sidewalk, struck the post and knocked it over, and as it was about to fall the driver called to those on the sidewalk to catch the pole. The appellee threw up his hands, but in its fall he was struck by the pole and seriously injured. Suit was brought against appellant as owner of the team and wagon, who had the teamster in its employ, for damages in negligently causing the injury. A trial resulted in a verdict for §3000, which judgment was affirmed on appeal to the Appellate Court for the First District, and this appeal is prosecuted.</p> <p>The principal questions that arise on this appeal grow out of the refusal of the court to give certain instructions asked by the appellant, the first and second of which were, that the jury should, under this declaration, find for the defendant. The others were as follows:</p> <p>3. “ If you find, from the evidence, that the plaintiff’s injuries were caused by the negligence of whoever owned the pole and maintained it there, under the circumstances, and not the result of any negligence on the part of the defendant’s driver, then your verdict must be for the defendant.</p> <p>4. “ If you find, from the evidence, that the post was not fastened to the sidewalk, but simply stood there,with two or three small lugs or spikes projecting an inch and a half or two inches into the sidewalk, and if you also find that leaving the post in that manner, under the circumstances, was negligence on the part- of the owner of the barber shop, or whoever put it there, and that the defendant’s driver, in approaching the post and endeavoring to back the truck up to the sidewalk, used the care of an ordinarily careful man, under the circumstances, then the court instructs you that the defendant is not liable for any injury which resulted from any negligence of the owner of the barber shop or the owner of the pole, and your verdict must be for the defendant.</p> <p>5. “The court instructs you that the driver had the right to back up at the place he did, regardless of any poles or posts, unless you find, from the evidence, that there was something in the appearance of the pole and drum and surroundings which would lead a man of ordinary prudence to choose another place. No man, if he exercises ordinary care under all the circumstances, is obliged to avoid poles or posts, or choose one place in preference to another. The driver, if in the exercise of ordinary care, had the right to rely upon the appearance of the barber’s pole, and govern his horses and truck accordingly.</p> <p>6. “If you find, from the evidence, that the defendant’s driver, when he saw that the post was about to fall, called to the plaintiff to catch the post, and that the plaintiff, in obedience to a request of the driver, left a place where he would not have been hit by the post if he had remained, and tried to catch the post, and was thereby injured by its fall, your verdict must be for the defendant.</p> <p>7. “It is not sufficient, in this case, for the plaintiff to prove, simply, that he was injured by the falling of the barber’s pole, and that the defendant’s truck hit the pole and knocked it over. That is not enough. You can not presume that the driver of the truck was careless simply because the pole was knocked.over and the plaintiff injured, but the plaintiff must show, by a preponderance of the evidence, that in backing around and in hitting the pole the driver was negligent,—that he did it in a careless and negligent manner; and if you find, from the evidence, that the driver, under all the circumstances, managed his horses and truck in the ordinary and usual manner, and with ordinary skill and care, then your verdict must be for the defendant. You cannot render a verdict for the plaintiff unless you are able to say, from the evidence, that in the handling of his truck and horses the driver was negligent, and if the evidence shows that the driver exercised the usual care and caution of an ordinarily careful man, under the circumstances, you must render a verdict for the defendant.</p> <p>8. “ The court instructs you that the defendant’s driver had a right to assume that whoever owned the post and maintained it there had exercised reasonable care and caution in fastening it to the sidewalk, so that it would not be dangerous to people upon the sidewalk or to teams in the street; and if you find, from the evidence, that there was nothing about the post to indicate that it was not fastened to the sidewalk, and that the defendant’s driver, in all that he did, exercised the care and caution of a reasonable and careful man, then your verdict must be for the defendant. ”</p> <p>Which instructions were refused by the court, and the refusal assigned as error.</p>

<p>Appeal from the County Court of Cook county; the Hon. D. B. Sherwood, Judge, presiding. •</p>

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

<p>Appeal from the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. S. P. McConnell, Judge, presiding.</p> <p>Appellee brought attachment in the circuit court of Cook county, against appellant. The Washington Park Club was served as garnishee. The writ was returnable and publication was made to the August term, 1891, of that court. The declaration not having been filed in time, the cause was continued until the September term. On September 23, being one of the days of said September term, this entry of appearance was'filed:</p> <p>“We hereby enter the appearance of the above defendant, and our appearance as attorneys for defendant.</p> <p>Cratty Bros., Att’ys for Defend.ant.',</p> <p>On the same day there was filed a notice to plaintiff's attorneys that on Wednesday, September 23, at ten o’clock A.M., before Judge Tuthill, “we shall ask a rule on you to file a more specific bill of particulars, and a bond for costs,” which was signed bythe same attorneys and dated September 22, 1891, and served the same day. The transcript of the record filed shows that “on September 23. 1891, on motion of defendant’s attorneys, plaintiff is ruled to file a more specific bill of particulars herein within ten days,” and that, on motion, leave was given to file a bond for costs instanter. It further appears from the transcript that on September 25 a bill of particulars was filed. On October 17, 1891, which is conceded to have been the last day of said September term of said court, the following proceedings were had and entered of record in said cause:</p> <p>“This day comes plaintiff, by his attorney, and it appearing to the court that defendant failed to plead herein, on motion of plaintiff’s attorney, ordered that the default of said plaintiff 'be taken, and the same' is hereby entered herein of record for want of a plea filed, wherefore plaintiff ought to have of defendant his damages. Thereupon, reference is had to the court to assess the plaintiff’s damages, and the court now, here, after hearing the allegations and proofs submitted by the plaintiff, and being fully advised in the premises, assesses plaintiff’s damages at $3423.06. Therefore it is considered that plaintiff do have and recover of and from defendant said damages, $3423.06, as by the court assessed, and costs, and have execution therefor.”</p> <p>And upon the same day a default was entered against the Washington Park Club, as garnishee, and the following conditional judgment rendered against it:</p> <p>“And it further appearing that personal service of process issued herein has been had on the Washington Park Club, garnishee, and it being called comes not, nor. any person for it, plaintiff herein makes default, which, on motion of plaintiff’s attorney, is hereby entered herein, wherefore a conditional judgment ought to be entered against said garnishee. Therefore it is considered by the court that defendant, for the use of plaintiff, recover from said garnishee $3423.06, being the amount of the original judgment rendered herein, together with all plaintiff’s costs and charges in this behalf expended, unless said garnishee, after being served with scire facias to be issued, shall show cause why above conditional judgment should not be made final and execution issued accordingly. ”</p> <p>On October 19, being the first day of the October term, 1891, of said court, an order was made and entered of record that scire facias issue against the garnishee.</p> <p>It next appears by the bill of exceptions filed in the cause, taken upon the motion to vacate the judgment, that on October 21, 1891, being one of the days of the October term of said court, the defendant entered a motion to set aside the judgment and default entered at the September term, (October 17,) and for leave to plead. The motion was continued, from time to time, until the June term, 1893, when it was overruled. From the judgment overruling the motion the defendant appealed to the Appellate Court,, and also prosecuted a writ of error to reverse the original judgment. The two causes were considered together in the Appellate Court, and the judgment was affirmed.</p>

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

Julius S:- Grinnell, Judge, presiding. This was a suit in assumpsit, brought by Edward S. Richards, surviving partner of the firm of Richards, Maynard & Co., against the Lake Shore and Michigan Southern Railway Company, to recover damages for breaches of a contract, the material provisions of which will be stated presently.

<p>This case is substantially like the case of Lake Shore and Michigan Southern Railway Co. v. City of Chicago, 148 Ill. 509, and is governed by that and subsequent cases.</p>

<p>1. Specific performance—against personal representative—burden of proof. Under a bill praying specific performance of a contract to purchase land, the burden of proof is upon the complainant to show full performance on his part; and particularly is this so where the suit is brought against personal representatives.</p> <p>2. Contract—for purchase of lots—whether severable. Where one is. by contract given the option to buy five lots at $500 each, provided he will, by proper legal steps, perfect_ the title to the lots, he acquires no right, under such contract, to purchase any one lot at the price agreed until he performs his contract by perfecting the title to all.</p>

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

<p>Appeal from the County Court of Madison county; the Hon. W. H. Krome, Judge, presiding.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.</p>

<p>1. Condemnation—plans of proposed work, when not material. Where, in a proceeding to condemn lands for a drainage canal, the question tried is, not the right of the petitioner to condemn the property, but only the amount of the just compensation to which the land owner is entitled, pilans and specifications of the work proposed need not be produced.</p> <p>2. Same—question of excessive condemnation, how raised. Where a respondent in a petition to condemn claims that the amount of land sought to be condemned is excessive, and that plans and specifications of the work, more full than those produced, would show that fact, he should raise these questions specifically in the-trial court, and, failing to do so, will be taken to have acquiesced both in the sufficiency of the plans produced and in the condemnation of the entire tract. This case distinguished from Tedens v. Sanitary District, 149 Ill. 87.</p> <p>3. Same—capability of improvement as affecting value. In a trial to ascertain the just compensation for lands which are subject to overflow, the value of such lands, as enhanced by their capability of improvement, by the erection of dikes thereon,— which dikes, if constructed, would have the effect to wrongfully overflow the lands of neighboring riparian owners,—is not proper for the consideration of the jury in assessing the owner’s compensation, and instructions which so tell the jury are not erroneous.</p> <p>4. Riparian rights—riparian owner must accept burdens as well as benefits. Each proprietor of land upon a natural water-course is entitled to have the water flow undeflected to him so far as it is a benefit, and is also bound to receive it undiminished so far as it is a nuisance. He. has no right to improve his lands by erecting dikes for their protection against ordinary floods, in such manner as to flood the lands of others which would otherwise be exempt from overflow.</p> <p>5. Instructions—substance given in others. It is not error to refuse instructions embodying propositions of law which are substantially given in other instructions in the case.</p> <p>6. Same—apply, in condemnation, to cases severally. An instruction given for petitioner, that “the placing of dikes hbout the lands of respondents, or either of them,” would not be lawful if such dikes would cause the overflow of the lands of another, etc., is not erroneous, even though the cases of other respondents besides appellants were being tried with theirs. Such trials are, in legal effect, several, and the jury would consider the • instruction as applying, severalty, to each tract of land and each land owner.</p> <p>7. Same—when basis of, in evidence, should be shown. It is not error to refuse an instruction which is not based upon the evidence, and where a record is voluminous the court will not assume the labor of searching for evidence on which a refused instruction is said to be based, where the counsel urging the exception fails to point it out, after its existence has been denied by opposing counsel.</p>

Writ op Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the County Court of Randolph county; the Hon. Warren A. Wilson, Judge, presiding. •

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

the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Jackson county; the Hon. J. P. Robarts, Judge, presiding. This was an action on the case, brought by Fannie Massey, administratrix of the estate of John T. Massey, deceased, against the Mobile and Ohio Railroad Company, to recover damages for the death of the plaintiff’s intestate, caused, as is claimed, by the negligence of the defendant’s servants.

<p>Appeal from the County Court of White county; the Hon. J. C. Pearce, Judge, presiding.</p>

<p>1. Deed—several grantees—presumption as to interests conveyed. While the conveyance of lands to several grantees without any specification of the interests they are to take, has the effect, prima facie, of creating equal interests in the grantees, the presumption that it does so is one which, especially as among the parties themselves, will yield to evidence of the intention of the parties and of the real nature of the transaction.</p> <p>2. Pabtition—equitable distribution of proceeds of sale. Where parties join in an enterprise to secure their respective claims against an insolvent debtor, and thereby acquire title in common to lands, upon sale of such lands in partition, the law, in the absence of agreement, will repay the parties their respective advances with interest to date of repayment, and divide the residue, if any, among the parties, in proportion to their respective claims sought to he secured.</p> <p>3. Parties—distributees should he made parties. A judgment creditor of a party in a partition suit whose claim is to be paid in the distribution, should be brought before the court, so that the amount remaining due upon his judgment may he ascertained.</p>

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

<p>Writ of Error to the County Court of Madison county; the Hon. W. H. Krome, Judge, presiding.</p>

Clair county; the Hon. B. H. Canby, Judge, presiding. The Citizens’ Horse Railway Company, appellee herein, was granted the right and privilege of laying its track and operating its road along certain streets in the city of Belleville, under and by virtue of an ordinance passed December 21, 1885. Section 1 granted the right and named the route. Section 2 required the company to pay owners of abutting property damaged, if any, by reason of the construction of the road.

<p>1. Res judicata—-judgment, even though erroneous, cannot be attacked collaterally. Where a court has jurisdiction of the subject matter and of the parties, the judgment or decree pronounced by it is conclusive and binding upon the parties and their privies, although the court may have proceeded irregularly or erred in its application of the law to the case.</p> <p>2. Lis pendens—basis of the doctrine—when notice begins. The doctrine of lis pendens is founded upon public convenience and necessity, and the lis pendens begins from the service of the summons or subpoena, provided the bill filed is sufficient.</p> <p>3. Same—what constitutes lis pendens and what it is notice of. To create a valid lis pendens three facts are necessary: First, the property involved must be of a kind subject to the rule.; second, the court must have jurisdiction both of the person and the property; and third, the property involved must be sufficiently described in the pleadings. When these concur, a purchaser pendiente lite must take notice of everything averred in the pleadings pertinent to the issue or to the relief sought.</p> <p>4. Same—when it dates from amendment, only. Where an amendment to a bill sets up a new equity or brings forward a new claim or a different and distinct ground of relief not before asserted, the lis pendens will begin only with the filing of such amendment. But if all the material grounds of recovery were stated in the original bill, an amendment will not prevent the lis pendens from relating back to the original filing.</p> <p>5. Same—what a sufficient description of property. To create a lis pendens the property must be so pointed out in the proceedings as to warn the public that they intermeddle at their peril. But in lis pendens that is certain which can be made certain, and the description of the property is sufficient, if, by reference and upon inquiry, it may be ascertained.</p> <p>6. Same—purchaser from mortgagor pendente lite. A purchaser pendente lite from a mortgagor is, to all intents and purposes, a party to the decree of foreclosure. The same proceedings can be taken against him which can be taken against the mortgagor, and he is as conclusively bound by the result of the litigation as if he had been a party thereto from the outset.</p> <p>7. Same—no notice need be taken of deed made pendente lite. It is immaterial whether the complainant in a foreclosure suit has notice of a deed of the property made pendente lite or not. The litigating parties need take no notice of a title so acquired, and the purchaser, though known before decree, need not be made a party to the suit.</p> <p>8. Same—estoppel by delay in prosecuting suit. Where plaintiff has been so negligent in prosecuting the suit as to induce the belief that the prosecution has been abandoned, he will be estopped to insist upon lis pendens. Mere lapse of time, however, does not estop him, and if the cause finally goes to judgment or decree, it will be presumed, in the absence of any showing to the contrary, that there has been a binding lis pendens.</p> <p>9. Limitations—seven years’ possession and payment of taxes. It being the duty of a mortgagor, and also of his grantee pendente lite, to pay the taxes on the mortgaged premises, such payment by either of them cannot, while the relation subsists, be coupled with seven years’ possession under the statute, to show adverse title by limitation.</p> <p>10. Same—when statute begins in favor of mortgagor. Neither a mortgagor nor his grantee pendente lite can assert an adverse possession against the complainant in a bill to foreclose the mortgage, until after the time for redemption from the foreclosure sale expires.</p> <p>11. Same—when constructive possession not sufficient. Where possession of land, alone, is relied upon for any purpose, in the absence of paper title, it should be a pedis possessio,—an actual occupancy of the premises in question,—and not a mere constructive possession.</p>

<p>1. Swamp land—absence of seal from Auditor's certificate. In a suit in chancery to correct the county’s deed and to remove a cloud from the title of swamp land, an objection to the admission in evidence of the Auditor’s certificate that the land in question was swamp land, because such certificate lacked the seal of the Auditor, will not be sustained, the land being shown by other evidence to be in fact swamp land.</p> <p>2. Same—deed of county corrected in equity. Where a county sells swamp land it is treated as any other grantor would be, and a bill in equity will lie to correct the county’s deed, when defective for want of a seal.</p> <p>3. Sheriff’s deed— may be corrected in equity. Where the proceedings are regular leading up to a sheriff’s deed, and the deed is defective for want of a seal, it may be corrected in equity.</p> <p>4. Seal—of justice of peace in acknowledgment. It is not required that the scrawl seal of a justice of the peace, in the acknowledgment of a deed, should follow his name. Its appearance in the certificate preceding" the name is sufficient.</p> <p>5. Tax deed—what requisite to its validity. Under the statute a tax deed is not prima facie evidence of the sufficiency of the form and manner of publication, and the proof thereof, and in the absence of evidence of a precept and judgment the tax title is not valid.</p> <p>6. Same—one entering wider, not a trespasser. One taking possession of vacant land under a tax deed is not a mere trespasser, and if required to account for rents and profits should be allowed for permanent improvements, if reasonable and beneficial, as well as for taxes and assessments paid, with interest thereon.</p> <p>7. Possession—of land—when essential to give standing in equity. To enable one to file a bill to remove a cloud from his title he should be in possession of the land, but a bill will lie to correct a mistake in a deed without possession, and a court of chancery having obtained jurisdiction for the latter purpose, and having all the parties before it, may remove a cloud from the title and settle other equities.</p> <p>8. Rents and profits—how value of rents computed. Where rent of land to be accounted for by one in possession is corn delivered in crib, the market value of the corn at the time of its delivery is the proper money value of the rent.</p>

<p>1. Appeal—must conform to the order of the court. The right of appeal is strictly a statutory right, and can only be exercised when allowed by the court, and in conformity with the court’s order.</p> <p>2. Same—bond must be filed by party praying appeal. The appeal bond must be made by the person praying for and obtaining the appeal.</p> <p>3. Same—when allowed to “plaintiffusees cannot file bond. Where the suit is by one party for the use of others, and the order allows the appeal to the “plaintiff,” the usees in the suit cannot file the bond and perfect the appeal.</p> <p>4. Appeal bond—cannot be amended by filing bond of another party. Section 69 of the Practice act, providing for the amending of informal and insufficient appeal bonds, applies only to “the party taking such appeal,” and does not apply to a party who files no bond and takes no appeal.</p>

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

<p>1. Evidence—expulsion of passenger—conclusion of witness not proper. Where the question is whether a conductor, by threats or force, compelled a passenger to alight from a moving train, whereby he was injured, it is not proper for such passenger to testify, in his own behalf, that he got off because he “was in danger,” that being merely the conclusion of the witness.</p> <p>2. Negligence—when a question of law. Where the conduct of the party charged with negligence is so clearly and palpably negligent that all reasonable 'minds would so pronounce it,the court may then so pronounce it as a matter of law.</p> <p>8- Instructions—as to what will constitute contributory negligence. Where it is alleged that a conductor, by threats, compelled a passenger to alight from a moving train, it is not reversible error to instruct the jury that if the passenger “voluntarily got off” or “deliberately jumped off,” or, having voluntarily gone upon the platform, was thrown off by the motion of the car, then his negligence was such that he cannot recover.</p>

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

<p>1. Change op venue —from one city court to another. The City-Court of East St. Louis may properly send a case, on change of venue, to the City Court of the city of Alton.</p> <p>2. Instructions—different paragraphs should be read together. In determining whether an instruction containing a number of paragraphs correctly states the law, the different paragraphs should be read together.</p>

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

George W. Stipp, Judge, presiding. On the 25th day of January, 1887, Peter Howe, since deceased, made his last will and testament, in the words and figures following: “I, Peter Howe, of the county of LaSalle and State of Illinois, do hereby make, publish and declare this my last will and testament, in manner and form following : “First—I direct that my funeral expenses and all my just debts shall be fully paid. “Second—To my wife, Arvilla Howe, I give and devise my present…

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

<p>1. Divorce—circumstantial evidence of adultery. Where the circumstances proved fairly and reasonably lead to the conclusion that adultery has been committed, a finding to that effect will stand.</p> <p>2. Samb-particular facts held sufficient. Abiding in a house of assignation from midnight till nine next morning, with lights extinguished, and being seen embracing an inmate soon after entering, will sustain a finding of adultery.</p>

<p>1. Special assessments—restored assessment roll admissible in evidence. A special assessment roll, when lost or destroyed, may be restored by order of court, and the restored copy becomes the assessment roll in the case, and as such is' admissible in evidence.</p> <p>2. Same—instruction as to what constitutes benefit to property. An instruction directing the jury to consider “whether or not the market value of the property for any legitimate purpose for which the same may be used will be increased by reason of the improvement,” is not erroneous, as failing to direct the inquiry to the present market value, the present time being implied.</p> <p>3. Same—insufficient description of property. An objection that the property is not sufficiently described will not be heard for the first time in a court of review.</p> <p>4. Evidence— mere repetitions may be excluded. It is not error to exclude that which would be a mere repetition of what the witness has already testified to.</p>

Elliott Anthony, Judge, presiding. The bank checks involved in this suit purported to be drawn by the Central Union Telephone Company upon the Northwestern National Bank of Chicago. Four of these checks were made payable to the order of “F. P. Boss, Manager,” and one was drawn payable to the order of “0.

William G. Ewing, Judg'e, presiding. A judgment by confession, under a warrant of attorney, was entered in favor of appellant, against appellee Eman F. Honel, and on the same day execution was issued thereon, which execution was on the same day returned by the sheriff, by direction of plaintiff’s (appellant’s) attorney.

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

<p>1. Evidence—under Dram-shop act—what improper. Inconvenience and hardships suffered by a wife, the sickness of her children, and the injury to one child by falling from a shed, are not proper to be proved in an action by the wife for damages under the Dram-shop act.</p> <p>2. Same—how far improper evidence is mredby instructions. Whether the admission of improper evidence will be held to be cured by an instruction to disregard it, must depend upon whether the reviewing court can see that, under the circumstances of the particular case, the improper item of evidence has been robbed by the instruction of its power to work harm.</p> <p>3. Instructions—to enforce the law, of doubtful propriety. An instruction to a jury, in any civil action, that it is their sworn duty to enforce the law, is of doubtful propriety.</p> <p>4. Same—to enforce Dram-shop act not proper—actual and exemplary damages. In an action by a wife against a saloon-keeper, under section 9 of the Dram-shop act, an instruction that “the law as it stands upon the statute book of this State should be enforced, and it is the sworn duty of the jury to enforce it,” is improper, as requiring them to award the “exemplary damages” named in said section in disregard of the rule that such exemplary damages can only be allowed where actual damages are found.</p>

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

<p>1. Deeds—(Miren/ to thirdj person—when sufficient. The delivery of a deed to a third person for the benefit of the grantee, if the grantee subsequently accepts the deed, is as good as though made directly to the grantee.</p> <p>2. Same—when grantee’s acceptance will be presumed. Acceptance of a deed by the grantee will sometimes be presumed from the fact that the deed is for his benefit.</p> <p>3. Same—presumption of delivery to and acceptance by infants. The presumption is in favor of the delivery of deeds to infants, and those alleging the contrary must clearly prove there was no delivery; and the presumption of acceptance of deeds by infants is a rule of law, knowledge on the part of the infant being unnecessary.</p> <p>4. Same—made in voluntary settlements-—presumption. The law presumes more in favor of the delivery of deeds made in the course of voluntary settlements, especially when made to infants, than it does in ordinary cases of bargain and sale.</p> <p>5. Same—rule as to delivery to third person applied. A father, in accordance with his expressed intention, executed a deed to his daughter Mary for life, with remainder to her children, which deed he kept for some time, frequently looking at it, and speaking of it as “Mary’s deed. ” Shortly before his death, upon again looking at it, he gave it to his daughter Emma, saying, “Put it away, and give it to Mary; it is hers.” An hour after the father’s death Emma gave the deed to Mary, who accepted and recorded it: Held, a sufficient delivery.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William G-. Ewing, Judge, presiding.</p>

Oliver H. Horton, Judge, presiding. Thomas Hutchinson died in Chicago on December 2, 1887. He left him surviving no widow or children, or descendants of children. His next of kin were two brothers, Georg'e Hutchinson and James A. Hutchinson, and each of these brothers had children. One of the children of James A. Hutchinson was named Thomas Hutchinson, and he had been named for the decedent.

<p>1. Laches—prevents specific performance when contract is doubtful. Where there is doubt about the existence and terms of a contract, a court of equity will be cautious in enforcing its specific performance, particularly after a long period has elapsed.</p> <p>2. Specific performance—contract within Statute of Frauds not enforced. Before a court of equity will decree a conveyance of land under a parol contract, such a performance must be shown as will take the case out of the Statute of Frauds.</p> <p>3. Same—possession must be taken under the agreement. In such case it must affirmatively appear that the possession of the property was taken and the improvements made under the contract itself, and not otherwise. '</p> <p>4. Same—the contract must not be indefinite. A parol contract, claimed to be taken out of the operation of the Statute of Frauds by part performance, must be clear and certain in its terms, and established by definite, unequivocal and undoubted testimony.</p> <p>5. Same—the part ‘performance must relate to the contract. It is not enough that the act relied on as part performance is evidence of some agreement; it must relate to and be unequivocal evidence of the particular agreement charged in the bill.</p> <p>6. Same—discretion of court in. If contract is proved, the decreeing of specific performance is matter of sound discretion with the court.</p> <p>7. Statute of Frauds—memorandum to take case out of. The making of a deed which was never delivered, and afterwards destroyed by the grantor, and which does not relate to and prove the contract of sale, will not operate as a written memorandum taking the case out of the Statute of Frauds.</p> <p>8. Deeds—voluntary settlement. A conveyance retained in the grantor’s possession will not be good as a voluntary settlement if other circumstances besides the retention show the grantor did not intend it to operate immediately, or had an intention contrary to that appearing upon the face of the deed.</p> <p>9. Witnesses—competency where adversary defends as devisee. A complainant in a suit against heirs and devisees to enforce the specific performance of a verbal agreement to convey land is not, nor is her husband, a competent witness.</p> <p>10. Error—matters discretionary carmotbe assigned for. Unless there is something in the recqrd to show an abuse, matters discretionary with the court cannot be assigned for error.</p>

<p>1. Contracts—time, the essence—waiver. An agreement that time shall be the essence of a contract may be waived, either by the consent or conduct of both parties, or of that party for whose benefit such agreement is made.</p> <p>2. Same—right to forfeit for time suspended—notice. Where time is stated to be of the essence of a contract to convey land, if both parties, by a mutual course of conduct, treat the time clause as waived or suspended, one of them cannot suddenly insist upon forfeiture, but must, in order to then avail himself of the time clause, give reasonable, definite and specific notice of his changed intention.</p> <p>3. Forfeitures—not favored in chancery. Forfeiture is a harsh remedy, and in a court of chancery readily yields to the principle of compensation, if fair dealing and good conscience seem to so demand.</p> <p>4. Tender—in actions for specific performance. To entitle a purchaser to demand a deed and maintain a bill for specific performance, it is sufficient if he is ready and offers to pay any sum that may be found due, and to comply with the contract on his part, and the technical rules that govern pleas of tender in actions at law are not applicable.</p> <p>5. Parties—in specific performance—death pending suit. Upon the death of a party pending a suit for specific performance of a contract for the sale of land, all persons who can, by any possibility, have an interest in the contract under such deceased party should be made parties, including trustees in a will, on whom are imposed active trusts with respect to the property.</p>

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

<p>1. Practice—in Supreme Gourt—insufficient abstract. If a defendant, on appeal or error, does not present an additional full abstract under the rule, it will be understood the case is submitted on the abstract filed, and the court will not examine a voluminous record in passing upon the points.</p> <p>2. Partition—suit in, involves a freehold. A proceeding in partition involves a freehold, and an appeal in such a case to the Appellate Court is properly dismissed.</p> <p>3. Same—when question of title may be settled in. When, in a suit for partition, one defendant is in possession claiming adversely, the court, having acquired jurisdiction for the partition, will dispose of the question of title also, thus saving an action at law.</p> <p>4. Same—scope of the action. Inasmuch as the court is required by statute to find and declare, in a suit in partition, the rights, titles and interests of all the parties, the bill must set forth the interests of all the parties in the premises.</p> <p>5. Decree—must be supported by evidence. A decree in partition which is not supported by the evidence as presented to the court will be reversed.</p>

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

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

<p>1. Wills—construction—intention of testator. The purpose of the construction of a will is to arrive at the intention of the testator, and to do this all parts of the will should be considered, and, if possible, each provision, word and phrase given effect.</p> <p>2. Same—later clause modifies former. A later clause of a will, when inconsistent with a former provision, will be considered as intended to modify, limit or abrogate the former.</p> <p>3. Same—different parts of mil to be reconciled. Only as a last resort will a court hold conflicting provisions of a will irreconcilably repugnant.</p> <p>4. Same—power of disposal in first devisee. The rule that where the first devisee has discretionary power of disposal, and not a mere power of appointment, an estate limited over is void, can only be applied where, upon consideration of the whole will, the first taker is seen to be given the absolute right to dispose of the property.</p> <p>5. Same—whether estate of inheritance or for life given. If a testator in one part, of his will gives an estate of inheritance, and in subsequent passages shows he means the devisee to take a life interest, only, the prior gift will be restricted accordingly.</p> <p>6. Same—rules of construction applied. Where, in each instance of the mention of a devise of lands to a daughter in a will, it was stated to be “subject to conditions” to follow, which conditions were subsequently expressed to be, that, should said daughter leave issue, “the remainder * * * shall pass and vest * * - in such issue,” or should said daughter die without issue “all the remainder of said property * * * to pass and be vested in L. and his heirs,” etc., it was held, that only a life estate vested in the daughter, and that the remainder was “devised over,” notwithstanding the original words of gift were broad enough to vest a fee.</p> <p>7. In such case the effect of the conditions named was to modify the general words of the former paragraph, and terminate the estate with the daughter’s life.</p>

<p>1. Questions op pact—verdict upon, when conclusive. Where the charges of a complainant’s bill are specifically denied and the evidence is conflicting, the verdict of the jury will be final, unless error is shown</p> <p>2. Adultery—may be inferred from circumstances. Adultery may be shown by proof of circumstances which naturally and by fair inference lead to the conclusion that it has been committed.</p> <p>3. Evidence—competent if applicable to some, of the issues. Although the bill does not charge adultery with a certain person, it is not error to admit evidence which incidentally tends to show such adultery, provided such evidence is competent upon other issues made by the pleadings, and is confined, by instruction, to those issues.</p> <p>4. Same—the best evidence must be produced. The best evidence the nature of the case admits of must be produced. What a party understands or believes is properly excluded. Those who Tenow the facts should be produced, and swear to them.</p> <p>5. Same—letters becoming part of res gestee are admissible. Where a difficulty is admitted to have taken place between a husband and wife, but the cause thereof is in dispute, the husband, who swears that the cause was the reading by him to his wife of certain unsigned letters found in her possession, may properly read the letters to the jury as part of the res gestee, even though their contents tend to prove improper conduct not charged in the bill.</p> <p>6. Same—when witnesses other than experts may give opinions. A witness who is not an expert may give his conclusion and the results of his observation, when the matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness.</p> <p>7. Therefore, it is not error to permit a witness to give his opinion from sounds, noises and conversation heard in an adjoining room, that an act of adultery took place, particularly where the sounds heard and the conversation detailed were so conclusive that the opinion of the witness added nothing to their force.</p>

<p>1. Decree—presumed to be correct. Where the witnesses are examined in open court before the chancellor, error in the findings of fact must be clear, to overcome the presumption in favor of the correctness of the decree, which presumption is allowed to prevail, in a qualified way, in chancery cases.</p> <p>2. Homestead—the right must be set up in the answer. To claim a homestead as against a creditor’s bill, the right must be set up in the answer.</p>

Francis M. Wright, Judge, presiding. On April 1, 1890, George H. Kneirim, appellee’s intestate, was killed by being run over by a car of appellant in the yards at Danville Junction. He was a yard switch-man, employed by appellant to assist in switching cars in the yard. His duties were to couple and uncouple cars, and also to manage the brakes upon the cars which were being switched.

<p>Appeal from the Circuit Court of Cook county; the Hon. Edward P. Dunne, Judge, presiding. -</p>

<p>1. Equity— cancellation of instrument void at law. A court of equity will entertain a bill to cancel an instrument void at law, if the invalidity of the same does not appear upon its face.</p> <p>2. Decree in equity—power of court over, when entered in vacation. A decree entered in vacation remains under the control and jurisdiction of the court until the close of the term next succeeding its entry.</p> <p>3. Deeds—when canceled for failure of consideration. A court of equity will cancel a deed made in consideration of an agreement to support the grantor during life, if the grantee fails to perform such agreement.</p>

<p>1. Homestead waiver^printed clause of deed overcome by written portion. If the written portion of a deed describes a particular interest, distinct from the homestead, as being conveyed, such writing will be given effect, rather than the unerased printed clause waiving homestead.</p> <p>2. Same—abandonment not conclusively presumed from short absence. While the re-marriage of a widow, and removal to the home of her second husband, raise a presumption of abandonment of her homestead, yet such presumption will yield to explanatory proof showing the removal was meant to be temporary.</p>

Owen P. Thompson, Judge, presiding. The appellees, in April, 1892, having purchased in Chicago a number of high-bred cattle for breeding purposes, shipped the same from Chicago to their farm, near New Berlin, on the line of the appellant’s railroad. The train was made up in Chicago about dark in the evening of the day they were so shipped.

<p>1. Deeds— how far possession proves delivery. Giving the grantee manual possession of a deed tends to prove delivery, and, when unexplained, is sufficient to vest title, but it is not conclusive.</p> <p>2. Same—how delivery of may take place—intent. Delivery of a deed may be actual, by doing something and saying nothing, or verbal, by saying something and doing nothing, or it may be by both; but it must answer to the one or the other or both these, and with intent thereby to give effect to the deed.</p> <p>3. Voluntary conveyance —not enforced by courts. Voluntary agreements are not enforcible in courts, even though uhder seal.</p> <p>4. Same—grantor may recede at any time before completion. So long as the purpose of a grantor to make a voluntary conveyance is in fieri, the grantor may, with or without cause, at any time, recede from such purpose.</p> <p>5. If such a deed is given to the grantee with the intention it shall not take effect unless security respecting certain matters is given, the gift becomes executed only upon the offering and accepting of such security.</p> <p>6. Permission to record such a deed, if given by the grantor only in furtherance of an ultimate purpose to make the gift provided the grantee does certain things, will not prevent the giver from withdrawing the gift at any time before the donee has performed.</p>

Thomas G. Windes, Judge, presiding. This is an action of assumpsit begun on September 13, 1890, by appellants against appellee. The declaration contains the common counts for work done, materials furnished, moneys due and owing for interest, etc. The ad, damnum, is $15,000.00.

<p>Writ of Error to the Circuit Court of Cook county ; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. County court—equity powers confined to assigned estates. By section 14 of the Assignment act county -courts are clothed with both legal and equitable jurisdiction over assigned estates, but they have no general chancery powers.</p> <p>2. Corporations—corporate property a trust fund. In equity the property of a corporation is a fund held in trust for its stockholders while solvent, and for the payment of its debts when insolvent.</p> <p>3. Same-when parties will be held trustees of corporate property. If others than bona fide creditors or purchasers possess themselves of the property of an insolvent corporation, they will hold it charged with a trust in favor of creditors.</p> <p>4. Judgments—may be attacked collaterally for fraud. A judgment or decree procured through fraud of either or both parties, for the purpose of defrauding third persons, maybe attacked by such third persons collaterally, whenever and wherever it conflicts with their interests.</p> <p>5. Same—not upheld if procured without liability. A judgment not founded upon a liability which is due, legal and enforcible will not be upheld, and any third party whose rights are affected may prove there was no debt due from the judgment debtor.</p>

<p>1. Municipal corporations—may change method of paying for improvements. The fact that a city has in the past paid for water mains with revenues from its water tax, will not preclude it from levying a special assessment for that purpose.</p> <p>2. Special assessments—sufficiency of commissioners’ estimate of cost. In determining whether the commissioners’ estimate is sufficiently specific, it should be considered in connection with the ordinance, and the specifications thereto attached.</p> <p>3. Same—superintendence of work does not imply legislative discretion. A clause authorizing the commissioner of public works to direct the time and manner of beginning and carrying on the improvement does not vest such commissioner with legislative discretion.</p> <p>4. Evidence—when formal introduction of documents not necessary. Where the ordinance, report of commissioners and assessment roll are before the court, and treated by objectors as being in evidence, formal introduction of them is not necessary.</p>

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

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Charles Blanchard, Judge, presiding.

<p>1. Dedication—owner may testify tohis intention. The owner of land may testify as to what his intention actually was as to dedication, and his testimony will be considered in connection with all other facts and circumstances.</p> <p>2. Same—testimony as to intent may be overcome by conduct. Testimony of an intent not to dedicate will not prevail against unequivocal acts and conduct inconsistent with such intent, upon which the public had a right to rely.</p> <p>3. Same—what will constitute—degree of proof required. Requisites of a common law dedication are (1) an intention of the owner to donate the land to a public use, (2) acceptance thereof by the public,, and (3) proof, clear and unequivocal, of these facts.</p> <p>4. When an intent to donate by the owner is plainly and unequivocally manifested, either by formal declarations or by acts-from which such intent may fairly be presumed, such as should equitably estop him to deny such intent, the dedication, so far as. the owner is concerned, is complete.</p> <p>5. But a dedication results from an active, and not a passive, state of the owner’s mind, and mere non-assertion of a right will not establish it, unless the circumstances show a purpose to donate.</p> <p>6. Highways—not acquired by user, if intention is wanting. The rule that a highway may be acquired by user and acquiescence is a rule of presumption, for the purpose of determining the intent, and is inapplicable if, from all the circumstances, an intention to dedicate the land is not established.</p> <p>7. The owner may show any facts or circumstances to overcome such presumption.</p> <p>8. Same—by prescription—use by public must be adverse. In order to establish a way by prescription, the use claimed must have been adverse, under a claim of right, exclusive, continuous, and with the knowledge and acquiescence of the owner, for twenty years.</p> <p>9. The public use of a highway for that time, unexplained, raises a presumption of the other conditions, and shifts the burden of proof.</p> <p>10. Same—when rule does not apply to a way in a city. But the rule, both as regards prescription and dedication, does not apply to an open way in a city, affirmatively shown to have been left by the owner for his private use, though the public also used it without objection, nor where his purpose not to dedicate is manifest from 'the way itself, or its relation to the owner’s other premises.</p>

<p>Special assessments-^-former judgment admissible under supplemental petition. Under a supplemental petition to confirm a further special assessment, it is error to exclude the former judgment showing the property was then assessed its fair proportion. Greeley v. Town of Cicero, 148 Ill. 632, followed.</p>

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

James Goggin, Judge, presiding. This is an action brought by appellee against appellant to recover damages for a personal injury, resulting in verdict and judgment for the plaintiff in the trial court and an affirmance of the judgment in the Appellate Court.

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

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

Egbert Jamieson, Judge, presiding. Prior to February 9, 1887, there existed in the city of Chicago a corporation under the name of “The Chicago Custom Clothing Company.” During the time this company had been in operation, it had borrowed of Stewart Spaulding $6250, a part of which was his own money and a part of which is claimed to have been that of William E. Atwater; also the sum of $3750 of George D. Whittle, making in all the sum of $10,000 due said three parties.

Charles Blanchard, Judge, presiding. In the year 1887 the Streator Reclining Car Seat Company was incorporated under the laws of Illinois, with a capital stock of $250,000, divided into 2500 shares, of $100 each. One E. H. Gilfillan, the chief promoter of the enterprise, subscribed for 2495 shares, and W. H. Lukins, J. G. Wilson, H. J. Wood, C. D. Chalfant and George W. Powers, citizens of Streator, each for one share.

Murray P. Tuley, Judge, presiding. Under the ordinances of the city of Chicago the appellee applied to the city engineer for a permit to dock his property on the north branch of the Chicago river.

<p>1. Service op process—upon corporation—vice-president is an “agent." The vice-president of a corporation is an “agent,” within the meaning of the statute, and process against the corporation may be served upon him as such.</p> <p>2. Same —description of officer in sheriff’s return. A sheriff’s return stating service upon the officer as vice-president instead of as agent, is good, he being in fact an agent.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from, the County Court of Cook county; the Hon. Frank Scales, Judge, presiding.

<p>1. Short cause calendar—appeal from justice always at issue. A suit appealed from, a justice, wherein no written pleadings are required, is “at issue," within the meaning of Rule 18 of the circuit court of Cook county, relating to short causes, so far as pleadings are concerned.</p> <p>2. Same—court may continue call from day to day. The fact that Rule 18 names Monday for the short cause calendar, does not, nor does the statute in that behalf, prevent the continuance of the call from day to day.</p> <p>3. Forcible entry and detainer—insufficient description of premises must be objected to below. Where a complaint and the lease introduced in evidence describe the premises by the street numbers, and no objection is made to the same in the trial court, advantage can not be taken of that fact in a court of review, even if the description were insufficient.</p> <p>4. Same—record of suit between same parties—when not proper. The record of a suit between the same parties, to recover the same premises, is properly excluded where no offer is made to prove that judgment was rendered in the cause, or that the cause of action was the same.</p>

Oliver H. Horton, Judge, presiding. The appellant, Robert M. Hamilton, as executor of Jane Downer, deceased, filed this bill of complaint against Mary Y. Downer and John S. Buhrer. The object of the bill was to charge a certain freehold estate and a certain leasehold estate with a trust. The circuit court sustained a demurrer to the bill, and, appellant electing to stand by it, entered a decree dismissing it out of court.

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

Writ op Error to the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding. On the 9th day of March, 1891, a decree was entered of record in the circuit court of Cook county, in the case of Edward G. Smith against Axel Chytraus, the Equitable Trust Company, and others. The court first made various findings of fact.

H. B. Willis, Judge, presiding. This is a common law writ of certiorari in the Circuit Court of Kane County, issued on petition of appellant, Ellen. J. Ravatte, and one M. F. Harmon, against the Commissoners of Highways in the town of Aurora, the town clerk of said town, and certain justices of the peace, requiring them to send up the record of the proceedings in regard to laying out a highway.