Volume 153 — Illinois Reports

Writ of Error to the Circuit Court of Cook county; the Hon. Edward F. Dunne,' Judge, presiding.

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

<p>1. Insurance—;foreign company may take multiform risks. There being no prohibition in the statute of Illinois against the doing of multiform insurance, the comity that prevails between the States permits a foreign corporation to do such insurance in this State, although our statute does not authorize the formation of companies for that purpose.</p> <p>2. The absence of authority in our statute to organize such companies is not an implied prohibition of the transaction of multiform insurance by a foreign company within the State.</p> <p>3. Same—effect of act of May SI, 1879. The act of May 31, 1879, authorizes every insurance company organized under the laws of another State, except life insurance companies, to do business in this State upon the conditions named in said act, including those having authority to do a multiform business.</p> <p>4. The expression “any kind of insurance,” used in the act of May 31,1879, will apply to all kinds of insurance, the only implied limitation being, that it be such as is authorized by the company’s charter.</p> <p>5. Same—capital stock of and deposit by multiform company. The amount of capital stock and deposit required by our statute of a foreign insurance company need not be multiplied by the number of kinds of insurance done, the one simple sum being sufficient to cover all.</p> <p>6. Same—retaliatory statute—how applied. A foreign insurance company will not be excluded from Illinois, under our retaliatory act, on the ground that the State of its creation would exclude similar companies of this State, unless the statute of such State, and its practical administration to that effect, are clearly established.</p> <p>7. Statutes—the title of an act should be regarded in its construction. The title of an act of the legislature, though itself no part of the act, is not to be wholly disregarded in construing such act, particularly as bearing upon the object of the legislature in passing the law.</p> <p>8. Same—construction of statute in practice. Where the execution of a statute is confided to a particular department of the government, the court will regard, and in doubtful cases adopt, the construction acted upon in such department.</p>

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

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

John J. Glenn, Judge, presiding. The original bill herein was -filed by Paradine Galbraith, widow of Franklin Galbraith, deceased, and… Held: and the complainants in the original bill since his death hold, the five tracts of land above described, in trust for the benefit of the heirs-at-law of Jesse Kemp and John J. Kemp, the undivided one-half for each set of heirs; and that the complainants in the original bill, heirs of Galbraith, are entitled to be reimbursed for all…

<p>1. Freehold—whether involved in a suit. A freehold is not involved unless the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, or unless the decision of the case necessarily involves that issue.</p> <p>2. Same—not involved in a suit to foreclose. A suit to foreclose does not involve a freehold, and the same is true of a question as to what persons are entitled to the proceeds of a foreclosure sale.</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. O. H. Horton, Judge, presiding.</p>

<p>1. Negligence—placing ashes and cinders on street by railroad company. The placing of a large pile of ashes and cinders on a public street by the employees of a railroad company, whereby a child fell under a moving train, will support a jury’s finding of negligence.</p> <p>2. Same—degree of care required of a child. The law requires no greater care from a child than might reasonably be expected from one of his years and-experience.</p>

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

Theodore Brentano, Judge, presiding. Summers Bros. & Co., appellants, were manufacturers of sheet-iron at Struthers, Ohio, and Hibbard, Spencer, Bartlett & Co., appellees, were jobbers in shelf hardware and light iron at Chicago.

Writ op Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding. Plaintiff in error declared on a policy of insurance issued to him by the defendant company, setting out the policy at length, and a written submission to and award by arbitrators, mutually chosen, as to the amount of loss. The policy covered plaintiff’s residence to the amount of $3200 and furniture $800.

<p>Writ op Error to the Circuit Court of Sangamon county; the Hon. Egbert B. Shirley, Judge, presiding.</p>

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

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Jesse J. Phillips, Judge, presiding. ,</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. Charles H. Donnelly, Judge, presiding.

Oliver H. Horton, Judge, presiding: Appellant filed his bill of complaint, in the circuit court of Cook county, for an injunction against appellee, restraining appellee from further proceeding to construct, and from maintaining and operating,'a line of single or double-track street railway on certain streets in front of his premises in Chicago.

<p>1. Evidence—as to previous associations of an abducted female. It is not error to permit a father to testify that, his abducted daughter was a church member, attended Sunday school, and was received in society before her abduction, as tending to show her chastity.</p> <p>2. Same—declarations of abducted female not competent. Declarations made by a female as to why she left home, are hearsay evidence, and incompetent.</p> <p>' 3. Criminal law—chastity of abducted female presumed. The law presumes, subject to rebuttal by evidence, that the previous life and character of an abducted female were chaste; and this presumption is not one of fact, but of law.</p> <p>4. Same—what are “chaste life and conversation.” The words'“chaste • life and conversation,” used in the statute on abduction, mean the same as a “chaste life and previous character,” and an instruction which uses the latter phrase is not erroneous.</p> <p>5. Abduction—presumption of chastity overcomes that of defendant's innocence. The burden of proof is on the defendant in a prosecution for abduction to overcome the presumption of the female’s chastity, notwithstanding the general presumption of his innocence.</p> <p>6. Instructions—presumption of chastity has probative force. An instruction that the presumption of the chastity of an abducted female is "only a bare presumption, and does not continue after the production of any competent evidence to the contrary,” is properly refused, as ignoring the probative force of such presumption.</p> <p>7. Trial—remarks of counsel—whether a violation of statute. A remark by the prosecutor to the jury that “the enticing and taking away of the prosecuting witness is not denied by the defendant,” is not such a reference to the failure of defendant to testify as violates the statute.</p>

<p>1. Evidence—in personal injury case—not error to exhibit injured member to jury. In the trial of a damage suit for personal injury against a city, it is within the discretion of the court to permit a physician to examine the plaintiff’s injured limb in the jury’s presence.</p> <p>2f Comparative negligence—abolished in Illinois—the true rule. The doctrine of comparative negligence is no longer the law of this State, and instructions which ignore it, and require as the ground of recovery that the plaintiff shall have exercised ordinary care and that the defendant shall have been guilty of such negligence as caused the injury, are correct.</p> <p>3. Instructions—omitting element—how cured. An instruction which is faulty in not submitting whether a defect in a sidewalk was of such nature as reasonably to put the city authorities upon notice as to its repair, will, under the rule that the whole charge must be read together, be cured by an instruction for the defendant containing that element.</p> <p>4. Same—sufficient submission of question of negligence. The fact that an instruction requires the jury to believe the defect complained of had existed “the space of two months next preceding the accident,” will not be erroneous, as making that single element negligence per se, provided a subsequent clause requires belief that the city authorities, “by the exercise of ordinary diligence, could and would have discovered and repaired such defect before the accident.”</p>

P. Bookwalter, Judge, presiding. On the 14th day of January, 1891, appellant purchased of appellee a farm for $20,000. In payment therefor he gave $6700 in cash, and his two notes, payable to the order of appellee, for $6650 each. The notes bore six per cent interest from date, and were payable at Standiford Bros. ’ bank, Chrisman, Illinois, one on or before March 1, 1892, and the other on or before March 1,1893.

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Contract—-for grading railroad—refusal of estimates of work. The refusal, on reasonable demands made, of an engineer to furnish estimates of work for grading a railroad will not defeat a sub-contractor’s recovery for such work, even though the contract provides that payments shall be made only on such estimates.</p> <p>2. Lien—of sub-contractor of railroad work—when it attaches. The lien Of a sub-contractor of railroad work attaches, under the stat- ’ ute, when the work is commenced, and continues until it is finished, but the same remains inchoate until the notice required by the statute is given.</p> <p>3. Sams—when sub-contractor’s lien will be superior to mortgage. Such a sub-contractor, who begins work under his contract before a mortgage covering the railroad property is recorded, though after its execution, has a prior lien over such mortgage.</p> <p>4. Same—words “existing lien,’’ in statute, construed. The words “existing lien,” in section 56 of chapter 82, mean a lien existing when the work commences, and not when the notice of the sub-contractor is served.</p> <p>5. SAME^prormoro of statute as to notice construed. The provision in section 57, chapter 82, that no sub-contractor’s lien “shall attach” until notice shall have been served as required in that section, means that the inchoate lien will cease, and not become a fixed lien, if the notice is,not given.</p> <p>6. Notice—by sub-contractor—sufficiency of. When improper words used in a sub-contractor’s notice can be stricken out as surplusage, and leave the notice complete, the notice will be sufficient.</p> <p>7. Parties—holders of bonds payable to bearer not necessary. While, generally, a cestui que trust, as well as the trustee, should be made a party in chancery, yet where the holders of bonds payable to bearer are numerous, their representation by the trustee in the mortgage is sufficient.</p>

<p>1. Jurisdiction—of the person in chancery—findings of decree conclusive. The findings of a court of general jurisdiction that it has jurisdiction, and the process by which jurisdiction was acquired, cannot be contradicted by evidence outside of the record, in a collateral proceeding.</p> <p>2. Fraud—not presumed, but may be proved by circumstances. Fraud will not be presumed, but proof of it may be made by facts and circumstances which raise the inference that it was perpetrated.</p> <p>3. Same—consent of guardian to decree does not establish. The bare fact that the guardian of an heir owning an interest in lands consents to a decree of foreclosure for an agreed amount, does not establish fraud on the part of the guardian.</p> <p>4. Judicial sale—innocent purchaser at, protected. The title of one purchasing land at a foreclosure sale, in good faith and for value, is protected, even though there was gross error and fraud by others in procuring the decree and sale.</p> <p>5. Laches—renders clear proof necessary. Long delay by heirs in attacking the title of a purchaser at a foreclosure sale on the ground of fraud, even when not a positive bar, justifies a court in requiring very clear proof.</p> <p>6. Parties—infant owner, not his guardian, necessary in partition. The guardian of a minor cannot sue in his Own name for the partition of his ward’s land, describing himself as guardian; and a sale of land under a decree in such a suit, the minor not being a party, is void as to such minor.</p>

<p>Practice—sufficiency of evidence reviewed only as a question of law. The question whether there is evidence to support an averment material to plaintiff’s recovery can only be reviewed by this court as a question of law, and to preserve it as such the trial court must, in some one of the recognized ways, have been asked to pass upon the question as one of law.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Hancock county; the Hon. Charles J. Scofield, Judge, presiding.

<p>1. Condemnation—when petition need not aver disagreement as to damage. A petition to condemn land for the extension of a street, under article 9 of the City and Village act, need not aver that compensation for the property could not be agreed upon. But the rule is otherwise under the Eminent Domain act.</p> <p>2. Same—no estimate of cost by commission required. In such a proceeding the statute does not require that commissioners should estimate the cost of the improvement and report it to the city council, and the petition will not be bad for failing to so aver.</p> <p>3. Same—ordinance—sufficiency of description of improvement. An ordinance for street extension which names the limit of the extension, describes by -metes and bounds the lands to be taken for the same, and provides for the opening of the tract described for a street, sufficiently describes the nature, character and locality of the improvement.</p>

<p>Appeal from the Circuit Court of Fulton county; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>Specific performance—of contract to reconvey title taken by sheriffs deed. One who buys a sheriff’s certificate of purchase and receives a deed thereon under an agreement with the owner of the land to reconvey, will be compelled, in equity, to specifically perform his contract upon being" repaid his advance.</p>

Writ op Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Thomas P. Tipton, Judge, presiding. The opinion of the Appellate Court was as follows : “This was assumpsit upon an insurance policy issued by the company upon a horse belonging to the plaintiff.

W. C. Jones, Judge, presiding. The original bill in these consolidated causes was filed by certain persons, doing a banking business as partners under the name of the Robinson Bank, for the purpose of reinovingthe three mortgages hereinafter named as clouds upon the title of Abner P. Woodworth, trustee for said Bank, to four acres of land in Robinson in the county of Crawford. Upon the first trial in the Circuit Court all the mortgages were set aside.

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

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

<p>This case is governed by Metropolitan West Side Elevated Railroad Co. v. Stickney, 150 Ill. 362.</p>

James A. Creighton, Judge, presiding. This was a bill in equity, filed on the fourth day of August, 1887, by Mary E. Bennett.and Annie E.… Held: which unpaid interest complainant believes was in the neighborhood of $5000; that complainant has received many sums of money taken from the income of the said fund since the first day of May, 1874, the total amount of which he has no means of accurately ascertaining, but that an account of such payments was kept by the said Samuel…

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ'of error to the Circuit Court of Ford county; the Hon. Alfred Sample, Judge, presiding.

<p>1. Notice—is whatever reasonable inquiry would develop. In law, that is notice of a fact which would provoke a reasonably prudent man to such inquiries as, pursued with reasonable diligence, would lead to full knowledge.</p> <p>2. Same—unrecorded deed of right of way of railroad. The grade of a railroad across a tract of land, distinctly apparent to a purchaser, and the examination by such purchaser of a county map whereon the line of railroad was marked across the land, with the name of the company, constitute notice of the railroad company’s unrecorded deed, it appearing that inquiry upon the clue thus furnished would have led to full knowledge.</p> <p>3. Same —deeds outside of purchaser's chain. A purchaser of land is not, as a general rule, chargeable with notice of deeds lying outside of his chain of title.</p> <p>4. Railroads—failure to complete line according to charter—forfeiture. The State, only, can take advantage of the fact that a railroad company fails to build its road within the time limited by its charter. Such failure cannot aid a plaintiff suing in ejectment for part of such company’s right of way.</p>

<p>1. Nuisances—power of town over, under a general grant. Under a general power over nuisances, town authorities cannot declare a thing a nuisance which is clearly not one; but if the thing is of such character that it might or might not be a nuisance, depending upon circumstances, the action of such authorities, in the exercise of their legislative functions, will be conclusive.</p> <p>2. Cities and villages—power to prohibit slaughter-house, under general act. A city or village incorporated under the general law has power to prohibit, by ordinance, slaughter-houses within the limits of such city or village.</p> <p>3. Evidence—when specific objection should be made. An objection to the admission of an ordinance in evidence, being of such character that it could be avoided by other proof, must be specific, and not general, in order to be assigned for error in a court of review.</p> <p>4. Error—in favor of the party complaining of it. A party cannot complain that the amount of a fine assessed against him is lower than the minimum fixed for the offense.</p>

<p>Partition—reversioners holding subject to life estate, entitled to. Reversioners and remainder-men owning interests in fee in land, subject to an unexpired life estate, are entitled to partition. Scoville v. Hilliard, 48 Ill. 453, followed. Hartmann v. Hartmann, 59 Ill. 103, and Jackson v. Jackson, 144 id. 274, distinguished and explained.</p> <p>2. Same—the right to is imperative. The right to a partition in a case within the law is imperative, and a court of equity has no discretion to refuse the decree. Hill v. Reno, 112 Ill. 154, followed.</p> <p>3. Same—need not affect the life tenant. Partition among reversioners need not necessarily affect the estate of the life tenant, as the reversion, if not divisible, may be sold without the life estate and the proceeds divided, or, if the life tenant consents, all may be sold.</p>

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

<p>1. Adverse possession—to defeat true owner of land—what constitutes. An adverse possession, relied on to defeat the title of the owner of land, must be hostile in its inception, and so* continue, without interruption, for twenty years. It must be actual, visible, exclusive, and be acquired and retained under claim of title inconsistent with that of the true owner, but it need not be rightful nor under a paper title.</p> <p>2. Same—effect of abandonment. Abandonment of such possession before the end of twenty years restores the seizin of the true owner, and a subsequent entry would only be a new disseizin, and the statute would again begin to run from such new entry.</p> <p>3. Same— not lost by failure to secwre a tenant. One holding an adverse possession of land will not be held to have, abandoned the same because of a failure, upon due effort made, to secure a tenant for the same for two years, no other person having gone into possession in the meantime, and the improvements of the adverse holder remaining thereon.</p>

<p>1. Evidence—weight of, left to trial court, it devolves on the court trying a case below without a jury, to scrutinize the testimony and determine its weight, and when this is done the judgment will not be disturbed on review, unless clearly against the evidence.</p> <p>2. Adverse possession—to defeat party having legal title—what sufficient. Adverse possession, to defeat by limitation one having the title, must have been, in its inception and continuously for twenty years, hostile, adverse, 'visible and exclusive, and acquired and retained under claim of title inconsistent with that of the true owner; but such claim need not be rightful, nor supported by paper title.</p> <p>3. Propositions of law—substantial accuracy sufficient. The holding of a proposition of law not technically accurate, but substantially so, will not reverse, where, from another proposition held upon the same subject, it appears the court was not mistaken as to the law which should govern the case.</p>

<p>1. "Instructions—should be accurate when the evidence is conflicting. Where the evidence relied on to convict is conflicting, and is unsatisfactory "by reason of impeachment, the instructions must be accurate.</p> <p>2. Same—circumstances affecting credibility of defendant. An instruction that the jury may consider the “relationship, interest; temper, • feeling,” etc., of other witnesses in determining the weight to be given to the defendant’s testimony, is erroneous.</p> <p>3. Same—not based on evidence—taking facts from jury. It is error to give instructions not based on the evidence, or which take material and disputed facts from the consideration of the jury.</p>

<p>1. Taxation—when it must be uniform,. All taxes not levied for local improvements are required by the constitution to be uniform in respect to persons and property within the jurisdiction of the body imposing the same.</p> <p>, 2. Same—repair of boulevard is not a “local improvement.” The maintenance and repair of a boulevard or pleasure way is not a “local improvement,” within the meaning of article 9, section 9, of the constitution.</p> <p>3. Same—act of June 17,1898, void. The act of June 17,1893, which purports to confer upon park authorities power to levy a special tax upon contiguous property “for the maintenance and repair” of boulevards and pleasure ways, is unconstitutional and void.</p>

<p>1. Cause op action—/or overflow of land—whether two counts identical. A count for the flooding of land by damming up a “natural depression,” states the same cause of action as one which charges the obstructing of a “water-course” with like result.</p> <p>2. Limitations—re-statement of cause of action by amendment. The defense of limitation is not ayailable to an additional count filed after the statutory limitation has passed, which count merely restates, in different form, a cause of action contained in a count which was filed before the statute had run.</p> <p>3. The fact that the former count, which contained the identical cause of action, was itself an amended additional count filed by leave of court, constitutes no reason for applying a different rule.</p> <p>4. Beal estate —damage to, by overflow—rights of grantee. Whether or not the grade of a railroad was such that one purchasing the land after the railroad was built upon it ought reasonably to have known that a change, affecting the flow of water, was necessary to complete the construction of the track as it appeared when he purchased, is one of fact, and not of law.</p>

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

<p>1. Will—construction—what words will create afee in land. A provision in a will that a certain lot “shall be and become the property of my daughter,” naming her, without the addition of words of inheritance, will convey a fee under section 13 of the Conveyance act, though they would not at common law.</p> <p>2. Same—words which import an executory devise. The further provision, that .should the said devisee “die leaving no heirs” the property “shall be divided equally between my sisters,” must be sustained, if at all, as an executory devise, and not as a contingent remainder.</p> <p>3. Executory devise—definit ion—cannot be limited upon afee. An executory devise is a limitation, by will, of a future contingent interest in land contrary to the rules or limitation of contingent estates in conveyances at law; but a fee, already granted, cannot be transferred to another by way of remainder.</p> <p>4: Same—when void, as creating a perpetuity. If the contingency in an executory devise is not fixed within the period of a life or lives in being and twenty-one years and a fraction of a year thereafter, the limitation over is void for remoteness.</p> <p>5. Same—indefinite failure of issue as a contingency—what is and what is not such. An executory devise which is to take effect upon an indefinite failure of issue in the first taker,—that is, a failure of issue whenever it may happen, without fixing a time within which it must happen,—is void for remoteness; but slight circumstances may be sufficient to indicate a definite time of failure, as on the death of the first taker.</p> <p>6. Same—words held to denote a definite failure of issue. The contingent words on which an executory devise to certain sisters was limited, after a devise to a daughter, were, that such daughter should “die leaving no heirs,” and these words, being equivalent to “die leaving no children at the time of her death,” denote a definite, and not an indefinite, failure of issue, and such executory devise is therefore valid.</p> <p>7. Same—such words vest a contingent fee, only, in first taker. Such devise vests a fee in the first taker, (the daughter,) determinable upon her dying without leaving children at the time of her death, and one deriving title through her cannot fulfill his contract to convey an absolute fee.</p>

<p>1. Instructions—stating matters not charged in the declaration. An instruction that the declaration charges defendant with negligence in failing to keep a lookout, and to stop its car when plaintiff’s danger became apparent, is technically inaccurate, where the declaration does not aver the injury arose in consequence of such failure.</p> <p>2. Such inaccuracy will not, however, reverse, if the jury are accurately told, by other instructions, what the negligence charged in each count is, and that plaintiff cannot recover unless the charge, as laid in each count, is proved by a preponderance of the evidence.</p> <p>3. Damages —what elements jury may consider. In an action for personal injuries caused by negligence, the plaintiff may recover for permanent injuries sustained, and for pain and suffering, mental and physical, endured.</p>

<p>1. Evidence—as to quality of goods of same lot. It is admissible in a suit for the price of sausages alleged to have been spoiled, for the plaintiff to prove that other sausages, made at the same time, were in good condition after the sale, as tending to show that those sued for were also good.</p> <p>2. Same—proper to prove defendant’s opportunity to inspect goods. In such a suit it is proper to prove the defendant was at plaintiff’s factory before the sale, both to show he was mistaken in swearing he was not there, and also as showing his opportunity to inspect the sausages before purchasing.</p> <p>3. Same—testimony of deceased witness competent. Upon proof that a deceased witness testified on a former trial, and that the transcript produced was a correct copy of the shorthand notes taken at the trial, such transcript may be read in evidence, without a formal offer of the record of the previous trial.</p> <p>4. Same—production of interpreter as a witness—when waived. The objection that the interpreter through whom such deceased witness testified was not produced must be made specifically at the trial, and will come too late when first made in a court of review.</p> <p>5. Same—that other goods of plaintiff were spoiled. Evidence that sausages purchased of plaintiff by another party were bad, is properly excluded, unless offer is made to prove they were of the same lot as those purchased by defendant.</p> <p>6. Instructions—as to allowing interest upon a liquidated, account. It is not error to instruct- the jury that they may allow interest upon an account ’after the time that a defendant admits to the plaintiff that the goods for which the debt accrued were all right, and that the bill therefor was correct.</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. James Goggin, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. James Shaw, Judge, presiding.</p>

<p>Appeal from the County Court 'of Pike county; the Hon. Edward Doocy, Judge, presiding.</p>

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

Cyrus Epler, Judge, presiding. Action of debt on replevin bond. The David Bradley Manufacturing Company recovered a judgment against the firm of Weaver & Treadway, and caused execution to be levied on certain wagons, buggies, plows, rakes, etc., found in the place of business of the debtor firm. These vehicles and implements had been obtained from the Peoria Manufacturing Company under the contract mentioned below, executed ,by appellant and Weaver & Hutchins.

Writ op Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding.

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p> <p>The appellant presented to the circuit court of McLean county a petition for a common law writ of certiorari, alleging that petitioner was the executor of the estate of Valentine Schlink, deceased; that he presented a claim against said estate in due form, and properly verified by his affidavit, on the 20th of July, 1891, during the July term of the county court, and asked that court for an adjustment of his said claim, and the court then and there appointed John J. Pitts temporary administrator to appear for the estate, and thereupon the matter of said claim was submitted to the court, and an allowance was made in favor of petitioner for $594.60 as of the,seventh class; that no motion for new trial or for appeal was made, nor any further proceedings were had in the matter at said July term, but that afterwards, and (luring the following August term of said court, one of the heirs of said Valentine Schlink entered a motion to set aside the claim so allowed, and the court made an order as follows: “And now the said Valentine Schlink, (petitioner,) being present by his attorney, and the court having considered said motion and the affidavits filed in support thereof, and having heard the arguments of counsel, and being fully advised in the premises, doth sustain the motion. It is therefore ordered and adjudged by the court that the judgment heretofore entered in favor of said Valentine Schlink for the sum of $594.60, against the estate of Valentine Schlink, deceased, be and is hereby set aside.” To which order petitioner then and there excepted, and being advised that said order was without jurisdiction in the county court, he prayed for said writ of certiorari, to the end that said record having been inspected, etc., it might be set aside, etc. The circuit court sustained a demurrer to the petition and dismissed the same, to which action the petitioner excepted, and took the record to the Appellate Court, and assigned error upon said ruling of the circuit court. There was a judgment of affirmance in the Appellate Court, and thereupon this appeal was prosecuted.</p> <p>The opinion filed in the Appellate Court was as follows:</p> <p>“Per Curiam : The question is, whether the petition shows such want of jurisdiction in the county court as to render the order subject to be set aside upon a writ of certiorari. The argument is, that the allowance of the claim was a judgment, which could not be opened by the county court for any cause after the close of the July term. It is not insisted that that judgment could not-be opened by a court of equity for fraud or mistake, but that the county court had no power to grant such relief.</p> <p>“We are of opinion that the county court has such equitable jurisdiction in respect to all matters pertaining to the settlement of estates, that it may, in a proper case, set aside an allowance and require the parties to proceed de novo. Such a case would be presented when it appeared that fraud or mistake had intervened, so that a court of equity, if the facts were before it in a bill to set aside the judgment, would entertain jurisdiction. This seems to follow from the doctrine repeatedly announced, that the county court, in the settlement of estates, is vested with equitable as well as 'legal powers. (Millard v. Harris, 119 Ill. 185.) We understand this power of the county court relates not only to the consideration of equitable demands, but to the employment of such equitable methods as are consistent with its organization and modes of proceeding. For instance, it may correct mistakes in reports of executors, administrators and guardians, and make such final settlements in respect thereto as may be equitable. So here, although the term of court at which an allowance was made has passed, it may, for such cause as would move a court of equity upon a bill filed, entertain a motion to set aside the allowance. No inconvenience or hardship can follow from the due exercise of this equitable power. If it has the power to do this in any case, then there is jurisdiction of the subject matter, and the writ of certiorari will not lie for mere error in the exercise thereof. It appears in the present case there was also jurisdiction of the person, and the only objection taken is, that the subject matter was beyond the power of the county court. There seems to be great propriety, and even necessity, in permitting that court to open an allowance whenever it finds that fraud or mistake has occurred. There is nothing to prevent a proper exercise of equitable considerations upon a motion. The court may hear evidence, and sift the matter with as much care and accuracy as though the proceeding were-in chancery, and the rights of parties may be adjusted more speedily than would be possible if resort were had to that tribunal.”</p>

<p>Special assessments—one commissioner may administer oath to a fellow commissioner. A commissioner appointed to make a special assessment, being a notary public, is not disqualified to take the affidavit of his fellow commissioner to the mailing of notices to property owners, provided for in section 28, article 9, of the City and Village act.</p>

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

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

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

Writ of Error to the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding. John McCurdy and Margaret Bash filed a .creditor’s bill in the circuit court of Iroquois county, against Frank, Robert and Agnes Majorowicz, -Robert Doyle and Free P. Morris, to subject property claimed to be owned by defendants to the payment of judgments in favor of complainants, severally, against Frank Majorowicz, Jr., deceased.

<p>■Appeal from the Circuit Court of LaSalle county ; the Hon. Charles Blanchard, Judge, presiding.</p>

Clair county; the Hon. B. R. Burroughs, Judge, presiding. This is an action brought by the City of East St. Louis for the use of John Dowd against John W. Renshaw, city treasurer of that city, and his sureties upon the official bond of said Renshaw, as such city treasurer. The declaration avers, that the bond, which was in the penal sum of $100,000.00, was executed on April 13, 1887, and on the next day acknowledged and approved.

Dorrance Dibell, Judge, presiding. The bill in this case was filed on September 10, 1890, by the appellant, Cross, against the Weare Commission Company, the Will County National Bank and Albert A. Druley, surviving partner of the firm of Druley Brothers, composed of William M. Druley, now deceased, and the said Albert A. Druley, alleging the recovery by Cross on September 2, 1890, of a judgment by confession for 17653.33 and costs against the Druleys, partners, the suing out…

Heard on certification from the Auditor of Public Accounts of the State of Illinois, on appeal to said Auditor from the decision of the board of county commissioners of Williamson county.

<p>1. Interpleader—when a bill of interpleader lies. A bill of inter-pleader lies where two or more claim the same fund or property by different interests, and the custodian, being indifferent between them, does not know to whom the fund belongs.</p> <p>2. Same—ease where the action does not lie. A bill of interpleader does not lie, at the suit of a member of a board of trade, to compel parties to whom he has sold grain, and who are claiming damages for breach of the contract, to litigate with the principal from whom the grain was purchased, the question of the right to the fund deposited by such principal as margins.</p>

<p>Broker—one transaction does not constitute one a broker. Negotiating a single sale of real estate does not make one a “real estate broker,” within the meaning of an ordinance defining such broker to be one who “is engaged in selling or negotiating sales of real estate belonging to others,” and compensation for making such single sale may be recovered though no license was taken out, as required by the ordinance.</p>

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

<p>Appeal from the County Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p>

Dorrance Dibell, Judge, presiding. The opinion of the Appellate Court, by Cartwright, J., was as follows: “This was a suit by appellant, commenced by attachment against appellees, who reside in Germany, to recover the value of services alleged to have been rendered for appellees by appellant, as their attorney.

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

Richard S. Tuthill, Judge, presiding. On February 25, 1889, John J. Shipherd, appellant herein, delivered to James M. Gamble a paper, as follows : “Chicago, Feb. 25, '1889. “The undersigned, owners of the capital stock of the Metropolitan Street Railway Company of Toledo, Ohio, to the amounts set opposite our respective names, in consideration of the sum of five hundred ($500) dollars to us in hand paid, the receipt of which is hereby acknowledged, hereby agree to sell and…

James E. Dunnegan, Judge, presiding. This was a motion filed in the City Court of Alton by the appellant, December 28, 1892, praying that court to enter nunc pro tunc, after the lapse of twenty-three years, an order of adoption of herself as the child of one Jacob Young, which order is alleged to have been made by the then judge of the Alton City Court on the 28th day of September, 1869.

<p>1. Taxation—power of legislature to exempt property from. The legislature has no power to exempt from taxation any property other than that enumerated in section 3, article 9, of the constitution, such enumeration being an exclusion of other subjects of exemption.</p> <p>2. Homestead loan associations—stock and notes of, subject to taxation—section 11 of act void. Stock and notes of homestead loan associations are taxable, and that part of section 11 of the act relating to such associations which purports to exempt such stock and notes from taxation is unconstitutional and void.</p>

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

Philip Stein, Judge, presiding. This is an appeal from a judgment of the Appellate Court reversing an order or decree of the Superior Court of Cook County, finding appellee guilty of contempt of court and directing him to be attached and arrested and imprisoned in the county jail, until he should dismiss certain attachment proceedings begun by him in the States of Nebraska and Missouri, as hereinafter stated.

<p>1. Public improvement—measure of benefit the same in special taxation as in special assessments. The rule that the measure of benefit conferred by an improvement upon land restricted to a particular use is its increased value for that use, applies as well to special taxation as to special assessments.</p> <p>2. Same —property devoted to particular use. Property permanently devoted to a particular use may be specially taxed for a public improvement to the extent it is benefited by the improvement for such restricted use.</p> <p>3. Same—railway property may be specially taxed. A railway contiguous to a proposed street improvement may be specially taxed for the making of such improvement.</p> <p>4. Same—council’s determination of benefits conclusive. The determination of a city council of the benefits to property subject to special taxation for a local improvement is presumed to be reasonably made, and is conclusive upon the courts.</p> <p>5. Same— sec. 17 of art. 9 construed. Section 17 of article 9 of the City and Village act, which provides that a special tax for local improvement shall be made in the mode provided by sections 18-51 of said article for making special assessments, does not entitle the property owner to have benefits in a proceeding for special taxation determined by a jury.</p> <p>6. Same—special taxation not an exercise of eminent domain. Special taxation of contiguous property and special assessments for local improvements are branches of the taxing power, and not an exercise of the power of eminent domain, within the meaning of section 13, article 2, of the constitution, which requires that compensation for property taken or damaged for public use shall be ascertained by a jury.</p> <p>7. Same—taxation in proportion to frontage, constitutional. An ordinance which requires the cost of a street improvement to be assessed upon abutting property in proportion to its frontage is not in violation of the spirit of the constitution.</p>

<p>The question in these cases is precisely the same as that considered in People's Loan and Homestead Ass. of Joliet v. Keith, ante, 609, and the decision in that case must govern these.</p>

<p>1. Contracts—whether application for loan embraces gold payment. One employing a broker to procure a loan, and agreeing in his application to give note and mortgage “in your usual form,” is not bound to give a note payable in gold, though the blanks used by such broker contained a gold coin clause.</p> <p>2. Same—words “in pour usual form, ” refer to form, only. The words “in your usual form,” in such application for loan, in the absence of proof that the borrower signed with full knowledge of such gold-coin clause, will be held to refer to the form of the papers, only, and not to the kind of money in which the loan should be payable.</p>

<p>Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Francis Adams, Judge, presiding.</p>

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

Frank Scales, Judge, presiding. On January 19, 1892, a deed of assignment, under the Insolvent act, was filed by the R. S. Dickie Manufacturing Company in the office of the clerk of the county court, and also with the recorder of deeds of Cook county.