Volume 154 — Illinois Reports

Henry B. Willis, Judge, presiding. The following is a statement of the facts of this case made by the Appellate Court: “On the 4th day of January, 1891, appellant issued a policy of insurance to appellee insuring him against loss by fire to his ice-house building on the bank of Fox River, near Elgin, until the 4th of July, 1892, to the amount of $1000.00.

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

Frank Baker, Judge, presiding. This was an action of assumpsit, brought by appellee, against appellant, to recover certain insurance money claimed to have been received for loss on certain butter.

<p>1. Evidence — to set aside a deed — sufficiency. Testimony of a party that property delivered to Mm was not the consideration for a deed, but that the deed was made to defeat an attachment, is not sufficient to overcome the testimony of the adverse party, corroborated by a disinterested witness, that the consideration of the deed was the transfer of such property to him.</p> <p>2. Deed — what not deemed inadequacy of consideration. A deed of the interest of an heir in the property of a deceased person in consideration of the transfer of certain horses and harness will not be rescinded for inadequacy of consideration, where it appears that at the time of the transfer the estate was encumbered and titles imperfect, so as to render such interest of little value, although it has subsequently become of great value.</p> <p>3. Trust — mere agency not a relation of trust. A power of attorney given by one heir to another to facilitate the sale of lands in which both are interested, and an agency to manage the property, create no such relation of trust or confidence as will preclude the latter from purchasing from the former, in the absence of false representations or fraud.</p> <p>4. Laches — long delay to attack deed will bar relief. A grantor of an interest in an estate, who, for more than twenty-six years after the execution and delivery of the deed and its recording, fails to attack it, when he knows, or by the exercise of ordinary diligence could know, that the grantee is in control of the property under the deed, is guilty of such loches as will prevent relief.</p>

<p>1. Private corporation — assets of a quasi trust fund. The assets of an insolvent corporation are not strictly a trust fund, nor are the officers strictly trustees. At most, the assets are a quasi trust fund, and the directors or officers quasi trustees, under some circumstances.</p> <p>2. Same — may prefer creditors when insolvent, the same as natural persons. In the absence of legislation to the contrary, an insolvent corporation may make a preference among creditors, subject to the same restrictions that apply to individual debtors.* </p> <p>3. Same — directors cannot appropriate assets when insolvent. A judgment note given by an insolvent corporation to secure an account against it, assigned by its directors to a third person having knowledge of the facts, is an appropriation of the assets of the corporation to the use of such directors in preference over other creditors, and therefore invalid.</p> <p>4. Same — receiver estopped to assert fraudulent transfer of goods by his principals. A receiver of an insolvent firm is estopped to assert, as against the creditors of an insolvent corporation, that property levied upon by the latter’s creditors was transferred to it by such firm for the purpose of hindering and delaying creditors of the firm.</p> <p>5. Same — where equities are equal the first levy holds the property. The creditors of an insolvent firm cannot, as against the bona fide creditors of a corporation in which the members of such firm were directors, complain of the fraudulent intermixture of the goods of the firm with those of the corporation, and on that ground apply all the property to the firm debts. There being fraud on both sides, the equities are equal, and the first levy gives prior right.</p> <p>6. Same — rights of creditors of a firm whose members were directors. Creditors of a firm whose members were directors of a corporation have no standing, in equity, to impeach the conduct of the company, its directors and officers, in making preferences.</p>

<p>1. Schools — city adopting general act retains its former school system. The adoption by a city of the general law for the incorporation of cities and villages, which has no relation to schools, does not abrogate provisions in such city’s former special charter for the establishment and management of a system of schools, such provisions not being inconsistent with anything in said general law.</p> <p>2. Same — adopting minority representation by city does not affect school elections. The adoption of minority representation in a city council, pursuant to the general law, which throws the election of the city officers into every second year, does not abrogate a provision of the special charter of such city that members of the board of education shall be elected annually.</p> <p>3. Same — members of board holding till successors are qualified. Where a charter provides that members of a school board shall hold office until their successors are appointed and qualified, a failure to hold an election during any year does not dissolve the board or create a vacancy.</p> <p>4. Same — act of 1887, concerning school elections, repealed by act of 1889. The act of 1887, providing that in school districts acting under special charter elections might be held at the time provided by the School law for elections of school directors, and at such places in the district as the board of education might designate, was repealed by the act of May 21, 1889, revising the School law, and an election had thereafter under said act of 1887 gives no title to office.</p>

Jefferson Orr, Judge, presiding. On November 18, 1887, appellees filed their bill for partition in the circuit court of Cook county, alleging they, with appellants, were the owners in fee of certain real estate in the bill described, and setting up the interest as claimed by appellees. This bill was subsequently amended and additional parties made defendants, and by reason of the death of certain of the complainants additional parties were made complainants.

<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. Murray F. Tuley, Judge, presiding.</p>

Appeal' from the Appellate Court for. the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.

<p>1. Appeal — -facts put in issue by pleadings not reviewed in Supreme Court. The negligence of defendant and want of negligence of the deceased, in an action for wrongful death, are made controverted questions by a plea of not guilty, so as to prevent review of the evidence by the Supreme Court on the ground that there is no controversy in the testimony.</p> <p>2. Practice — question of negligence must be presented as one of law. To raise the question, on appeal, whether there is evidence in the record tending to prove negligence, or want of contributory negligence, there must be a motion, at the close of all the evidence, to withdraw the case from the jury or have the jury instructed to find for defendant.</p>

<p>1. Deed — effect of grantor’s retaining possession. The retention of possession by the grantor in a deed providing that she shall receive the rents for life, is not inconsistent with delivery of the deed.</p> <p>2. Evidence — what will establish delivery of trust property. Delivery of personal property mentioned in an instrument creating a trust is established by evidence that the donor caused the papers representing the property to be taken to a law office, where the instrument was executed, and handed the box containing them to one of the trustees, who rented a safe, into which the securities were put, and that the trustees accepted the trust in writing, and received the income on the securities.</p> <p>3. Trust — cannot be defeated by subsequent action of trustees. A trust established by a written instrument and delivery of the property cannot be defeated by subsequent action of the trustees in redelivering to the donor.</p> <p>4. Same — when not a testamentary disposition. An instrument giving property in trust, to receive the rents and pay them to the donor for life, and upon her death to erect a church, is not invalid, as a testamentary disposition not in accordance with the Statute of Wills, where the property is absolutely disposed of.</p> <p>. 5. Same — in part designed to defeat husband’s marital rights. A trust of personal property created by a married woman on condition to pay her the income of the property for life, and at her death to erect a church, the leading motive for which is the benefit of the church, is not defeated by the donor’s desire to prevent her husband, who has not lived with her for twenty years, from obtaining her property.</p>

<p>1. Instructions — though loosely worded, will not necessarily reverse. Loose phrasing of instructions is not cause for reversal, where, when taken in connection with the other instructions, their meaning is fully explained, and they could not possibly have misled the jury.</p> <p>2. Trial — mere presence of a judge, and his consultation with counsel, will not reverse. The presence of one of the judges for the circuit at the trial of a case, and his consultation with counsel for one of the parties, is not cause for reversal, where it does not appear that the jury were misled or influenced by his presence.</p>

Writ of Error to the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.

<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. Kirk Hawes, Judge, presiding.</p>

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

Nathaniel W. Green, Judge, presiding. This is an action on the case brought by appellee, as administrator of the estate of his deceased son, Frank McMahon, against appellant, the City of Pekin, to recover damages for the death of plaintiff’s intestate alleged to have been caused by the negligence of said City. Verdict and judgment in the Circuit Court were in favor of the plaintiff.

Writ of Error to the County Court of Vermilion county; the Hon. John G. Thompson, Judge, presiding. This was an application in the county court of Vermilion county for the confirmation of a special tax, levied by authority of the city council of the city of Danville, to pay the cost of providing and putting in sewer and water service-pipes for house connections with the main sewer and water pipes in Main street of that city.

<p>1. Public improvement — city authorities may declare what is. City authorities may, with due reference to benefits, reasonably, declare what shall be local improvements, and their nature and character.</p> <p>2. Same — local improvement defined. A local improvement is a public improvement, which, by reason of being confined to a locality, enhances the value of adjacent property, as distinguished from general benefits.</p> <p>3. As applied to a street, such improvement signifies the actual or presumptive betterment of the street, and involves the idea of permanency.</p> <p>4. Special taxation. — Illinois Central Railroad Company not exempt from. The right of way of the Illinois Central Bailroad Company is not, by reason of the provisions of its charter, exempt from special taxation. Illinois Central Railroad Co. v. Decatur, 126 Ill. 92, followed.</p>

<p>1. Conflict of laws — stockholder’s liability determined by law of the corporation’s domicile. The liability of stockholders in foreign corporations must be determined by the law of the State under which such corporations were created.</p> <p>2. Same — when liability for calls by foreign corporation will be enforced. The liability of a stockholder to the corporation for calls made, though dependent upon the phraseology of the statute creating it, is contractual, and will ordinarily be enforced by the courts of another jurisdiction, unless a wrong or injury will be done to the citizens of such jurisdiction or the policy of its laws will be contravened or impaired.</p> <p>3. Same — effect of forfeiture on stockholder’s liability for calls. A right of recovery by a foreign corporation of calls made upon stock which has been forfeited for non-payment of such calls, being in conflict with the current of legislation in this country, cannot depend on a by-law, merely, but must exist in the act under which the company is incorporated.</p> <p>4. Same — right of foreign corporation to recover calls rests on contract, and not comity. The right of a corporation to recover in another jurisdiction the amount of calls made upon its stock does not depend upon any principle of comity, but upon the right to enforce a contract validly entered into.</p> <p>5. Same — effect of Illinois statute on foreign stockholder's liability. The statute providing that foreign corporations doing business in this State shall be subject to the liabilities, restrictions and duties imposed upon domestic corporations, and have no other or greater powers, does not relieve a citizen becoming a. stockholder in a foreign corporation from a liability for calls made upon stock, imposed by the statute under which such corporation was organized.</p> <p>6. Same — words “doing business in this State," construed. The words “doing business in this State,” in the statute limiting the powers of foreign corporations, refer to the business for which the foreign corporation is organized, and not to its doings with its own members, or its resort to the courts here to enforce liabilities.</p> <p>7. Corporations — cannot forfeit stock and afterwards collect calls. The general rule in the United States is, that while a corporation having the right, under the statute creating it, to declare a forfeiture of shares for non-payment of calls, may exercise an option to forfeit the stock or sue for the amount of the calls, it cannot forfeit the stock and afterwards sue at law for such amount.</p> <p>8. Same — positive statute controls mere equitable rule. A positive statutory provision that a corporation may not only forfeit stock for non-payment of calls, but collect all calls made prior to the forfeiture, will control any principle adopted as a mere equitable rule.</p> <p>. 9. Same — right to recover calls does not include interest and expenses. A statute authorizing recovery by a foreign corporation, after forfeiture of corporate stock, of all calls owing upon it at the time of forfeiture, does not authorize recovery of interest and expenses thereafter accruing.</p> <p>10. Same — when calls may-be-metd^faMiOugh entire stock, is not taken. A foreign corporation whose articles of association provide that the holders of shares for the time being, whatever the number issued or subscribed for, shall form the company, may make calls upon its stock, although the entire amount of stock has not been subscribed for or the shares allotted.</p> <p>■ 11. Evidence — contents of corporate books not competent. Secondary evidence of the books and papers of a corporation is inadmissible in its behalf, where the originals are under its control.</p> <p>12. Same— opinion as to contents of books and papers not proper. Proof of papers, entries and records of a private corporation, in its possession, cannot be made by the opinion or conclusion of a witness.</p> <p>13. Same — memoranda may be referred to by witness making them. Entries of mailing letters and notices of calls upon corporate stock are mere memoranda, to which the person making them may refer to refresh his recollection, and not a record, which can be proved only by the originals or by certified copies.</p>

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

<p>1. Trial — ¿wry may view premises alleged to be damaged. The jury, in an action for damages to abutting property by the construction of a bridge, viaduct and approaches, may be permitted to view the premises, although their condition has been changed since the improvement was finished, by tearing away an old house and erecting a new one.</p> <p>2. Damages — measure of, to property, caused by constructing bridge. The measure of damages to abutting property by the construction of a bridge and its approaches is the depreciation in the fair market value of the property caused by such construction, and not the value of the buildings upon the premises at the time the work was commenced, and the loss of rent by obstruction in their use.</p> <p>3. Same — benefits may be set off against damages. Benefits may always be set off against damages to abutting property by the construction of a public improvement, no matter what the amount of such damages.</p> <p>4. Same — rent lost through obstruction to access not allowed. Loss of rent by reason of obstructions to access to a building upon abutting premises during the construction of a bridge and its approaches is a burden incidentally imposed upon such property, and cannot be recovered.</p>

<p>1. Stenographer — court may amend record by the stenographer's minutes. The notes of a shorthand reporter appearing in a case by express appointment or employment of parties, and recognized by the court as the reporter for that case, may be treated as a proper minute of the court upon which to base an amendment of the record, and bench notes made by the judge himself are not necessary.</p> <p>2. Record — fudge may amend by the bill of exceptions. The court, when called upon to correct a mistake of the clerk in entering up its orders, may look to a bill of exceptions which has been signed and filed and has become a part of the record, for the purpose of amending such entry.</p> <p>3. Same — may be corrected by description in judgment. The court, for the purpose of correcting the record as to which count of a declaration in ejectment was stricken out, may look to the judgment describing the lands in the language of the count claimed to have been retained, but shown by the record to have been stricken out.</p> <p>4. Appeajudgment in ejectment for less than verdict. Defendant in ejectment cannot complain, on appeal, that judgment was entered for a less number of acres than was included in the verdict for the plaintiff.</p> <p>5. Deeds — conveyance of fee subject to easement. A deed of premises described by metes and bounds, “reserving a strip two rods wide off from the north and west side of said premises for a street,” conveys the fee to the whole premises described, subject only to an easement in the public over such strip.</p> <p>6. Same — recording not conclusive of delivery. The recording of a deed is not conclusive of its delivery, where it was not for the benefit of the grantee, the latter was ignorant of it, and it was retained by the grantor,who continued to control the property and maintain his former relations toward it as owner.</p> <p>j. Adverse possession — continuity of, not interrupted by undelivered deed. The continuity of adverse possession is not interrupted by an undelivered deed from the possessor to a third person, although the latter subsequently reconveys for the purpose of removing the apparent cloud on the title.</p> <p>8. Trial — when admission of counsel may be withdrawn. An admission by counsel may be withdrawn by permission of the court,where the adverse party is deprived of no right, and the party making it is given no undue advantage thereby.</p>

<p>1. Appeal — stipulation that hill of exceptions may he “inserted in the record." A stipulation that the original bill of exceptions may be “inserted in the record,” means the “transcript of the record,” and not the record itself.</p> <p>2. Same — error not assignable on opinion of Appellate Court. Error cannot be assigned in this court on the opinion of the Appellate Court.</p> <p>3. Instructions — that negligence of child’s mother will defeat recovery, erroneous. An instruction in an action by a child for personal injuries, that if plaintiff’s mother, in charge of him at the time of the accident, did not exercise due care and caution to avoid the injury, and her want of care and caution contributed to it, the defendant should be found not guilty, is incorrect, but being too favorable to the defendant he cannot complain of it.</p> <p>4. Same — limiting cause of accident — when not error. An insertion by the court in a requested instruction, of a word limiting the cause of the running away of a team to a certain fact, is not prejudicial error, where there is no claim that there was any other cause.</p>

<p>1. Public improvement — special assessment — failure of properly om\er to appear. The failure of a property owner to appear before the court upon the confirmation of an assessment for public improvements, in obedience to a notice published in that behalf, will not prevent him from complaining of the acts done prior to such confirmation.</p> <p>2. Same — act of June 16, 1871, does not apply to direct proceeding. The provision of section 3 of the act of June 16,1871, that the order shall be conclusive of the regularity of all previous proceedings and all matters and things recited as having been adjudged, does not apply to a direct proceeding by appeal or writ of error. Schertz v. People, 105 Ill. 27, Gage v. Parker, 103 id. 528, Chicago and Northwestern Railway Co. v. People, 120 id. 104, Kedzie v. Park Comrs. 114 id. 280, and LeMoyne v. Park Comrs. 116 id. 41, distinguished and explained.</p> <p>3. Same — statutory provision for notice to property owners confers a substantial right. The provision of the statute for notice to property owners of the time and place of meeting of corporate authorities for the purpose of making'an assessment for a public improvement, and that all parties interested may appear and be heard touching any matters connected with the assessment, confers upon such property owners a substantial right.</p> <p>4. Same — special assessment made before meeting, invalid. Confirmation of an assessment for a public improvement will be reversed, when based upon a petition plainly showing upon its face that the assessment was in fact made before the meeting of the corporate authorities for the purpose of making the assessment, at which the statute provides that any person interested may be heard touching any matter connected with the assessment.</p>

<p>Limitations — claims against estates of deceased persons. An assessment against a decedent’s estate upon corporate stock is barred, except as to subsequently discovered estate, by failure to exhibit it within two years from the grant of letters, as required by statute, although the assessment was not made until the two years had expired. Language used in Suppiger v. Gruaz, 137 Ill. 216, disapproved.</p>

Writ op Error to the Superior Court of Cook county; the Hon. F. M. Wright, Judge, presiding. This was a bill in equity, in the Superior Court of Cook county, brought August 12, 1891, by Jerome Howe and A. H. Hill, (partners doing business as Jerome Howe & Co.,) and others, complainants, against Everett M. Warren, Gilbert B. Shaw, the American Trust and Savings Bank, and others, defendants.

Frank Scales, Judge, presiding. This is an appeal from a judgment of the county court of Cook county, on the application of the county collector for a judgment upon delinquent special assessments of the city of Chicago for street improvements.

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. Richard W. Clifford, Judge, presiding.

<p>1. Public improvement — construction of ordinance as to location. An ordinance which provides “that Davis street, in the city of Evanston, from the west line of Maple avenue to the east line of Wesley avenue, in said city, be paved,” etc., fixes the location of the improvement within the city without resorting to intendment.</p> <p>2. Same — interlineation in clerk’s certificate to ordinance. An ordinance for special assessment is valid and admissible in evidence although the city clerk’s certificate authenticating it contains an interlineation by the city attorney, where the latter testifies, without contradiction, that he made the same in the clerk’s presence and with his consent, before the certificate was signed.</p> <p>3. Same — objections to plans of improvement must be made at the trial. Objections to the plans for an improvement, which are of such a nature that they might have been obviated and explained at the trial, cannot be raised for the first time in a court of review.</p> <p>4. Courts — two county judges entering orders in same court the same day. Where the order appointing commissioners to make a special assessment was entered in the county court by the county judge of a foreign county, and. the record shows the resident judge also entered orders in the court the same day, it will be presumed, if necessary to sustain the appointment of the commissioners, that though the two judges sat the same day they did not sit at the same time. (Magruder, J., dissenting.)</p> <p>5. Record — cannot be impeached by evidence aliunde. Affidavits tending to show that two county judges sat and did business in the same county court simultaneously are properly excluded, as the invalidity of the record of a court cannot be shown by evidence aliunde.</p> <p>6. Judgments — two judgments for the same assessment. The improvident entry of judgment confirming a special assessment against lands of owners not objecting, before all objections have been determined, and the subsequent entry of a second judgment confirming the whole assessment after trial, is not, if error at all, injurious to objectors whose lands.are not affected by the first judgment.</p>

O. H. Horton, Judge, presiding. This is a petition under the Burnt Records act, filed on August 26, 1891, by C. Stuart Beattie, the appellant, in the Cook circuit court. That court sustained a demurrer to the petition, and the petitioner stood by his petition and it was dismissed out of court, and he brings the case here for review.

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

<p>1. Corporations — to/ien stockholder is chargeable with notice of issue of stock and its consideration. A stockholder holding in trust and voting five-eighths of the capital stock of the corporation, of which he has been also manager for more than twenty years, dating back to within less than three years of the incorporation, is chargeable with notice of the issue of stock and scrip under orders of the board, and of the lack of any consideration therefor, except an equity in land taken by the company.</p> <p>2. Same — holders of scrip may redeem pledged stock. Holders of conditional scrip in a corporation, who are equitable owners of pledged stock subject to the pledge, have the right to redeem it by paying the debt at any time after it is due.</p> <p>3. Same — excessive issue of stock not a fraud on the company itself. The issue of stock by a corporation for much more than the value of land which constitutes its only capital, when there are no other stockholders or creditors of the company to complain, cannot be held to be a fraud on the company itself.</p> <p>4. Same — when holders of preferred stock camnot claim to be exclusive stockholders. Holders of preferred stock authorized and created by the holders of common stock cannot claim to be the only stockholders, where, for more than twenty years, they have stood by while the holders of the common stock have elected the managers and performed all other acts as stockholders of the company.</p> <p>5. Same — when corporation cannot avoid scrip and stock for want of consideration. A corporation cannot avoid an issue of stock and scrip for lack of consideration, or insist on further payment therefor, where successive boards of managers, elected in the main by creditors, and not by the holders of such scrip and stock, have for more than twenty years acquiesced in the transaction, and ratified it in many ways.</p> <p>6. Same — equitable assignment of stock may be made by means of scrip. An equitable assignment of corporate stock which has been pledged can be made by scrip certificates, although the language of such certificates recognizes the necessity of a return and cancellation of the old certificates and the issue of new ones, in order to transfer the legal title.</p> <p>7. Same — what will create an equitable title to stock. An equitable title to stock of a corporation which has been pledged by the com-pony, and not merely an executory agreement for stock, is created by scrip certificates declaring that the holder is entitled to a specified sum, payable in the stock held by the pledgee, at any time after it shall come again into possession of the company.</p> <p>8. Same — creditors of company not charged with misconduct of officers they elect. Creditors of a corporation cánnot be compelled, as mortgagees in possession, to account for alleged mismanagement of the company by managers regularly elected, although the creditors had the controlling voice in the election by virtue of shares of stock pledged in trust to secure their debts, especially where the alleged mismanagement has been long acquiesced in by the parties complaining.</p> <p>9. Same — contract obtained through vote of interested director not valid. A disinterested majority of directors is necessary to make a valid contract with a corporation by action of the board, and the contract is invalid if the vote of an interested party is necessary to make it, whether the directors act in good faith or not.</p> <p>10. Same— when corporation may seek relief against usurious contract. A statutory provision that a corporation shall not interpose the defense of usury will not prevent a corporation or its stockholders from obtaining relief against an inequitable and usurious contract, when one or more of its managers voting to make the contract had a personal interest therein.</p> <p>11. Same — contract between corporation and its directors set aside if injurious. An agreement between a corporation, by its board of directors, on the one hand, and one or more of such directors on the other, will be set aside if injurious and oppressive to the company, even though the company was represented by a majority of disinterested directors.</p> <p>12. Same — when corporation not accountable to managers for profits. The profits made by a corporation on land purchased from its managers, who acted in a double capacity in making the contract, and who had themselves purchased the land at a much lower price, can not be claimed by such managers because the corporation repudiates the purchase so far as to claim from them the profits which they had improperly made on their sale of the land to the corporation.</p> <p>13. Same--rights of officer purchasing securities of the corporation at a discount. An officer of a corporation who purchased at a discount securities issued by it cannot be allowed to enforce them for their face value, where, at the time of the purchase, he practically controlled the corporation, owning the greater part of the secured claims against it and substantially all of its preferred stock, especially where he did not inform the other members of the board of managers of the corporation of the intended sale oj the securities, and they did not know thereof.</p> <p>14. Same — when holders of preferred stock need not account for dividends. A corporation, or the holders of stock or scrip therein, can not compel an accounting for dividends received on preferred stock, on the ground that the issue of such stock was ultra vires, after they have received full value for the stock, authorized its issue, paid dividends on it and long treated it as valid.</p> <p>15. Same — preferred stock issued without authority in charter. Lack of authority in the charter for the issue of preferred stock will not prevent stock otherwise properly issued from being valid as preferred stock, if it was issued by the original authority and consent of all the shareholders, or has received their subsequent ratification or long acquiescence.</p> <p>16. Action — to redeem pledged stock by owner of part of it. A suit to redeem all the stock of a corporation pledged, although brought by the owner of only a part of it, is not subject to objection as dividing the claims against the pledgee.</p> <p>17. Same — owner of part of pledged stock may represent the company. The equitable owner of a part of the stock pledged by a corporation has a right to represent the company, and sue, on its behalf as well as his own, to redeem the stock, where the corporation is controlled and practically owned by the creditor for whose debt the stock is pledged.</p> <p>18. Same — demand on managers of corporation to bring suit — when not necessary. A demand on the managers of a corporation to bring a suit is not necessary before suit by an owner of stock, when it is shown that such demand would have been unavailing.</p> <p>19. Same — accounting of treasurer of corporation cannot be had where he is not a party. An accounting for alleged frauds of the treasurer of a corporation cannot be had in a suit to which he is not a party, although one of the defendants is charged with having taken from him corporate notes and stock with notice of the facts.</p> <p>20. 'Equity — jurisdiction of, to enforce equitable interests. An objection that an adequate remedy at law defeats the bill, is not valid where the relief sought is to enforce equitable interests in stock of a corporation, converting them into legal ownership, to redeem pledged stock, compel an accounting, and set aside illegal contracts.</p> <p>21. Evidence — presumption of ownership of securities from possession. The presumption of bona fide ownership of two $5000 certificates of conditional scrip in a corporation, raised by their possession and production on the trial, together with one for $9000, is not overcome by the mere fact that twenty-five years after the transaction neither the original certificates for which the one of $9000 is supposed to have been given, nor any book account of the company showing their return, can be found, especially where the SQrip was not of great value at the time of issue, and the $5000 certificates might have been obtained from different sources.</p> <p>22. Contracts — party rescinding must restore property obtained. A rescission of a sale of land to a corporation at an excessive price cannot be made without restoring the land, by mere reduction of the price, simply because the corporation has made extensive and permanent improvements on the land.</p> <p>23. Notice — to one member of firm is notice to all. A partnership is chargeable with notice of all the facts and circumstances known to one of the firm affecting a purchase made for it by him.</p> <p>24. Same — when corporation not charged with facts known to its president. A corporation making a purchase from its president is not chargeable with his knowledge of infirmities in his title to the property.</p> <p>25. Bonds — when purchasers of, charged with notice of defenses. The purchaser of bonds expressly reciting that they are for the principal and interest of other bonds which are held as collateral security, is chargeable with notice of the fact that the indebtedness secured was overdue, and he is therefore subject to all infirmities attaching to it, although the date of payment named in the original bonds held as collateral was later than the time of purchase.</p>

<p>1. Religious societies — effect of long acquiescence in church constitution. A church constitution generally acquiesced in by the official bodies and members as the supreme law of the. church for many years, during which no legal steps were taken to determine its validity, will not be declared void by a court, even upon clear proof of irregularity in its adoption, except when justice, morality or public policy requires it.</p> <p>2. Same — secular courts cannot determine questions of doctrine and practice. All questions of doctrine, practice and jurisdiction within a church must be determined by the church judicatures, and the secular courts of this State have no authority to adjudicate upon them.</p> <p>3. SAME — when decision of church court is final. The decision of the highest legislative and judicial body of a church that an old confession of faith and constitution had been superseded by a new one, is conclusive upon the civil courts.</p> <p>4. Same— ground of equitable interference. To justify interference by a court of equity with the action of church authorities because of deviation from the standards of faith, such deviation should be so palpable and unequivocal as to enable the court, from an examination of the historical and doctrinal practices of the church, to say that there has been an essential change in fundamental doctrine.</p> <p>5. Evidence — burden of proof as to title to church property. A faction of a religious society has the burden of establishing title to church property which has been in possession of trustees representing the other faction and their predecessors in office for more than twenty years continuously.</p>

<p>1. Public improvement — ;judgment confirming special assessment can not be impeached collaterally. A judgment confirming an assessment for a public improvement cannot be collaterally impeached by showing that the affidavit of the mailing of notices was untrue irl point of fact, and that the notice stated the amount of the assessment incorrectly.</p> <p>2. Same — failure of ordinance to locate improvement. An ordinance for a public improvement is not invalid because it fails to show affirmatively that the street to be improved is within the city, as it will be presumed that it is so located. Stanton v. Chicago, ante, p. 23, followed.</p>

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

John Barton Payne, Judge, presiding. This was an action on the case, brought by Valentine Werk, against the Illinois Steel Company, to recover damages for two personal injuries suffered by the… Held: and upon that ground gave the instruction to find for the defendant, so far as that injury was concerned.

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. Richard W. Clifford, Judge, presiding.

Elbridge Hanecy, Judge, presiding. This was an action brought by Orson S. Marden, in the circuit court of Cook county, against Fred T. Evans and the South Dakota Hot Springs Company, to recover for services as manager of the Hotel Evans, at Hot Springs, South Dakota. After the close of the evidence plaintiff dismissed as to the Hot Springs Company, and the jury returned a verdict against Fred T. Evans for $1099.95, upon which the court entered a judgment.

<p>1. Master and servant — the fellow-servant question is one of fact. The question whether two servants in the employ of the same master are fellow-servants is one of fact, for the jury.</p> <p>2. Same — habitual breach of rule by employee with master’s knowledge. Although, generally, an employee cannot recover for injuries resulting from his knowingly and intentionally disobeying a reasonable rule or regulation of the employer, the law is otherwise where the breach of the rule or regulation has grown to be habitual, with the knowledge and tacit acquiescence of the employer.</p> <p>3. Instructions — which fail to submit whether rule is waived,, properly refused. Instructions that a railroad engineer cannot recover for personal injuries resulting from his disregard of a rule that imperfect display or absence of a signal should be regarded as a danger signal, are properly refused, where they fail to submit the question whether the violation of the rule had become so habitual as to raise a presumption of knowledge and approval by the railroad company, and also whether it was practicable to observe the rule and run the train as required by the company, there being evidence sufficient to raise these questions.</p>

James A. Creighton, Judge, presiding. This is a bill, filed on December 24, 1886, by the appellees as judgment creditors of the Illinois Agricultural Works, an Illinois corporation, alleging the issuance of executions upon their judgments and the return of the same, “no property found,” against said corporation and certain stockholders therein, to enforce the liability of certain of said stockholders upon the stock subscribed for and held by them, and alleged to be unpaid to…

Frank Baker, Judge, presiding. This was an action of trespass, brought by William Stier, to recover damages for the wrongful taking and appropriation of two horses, of which he claimed to be the owner, by Henry Harms.

Charles Blanchard, Judge, presiding. This was a bill in chancery, brought by William Long and Catherine Gleim, against George Hess, Henry Hess, Louis Hess and Mary Kopf, the children, Christina Hess, the widow, and Louis Hess, the executor, of Jacob Hess, deceased, to set aside the will of Jacob Hess, and to declare a trust in favor of the complainants in two-sixths of the estate of the testator.

B. R. Burroughs, Judge, presiding. Appellees filed their bill for partition of certain lands in Randolph county, making appellants defendants thereto. Appellants answered, setting up title in themselves, and also filed their cross-bill to correct the decree, deed and report of sale, under which they claimed title, and to make the description of the lands therein more specific.

J. P. Robarts, Judge, presiding. This was an action on the case, brought in the Union circuit court by the administratrix of John O’Keefe, deceased. The facts upon which it is claimed the plaintiff’s cause of action rests are few, and we believe there is no conflict in the evidence as to any. of the facts that are material.

<p>Fraud — in purchase of goods — false statement to mercantile agency. An action for fraud and deceit will not lie against the purchaser of goods on the ground that, to obtain the credit, he made a false statement of his financial condition to a mercantile agency, where the statement of such agency to the seller, on which the seller relied, is substantially different from that made by the purchaser.</p>

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

<p>The questions in this case are settled by what was said in Chicago and Alton Railroad Co. v. City of Joliet, 153 Ill. 649.</p>

<p>1. Evidence — contract between corporations jointly sued for negligence, incompetent. In an action for personal injuries against a railway company and a street railroad company, caused by a collision between trains of the two companies, and alleged to have occurred through their joint negligence, the admission in evidence of a contract defining the duties of the latter towards the former company is harmless, where such contract imposes upon the latter company no duty which is not imposed by law.</p> <p>2. Instructions — submitting case not made by declaration — specific objection necessary. An instruction that an injury to a passenger on a street car by collision raises a presumption of negligence, although improper where the declaration charges specific acts of negligence, is not cause for reversing a judgment for plaintiff where it was asked by a co-defendant, and no specific objection was made on the trial that it submitted a case not made by the declaration.</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>

Thomas F. Tipton, Judge, presiding. The city of Bloomington brought its action on the case against the Illinois Central Railroad Company, alleging that it had been compelled to pay certain damages recovered against it by one Tustison, who had sustained a personal injury by reason of the defective condition of a sidewalk on Jefferson street, in said city, at a point where the said street crossed the right of way of said railroad company; that it was the duty of said railroad…

Thomas P. Tipton, Judge, presiding. Appellee brought his action in ejectment in the court below, against appellant, to recover possession of a piece of land in McLean county which he… Held: occupied and used the same, including the strip in controversy, just as her husband had done in his lifetime. Some time in 1886 the company took down the fence and erected a new one fifty feet farther from the track, thus entering into and taking possession of the land in controversy.

<p>Appeal from the County Court of Livingston county; the Hon. B. R. Wallace, Judge, presiding.</p>

<p>1. Will — construction—whether remainder is vested or contingent. A devise of property to a niece, followed by the words, “all of which is to go to her children, should she marry; if she should die childless, then to be divided,” etc., creates a life estate in such niece; but the remainder to her child, upon its birth, is not vested, but contingent.</p> <p>2. The contingency upon which the remainder vests, in such case, is not the marriage of the niece and birth of a child, but the survival of a child or descendant of a child at her death.</p> <p>3. Immediately upon the death of such niece the remainder vests, and becomes indefeasible in her child or descendant thereof surviving, and in default of such survival it vests in those among whom the will divides the property in that contingency.</p> <p>4. Same — words which are directory do not limit estate. The further language in such will, “It is my desire to give to Jessie Stark-weather $500 in addition to the former bequest, ® * * to remain on interest in a * * * mortgage,” is an absolute bequest, the language as to investment being directory, only.</p>

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

<p>1. Bill of review — -when leave to file must be first obtained. A bill of review upon the ground of newly discovered evidence cannot be filed without leave of court, although fraud in obtaining the decree is also charged, and although leave is not necessary to the review of a decree for fraud alone.</p> <p>2. Same -may be allowed after affirmance of decree. A bill of review upon newly discovered evidence may, in a proper case, be permitted, even after affirmance of the decree by the Supreme Court.</p> <p>3. Same — leave to file must be obtained from the trial court. An application for leave to file a bill to review a decree affirmed by the Supreme Court must be made to the court of chancery where the decree was originally rendered, and not to the Supreme Court.</p> <p>4. Same — what is not such fraud as will groumd a review. A plea in partition admitting an averment of the bill that the complainants are subjects of the German empire, and averring that they are subjects of a certain duchy therein, does not constitute fraud for which a complainant is entitled to review the decree, although such complainant is, in fact, a citizen of Switzerland.</p> <p>5. Same — affidavit must accompany application for review. Leave to file a bill of review, because of newly discovered evidence, will not be granted except upon affidavit satisfying the court that the alleged new matter was not known to the petitioner, and could not have been discovered, produced or used by him, by the exercise of reasonable diligence, before the entry of the decree.</p> <p>6. Same — affidavit upon information and belief not sufficient. An affidavit for leave to file a bill of review should be positive, and not merely upon information and belief. It should distinctly state the new evidence relied upon, and affidavits of witnesses must be filed in support of its averments.</p> <p>7. Same — negligence no ground of review. A party cannot rely upon his own negligence, or that of his attorney, as a ground for a review of a decree.</p> <p>8. Same — foreign party's ignorance of law no groumd of review. Leave to file a bill of review on the part of a citizen of a foreign country will not be granted on the ground of his ignorance of the laws of the United States or of a State therein, where he employed counsel in such State, and there is nothing to indicate that such counsel was not competent or skillful.</p> <p>9. Appeals and errors — abuse of discretion, only, will be reviewed. Refusal of leave to file a bill of review for newly discovered evidence will not be disturbed, on appeal, in the absence of an abuse of the fair discretionary power of the lower court.</p> <p>10. Evidence — certificate of cleric as to citizenship. A certificate of a municipal clerk containing mere conclusions as to the citizenship of a person, and not purporting to be issued by the authority admitting such person to citizenship, or to be an exemplification or copy of any record, is not admissible in evidence.</p>

<p>Appeals and errors — -judgment less than $1000. A writ of error will not lie from the Supreme Court to the Appellate Court to review its affirmance of a judgment for costs against the plaintiff in an action for personal injuries, in the absence of a certificate by a majority of the judges that questions of law ought to be passed upon, the judgment of the court below being for less than $1000.</p>

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

Edward F. Dunne, Judge, presiding. This is an appeal from a judgment of the Appellate Court. In that court the following opinion was delivered, in which the facts presented by the record are sufficiently stated: “Shepard, P. J. A suit in assumpsit was brought by the appellee to recover back from the appellant $1200, which had been paid under a contract between the parties for the purchase and sale of a certain tract of land situated in Indiana, for the price of $6000.

<p>1. Wills — when proof of a codicil establishes the will. A will is established (except such portions as are revoked or altered by the codicil) by proof of a codicil written on the same paper, or clearly and unmistakably referring to the will, so as to preclude all doubt of its identity without further proof.</p> <p>2. Same — effect of proof of handwriting of deceased witness to will. Proof of the handwriting of a deceased witness to a will is prima facie sufficient as to him, especially where the signatures of the witnesses are attached to an attesting clause that the vfill or codicil was written, signed and sealed in their presence.</p> <p>3. Same — proof of testator's signature when one witness has died. Under the Statute of Wills, upon a trial in the circuit court de nova, on appeal from the county court, proof of the testator’s signature to a will may be made by testimony other than that of a surviving subscribing witness, where one witness is dead.</p> <p>4. SAUis — subscribing loitness need not see the signing or the signature. The fact that the sole surviving subscribing witness to a will failed to notice whether or not it was signed, and cannot remember whether he saw the signature or not, does not overcome the prima facie case made in favor of its due execution by the testimony of the witness that he signed it at the request of the testator and in his presence.</p>

James Goggin, Judge, presiding. This is a proceeding instituted by the Metropolitan West Side Elevated Railroad Company for the condemnation of certain property for its right of way. Held: that as no part of the property north of Tilden avenue was taken the evidence was not admissible. The jury returned a verdict for $8280.11 for the property taken and for damages to that portion of lot 6 npt taken, upon which the court rendered judgment.

S. P. McConnell, Judge, presiding. This is an action for money had and received, brought by appellant, against appellee, in the circuit court of Cook county. The cause was tried before the court without a jury, and judgment was rendered for appellee. On appeal to the Appellate Court that judgment was affirmed.

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

<p>1. County clerks — issuing a comity order is an official act. The issuing of a county order by a county clerk is an official act, and not the individual act of the clerk, although he makes the order payable to himself.</p> <p>2. Bonds — liability of county clerk’s■ sureties. Sureties on the bond of a county clerk are liable for the amounts of county orders issued by the clerk and paid to himself, in excess of the amount allowed by the board of supervisors.</p> <p>3. As to other questions involved, this case is controlled by Campbell v. People, ante, p. 595.</p>

Writ of Error to the Circuit Court of Brown county; the Hon. Jefferson Orr, Judge, presiding.

<p>1. Evidence — that deed absolute on face is mortgage, as against a grantee. A finding that a deed absolute on its face, but intended as a mortgage, is such, as against the grantee in a conveyance from the mortgagee, is justified upon evidence that at the time of the conveyance the grantee was informed of the character of the interest of his grantor, and by declarations subsequently made recognized the right of redemption in the original mortgagor.</p> <p>2. Appeals and errors — defendant not served cannot assign errors. One joined as a party defendant to an action, upon whom no process was ever served and who is not named in the decree, cannot assign errors upon appeal from the decree.</p> <p>3. Practice — in chancery — when master should state account. The court, in a chancery proceeding in which an accounting is to be had, should first find and declare the rights of the parties and the rule to be adopted in stating the account, by an interlocutory decree, and then refer the cause to the master to take and state the account.</p>

<p>Municipal corporations — power to open street includes power to condemn. The power conferred upon the board of trustees of a town to open and lay out a new street necessarily implies and includes the power to institute a condemnation proceeding to carry such power into effect.</p> <p>2. Same — validity of ordinance for opening a street. An ordinance of a town opening a street across a railroad track is not so unreasonable and oppressive as to authorize the courts to hold it void, simply because the existing streets across the tracks on either side of the proposed street are but 620 feet apart.</p> <p>3. Eminent domain — sufficiency of petition for condemnation. An allegation that an attempt or offer was made by the officers of the municipality to purchase property over which a proposed street extends, or to agree upon the price to be paid for the same, is not essential to a petition for the condemnation of the property for the purposes of a street.</p> <p>4. Same — allowance of nominal damages for portion of right of way. The conclusion that a jury in condemnation proceedings did not ascertain the just compensation for a street across the right of way of a railroad, for which it allowed one dollar, does not follow from the fact that for another parcel of less extent not included in the right of way, and of a marketable value, a substantial sum was awarded.</p> <p>5. Same — special use of property proper for jury to consider. The fact that by the opening of the proposed street across the right of way and other premises of a railroad company the property will be rendered unavailable for the purpose of a freight depot, to which it is peculiarly adapted, and that there is no other property obtainable and suitable for that purpose, may be taken into consideration in determining the amount of compensation to be awarded.</p> <p>6. Same — jury must allow some compensation to cm owner. An instruction in a proceeding to condemn across the right of way of a railroad company for a street, that “the issue in this case is as to the compensation, if any, which the petitioner should pay,” etc., is erroneous, as leaving the jury free to allow the railroad company no compensation at all.</p> <p>7. Evidence — experts—grounds of opinion proper to he given. The facts upon which the opinions of expert witnesses as to the value of property proposed to be taken in condemnation proceedings depend, may be stated by them either in chief or upon cross-examination.</p>

Frank Scales, Judge, presiding. This is an appeal from a judgment of the county court of Cook county, rendered against appellant’s lands, on the application of the county collector for judgment against delinquent lands for the non-payment of taxes and special assessments for the year 1893.

Oliver H. Horton, Judge, presiding. This was a bill in equity, brought by John Borden, who is owner in fee simple of lot 3, in block 117, in school section addition to Chicago, in Cook county, against James Donavan, George A. Taylor, and others, for the purpose of having the court ascertain and fix the cash value of the lot on the first day of January, 1892, exclusive of the buildings and improvements thereon, in the manner and for the purposes specified in a lease executed…