Volume 156 — Illinois Reports

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

<p>1. Public improvements—ordinance need not state improvement is within city. An ordinance for the improvement of a designated street, purporting to be passed by the council of a certain city, sufficiently shows that the improvement is within such city. Stanton v. City of Chicago, 154 Ill. 23, followed.</p> <p>2. Same—sufficiency of affidavit of mailing notices in special assessments. An affidavit of mailing notice to property owners in a special assessment proceeding is not invalidated because it has attached to it what purports to be a copy of the notice sent, from which copy the year in which the roll is returnable is omitted, such copy being surplusage. Schemich v. City of Chicago, 151 Ill. 336, followed.</p> <p>3. Same—judgment of confirmation cannot he collaterally attacked. A judgment confirming an assessment for a public improvement, rendered upon the affidavit of the commissioner made in accordance with the statute, showing service of notice, cannot be collaterally attacked, in a proceeding to collect a delinquent assessment, by proof that the notice was insufficient, or defectively served.</p> <p>4. Name—sufficiency of abbreviated name in notice to property owner. A notice addressed to “W. Div. R. W. Co.” instead of the “Chicago West Division Railway Company,” and sent to the place of business of the latter company, is sufficient to bind it by a judgment confirming an assessment against its property.</p> <p>5. Same—failure of assessment roll to give proper name not reversible error. A judgment upon a special assessment will not be reversed because the assessment roll does not give the proper name of a corporation as the owner of the property assessed.</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. Thomas G. Windes, Judge, presiding.</p>

Writ of Error to the Circuit Court of Edgar county; the Hon. Ferdinand Bookwalter, Judge, presiding. This was a bill brought by Anna V. Dorsett and her husband, against Jesse Moore and others, for the partition of certain lands in Edgar county, described in the bill.

<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. Wills—devise of fee cannot be limited by subsequent provision. A devise to a person named “and his heirs,” under the rule in Shelley’s case, gives him a fee, which canhot be limited by a subsequent provision that in case of his death without heirs of his body the property shall pass to other persons in fixed'proportions.</p> <p>2. Same—ivhen devisee may maintain a bill io construe will. A devisee under a will giving him a fee in one clause and by a subsequent clause attempting to create a limitation over in case of his death without heirs of his body, is entitled to maintain a bill in equity to construe the will, especially where those in whose favor such limitation is attempted are claiming an interest in the land under the will.</p>

S. Z. Landes, Judge, presiding. This was ejectment, in the circuit court of Wayne county, by appellants, against appellee, to recover the possession of the north half of the south-east quarter of section 2, township 3, south, range 9, east, in said county. The realty in dispute was originally swamp land.

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

<p>1. Taxes—failure of clerk to extend tax—right to add interest. Paragraph 278 of the Revenue act, (2 Starr & Ourtis, pp. 2117, 2118,) providing that omitted property may be subsequently listed and assessed, and arrearages of tax, with ten per cent interest thereon, charged against it, does not apply to a case where the property was duly listed by the owner and assessed, and the only fault was that of the county clerk in failing to extend fhe tax.</p> <p>2. Same—what paragraphs apply in such case. Such a case comes within paragraphs 279 and 280, (2 Starr & Curtis, p. 2118,) which provide that taxes assessed, which, for any reason, are not collected, may be added to the tax for a subsequent year, without adding interest, and with notice to the owner.</p>

J. P. Robarts, Judge, presiding. This was ejectment, in the circuit court of Saline county, by appellant, against appellee, to recover the south-west quarter of the south-west quarter of section 84, township 7, south, range 7, east of the third principal meridian, in Saline county.

<p>Writ of Error to the Circuit Court of Pike county; the Hon. Jefferson Orr, Judge, presiding.</p>

Theodore Brentano, Judge, presiding. This proceeding was instituted by the city of Chicago, in the Superior Court of Cook county, for the ascertainment of the compensation and damages due to the Illinois Central Railroad Company for land taken or damaged in opening and extending Eighty-second street and Ninetieth street across its railroad tracks and right of way.

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

<p>1. Drainage—organization of district cannot be 'attaclced collaterally. The regularity of the organization of a drainage district cannot be collaterally attacked on an application by the county collector for judgment for taxes and special assessments.</p> <p>2. Same—slight errors will not invalidate drainage assessment. A drainage assessment will not be invalidated by slight errors in the proceedings of the commissioners, where they have substantially conformed to the statute, and the irregularities do not affect the substantial justness of the assessment.</p>

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

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

Writ of Error to the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding. This was a bill brought by Edward L. Rodman, Joseph L. Rodman and Mary J. Rodman, against the heirs and other devisees of John Rodman, deceased, to construe the will of the deceased and to quiet title to certain lands alleged to have been devised by the will. John Rodman died testate July 30,1889.

<p>Writ op Error to the Circuit Court of St. Clair county; the Hon. A. S. Wilderman, Judge, presiding.</p>

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

Clair county; the Hon. Alonzo S. Wilder-man, Judge, presiding. This was a bill in equity, brought in the circuit court of St. Clair county, to foreclose a mortgage. Upon a hearing in the circuit court, on the answer, replication and evidence, a decree was rendered in favor of the complainants in the bill, which, on appeal, was affirmed in the Appellate Court.

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

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding.

Original proceeding for mandamus. This was an original proceeding in this court, brought in the name of the People of the State of Illinois, on the relation of James S. Hemstreet, against the members of the city council of the city of Delavan, for a mandamus.

<p>1. Decrees—amended at subsequent term, by correcting name. The court may, at a subsequent term, amend its decree by correcting the name of a party, where it clearly appears from the pleadings and from the decree itself that the name given was inserted in place of another by mere clerical error, and no question was raised as to the rights of the person whose name was given.</p> <p>2. Wills—construction—intention controls. In construing a will all of its provisions are to be considered and the true intention of the testator ascertained therefrom, and such intention, when expressed in or fairly drawn from the language of the will, must control.</p> <p>3. Same—words creating a trust—limitation after fee. A devise of property to testator’s five children, “provided” that the portion willed to three of them named shall be held in trust by the executor to pay the interest to them for life, and in the event of the death of either his portion to descend to his children, and if there be none, to be divided among the testator’s surviving children, creates a trust, which is not void as being limited after a fee.</p> <p>i. Same—what language empowers executor to sell realty. A will giving personal and real property to be held by the executor in trust, and loaned at the highest rate of interest obtainable, makes an equitable conversion of the realty, and empowers the executor to sell and convey it. ®</p> <p>5. Perpetuities—losnguage. held not to create a perpetuity. A devise in trust for testator’s three children for life, and in the event of the death of any of them the portion willed to the deceased child to descend to the children of the deceased, if any, and if not, to be divided among the surviving children, share and share alike, does not create a perpetuity.</p> <p>6. Same—i7ie estate itself, and not a beneficiary right, passes. The provision in such devise for the children of a deceased child is not a continuation of the trust, the word “portion” describing the estate itself, which is cast upon the children, and not a mere beneficiary interest under the trust.</p>

Prank Scales, Judge, presiding. This is an appeal from the judgment of sale rendered by the county court of Cook county, in favor of the county collector, upon the first and second delinquent installments of the assessment confirmed by the county court of Cook county on the 16th day of May, 1892, in a proceeding to assess the cost of constructing a main sewer, in accordance with the provisions of an ordinance of the city of Chicago adopted by the city council on the 14th day…

<p>1. Deeds—effect of surrender of unrecorded deed. The surrender of an unrecorded deed to the grantor, who is in possession of the land, may give him an equitable title, which will be sufficient to defeat any right of action of the grantee for the property.</p> <p>2. Limitations—permitting grantor to remain in possession—Burnt Records act. A grantee in an unrecorded deed who permits the grantor and those claiming under him to remain in possession and control of the land, as absolute owners, for more than thirty years, without asserting his title, is barred from a suit to establish his title under the Burnt Records act.</p>

John T. Cooper, Judge, presiding. At the May term, 1894, of the county court of Wayne county, the appellee applied for a judgment for alleged delinquent taxes for the year 1893 against the real estate of appellant in Wayne county.

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

<p>Appeal from the Circuit Court of Edwards county; the Hon. Carroll C. Boggs, Judge, presiding.</p>

Robert B. Shirley, Judge, presiding. This was a bill in the circuit court of Sangamon county, brought by Owen Egan and James Duffy, naturalized citizens of the United States and residents of the State of Illinois, representing that John Egan, late of the county of Sangamon, was the uncle of complainants, and in his lifetime was a citizen of the United States and a resident of the State of Illinois, and seized in fee simple of the following described lands in Sangamon county,…

Philip Stein, Judge, presiding. This was a bill filed by appellee, in which he set up that he was the owner of the east half of a certain lot in Cook county, being about forty acres; that on August 28, 1893, at a tax sale for delinquent taxes for the year 1892, made by Charles Kern, county collector, through one William Batterman, said property was offered for sale, and Rollo M. Davis, acting for the complainant, bid for the taxes, costs and interest then due upon the same…

<p>Writ op Error to the Circuit Court of Gallatin county; the Hon. E. D. Youngblood, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Clay county; the Hon. C. C. BOGGS, Judge, presiding.

<p>1. Judgment—when entered on special finding and against general verdict. Judgment can be entered upon a special finding, against the general verdict, only where such finding is so inconsistent with the verdict that the two cannot, upon any hypothesis, be reconciled.</p> <p>2. Negligence—does not defeat recovery for willful injury. Recovery for injuries resulting from reckless, willful or wanton acts will not be defeated by the mere negligence of the injured party, however great.</p> <p>3. Same—injury from reckless or willful sounding of railroad whistle. Negligence of one approaching a crossing and driving so close to the track as to cause her team to be frightened by the cars will not affect her right to recover, where the team was frightened by the needless and reckless, willful or wanton, sounding of the whistle.</p> <p>4. Special findings—;failure of jury to answer interrogatory fully. A party desiring a more complete special finding than that returned by the jury should ask the court to require the same, failing in which he must be deemed content with the finding returned.</p> <p>5. Same—failure to find fully—construction of jury's answer. To the question whether a railroad company needlessly and recklessly, or willfully and wantonly, blew the whistle by which a team was frightened, an answer by the jury simply that the whistle was “needlessly blown,” cannot operate as a special finding that the whistle was not blown recklessly.</p> <p>6. Instructions—giving wrong definition of willfulness. In an action for injuries occasioned by the frightening of a team by a locomotive whistle, an instruction that plaintiff must show that the whistle was blown willfully, “that is, that the servant who caused the whistle to be blown did so needlessly, and knew, at the time, of the proximity of plaintiff's team,” etc., is erroneous, as making mere knowledge of the proximity of such team conclusive of willfulness.</p>

Writ op Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Bichard S. Tuthill, Judge, presiding. This is a bill filed by plaintiff in error, a steam railroad company, to enjoin the defendant in error, a street railroad company, from laying the tracks of the latter across the tracks of the former upon Ashland and Western avenues in the city of Chicago.

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

<p>1. Evidence—what will cure improper exclusion of. The exclusion of a record book offered to prove incorporation is not ground for reversal, where other evidence held by the court sufficient to establish the fact was admitted.</p> <p>2. Instructions—must be based on evidence and relate to issue. Instructions, although correct, should not be given unless they are based on the evidence and relate to the issue presented by the pleadings.</p> <p>3. Same—in condemnation—as to future damages by fire. On a trial involving only the value of land taken by a railroad company and damage to lands not taken, an instruction as to the right of the land owner to recover damages, by fire or otherwise, occasioned by the negligence of the company, is properly refused.</p> <p>4. Damages—in condemnation—depreciation through exposure to fire. Depreciation in the market value of land by its exposure to fire or other cause of injury, in consequence of the location and operation of a railroad, constitutes an element of damages.</p> <p>5. Appeals and errors—error in excluding testimony—how cured. Error in excluding testimony is cured by the court’s afterwards informing counsel that the testimony will be admitted.</p>

<p>1. Ejectment—common source of title—what is. A defendant In ejectment need not trace title back of a grantor under whom plaintiff claims a title which such grantor had acquired by adverse possessiou for twenty years, running after the time he made deed to such defendant.</p> <p>2. Deeds—construction—all parts given effect. Clauses in a deed should be regarded as inserted for a purpose, and given a meaning that will aid the description. Every part should, if possible, take effect, and every word operate.</p> <p>3. Same—construction of a particular clause in description. In a deed granting a strip of land along a railroad track, the clause, “the nearest part of the land herein conveyed being twenty feet distant from the center line of said * * * railroad,” means (under the facts in this case) such distance from the centre line of the track, and not of the right of way.</p> <p>4. Such clause cannot be rejected as surplusage, and inconsistent with a previous description of the land, as having a width of twenty-five feet, lying adjoining and parallel with the land of the railroad, where there is nothing to indicate the amount, location or boundaries of the land which the strip is to adjoin and be parallel with.</p> <p>5. Appeals and errors—Judgment, in efectment, for too much land,, reversed. A judgment, in ejectment, will be reversed, on appeal, where manifestly for a greater quantity of land than is shown to be owned by the plaintiffs, in any view that may be taken of the evidence.</p> <p>6. Adverse possession—extends to boundaries named in the deed. Actual possession under a deed extends to the boundaries named in such deed, except as to those portions of the premises actually in the possession of others.</p> <p>7. Same—not under deed, must be actual. Adverse possession not under a deed cannot be constructive, but must be actual, visible, continuous, notorious, distinct and hostile.</p> <p>8. Same—what vMl operate as an abandonment. Where one holding land by naked possession abandons a portion of it, and leaves it unenclosed by moving his fence back, such portion is thereby brought within the constructive possession of one holding under a deed for a tract including such abandoned land, where he is in actual possession of a part.</p> <p>9. Same—as affected by removal of structures. Adverse possession without paper title is not continuous, where the occupation was by means of a structure removed and re-erected upon a different part of the land before the expiration of the statutory period.</p> <p>10. Instructions—must not assume facts not proved. An instruction assuming facts not shown by the evidence is erroneous.</p> <p>11. Same—right of defendant to deny ownership by adverse possession. An instruction, in ejectment by one claiming title by adverse possession of defendant’s grantor, arising after deed was made to defendant, that defendant cannot claim title under such deed and at the same time deny that such grantor was the owner of the land, is misleading, as implying that defendant could not deny such grantor’s ownership by adverse possession after the deed.</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. Edward F. Dunne, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Kankakee county; the Hon. 0. R. Starr,- 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. This is an appeal from a judgment of the Appellate Court for the First District, affirming an order of the county court of Cook county directing the assignee of Conrad L-Kiehoff, insolvent, to turn over to John B. Tinnette, the appellee, two certain unrecorded trust deeds made by said Conrad L. Niehoff, the one conveying real estate on North Clark street, in the city of Chicago, and the other conveying real estate on Thirty-ninth street, in…

<p>1. Partnership—retired partner cannot bind firm by note. A partner upon retiring from a firm ceases to have authority to bind it by the execution of its note for any purpose, much less for his own personal benefit.</p> <p>2. Evidence—note given by retired paiiner—burden of proof on holder. The holder of a note shown to have been executed in the name of a firm by a previously retired partner, has the burden of showing that he is a bona fide assignee or purchaser of the note.</p> <p>3. Bills and notes—■illegally made by retired partner—innocent holder. The making of a note in the name of a firm, payable to its own order, and the endorsement and delivery thereof to third persons,—all done by a retired partner of the firm,—will not constitute the person to whom it is so delivered a bona fide assignee or purchaser of such note, unless he purchased for value, without notice of the illegal execution.</p>

<p>1. Evidence—to sustain confession in vacation not admissible. Extrinsic evidence of partial payments upon a judgment note, to arrest the Statute of Limitations, is inadmissible to sustain a judgment formerly entered upon warrant of attorney before the clerk, where the note appeared, upon its face, to be barred at the time the judgment was entered.</p> <p>2. Same—;judgment entered before cleric—presumptions. Wo presumptions will be indulged that evidence was presented or heard other than that appearing in the record of a judgment entered upon a warrant of attorney before the clerk, who is a mere ministerial officer.</p> <p>3. Limitations—confession upon barred note not warranted. A warrant of attorney to confess judgment upon a note confers no authority to confess such judgment after the remedy for the debt has become barred by limitation.</p> <p>4. Judgment—by confession on barred note set aside. A judgment entered by confession on a note more than ten years overdue, without evidence of any fact taking it out of the Statute of Limitations, except a statement in an affidavit that a certain sum is due on the note according to its tenure and effect, will be set aside, as such statement is not inconsistent with the bar of the statute.</p> <p>5. Pleading—of Statute of limitations not necessary in confession. The rule that the Statute of Limitations is not available as a defense unless pleaded, does not apply to a judgment entered ex parte upon a warrant of attorney, as no opportunity is afforded the defendant to make a plea.</p>

<p>Appeals and errors—conflict between placita and bill of exceptions as to the sitting judge. A judgment will be reversed on the ground that the record shows that the trial judge did not have jurisdiction, where the placita recites “pleas before” a person named, “sole presiding judge of the county court” of a designated county, while the bill of exceptions, entitled as in such county court, recites that the case came on for trial before another person, “one of the judges of said court presiding, and a jury,” and it nowhere appears in the bill of exceptions that the person last named is the judge of the county court of any other county than that named.</p>

<p>Appeals and errors—when no question is presented, judgment will he affirmed. No question of law is presented for determination on appeal from a judgment rendered by the court upon a trial, by agreement, without a jury, where no written propositions are submitted, as required by the Practice act.</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. Murray F. Tuley, Judge, presiding.</p>

John Barton Payne, Judge, presiding. . This was an action of assumpsit, brought by appellee, against appellant, in the Superior Court of Cook county. The declaration contained the common counts, plea and general issue. The case was submitted to the court for trial without a jury, and judgment was entered against the defendant for $900. This judgment was affirmed by the Appellate Court. An appeal was granted to this court on a certificate of importance.

<p>1. Statutes—for local improvements repealed by incompatible act. A statute providing for a particular class of local improvements is repealed, by implication, by a subsequent statute containing irreconcilable provisions and applying to all classes of public improvements.</p> <p>2. Same—act of March 17,187k, repealed. The act of March 17, 1874, providing for the “laying of water supply pipe by bonds and special assessment, payable in installments,” was repealed by the conflicting act of April 19,1887, amending the act relating to cities and villages, by providing for payment for all public improvements by installments.</p> <p>3. Same—said act not saved by provision as to 50,000 population. The provision in said act of April 19, 1887, that it shall not apply in cities containing a population of 50,000 or more, except where the special assessment exceeds $15,000, does not indicate an intention on the part of the legislature to leave said act of March 17, 1874, in force.</p>

<p>Appeal from the County Court of Mercer county; the Hon. J. H. Connell, Judge, presiding.</p>

<p>1. Partnership—single joint enterprise not a partnership. An agreement by two persons to obtain from a third person a price for which he will sell his land, and to jointly and separately exert themselves to sell such land at an enhanced price and divide the profit between them, embracing no other transaction, does not constitute a partnership.</p> <p>2. Assumpsit—for money had and received—when it lies. An action for money had and received may be maintained for a share of the profits of a single joint enterprise, under an agreement that such profits should be equally divided, where the transaction is completed and the profits received by the defendant.</p>

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

<p>1. Appeals and errors—forcible detainer does not involve freehold. A proceeding in forcible detainer does not involve a freehold, so as to deprive the Appellate Court of jurisdiction, and the Supreme Court has no jurisdiction unless the sum or value involved exceeds $1000.</p> <p>2. Same—amou/nt involved must appear from record. The amount involved, for the purposes of jurisdiction, must appear from the record or by certificate of the judges of the Appellate Court, and the Supreme Court cannot, on appeal, hear evidence to prove value, or take the averments in the pleadings as proof thereof.</p>

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

<p>Writ op Error to the Circuit Court of LaSalle county; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>1. Appeals and errors—identification of exhibits in bill of exceptions. Exhibits recited to have been received in evidence and marked with certain letters are sufficiently identified by their insertion in the bill of exceptions with such marks, although there is no express recital that they are the documents offered in evidence, where there is a certificate that the evidence is all that was offered at the trial, and no other exhibits are to be found so marked.</p> <p>2. Landlord and tenant—covenant against alterations of premises —waiver. A covenant of a lease against alterations by the tenant without consent of the lessor may be waived by parol.</p> <p>3. Same—what is a waiver of covenant against alterations. A lessor, in a lease containing a covenant against alterations by the lessees, waived his right of forfeiture for an alteration by putting in stairs, where the lessees applied to him to put in such stairs, and he refused to incur the expense, but told them that they might do it and use old stairs then in the building.</p> <p>4. Same—estoppel of landlord to enforce forfeiture. A landlord who; by his words and conduct, causes lessees to believe that he will not enforce a forfeiture provided for by the lease in case of alterations in the premises, is estopped to avail himself of such forfeiture, where, in that belief, they make alterations.</p>

<p>1. Corporations—when note and mortgage of corporation to its president are invalid. A note and mortgage by a corporation to its president, to secure a sum advanced by Mm in payment of the stock subscription of another stockholder, are invalid.</p> <p>2. Mortgage—assignee takes subject to defenses. The assignee of a negotiable note secured by chattel mortgage takes the mortgage subject to any defenses which the mortgagor had against it in the hands of the mortgagee.</p> <p>3. Injunction—against enforcement of mortgage—when proper. An injunction against the enforcement of a mortgage given by a corporation to secure a note made to its president, invalid in the latter’s hands, is proper, although the note has been transferred to a bona fide holder.</p> <p>4. Bills and notes—who not a bona fide holder of a note. A purchaser of a note given by a corporation to its president is not a bona fide holder, where, although the corporation is solvent, he pays for the note but three-fourths of its amount, giving his personal unsecured note, at six months, for two-thirds of such payment, and makes no inquiry as to the circumstances under which the note was given, takes no interest in enforcing its collection or foreclosing a mortgage securing it, and knows of difficulties of such president with the corporation and that the mortgage was withheld from record by him.</p> <p>5. Evidence—note obtained by fraud—burden on holder to show good faith. The holder of a negotiable note has the burden of showing that he acquired it in good faith and for value, where the maker shows that it was obtained by fraud.</p> <p>6. Equity—;jurisdiction to cancel note obtained by fraud. A bill seeking cancellation, for fraud, of the note and mortgage of a corporation, and to enjoin collection, cannot be considered simply as a bill to enjoin a trespass, and the suit is within the jurisdiction of a court of equity.</p> <p>7. Appeals and errors—error in a party's favor not available on appeal. The objection that relief granted by a decree is not as broad as prayed for in the bill and recommended by the report of the master, approved by the decree, is not available to the defendant against whom the decree is rendered.</p>

<p>1. Pleading—effect of going to trial without issue joined. Going to trial without formal issue joined on a plea is a waiver of formal joinder, and the irregularity is cured by verdict.</p> <p>2. Bills and notes—legal effect of draft naming no drawee. An instrument in the form of a draft, but naming no drawee, may be regarded, at the option of the payee, as a promissory note of the drawer, or as a draft, to which the maker sustains the triple relation of drawer, drawee and acceptor.</p> <p>3. Evidence—what is not a conclusion of the witness. Testimony that money obtained by a partner “was used in the firm business” is not objectionable as a conclusion.</p> <p>4. Partnership—loam of money- to individual partner. One who loans money to an individual partner cannot hold the firm liable merely because such partner may have used the money in the firm business.</p> <p>5. Appeals and errors—allowance of leading questions—how viewed on appeal. The allowance of leading questions is so far in the discretion of the trial court that it will ground a reversal only when the discretion is palpably abused and substantial injury done.</p> <p>6. Instructions—a party cannot complain of the same error he commits. One at whose request erroneous instructions are given can not complain of the same error in other instructions.</p> <p>7. Same—should he viewed as ordinary men would view them. The sense in which ordinary men and jurors would understand instructions, in the light of the evidence, is the test of their correctness.</p>

John Barton Payne, Judge, presiding. This is an action brought by Caroline Boyd to recover damages for injuries alleged to have been sustained by reason of the negligence of the North Chicago Street Railroad Companjr.

<p>1. License—power of city under charter—percentage on business done. A city cannot, under a charter authority to demand a license fee from a certain class of business “not exceeding $500 per annum,” require payment, by ordinance, of a percentage upon all business done, which may amount to more than $500.</p> <p>2. Same—construction of ordinance concerning insurance companies. An ordinance requiring agents of foreign insurance companies to pay to the city two per cent of the premiums received is not one for a license, within a clause limiting the amount of license fees, as it does not grant permission to do business, but assumes that the authority already exists.</p> <p>3. Constitutional law—power of legislature to impose terms upon foreign corporations. The legislature has the power to impose such terms and conditions as it may choose upon foreign corporations before they can do any business in the State, and may delegate such power to a city.</p> <p>4. Municipal corporations—ordinance regulating foreign insurance companies—discrimination. An ordinance requiring agents of foreign insurance companies to pay a percentage upon the premiums received or effected is not invalid, as discriminating against such companies.</p> <p>5. Statutes—what is not a repeal of power of city to tax insurance companies. The charter power of a city having a fire department to impose a tax of two per cent upon the business of foreign insurance companies, is not taken away by a subsequent statute requiring the net receipts of such companies to be listed for taxation in lieu of all municipal licenses, where such statute expressly provides that cities having fire departments may tax the gross receipts of such companies to support such departments.</p> <p>6. Same—such power not repealed by provision for State license. The power of cities having fire departments to require insurance companies to pay a percentage on their business for the benefit of such departments was not taken away by the statute requiring foreign insurance companies to obtain a license from the State.</p>

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

Benjamin P. Berrian, Judge, presiding. The appeal in this case questions the act of the county court of Adams county in rendering judgment for taxes against certain lots in the city of Quincy owned by appellant, and which were sought to be taxed on an assessment made by the local assessor of the town. The Quincy, Omaha and Kansas City Railway Company owns a line of railroad from Trenton, Mo., to a point on the Mississippi river known as West Quincy.

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Wabash county; the Hon. E. D. Youngblood, Judge, presiding.

John Gibbons, Judge, presiding. This was a proceeding by quo warranto, brought in the name of the People of the State of Illinois, by… Held: owned and controlled the capital stock of all of said corporations, and thereby, during all that time, elected from their own number a majority of the directors of each of the corporations, and directed and controlled the business of all of them, and were enabled to, and did, exercise and control all the franchises and powers of each…

<p>1. Public improvements—grade of street to be improved must be shown by ordinance. The ordinance for a street improvement must show the grade of the street, so the amount of excavation and filling, respectively, necessary to be made in constructing the improvement, will appear.</p> <p>2. Same —profile of street may become part of ordinance by reference. A profile on file in the office of the city clerk may, by reference in an ordinance for a street improvement, be read into it, so as to form a part of the necessary description of the proposed improvement.</p> <p>3. Same—sufficiency of profile referred to in ordinance to show amount of excavation. A profile, referred to by ordinance, showing a grade line and a line of excavation parallel thereto, while a third irregular line represents the original surface line of a street, made on paper divided into equal squares, translatable into terms of distance, is sufficient to show the quantity of excavation or filling necessary, when taken in connection with an ordinance specifying the number of inches of excavation below the grade line.</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>

Writ of Error to the Circuit Court of Coles county; the Hon. Francis M. Wright, Judge, presiding. This was a bill in equity, brought by Nelson R. Green, against the commissioners of highways of the town of Ashmore, to enjoin them from tearing down a certain fence belonging to complainant and from entering upon his lands.

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

<p>1. Receiver—of national bank cannot avoid the bank’s prior contract. A receiver of a national bank has no power to do any act which would impair the obligation of a contract entered into by such bank before his appointment.</p> <p>2. Banks—appointment of receiver for national bank does not dissolve it. The appointment of a receiver for a national bank does not forfeit the charter or work a dissolution of such bank, so as to prevent suit being brought against it on a lease made before the receiver was appointed.</p> <p>3. Same—rents accruing on lease—subsisting claim before insolvency. Rent accruing on a lease made to a national bank as tenant, an installment of which was due several days before a receiver was appointed for the bank, is a subsisting demand at the date of the suspension of business, and an action may be sustained against the bank on the lease after the appointment of the receiver.</p> <p>4. Same—receiver not a necessary party in such case. In an action on such a lease the receiver is not a necessary party, and it is not error to refuse to render judgment against him jointly with the bank.</p>

Oscar P. Bonney, Judge, presiding. The facts in this record are sufficiently stated in the opinion filed in the Appellate Court for the Third District by Wall, P. J., which opinion is as follows : “This was a bill in chancery, brought in the circuit court of Pike county, by Benjamin Newman, S. C. Hoyt, the First National Bank of Pittsfield and the Griggsville National Bank, against the Commercial National Bank of Peoria, the Bank of Commerce of Peoria, Allan C. Bush, Francis…

<p>Appeal from the Circuit Court of Union county; the Hon. J. P. Robarts, Judge, presiding.</p>

Thomas G-. Windes, Judge, presiding. This is an action on the case, brought by Frank Callaghan, against Cribben, Sexton & Co., stove manufacturers, to recover damages resulting from an injury caused by the falling of the roof of a ladle oven attached to and forming a part of the factory of appellants.

Arthur A. Smith, Judge, presiding. The following statement of facts is taken from the opinion of the Appellate Court: “In this case appellee filed a bill against Farmers’ and Mechanics’ Bank and John V. Far well Co., appellants, .and I. P. Norton, to compel'the defendants to pay to him attorney’s fees included in judgment notes taken by them from Thompson & McLean when the makers were insolvent, and afterwards reduced to judgment and collected, and to enforce an alleged…

Benjamin R. Burroughs, Judge, presiding. This action was brought by Thomas A. Wright, against the city of Centralia, to recover damages to certain lands, caused by the construction of a dam across a certain non-navigable stream near the city of Centralia, whereby plaintiff alleges water was set back upon his premises, and a ford across said stream and a private way to his land thereby rendered impassable.

<p>1. Witnesses—competency—wife cannot testify for husband. In a ■ suit in chancery by a husband to cancel a deed for duress, his wife is not a competent witness in his behalf.</p> <p>2. Duress—to avoid deed—mere threats, vacation and annoyance are not. Mere vexation, annoyance and threats of imprisonment for which there is no ground, and threats of criminal prosecution, do not constitute duress, where no proceeding has been commenced and no warrant issued.</p> <p>3. Same—showing a pistol and slapping, to compel signing. Showing the grantor in a deed a pistol, and slapping him, to induce him to sign, which took place some time before the signing occurred, do not constitute duress, where it appears the grantor did not conclude to sign until afterwards, upon deliberation and after taking advice.</p> <p>4. Deeds—consideration for, imported by seal. The seal upon a deed imports a consideration for the making thereof, and in the absence of fraud the grantor will be bound, though nothing was paid.</p>

<p>Public improvements—several judgments against different properties may he rendered. Several judgments against the property of different objectors may be rendered for assessments for a street improvement, in a proceeding based upon a single assessment roll. Browning v. City of Chicago, 155 Ill. 314, followed.</p>

Samuel P. McConnell, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the First District, affirming a decree of the circuit court of Cook county sustaining a demurrer interposed by appellees to a bill in equity filed by appellants, against them and John Cudahy, and dismissing said bill as to appellees for want of equity.

<p>1. Public improvements—ordinance need not state improvement is within the city. An ordinance on which an assessment for a sewer improvement is based is not invalid by reason of its failing to affirmatively and specifically state that the proposed improvement is within the city. Stanton v. City of Chicago, 154 Ill. 23, followed.</p> <p>2. Same—several judgments may he entered at different times. Several different judgments of confirmation may be entered on different days in one and the same special assessment proceeding. Browning v. City of Chicago, 155 Ill. 314, followed.</p>

<p>Appeal from the Circuit Court of Stephenson county; the Hon. John D. Crabtree, 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. Richard W. Clifford, Judge, presiding.</p>

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

Francis Adams, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment of the circuit court of Cook county for $5000, rendered against the defendant below for negligence resulting in the death of plaintiff’s intestate.

Charles Blanchard, Judge, presiding. The bill in this case seeks to set aside, as a cloud upon title, a tax deed upon a certain lot in the city of Streator, issued to appellant on the 8th day of December, 1892. It appears from the record in this case that the lot was sold on the 18th day of June, 1890, for the taxes of 1889. It further appears that this property was not advertised in the delinquent tax list of the year 1890 for the taxes of 1889.

<p>1. Appeals and errors —failure to present question to trial court. The right of relators in quo warranto to have an issue of fact passed upon in the trial court cannot be raised on appeal, where the record fails to show the trial court was asked to rule on the question.</p> <p>2. Sams—judgment presumed, on appeal, to he properly rendered. In ■the absence of a bill of exceptions showing the contrary, it will be presumed, on appeal, that a judgment was properly rendered.</p> <p>3. Record—mere recital of clerk in transcript is no part of record. A recital by the clerk in the transcript that a certain motion was made and the ruling of the judge thereon excepted to, does not make the motion, ruling or exception part of the record, in the absence of a bill of exceptions.</p>

<p>Courts—two county judges may hold same court at same time. The fact that a county judge is holding court in his own county does not preclude a county judge of another county from also holding a county court in the same county. Pike v. City of Chicago, 155 Ill. 656, followed.</p>

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

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

<p>1. Appeals and errors—trial bef‘ore court—failure to present propositions of law. No question of law is presented, on appeal from a judgment rendered on a trial by court, where no written propositions were presented to the trial court.</p> <p>2. Samm—when leading question is not reversible error. The allowance of a leading question upon a trial without a jury is not cause for reversal, where it appears that no injury was done to the objecting party, as where substantially the same question by him on cross-examination elicited the same answer.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell,, Judge, presiding. This is a writ of error to the Appellate Court for the Second District, wherein the Illinois Steel Company is plaintiff in error, and James L. O’Donnell, assignee of Henry Fish & Sons, and others, are defendants in error.