Volume 157 — Illinois Reports

Writ op Error to the Appellate Court for the First District; — heard in that court ou appeal from the Circuit Court of Cook county; the Hou. Frank Baker, Judge, presiding.

Frank Scales, Judge, presiding. The appellants filed a petition in the county court of Cook county on June 6, 1893, alleging that, on the day before, towit: June 5, 1893, they recovered five judgments, aggregating more than §20,000.00, against one Weissenbach in the qircuit court of Cook county; that, at the. hour of half-past two On the morning of said June 5, 1893, executions issued upon said judgments, and were at said hour of 2:30 A. M. on said June 5, 1893, delivered to…

<p>1. Witnesses — competency of plaintiff against grantees of deceased person. A suit against grantees of a deceased person, which is not defended by the executor, heirs, legatees or devisees of the deceased, is not one in which the plaintiff is prohibited, by the statute, from testifying in his own behalf as to personal transactions with the deceased.</p> <p>2. Evidence — declarations of deceased wife to her husband not admissible. Testimony of a plaintiff in regard to conversations with his deceased wife is inadmissible in an action against her grantees, under the statute restricting the testimony respecting such conversations to suits between husband and wife.</p> <p>3. Same — presumption as to delivery of trustee's deed. The presumption is that a trustee’s deed of land, on a sale for cash, was not delivered until payment was made of all the purchase money bid at the sale.</p> <p>4. Same —purchase of land by husband in name of wife — presumption. The purchase of land by a husband in the name of his wife will, prima facie, be presumed to be an advancement or settlement, and not a trust.</p> <p>5. Trusts — transfer of notes to raise purchase money may raise resulting trust. The transfer of notes the proceeds of which were used in paying part of the purchase price of land at a trustee’s sale, which was made for cash, is part of the original transaction, within the rule as to resulting trusts in favor of those furnishing the purchase money. Alexander v. Tams, 13 Ill. 221, and Reed v. Reed, 135 id. 482, distinguished.</p> <p>6. Same — proof to raise resulting trust must be clear. Proof to raise a resulting or implied trust must be entirely clear and satisfactory, and incapable of reasonable explanation upon any other theory than the existence of such trust.</p> <p>7. Same — husband furnishing part of purchase money of land conveyed to wife — laches. A man who furnished part of the purchase money for land conveyed to his wife with his consent, on a purchase by their son at a trustee’s sale, cannot, several years subsequently, on separating from his wife, claim a trust in the land.</p>

<p>1. Condemnation — marlcet value not the measure of damage for opening street across railroad. The market value of the property taken is not measure 0f compensation on condemning the right of way for a street across railroad tracks.</p> <p>2. Same — true measure of damage in such case. The measure of compensation for crossing a railroad right of way by a hig'hway is the decrease in the value of the use of the land for railroad purposes.</p> <p>3. Same — when damages are nominal, only. Nominal damages only-can be given to a railroad company for the laying out of a highway across the railroad right of way, where there is no proof of the use, or intended use, of the land except for railroad tracks.</p>

<p>Appeal from the AppeHate Court for the First Bistrict; — heard in that court on appeal from the Superior Court of Cook county; the Hon. James Goggin, Judge, presiding.</p>

Frank Scales, Judge, presiding. The firm of Herman Schaffner & Co. was engaged in the banking business in Chicago for a considerable period, and on June 3, 1893, made an assignment for the benefit of its creditors to the American Trust and Savings Bank, the appellee herein.

Charles Kellum, Judge, presiding. The bill of complaint herein was exhibited in the Kane circuit court by Henry McBride and Herbert A. Gage, appellees, against the South Elgin Stone Company, William Grote, and William Sterricker, A. C. Joslyn and J. W. Fletcher, the three latter being the commissioners of highways of Elgin township.

Frank Scales, Judge, presiding. On March 14, 1892, the city council of the city of Chicago passed an ordinance providing that Cottage Grove avenue, from Seventy-fifth street to Ninety-fifth street, (except sixteen feet in the middlé thereof,) be curbed with wooden curbing, filled and macadamized.

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

<p>1. Appeals and errors — continuance of cause discretionary with trial court. The exercise of the discretion of the trial court in deciding a motion for a continuance will not be reviewed by an appellate tribunal, unless the'discretion has been manifestly abused.</p> <p>2. Same — objection to secondary evidence must be made below. An objection that secondary evidence was admitted cannot be made for the first time on appeal, although judgment was taken by default, where the appellant had been duly served with'process.</p> <p>3. Same — presumption, on appeal, that instructions were given in writing. A presumption that instructions were given in writing will be indulged on appeal, where necessary to support the action of the lower court, if there is nothing to show that they were oral.</p> <p>4. Landlord and tenant — mere holding over does not renew tenancy. The mere holding over by a tenant after expiration of the term does not renew the tenancy, except at the landlord’s election.</p>

<p>1. Judgment — of revival in scire facias — notice and publication. A judgment of revival in scire facias, based upon notice sent by mail and published, to a resident of the State, is prima facie valid in a collateral proceeding.</p> <p>2. Same — requirement of due process of law in scire facias to revive. Mailing to a defendant, and also publishing, a notice of scire facias to revive a judgment, as provided in section 26 of the Practice act, satisfies the constitutional requirement of “due process of law,” where the affidavit shows the residence of such defendant to be within the Slate, and that he has gone out of or is concealed within the State so process cannot be served.</p> <p>3. Same — section 26 of Practice act, as to notice, invalid, as applied to non-residents. Revival of judgment by scire facias upon publication and mailing notice, as provided in section 26 of the Practice act, without personal service or entry of appearance, would not be valid against a non-resident of the State.'</p> <p>4. Scire facias — -whether proceeding is in rem or in personam. A proceeding by scire facias to revive a judgment is a proceeding in personam, and not in rem, where the original judgment sought to be revived is in personam.</p> <p>5. Evidence — effect of clerk's certificate of mailing notice. A certificate of the clerk that he has mailed a notice of scire facias addressed to the defendant is prima facie evidence that the notice was received.</p> <p>6. Same — probative force of recital in judgment. A recital in a judgment that due proof was made is at least prima fo.cie evidence of that fact.</p> <p>7. Same — force of answer as evidence, when oath is waived. Where a bill in chancery waives a sworn answer, an answer under oath has no greater force as evidence than the bill.</p> <p>8. Creditors’ bill — satisfaction or discharge of judgment may be shown under. The satisfaction or discharge of a judgment may be shown as a defense against a creditors’ bill to enforce the judgment after revival on scire facias, as well as to defeat the revival.</p> <p>9. Affidavit — /or scire facias to revive — failure of jurat to show oath. An affidavit in which the affiant, “on oath, states,” but which the certificate of the notary merely states to have been “subscribed,” without saying that it was sworn to, on which a scire facias to revive a judgment is based, is not so defective as to defeat the judgment of revival in a collateral proceeding, where such judgment recites that it was made on due proof.</p> <p>10. Same — stating facts disjunctively — effect. The objection that an affidavit for substituted service was in the disjunctive, in stating that defendant was concealed within the State or had gone out of the State so that process could not be served, is not well taken, where the material fact of the impossibility of finding his whereabouts is set forth.</p>

William G-. Ewing, Judge, presiding. This was a bill in equity, brought by Thomas J. Ryan, against John Cudahy and others.

John D. Crabtree, Judge, presiding. This was an action of trespass quare elausum fregit, by appellant, against appellee, in the circuit court of White-side county, to recover damages alleged to arise by reason of the entry upon and construction of appellee’s railroad in the street along and in front of appellant’s land.

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

Francis Adams, Judge, presiding. The three actions were brought by Frank Hebner on three policies of insurance, one against the Palatine Insurance Company, one against the Oakland Home Insurance Company, and one against the Sun Insurance Company.

<p>1. Appeals and errors — when error in proof of value of stolen property will not reverse. The admission of a question, in a prosecution for larceny, asking the present worth of the stolen property, which -was not objected to on the specific ground that the proof should be confined to the value at the time of the theft, is not reversible error.</p> <p>2. Evidence — what will support finding of value of stolen property. Testimony to the value of stolen property, given in answer to the question, “How much is it worth?” is sufficient to warrant a finding by the jury of such value.</p> <p>3. Variance — unsubstantial variance is not cause for reversal. An unsubstantial variance between the name of the owner of stolen property, as laid in an indictment for larceny and as shown by the proof, is not cause for the reversal of a judgment of conviction.</p> <p>4. Same — Christian name of owner of stolen property sufficiently proved by initials. A judgment of conviction of larceny will not be reversed because the Christian name of the owner of the stolen property was proved only to the extent of the initials, no question as to the identity of such owner being made at the trial.</p> <p>5. Trial — instruction that each juror should decide for himself, not proper. A requested instruction in a prosecution for larceny that each juror shall decide for himself what his verdict shall be, is properly refused, although made in connection with some accurate statements of the law, as it erroneously implies that each juror should act independently of the others.</p> <p>6. Criminal law — •improper instruction as to meaning of “reasonable doubt.” A requested instruction that a reasonable doubt is that state of the case which, after careful comparison of all the evidence and a deliberate consideration of the law, leaves the minds of the jurors in that condition that they cannot say that they have an abiding conviction, to a moral certainty, of the truth of the necessary fact as charged in the indictment, and that the evidence must establish every fact necessary to constitute the crime to a certainty that convinces and directs the understanding and fully satisfies the reason and judgment of each juror, is properly refused.</p>

Thos. G. Windes, Judge, presiding. September 29, 1890, the appellees, Samuel Gregsten and Andrew Cummings, filed a bill of complaint in this cause, praying that the city of Chicago and the commissioner of public works be restrained from ejecting them from the vault or space underneath the alley in the rear of the premises occupied by said appellees, fronting on Dearborn street, Chicago. The bill of complaint was afterwards amended, by leave of court.

<p>1. Appeals and errors — reversing finding of fact as to forgery of deed. The finding that a lost deed of a husband and wife was a forgery will be reversed, on appeal, where the only affirmative evidence to support it is that of the surviving husband, and he, on several occasions, recognized and stated that the deed was valid, received a part of the consideration upon a subsequent conveyance by the grantee, and was otherwise contradicted.</p> <p>2. Trust — innocent purchaser of trust property protected. A purchaser from a grantee whose title is held in trust for another is not affected by the improper disposition of the property or the proceeds resulting from the sale by his vendor, where he has no notice of the existence of such trust or of facts putting him upon inquiry.</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. Francis Adams, Judge, presiding.

<p>1. Penalty — construction of contract to determine whether sum named is a penalty. Where a large sum, which is not the actual debt, is agreed to be paid in default of a lesser sum, which is the actual debt, such larger sum is always a penalty.</p> <p>2. Where the larger sum is the actual debt and a smaller sum is agreed upon as a release if paid under stated conditions, failure to pay the smaller sum entitles the creditor to claim, the larger.</p> <p>3. Same — whether sum named as rental in lease of patented machines is a penalty. A contract for a monthly rental for certain patented machines, to be computed upon each month’s manufacture with the machines, “to be due and payable on the first day of the month next following, and to be paid within one month from that day,” with a provision that “if the rents due on the first day of any month shall be paid on or before the fifteenth day of that month” the lessor “will grant a discount of fifty per cent,” is satisfied by the payment, after the fifteenth of a given month, of such computed sum, less the fifty per cent called discount.</p> <p>4. Same — when the lesser sum named is the debt end the larger a picnalty. In such case the sum to be computed, less the discount, is the actual debt, and the so-called discount is, in fact, a penalty, and therefore not recoverable.</p> <p>5. Pleading— when question as to penalty is raised by demurrer to declaration. In such case, where the contract is set out in heec verba, and the declaration shows payment of the smaller sum which is the actual debt, though after the date named for the discount, the question of the extent of the liability is raised and maybe decided on demurrer to the declaration, without other pleading or proof.</p>

Edward F. Dunne, Judg'e, presiding. This is an action of assumpsit brought by appellee in July, 1890, against the appellant, a mutual insurance association conducted upon the assessment plan. The suit is brought by the appellee, as the widow of Sherman S. Swarts, deceased, a conductor in his lifetime on the Chicago and Indiana Coal Railroad Company, who met with an accident on August 14,1889, and died on the next day at Goodland, Indiana.

Oliver H. Horton, Judge, presiding. Appellant Clemmer filed his bill in equity in the circuit court of Cook county, against appellee, and Hanna, Son & Co., making the other appellants defendants also, wherein he alleged that on June 8, 1890, he owned a car load of cattle and a car load of hogs, which on that day he shipped from Iowa to Hanna, Son & Co., commission merchants at the Union Stock Yards, Chicago, to be sold for him on commission, the proceeds, after deducting…

<p>1. Limitations — amendment claiming rents and profits treated as new action. Rents and profits accruing more than five years before a bill seeking the correction of a sheriff’s deed was amended so as to claim them, are barred, the same as though made the basis of»a separate action commenced at the time of the amendment.</p> <p>2. Same — a bar at law is a bar in equity. When courts of equity-have concurrent jurisdiction with courts of law, and the party proceeds in equity, if barred at law he will also be barred in equity.</p> <p>3. Decrees — order of reference to master nunc pro tunc invalid. An order referring a cause to a master to take testimony, granted nunc pro tunc as of a date prior to the action of the .master, is of no effect to validate the action of the master in taking testimony before such order was in fact made.</p>

L. C. Collins, Judge, presiding. Appellees, as vendors, filed their bill for specific performance against appellant, as assignee of one Harpold, vendee of certain lands in Manitou county, State of Michigan. The evidence shows that Eva M. McKinnon and Romaine I. Wendell are minor heirs of Jacob A. T. Wendell, deceased, and that Anna M. Miller was his widow, he dying in Michigan, intestate.

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

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

<p>Writ op Error to the Circuit Court of Livingston county; the Hon. Edward P. Vail, Judge, presiding.</p>

Francis Adams, Judge, presiding. The facts in this case, as stated by the Appellate Court, are as follows: On January 29,1894, there was entered in the circuit court of Cook county a judgment by confession for $8612.96 and costs, in favor of appellee, against appellant. The cognovit and judgment included $395 attorney’s fees.

Theodore Brentano, Judge, presiding. Appellee brought his action of forcible detainer before a justice of the peace, against appellant, and the judgment was adverse to him, whereupon he appealed to the Superior Court of Cook county. His appeal bond was filed before the justice May 25, 1898, and on May 27 following, the transcript, etc., was filed with the clerk of the Superior Court. The June term of the Superior Court commenced on the fifth of that month.

<p>1. Negligence — degree of care required of grip-men at crossings. Servants of a grip-car company are bound to take notice of tbe number of travelers at a street crossing, and exercise care demanded by the increased danger at that point.</p> <p>2. Pleading — rule as to particularity with which negligence must be stated. A pleader is required to state the facts constituting the negligence complained of, only so far as they appear to be properly within his knowledge.</p> <p>3. Same— sufficiency of statement of negligence of grip-man in running motor. A declaration that defendant’s servants, in driving a cable motor, “so carelessly and improperly drove and managed the motor and train” that the same ran into plaintiff’s carriage and injured him, is sufficient on special demurrer, without stating the particular facts constituting the negligence. Chicago, Burlington and Quincy Railroad Co. v. Harwood, 90 Ill. 425, and Ohio and Mississippi Railway Co. v. People, 149 id. 663, distinguished.</p> <p>4. Same — sufficiency of allegation as to care by the plaintiff. In such case, an allegation that plaintiff, “with all due care and diligence, was then and there riding in his carriage,” is sufficient as to plaintiff’s care, without stating whether the plaintiff or his servant was driving the carriage, and if the servant, whether the latter was free from negligence.</p>

Samuel P. McConnell, Judge, presiding. This is an action of replevin begun on May 11, 1891, by appellee against appellant to recover the possession of certain goods and chattels, consisting of the stock in trade and machinery and equipments, belonging to and connected with the business of manufacturing fruit butters, jellies, preserves-and like products, and selling and dealing in the same.

<p>1. Divorce — what will sustain charge of cruelty in suit by husband against wife. A husband seeking divorce from his wife for extreme and repeated cruelty must make out a clear case, slight acts of violence, against which he is not shown to be unable to protect himself by a proper exercise of his marital powers, not being sufficient.</p> <p>2. Separate maintenance — solicitor's fees and maintenance — discretion of court in allowing, is reviewable. Allowances toa wife of solicitor’s fees and separate maintenance rest in the judicial discretion of the chancellor, the exercise of which is reviewable, though a decree fixing these will not be disturbed unless there is a decided difference of opinion between the lower and the reviewing court.</p> <p>3. Same — what is a reasonable allowance for solicitor's fees and maintenance. A solicitor’s fee of $150 for defending a divorce suit and obtaining decree of separate maintenance on cross-bill, and $30 per month for such separate maintenance, are not unreasonable allowances where the husband earned $125 per month as .a railway conductor and owned ten acres of land costing $1350, though the latter was unproductive.</p>

<p>1. Appeals and errors — improper testimony not cause for reversal, in equity. The admission of incompetent testimony at the hearing of a bill in equity is no cause for reversal, provided the competent evidence in the record sustains the decree.</p> <p>2. Contracts — construction—what is included in “the good will a/nd all the business.” A contract which, for an agreed royalty of ten per cent on future sales of a “line of goods” mentioned, transfers “the good will and all the business” of the first party, which business is recited in the preamble to be the manufacture and sale of certain patented articles “and other articles of office and bank furniture” “now manufactured and sold by the party of the first part,” will be . construed, in computing royalty, to cover both the patented articles and others dealt in similar thereto.</p> <p>3. Same — general contract for royalties includes foreign business. The preamble to a general and unlimited agreement conferring the right to manufacture and sell certain patented articles, to the effect that such articles are now manufactured and sold by the first party “throughout the United States and Territories,” does not limit the promise to pay royalties to domestic business.</p> <p>4. Stipulation — construction as to what is included. The stipulation of counsel in an action for an accounting that certain specified articles “are covered by” the interlocutory decree, and under it the complainant is entitled to an accounting on the same, does not, by implication, exclude, from the account an article not mentioned in the list so specified.</p> <p>5. Interest — allowed on written contract, though not specified. Interest may be allowed, under the statute, upon the amounts found due on an accounting under a written contract for payment of a specified per cent of the amount of sales of certain articles, although there is no provision in the contract for the payment of interest.</p> <p>Craig, C. J., dissenting.</p>

<p>1. Contracts — acceptance of contract is equivalent to formal execution. The acceptance by the master of a written contract of employment signed by the servant is equivalent to its formal execution by the master.</p> <p>2. Same — want of mutuality renders contract invalid. A contract to employ a person to work “from time to time,” the service to continue “only so long as satisfactory” to the employer, and which provides a forfeit if the servant quits without specified notice, is void for want of mutuality, and such forfeit cannot he set oil against wages due.</p> <p>3. Constitutional law — statute allowing attorney’s fees in suits for wages, constitutional. The statute giving the right to recover attorney’s fees in suits for wages (Laws of 1889, p. 362,) is not in conflict with the constitutional provision against special or class legislation, since it applies to all persons similarly engaged. Millett v. People, 117 Ill. 294, Frorer v. People, 141 id. 171, Eamsey v. People, 142 id. 380, and Braceville Coal Co. v. People, 147 id. 66, distinguished. (Magruder, J., dissenting.)</p>

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

Jonas Hutchinson, Judge, presiding. This is an action by the administrator of Charles F. Gilbert, who was seventeen years old at the time of his death, to recover damages because of alleged negligence of appellant, causing the death of the intestate.

Heard on certification from the Auditor of Public Accounts of the State of Illinois, on objection of said Auditor to the decision of the board of supervisors of Peoria county.

<p>1. Practice — question of sufficiency of evidence must be raised at trial. In the absence of a demurrer to the evidence or a request' to the court to take the case from the-jury, the question of the sufficiency of the evidence to sustain the verdict becomes one of fact, only, on which the Appellate Court’s decision is final.</p> <p>2. Verdict — sufficiency of verdict in action on the case. While the proper verdict against a defendant in an action on the case is a finding of “guilty,” a verdict which “finds the issues in favor of the plaintiff,” assessing damages, in pursuance of an instruction of the court as to form, is equivalent to a verdict of guilty.</p> <p>3. Measure of damages— to father and nextofkinfor causing son’s death. Loss by a father of the wages of a minor son from the date of his death to the time when he would have come of age is not the measure of damage for negligently causing such son’s death, and an instruction making such loss of wages unduly prominen t and ignoring other elements of damage is properly refused.</p> <p>4. Witnesses— administrator who is plaintiff may testify in his own behalf. An administrator suing for the negligent death of his intestate is, under the statute, a competent witness in his own behalf.</p> <p>5. Fellow-servants — question of the relation of servants one of fact. Whether the relation of fellow-servants existed between different employees at the time of an injury is one of fact, upon which the judgment of the Appellate Court, in the absence of any rulings of law upon the question, is conclusive.</p>

Thomas P. Tipton, •Judge, presiding. The note in controversy for $1435, executed by appellants, Harry M. and Prank R. Henderson, to one J. C. Phillips as payee, was sold and endorsed by Phillips to •appellee, H. D. Davisson. Appellee afterwards borrowed $400 from the People’s Bank and pledged the Henderson note as collateral, by endorsing his name on the note and delivering possession of it to said bank.

<p>1. Criminal law — larceny—sufficiency of proof of name of owner of stohn property. In a prosecution for the theft of hogs, laid in the indictment as the property of “Thorn Downey,” proof that the owner’s name was “Thornton J. Downey,” but that “everybody called him Thorn Downey,” is sufficient.</p> <p>2. Same — what is sufficient showing of ownership of stolen property. Hogs shown to be of a lot purchased by the person named in the indictment as owner, individually, with intent that if, upon shipment, the venture proved profitable his partner should share the profits, are, for the purposes of a prosecution for the larceny of such hogs, the individual property of such purchaser, it appearing the partner had never assented to the purchase or become vested with an interest.</p> <p>3. Same — defective definition of larceny in instructions. Instructions given to a jury for the prosecution which make larceny consist of “feloniously taking and carrying away” the property alleged to have been stolen, or taking it “with felonious intent,” and which do not require a finding that defendant stole the property, are erroneous.</p> <p>4. Same— instructions defining crime must follow the statute. Where the statute defines an offense, no element of the statutory definition can he omitted in an instruction defining such offense.</p> <p>5. Instructions — musí not assume fact of ownership of stolen property. Instructions must not assume that a certain person was the owner of property alleged to have been stolen, where such ownership is a contested question before the jury.</p> <p>6. Same — musí not allow of conviction on partial finding of facts. An instruction given for the prosecution under an indictment for larceny, which directs the jury, in case certain facts are proved, to find the defendant guilty, and which does not require the finding, on belief beyond reasonable doubt, of all the facts necessary to establish the defendant’s guilt, is erroneous.</p>

<p>1. Trial — taking case from, jury by instruction — when not proper. An instruction directing the jury to find for defendant is properly refused where the evidence introduced fairly tends to support the cause of action stated in the declaration.</p> <p>2. Pleading— misnomer of defendant waived by pleading in bar. The misnomer of a defendant is waived where such defendant pleads in bar by the right name.</p> <p>3. Same — misnomer cured by the Statute of Amendments. Such misnomer is cured after verdict by the Statute of Amendments and Jeofails.</p> <p>4. Same— idhat is not matter of description in declaration. The allegation in a declaration against a railroad company, sued by a wrong name, for a personal injury, that such injury was received “at the crossing of the railroad of defendant,” does not render the erroneous name elsewhere used in the declaration a matter of essential description, which must be proved as laid.</p> <p>5. Evidence — sufficiency of proof of highway in personal injury case. It is not incumbent on one alleging a personal injury by a railroad company at the crossing of a named highway, to show such highway was legally established, either by condemnation, dedication or prescription.</p> <p>6. Courts — -for what purpose the Supreme Comi, may examine evidence. In actions for personal injury coming from the Appellate Court, the Supreme Court may look at the evidence to determine the correctness of rulings upon evidence and instructions, and to determine (when the question is properly raised) whether the case should have gone to the jury, but for no other purpose.</p> <p>7. Same — decision overruling motion for new trial assignable as error. Since 1837 (Laws of 1837, p. 109,) the decision of a trial court in this State overruling a motion for new trial has been assignable for error, and a court of review (barring restrictions placed upon the Supreme Court by sections 88 and 90 of the Practice act) may inquire whether a judgment should be reversed upon the evidence.</p> <p>8. Same — duty of Appellate Court to reverse judgment when against evidence. It is the right and duty of the Appellate Court to reverse judgments of trial courts and verdicts of juries where found to be clearly against the weight of evidence.</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. Edmund W. Burke, Judge, presiding.

Heard on certification from the Auditor of Public Accounts of the State of Illinois, on objection of said Auditor to the decision of the board of supervisors of Peoria county.

Writ op Error to the Appellate Court for the First District; — heard iu that court ou appeal from the Circuit Court of Cook county; the Hon. Frank Baker,' Judge, presiding. This was an action on the case for personal injuries, brought by defendant in error, against plaintiff in error, in the circuit court of Cook county.

<p>1. Corporations — distinction between private and public corporations. A corporation composed of private individuals which, is not by law restrained from conducting the corporate business for private benefit, which does not report to and is not inspected by any State official, which elects its own managers without State approval, and which, by law, owes the State no duty, is a private, and not a public, corporation.</p> <p>2. Same — “Washingtonian Home of Chicago” a private corporation. The Washingtonian Home of Chicago, which was created and its powers defined by the act of 1867, (1 Private Laws of 1867, p. 141,) is a private corporation.</p> <p>3. Constitutional law — provision of constitution as to donations to private corporations is self-executing. The provision of the constitution of 1870 (No. 2 of separate sections) prohibiting municipalities from making donations to private corporations is self-executing, and the'same operated as a paramount law from the time the constitution was adopted.-</p> <p>4. Same — said section repealed section 7 of act of 1867 incorporating Washingtonian Home. Said constitutional provision repealed section 7 of said act of 1867, whereby the county of Cook and city of Chicago were required to pay ten per cent of liquor license fees to the Washingtonian Home, but did not operate retrospectively.</p> <p>5. Municipal corporations — power of the city of Chicago to dispose of its revenues. The revenues derived by the city of Chicago from licenses and other sources are held in trust, and can only be paid out or appropriated in the manner and for the purposes authorized.</p> <p>6. Estoppel — definition of estoppel in pais. Estoppel in pais is an indisputable admission, arising from th,e circumstances, that the party claiming the benefit of it has, while acting in good faith, been induced, by the voluntary, intelligent action of the party against whom it is alleged, to change his position to his prejudice.</p> <p>7. Same — city cannot estop itself to obey the constitution. A city does not, by an appropriation and payment of its revenues for twenty-two years in violation of the constitution, estop itself to subsequently obey that instrument.</p>

<p>1. Real estate — title from government draws possession to it. One holding title to lands derived from the United States is, by force thereof, in possession until there is an ouster or disseizin.</p> <p>2. Same — presumptions arising from government title. Title from the general government being shown, presumptions in favor of its validity, and of legal possession under such title, arise, and remain until overcome by evidence to the contrary.</p> <p>3. Same — presumption upon proof of deed of land by unidentified party. A grantor wholly unidentified, who is shown by parol to have made a deed which was lost, will be presumed to have been a stranger to the title.</p> <p>4. Adverse possession — what are the requisites to constitute a bar. Adverse possession, to constitute a bar against the legal title, must be (1) hostile or adverse, (2) actual, (3) visible, notorious and exclusive, (4) continuous, and (5) under a claim or color of title.</p> <p>5. Same — cannot be made out by inference or implication. The presumptions all being in favor of the true owner, adverse possession cannot be made out by inference or implication, and the proof to establish it must be strict, clear, positive and unequivocal.</p> <p>6. Same — possession of part without color of title to the whole — effect. While possession of part of a tract under color of title to the whole is, in law, possession of all described in the deed, possession of a few feet of ground by a grave and a fence around it, in a small strip of land in general use as a burial place, while sufficient to establish title to the grave, will not draw to it title by prescription to the tract wherein such grave and burying place are located.</p> <p>7. Same — when good only to extent of hostile occupancy. To the extent that the hostile occupancy would not afford one possessing the true title notice or put him upon inquiry, such possession does not operate upon the owner’s right.</p> <p>8. Same —possession by bailiff for owner and adverse claimant jointly— effect. One in possession of land as bailiff for both an adverse claimant and the title owner, jointly, will, under the legal presumptions, be deemed to hold the possession for the title owner.</p>

<p>Contracts — construction—liability of consignee of goods for sale, for freight on goods returned. A consignee of goods for sale on .commission, whose contract requires him to pay freight in the first instance, is not entitled to a return of freight which had been pa-id by him upon the goods that were, by mutual consent, returned upon termination of the contract, notwithstanding by the terms of the contract he could have retained and sold the goods on hand at the date of such termination.</p>

<p>Appeals and errors —judgment of Appellate Court will be affirmed where no question of law is presented. A judgment of the Appellate ■Court affirming a judgment for damages for personal injuries will be affirmed by the Supreme Court on appeal, where no questions of law are presented.</p>

W. G. Ewing, Judge, presiding. This is a suit in equity, to declare and establish a trust and for other relief, prosecuted in the Superior Court of Cook county, by Mary E. Coryell, complainant below and appellant here, against George C. Klehm, Esther Klehm, Charles Harms, Matilda Harms, Antonia Harms and George Chambers, defendants below and appellees here. The original bill was filed on March 24, 1886.

<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. William G.' Ewing, Judge, presiding.</p>

<p>1. Appeals and errors — proper judgment of Supreme Court on question as to sufficiency of record. Error of the Appellate Court in its decision that the record was insufficient to present a cause upon its merits in that court, would, upon further appeal to the Supreme Court, call only for a reversal of the Appellate Court’s judgment and the remanding of the cause to that court for further proceedings, and not for a consideration of the case on its merits.</p> <p>2. Same — on incomplete record the Appellate Court may affirm, judgment. The Appellate Court may affirm a decree of the trial court, on hill of interpleader, where the record filed is incomplete, containing, hy agreement of parties, only an abstract of the pleadings and evidence, although, in its discretion, that court might have dismissed the appeal instead of affirming the judgment.</p>

<p>Appeal from the County Court of Peoria county; the Hon. Samuel D. Wead, Judge, presiding.</p>

<p>1. Sales —proposition to sell must be accepted as made. The assent of one to whom a proposition to sell goods is made, to be valid and form a contract, must meet and correspond with the offer, neither falling short of nor going beyond the terms proposed.</p> <p>2. Same — effect of acceptance with modification. Acceptance of a proposition to sell goods with a modification of terms constitutes, in law, a rejection of the proposition' and the substitution in its place of a new proposition, which, to constitute a contract, must be itself accepted by the other party.</p> <p>3. Same — how acceptance of offer may be made. The acceptance of a written proposition to sell goods need not be in writing, but may be made orally, or may be inferred from the conduct of the other party.</p> <p>4. Same — acceptance of offer to sell for cash by offer to pay bills daily. An acceptance of a written offer to sell merchandise stipulating “terms of sale cash,” which acceptance states that the buyer “will pay bills daily,” is not, in view of the latitude allowed to terms requiring cash payment, such a variance of the proposition as will amount to a rejection thereof, but will make a binding contract.</p> <p>5. Same — when part performance will amount to acceptance of proposition. Even if, in such case, the acceptance with agreement to “pay bills daily” were a rejection of the original proposition to sell for cash, delivery by the seller of more than half the quantity of goods purchased would amount to an acceptance of the buyer’s new offer, with the variation of terms of payment.</p> <p>6. Same — no default till seller of goods renders bills. Before a purchaser of merchandise, under a contract whereby bills for goods delivered are to be payable daily, can be placed in default, the seller must render bills of the goods delivered.</p> <p>7. Same — purchaser agreeing to “pay bills daily” has whole day in which to pay. A purchaser who agrees to pay bills daily for goods delivered has the whole of the day upon which the bills are presented to make payment; and the contract cannot be rescinded in the afternoon of any day for failure to pay bills presented that day.</p> <p>8. Same — effect of arrangement for buyer’s customers to pay daily bills. An arrangement by which merchandise purchased is to be delivered to the buyer’s customers and collection made from them is not a departure from the terms of the contract requiring the purchasers to pay bills daily, but merely a means for executing it.</p> <p>9. Trial — where evidence supports a hypothesis it may be submitted in an instruction. An instruction in a suit involving the question of rescission of a contract of sale may properly submit as part of its hypothesis whether an arrangement was made for daily delivery to parties named by the purchaser and presentation of bills to such parties, with collection from them, where there is evidence that such arrangement was made with the seller’s salesman, in the former’s presence, at the time the contract was signed.</p> <p>10. Same — instruction that writings are to be construed together not erroneous. An instruction that writings in question in a suit are to be considered and construed together as parts of one and the same contract is not objectionable, as leaving the construction of the contract formed by such writings to the jury.</p> <p>11. Same — when mixed question of law and fact may be submitted to jury. The court, after instructing as to the circumstances under which a seller of merchandise who has attempted to cancel a contract would have no right so to do, may, in another instruction, submit as part of the hypothesis whether such seller had a right to make such cancellation, the latter being a mixed question of law and fact.</p> <p>12. Appeals and errors — a party cannot complain of errors in his own favor. A seller sued for refusal to fulfill a contract for the sale of lard cannot complain, on appeal, of an instruction making the case hinge upon whether the lard was worth more than nine cents a pound at the time he attempted to cancel the contract, where the real question is whether the price was in excess of the contract price, which was eight cents per pound, the error, if any, being in his favor.</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. Samuel P. McConnell, Judge, presiding.

Writ of Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. The defendant in error the Commercial National Bank of Chicago filed its bill in equity against the plaintiff in error, the Hibernian Banking Association, in the circuit court of Cook county, to remove as a cloud upon the title to a tract of land in that county a certain warranty deed entered of record, made by one Caulfield to said association.

<p>1. Fraud — must be proved. Fraud in never presumed, but must be proved.’</p> <p>2. Evidence — over-valuation by assessor is not, per se, fraud. The mere fact of over-valuation of property in assessing it for taxation will not, of itself, establish fraud on the part of the assessor. Pacific Hotel Co. v. Ideb, 83 Ill. 602, distinguished.</p> <p>3. Taxes — over-valuation by assessor will not be rectified on application for judgment. If an assessor, through a mistake or error of judgment, has assessed property at too high a valuation, his action can not be rectified or reversed on an application for judgment against the property.</p> <p>4. Same — fraudulent over-valuation — effect of review by town and county boards. A tax is not avoided by a fraudulent valuation by the assessor, where the tax-payer petitions the town board of review and secures a reduction in some of the values, and on a further appeal to the county board obtains, after a full hearing, still further reductions.</p> <p>5. Same — levy may refer to and incorporate appropriation ordinance. While an ordinance levying a tax should state in express words the purposes for which appropriations are made and the sum or amount appropriated for each purpose, a reference instead to the appropriation ordinance containing the details making such ordinance part of the levy is a mere informality, not affecting the substantial justice of the tax, and is cured by section 191 of the Revenue law.</p> <p>6. Same — statute prohibition against further appropriations — library fund. The statutory prohibition of further appropriations after the passage of the ordinance containing the annual appropriation bill, in a city, applies to a tax for the library fund, which the city is empowered, but not required, to levy.</p> <p>7. Same — failure of school officers to sign levy of school tax not fatal— amendment. A tax for school purposes is not invalidated by failure of the members of the board of education present at the meeting at which it is voted, to sign the certificate, where they are present at the hearing in the county court, and state that they would have signed it had they known that it was necessary, and the court thereupon permits the certificate to be amended and signed. People v. Smith, 149 Ill. 549, distinguished.</p> <p>8. Sams — power of county comi, to reduce excessive assessment. Under section 191 of the Revenue law the county court has power, in reviewing an assessment on application for judgment, to reduce the rate for school purposes to that allowed by statute.</p>

Thomas G. Windes, Judge, presiding. Samuel Fleischman, for a year or two prior to May 14, 1890, was a cattle buyer at the Union Stock Yards in Chicago. He did an extensive business, chiefly in acting as buyer or agent for butchers and cattle dealers who resided outside the city of Chicago. One of the persons for whom he so acted was Walter Bussell, of Detroit.

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

Samuel P. McConnell, Judge, presiding. This is an action of trespass, begun on April 14, 1891, by appellee against appellant Borrmann, a dry goods merchant, and appellant, Barchard, a constable, for the alleged unlawful taking and carrying away of a stock of goods claimed to be the property of appellee, and entering for that purpose into the store No. 931 West Eighteenth street in Chicago on April 13,1891, where the goods were then located.

<p>1. Appeals and errors — when refusal of peremptory instruction for defendant is not error. Refusal of a peremptory instruction for defendant, in an action for personal injury, is not error, where there is evidence which, with all its inferences, fairly tends to sustain the verdict and judgment.</p> <p>2. Same — credibility of testimony not a question for the Supreme Court. There being evidence to sustain the judgment of the trial court in a personal injury case, its credibility will not be considered by the Supreme Court.</p>

Frank Baker, Judge, presiding. This was an action by appellee, by his next friend, begun in the circuit court of Cook county, against appellant, for injuries alleged to have been received by being struck by one of the freight trains of appellant at the Fifty-third street crossing, in the town of Lake.

Thomas G-. Windes, Judge, presiding. The Chicago Wharfing and Storage Company, appellee herein, was the owner of certain dock property in Chicago, subject to a leasehold interest of Walter Shoemaker & Co., such leasehold beginning May 1, 1887, and ending April 30, 1892. Shoemaker & Co. had placed on the property a'large amount of planking for driveways and sorting platforms, and had erected fences, lumber sheds, and laid foundation timber for piling lumber.

Murray F. Tuley, Judge, presiding; The Kankakee and Pacific Railroad Company, being a corporation originally created by and under the laws of the State of Indiana, with power to locate and operate a road from Plymouth, in the State of Indiana, westerly to the boundary line of the State of Illinois, was consolidated with a company organized under the laws of the State of Illinois, the name of the consolidated company being the Plymouth, Kankakee and Pacific Railroad Company,…

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

<p>1. Appeals and errors — one ground of appellate jurisdiction sufficient — franchiseinvolved. The question whether a freehold is involved on appeal to the Supreme Court in a suit to foreclose a railroad mortgage involving conflicting rights of different railroad companies to the mortgaged property, becomes immaterial where the primary question is whether one of such companies has a legal existence, as the question of franchise confers jurisdiction.</p> <p>2. Corporations — powers of corporations strictly construed. Every power that is not clearly granted to a corporation is withheld, and any ambiguity in the terms of the grant must operate against the corporation and in favor of the public.</p> <p>3. Same — effect of unauthorized attempt to consolidate. The mere fact that corporations of different States attempt to consolidate without a law authorizing consolidation, and assume to act as a consolidated corporation, even in the full belief that they were legally incorporated, will not constitute them a corporation defacto.</p> <p>4. Same — what is a defacto corporation. To create a defacto corporation there must be a law under which such corporation might be lawfully created, together with user under such law.</p> <p>5. Same — limits of rule that defacto corporation cannot be questioned collaterally. The rule forbidding the existence of a defacto corporation to be questioned except by the State and in a direct proceeding, does not apply to a corporation attempted to be formed by the consolidation with corporations of other States of a corporation organized in a State whose statutes confer no such right.</p> <p>6. Railroads — consolidation of railroads not authorized in Illinois in 1882. In 1882 railroad corporations organized under the laws of Illinois had no authority, unless granted by their respective special charters, to consolidate with railroad companies of other States, but the then prevailing legislative and public policy was opposed to such consolidations.</p> <p>7. Same — acts authorizing railroads to consolidate not retrospective. The acts of June 16,1883, (Laws of 1883, p. 124,) and of June 30,1885, (Laws of 1885, p. 229,) relating to the consolidation of Illinois railroad companies with those of other States, are not retrospective.</p> <p>8. Same —contracts by pretended consolidation void. Right of way contracts and a mortgage made by an organization assuming, without warrant of law, to act as a corporation, formed by consolidation of railroad companies, are invalid, for the reason that there is no corporation in existence with capacity to act or be bound.</p> <p>9. Same — contracts imth illegal consolidation not contracts of separate companies. Contracts for a right of way, purporting to be made with a consolidated company which has no legal existence, cannot be sustained as the contracts of one company of such consolidation, where there is nothing to show that they are its contracts.</p> <p>10. Same — issuing bonds to construct railroads in other States. A railroad company in Illinois had in 1882 no power or authority to issue bonds, or authorize any other person or corporation to issue bonds, for the purpose of constructing railroads in other States.</p> <p>11. Pleading — demurrer does not admit conclusions of law. A demurrer to a bill admits only the facts well pleaded, and not the conclusions of law stated by the pleader.</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>1. Public improvements — whether ordinance for special assessment is void, as providing for a double improvement. A city ordinance cannot, as a rule of law, be held void as providing for a double improvement, because it provides for the laying of sewers on a number of different streets.</p> <p>2. Same — ordinance need not state improvement is within city. An ordinance for an improvement need not, in terms, state the improvement is within the city. ¡Stanton v. City of Chicago, 154 Ill. 23, followed.</p> <p>3. Same — several judgments may be rendered in special assessments. Several judgments may be rendered against different properties in a proceeding for a special assessment. Browning v. City of Chicago, 155 Ill. 34, followed.</p> <p>4. Courts— two comity judges holding court at once. Two county judges may hold different branches of a county court at the same time. Pike v. City of Chicago, 155 Ill. 656, followed.</p>

<p>1. Bills and notes — endorsement by stranger before delivery — liability. One who, before delivery, writes his name on the back of a promissory note made payable to the maker’s own order, and below the name of the maker endorsed on the back thereof, is liable upon the note as second endorser, and not as guarantor.</p> <p>2. Same — what is a note “made payable to bearer,” ivithin the statute. Such a note is not a note “made payable to bearer,” within the meaning of section 8 of the chapter on negotiable instruments, (Rev. Stat. 1874, p. 719,) providing that every endorser of an instrument payable to bearer shall be held as guarantor, unless otherwise expressed.</p>

Philip Stein, Judge, presiding. The bill in this case was filed in the Superior Court of Cook county by the village of Riverside, setting up that it is a municipal corporation, and that it is the owner in fee simple, for the public use, of all public parks, grounds, streets and commons in said village, and also of certain other lands described in the bill; that appellee proposes to construct a bridge across the Desplaines river, which bridge, if constructed, will be wholly…

<p>1. Trial — what proof is sufficient to go to a jury. It is not proper to take a case from the jury if there is evidence tending to establish the cause of action.</p> <p>2. Railroads — duty to give warning of approaching train at crossing. A railroad company backing a train across a public street in the dark should give warning to travelers thereon, especially where another train is passing over the same crossing upon another track, at the same time and in the same direction.</p> <p>3. Same — what is a “conspicuous light,” within the meaning of the ordinance of Chicago. An ordinary lantern in the hand of a brakeman on the top of a car does not meet the requirement of an ordinance of Chicago requiring every train backing in the night time to have a “conspicuous light” on the rear car, so as to show in what direction the car is moving.</p> <p>4. Appeals and errors — measure of damages in action at law not open in Supreme Court. The amount of damages sustained by plaintiff in an action at law is a question of fact, which'is not open for consideration in the Supreme Court.</p> <p>5. Same — the Appellate Court may allow a remittitur. The Appellate Court may allow a remittitu/r of damages recovered, and enter judgment for the remainder.* </p>