Volume 158 — Illinois Reports

<p>1. Public improvements—failure to file remanding order in special ■assessment proceeding—second assessment. Failure for two years to file a remanding order reversing a judgment confirming a special assessment does not, under section 84 of the Practice act, constitute an abandonment of the condemnation, but only of the previous assessment; and the right to levy another assessment for the street extension survives without a new ordinance.</p> <p>2. Same —payment of assessment subsequently set aside—re-assessment. The payment of an illegal assessment for a public improvement, which is subsequently set aside on appeal by other owners, will not, under section 46, article 9, of the City and Village act, relieve a land owner from paying the balance of an increased re-assessment, after applying the amount formerly paid.</p> <p>3. Same—competency to act as commissioner—testifying as expert. It does not disqualify one to act as commissioner to make an assessment for a street improvement, as to a particular piece of land, that upon a trial on a former assessment roll for the same improvement he testified as an expert witness as to the effect of the improvement on other property.</p> <p>4. Same—presumed that court appointed competent commissioners. It will be presumed that the court performed its statutory duty to appoint three coinpetent persons as commissioners to make an assessment for the opening of a street.</p> <p>5. Same—presumed that street to be opened is within city. It will be presumed that a street, for the opening of which an ordinance has been passed by a city, is within the city limits.</p> <p>6. Same—separate jury trials are proper in special assessment. There may be separate jury trials, and separate final judgments as to different property owners, upon the same assessment roll for the opening of a street.</p> <p>7. Evidence—competency of assessment roll upon re-assessment. That the asssessment roll for the opening of a street, made upon a reassessment after the original assessment has been declared void, includes a sum as costs in excess of that included as costs in the original assessment, does not render it incompetent evidence under the statute, where it is not suggested that it is too large, or includes, any improper items of costs.</p> <p>8. Same—city may prove subsequent building of bridge connecting with street opened. Upon the trial of issues as to the amount of benefits-from opening a street, evidence of the subsequent building of a bridge by the city, connecting with such street, is competent, where the benefits to the property will largely depend upon the existence of such bridge.</p> <p>9. Appeals and errors—allowing joint appeal—discretion of trial court. It will be presumed, on appeal; that the discretion of the trial court as to allowing a joint appeal to all objectors to an assessment for a street opening was properly exercised.</p> <p>10. Same—who may object to denial of joint appeal. Objectors to art assessment cannot complain that all the other objectors were not allowed to join in their appeal, where they have had a review of the record so far as applicable to their own property.</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. Philip Stein, Judge, presiding.</p>

Dorrance Dibell, Judge, presiding. This was an action on the case, begun in the circuit court of LaSalle county, to recover damages for alleged slanderous words uttered by appellant against and concerning appellee. Both parties to the action are residents of Kane county. Appellant was served with summons while he was temporarily present in Ottawa, in LaSalle county, engaged in the taking of depositions in a chancery cause then pending in the circuit court of Kane county.

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

<p>1. Appeals and errors—appeal from Appellate Court to Supreme Court—construction of section 90 of Practice act. An affirmance by the Appellate Court of a decree winding up an insolvent corporation under section 25 of the Corporation act, except as to certain priorities and the validity of an attempted reduction of capital stock, with leave to amend bill and fix stock liabilities on a different basis, is not appealable to the Supreme Court under section 90 of the Practice act, being neither a simple affirmance, a final decree, nor one which admits no further proceedings.</p> <p>2. Judgments and decrees—what is a final judgment. A judgment or decree is final when it terminates the litigation between the parties on the merits of the case, so that when affirmed by the reviewing court the lower court has nothing to do but execute it.</p> <p>Appeal from Forest Glen Brick and Tile Co. v. Gade, 55 Ill. App. 181, dismissed.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Kendall county; the Hon. Clark W. Upton, Judge, presiding. At the October term, 1892, of the circuit court of Kendall county, a bill was filed by defendant to foreclose a certain mortgage dated December 21, 1889, executed by Albertina Helmuth, and Jacob, her husband, on certain real estate in Yorkville, Illinois, given to secure a note for $2000.

<p>Appeal from the County Court of Adams county; the Hon. Gael B. Epler, Judge, presiding.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding. A bill in chancery, under the Burnt Records act, was filed in this case in December, 1890, by Dyer N. Burnham, alleging that he was the owner of the north-east quarter of section 13, township 42, north, range 12, east of the third principal meridian, in Cook county.

<p>Appeal from the County Court of Rock Island county; the Hon. Lucian Adams, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Criminal 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. Thomas G. Windes, Judge, presiding.</p>

Frank Scales, Judge, presiding. Herman Schaffner & Co., by A. G. Becker, the surviving partner, made an assignment June 8, 1893. Their indebtedness exceeded at that time $2,000,000. Their assets were such that up to the present time a ten per cent dividend has been declared, and the prospects for more than a five per cent additional dividend are exceedingly slight. At the date of the assignment the insolvents were indebted to the Chicago National Bank in the sum of 8100,000.

Theodore Brentano, Judge, presiding. This was an action brought by Elise Burcky, against the town of Lake, to recover damages sustained to a tract of land fronting east 337 feet on State street and south •558 feet on Sixty-first street, in Chicago, caused, as is alleged, by the vacation of a portion of Sixty-first street, joining her land on the south-west.

Writ op Error to the Circuit Court of Rock Island county; the Hon. Arthur A. Smith, Judge, presiding. This is an indictment against plaintiff in error for assault with intent to commit rape upon one Philomena Berkins. The jury, upon the trial of the case, returned a verdict of guilty, and fixed the punishment at one year in the penitentiary. Motions for new trial and in arrest of judgment were overruled, and judgment was rendered upon the verdict.

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

<p>1. Tort feasors—unsatisfied judgment against one does not bar further recovery against another. Recovery against a city for injuries resulting from its negligence in suffering a sidewalk to be put out of repair, whereby plaintiff was thrown against an electric wire and burned, is not barred by an unsatisfied judgment against the electric company for the same injury, on the ground of its negligence in permitting the charged wire to remain across the walk.</p> <p>2. Same—áty and electric company not joint tort feasors in such case. The doctrine of the liability of joint tort feasors has no application to the case of an injury arising from the joint operation of the negligence of a city in not repairing its sidewalk and of an electric company in allowing a charged wire to be down.</p> <p>3. Appeals and errors—when erroneous instruction is harmless. Error in one or more instructions in a series will be treated as harmless unless it can be seen that some injury thereby resulted to the party complaining.</p> <p>4. Same—all instructions must be presented in the abstract. Error in giving instructions will be considered, on appeal, only where all the instructions given are presented by the abstract.</p>

<p>1. Real property—trust deed of settlement with wife—language creating contingent remainder. A deed to trustees, upon settlement with the grantor’s wife, in trust, to pay rents and profits to said wife for life, and at her death to sell the property and divide the proceeds among the children of the marriage, naming none, gives to a son of the marriage only a remainder in the proceeds of the sale of the property, contingent upon his surviving the wife, his mother.</p> <p>2. Same—death of son before contingency on which he is to take happens. Death of such son before his mother, defeats his contingent remainder in the trust property, and his children take no interest either in the land or the proceeds of sale.</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>

Cyrus Epler, Judge, presiding. On December 19, 1892, the county of Menard, which is not under township organization, had an empty treasury, and on said day its board of county commissioners, in regular session convened, adopted the following order: “State of Illinois, 1 Menard County. j “The board of county commissioners of Menard county, State of Illinois, met in regular session December 19, A. D. 1892.

<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>

<p>1. Appeals and errors—error in instructions at former trial not prejudicial. Error in instructions is not prejudicial where the jury failed to find a verdict, and the decree was rendered upon a hearing before the court without a jury.</p> <p>2. Same—when findings of fact of trial court will stand. Findings of the trial court in an equity suit will not be disturbed, on appeal, when sustained by the evidence, and no theory appears upon which the conclusions reached can be dissented from.</p>

<p>Appeal from the Circuit Court of Greene county; the Hon. George W. Herdman, Judge, presiding.</p>

Writ op Error to the Circuit Court of Champaign county; the Hon. Francis M. Wright, Judge, presiding. Plaintiff in error, having recovered a judgment in attachment in the county court of Champaign county against J. M. Roth for $160 and costs of suit, levied upon and caused to be sold six feet off the east side of lot 9 and twenty-two feet off the west side of lot 8, block 6, in the town of Fisher, in Champaign county, itself becoming the purchaser.

<p>1. Practice—iro equity—defendant must be ruled to answer amended bill. Upon amendment of a bill to reform a deed, changing the charge from mistake to fraud, the court cannot proceed to a hearing without ruling the defendant to answer.</p> <p>2. Appeals and errors—-failure to require answer may be assigned for error, on appeal. A defendant is not, in such case, estopped to assert, on appeal, that he should have been required to answer the amended bill, where he objected below to proceeding further and moved to dismiss the bill, especially as a new and distinct issue is presented by the amendment. Miller v. Whittaker, 33 Ill. 386, and Long v. Fox, 100 id. 43, distinguished.</p> <p>3. Judgments and decrees—what amendment of decree cannot be made after term. A decree cannot be amended, after the term, to make it appear that it was rendered on a second amended bill changing the cause of action, instead of upon the original bill, where such amendment is one of substance.</p> <p>4. Variance—proof of fraud does not support allegation of mistake. Proof that parties to a deed, by deception, induced the grantors to sign it, is a fatal variance from a bill alleging a mistake of the scrivener, by which a fee was conveyed, instead of the intended life estate.</p>

<p>1. Bridges—repair of bridge is a public charge. The repairing of a public bridge not chargeable to designated persons, lands, tenements or bodies politic, is, at common law, a public charge.</p> <p>2. Same—proper municipalbodies must repair bridges. Whenever the proper public authorities either construct a bridge upon the line of a public road or accept a bridge built there by others which is used by the public, the county, town or adjoining towns, represented by such authorities, must keep such bridge in repair.</p> <p>3. Same—adjoining towns must repair bridge they construct on town line. Adjoining towns which have built a bridge, by joint agreement, upon a public road over a stream between them, under the Road and Bridge law, (sec. 22,) are bound, by the combined effect of the common law and the statute, to keep such bridge in repair.</p> <p>4. Same—towns jointly liable to repair are bound to rebuild when destroyed. Towns jointly liable to repair a bridge built by them over a stream upon the town line between them, are bound to rebuild such bridge when, after becoming rotten and unsafe, it falls and is washed away by the stream.</p> <p>5. Same—effect of town voluntarily assuming liability as to bridge. Although no town is legally liable, without its assent, to aid in the construction or repair of bridges over streams on town-line roads or across a stream constituting part of its boundary, any town may voluntarily assume such liability by contract, express or implied.</p> <p>6. Mandamus—lies to compel adjoining towns to build bridge. Mandamus will lie, under the statute, in a proper case, at the instance of a private person whose property is traveled over to reach a ford used because of the falling of a bridge on a road between two towns, to compel the commissioners of one of the towns jointly building it to join with those of the other in rebuilding the bridge, where the towns have sufficient funds applicable to the purpose. People v. Comrs. of Highways, 118 Ill. 239, distinguished.</p> <p>7. Same—discretion as to kind of bridge does not defeat right to mandamus. It is no objection to the granting of such mandamus, that the commissioners are invested with discretion as to the kind of bridge to be built, as such discretion, if abused or made to work injustice, may be controlled by mandamus.</p>

William G-. Ewing, Judge, presiding. This was a proceeding in equity to set aside an absolute deed, and have the same declared to be but a mortgage. The circumstances, about which there is no controversy, under which the deed was made, were in part as follows: The claim of Matilda May is, that the quitclaim deed referred to was executed for the purpose of securing Jetta May for the advancement of certain moneys to redeem the premises from a prior foreclosure sale.

<p>1. 'Municipal corporations—grant of power to city over streets is exclusive. A general charter grant of power to a city over streets- and alleys within the city is exclusive.</p> <p>2. Highways—commissioners have no power within city or village. Statutes conferring, in general terms, authority upon commissioners of highways over roads, give no authority that can be exercised within the territorial limits of incorporated cities and villages within the towns for which such commissioners are elected.</p> <p>3. Same—act of highway commissioners within city is void. The action of commissioners of highways in assuming to lay out and open a public road sixty feet wide along a section line, thirty feet in width of which road is within the territorial limits of a city, is null and void, both as to the thirty feet within the city and that without, as they have no power to lay out roads less than forty feet in width.</p> <p>4. Same—highway commissioners cannot open street in city. Commissioners of highways have no power to interfere with the possession by individuals of a strip of land constituting part of a city street.</p> <p>5. Same—road on line of city—power of town commissioners. An order of highway commissioners in a town to vacate that portion of a road “in said town” that lies between designated points, will vacate a road thirty-three feet wide lying outside a section line constituting the boundary of a city, although a street of the same width exists on the other side of the section line within such city.</p> <p>6. Same—vacation by commissioners of road lying partly within city. The action of highway commissioners in vacating a road lying partly within and partly without the corporate limits of a city in their town, is not illegal as to that portion of the road within the town because they have no jurisdiction over the other portion.*</p> <p>*The discontinuance or vacation of a highway by the acts of public authorities is the subject of a very extensive note to Moffitt v. Brainard, (Iowa,) 26 L. R. A. 821.</p> <p>7. Same—vacation of highway—what need not appear in record of vacation. It is not essential, under the statute, to the vacation of a road in a town, that the fact that the required proportion of the land owners in the town were petitioners should appear from the record made in the matter of the vacation.</p> <p>8. Same—what will not invalidate vacation of road. Proceedings to-vacate a road in 1887 were not invalidated by the fact that an individual paid to the town a sum of money and executed and delivered a deed of another road, as such arrangement was expressly authorized by the statute relating to roads and bridges in counties under township organization.</p> <p>9. Dedication—plat to which land owner is not a party is not a dedication. The making by a county surveyor of a plat showing a strip of land as a public highway, to which the owner of the land is not a party, is not a dedication of such strip for the purpose of a street.</p> <p>10. Same—acceptance essential—when work done on road is not an ac■ceptance. If the giving and accepting of deeds describing premises as a certain out-lot in a city are equivalent to offers to dedicate a strip shown upon a plat as a street, acceptance by the city is essential to complete the dedication; and work done on such strip prior to the first of such deeds cannot constitute such acceptance.</p> <p>11. Evidence—presumptions in favor of proceedings as to roads. The presumptions are all in favor of the regularity and validity of the various steps and proceedings that are preliminary to the entry of the order laying out or vacating roads, but they are subject to rebuttal by any person questioning the validity of the proceedings.</p> <p>12. Same—presumption from act of commissioners in laying out road. Proceedings taken by commissioners of highways to lay out a public road over a strip of ground constitute a clear admission and strong evidence against them that there was no public road over such strip at that time.</p>

Dorrance Dibell, Judge, presiding'. This was a petition filed in the county court of Grundy county by Lawrence Boyle, in which he alleged that Joseph'Boyle, a brother of petitioner, died on the 16th day of January, 1894, leaving him surviving petitioner, and Mary Boyle and Kate Houlehan, his only brother and sisters; that he was at the time of his death a single man, without issue, and without father or mother, and of about the age of fifty years; that at the time of his…

<p>1. Continuance—on ground that attorney is attending legislature. A continuance of proceedings for the special taxation of lands for a street improvement, asked upon an affidavit containing all the statutory requirements, upon the ground of the absence of the attorney of the land owners attending upon the General Assembly as a member, should be granted.</p> <p>2. Public improvements—committee’s report must show cost of levying and collectingtax. Failure of the report of a committee appointed under an ordinance for a street improvement to show an estimate of the cost of levying and collecting the special tax imposed, is fatal to the proceedings.</p> <p>3. Same—special tax for street improvement must be uniform. A special tax in proportion to frontage, for a street improvement, must charge each piece of land in the proportion its front bears to that of all the land abutting on the line of improvement, for its share of the entire cost of the improvement.</p>

Writ of Error to the Appellate Court for the First District;-—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Abner Smith, Judge, presiding.

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

Writ of Error to the Circuit Court of Jackson county; the Hon. Joseph P. Eobarts, Judge, presiding. This is an indictment against plaintiff in error and one Anderson for obtaining money from one Simon P. Eudesill by means of the confidence game.

<p>This case is controlled by Levy v. Chicago National Bank, (ante, p. 88,) and the judgments of the Appellate and county courts are reversed and the cause remanded.</p>

Benjamin R. Burroughs, Judge, presiding. This was an action of assumpsit, brought by the Waterloo Milling Company, against H. Kuenster and others, co-partners doing a banking business at Waterloo, Illinois, to recover certain moneys alleged to have been collected and received by the defendants from divers persons for the plaintiff, and as its agent.

Frank Scales, Judge, presiding. This is an application by appellee to the county court of Cook county for a trial before a jury, under section 5 of the Insolvent act, of the question whether he was guilty of fraud, or refusal to surrender his estate, he having been arrested upon a charge of such fraud and refusal under a writ of capias ad satisfaciendum, issued upon affidavit and return of execution under a judgment in favor of appellant, in accordance with the provisions of…

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

<p>1. Appeals and eeeoes—trial by court—written propositions required' to raise questions of law. The submission of written propositions of law in a case tried without a jury is necessary to present, on appeal, any questions except those raised by the admission or exclusion of evidence, or incidentally otherwise, during the trial.</p> <p>2. Same—admission of leading questions—effect on appeal. The permission or exclusion of leading questions, on direct examination, rests largely and necessarily in the sound discretion of the trial court, and its exercise will not be disturbed, on appeal, unless manifestly abused to the detriment of the party complaining.</p> <p>3. Same—when rejection of questions becomes immaterial. Subsequent testimony of witnesses fully covering the matters on which leading-questions to them have been rejected by the court, makes such, rejection immaterial.</p>

George F. Blanks,. Judge, presiding. This is an action of assumpsit, brought by appellant, a real estate broker, against appellees to recover commissions, claimed to have been earned by appellant, as. broker, for the sale of a building, and the ground on which the same stands, known as the “Real Estate Board Building,” situated at the corner of Dearborn and Randolph streets in the city of Chicago, and the equity of redemption in which was owned by appellees.

<p>Writ of Error to the Circuit Court of Effingham county; the Hon. E. D. Youngblood, 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>1. Witnesses—a witness having a conservator may still be competent. Evidence that the mind of a witness is not so far enfeebled as to-prevent an intelligent appreciation of his responsibility as a witness and a fair recollection and understanding of the matters about which he testifies, will sustain the admission of his deposition, although it is proved by court records that a conservator had been previously appointed on the ground that he was of feeble mind, not capable of transacting business, where they do not show the nature- or extent of his mental impairment or that it was permanent.</p> <p>2. Evidence—proof of deed shown to have been destroyed. A deed and' record thereof having been destroyed, the court may receive all such evidence as would-, tend to establish its execution and contents.</p> <p>3. Records—deed of real property left for record is notice to all. A deed-of real property left with a recorder for record takes effect from-that time, under the Recording law, as to subsequent purchasers of the land without notice.*</p> <p>*On the question when an instrument is regarded as recorded,, or who must suffer by the clerk’s failure to record it, the authorities are found in a note to Ritchie v. Griffiths, (Wash.) 12 L. R. A. 384..</p> <p>4. Same—effect of destruction of record of titles by fire. The destruction by fire of the records of land titles has no effect upon the constructive notice given by recording a deed.</p> <p>5. Adverse possession— what is possession of swampy timber lands. Adverse possession of swampy timber land is sufficient when it is-all the possession that could well be had of land of that character, and shown by acts of ownership such as are ordinarily exercised by the proprietors of such lands.</p>

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

<p>1. Justices of the peace—have jurisdiction in suits against administrators. ’ An action against an administrator upon a cause of action against his intestate for damages not exceeding $200, and of a character cognizable by justices under the statute, is within the jurisdiction of a justice of the peace, there being no constitutional or statutory provisions to the contrary.</p> <p>2. Judgment—immaterial direction in justice’s judgment—effect. The fact that a judgment against an administrator directed the payment of the sum recovered, with costs, “as a claim of the seventh class,” does not make the judgment erroneous.</p> <p>3. Executors and administrators—proof of claim by certified copy of judgment. A claim against a deceased person’s estate is established in probate by filing in the probate court a certified copy of a judgment regularly obtained against the personal representative.</p>

Writ of Error to the County Court of Iroquois county; the Hon. M. H. Evans, Judge, presiding. This is a writ of error; issued, from this court for the purpose of reviewing a judgment rendered by the county court of Iroquois county based upon the verdict hereinafter mentioned.

Dorrance Dibell, Judge, presiding. John Hickey, a resident of Chenoa, McLean county, employed Prank S. Allen, residing and doing business at Joliet, Will county, to prepare plans and specifications for a building at Chenoa and to superintend its erection. A difference arose as to the cost of construction, and on the 19th of December, 1889, Hickey began suit against Allen in the circuit court of McLean county.

<p>Appeal from the Circuit Court of Jersey county; the Hon. George W. Herdman, Judge, presiding.</p> <p>This was an action of ejectment, brought by Amanda L. Hamilton, against the St. Louis, Alton and Springfield Railroad Company and Joseph Dickson, receiver of the railroad company, to recover a strip of land fifty feet wide running across the fractional west half of the northwest quarter of section 14,township 6, range 12, in Jersey county, Illinois, being the right of way of the defendant the St. Louis, Alton and Springfield Railroad Company.</p> <p>The defendant Joseph Dickson, receiver, filed a general and special demurrer to the declaration, alleging as special causes of demurrer, first, that there is no allegation in the said declaration that the plaintiff, prior to the commencement of the suit, obtained leave of the court which appointed said Dickson receiver of the St. Louis, Alton and Springfield Railroad Company, to institute this suit in this court; and second, that the parties defendant are improperly joined in this suit. The court overruled this demurrer, and the receiver abided by his demurrer and did not answer further, and upon the final hearing a default and judgment were entered against him.</p> <p>The defendant the St. Louis, Alton and Springfield Railroad Company pléaded, first, not guilty; and second, that it was not in possession of the land described in the declaration, and that no demand had been made upon it for possession thereof prior to the commencement of this suit, and this plea was verified by affidavit. To this plea the plaintiff filed a replication, traversing both of the allegations of the plea as to possession at the time of commencement of suit and of demand prior to the commencement of suit, concluding to the country.</p> <p>By agreement a trial was had before the court, resulting in a judgment against both defendants, to reverse which they appealed. Amanda L. Hamilton died, and Chas. W. Hamilton, her heir, was substituted as plaintiff.</p>

<p>Writ op Error to the Circuit Court of Jackson county; the Hon. O. A. Harker, Judge, presiding.</p>

<p>1. Ple adin G-—-failure of declaration to allege due care by plaintiff—effect of verdict. A declaration in an action for negligence which fails to allege expressly that plaintiff was in the exercise of due care, although it alleges that fact argumentatively, may be held sufficient on motion in arrest of judgment or on error, since the defect is cured by verdict.</p> <p>2. Same—how defect in declaration may be reached. A defect in a declaration cannot be reached by a request for a peremptory instruction to find for the defendant.</p> <p>3. Trial—wtoi will defeat a request for peremptory instruction. Any evidence tending to charge defendant’s servants with negligence is sufficient, in an action for negligence, to defeat a request for a peremptory instruction in defendant’s favor, even if there is evidence the other way.</p> <p>4. Same—when a defective instruction is not bad. An instruction which, by hypercritical construction, may be held to assume a fact, is not bad if the jury would be likely to understand it as submitting the whole matter to them, to be found from the evidence.</p> <p>5. Appeals and errors—when assumption of fact by instruction is not error. An assumption of a fact by an instruction is not error if the fact assumed was proved without material contradiction.</p>

<p>1. Wills—what language will create a fee in lands. A devise of lands to two daughters, naming them, “to be equally divided, share and share alike, and to their lawful heirs,” under the rule in Shelly’s case creates a fee.</p> <p>2. Same—subsequent limiting and repugnant words after devise of fee. The subsequent direction in the will that “in the event of their (the daughters) death without issue” the executors should sell, etc., “but in case of the death of either without issue” the survivor should take the portion of the deceased, being repugnant to the prior devise of a fee, does not limit the same to a life estate.</p> <p>3. Same—sense in which word “heirs” is employed, may control. To defeat a fee devised by such language in a preceding clause of a will, the word “heirs” must appear to have been employed in a sense other than its strict legal sense.</p> <p>4. Same—fee once devised cannot be limited—even intention may not control. If the technical words used in a devise create a fee, the intention of the testator to limit the estate to one for life, evinced by subsequent language, will be defeated.</p> <p>5. Same—words must be given their legal sense—repugnancy. Words of a will must be given their legal effect, though subsequent words are inconsistent therewith, unless such subsequent words make it clear that the former ones were not used in their legal sense.</p>

<p>1. Evidence—to establish a defacto corporation. The introduction of the charter of a corporation, coupled with proof of the exercise under it of the franchises and powers thereby granted, is sufficient to establish the existence of such corporation defacto.</p> <p>2. Same—burden of proof as to constitutional requirement. Affirmative proof that a corporation was organized and in operation, as required by the constitution of 18*70, within ten days after that took effect, (art. 11, sec. 2,) is not necessary to establish, prima facie, the existence of the corporation defacto, where the existence of a charter and user thereunder are proven.</p> <p>3. Condemnation—not allowed unless there is a change in the use. To authorize a petitioner to condemn real estate there must be a change in the use of the property—not a mere change of ownership.</p> <p>4. Appeals and errors—how far jury's verdict is binding. A verdict will not be interfered with, on appeal, if there is evidence to sustain it, unless the court can see, from the entire record, that the jury have misconstrued the evidence or have been actuated by passion or prejudice.</p>

<p>The questions considered in Vogel v. Pekoc, 157 Ill. 339, are identical with those in this case, and that decision must control here.</p>

<p>1. Appeals and errors—when finding of jury and appellate court is conclusive. The finding of the jury and the appellate court that one for whose death action is brought against a railroad company was struck by the train on a public crossing, and not on the company’s private grounds, is conclusive, on appeal.</p> <p>2. Trial—when verdict may be directed for the defendant. It is only when the evidence, with all the inferences that could justifiably be drawn from it, is so insufficient that a verdict for plaintiff, if returned, should be set aside, that the court may dire.ct a verdict for defendant.</p> <p>3. Same—instruction concerning ivillful injury—declaration—variance. Where the declaration is for a negligent killing at a certain named public crossing, instructions that if deceased, when struck, was a trespasser at a place other than the crossing the railroad company would only be liable for a willful or wanton injury, are not applicable and are properly refused, since a killing elsewhere than at the crossing could not, in any event, be recovered, for.</p> <p>4. Same—instruction by court confining recovery to case stated. In such case an instruction, given by the court upon its own motion, that plaintiff could not recover, under the allegations of the declaration, for a killing elsewhere than upon the crossing, embodies the law of the case, and is proper.</p>

Richard W. Clifford, Judge, presiding. This was an action for damages for personal injuries sustained by appellee while employed in. appellant’s factory at Maywood. At the time of his employment and at the date of his injury, in September, 1888, he was not eleven years of age.

<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.</p>

Samuel P. McConnell, Judge, presiding. Early in 1893 the James H. Walker Company, a corporation organized in 1892, was engaged in the… Held: and on motion of Willits, (who had been a director until then,) representing Howard’s interest, the following resolution was adopted: “Whereas, efforts are being made, in New York and elsewhere, to raise money to help this company out of its existing difficulties; and whereas, certain of the creditors are becoming importunate and…

<p>1. Brokers—withdrawal of offer before acceptance—effect on broker’s right to compensation. The withdrawal of an offer for the exchange of real property before it is accepted by the other party, defeats a broker’s right to compensation under a mere promise, without consideration, to pay him for effecting the exchange, although he had procured the other party to sign his name to the offer which was made to him, and the latter was in fact willing and able to perform the proposed agreement on his part.</p> <p>2. Same— acting as agent of both parties—effect on right to commissions. A real estate agent acting as the agent of both parties to an exchange of property, with a promise of a commission from each of them, cannot recover a commission from one of them who did not know of and consent to his agency for the other party. *</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 Book-Walter, Judge, presiding.</p>

George F. Blanks, Judge, presiding. Appellee instituted his action of assumpsit, against appellant, on a building contract, filing the common counts only. Subsequently, and before trial, he filed a special count.

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

<p>Appeal from the County Court of Jefferson county; the Hon. William T. Pace, Judge, presiding.</p>

<p>1. Cemeteries—cemetery property not necessarily of a trust character. There is nothing in the nature or objects of a cemetery association which necessarily impresses upon its property or revenues a trust character.</p> <p>2. Same —effect of charter provision that association shall hold lands in trust. A provision in the special charter of a cemetery association that it shall hold the lands to be purchased “in trust, for the purpose of interment and a repository for the dead forever,” does not impress a trust character upon the revenues derived by the association from the sale of burial lots, concerning which a different charter provision is made.</p> <p>3. Same—charter duty to keep grounds in order and repair. A provision in such charter that the cemetery association shall, out of the proceeds of sales of lots, “keep the grounds in repair and in good order,” does not charge the association with the duty of caring for and keeping in repair lots which have been sold to individuals for burial purposes.</p> <p>4. Same—surplus revenues from sale of lots belong to members of the association. Under such charter, after suitable provision is made out of the proceeds of sales for keeping the grounds in good order and repair, the surplus belongs to the members of the association, and may be lawfully divided among them.</p> <p>5. Same—when bill to administer cemetery property as a trust will be dismissed. A bill framed upon the theory that such an association is a charitable trust, the lot owners being the beneficiaries, and seeking to prevent the devotion of any part of the association’s revenues to the private use of members, which calls upon the court to virtually take and administer the cemetery as a trust, and which does not show the association has failed to keep the grounds, excepting lots sold for burial purposes, in good order, is properly dismissed for want of equity.</p>

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

Abner Smith, Judge, presiding. On December 19, 1892, the lease in question was executed between Nicholas Y. Boddie, appellee, by Boddie Bros., his agents, and Nic. Raquet, the rental of which was guaranteed by appellants, Barrett & Barrett, the premises leased being the first or main floor of the building known as No. 46 Lake street, Chicago.

<p>1. Wills—effect of recital in will as to advancement. A recital in a will that the testator has conveyed certain lands to his daughter as an advancement, will not entitle her to the property, in the absence of any devise in the will, where she had reconveyed the land to him before his death.</p> <p>2. Witnesses'—competency of party to testify as against the heirs. A party to a suit cannot testify in his own behalf to transactions with a deceased person, against the heirs of the latter.</p> <p>3. Same—husband of incompetent witness cannot testify. The husband of a woman who is incompetent to testify against heirs is also incompetent.</p> <p>4. Trusts—when declarations of a testator and recital in his will do not create a trust. Testimony that a testator spoke of certain land as his daughter’s, and said she would have it at his death, together with a recital in his will that he had conveyed it to her, will not establish a trust in her favor, where she reconveyed to him during his life and the will omitted to devise it to her.</p>

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. S. P. McConnell, Judge, presiding.

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

<p>The decision in the case of Vogel v. Pekoc, 151 Ill. 339, must govern this, the questions involved in the two cases being similar.</p>

W. G. Ewing, Judge, presiding. On April 9, 1894, Charles F. Jacobs exhibited his bill in the Superior Court of Cook county, against Henry Harms, Edward J. Harms, Emil Harms, Henry Harms, Jr., Edward Lockhurst and Philip Brazel, for the purpose of restraining Henry Harms and the other defendants, his agents, from interfering with the possession of the property in the bill mentioned and described, and from removing complainant from or preventing him from rebuilding thereon,…

Writ op Error to the Superior Court of Cook county; the Hon. W. G. Ewing, Judge, presiding. This is a writ of error to the Superior Court of Cook county, to reverse a decree confirming title in defendant in error to lot 23, block 8, school section addition to Chicago, under the Burnt Records act. A demurrer being sustained to the original petition, an amended one was filed, which the defendants answered,- and the petitioner replied.

<p>1. Counties—contract of county in violation of statute absolutely void. A contract by a county which is in violation of a statute is not merely ultra vires, but absolutely illegal and void, so that it cannot become binding by an equitable estoppel.</p> <p>2. Estopped—never grows out of doing of illegal act. An equitable estoppel can never arise or grow out of the doing of an illegal act or an act prohibited by law.</p> <p>3. Injunction—limits of power of equity to restrain a suit at law. Equity cannot grant an injunction against a suit at law on any ground which would constitute a valid defense to the action at law.</p>

Thomas G-. Windes, Judge, presiding. _ This cause is brought to this court by appeal, on a certificate of importance from the Appellate Court for the First District. On and for some time prior to June 3, 1893, there was in the city of Chicago an association known as the “Chicago Clearing House.” The membership of that association comprised certain of the Chicago banks, and its purpose was to facilitate the daily settlement between those banks.

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

<p>Appeal from the Circuit Court of Moultrie county; the Hon. Edward P. Vail, Judge, presiding.</p>

OSCAR P. Bonnet, Judge, presiding. The appellee, a mutual benefit association organized under the laws of the State of Iowa, with its principal office at Council Bluffs, Iowa, on the 27th day of October, 1890, issued two certificates of membership on the application of G. H. Van Frank, which were payable, in case of his death during the continuance of the contract evidenced by each certificate, to Carrie C. Van Frank and children, and in case of death of any of the…

<p>1. Witnesses—incompetency of defendants as against those suing as heirs. Defendants who seek to disprove the title of a deceased person whose heirs are asserting such title as complainants in a bill for partition, are not competent witnesses.</p> <p>2. Deeds—what is delivery of a deed—intention controls. The mere placing of a deed in the hands of one of the grantor’s three children, who were named as grantees therein, is not a delivery of the deed, unless it appears the grantor intended the deed to pass title at the time and that he should lose control over it.</p> <p>3. Same—when deed must take effect. A deed for an interest in land must take effect upon its execution and delivery, or not at all.</p> <p>4. Same—acts held to rebut intention to deliver deed. Merely making, acknowledging and handing to one of the grantor’s three children, who were named as grantees therein, a deed of land, with direction to keep it, and if the grantor never called for it to put it on record at his death, is not a delivery of the deed, where, with the knowledge and acquiescence of the grantees, the grantor afterwards paid taxes and made repairs on the property, collected and used all rents, mortgaged it, and once advertised it for sale.</p> <p>5. Same—withdrawal of deed after manual delivery. Mortgaging the land and offering it for sale, with other like acts of ownership, constitute a withdrawal of a deed placed in the hands of one of the grantees without an intention that it shall presently take effect.</p> <p>6. Same—void if not to take effect until death of grantor. A deed of land which is not to take effect until the death of the grantor is void, as being an attempt to make testamentary disposition of property without complying with the Statute of Wills.</p>

<p>1. Appeals and errors—presumptions, where evidence is not pre~ served on appeal. It will be presumed, on appeal, where the record does not show what evidence was introduced, that the court heard evidence sufficient to cover a variance of an improvement from the ordinance or supposed defects in the specification of the grade.</p> <p>2. Same—two judgments for one special assessment on same property. The entry, at the same term, of two judgments of confirmation of an assessment on the same property will not reverse on appeal, as they will be treated,, as one judgment.</p> <p>3. Public improvements—commissioners may estimate matters not named in ordinance. In estimating the cost of an improvement the commissioners may include matters not specifically mentioned in the ordinance therefor, if regarded as a necessary part of the improvement.</p> <p>4. Same—default judgment does not bar other judgments on same assessment. A default judgment for assessments -may be followed at a later term of court by a judgment on the same assessment roll against other property on behalf of which objections were made, under section 30, article 9, of the City and Village act, providing for trial of objections and defaults where objections are not filed. Guild v. City of Chicago, 82 Ill. 472, Fagan v. City of Chicago, 84 id. 227, and People ex rel. v. Gary, 105 id. 332, distinguished.</p> <p>5. Same—recital in ordinance of repealed statute not fatal. That part of an ordinance for a special assessment which recites for its authority certain statutes which have been repealed, may be rejected as surplusage, and the ordinance sustained as having been passed in pursuance of any enabling statute in force.</p> <p>6. Same—failure of ordinance to properly apportion assessments—effect. Failure of an ordinance for a special assessment to make the first installment include all fractional amounts, leaving the remaining installments equal in amount and multiples of $100, as required by the laws of 1893, (p. 18,) does not render the assessment void, and the objection will not be heard for the first time on appeal.</p>

Writ op Error to the Circuit Court of Johnson county; the Hon. Alonzo K. Vickers, Judge, presiding. Plaintiffs in error were indicted at the March term, 1894, of the Johnson county circuit court for an assault to kill and murder one Robert Kelly. The indictment was in the usual form. The jury found them guilty, and fixed their punishment at imprisonment in the penitentiary each for a term of seven years.

<p>Writ of Error to the County Court of Jefferson county; the Hon. John L. Cooper, Judge, presiding.</p>

Francis M. Wright, Judge, presiding. This was a bill in equity, brought by P. M. Arthur and others, grand officers of the Grand International Brotherhood of Locomotive Engineers, against John H. Guilfoil.

<p>Appeal from the County Court of Christian county; the Hon. Lyman G. Grundy, Judge, presiding.</p>

George W. Wall, Judge, presiding. This is an action on the case, brought originally by the father, as administrator of his deceased child, who was run over and killed by a train on appellant’s road when about twenty-one months old. At a subsequent trial of the case the declaration was amended by making appellee, administratrix of the deceased child, plaintiff instead of her husband.

Henry B. Willis, Judge, presiding. Appellants filed their bill in equity in the circuit court of DeKalb county, at the October term, 1888, to set aside two certain deeds and for partition of the real… Held: under the law, incapable of taking or holding title to any real estate whatever.” This paragraph was demurred to and the demurrer sustained, leaving the cause to go to a hearing on the rest of the bill.

Samuel P. McConnell, Judge, presiding. The appellant filed in the circuit court of Cook county his bill in chancery, to which a demurrer was sustained and the bill dismissed for want of equity in that court, which, on writ of error, was affirmed by the Appellate Court.

<p>The questions involved in this case are the same as those in Barrett v. Boddie, {ante, p. 479,) and the reasoning in that case is applicable here.</p>

<p>1. Elections—construction of Ballot law of 1891—two straight marks through circle and squares not sufficient. A ballot marked with two lead pencil lines, commencing in the circle preceding the party title and running through it and each of the squares opposite names of candidates, but without anything like a cross in the circle or in the squares, does not substantially comply with the Ballot law.</p> <p>2. Same—effect of cross to right of candidate’s name. A cross to the right of the name of a candidate, between such name and the square opposite the name of an opposing candidate, does not sufficiently show the intention of the voter to permit the ballot to be counted for either candidate.</p> <p>3. Same—effect of erasing all names on one ticket. A ballot marked only by pencil erasures of all the names on one ticket cannot be counted.</p> <p>4. Same—w/iai care of ballots is sufficient. Keeping ballots in an unlocked bureau drawer at the town clerk’s house after they had been strung and sealed up as required by statute, it appearing the seal had not been broken and that the ballots had not been tampered with, does not prevent them from being the best evidence of the result of the election, as against the return of the judges of election.</p>

<p>Appeal from the County Court of Cook county; the-Hon. George W. Brown, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Jackson county; the Hon. O. A. Harker, Judge, presiding.</p>