Volume 160 — Illinois Reports

<p>Writ op Error to the Circuit Court of Ogle county; the Hon. James Shaw, Judge, presiding.</p>

<p>1. Public improvements—ordinance need not state improvement is within city. Failure of an ordinance for a street improvement to expressly state that the street at the place of the proposed improvement is within the city, is not fatal, as this will be presumed.</p> <p>2. Same—-failure to specify the section of land is not fatal. Uncertainty in the specification of the section of land in which a proposed improvement is to be made is immaterial, if the ordinance itself in other ways sufficiently specifies the locality.</p> <p>E. Evidence—what competent by city in special assessment. Evidence in contradiction of the evidence offered by an objector to the confirmation of a special assessment may be allowed, even if it is not strictly evidence in rebuttal, but is cumulative to the prima facie case made by the city in the first instance.</p> <p>4. Same—number of witnesses does not determine weight. The number of witnesses testifying on either side of a disputed question does not necessarily determine the weight of evidence.</p> <p>5. Appeals and errors—probative force of commissioners’ report considered on appeal. The probative force of the report of commissioners to make an assessment, and also of the actual view of the premises taken by the court under agreement of the parties, should be considered in determining the sufficiency of the evidence to sustain the assessment.</p>

Frank Adams, Judge, presiding. This is an action of debt begun by appellant against appellee. A demurrer was filed to the declaration; the circuit court sustained the demurrer; the plaintiff elected to stand by his declaration; and judgment was rendered against him for the costs. Upon appeal to the Appellate Court the judgment of the circuit court was affirmed; and the present appeal is prosecuted from such judgment of affirmance rendered by the Appellate Court.

Thomas G. Windes, Judge, presiding. This is an action, brought by appellee against the appellant company to recover damages for a personal injury. Verdict and judgment in the trial court were in favor of the plaintiff, and the judgment has been affirmed by the Appellate Court whence the case is brought here by appeal.

Thomas M. Shaw, Judge, presiding. The original bill in chancery herein was filed on December 10, 1891, in the Peoria county circuit court, by Lydia Bradley, the appellee, for the purpose of compelling the conveyance to her of an undivided one-eighth interest of lot 29, range 2, Moss’ addition to the city of Peoria. She claimed in her bill to be the equitable assignee of a bond for a deed to the whole of said lot.

<p>Appeal from the Circuit Court of Cook county; the Hon. Samuel P. McConnell, Judge, presiding.</p>

<p>1. Limitations—quo warranto not within the statute. A quo warranto proceeding to oust a person wrongfully acting as police magistrate is not within a statute of limitations applicable to ordinary civil actions, since it is a matter of public concern, and the maxim nullum tempus occurrit regí applies.</p> <p>2. Pleading—what is not admitted by a demurrer. A demurrer does not admit conclusions of law stated by the pleader, nór the construction placed by him upon statutes.</p> <p>3. Estoppel—to question election of officer—what is not. Street-corner prophecies of success and promises of assistance, made by an officer to a candidate for election to the same office, cannot have the effect of an estoppel against denying that any election was authorized by law,—at least when it does not appear that any reliance was placed upon them. Soucy v. People, 113 Ill. 109, People v. Waite, 70 id. 25, and People v. Moore, 73 id. 132, distinguished.</p> <p>4. Same—recognizing defacto officer not an estoppel. A police magistrate who recognizes another as a defacto magistrate does not thereby estop the People, upon his relation, from contesting the right of such defacto magistrate to his office.</p>

Henry B. Willis, Judge, presiding. This is an action of assumpsit brought by appellee against appellant. The declaration consists of the common counts only. The bill of particulars is an account for coal aggregating $19,739.97 at the price per ton named in the contract hereinafter set forth, upon which amount are credited payments and freight credits aggregating' $10,485.61, leaving balance, claimed tobe due, of $9254.36.

John Barton Payne, Judge, presiding. In these cases there is a stipulation, in pursuance of which the two causes were heard together in the trial court before the judge without a jury, and one bill of exceptions filed in one of the causes was considered as filed in the other.

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

<p>1. Guaranty—when no new consideration is necessary to support. A guaranty indorsed upon a promissory note before its delivery to the payee needs no new consideration to support it.</p> <p>2. Same—of “collection” of note—what liability attaches. Parties other than the payees of a note, who, by contract signed by them on the back thereof before its delivery, “guarantee the collection” of such note, undertake to pay the debt only in the event that the holder, by diligent use of the ordinary legal means, is unable to collect it from the maker.</p> <p>3. Appeals and errors—failure to preserve question of law by proposition. The Supreme Court, upon appeal from a judgment of the Appellate Court affirming that of the court below rendered on a trial without a jury, cannot consider whether due diligence was used to fasten liability upon the guarantor of a note, where n'o proposition was submitted preserving that question as one of law.</p>

Murray F. Tuley, Judge, presiding. This is a bill filed on February 26, 1890, by Cornelia Peeples, a minor, by her next friend, against Thomas R. Reid of Gallatin county, Illinois, administrator of the estate of George H. Potter, deceased, who died intestate on September 30, 1889, and who, in his lifetime, was a trustee under the agreements hereinafter set forth; John F. McCartney of Massac county, appointed on October 31, 1889, as successor in trust to said Potter; the…

<p>1. Evidence—as to title wider which one hotels possession of premises— burden. Evidence that defendant in a suit to enjoin the closing of an alley is in possession of the premises, with deeds to him from a common source of title with the plaintiff, imposes upon him the burden of showing that his possession is not under the title evidenced by such deeds.</p> <p>2. Deeds—when plat becomes part of description in deed. A plat referred to in the description of a deed becomes, with all the particulars shown in it, a part of such description.</p> <p>3. Easements—in an alley—when created by pln.t. An easement is created for the benefit of all the abutting lots by a plat referred</p> <p>to in deeds of such lots made by the owners of the tract, as part of the description, where a strip of land is indicated by dotted lines, with the words “reserved for private alley,” so as to form a connection between the street and an alley otherwise inaccessible, although the solid lot lines pass unbroken through the dotted lines that indicate such private alley.</p> <p>4 Same—acceptance of private alley as per plat not necessary. An acceptance of a plat and a private alley shown thereon is not necessary to create an easement over such alley in favor of the owner of a lot designated upon such plat as abutting thereon.</p> <p>5. Estoppel—grantor estopped by plat refen-ed to in his deed. An owner of land who recognizes a plat made by a third person, and conveys lots according to the description therein, as abutting upon grounds designated in the plat as a private alley, is estopped, with his grantee, to deny the easement over such alley in favor of the owners of such lots.</p> <p>6. Appeals and errors—objection that remedy is at law must be made below. The objection that there is an ample remedy at law cannot be first raised on appeal, in a suit to enjoin the obstruction of an alley over which the complainant claims an easement, where the defendant answers and goes to a hearing upon the merits:</p> <p>7. Injunction—against obstructing alley—what is ground for. It is not necessary, to justify an injunction against the obstruction of a private alley, that the easement claimed by the complainant is absolutely necessary for the enjoyment of his estate, but it is sufficient if it is highly convenient and beneficial therefor.</p> <p>8. Same—lies where there is no adequate remedy at law. An injunction will lie on the ground that there is no adequate remedy at law to prevent the erection of gates across a private alley, at the suit of an abutting owner having an easement over such alley.</p>

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

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

<p>1. Appeals and errors—Supreme Court cannot add to the record. An affidavit used upon a motion cannot be made a part of the transcript of the. record by an order of the Supreme Court.</p> <p>2. Same—transcript must be certified by clerk wider seal. A tran-</p> <p>script of the record must be made by the clerk of the court below, properly certified under his seal of office. «</p> <p>3. Same—harmless error will not reverse. Harmless error can never be made the ground for reversing a decree or judgment.</p> <p>4. Same—facts which render errors harmless. Error in ordering a sale of property in a suit to declare a trust therein is not ground for reversal as to the trustee, where, by his answer, he offers to convey the property upon being protected and paid his charges, nor as to his assignee, who voluntarily offered to buy less than the whole property for the whole amount of the decree, and did so, and the record shows that the trustee has been paid in full.</p>

Samuel P. McConnell, Judge, presiding. On the 25th day of September, 1885, appellant, Margaret A. Humble, instituted a suit in equity in the circuit court of Cook county.

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

Richard S. Tuthill, Judge, presiding. Appellees had, for a number of years prior to the happening of the circumstances giving rise to this case, conducted business at the stock yards in Chicago under the firm name of W. W. Shearer & Co. For some time prior to April 22, 1889, said firm had dealings with one J. C. Stubblefield, who was engaged in buying stock in Kansas, Missouri and Texas, and who, fr.om time to time, applied to Shearer & Co. for advances of money, which they…

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

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

<p>1. Taxes—levied in wrong town by mistake—bright of town to recover. A school district cannot, if it can recover at all, recover from another district, which has collected taxes upon lands within the former through a mistake of the clerk as to the location of the lands, a greater sum than it has levied and would have collected had there been no mistake.</p> <p>2. Same—/aci that rate of tax is made higher does not control. A school district which has collected its full tax levy cannot recover from another district taxes collected by it upon lands within the former through a mistake of the clerk as to the location of the lands, although the rate per cent of the tax as extended in the former was thereby made greater than it otherwise would have been.</p> <p>3. Same—•school district not a trustee for excessive taxes collected. A school district does not become a trustee for one tax-payer of an excessive amount collected from another.</p> <p>4. Same—voluntary payment of school tax to wrong district not recoverable. Tax-payers in one school district who voluntarily pay a tax levied by mistake upon their lands, to another district, cannot recover back the same, where the books were kept open and means-of knowledge of all the facts existed, although they supposed they were paying the tax of the district in which their lands lay.</p>

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

<p>1. Estoppel—what will estop association to deny its corporate existence. An association whose name implies a corporate body, and which, has authenticated its acts by a common seal and exercised corporate powers, is estopped to deny its corporate existence.</p> <p>2. Parties—unincorporated society—all members need not be made parties. It is not necessary, in equity, to make parties to a suit against a voluntary association, all its members scattered throughout the United States and Canada, but service upon á part, acting for other members as well as themselves, is sufficient.</p> <p>3. Service—of process upon unincorporated society—how made. Service upon the secretary of an association composed of many members scattered throughout the United States and Canada, is sufficient to give jurisdiction of a suit in equity against the association.</p> <p>4. Judgment—collateral attach upon, under creditor's bill—when not permitted. The judgment in the original suit cannot be attacked under a creditor’s bill to enforce it, on the ground that the declaration was not filed within ten days before the first day of the second term at which the judgment was rendered on default.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.</p>

<p>Writ of Error to the Probate Court of Cook county; the Hon. C. C. Kohlsaat, Judge, presiding.</p>

George F. Blanke, Judge, presiding. This was an action on the case, by appellee, against appellant, to recover damages for personal injuries received by him while attempting to board an electric street car. The facts sufficiently appear in the opinion. A jury in the trial court returned a verdict of §8000 for plaintiff, on which judgment was rendered, and on appeal to the Appellate Court it was affirmed.

<p>1. Trial—setting aside verdict, in equity, as to sanity. The court in an equity suit in which the issue of sanity is sent to a jury may set aside the verdict, although it is not so manifestly contrary to the evidence as to raise a presumption of fraud or partisanship, as the presumption, before inquest found, is in favor of sanity.</p> <p>2. Same—verdict on issues out of chancery—how far it is binding. A verdict on issues out of chancery, not required by statute to be submitted to a jury, may be disregarded and the issue found by the chancellor as in his judgment the weight of the evidence may justify, although the verdict is not so clearly against the weight of the evidence as would be cause for new trial in an action at law.</p> <p>3. Beal property—when subsequent deed to innocent purchaser will convey title. A deed taken without notice of a prior deed, followed by possession before such prior deed is recorded, will give title as against such prior deed, although it is subsequently recorded.</p> <p>4. Powers—power to sell carries power to convey. Ordinarily, and when there are no limitations to the contrary, the power to sell carries with it the power to convey the title to the thing sold, in the usual and lawful manner.</p> <p>5. Mortgages—when mortgagee’s administrator may execute power of sale. The administrator of a mortgagee may execute a power of sale given to the mortgagee, “his legal representatives or attorneys or assigns,” although the mortgage further provides that the mortgagee, “his heirs, executors, administrators or assigns, or his attorney in fact,” may convey the premises.</p> <p>6. Same—when foreign administrator may execute power of sale in mortgage. A power of Sale in a mortgage to a non-resident of'the State in which the mortgaged premises are situated may be exercised by the administrator appointed in the State of his residence, as th!e legal title to the mortgage vests in such administrator, and the power is not one dependent upon the laws of either State relating to ádministration.</p> <p>1. Same—recitals in mortgage estop mortgagor. A mortgagor is estopped by the terms of the mortgage from asserting that the money secured.thereby belonged to a person other than the mortgagee, by whom the loan is stated to have been made, or to contest the beneficial interest of the mortgagee or his estate.</p> <p>8. Same—sale under power after bill filed to redeem. A sale is properly made under a power in a mortgage, which power, by its terms, continues as long as any part of the mortgage debt remains unpaid, notwithstanding the pendency, undetermined, of a bill for an account and redemption, where it is admitted in such bill that a certain sum was due but the sum is not paid or actually tendered.</p>

<p>1. Attorneys at law—duty of, to counsel client against wasting his estate. It is the duty of an attorney at law, acting as a client’s general legal adviser, to counsel such client against the reckless disposition of his estate.</p> <p>2. Same—cannot avail of client's reckless disposition to waste property. An attorney, acting as general counsel and adviser, cannot avail himself of his client’s inclination to waste his estate, by receiving conveyances of his propert3' for an inadequate consideration.</p> <p>3. Same—must establish fairness, equity and adequacy of consideration. Deeds given by a client disposed to waste his estate to prevent his heirs receiving it, to his attorney, will be set aside unless such attorney establishes fairness, adequacy and equity in the conveyance.</p> <p>4. Limitations—when client's deed to attorney is not color of title. A deed made by an aged client to his attorney, for an inadequate consideration, is not such color of title made in good faith that possession thereunder and payment of taxes for seven years will give title by adverse possession.</p> <p>5. Same—when statutory limitation, and not mere laches, applies. The doctrine of laches during a period less than that fixed by the Statute of Limitations will not be applied to prevent relief against the abuse of the relation of trust and confidence arising between attorney and client, unless the defendant will be injured through the delay by granting the relief.</p>

<p>1. Appeals and errors—verdict in condemnation—how far fin%l on appeal. A verdict determining the market value of land condemned upon the basis that some of it is underlaid by merchantable limestone, rendered upon conflicting evidence and the personal examination of the jury, will not be disturbed on appeal, although the court might, as an original proposition, have reached a different conclusion.</p> <p>2. Same—when admission of incompetent evidence will notreverse. The admission of incompetent evidence as to the value of land condemned is not cause for reversal where the jury were properly instructed, and it cannot be inferred that the compensation fixed was affected by such evidence.</p> <p>3. Evidence—in condemnation■—value of stone quarry—basis of witness’ opinion. Although evidence of profits which could be realized by operating the quarries upon land condemned is inadmissible to show its value, the witness who gives his opinion as to the value of such land may state such profits as the ground upon which he bases his opinion.</p> <p>4. Same—revocable license to cross highway with track is incompetent. A record showing permission of highway commissioners to maintain a switch track from land condemned, across a public highway, is incompetent upon the question of the value of such land, as such authority is, at most, a mere revocable license.</p> <p>5. Same—accessibility of stone quarry as affecting value, in condemnation. An owner whose land is sought to be condemned may prove its situation, and the facilities for ingress to and egress from it, as affecting its value, although no cross-petition is filed, as is necessary where recovery of damages to other lands is sought.</p> <p>6. Damages—measure in condemnation—possible future increase in value not proper. The present value of land condemned is the proper measure of damages for its condemnation, although such value is added to by the prospective improvement for which it is condemned. But possible increase in value on account of such improvements cannot be considered.</p>

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

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

<p>1. Negligence—recovery confined to particular negligence stated. An instruction in an action for personal injuries allowing recovery if</p> <p>the defendant “was guilty of negligence contributing to the injury,” is erroneous, as failing to confine recovery to the particular negligence alleged in the declaration.</p> <p>2. Appeals and errors—instruction as to comparative negligence is not reversible error. An instruction stating the rule of comparative negligence is not reversible error, although it is no longer the law.</p> <p>(Phillips, J., not concurring.)</p> <p>3. Evidence—burden on plaintiff to show due care. Plaintiff in an action for personal injuries has the burden of proving that he was in the exercise of ordinary care and prudence.</p>

Richard S. Tuthill, Judge, presiding. This was a bill to foreclose a deed of trust on land in the city of Chicago, given by I. B. Miller and H. J. Miller to one Julius Stern, to secure a loan of 515,000 from the appellant. The deed was dated March 22, 1893, and recorded on the 27th of the same month.

Teco mas G. Windes, Judge, presiding. On April 1, 1892, one George R. Allen executed his deed of trust to Frank R. Chandler on lot 23, in a certain subdivision of a tract of land in Chicago, to secure his promissory note of even date therewith for $3500, payable to Allen’s own order, maturing five years after date and bearing interest at six per cent, payable semi-annually, on the first days of April and October in each year until paid, evidenced by ten coupon notes of $105…

<p>Original petition for habeas corpus.</p>

Nathaniel C. Sears, Judge, presiding. This was an action brought by the Commercial Bank of Manitoba, against the Chicago, St. Paul and Kansas City Railway Company, to recover the value of seven car-loads of potatoes consigned to J. W. Lewis, of Chicago, or to the order of J. W. Lewis. In the Superior Court the plaintiff recovered a judgment for §2305.21, which, on appeal, was reversed in the Appellate Court.

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

<p>Writ op Error to the Couuty Court of Cook county; the Hon. O. 3ST. Carter, Judge, presiding.</p>

' R. S. Ttjthill, Judge, presiding. A bill in chancery was filed by appellee, Elias Bra-man, the complainant in the court below, alleging that he was the equitable owner of lots 14 and 15, west of Ranson street, in Ranson’s subdivision of that part of block 2 west of the Chicago and Rock Island railroad, in canal trustees’ subdivision of section 83, township 39, north, range 14, east of the third principal meridian, in Cook county.

<p>Appeal from the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.</p>

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

<p>1. Condemnation—evidence as to public use of land condemned. Evidence that a strip of land sought to be condemned by a railroad company as a team-track, to accommodate the public in loading and unloading cars, is not of convenient width for the purpose proposed, is not sufficient to show the track was not intended for a public use.</p> <p>2. Same—tenant must show damage to leasehold interest.. A party defendant holding a lease on property sought to be condemned, who offers no evidence on which damage to his interest can be estimated, cannot complain of an instruction that the only person claiming damage is the owner of the fee.</p> <p>3. Evidence—competency of declarations of agent of railway company. Declarations as to the intended use of a strip of ground sought to be condemned, made by the right of way agent of the petitioning railway company, who was not a general officer, while trying to settle with property owners, are properly excluded, as not being within any actual or apparent authority of such agent.</p>

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

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding,</p>

Writ op Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. This was a bill in chancery in the circuit court of Cook county, by defendants in error, seeking to set aside certain deeds and the assignment of a judgment made by Samantha A. Willard, one of the plaintiffs in error, to Anna T. Snyder, the other plaintiff in error. The deeds conveyed lots 24 and 25 in a certain block of land in Chicago.

<p>Appeal from the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.</p>

<p>"Writ op Error to the Circuit Court of Vermilion county; the Hon. Ferdinand Bookw alter, Judge, presiding.</p>

J. D. Crabtree, Judge, presiding. The matters in controversy arose on cross-bill filed by appellee, Welsh, in an original proceeding begun by one H. W. Carpenter, in the circuit court of Winnebago county, to foreclose a real estate mortgage on certain property adjoining the city of Rockford, including block 14 of the subdivision of part of the south-west quarter of section 35, township 44, north, range 1, east of the third principal meridian, called “River Park.” and filed…

<p>Appeals and errors—when injunction, pending an appeal in condemnation , will be dissolved. A decree dissolving an inj unction against the construction of a railroad upon premises sought to be condemned, pending an appeal by the railroad company from the award of damages, will be affirmed where the judgment for damages has been affirmed. Chicago, Santa Fe and California Railway Co. v. Phelps, 125 Ill. 482, and Atchison, Topeka and Santa Fe Railroad Co. v. Schneider, 127 id. 144, followed.</p>

<p>1. Constitutional law—act of 1885, as to continuancesin criminal cases, is valid. The guaranty of the constitution (art. 2, sec. 9,) that the accused shall have the right to meet the witnesses face to face, and have process to compel the attendance of witnesses, is not infringed by the act (Laws of 1885, p. 73,) allowing the State’s attorney to stipulate, on a motion for continuance, that an absent witness, if present, would testify as alleged.’”* </p> <p>2. Instructions—assuming material facts—how cured. An instruction that the possession of stolen property soon after the theft is prima facie evidence of guilt and warrants a conviction, unless the other evidence or the circumstances raise a reasonable doubt, is not erroneous as assuming the fact of theft, where that question is fairly left to the jury by other instructions.</p> <p>3. Evidence—rule as to reasonable doubt explained. The rule requiring the jury to be satisfied of a defendant’s guilt beyond a reasonable doubt, does not require them to be satisfied, beyond a reasonable doubt, of each link in the chain of circumstances relied upon to establish guilt, but only of the ultimate fact of guilt under the whole evidence.</p> <p>4. Same—identity of bills stolen—what is not a variance. Proof of the theft of a gold certificate, silver certificates and of.national bank bills, called by the witness “State bank notes,” is not a variance from an indictment charging the theft of treasury notes, national bank bills and greenbacks.</p> <p>5. Same—government notes stolen are themselves evidence of their value. Treasury notes, national bank notes and silver certificates which have been stolen, are themselves sufficient evidence of their value.</p> <p>6. Same—genuineness of bank bills—how proved. The paying teller of a bank may testify to the genuineness of bank bills.</p> <p>7. Same—roll of paper substituted by thief for money is competent. A roll of paper with a dollar bill wrapped around it, substituted for a roll of money stolen from the person of its owner, may be exhibited in the presence of the jury, in connection with his evidence that he found such a roll in his pocket in place of his money.</p>

<p>Appeals and errors—when no question of law is presented, judgment will he affirmed. Where all the facts in a case are finally settled by the judgment of the Appellate Court, and no question of law is preserved by objections to rulings upon testimony or upon propositions of law submitted, the judgment will be affirmed.</p>

Abner Smith, Judge, presiding. Appellees filed their bill in equity in the circuit court of Cook county, against appellants and the city of Chicago and its commissioners of public works and public buildings, for an injunction and for other relief.

<p>1. Courts—jurisdiction of circuit court to try right of property, in attachment. The circuit court is not deprived of jurisdiction to determine the right to attached property, which is claimed by a third person under the provisions of the Attachment and Garnishment acts, by the act for the trial of the right of property in the county court. (Laws of 1875, p. 69.)</p> <p>2. Evidence—authority of vice-president of corporation to make hill of sale. An instrument purporting to be a bill of sale from a corporation, executed by its vice-president, with the corporate seal attached, is admissible to show the transfer of the property therein mentioned, although there is no proof that the vice-president was authorized to execute it.</p> <p>3. Same—attacking fraudulent transfer of personal property—what proof necessary. Failure by an attaching creditor, who claims that a bill of sale by the principal debtor was fraudulent, to prove that he was a creditor of the debtor at the time of the transfer, is not remedied by the subsequent recovery of judgment against the principal debtor in the attachment suit, since such transferee, standing in the attitude of a stranger to the record, was chargeable with no notice of the attaching creditor’s rights.</p> <p>4. Appeals and errors—when rejection of proper evidence is harmless. Rejection of evidence offered by an attaching creditor to show that a bill of sale by the debtor to a claimant was colorable, only, is not material error, where such creditor fails to prove that he was a creditor of the principal debtor when the bill of sale was made.</p>

<p>Writ of Error to tlie Circuit Court of Kankakee county; the Hon. Charles H. Starr, Judge, presiding.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Dorrance Dibell, Judge, presiding.</p>

Oliver H. Horton, Judge, presiding. A bill in chancery was filed by appellant in the circuit court of Cook county, asking that a subscription of §10,000, made by her to the capital stock of the Thwing Electric Company, be canceled, and that an assessment of §2500 already paid by her be refunded.

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

John D. Crab-tree, Judge, presiding. Appellant was chief of the fire department of the city of Rockford, having been appointed in the spring of 1891, and was the incumbent of that office in 1893, when the appellee was selected mayor of that city. The office of fire marshal, the chief of the fire department, is one to which the mayor appoints with the consent of the' city council.

<p>1. Special assessments—a subsequent statute does not affect the proceedings. An ordinance passed for a special assessment and proceedings instituted for its confirmation before the act of 1893 (Laws of 1893, p. 78,) was passed changing the number of installments, are unaffected by said act.</p> <p>2. Appeals and errors—presumption, on appeal, in favor of jurisdiction of trial court. On appeal from a judgment of sale of property for a delinquent special assessment, where the judgment of confirmation is not contained in the record so the findings upon notice and jurisdiction may be known, it will be presumed that the court heard evidence of the proper posting of notices, aside from an affidavit of that fact which was permitted to be filed nunc pro tunc.</p>

<p>1. Schools—Ballot law does not apply to school elections. The act in force July 1, 1891, (Laws of 1891, p. 108,) known as the “Australian Ballot law,” does not apply to school elections.</p> <p>2. Same—election for or against township high school—what law governs. An election to determine whether or not a township high school shall he established is properly held under the general School law, as amended in 1891, (Laws of 1891, p. 199,) and not under the general Election law of 1891, (Laws of 1891, p. 108,) known as the “Australian Ballot law.” (County of Union v. Ussery, 147 Ill. 204, distinguished.)</p>

<p>Appeals and errors—appellate jurisdiction of Supreme Court in mandamus. Mandamus being an action at law, the Supreme Court has no appellate jurisdiction therein except where a franchise, a „ freehold or the validity of a statute or the construction of the constitution is involved,'or where the action relates to the revenue, or is one in which the State is interested, as a party or otherwise.</p>

Theodore Brentano, Judge, presiding. This is a bill, filed by appellant to redeem certain real estate from a sale thereof by appellee Bishop, as trustee, under a power of sale in the trust deed hereinafter described, to the appellee Albert M. Billings. General and special demurrers were filed to the bill. The demurrers were sustained by the trial court, and the bill was dismissed for want of equity, with order that costs be paid by complainant.

<p>1. Taxes—statutory exemptions from taxation construed strictly. Statutes exempting property from taxation must be strictly construed, and those who claim their benefits must bring' themselves clearly within their provisions.</p> <p>2. Same—lands used for camp meetings not exempt. Sixteen acres of land used for religious camp meetings, owned by a corporation organized under the statute for the formation of corporations “not for pecuniary profit,” and not under that relating to religious societies, is not exempt from taxation under the statute (Rev. Stat. chap. 120, sec. 2,) which exempts certain church property.</p>

Writ op Error to the Appellate Court for the Third District;—heard iu that court ou writ of error to the Circuit Court of Macon county; the Hou. Edward P. Vail, Judge, presiding.

<p>Appeal from the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.</p>

Writ op Error to the Circuit Court of Cook county-; the Hon. S. P. McConnell, Judge, presiding. This was a bill for partition, brought on the fourth day of August, 1892, by Charles F. Jacobs, against Frederick Schroeder, Henry Harms, Asahel Gage, John Gage, Katherine O’Brien and others.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.</p>

Writ op Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Theodore Bren-TANO, Judge, presiding'.

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Special assessments—effect of defect in clerh’s certificate to ordinance. A petition for a special assessment is not defective because the certificate of the clerk to a copy of the ordinance for the improvement, annexed to the petition, is insufficient, as the statute does not require that the ordinance recited in the petition shall be certified, and the certificate is no part of the ordinance.</p> <p>2. Same—failure of one commissioner to act defeats the proceeding. The three commissioners appointed to make an estimate of the cost of an improvement must act jointly, and action by two of them only, the third party taking no part, cannot be sustained.</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. George F. Blanke, 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. E. F. Dunne, Judge, presiding.</p>

<p>1. Estoppel—burden of proof in. The burden of establishing an estoppel is upon him who invokes it.</p> <p>2. Same—by res judicata—-precise point must be determined. A judgment in a former suit operates as an estoppel only where it appears, upon the face of the record or by extrinsic evidence, that the precise question in controversy was there raised and determined.</p> <p>3. Res judicata—doctrine of, stated. An adjudication and determination in a former suit of a specific fact or question is conclusive when the same fact or question arises in a subsequent suit between the same parties.</p> <p>4. Evidence—extrinsic evidence to show what was determined in a suit. A general judgment rendered upon a declaration of three counts, two, only, of which state causes, of action of which malice is the gist, and not showing upon its face which count or counts such judgment was rendered upon, leaves the question of malice at large and open to proof.</p> <p>5. Same—when a debtor applying for release from arrest on capias may disprove malice. A debtor arrested by capias on a judgment based upon a declaration of three counts, in two, only, of which malice was the gist of the action, nothing appearing to show on which count or counts the judgment was based, may, on his application for discharge, introduce evidence to disprove malice in connection with the original transaction.</p> <p>6. Instructions—instruction that fraud is never presumed is proper. In such a case it is not error to instruct the jury that fraud is never to be presumed, but must be affirmatively proven by the party alleging the same. •</p> <p>7. Costs—of appeal in which trial de novo is had—how taxed. The costs of an appeal in which a trial de novo results in another judgment against appellant are properly taxed against such appellant, notwithstanding irregularities in the first trial, in which said appellant participated without objection.</p>

<p>Appeal from the County Court of Cook county; the Hon. O. bf. Carter, Judge, presiding.</p>

<p>1. Carriers—must furnish safe platform and steps to passenger coach. A railroad company owes a passenger the duty of furnishing a suitable and safe platform and steps upon which to leave the car, and is responsible for any defect therein causing injury to the passenger which human care, vigilance and foresight, reasonably exercised, could have discovered and guarded against, consistent with the operation of the road.</p> <p>2. Same—facts not justifying peremptory instruction for the defendant. Where a woman was injured while alighting from a car, as the result of catching her dress upon a coupling-pin projecting three inches above the level of the car platform, it appearing not to have been necessary to carry the pin in that place or manner, a peremptory instruction for defendant is properly refused, although it was customary to carry a coupling-pin in that manner, and no like accident had before happened.</p> <p>3. Same— that like accident had never happened before is no defense. That a like accident had never been known or heard of before by-persons engaged in the management of railroads, will not relieve a railroad company from liability for injuries to a passenger which, by the exercise of the highest degree of care, could have been foreseen and guarded against.</p>

Francis Adams, Judge, presiding. The following is the statement of the case made in the Appellate Court: “This was an action in assumpsit, by appellee, against appellant, upon a policy of accident insurance dated December 2, 1889, and issued by the appellant to William T. Dunlap. The declaration contains two counts, in the first of which the policy is set forth in full. The second count purports to give only the promissory effect of the policy.

<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. Jonas Hutchinson, Judge, presiding.</p>

<p>1. Taxes—sufficiency of proof of publishing notice. On the question of the sufficiency of the certificate of publication of notice for application for,judgment for taxes, this case is controlled by Bass v. People ex rel. 159 Ill. 207, and Hertig v. People ex rel. id. 237.</p> <p>2. Same—sufficiency of proceedings for special assessment—collateral attack. The sufficiency of the petition and proceedings for a special assessment cannot be collaterally attacked in an application by the county treasurer for judgment for the delinquent assessment</p>

<p>Original petition for mandamus.</p>