Volume 162 — Illinois Reports

Jacob Fouke, Judge, presiding. This is an appeal from a judgment in the Appellate Court modifying a judgment of the circuit court of Christian county.

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Calhoun county; the Hon. George W. Herdman, Judge, presiding. The defendant in error (plaintiff below) brought suit against the Thomas Pressed Brick Company, in the circuit court of Calhoun county, in an action of trespass, and a trial before a jury resulted in a verdict of guilty, assessing plaintiff’s damages at §2455.

<p>1. Contempt—presenting a fictitious case is a contempt. To present a fictitious case to a court for the purpose of obtaining its opinion, or for other fraudulent purpose, is a contempt of the court’s authority and dignity, and punishable as such.</p> <p>2. Action—collusive suit--at ivhose instance dismissed. While a collusive or fraudulent suit is still pending, either in the court in which it was brought or in an appellate court, it will be dismissed by the court at the instance of any party or person in interest or who may be,prejudiced by it, or even at the instance of a stranger appearing as amicus curice, or by the court upon its own motion, on the fact of collusion being learned.</p> <p>3. Judgments and decebes—who may attack ,fraudulent judgment after term expires. Application, either by motion or bill in chancery, to set aside a judgment on the ground of fraud or collusion after the term expires and the cause is no longer pending, cannot be entertained unless made by one who is either a party to such judgment or in privity with such party, or by one possessed of property rights or equities which are directly and injuriously affected by the judgment.</p> <p>4. Same—party or privy cannot attack judgment collaterally. The attack of a party or privy upon a judgment for fraud or collusion must be direct, and cannot be collateral.</p> <p>5. Same—strangers to fraudulent judgment or decree may attack it collaterally. Strangers to a judgment or decree not coming within the principle of res judicata may impeach it for fraud or collusion by a collateral attack upon it whenever it is offered in evidence or sought to be enforced or used against them. ' i</p> <p>6. Same—liability to prosecution not ground on which stranger can move, to expunge a decision. The mere liability of ticket brokers to prosecution under the act of 1875 prohibiting the sale of railroad tickets by unauthorized persons, (Laws of 1875, p. 81,) gives them no standing to impeach for fraud, after term, a judgment and opinion of the Supreme Court in a case to which they were not parties and which affirmed the constitutionality of said act.</p>

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

<p>Municipal corporations—act of June U, 1895, construed as to the power of park hoards to levy assessments. The act of June 14, 1895, (Laws of 1895, p. 286,) authorizing park boards to make assessments “for the purpose of improving any boulevard, highway, driveway or street,” confers no power on such boards to levy an assessment for sewers and water mains intended to supply sewer and water service to residents on a boulevard.</p>

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

Robert B. Shirley, Judge, presiding. In October, 1893, appellee purchased an excursion ticket over the appellant’s railroad from Carlinville to St. Louis and return. On starting home that night, accompanied by his wife and daughter, he entered appellant’s train standing in the union depot at St. Louis, and found a seat for his wife and daughter. Not finding one for himself, there being many passengers aboard, he went into the car next behind.

<p>1. Banks— power of national bank to execute lease before getting comptroller's certificate. The provision of section 5134 of the National Banking act, that “no association shall transact any business, except such as is incidental and necessarily preliminary to its organization,” until the comptroller has authorized it to commence the banking business, precludes such an association from leasing a banking house before the comptroller has acted.</p> <p>2. Same—what is not a preliminary to the organization of a national bank. The renting of rooms in which to conduct the banking business is not “incidental and necessarily preliminary” to the organization of a national banking association.</p> <p>3. Same—construction of act as to place of business. The requirement of the National Banking act that the organization certificate shall state the place where the bank’s operations are to be carried on, has reference to the town or city, and not to the room, street or number in such town or city where the bank is to be located.</p> <p>4. Estoppel—national bank not estopped to show its want of power. A national bank which has not been authorized by the comptroller to do a banking business is not estopped from insisting upon its want of power to make a lease of a banking house.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.</p>

John D. Crabtree, Judge, presiding. This was a claim presented in the county court of Winnebago county by Charles O. Boynton, against the estate of Charles H. Spafford, deceased. The claim was predicated on two promissory notes, as follows: “$1300. Sycamore, III., Dec. 11, 1880. 1 'One year after date, for value received, we promise to pay Charles O. Boynton or order thirteen hundred dollars, with interest at eight per cent until paid.

<p>1. Redemption—assignment of certificate of sale does not operate as a redemption. An assignment, within the time allowed for redemption, of a master’s certificate of sale, to the owner of the equity, does not operate as a redemption, though regularly recorded, aud expressed to be “for the purpose of canceling said certificate and satisfying the decree of sale.”</p> <p>2. Estoppel—of vendor to redeem from master’s sale as against vendee. A beneficial owner of land who sells the same and causes warranty deed to be made to his vendee, and also causes a certificate of sale of the property for a mechanic’s lien to be transferred to such vendee by assignment expressed to be “for the purpose of canceling said certificate and satisfying the decree of sale,” is estopped to afterwards redeem the property from such sale as a judgment creditor of the party who held the legal title.</p>

John J. Glenn, Judge, presiding. This is an appeal from a decree in partition, rendered in the court below on the bill of the appellees. It is conceded that the decree is right and proper provided the last will and testament of Thomas B. Carroll vested in Sarah Carroll, his widow, but a life estate in the lands therein described, with a power of disposition as to one-half thereof by will.

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. E. F. Dunne, Judge, presiding.

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

<p>1. Practice—in chancery—exceptions to master’s report. Under the statute requiring all evidence taken by the master to be reported, exceptions to his report need not recite the evidence relied upon, but only need point out distinctly the findings and conclusions sought to be reversed.</p> <p>2. Same—one excepting to master’s report must refer to evidence. The chancellor is not required to search for evidence to sustain exceptions to a master’s report, but may, by proper rule, require the evidence relied upon to be abstracted or otherwise presented in convenient form, and only evidence relating to the exceptions need be heard.</p> <p>3. Same —proper procedure where master draws wrong legal conclusion. Where the facts are stated correctly by the master and it is claimed he has drawn a wrong legal conclusion from them, no exception is necessary.</p> <p>4. Mechanic’s lien—sufficiency of claim filed for lien. The statement in a claim filed for mechanic’s lien that a written contract was entered into “about the 2d day of July, 1892,” is sufficiently supported by a contract offered in evidence dated June 29, 1892, but alleged and proved to have been made at the date stated.</p> <p>5. Same—when claim for lien need not give items—entire contract. Separate items and dates of work done and materials furnished need not be given in the claim filed where it sets out an entire contract, and shows a continuous performance between dates given.</p> <p>6. Same— affidavit to claim—what sufficient. An affidavit verifying a claim for lien, as required by statute, need not have incorporated in it all the facts on which the claim is based, but is sufficient if it states that the claim filed is true in substance and in fact.</p> <p>7. Same—effect of claiming too much in statement filed. Claimants for a lien to which disputed deductions are set up, who act in good faith, are not bound, at the peril of losing their lien, to state in their claim for lien the precise amount finally allowed.</p> <p>8. Interest —words of contract construed as to usury. The item in a claim for lien, “interest at five per cent, from September 7,1892,” does not show usury, as under the statue (Rev. Stat. chap. 74, sec. 9,) “per annum” is added after the rate named.</p>

Thomas G. Windes, Judge, presiding. This was an information brought by the Attorney General against the commissioners of Lincoln Park and the owners of the land adjacent to the shore of Lake Michigan, between Ohio street and Oak street, in the city of Chicago, for the purpose of canceling certain contracts entered into between said park commissioners and said property owners for the extension of the lake shore drive from Oak street to Ohio street, entered into under an act…

John Barton Payne, Judge, presiding. For several years prior to February 26,1892, one F. B. Schuchardt, under a lease, occupied the seventh floor of a building owned by appellant, and had therein six photogravure printing presses, one lead-lined acid tank, five lithograph stones, six brass and rubber tympans, one Anson Hardy paper cutter, one office table, one office desk and chair.

Francis Adams, Judge, presiding. ■ This was an action of assumpsit, brought by Gilbert Van Zandt, the appellee, against Fleming J. Hefling, the appellant, on a lease. The summons was returnable on the third Monday of January, 1895, in the circuit court of Cook county, and was served upon appellant December 13, 1894.

Writ of Error to the Circuit Court of Grundy county; the Hon. Charles Blanchard, Judge, presiding. On February 3, 1895, Mary Smith died testate. She left her surviving her husband, Hiram A. Smith, but no children or descendants of children. Defendant in error is executor of her will. By it she made certain provision for her husband, and left the residue of her estate, consisting of both real and personal property, to three nephews.

<p>Appeal from, the Circuit Court of Cook county; the Hon. Edmund W. Burke, Judge, presiding. ■</p>

<p>1. Insurance—when one procuring insurance acts as agent for owners. An insurance agent who, in pursuance of general directions given him by the owners of property, procures a second policy on the same from a company not represented by him, through an agent who was in the habit of exchanging policies with him and who charged the premiums to him, acts, in getting such insurance, solely as the agent of the property owners.</p> <p>2. Same—agreement of one company with another to issue policy—how enforced—parties. The agreement of an insurance company made with the agent of another company, which latter has ordered its policy on certain property canceled, to the effect that the former company will issue its policy on such property and assume the risk, in pursuance of which agreement the policy is written and registered but not delivered, creates no liability for a loss occurring before the first policy is canceled or the latter delivered which can be enforced in the name of the company issuing the first policy, but the suit must be in the name of the owners of the property.</p> <p>3. Same—assignment of undelivered policy'—subrogation. An agreement by one insurance company with another to issue its policy upon property in lieu of a policy of the latter, will not enable the latter company to recover in its own name, by subrogation, the amount of a subsequent loss paid, although the company making such agreement had the policy executed and ready for delivery when the loss occurred, and although the owners of the property, upon payment of the loss, assigned to the paying company all rights in the undelivered policy.</p> <p>4. Same—what is not a re-insurance. Agreement by one insurance company with the agent of another to take a risk and issue a policy to certain property owners in lieu of one which the latter company has ordered canceled, is not a contract of re-insurance of such canceling company against its risk, so as to enable it to reimburse itself, by suit in its own name, for payment of a loss occurring before the first policy was actually canceled and the latter delivered.</p>

<p>Writ of Error to the County Court of Marshall county; the Hon. Winslow Evans, Judge, presiding.</p>

Henry B. Willis, Judge, presiding. Appellee filed his declaration in the circuit court of Kane county in an action on the case, against appellant, to recover for injuries sustained by him while alighting from one of appellant’s trains at its station at North Aurora.

<p>1. Special findings—questions calling for mere evidentiary facts should, be refused. On trial for injury to a passenger from an electric car leaving the track and falling over a high embankment, alleged to be the result of too fast running on a bad track, special questions which ask merely for the cause or the “apparent cause” of the car mounting the rail at the place where it left the track are not such as call for controlling findings, and are properly refused.</p> <p>2. Same—act of 1887, as to special findings, construed. The statute authorizing the jury to find specially upon any material question of fact which shall be stated to them in writing, (Laws of 1887, p. 251,) does not give either party power to require the jury, in answer to a general question, to summarize and state the facts constituting the supposed cause of action, and thus to compel the rendition of a special instead of a general verdict.</p> <p>3. Appeals and errors—the Appellate Court may affirm after remittitur. The Appellate Court may affirm a judgment for personal injuries after remittitur of all in excess of a certain amount.</p> <p>4. Costs—should be taxed to appellee where remittitur is entered in Appellate Court. Costs of an appeal, upon which the judgment is affirmed after remittitur by appellee of excessive damages, should be adjudged against appellee.</p>

<p>1. Attorneys at law—proceedings to disbar are summary. It is the manifest intent of the statute (Rev. Stat. 1874, chap. 13, sec. 6',) that proceedings to suspend attorneys from practice should be summary, and any appropriate procedure may be adopted, provided the charges are stated with sufficient particularity, and- reasonable notice and opportunity to defend be given.</p> <p>2. Same—cowls have summary jurisdiction over attorneys. Courts have an inherent and summary power, in the absence of statute, to strike attorneys from the rolls or suspend them from practice for professional misconduct.</p> <p>3. Same—usual mode of proceeding against attorney for misconduct. The usual practice is, upon the filing of specific charges properly verified by affidavit, for the court to issue a rule requiring the attorney to show cause why he should not be stricken from the roll or suspended.</p> <p>4. Same—proceeding to suspend an attorney is not a “prosecution.” The provision of the constitution that all prosecutions shall be carried on in the name and by the authority of the People, and conclude against the peace and dignity of the same, has no application to a proceeding to disbar an attorney. (Hay v. People, 59 Ill. 94, distinguished.)</p> <p>5. Same—order of suspension cannot be broader than the rule. Under a rule requiring an attorney to show cause why he should not be suspended from practice in the circuit court of a certain named county, an order cannot be entered suspending him from practice in a judicial circuit comprising other counties and courts.</p> <p>6. Same—statute as to suspension of attorneys construed. The statute authorizing suspension of attorneys from practice (Rev. Stat. chap. 13, sec. 6,) is penal, and the strict construction which that fact imposes limits the power of suspension to the particular court in which the judge is presiding at the time he makes the order.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Jackson county; the Hon. Oliver A. Harker, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Grundy county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Henderson county; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the City Court of East St. Louis; the Hon. Benjamin H. Caney, Judge, presiding.</p>

W. G. Ewing, Judge, presiding. This is an action of ejectment, begun in the Superior Court of Cook county, on August 18, 1886, and resulting finally in verdict and judgment in favor of appellee, by which judgment appellee recovers of appellant a strip of land 65 feet in length and 15-¡- inches in width, being a part of lot 38 in block 60 in the school section addition to Chicago. It was shown that appellant was in possession of the strip in question.

<p>Appeal from the Circuit Court of Effingham county; the Hon. S. Z. Landes, Judge, presiding.</p>

N. E. Worthington, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment of the circuit court of Peoria county.

<p>1. Bills and notes—note of corporation—when word “president” is mere description. A note of a corporation payable to the order of “A. P., President,” is not payable to the order of the corporation, but the word “president” is mere' descriptio personae, and. the note is payable to the president individually, and endorsement of his name on the back thereof, followed by the word “president,” is his individual endorsement. ■</p> <p>2. Evidence—parol explanation of intention with which endorsement was made. Parol evidence that one who has endorsed his name upon the back of a note payable to his order as president of the corporation maker, both with the word “president” attached and without it, in making the latter endorsement intended and agreed to guarantee the note, is incompetent.</p> <p>3. Same—double endorsement by president of corporation—parol evidence. If a note of a corporation payable to the order of its president is to be regarded as payable to its own order, the writing of the individual name of such president upon the back in addition to his name followed by the word “president,” has the effect of rendering him liable as second endorser, and parol evidence is inadmissible to show that his contract was that of guarantor.</p> <p>4. Appeals and errors—when reversal without remanding is proper. The reversal without remanding, by the Appellate Court, of a judgment against one sued as guarantor upon a note, is not error, where the defendant is liable only as endorser, and the declaration is insufficient to charge him as such.</p>

<p>1. Evidence—absolute deed may be shown to be a mortgage in an action at law. The rule that a deed absolute in form may be shown by parol evidence to have been intended merely as a security, applies in actions at law where the title is not directly in issue.</p> <p>2. Insurance—conditions of policy as to ownership and title of property construed. A deed of insured property, not followed by transfer of possession, absolute in form but meant only as a security for money which was never in fact advanced, is not a violation of conditions of a policy against change of title, mortgaging, and which require the assured to be the sole and unconditional owner.</p> <p>3. Same—effect of prohibited act which does not increase hazard. The act of an assured changing the evidence but not the fact of title, though a technical violation of the condition of the policy, does not increase the moral hazard, and the right of recovery remains.</p>

<p>Writ of Error to the Circuit Court of Johnson, county; the Hon. A. K Vickers, Judge, presiding.</p>

Murray F. Tuley, Judge, presiding. This is a bill to compel the trustees under the will of George Einbecker, deceased, to pay the annuity therein provided.

<p>Special assessments—for improvement of park boulevard cannot be divided into installments. A town ordinance passed prior to the act of 1895, (Laws of 1895, p. 286,) for the improvement of a park boulevard in pursuance of the plans and estimates of the park commissioners, cannot provide that the assessment be divided into installments, with interest upon deferred payments. (Culver v. People, 161 Ill. 89, followed.)</p>

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

<p>1. Eminent domain—section 15, article 9, of City and Village act, construed. Section 15, article 9, of the City and Village act, (Rev. Stat. 1874, p. 262,) providing that the court shall enter an order that the city or village may, “at any time thereafter,” take possession of condemned property, has reference to a supplemental order to be made upon proof that the compensation has been paid or deposited, and not to the judgment rendered on the jury’s finding.</p> <p>2. Sam®—taking possession of condemned lands-^waiver of owner. The provision of the City and Village act, (Laws of 1891, p. 80,) that the city or village shall take and pay for lands condemned within two years from entry of judgment in the condemnation proceedings, may be waived in open court and the waiver made a part of the judgment of condemnation.</p> <p>3. Same—condemnation of street across railroad—easement only acquired. A judgment condemning a strip of land for a street across railway tracks and right of way upon a verdict in the usual form, making award of compensation without conditions, properly restricts the interest acquired to an easement instead of the fee.</p> <p>4. Special assessments—when stipulation as to possession of condemned lands is no defense to special assessment. A supplemental petition for the confirmation of a special assessment to pay the compensation awarded on property taken by condemnation for a street should not be dismissed because it was incorporated in the judgment by stipulation that the city would not take certain railway lands condemned for six years unless the companies owning them should sooner elevate their tracks in accordance with a certain ordinance, as such stipulation, at most, only renders the judgment erroneous, and not void.</p> <p>5. Same—effect of city not taking immediate possession. A special assessment for the extension and opening of a street upon property specially benefited is not prevented by the mere fact that the city cannot, for a limited but uncertain time, take possession of a small portion of the land to be included in such street.</p> <p>6. Same—what may he shown on application for judgment for special assessment. It seems that everything which shows that a special assessment should not be collected, and which cannot be interposed at the time of the application for judgment of confirmation, can be urged for defense upon application of the county collector for judgment of sale, and proper relief granted by the court.</p> <p>7. Same—indefinite postponement of possession of street—equitable relief. If objection that possession, of part of land condemned for a street cannot be had for an indefinite period cannot be interposed as a defense to the application for judgment of sale for the assessment, a court of equity may afford relief if the city attempts to enforce payment unjustly.</p> <p>8. Evidence—matters affecting benefits competent in special assessments. An ordinance, together with a stipulation in a judgment of condemnation for a street, which tends to show that at about the time of opening the street in question access to the property of the objecting owners will be had by means of another street the impassable condition of which was relied on to enhance the benefits, is admissible in evidence in a supplemental proceeding under section 53 of the City and Village act. (Hutt v. City of Chicago, 132 Ill. 352, and Edwards v. City of Chicago, 140 id. 440, distinguished.)</p>

R. W. Clifford, Judge, presiding. This is an action brought by appellant against appellee to recover §1000.00, the amount of an endowment certificate issued to her husband, Phillip Croak, on April 21, 1883, and payable to her. The declaration contained the common counts and two special counts. The plea was the general issue. Jury was waived by agreement, and the cause was tried before the court without a jury.

Theodore Brentano, Judge, presiding. This is a bill filed in the Superior Court of Cook county by the Detroit Copper and Brass Rolling Mills, a body corporate, against Matthew Ledwidge, doing business under the firm name of Ledwidge & Co., Harry Bennett, certain judgment creditors of said Ledwidge, and James Pease, sheriff of Cook county. A general demurrer was filed to the bill, which was sustained by the court below.

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

<p>1. Interest—upon insurance policy—effect of statutory reduction of legal rate. The rate of interest recoverable upon an insurance policy which contains no stipulation for interest, changes at the time of the taking effect of a statute reducing the legal rate of interest.</p> <p>2. Appeals and errors —when error may be obviated by a remittitur and payment of costs. Error in an instruction as to the rate of interest recoverable is obviated by entering a remittitur, on appeal, for the excess of interest, and payment into court of the appellant’s costs in the court below and the costs of the appeal up to the time.</p> <p>3. Trial—construction of insurance policy is for the court. It is the province of the court to construe a policy of insurance and determine what property it covers, where all the facts are admitted.</p> <p>i. Insurance—construction of policy—when property is “specifically insured.” Insurance upon “poultry and packages for same,” issued to commission merchants dealing in other kinds of perishable merchandise, is specific insurance within the meaning of the provision of another policy insuring “merchandise and packages for same * * * not specifically insured,” although no special lots are designated, where there was no attempt or desire to distinguish between different kinds of packages of poultry.</p> <p>5. Same—stipulations in open policy as to waiver of conditions by agent —effect. A stipulation in an open policy of insurance that only the managers of the company have authority to waive or modify conditions, does not include provisions as to what is to be done by the parties after a loss has been incurred, and representations by the holder of such policy, who issues a certificate to a third person therein, which deter suit within the time limited, will estop the company from asserting that the suit was not brought in time.</p>

<p>1. Contracts—for sale of land, by assignee subject to court’s approval —want of mutuality. A contract for the sale of an interest in land by an assignee for creditors, expressly providing that he shall not be bound unless it is approved by the court, does not, because of want of mutuality, become binding upon the purchaser and capable of enforcement, where such sale is not approved by the court until after the contract has expired and has been repudiated by such purchaser.</p> <p>2. Vendor and purchaser—legal status of private purchaser of land from an assignee. A purchaser at private sale from an assignee for creditors, under a contract providing that the assignee shall not be bound unless the contract is approved by the court, does not occupy the position of a bidder at a judicial sale under an order of ■court, so as to render the contract binding upon him although not binding upon the assignee.</p>

John Barton Payne, Judge, presiding. Appellants filed their bill to remove clouds from their title to lots 176 and 180, in a subdivision of the east half of the south-west quarter of section 30, township 38, north, range 13, east of the third principal meridian.

<p>i. Appeals and errors—errors not specified in motion for new iñctl are wct'iye|2- Assignments of error which were not specified or claimed in the motion for a new trial will be regarded as waived.</p> <p>2. Same—supposed erroneous rulings upon testimony must be pointed out in the brief. General assignments of error that the court ruled improperly upon the admission and exclusion of testimony will not be considered on appeal, where counsel in their briefs fail to call specific attention to such supposed erroneous ruling. '</p> <p>3. Same—oral announcement of court in -presence of jury as to instruction—when not error. That the court, before giving a written instruc- . tion directing the jury to find for plaintiff, orally announced, in the presence of the jury, that it would give such an instruction, is not available error,-where no exception was taken to the instruction so given.</p>

Writ of Error to the Appellate Court for the First District;-—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Edward F. Dunne, Judge, presiding.

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. Abner Smith, Judge, presiding.

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

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

Murray F. Tuley, Judge, presiding. The facts of this case, as stated by the Appellate Court, are as follows: “This was a bill to restrain appellant from engaging in the livery and undertaking business in the city of Chicago prior to April 20, 1897. The answer admitted that appellant was about to open an undertaking business at 1057 West Lake street, Chicago, and claimed the right to do so.

<p>1. Public improvements—failure to file remanding order not an abandonment of improvement. Proceedings for a street extension are not abandoned by failure to file a mandate of an appellate court reversing a 'judgment affirming a previous assessment within two years from the decision. (Philadelphia and Reading Coal and Iron Co. v. City of Chicago, 158 Ill. 9, followed.)</p> <p>2. Same—right of city to dismiss proceedings to extend street. An order dismissing a petition for a street extension at the instance of a city will not be set aside at the instance of land owners because no notice was given them of the motion for dismissal, as the city has an absolute right to such dismissal.</p> <p>3. Same—sufficiency of ordinance as to description of street—grade. An ordinance for a street extension is not invalid for failure to designate the grade of a street and whether it is to be paved or not, where the amount to be apportioned upon the property benefited is not left in doubt. (Washington Ice Co. v. City of Chicago, 147 Ill. 327, distinguished.)</p> <p>4. Same—supplemental petition in condemnation need not recite ordinance. A supplemental petition under section 53, article 9, of the City and Village act, (Laws of 1891, p. 80,) for an assessment for a street extension, need not recite the ordinance for the improvement and the report of the commissioners as to its cost, as stich petition is based upon the condemnation judgment, and there is no estimate of the commissioners as to the cost before filing the petition. (Guild v. City of Chicago, 82 Ill. 472, distinguished.)</p> <p>5. Evidence—bridge on street will be presumed to have been placed there legally. In proceedings to extend a street and assess the benefits upon property, the ordinance, judgment of condemnation and proof that a bridge connecting the parts of the street had been erected and paid for by general taxation are admissible without showing that such bridge was built with the approval of the Secretary of War, the legality of the bridge being, in such case, presumed. (City of Chicago v. law, 144 Ill. 569, distinguished.)</p> <p>6. Same—city may meet objections to assessment by evidence in rebuttal. In a proceeding for confirmation of an assessment for a street extension the city may meet objections to the assessment roll, raised by evidence of property owners upon the question of benefits, by way of rebuttal.</p>

<p>1. Drainage—petition to dissolve district—sufficiency of showing as to area and ownership. The statutory requirement that a petition for dissolution of a drainage district shall be signed by four-fifths of the adult land owners owning not less than three-fourths in area of the assessed land, is satisfied where the record contains previous proceedings which show that a sufficient number owning a sufficient area have signed, though no land is expressly described in the petition.</p> <p>2. Same—act of June k, 1889, for dissolution of districts, is constitutional. The act of June 4, 1889, (Laws of 1889, p. 117,) for the dissolution of drainage districts, is not in conflict with section 31, article 3, of the constitution, authorizing the General Assembly to pass laws permitting the owners or occupants of lands to construct drains across the lands of others.</p> <p>3. Same—administering oath by attorney of parties does not invalidate proceedings. While it is improper for a notary public appearing as an attorney for the petitioners in a proceeding to dissolve a drainage district, to take the oath to the petition, report of the commissioners, notice of hearing or of posting notices, such action will not invalidate the proceeding.</p> <p>4. Same—title to lands need not be proved unless put in issue. Under a verified petition to dissolve a drainage district it will be presumed that the assessment is properly made on lands, to the owners thereof, and in the absence of an issue made by verified answer, title need not be proved as in ejectment.</p> <p>5. Same—that dissolution will damage a land owner is no defense. Dissolution of a drainage district cannot be prevented by a single land owner who will be damaged by the dissolution, in the absence of any statutory provision for such defense.</p> <p>6. Appeals and errors—grounds of objection to jurisdiction must be stated in trial court. The objection to the jurisdiction of the trial court in proceedings to dissolve a drainage district that the notice published was insufficient, cannot be first raised on appeal by parties who appeared and filed objections which did not raise the question, although an objection to the jurisdiction was made upon other reasons assigned.</p>

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

<p>1. Appeals and errors—when chancellor's findings will not be disturbed. The finding of the chancellor in a suit for separate maintenance will not be disturbed, on appeal, unless the evidence clearly preponderates against it.</p> <p>2. Husband and wipe—what facts are insufficient to defeat separate maintenance. A qualified notice by a husband that a wife, who has justifiably left him, may return, accompanied with the information that he does not desire her to do so, is insufficient to defeat a suit by her for separate maintenance.</p> <p>3. Same—allowance deemed not excessive on facts shown. An allowance to a wife of $15 per week as separate maintenance is not excessive, where the husband is an economical business man and has an unincumbered capital of $40,000, and the wife is, by the decree, awarded the custody of their child.</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. John Gibbons, Judge, presiding.</p>

<p>1. Executors and administrators —foreclosure of a mortgage against lands of decedent not barred in two years. The right to foreclose a deed of trust against lands of a deceased person is not barred by failure to exhibit the claim to the probate court for allowance within two years after letters are granted, under the statute providing that all demands not so exhibited shall be forever barred unless the creditors shall find other estate not inventoried or accounted for.</p> <p>2. Estoppel—does not arise against a mortgagee suffering default in proceeding to sell mortgaged land to pay debts. A trustee in a trust deed and the holder and owner of the note secured thereby are not estopped from foreclosing by appearing and allowing a default in proceedings to sell the land to pay the debts of the deceased mortgagor, where their rights were set out in the petition to sell and the decree protects such interests.</p>

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

<p>1. Fraud—when false representations by a seller as to value will avoid sale. Representations by the president of a bank to a customer that stock in a corporation of which he was the promoter and principal stockholder was worth a sum in excess of its par value, would yield certain dividends and prove a profitable investment, made while he knew that it was the intention to do business not authorized by the charter and to so manage it that he and the bank would acquire all the assets, are not within the rule that a purchaser can not avoid his contract because of false statements of the seller as to the value of the thing sold.</p> <p>2. Same—when representations as to value will bind a vendor. Representations made by a vendor as to the value of the thing sold to a vendee who is wholly ignorant of such value and who relies upon such representations, which were given as facts and not as a mere opinion, are binding upon such vendor.</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. John Barton Payne, Judge, presiding.</p>

<p>1. Res judicata—effect of judgment of Appellate Court reversing and remanding. A judgment of the Appellate Court reversing the judgment of the lower court and remanding the cause is not final, and does not conclude parties in the Supreme Court upon a subsequent appeal from a later judgment of such lower court, as no appeal could be taken from such former judgment of the Appellate Court.</p> <p>2. Board of trade—of Chicago—is a voluntary association. The Chicago board of trade, although incorporated, is a merely voluntary association.</p> <p>3. Same—effect of termination of membership on property rights. The value of the right to pursue a business, as a member of the Chicago board of trade, in the hall of the building devoted to that purpose, is incidental to the membership, and the determination of such membership destroys the rights under it.</p> <p>4. Same—courts will not control in the enforcement of by-laws. The courts will not interfere to control the enforcement of by-laws of a board of trade, but the board will be left to enforce its rules and regulations by such means as it may adopt for its government.</p> <p>5. Same—member bound by all by-laws within the corporate authority. One who becomes a member of a board of trade voluntarily submits himself to the operation of all laws enacted for its government, and agrees to be bound by them so far as within the corporate authority.</p> <p>6. Same—validity of by-law making breach of business contract cause for expulsion. A by-law of a board of trade that if a member fails to comply with a business contract with another member he shall be expelled, is valid.</p> <p>7. Same—judgment of tribunal of, cannot be reviewed by the courts. The judgment of a tribunal of a board of trade suspending a member according to the rules to which such member assented when he became a member, upon due notice of the proceedings, cannot be collaterally reviewed by the courts.</p> <p>8. Same— strict rules of criminal pleading not applied to proceedings of-A charge against a member of a board of trade of bad faith and dishonorable conduct in not carrying out an agreement, having attached a copy of such agreement, is not to be tested by the strict rules of criminal pleading, but is sufficient where the accused is notified of what the bad faith and dishonorable conduct consisted.</p> <p>9. Same—courts cannot inquire into sufficiency of evidence on which directors of board acted. The courts cannot inquire whether the evidence before the directors of a board of trade was sufficient to authorize its finding that a member was guilty of dishonorable conduct, upon which he was suspended.</p> <p>10. Same—Chicago board may suspend member for dishonorable conduct. The enactment of a by-law providing for the suspension of a member for dishonorable conduct is within the powers of the Chicago board of trade.</p> <p>11. Corporations—presumption that president of corporation is crathorized to carry out its contracts. The president of a corporation is its chief officer, and is presumed to be authorized to carry out its lawful contracts.</p> <p>12. Same—when a corporation may expel member for dishonorable conduct. A corporation authorized by its charter to admit or expel members, and to make such rules, regulations and by-laws as the members think proper for the government of the corporation, may enact a by-law suspending a member for dishonorable conduct.</p>

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

George F. Blanks, Judge, presiding. This is an action brought by appellee against the appellant company to recover damages for a personal injury. The trial below resulted in verdict and judgment for the plaintiff, which judgment has been affirmed by the Appellate Court, and the present appeal is prosecuted from such judgment of affirmance. The declaration consists of three counts.

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hop. Richard S. Tuthill, Judge, presiding.</p> <p>This is an appeal from a judgment of the Appellate Court reversing a decree of the circuit court of Cook county in favor of the present appellants, against appellees, establishing a material-man’s lien.</p> <p>The following facts appear from the report of the master to whom the case was referred in the circuit court: On the first day of April, 1892, one Frank Compton owned lot 1, block 7, in Pitner’s addition to Evanston. On that day he made and acknowledged a plat subdividing said lot 1 into six lots, numbered from 1 to 6, inclusive, and conveyed them to Bernhard Fried by the description “lots 1, 2, 3, 4, 5 and 6, in Compton’s subdivision of lot 1, in block 7, in Pitner’s addition to Evans-ton.” Fried on the same day executed and delivered six trust deeds to Frank R. Chandler, trustee, one on each of said lots, to secure parties therein named in the sum of $1000 each, money loaned Fried, and six other trust deeds to George W. Cass, trustee, one on each of said lots, to secure the payment to other parties therein named sums of money loaned to Fried, aggregating $3000. On the same day Fried gave to petitioners below this order:</p> <p>“Chicago, III., April 1, 1892. “Messrs. T. B. Blanchard & Go.:</p> <p>“Gentlemen—Please deliver to Mr. F. Remus such lumber as he may need to build my six houses on Greenleaf and Asbury ave., South Evanston, and charge same to my account, and oblige. Tours truly,</p> <p>Bernhard Fried.”</p> <p>On the 11th of that month material began to be delivered on this order. The plat of the re-subdivision and the deed from Compton to Fried were filed for record April 19, and the trust deeds above mentioned were filed for record on April 20. All the material delivered to petitioners to that date amounted to only about $200.</p> <p>On October 3, 1892, petitioners filed in the office of the circuit clerk of Cook county a paper, which they claim in their petition was a sufficient statement, as required by statute. (3 Starr & Curtis, chap. 82, sec. 4.) It is as follows:</p> <p>“Evanston, III., Sept. 1,1892. “Mr. Bernhard Fried, Asbury Ave. and Greenleaf Street:</p> <p>1 ‘Bought of T. B. Blanchard & Co., Office and Yard, Railroad Track north of Depot:</p> <p>Feet. Pieces. Size. Length. Description. Price. April 11 1610 115 2-6 14 13* 21.74 (Í (( 990 30 2-10 20 15 14.85</p> <p>Then follows a long list of items, stated in the same manner as the first and second. It also shows certain items of material returned, for which credit is given, and foots up a balance due of $1693.67. No other remarks or explanations are made upon the face of the statement. It is verified by the affidavit of T. B. Blanchard, who swears that he is a “member of the firm of T. B. Blanchard & Co.; that the annexed statement of account is true and just; that Bernhard Fried is indebted to said firm of T. B. Blanchard & Co. for lumber and materials, as described in the annexed statement of account, after allowing him all the just credits and set-offs, in the sum of $1693.67; that all of said material was delivered at the request of said Bernhard Fried, on the dates mentioned in said statement, at the following described premises, where all of said material was used and for which buildings said material was ordered, to-wit, the houses now situated upon the following premises, to-wit: Lot 1, in block 7, in Pitner’s addition to Evanston, afterwards described as lots one (1) to six (6) inclusive, of Compton’s re-subdivision'of lot 1, in block 7, of Pitner’s addition to Evanston.” The six houses were erected on the six lots.</p>

<p>1. Insurance—power of mutual company to assess for surplus fund. A mutual fire insurance company organized under a statute which empowers it to raise money by assessment for the payment of losses only, has no power to make an assessment to create a surplus fund for the payment of future losses.</p> <p>2. Same—unauthorized assessment by mutual company may be disregarded by members. An assessment made by the managers of an incorporated mutual-fire insurance company largely in excess of an amount required to pay a loss, for which they are empowered by its charter to make an assessment, is void, and may be disregarded by the members.</p> <p>3. Same—payment of illegal assessment does not work estoppel. Violation by the managers of a mutual fire insurance company of the statute under which it is organized, in making assessments to provide for future losses, and payment of such assessments by a policyholder, will not estop the latter from questioning the validity of another assessment to pay future losses.</p>

<p>1. Instructions—a court need not give duplicate instructions. A requested instruction fully contained, in substance, in others given is properly refused.</p> <p>2. Fellow-servants—vice-principal—instruction as to apparent authority of offending servant. An instruction, in an action for injuries to a gripman upon a cable car, that it is immaterial whether the person exercising the authority to direct and command was known as a foreman or by any other title, if clothed with such apparent authority, is not objectionable, on the ground that the master is not liable for negligence of one having only a special or limited authority not arising from the performance of duty.</p> <p>3. Same—trial—whether a “starter” and a gripman are fellow-servants is a question of fact. It is a question of fact for the jury whether or not a “starter” ordering the moving of a cable street car was a fellow-servant with a gripman of such car, and acting as such, or stood in the relation of the representative of the common master, with authority to command such gripman.</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. This suit was brought under a section of the building ordinance of the city of Chicago, and is to recover the penalty for a violation of the ordinance. The section of the ordinance is as follows: “Sec. 49.

<p>Appeal from the County Court of Cook county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Contract—joint enterprise—construction of contract as respects right of parties to share profits. An agreement by which the parties unite for the sale of lands, providing that the profits realized shall be divided in a certain proportion and that said profits shall include any sum that may be received by either party in consideration of any aid rendered in consummating the sale, will include a bonus received by two of the parties under a contract with third parties.</p> <p>2. Same—for division of profits not affected by contract with third party. An agreement for the division of profits received from the sale of certain land and of any consideration received for aiding in the sale, cannot be affected by a provision of a second agreement between some of the parties to the first agreement and third parties that the former should have for themselves any bonus which might be received upon a particular transaction in respect to such lands.</p> <p>• 3. Interest—allowed on money received secretly by one to another’s use. Interest is allowable upon a share of profits agreed to be divided but secretly received and retained by one of the parties under an agreement with third parties.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

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

<p>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>

Arthur Chetlain, Judge, presiding. . This was a suit by appellant, against appellee, .to recover the value of appellant’s trunk and its contents, lost while in the possession of appellee as a common carrier, between Cincinnati, Ohio, and New York City. On May 30, 1889, the. plaintiff bought a ticket at Cincinnati for passage by the so-called “limited express train” over defendant’s road, to New York City.

<p>1. Trusts—express trust cannot be created by parol. An express trust cannot be created by paroí under the Statute of Frauds, providing that all declarations or creations of trusts or confidences of any lands, tenements or hereditaments shall be manifested or proved by some writing signed by the party.</p> <p>2. Partition—what interest will enable one to maintain bill. One who does not hold the legal title to a share of land cannot, in the absence of any writing showing that the legal title to a share in the land was held in trust for him, maintain a bill for partition.</p> <p>3. Same—one claiming through parol agreement to convey cannot maintain bill. One who has assigned a certificate of purchase of land to another as security for his indebtedness, and has made a subsequent parol agreement by which his creditor is to convey half the property to him, cannot maintain a bill for partition, where no specific performance of the contract is asked.</p> <p>4. Contract—token contract to convey is within the Statute of Frauds. A parol agreement by which one who has taken an absolute conveyance of land as security for the indebtedness of another is to retain the legal title to half of the land in satisfaction of such indebtedness and convey to the debtor the other half, is within the Statute of Frauds.</p> <p>5. Pleading—prayer for general relief in partition does not cover redemption from mortgage and accounting. Redemption from a mortgage, with an account as to the amount due thereon, cannot be granted under the prayer for general relief in a bill framed as for partition and making a special prayer for partition.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. L. C. Collins, Judge, presiding.</p>

Edward F. Dunne, Judge, presiding. Claude B. King, a boy between thirteen and fourteen years of age, was struck May 14, 1891, in the city of Chicago, by a Wabash passenger train, at the intersection of Seventieth street and the tracks of the Chicago and Western Indiana Railroad Company, and from the injuries received died May 16, 1891.

Samuel P. McConnell, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a decree of the circuit, court of Cook county, granting to appellee, Ransom W. Dunham, a' divorce from appellant, Elizabeth R. Dunham.

<p>1. Creditor’s bill—in aid of execution—return nulla bona not weessary. A bill to remove a fraudulent conveyance out of the way of an execution may he filed as soon as judgment is rendered, and without waiting for the return, unsatisfied, of an execution. 73</p> <p>2. Same—when conveyance to wife is voluntary as to creditors. A conveyance by a debtor to his wife is voluntary as to creditors where the only consideration therefor is certain sums of money furnished him by her at various times, ranging from seven to thirty years before the conveyance was made, for which no note, acknowledgment or promise of repayment was taken, no account kept or payment of interest required.</p> <p>3. Same—retention of insufficient property by debtor át time of making voluntary conveyance. Retention by a debtor, at the time of making a voluntary conveyance to his wife, of property of a speculative and uncertain value, consisting of shares of capital stock and credits upon the book of a corporation, which events soon after demonstrated to be insufficient to pay his debts, will not relieve the conveyance of its fraudulent character as to creditors.</p> <p>4. Evidence—when burden rests on insolvent debtor to disprove fraud. One found to be insolvent after having made a voluntary conveyance to his wife, has the burden of disproving the implication of fraud as against pre-existing creditors, which arises from the making of such conveyance.</p>

Murray F. Tuley, Judge, presiding. In the spring of 1887 the Atchison, Topeka and Santa Fe Railroad Company in Chicago sought to procure from the Chicago and Western Indiana Railroad Company terminal facilities in Chicago for the Atchison railroad system. Negotiations to this end were begun, and in March, 1887, two preliminary contracts were made, each referring to the other, and together constituting a single transaction.

<p>1. Negligence—slight negligence is compatible with the exercise of ordi-. nary care. An instruction, in an action for personal injuries, that slight negligence on the part of the plaintiff is not necessarily incompatible with due and ordinary care, is not erroneous.</p> <p>2. Same—'“ordinary care” defined. Ordinary care is that care which a reasonably prudent and cautious person would take to avoid injury under like circumstances.</p> <p>3. Instructions—should not take the question of defendant’s negligence from the jury. An instruction that a street car company should bring its car to a full stop long enough to enable a lady passenger desiring to alight to safely step to the ground, and that if while she was, with ordinary care, alighting, during such stop the car was suddenly started and the passenger injured, she is entitled to recover, is erroneous, as the acts set forth do not, as a matter of law, necessarily constitute negligence.</p> <p>4. Same—when erroneous instruction as to negligence is not cured by others. An erroneous instruction in an action for personal injuries, that if certain facts set forth are true plaintiff should recover, while such facts do not necessarily constitute negligence, is not cured by a further instruction that before plaintiff can recover the jury must find the defendant has been negligent.</p> <p>5. Same—it is not error to refuse duplicate instructions. It is not error to refuse instructions the substance of which is given in others of the series.</p>