Volume 164 — Illinois Reports

Louis; the Hon. B. H. Canby, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a judgment of the city court of East St. Louis in favor of appellee, against appellant, upon a certificate of insurance for $1500, insuring'appellee against total disability. The disability in this case arose from an injury to his arm, received while appellee was engaged, as engineer, in running a locomotive engine.

<p>Appeal from the County Court of Kankakee county; the Hon. John Small, Judge, presiding.</p>

<p>Appeal from the County Court of Champaign county; the Hon. John G. Thompson, Judge, presiding.</p>

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

<p>Whit op Error to the County Court of Cook county; the Hon. Frank Scales, Judge, presiding.</p>

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

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

Theodore Brentano, Judge, presiding. This was an action on the case, brought by appellee, against appellant, to recover damages for the death of her husband and intestate, Stafford Brady. In March, 1889, the deceased was an employee of the firm of Wilson & Fuchs, who were engaged in the operation of a laundry, their principal business being the cleansing of soiled towels and cloths, which, when cleansed, were used for wiping machinery.

<p>1. Continuance—party is chargeable with notice of terms of continuance. Complainant in a bill in chancery, though absent in Europe, is chargeable with knowledge of the terms and conditions on which his agents procure a postponement of trial.</p> <p>2. Same—ditty of party to whom continuance is granted upon conditions. A continuance granted a complainant on account of his solicitor’s illness on the express condition that should his solicitor’s illness continue he must procure another, imposes the duty of procuring other counsel if such illness continues, or of making a showing, when the time arrives, of inability to prepare for trial.</p> <p>3. Same—when trial ex parte is proper, in chancery, upon complainant’s default. Upon continuance of a chancery cause to a certain day on account of illness of complainant’s local solicitor, the court may at such time hear the case upon defendant’s evidence, though the solicitor is still ill, and an associate solicitor living at a distance, who was only notified the day before the time set, is also ill, where no motion to continue, setting up the facts, is made.</p> <p>4. Appeals and errors—when motion to vacate decree is properly overruled. Refusal of a court to vacate its decree dismissing bill will not be reversed on appeal, where complainant was defaulted for not preparing for trial or moving to continue, and the court was probably not satisfied, from any showing made, that he had a meritorious cause of action.</p>

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

<p>1. Interest—city not liable for interest except upon express contract. Interest is not allowable against a municipal corporation by a master in chancery, upon a sum found due upon an accounting in chancery to a contractor for putting in a filtering plant, where there is no agreement to pay interest.</p> <p>2. Municipal corporations—ratification by city of unauthorized purchase of tools. Though a city employee had no authority to purchase for the city a certain tool which had been furnished by a contractor, yet upon appropriation of the tool to its use the city becomes liable to pay for the same.</p>

Writ of Error to the Appellate Court for the First District;—heard iu that court on appeal from the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.

<p>1. Res judicata—a judgment settles question involved, though not specifically named. A question which is involved within the issues of a former controversy is conclusively settled, as between the .parties, by the decision in that controversy, whether the court, in its judgment, passed specifically on that particular question so involved or not.</p> <p>2. Sa-me—when judgment involving the validity of a contract is binding. A judgment in a suit in which one side contended that a trackage agreement between railroad companies existed ánd was binding as an entirety, and the other side denied the validity of the contract or any of the terms or conditions thereof, is conclusive in a subsequent suit of the power of one of the companies to make such agreement, whether as lessor or lessee.</p> <p>3. Appeals and errors—when overruling demurrer to good replications is not error. The overruling of a demurrer to replications to pleas is not material and reversible error where the defendant has the benefit of the defense stated in such pleas under other pleas filed in the case.</p> <p>4. Same—e?Tora not available on appeal unless exceptions thereto are preserved. Error in refusing to allow a motion for leave to withdraw a demurrer to a replication and to file a rejoinder to the replication is not available on appeal, where no exception to the ruling on the motion is preserved by bill of exceptions.</p> <p>5. Evidence—of experts not admissible as to cost of keeping tracks in repair. Expert evidence that the cost of keeping a railroad in good repair is less when the traffic is less is inadmissible in mitigation of damages for breach of a trackage agreement between railroad companies, which provides that when the compensation for mileage shall be less than would be produced by the operation of a certain number of trains per day the difference between such compensation and that produced by such operation shall be paid.</p> <p>6. Landlord and tenant—when covenant can be maintained on lease. Covenant can be maintained on an absolute agreement to pay rent where there is a demise and the lessor is not in fault in preventing actual enjoyment, although the tenant has not taken possession of or used the demised premises.</p>

0.1ST. Carter, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment of the county court of Cook county, sustaining exceptions to the claim of appellants against the insolvent estate of the Wilson & Bayless Company.

Peoria county; the Hon. Thomas M. Shaw, Judge, presiding. A bill in chancery was filed by appellant in the circuit court of Peoria county seeking to set aside certain conveyances of real estate made by her, on the ground of false and fraudulent misrepresentations made to her, and also to have declared void a notary public’s acknowledgment to a deed conveying her homestead.

Writ of Error to the Circuit Court of Adams county; the Hon. Oscar P. Bonney, Judge, presiding.

<p>1. Voluntary assignments—rights of creditors upon fraudulent discontinuance. Where, by fraudulent discontinuance of assignment proceedings, the trust funds are withdrawn from the control of the court within the time allowed by law for creditors to file claims, the fact that a creditor not assenting to such discontinuance failed to file his claim before the court lost jurisdiction does not prevent him from pursuing the trust funds.</p> <p>2. Same—assets cannot be used to procure assent of creditors to discontinuance. The assent of creditors to a discontinuance of assignment proceedings, provided for by statute, (Laws of 1879, p. 57,) must be voluntary, and the estate cannot be used in buying up claims to procure such assent. (Howe v. Warren, 154 Ill. 227, and Terhune v. Kean, 155 id. 506, followed.)</p> <p>3. Same—upon discontinuance the unadministered estate is subject to creditors’ claims. Upon discontinuance of assignment proceedings by consent of creditors, the estate cannot, as against creditors, be turned over to a trustee to hold as security for money advanced to buy up the assenting creditors’ claims, as such a transaction is void; nor will it be validated by the fact that the one who made such advances was himself a creditor of the estate, attempting in such manner merely to secure priority.</p> <p>4. Same —claims bought at discount cannot be set up at face value. A creditor of an assigned estate who buys at a large discount a majority of the claims, thereby procuring a discontinuance of the proceedings by consent, cannot, upon bill filed by a non-assenting creditor to reach the unadministered assets, set up against such fund the face value of the purchased claims, as he is entitled only to the amount expended.</p> <p>5. Creditor’s bill—when it lies to reach assets of insolvent—decree not excessive. After a fraudulent discontinuance of assignment proceedings a non-assenting creditor may assert, in equity, his right to assets fraudulently transferred, and may be decreed his claim in full, where all other claims are satisfied and enough funds have been fraudulently disposed of to have paid his claim.</p>

<p>Mortgages—conveyance absolute upon its face is subject to parol explanation. A certificate of sale, and the sheriff’s deed based thereon, for certain land, are not conclusive of their true character, and it is competent to show by parol that they were, by agreement between the owner and the purchaser, intended as a mortgage.</p>

Dorrance Dibell, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Second District, affirming, on a writ of error, the… Held: and no action has been taken by the corporation, or any director or stockholder, in disaffirmance of the proceedings at that meeting or in repudiation of the note or mortgage. The record of the meeting in the book of the corporation was notice to its members, and the mortgage was recorded on the day of its execution.

Richard W. Clifford, Judge, presiding. This is an action of ejectment by appellant, against appellee, to recover a tract of land described in the declaration as a certain parcel of land, with the… Held: and others modified. The errors assigned are, refusal and modification of propositions, the admission óf the plat in evidence, and the finding by the court on the evidence.

<p>1. Parties—necessary parties to proceeding to remove trustees. The cestuis que trustent in a fund created by will are necessary parties to a chancery proceeding to remove the trustees appointed by the will and appoint others in their place.</p> <p>2. Same—appointment of new trustee is invalid as to beneficiaries not parties. The removal of trustees named by a will and appointment of new ones by the court, in a chancery proceeding, are invalid as to beneficiaries in the trust who are not made parties, and the trustees so appointed cannot, by act or contract, bind the rights or interests of such beneficiaries.</p> <p>3. Trusts— turning over of trust funds to new trustee—when a wrongful diversion. The turning over of trust funds to a new trustee appointed by the court in a chancery proceeding in which the former trustees were removed, is, as to beneficiaries who are not parties, a wrongful diversion of such funds.</p> <p>4. Same—when trust funds are wrongfully diverted by trustee. Where a specific sum of money is given by will to a trustee to invest as a fund, the investment of the money by him in the opening and operation of a coal mine is, in the absence of express authority, a wrongful diversion of such fund.</p> <p>5. N otioe—effect of, by partner, that trust funds-are wrongfully invested in partnership. One who has notice that the investment by a trustee of trust funds in a partnership is a wrongful diversion of such fund, yet enters into such partnership, cannot, on the death of the trustee and the occupation of the partnership property by the reversioners in the trust, compel an accounting in equity from them for money invested in the partnership.</p> <p>6. Same—effect of, as to lien. One having notice that a trustee has wrongfully invested trust funds in the opening of a coal mine, who advances him money to develop the same, cannot, upon the death of the trustee and occupation by the reversioners in the trust, have his advances declared, in equity, a lien upon such mine.</p> <p>7. Improvements—when reimbursement allowed for money advanced in improving lands. Reimbursement for improvements made upon lands of others through confidence in a defective title will not be allowed, except where the true owners seek relief in equity.</p>

Henry B. Willis, Judge, presiding. This was a bill in chancery filed in aid of an execution, and to set aside certain conveyances of real and personal property and subject them to the lien of the execution.

Writ of Error to the Circuit Court of Sangamon county; the. Hon. Jacob Fouke, Judge, presiding. This was an action brought by the Union Central Life Insurance Company against Bradford E. Durfee, insuranee superintendent of the State, to recover back the sum of §5427.43 paid under protest.

<p>Writ of Error to the County Court of Cook county; the Hon. Frank Scales, Judge, presiding.</p>

Oliver H. Horton, Judge, presiding. The original decree herein was entered in the circuit court of Cook county. It was afterwards affirmed, on appeal, by the Appellate Court for the First District, and this further appeal then taken.

John D. Crabtree, Judge, presiding. On May 7, 1892, appellee as administrator of the estate of Abram Ulmer, deceased, filed an affidavit in the county court under section 81 of the Administration act, charging that appellant and one Jarvis Dinsmoor, acting as attorneys for said estate, had collected $1030.00 belonging thereto, and retained and refused to pay over $730.00 of said amount to appellee, as administrator, although often requested so to do.

Francis Adams, Judge, presiding. The appellee filed its bill in equity to restrain appellant and its commissioner of public works from removing, or causing to be removed, the railroad tracks, side-tracks, switches and turn-outs which constitute the railroad connecting appellee’s stock yards on the west with the Illinois Central and Michigan Central railroads on the east, and with intermediate connecting roads, in pursuance of a resolution of appellant’s city council adopted…

<p>1. Canals—construction of charter as to right to charge tolls. Tolls cannot be collected upon tugs carrying no passengers or freight, but used for the towage of vessels carrying the same, under the charter of a canal company authorizing tolls and charges “upon all boats, vessels, steamboats and other craft used for the transportation of freight and passengers.”</p> <p>2. Same— construction of particular words of a canal charter. The power to impose tolls is not limited to vessels used for the transportation of both passengers and freight at the same time, by the charter of a canal company providing that it may regulate tolls arid charges upon all vessels used “for the transportation of freight and passengers,” as the word “and” has the same meaning-as “or.”</p> <p>3. Same—power to charge tolls against tugs—when not implied. The privilege of charging tolls against tugs cannot be implied from the charter of a canal company which does not expressly grant such privilege but grants it as to other vessels.</p> <p>4. Same—power of canal company to charge tolls limited by its charter. A canal company has not, as owner of the canal, the common law right of owners to exact compensation for the use of their property, but is limited to the rights conferred by its charter.* </p>

Writ oe Error to the Circuit Court of St. Clair county; the Hon. A. S. Wilderman, Judge, presiding. One John Grimmer died testate April 25, 1873, leaving at the time of his death a widow, five sons and four daughters.

<p>1. Dedication —of land for public highway—what must be shown. To establish a common law dedication of land for a highway it must be proved, clearly and unequivocally, that there was an intention to dedicate and an acceptance by the public.</p> <p>2. Highways^when instructions as to dedication are erroneous. Instructions that the existence of a highway depends entirely upon the fact of dedication by the original owner are erroneous, where there is evidence tending to show dedication by subsequent owners.</p>

<p>Appeal from the Appellate Court for the Third District;—-heard in that court on writ of error to the Circuit Court of Adams county; the Hon. Oscar P, Bonney, 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. Abner Smith, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Wayne county; the Hon. C. 0. Boggs, Judge, presiding.</p>

<p>1. Pleading—when court does not abuse its discretion by not allowing plea. After joinder of issue upon a plea of nil debet, without demurrer, it is not an abuse of discretion for the court to refuse .to allow a plea of release, as release may be proved under nil debet.</p> <p>2. Evidence—effect of permitting witness to testify as to amount due on bond. Where the appeal bond sued on and the orders of affirmance of the Appellate and Supreme Courts are in evidence, it is improper to permit a witness to testify as to the amount due upon the bond, but such testimony is not ground for reversal.</p> <p>3. Same—exclusion of evidence already in the record. Where evidence is in the record, given by one party and not withdrawn, the refusal of the court to admit the same evidence when proffered by the other party is not ground for reversal, where the court considers the evidence the same as if given by such other party.</p> <p>4. Surety—successive appeal bonds are cumulative securities. A surety upon a supersedeas bond filed on appealing a quo warranto proceeding to the Appellate Court is not released from liability on-such bond by the execution and approval of a bond, with a new surety, for a further appeal of the cause to the Supreme Court, the bonds being in such case cumulative securities.</p> <p>5. Appeals and errors—errors in favor of party complaining are harmless. One against whom a judgment has been rendered cannot be heard to object, upon appeal, that the judgment was for too small an amount.</p>

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

<p>1. Insurance —valid contract of, may be made by parol. Corporations authorized by their charters to make contracts of insurance by issuing written policies are not precluded from entering into parol contracts to effect the same object.</p> <p>2. Same —suit may be maintained, to recover loss, on parol contract for insurance. Suit for loss may be brought upon a parol contract for insurance as well as upon the written policy, as the cause of action and measure of damages are the same, and the policy, being based upon the contract, can contain no elements different therefrom.</p> <p>3. Same—parol promise to issue policy on an application completes contract. A parol promise to issue a policy of insurance upon an application presented completes the contract of insurance though no premium is paid, unless the premium is demanded as a condition precedent.</p> <p>4. Same—effect of paying after loss without giving notice. The paying of a premium after a loss has occurred under an oral contract of insurance, without disclosing the loss, is not fraud, as the insured owes the company no duty to disclose the loss before paying. .</p>

Theodore Brentano, Judge, presiding. This was a bill in equity brought by William F. Manley, against Alvin E. Crocker, (the appellant,) the San Javier Mining and Milling Company and T. C. Mills, to set aside conveyances from Manley to Crocker, and from the latter to Mills, of certain real estate in Oak Park, a suburb of Chicago, claimed to be worth $22,500, which conveyances, it was alleged, were procured by fraud and false representations.

John Barton Payne, Judge, presiding. This was an action brought by appellee, against appellant, to recover rent for the months of February, March and April, 1894,' at $68 per month, on a lease under seal, dated April 5, 1893, and expiring April 30,1894. At the May term, 1894, of the Superior Court of Cook county a trial by jury was had, resulting in a verdict for defendant, appellant here. This verdict was, on motion, set aside and a new trial ordered.

<p>1. Receivers—receiver’s mere affidavit does not make him a party to foreclosure suit of his insolvent. An affidavit filed in a foreclosure suit, stating merely that the affiant had been appointed as complainant’s receiver, is not sufficient to make him a party to the suit, in the absence of an order of the court.</p> <p>2. Same—order appointing receiver does not vest in him title to debtor’s property. An order of the court appointing a receiver under a creditor’s bill does not confer upon him title to his insolvent’s property.</p> <p>3. Same—rights of receiver as to property transferred previous to his appointment. The order of a receiver’s appointment by the court under a creditor’s bill, gives to him, as to property previously transferred, only the right to an action to set aside the transfers if made in fraud of creditors, and his right must be asserted by affirmative action.</p> <p>4. Same—to reach proceeds of a foreclosure sale the receiver must act affirmatively. An order obtained in a foreclosure suit by the complainant’s receiver who is not a party, reserving direction of the payment of proceeds of sale for a further decree, does not authorize such receiver to remain passive for years and to then assert his claims after the rights of third parties have intervened.</p> <p>5. Same—rights of assignee of foreclosure decree—what is not notice of receiver’s rights. An affidavit filed by a receiver in a foreclosure suit, stating that he had been appointed receiver for the complainant, under a creditor’s bill, is not such notice of his rights in the suit as will affect the rights of an assignee of the decree rendered therein, where the assignment was made six years after the creditor’s bill had been dismissed for want of prosecution, and all action by the receiver in the foreclosure had been abandoned.</p> <p>6. Courts—effect of nunc pro tunc order reinstating suit once dismissed. A court has no power to reinstate a creditor’s bill dismissed ten years before for want of prosecution, so as to give it effect for the period during which it had been off the docket.</p> <p>7. Laches—effect of receiver's slumbering on his rights. A delay of fourteen years after a decree has been rendered in a foreclosure suit, during which time the principal witness has died, will, in the absence of fraud, bar the right of a receiver of the complainant in the suit to have the proceeds of the decree paid to him, where rights of innocent third parties have intervened and there is no reasonable excuse for the delay.</p>

Writ of Error to 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>1. Ratification—of forged instrument is not implied, from doubtful evidence. The ratification of a forged instrument is not to be implied from a doubtful state of facts.</p> <p>2. Corporations—forged assignment of certificate of stock confers no rights. A corporation canceling assigned certificates of stock and issuing new certificates therefor to the assignees acts at its peril, and if such assignment is forged, the true owner of the stock, in the absence of ratification by him, may, in equity, compel the corporation to issue new certificates in lieu of those canceled, though the assignees were innocent purchasers thereof.</p> <p>3. Parties—to bill to compel corporation to re-issue stock canceled upon forged assignment. The holders of certificates of stock issued to them by a corporation on cancellation of other certificates bearing a forged assignment, are not necessary parties to a bill by the true owner to compel the corporation to issue new certificates.</p> <p>4. Pleading—when bill of interpleader cannot be maintained. A corporation having re-issued stock to assignees upon forged assignments, cannot, when made defendant to a bill by the true owner to compel it to issue to him new certificates, maintain a cross-bill as a bill of interpleader to settle the title to the stock as between the owner and the assignees, particularly where the cross-bill contains no allegation that such owner was insolvent or that its compliance with his demand would be an over-issue of stock.</p>

Oscar P. Bonney, Judge, presiding. The following are the five instructions, given at the request of the plaintiff below, which are commented and passed upon in the opinion of the court: 1. “The court instructs the jury that while, as a matter of law, the burden of proof is upon the plaintiff and it is for him to prove his case by a preponderance of the evidence, still if the jury find that the evidence bearing upon the plaintiff’s case preponderates in his favor, although…

<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. Justices of the peace -for city of Chicago—succession designated by judges is binding. The successorships of the several justices of the peace as recommended to the Governor for the city of Chicago by the circuit, Superior and county judges, under section 28, article 6, of the constitution, and section 1 of the act in pursuance thereof, (Laws of 1891, p. 152,) are binding, and cannot be changed by the Governor in making the appointments.</p> <p>2. Same—ejfeci of wrong designation of successorship by Governor. A justice of Chicago designated by the judges to be his own successor may continue to hold the office, as in default of a qualified successor, notwithstanding the Governor rejects his name, and in his appointment assigns as his successor another person from the judges’ list, and the Senate confirms the appointment as made.</p> <p>3. Same—county clerk cannot designate successorships. The county clerk of Cook county has no power to designate the successorships of the several justices of the peace recommended by the judges and appointed by the Governor for the city of Chicago.</p> <p>4. Constitutional law—effect of contemporaneous construction. A contemporaneous construction of a provision of the constitution by those required to act under it, which violates the terms of the provision itself, is riot binding.</p>

Writ of Error to 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>1. Partnership—members of a joint stock association are liable as partners. The members of an unincorporated joint stock association are partners, and each member is liable for the debts of the association, unless he has shifted his liability in the mode pointed out in the articles of association.</p> <p>2. Same—when remaining members of association become a new firm. Remaining members of a joint stock association constitute, among themselves, a new firm without special agreement to become such, after retirement of former partners by purchase of their stock by the association, where they continue the business as before.</p> <p>3. Same—what will show an assumption of firm debts by remaining partners. Continuance of a banking business by a joint stock association, without any change of method, after former partners had retired by sale of their stock to the association, will show an assumption of the association’s debts by the remaining members, where the assets of the association exceeded its indebtedness, and depositors were credited and debited on the same pass-books without balancing them up to the time of forming the new partnership.</p> <p>4. Parties—when former partners need not be joined as defendants. In the absence of evidence showing an agreement by retired partners to remain liable, the remaining partners cannot, when sued for a partnership debt, sustain a plea of non-joinder of such former partners, where those remaining had fully consented to the retirement, and had, by acts and conduct, assumed the firm debts. (Page v. Brant, 18 Ill. 37, and Edwards v. Dillon, 147 id. 14, distinguished.)</p> <p>5. Same—when an equitable owner of stock need not be joined. An equitable owner of stock in an unincorporated association need not be joined as defendant, where such stock is held by a trustee under a declaration of trust, and such equitable owner did not know of the trust and was not regarded as a stockholder either by the association or the public.</p> <p>6. Evidence—admissions made in a bill in chancery are competent. Upon the question raised by a plea of the non-joinder as defendants of certain alleged members of an unincorporated association, a bill in chancery for a receiver by the members filing such plea, describing themselves as the association’s stockholders, is admissible.</p>

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the County Court of DeWitt county; the Hon. George K. Ingham, Judge, presiding.

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

<p>1. Limitations —when seven years’ payment of taxes on vacant land will defeat ejectment. Seven years’ payment of taxes on vacant land, made under color of title procured when the land was unoccupied, coupled with possession by the claimant after the expiration of the seven years, will bar an action of ejectment.</p> <p>2. Same—possession by paramount owner defeats title obtained by seven years’ payment of taxes. Uninterrupted possession of vacant land by the owner of the paramount title during any portion of the period of seven years for which another pays the taxes under color of title will defeat the title based on such payment.</p> <p>3. Adverse possession—intruder cannot justify trespass by showing an outstanding title in stranger. A mere intruder upon the notorious adverse possession of another cannot justify his trespass and intrusion under an outstanding title in a stranger, in the absence of evidence connecting him with such outstanding title.</p> <p>4. Instructions—an instruction which sing’es out particular facts is bad. An instruction which singles out particular facts from the evidence and prominently calls the attention of the jury to them is properly refused.</p> <p>5. Evidence—competency of tax deed when affidavit on which it was issued is insufficient. On trial of an action of ejectment a tax deed offered by defendant is properly excluded as evidence of paramount title, when the affidavit on which it was issued fails to show a compliance with section 216 of the Revenue act, (Rev. St at. 1874, p. 893,) but it is admissible to show color of title.</p> <p>6. Same —deposition need not be suppressed when opened by order of court. A deposition should not be suppressed for the reason that the clerk of the court opened the same and marked it filed, when such act is done by the authority of the court.</p> <p>7. Same—acts sufficient to show possession of unenclosed lands. Evidence that the party holding title to unenclosed lands visited the land nearly every week, pastured horses on it, set out trees, directed the erection of a small house, dug a well, and for more than twenty years mowed the land or let it to others to mow, and that the land was recognized and spoken of as his land, will justify the finding by a jury that such party had been in the adverse, open and notorious possession of the land for over twenty years.</p>

Oscar P. Bonney, Judge, presiding. Henry Kent died testate in Adams county on the 13th of August, 1878.

<p>This case is controlled by the opinion in People ex rel. v. O'Toole, (ante, p. 344.)</p>

<p>1. Parties—foreclosure for drainage tax rums in name of People. A bill to foreclose the lien for a drainage tax brought under section 253 of the Revenue act, as amended in 1881, (Laws of 1881, p. 130,) is properly brought in the name of the People alone, rather than for the use of the drainage district.</p> <p>2. Drainage—provision as to foreclosure of lien for taxes applies to drainage tax. A bill is properly filed under section 253 of the Revenue act, (Laws of 1881, p. 130,) for the foreclosure of a drainage tax, although the district levying the tax was organized under the act of 1879, (Laws of 1879, p. 120,) passed before statutory provision had been made for such foreclosure.</p> <p>3. Same—a single forfeiture for two years' taxes supports foreclosure. Forfeiture in two separate years is not a prerequisite to a bill to foreclose a lien for drainage taxes, under the statute (Laws of 1881, p. 130,) requiring that “taxes for two or more years upon the same description of property shall have been forfeited to the State,” but it is sufficient that there is a forfeiture in one year for the taxes of two years.</p> <p>4. Parties—wife of owner not necessary parly in suit to foreclose for taxes. The wife of the owner of land is not a necessary party to a bill to foreclose a lien for drainage taxes on the ground of her homestead right, as the tax lien is superior'to such right.</p> <p>5. Same—mortgagees not necessary parties to tax foreclosure. Mortgagees are not necessary parties to a bill to foreclose a lien for drainage taxes, as the superiority of the latter lien over the mortgage cannot be made the subject of litigation.</p> <p>6. Judgments—against lands for drainage taxes—collateral attack. The judgment of the county court against lands for drainage taxes cannot be collaterally attacked in a bill filed to foreclose the lien thereof, upon the ground that the aggregate of the assessments was greater than the debt to be paid.</p> <p>7. Estoppel—when land owner cannot dispute validity of drainage assessment. A land owner who recognizes the validity of drainage assessments by participating in the proceedings, and consents to a compromise of differences concerning them by an arrangement under which the bondholders give up substantial rights, is estopped to dispute the validity of the assessments.</p> <p>8. Interest—when installments of drainage assessment draw interest before due. Interest is properly allowed upon installments of drainage assessments not due, although the act under which the district was originally organized provided that installments should draw interest only from the time they became payable, where the original division was set aside and a new division into installments made after the passage of the amendatory act (Laws of 1885, p. 121, sec. 31,) providing that installments should draw interest from the time of confirmation until paid.</p>

<p>1. Fixtures—when article retains its personal character though attached to real estate. Machinery placed in a mine by the lessee does not become a part of the realty so as to pass to the lessor when it may be severed without material injury to itself or the realty, and the intention that it should retain its personal character is evident.</p> <p>2. Same—effect of levying attachment upon property as personalty. The levying of an attachment by a lessor of a mine upon property of the lessee is strong evidence that he does not regard such property as part of the realty.</p> <p>3. Acknowledgment—sufficiency of acknowledgment of chattel mortgage—mortgagor's residence. .Acknowledgment of a chattel mortgage at the home office of a corporation mortgagor is a sufficient compliance with the statute requiring chattel mortgages to be acknowledged where the mortgagor resides.</p> <p>4. Mortgages—validity of mortgage on mining machinery as against lessor of mine. A mortgage executed by a lessee of a mine upon machinery purchased from the mortgagee, which provides that the machinery shall not become a part of the realty by being annexed thereto, is not invalid as against the lessor.</p> <p>5. Same—effect where mortgagor retains property after maturity of debt —attachment. Mortgaged property found in the mortgagor’s possession and levied upon under a writ of attachment after the maturity of the mortgage debt, cannot be subsequently taken and held under the mortgage, as against the attachment, unless the attachment lien is discharged by payment of the judgment.</p>

Alfred Sample, Judge, presiding. This is an action of assumpsit, brought on January 25, 1894, by appellant against appellee to recover $3750.00, or two and one-half per cent on $150,000.00 of… Held: pursuant to notice, on October 27, 1891, at which all the shares of stock were represented, and at which appellant was elected temporary chairman, the number of directors was fixed at eleven, and all of the eleven subscribers to the stock were elected directors.

<p>On the authority of Fuller v. Shedd, 161 Ill. 462, the decree of the Superior Court of Cook county in these cases is affirmed.</p>

Charles J. Scofield, Judge, presiding. The appellants, William P. Hammond, Ruth H. Hammond and Mary E. Hammond, who were the defendants below, prayed and were allowed an appeal from the judgment of the circuit court upon giving bond by them or either of them. The appeal bond of William P. Hammond, one of the defendants, was filed, with sureties, as required by the order of court, which bond was duly approved.

James A. Creighton, Judge, presiding. This is a suit on an insurance policy, brought by J. A. Mendenhall against the Home Insurance Company of New York. On the 27th day of October, 1889, Mendenhall procured from one W. S. Eearick, the agent of the Home Insurance Company at Ashland, Illinois, a policy of insurance on two dwelling houses and certain household goods, situated near Pleasant Plains, in Sangamon county, Illinois, aggregating in amount some $5300.

<p>Constitutional law—act requiring husband and wife to .join in mortgage on household goods is constitutional. The act requiring husband and wife to join in the execution of a chattel mortgage on household goods (Laws of 1889, p. 208,) is not unconstitutional, as not having the subject thereof embraced in the title. (Gaines v. Williams, 146 Ill. 450, followed.)</p>

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

<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>

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p>

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

<p>1. Attorneys at law—evidence to support alloioance of fees should be preserved in the record. An allowance of a solicitor’s fee cannot be sustained where no evidence showing what services the solicitor performed, or the value thereof, is preserved in the record.</p> <p>2. Same—-fee allowed should be the customary fee, and not the reasonable worth of the particular service. In fixing the amount of a reasonable solicitor’s fee the inquiry should be, not what an attorney thinks is a reasonable fee for the services in the particular case, but what is the customary fee in such cases where the fee is the subject of contract between solicitor and client.</p> <p>3. Partition—section 40 of Partition act construed as to what is a proper statement of parties’ interests. The interests of the parties required to be set forth in the bill under section 40 of the Partition act, (Laws of 1889, p. 215,) include every interest, whether in fee, for years, life or in dower, of all parties who are entitled to. the reversion, remainder or inheritance, or who may be or become entitled to any beneficial interest in the premises.</p> <p>4. Same—section 40 of Partition act construed as to what is a substantial defense. A defendant in Partition should be exempted from paying a part of his adversary’s solicitor’s fee, although the interests of the parties are properly set forth in the bill, where his defense is substantial in character, made in good faith and on reasonable grounds, and interposed to what he believes is a hostile attack on his interests, although such defense may prove unsuccessful. (Walker v. Tink, 159 Ill. 323, distinguished.)</p>

<p>1. Banks—effect of draioing check upon deposit in hank. Drawing and delivering a check upon a fund in bank is, in effect, an assignment of the fund, and grounds an action by the holder directly against the bank.</p> <p>2. Bills and notes—innocent holder of hank check not affected hy want of consideration. The legal rights of the holder of a check upon a bank are not affected by failure or want of consideration as between former parties, unless it is shown he has notice thereof.</p> <p>3. Same— holder of hank check is presumed to he innocent. A bank check payable to a certain person or order is negotiable, and a plaintiff suing thereon is presumed to be a hona fide holder for value, without notice of defenses existing between prior parties.</p> <p>4. Trial—when trial court may direct a verdict for plaintiff. In the absence of any proof that a plaintiff who sues on a bank check had notice of a want of consideration for-such check existing between prior parties and interposed as a defense, it is proper for the trial court to direct a verdict for plaintiff.</p>

<p>1. Taxes—the statutory method of taxing property must be substantially followed. The method prescribed by statute to subject property to the burdens of taxation must be substantially complied with before the property can be taken and sold in satisfaction of the tax.</p> <p>2. Same—sections 110 and 116 of the Boad and Bridge act, concerning road taxes, are mandatory. The provisions of sections 110 and 116 of the Road and Bridge act, (Laws of 1883, p. 137,) requiring the overseer of highways to deliver his sworn list of road taxes to Ms town supervisor, and requiring such supervisor to present the same to the board of supervisors at their annual meeting, are mandatory.</p> <p>3. Same—supervisory power over road tax levy is vested in the board of supervisors. Section 117 of the Road and Bridge act vests in the board of supervisors a supervisory power over the road tax lists prepared by-the highway commissioners, to correct the same if not in conformity to the law, and to authorize the county clerk to extend the delinquent list upon Ms books.</p> <p>4. Same—road tax illegal when list was never before board of supervisors. A road tax entered by the county clerk as delinquent at the request of commissioners of highways, cannot be sustained where the list describing the same was never delivered to the town supervisor or submitted to the board of supervisors,.as required by law.</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. Edmund W. Burke, Judge, presiding.</p>

<p>1. Special assessments—erroneous confirmation cannot he attacked collaterally. A judgment of confirmation of a special assessment, merely erroneous and not void, cannot be attacked collaterally on application for judgment against the property for the tax.</p> <p>2. Taxes—tax must he upon lands that can he identified. An application for judgment for a delinquent special assessment is a proceeding against the land, and if the land cannot be identified the judgment will be void.</p> <p>3. Same—when judgment will he refused for leant of proper description. Judgment against land for a delinquent assessment is properly refused where such assessment was confirmed against supposed lots by their numbers, when, in fact, the land in question was a single tract, which had never been subdivided into any such lots at the time of the confirmation.</p> <p>4. Same—court need'not enter a void judgment. Although a judgment against lands for a delinquent tax would be a nullity for want of any tracts answering to the description given, the court may, on objection, refuse to enter such judgment.</p>

Frank Baker, Judge, presiding. This is an action brought by appellant against the appellee company to recover damages for a personal in: jury. The declaration contains two counts, an original count and an additional count; but the allegations in the two counts are substantially the same, so far as the point involved in this controversy is concerned.

<p>1. Building contract—superintending architect cannot delegate his authority. A superintending architect authorized by the building contract to issue certificates of work to the contractors cannot delegate authority to another to issue valid certificates of such work.</p> <p>2. Same—negligence of superintendent does not bind owner. Failure of an acting superintendent to object to a defective job of plastering as the work progresses is not a waiver of the provisions of the contract, and such failure does not bind the owner.</p> <p>3. Same—contractors are chargeable with knowledge of their own defective work. Contractors for the plastering of a building are bound to know of defects in their work, and of the failure of such work to comply with the contract, without being advised thereof by the superintendent.</p> <p>4. Same—acceptance of work does not waive latent defects. Latent defects in work under a building contract, which defects are not open to inspection, are not waived by the acceptance of the work in ignorance of their existence.</p>

O. N. Carter, Judge, presiding. This appeal was taken from the county court of Cook county on a judgment of sale entered August 10, 1896, against certain lots of appellants, upon the application of the county treasurer for a judgment for the amount due and unpaid on such lots upon special assessment warrant No. 17,260.

<p>1. Elections—members of the legislature are not State officers. The term “State officers,” as used in section 10 of the Ballot act, (Laws of 1891, p. 109,) is intended to embrace only those officers of the State who are elected, on a general ticket, by the electors of the entire State, and does not include members of the legislature.</p> <p>2. Same— State board of review cannot decide contested nominations for member of the legislature. The Attorney General, Auditor and Secretary of State are authorized by section 10 of the Ballot act to decide contested nominations for State officers only, and have no authority to decide a legislative contest.</p> <p>3. Same—Chicago election commissioners may decide contested nominations for legislature in city districts. The board of election commissioners of the city of Chicago is the proper tribunal, under the proviso to section 10 of the Ballot act, to decide contested nominations for member of the legislature in a senatorial district which lies wholly within the city.</p>

James Goggin, Judge, presiding. On the 10th day of December, 1894, the United States Heater Company, a corporation, commenced an action of assumpsit in the Superior Court of Cook county against J. M. Devine, Charles P. Meyers and M. P. Keenan, a firm doing business as the Western Steam and Hot Water Heating Company.

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from. the Circuit Court of Wayne county; the Hon. Carroll C. Boggs, Judge, presiding.</p>

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

Francis M. Wright, Judge, presiding. This suit was brought by the appellee, against S. R. Callaway, receiver of the Toledo, St. Louis and Kansas City Railroad Company, in the circuit court of Coles county, to recover damages for a personal injury received by being struck by a locomotive. The accident occurred on a railroad bridge of the company, in June, 1893, the road at the time being in said receiver’s hands.

JST. W. Green, Judge, presiding. Eliza Gullett exhibited her bill in chancery in the circuit court of Woodford county on the 25th day of June, 1894, showing that she and one Robert Gullett were tenants in common and owners in equal moieties of the southeast quarter of section 9, township 27, north, range 1, west of the third principal meridian, in Tazewell county; that they derived title through James Gullett, who died, on the 15th day of December, 1893, testate and without…

<p>1. Special assessments—certificate reciting that notice was published “five times” is insufficient. A certificate of publication reciting that a notice of assessment and final hearing had been published “five times” is insufficient, as not showing a compliance with the statute requiring such notice to be published at least “five successive days.” (Laws of 1885, p. 62.)</p> <p>2. S ame—sufficient certificate of publication necessary to valid judgment of confirmation. A judgment of confirmation cannot be sustained, on appeal, though the defendants were defaulted at the hearing, where the certificate of publication of notice required by statute is insufficient.</p>

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

<p>1. Charters—provision of Chicago chai-ter concerning reference of ordinance to committee, repealed. The provision of the Chicago charter of 1863, that ordinances should be referred, on presentation, to a committee of the council and acted upon at a subsequent meeting, was superseded by the city’s adoption of the general Incorporation act of 1872. (Swift v. People, 162 Ill. 534, followed.)</p> <p>2. Appeals and errors—intendments are against the pleader, on appeal. A fact upon which an assignment of error is based, and which is capable of positive proof, will not be regarded as proved, on appeal, where the record merely shows circumstances from which its existence might probably be inferred.</p>

<p>Special assessments—ordinance need not specify when installments shall he due. An ordinance which provides that an assessment shall be divided into and collected by installments, in accordance with the terms of section 55, article 9, of the City and Village act, as amended in 1891, (Laws of 1891, p. 82,) and which properly fixes the amount of the first installment, is sufficient. .</p>

Henry B. Willis, Judge, presiding. This was a bill in equity, brought by appellee to set aside a trust deed executed by Henry L. and Lucy M. Glos to Fred H. Blume, trustee, as a cloud upon her title to the premises described in the bill.

<p>1. Process—defective return of service does not render summons void. The fact that a return of service of a summons made by a special deputy is not sworn to, renders the summons defective, but not void.</p> <p>2. Same—defective return of service may be amended. The court has power to permit a defective return of service of a summons to be amended, in accordance with the facts, at any time before the rights of innocent third parties have intervened.</p> <p>3. Same—object of summons is to bring parties into court—effect of appearance. The object of a summons is to bring parties into court, and if they appear and submit to the jurisdiction of the court it is immaterial that their appearance was in pursuance to a summons which was void for want of a seal.</p> <p>4. Appeals and errors—objection not made below is waived. An objection that the record of a foreclosure suit was improperly admitted in evidence because the summons therein was defective will be considered as waived, on appeal, where no objection was made on that ground to its admission at trial.</p> <p>5. Executors and administrators—appearance of administrator by authorized attorney confers jurisdiction. A county court has jurisdiction to allow a claim against an estate where one administrator and the authorized attorney for the other appear and admit the justice and legality of the claim.</p> <p>6. Same— right of creditor of estate to redeem from his own mortgage. A mortgagee who is also a creditor of the mortgagor under a separate claim, may, on allowance of his claim against the mortgagor’s estate, redeem the premises from his own foreclosure sale, the same as any other creditor.</p>

R. W. Clifford, Judge, presiding. This was an action brought by Daniel McBlaine, against the National Linseed Oil Company, to recover fór a personal injury received while in the service of the defendant, engaged in oiling certain of its machinery.

Appeal, from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding. ■

John Small, Judge, presiding. On December 18, 1895, appellee, the city of Kankakee, passed an ordinance providing for the improvement, by paving, curbing, etc., of that part of East avenue lying between Court street on the north and Hickory street on the south, to be paid for by a special assessment upon realty specially benefited thereby, so far as the same could be legally assessed, and the balance by general taxation.

<p>Special taxation—ordinance for construction of sidewalk must be certain and definite. An ordinance providing that a sidewalk shall be “not less than” a certain width, and constructed “of brick” of certain dimensions “or paving tile,” is fatally defective for uncertainty, under section 2 of the Sidewalk act, (Laws of 1875, p. 63,) and a judgment confirming a special tax based thereon cannot be sustained.</p>

Charles Blanchard, Judge, presiding. This was a bill brought by Sarah Shea, Elizabeth Crinigan, Mary A. Gibson and George A. Murphy, against Thomas Murphy and others, to partition certain lands in LaSalle county which originally were owned by Patrick Murphy, who died intestate December 10, 1893, leaving complainants and defendant Thomas Murphy his children and only heirs-at-law.

<p>Taxes—a master's certificate of purchase is taxable property. A certificate of purchase of real estate issued' by a master upon a sale made under a decree of foreclosure is taxable property within the meaning of section 1, article 9, of the constitution, and its value is presumed to be the amount of-the purchaser’s bid therefor.</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. L. C. Collins, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>1. Vendor’s lien—a vendor’s lien is personal to vendor. A vendor’s lien is not assignable, nor can a party, by voluntarily paying the amount of the purchase money secured thereby, acquire such lien by subrogation.</p> <p>2. Subrogation—in the absence of privity a volunteer is not subrogated to creditor’s rights. A party who voluntarily pays the debt of another will not be subrogated to the rights of the creditor by a court of equity as a matter of course, unless he is the debtor’s surety or makes the payment to protect his own rights.</p> <p>3. Equity—when maxim, “he who seeks equity must do equity” will be applied. A court of equity will not require a complainant, as a condition to relief, to perform conditions not warranted by settled principles of equity, but the maxim “he who seeks equity must do equity” will be applied in many cases in favor of defendants who could obtain no independent relief.</p> <p>4. Cloud on title-rrwhen complainant must do equity on removal of cloud. Where a husband, after voluntarily conveying property to his wife, deeds the same in trust to secure the repayment of money advanced at his request to discharge a lien existing upon the property at the time of such transfer, equity will not set aside the trust deed as a cloud on the wife’s title without requiring repayment of the money so advanced.</p>