Volume 165 — Illinois Reports

<p>1. Highways—police magistrate may enteHain proceedings to assess damages far opening road. The jurisdiction of police magistrates and justices of the peace being uniform, the former may entertain proceedings to assess damages for opening a road, although section 41 of the Road act (Laws of 1883, p. 148,) designates the latter as the proper tribunal.</p> <p>2. Same—final meeting of supervisors need not he held in the town where the road is located. A final meeting of supervisors at which a road is ordered to be established is not invalid because held at a point outside the town in which the road is located.</p> <p>3. Same—no demand on commissioners to open road and levy tax necessary before petitioning for mandamus. The duty of highway commissioners to open a road and levy a tax therefor, as ordered by the supervisors, is public, resting upon them by virtue of their office, and no demand upon them is necessary after their default, before the filing of a petition for mandamus.</p> <p>4. Same—land owners awarded damages need not part with land before receiving compensation. Section 10 of the Eminent Domain act, (Rev. Stat. 1874, p. 477,) providing that petitioners may enter upon lands and the use of the same upon payment of the full compensation awarded, is to be construed in pari materia with the Road act.</p> <p>5. Same —aioarding damages on opening road does not create a township indebtedness. It is no defense to mandamus to compel highway commissioners to open a road and levy a tax therefor, that the township indebtedness already exceeds the constitutional limit, as the awarding of damages to land owners for opening a road does not create an indebtedness.</p> <p>6. Same— questions of necessity for road and burden on tax-payers not open in Supreme Court. Whether the payment of damages for opening a road will be a great burden on tax-payers, or whether the public interest does not require a road, are questions upon which, under section 48 of the Road act, the determination of the highway commissioners, or, upon appeal, of the supervisors, is final.</p> <p>7. Mandamus—that prayer in mandamus petition is too broad is no objection on appeal. An objection that the prayer in a petition for mandamus is too broad cannot be entertained on appeal, as a court is not obliged to grant the prayer in its entirety, but only so much thereof as the petitioner is entitled to.</p> <p>8. Same—no objection to writ that the order of its commands is reversed. A writ of mandamus commanding highway commissioners “to proceed with all lawful diligence to open and work such road for public travel and levy all necessary and lawful taxes to pay damages to land owners,” etc., is not objectionable because the command to open the road comes before the command to levy the tax.</p>

<p>1. Burnt records—proof of contents of records must be made. A petition to restore the files and records of a chancery proceeding which were destroyed by fire is properly dismissed where no proof is made of the contents of such files and records.</p> <p>2. Evidence—unverified copies of papers do not prove contents. Alleged copies of destroyed files prepared by petitioner’s solicitor, and attached to a former petition for their restoration, which have never been admitted by the defendants nor decided by the court to be correct copies, are no evidence of the contents of files.</p> <p>3. Same—attorney's memoranda not competent to prove contents of destroyed bill. Mere entries in a “docket” kept by the attorneys in a cause, showing the parties and containing memoranda of the nature of a destroyed bill, are not competent, in the absence of any preliminary proof, to show the contents of such bill.</p> <p>4. Same—a sworn petition not admitted does not prove itself. An averment in a petition that certain exhibits attached are substantial copies of destroyed files, which averment is neither admitted nor denied by the answer, which calls for proof thereof, must, under our chancery practice, be proved, notwithstanding the petition was verified by oath.</p>

<p>Appeals and errors—Appellate Court’s judgment is jmal in mechanic’s lien suits involving less than $1000. The rule that in proceedings to foreclose a mortgage where the amount involved is less than $1000 the judgment of the Appellate Court is final, in the absence of a certificate of importance, applies to proceedings to enforce a mechanic’s lien.</p>

A. O. Mabshall, Judge, presiding. This is an appeal by the Joliet National Bank from a judgment of the Appellate Court affirming an order of the county court of Will county denying appellant’s petition, in which it prayed that it might be allowed to pro rate with the creditors of Henry Pish & Sons in the assets of the firm in.the hands of the assignee for distribution.

Nathaniel C. Sears, Judge, presiding. This was an action brought by Peter Madden, against Swift & Co., a corporation in Chicago engaged in the slaughtering and packing business, to recover damages resulting from a personal injury received while in the service of the company. The first declaration filed by the plaintiff consisted of oné count, to which the defendant filed a general demurrer.

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

Writ of Error to the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. This cause arose upon a motion in the court below to set aside a sale of real estate on execution.

Thomas M. Shaw, Judge, presiding. Appellant prosecutes this appeal to reverse a judgment of affirmance in the Appellate Court.

O. N. Carter, Judge, presiding. On an application by the county treasurer and ex officio collector of Cook county for judgment on delinquent special assessments levied by the city of Chicago for laying six-inch drains .on West Twenty-sixth street, from Sacramento avenue to Lawndale avenue, in that city, the appellee appeared and filed objections to entering judgment against certain lots in the record described.

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

James Goggin, Judge, presiding. This was an action of assumpsit brought by the Industrial Bank of Chicago, against Edwin J. and John R. Bowes, on the following instrument: “$500. No. 4794. “To E. J. Bowes, Jr. & Bros.: CniGAGO, June 17, 1892. “This is to certify that the Empire Building Company, contractor for the entire work of your building No.....Fulton street, is entitled to a payment of $500 by the terms of the contract. Contract........ $7850 Extra Work..... Remarks.

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

<p>1. Instructions—a court may refuse to give duplicate instructions. Where the court has already given a party a large number of instructions which cover fully all questions of law involved in the case, other instructions, though containing correct propositions of law, may be refused.</p> <p>2. Pleading—construction of pleadings is for the court. Upon demurrer to a plea of the Statute of Limitations alleging that certain additional counts filed by plaintiff state a different cause of action from that set forth in the original declaration, the question of the identity of the causes of action set forth in the different pleadings is for the court, and not the jury.</p> <p>3. Railroads—duty of company to protect persons who must cross track to board waiting train. Passengers obliged to cross railroad tracks to board a train standing at a station have a right to suppose that the railway company will regulate the movements of its trains on the tracks to be crossed with due regard to their safety.</p>

<p>1. Law and fact—construction of a written instrument is for the court. Whether a written contract creates the relation of principal and agent between the parties thereto, or that of vendor and purchaser, is a question of law for the determination of the court.</p> <p>2. Principal and AGENT^wrtiien authority of agent cannot be enlarged by proof of usage. Where a written contract authorizes an agent to do certain things, the power to do other things not mentioned in the contract of agency cannot be established by proof of usage among other like agents.</p> <p>3. Contracts—letters leading up to a written contract are merged therein. Where parties reduce previous negotiations to a written contract, such contract is the final consummation of their negotiations and the exact expression of their purpose, and all letters containing such negotiations are merged therein.</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. Elbridge Hanecy, Judge, presiding.</p>

E. F. Dunne, Judge, presiding. This is an action of assumpsit brought by appellee against appellant to recover $750.00 deposited by appellee with appellant under the circumstances hereinafter stated. The declaration contained the common counts only, and the plea was the general issue. The case was tried before the court without a jury upon an agreed state of facts.

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. Elbridge Hanecy, Judge, presiding. This was a suit in assumpsit, brought by the William Skinner Manufacturing Company against Simon Sinsheimer, to recover the amount of an indebtedness to the plaintiff for goods sold and delivered.

Theodore Brentano, Judge, presiding. This is an appeal from the Appellate Court for the First District affirming a decree of the Superior Court of Cook county in a bill to foreclose a trust deed in the nature of a mortgage. The trust deed, with the note which accompanied it, was for the sum of §6000, bearing date January 1,1876, and was executed by Ellen Waughop, since deceased, and John W. Waughop, her husband, conveying certain real estate in the city of Chicago.

<p>1. Master and servant—contractor in full control of repairs on building is not a servant of owner. A contractor having entire control of a building on which he is making repairs, using his own means and methods for doing the work on a previously adopted plan, is not a servant of the owner of the building, and the owner is not liable to third persons for his negligence.</p> <p>2. Landlord and tenant—landlord not liable to tenant consenting to repairs, for contractor’s negligence. A tenant who has consented, for a consideration, to the making of repairs on the rented building by a contractor whom the landlord has placed in full control, occupies no better position than a stranger in case he is injured through the contractor’s negligence.</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. R. W. Clifford, Judge, presiding.</p>

<p>Special taxation—determination of city council is final on question of benefits under act of 1873. Under article 9, section 17, of the City and Village act, (Rev. Stat. 1874, p. 209,) as it existed prior to its amendment in 1895, (Laws of 1895, p. 100,) the determination of the city council in levying a special tax upon contiguous property was final upon the question of benefits.</p> <p>2. Same—evidence of unreasonableness of special taxation ordinance, under act of 1873, addressed to court. Evidence that a special taxation ordinance is unreasonable as to benefits is addressed to the court* but to justify an interference with the determination of the city council in fixing such benefits it must clearly appear, and ordinarily upon the face of the ordinance itself, that the council abused its discretion.</p> <p>3. Same—portions of railroad company’s right of way may be sold for special taxes. By virtue of sections 42 and 178 of the Revenue act, (Rev. Stat. 1874, p. 854,) sections 1 and 2 of an act concerning collection of special taxes, (Rev. Stat. 1874, p. 908,) and sections 17 and 44 of the City and Village act, (Rev. Stat. 1874, p. 209,) construed together, the collection of special taxes levied upon a railroad company’s right of way may be enforced by the sale of that portion specially taxed.</p> <p>4. Same—special taxation not the exercise of eminent domain. An objection that a special taxation ordinance deprives the party taxed of his property without compensation, in violation of the constitution, cannot be sustained, as the power to specially tax contiguous property is a branch of the taxing power, and is not an exercise of eminent domain.</p> <p>5. Same— taxation in proportion to frontage is constitutional. An ordinance requiring the cost of locally improving a street to be paid by special taxation of contiguous property in proportion to frontage does not violate the present constitution.</p> <p>6. RaiLroads —right of way may be specially taxed for local improvement. A railroad companyjs right of way contiguous to a street is subject to special taxation for the paving of such street when specially benefited by the improvement.</p>

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

Elbridge Hanecy, Judge, presiding. This is an action of assumpsit, commenced on September 30, 1893, by the appellant against the appellee company to recover for professional services as counsel and general counsel for appellee for about four years and five months. The declaration contains only the common counts, and the plaintiff seeks to recover as on a quantum meruit for services from June 7, 1884, to the end of October, 1888.

<p>Special taxation—depot grounds may be specially taxed for street improvement. Depot grounds of a railroad company adjacent to a street may be specially taxed to pay for improving such street. (Chicago and Northwestern Railway Co. v. Village of Elmhurst,—ante, p. 148,—followed.)</p>

E. F. Dunne, Judge, presiding. This was an action of trespass on the case, brought by William Eylenfeldt, against the Illinois Steel Company, to recover damages for a personal injury received while in the employ of the steel company unloading certain cars, caused, as alleged, through the negligence of the steel company. The accident resulting in the injury occurred January 17, 1892.

<p>This case is governed by the decision in the case of Ohicago and Northwestern Railway Go. v. Village of Flmhurst, (ante, p. 148,) the questions involved being the same.</p>

Richard W. Clifford, Judge, presiding. Appellee filed his petition in the circuit court of Cook county for a writ of mandamus to compel the appellants, respectively the president and secretary of the Central Union Telephone Company, an Illinois corporation, to permit him to examine the records, books of account and papers of the company.

<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. Doreance Dibell, Judge, presiding.</p>

<p>1. Gifts—delivery of subject of gift is necessary to its validity. It is .essential to the validity of all gifts, whether inter vivos or causa mortis, that there be a delivery of the subject of the gift or acts equivalent thereto.</p> <p>2. Same—gifts of a testamentary character must comply with Statute of Wills. Though the intention of a party to make a gift is clear, yet in the absence of actual delivery his acts, to be equivalent thereto, if of a testamentary character, must be in compliance with the Statute of Wills.</p> <p>3. Same—proof of intention, however positive, cannot change title to property. If, from mistake of law, a party intending to make a gift fails to do those things which the law requires to carry his intention into effect, mere proof of his intention, however positive, cannot change the title to the property.</p> <p>4. Same—courts cannot complete an imperfect gift when the subject has-vested in another. A gift inter vivos, incomplete at the death of the donor, the subject of which has vested in his legal representatives, cannot be completed by the courts.</p> <p>5. Same—acts ineffectual to make a valid gift of insurance policy. A gift of a life insurance policy, payable to the donor’s legal representatives, is incomplete where the donor merely attaches to the policy a witnessed assignment thereof to the donee, but retains the policy and assignment himself and gives no notice of the assignment to the company. (Otis v. Beckwith, 49 Ill. 121, distinguished.)</p> <p>6. Same—incomplete gift of insurance policy is not valid though donor followed the advice of company's agent. Where acts done by the insured are ineffectual to make a valid gift of his policy by assignment, because he failed to deliver the same or notify the insurance company of the assignment, the fact that he followed the advice and directions of the company’s agent, who assured him of the correctness of the course taken, does not operate to validate the gift.</p>

<p>Appeal from the County Court of Kane county; the Hon. M. O. Southworth, Judge, presiding.</p>

Charles Blanchard, Judge, presiding. The appellees, heirs-at-law of Absolom Fread, deceased, filed their bill to the March term, 1894, of the circuit court of LaSalle county for the partition of certain lands derived from said deceased, and for the assignment of dower and homestead to his widow, the appellant.

<p>1. Appeals and errors—record in original cause need not be transcribed on appealing a new question. Where, after a final determination of a cause by the Supreme Court, the parties, by motion, raise a new question wholly separable from any other question in the case and not dependent thereon, the transcript, on appeal, need not include the record and proceedings of the original cause.</p> <p>2. Same—opinion of Appellate Court is not considered to discredit its judgment. Where it does not appear from the judgment of the Appellate Court that a cause was not considered in that court upon its merits, what is said in its opinion cannot be considered in contradiction of its judgment.</p> <p>3. Clerks op court—clerk receiving money under a decree takes it in his official capacity. Money paid into court under a decree is a fund of the court and under its control, and the clerk, on receiving the same, takes it in his capacity as cleric and not as the depositary of the parties, although the decree does not designate him to receive the money.</p> <p>4. Same—court' has jurisdiction to compel clerk to account for court funds. Where a clerk withholds any part of a court fund to which he is not entitled, the court may, on motion of the parties entitled thereto, require him to account therefor, even though his term of office has expired.</p> <p>5. Same—clerk must obey orders of court concerning court funds. A clerk who disobeys an order of the court requiring him to deposit a fund in a designated bank at a certain rate of interest, must account for the loss of interest occasioned by his disobedience.</p> <p>6. Same—clerk wrongfully retaining fund in his custody is not entitled to compensation as custodian. A clerk who, in disobedience of an order of the court, wrongfully retains a fund in his custody is not entitled to the interest accruing thereon as compensation for his services as custodian.</p> <p>7. Same—notice to deputy is chargeable to clerk. A clerk of court is chargeable with the knowledge of the orders and decrees of the court concerning himself which comes to his deputies while acting in the scope of their employment, and the number of deputies employed does not affect the rule.</p> <p>8. Same—new clerk is liable for interest received on fund turned over by former clerk. A clerk receiving a fund from his predecessor which had been wrongfully retained in such predecessor’s custody, while not chargeable with notice of the former clerk’s disobedience, must account for interest on the fund which he actually receives after taking it into his custody.</p>

Arthur H. Chetlain, Judge, presiding. This is an action of assumpsit, brought by the appellee, Herron, against the appellant, Hafner, to recover certain commissions, alleged to be due from the appellant to the appellee for a sale of certain shares of stock by the appellee for the appellant.

Wbit op Ebbob to the Circuit Court of Cook county; the Hon. Mubbay F. Tuley, Judge, presiding.

<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. M. F. Tuley, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. W. G-. Ewing, Judge, presiding.</p>

Theodore Brentano, Judge, presiding. This was a bill brought by the Chicago Trust and Savings Bank, a corporation, in the Superior Court of Cook county, to foreclose a trust deed given by Ellen Stanley and Philiskey E. Stanley, her husband, to the Title Guarantee and Trust Company, trustee.

<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>

L. C. Collins, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a decree of the circuit court of Cook county dismissing an intervening petition of appellants, in the suit iu equity of Charles W. Colehour against Edward Roby and William H. Colehour.

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

<p>1. Pleading—plea of failwre of consideration must show the extent of defendant's damage. A plea which attempts to set up as a defense to a note the plaintiff’s non-compliance with the terms of the contract which was the consideration therefor is insufficient, where it contains no allegations by which the amount of damage resulting from such non-compliance can be determined.</p> <p>2. Same—plea that sole makers of note signed as sureties is insufficient. A plea by which the sole makers of a note attempt to set up as a defense that they signed as sureties and that the note was accepted as collateral security is obnoxious to demurrer, as to admit proof of those facts would be to vary the contract and contradict its terms by parol.</p> <p>3. Same—when plea that note was delivered conditionally is insufficient. Where the facts averred show that a note was executed and delivered for the consideration received, a plea is insufficient which attempts to change the terms of the instrument by averring parol conditions in conflict therewith.</p> <p>4. Evidence—that note was delivered conditionally not admissible under the general issue. Evidence that notes were delivered conditionally, under an agreement that they were not to become operative until certain other security had been exhausted, is not admissible under the general'issue.</p> <p>5. Appeals and errors—peremptory instruction for the plaintiff is proper when defense to note is inadmissible. A court may instruct the jury to find for the plaintiff in a suit on a duly executed note, when the defense offered is not admissible under the general issue and demurrers to all special pleas have been properly sustained.</p>

Henry V. Freeman, Judge, presiding. '« This is an action brought by Minnie D. Piper to recover damages for personal injuries alleged to have been sustained through the negligence of the West Chicago Street Railroad Company on the 26th day of May, 1891. At the time of the accident plaintiff was riding westward on Madison street in a public conveyance known as a “carette,” operated by the Russell Street Carette Company.

<p>1. Joint tenancy—language of statute need not he used to create joint tenancy. An estate in joint tenancy is created under section 5 of the Conveyance act, (Rev. Stat. 1874, p. 273,) when the instrument expressly declares that such estate is granted, although it contains no express declaration that an estate in common is not granted.</p> <p>2. Same—what language used in a dead will create a joint tenancy. A deed to the grantees “and the survivor of them, in his or her own right,” reciting that “the conveyance herein is made in joint tenancy,” to have and to hold “unto said party of the second part, their heirs and assigns forever,” creates an estate in joint tenancy.</p>

Henry V. Freeman, • Judge, presiding. This was an action on the case by appellee, against appellant, to recover damages alleged to have been sustained by him from personal injuries in a railroad collision on December 31, 1891. Appellee was a locomotive engineer in the service of the Michigan Central Eailroad Company, and on the night in question was operating an engine pulling a number of cars loaded with express matter.

<p>1. Pleading—answering over waives error in overruling demurrer. A, defendant, by answering over after the court has overruled his general demurrer to a bill, thereby waives his right to assign such overruling as error.</p> <p>2. PKACtiCE— in chancery—exceptions for insufficiency lie to wisworn answer when oath is waived. The power of the court, under sections 23 and 24 of the Chancery act, (Rev. Stat. 1874, p. 201,) to require sufficient answers to all traversable allegations in the bill, and the right of complainant to except for insufficiency, extend to unsworn answers, when answer under oath is waived.</p> <p>3. Same—on insufficient answer bill is taken as confessed as a whole. Where, under section 24 of the Chancery act, a bill is taken as confessed for insufficient answer, the entire bill is so taken, and not merely that part to which the answer was insufficient.</p> <p>4. Same—,defendant cannot offer affirmative evidence before the master after bill is taken as confessed. Upon taking a bill as confessed a court may enter a decree pro confesso or refer the cause to the master, and when so referred the defendant may appear and cross-examine complainant’s witnesses, but cannot offer affirmative evidence.</p>

that court on appeal from the Superior Coúrt of Cook county; the Hon. Philip Stein, Judge, presiding. This was an action of assumpsit brought by R. J. Horner and Thomas J. Birkin, a firm known as R. J. Horner & Co., against Henry V. Bemis, on a promissory note dated June 2’, 1891, for the sum of §5000, payable to the order of James W. Miller four months after date, and endorsed to the plaintiffs.

John Gibbons, Judge, presiding. In this proceeding under the Forcible Entry and Detainer act, brought by John Quinn, the appellee,… Held: “that while the defendants may not have been guilty of forcible entry or forcible detainer prior to the service of the demand in writing for the restitution of the premises in question, yet their refusal to deliver up possession upon demand is, in law, an unlawful detainer, and therefore the action of forcible entry and detainer can…

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

Nathaniel C. Sears, Judge, presiding. This is an action brought by the appellee against the appellant, to recover damages for a personal injury. 'The appellant in its brief states the facts as follows: “On the evening of April 8,1892, while John Miller Seben, a resident of Chicago, and a shoemaker by trade, was walking home after searching for work, he stepped into a sewer inlet at the corner of Polk street and Blue Island avenue, in the city of Chicago, and suffered a…

John Barton Payne, Judge, presiding. In July, 1892, Martin Dougherty, Jr., a minor, received an injury through the negligence, as alleged, of the Chicago, Milwaukee and St. Paul Railway Company.' The People’s Casualty Claim Adjustment Company, a corporation in Chicago, was then engaged in collecting claims of that character, and said company applied to Martin Dougherty, Sr., the father of the minor, for the collection of the claim for damages against the railroad company.

<p>1. Contracts—degree of mental incapacity required to impeach a contract. To impeach a contract for mental incapacity the weakness must have been such that the party was incapable understanding what he was doing, or comprehending the terms, scope and effect of his contract.</p> <p>2. Same—t/iere is no fixed form for stating requisite degree of mental capacity. An instruction that a contract cannot be impeached if the parties “possess mind, memory and senses sufficient to know and comprehend the scope, force and effect of their contract,” is not antagonistic to one holding that to make a valid contract the parties “must be mentally competent to protect their own interests.”</p> <p>3. Master and servant—when contract creates relation of master and servant. A contract which contains mutual • engagements, on the one part to employ and on the other to serve, is a contract of hiring and service, and creates the relation of master and servant.</p> <p>4. Same—subsequent insanity of master does not terminate servant’s contract. Where the relation of master and servant exists by reason of a mutual contract of hiring and service, the contract is not terminated by subsequent insanity of the master, as the relation' in such case is more than the bare relation of principal and agent.</p> <p>5. Same—inability of master to exercise option of discharge does not terminate contract. Where a contract provides that the master may, at his option, discharge his servant, the inability of the master, by reason of after-occurring insanity, to exercise his option does not, of itself, destroy the mutuality of the contract or terminate the employment.</p> <p>6. Same—nominal incorporation does not abrogate contract of service. A contract of employment is not abrogated by the subsequent incorporation of the master’s business, where the master retains exclusive control, holds all th£,shares of stock but two, which are nominally held by others, and carries on the business without change, except in name.</p> <p>7. Pleading—contract price due on executed contract may be recovered under common counts. The stipulated price due on a special contract may be recovered in indebitatus assumpsit where the contract has been so fully executed that only the duty to pay mopey remains.</p> <p>8. Evidence—where special contract is admissible under common counts. A special contract which has been so fully executed that nothing remains but to pay the amount due, may be admitted in evidence under the common counts.</p> <p>9. Damages—when contract price as measure of damages is not waived by evidence of reasonable worth. Where the defense to an action to recover the contract price for services would, if sustained, make the contract void ab initio, or show it to have been abrogated before the service was completed, plaintiff does not waive his right to claim the contract price by introducing evidence in rebuttal as to the reasonable value of his services.</p> <p>10. Law and fact—rule for assessing damages is a question of law. The question of the amount of damages allowable in a suit is a question of fact conclusively settled by the finding of the Appellate Court, but the rule for assessing damages in a particular case is a question of law, and reviewable by the Supreme Court.</p> <p>11. Trial—time when defendant shall make his opening statement is a matter of discretion with the court. Whether the defendant shall be allowed to reserve his opening statement until the plaintiff has rested his case, or be required to make it immediately following that of the plaintiff, is a matter in the discretion of the trial court.</p>

<p>1. Appeals and errors—how far answering petition waives error in overruling demurrer thereto. One answering an intervening petition after Ms demurrer thereto has been overruled waives his right to assign such overruling as error, except so far as he could have the same advantage, in substance, on the final hearing if the petitioner should not be entitled to the relief sought.</p> <p>2. Creditor’s bill—remedies at law must be exhausted. To sustain a creditor’s bill a judgment at law must be recovered, execution issued and a bona fide attempt made by the sheriff to collect the same, and, if his efforts are unavailing, a return of the execution unsatisfied because having found no property upon which to levy.</p> <p>3. Same—when collusion in filing bill is ground for dismissal. Collusion between the complainant and the defendant in bringing a creditor’s bill proceeding for the appointment of a receiver for the defendant, is ground for dismissal at the instance of a creditor, where there is no actual controversy between the parties and the rights of defendant’s creditors are prejudiced thereby.</p> <p>4. Same—kindly intentions ■toward other creditors are no ground for sustaining creditor's bill. That complainant filed his creditor’s bill for the appointment of a receiver for the defendant because that method was the most advantageous to other creditors is no ground for sustaining the bill, where complainant’s remedy at law has not been exhausted.</p> <p>5. Same—when execution returned by order is not basis for creditor’s bill. The return of an execution unsatisfied, at the order of the plaintiff, is not a sufficient basis for a creditor’s bill where the sheriff made no attempt to find property, nor does it matter that the plaintiff’s order was entered on the sheriff’s docket and did not appear in the return.</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>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>Appeal from the Supérior Court of Cook county; the Hon. John Barton Payne, Judge, presiding.</p>

Frank Baker, Judge, presiding. This action was brought by appellee, as administrator of the estate of Josephine H. Johnson, deceased, to recover damages from appellant for-causing the death of appellee’s intestate.

John J. Glenn, Judge, presiding. . Snyder Bros., a corporation organized under the laws of this State, doing business at Galesburg, Ill., as retail dealers in notions and general merchandise, became indebted to appellees in the sum of $752 and in certain sums to other persons and corporations.

Writ op Error to the Circuit Court of Stephenson county; the Hon. J. H. Cartwright, Judge, presiding. This is a bill by defendant in error, against plaintiffs in error, to set aside a codicil to the last will of Thompson Wilcoxon, deceased, and also to set aside a deed by the said Thompson Wilcoxon and wife conveying certain real property to plaintiffs in error.

Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of DeKalb county; the Hon. Charles Kellum, Judge, presiding.

<p>Bills op exception—judge may sign duly presented hill of exceptions after time for filing has expired. Where a bill of exceptions has been duly presented to a judge within the time allowed, he may sign and seal the same, though not done until after the time fixed by the order and also after the term of court at which judgment was entered.</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. Arthur H. Chetlain, Judge, presiding.</p> <p>This is an action on the case by appellee, against appellants, to recover damages for personal injuries alleged to have been caused by the joint negligence of their employees. The declaration consists of two counts, the first charging that while the plaintiff was walking on Clark street, in the city of Chicago, at the crossing-of Eandolph street, a horse car operated by the West Chicago Street Eailroad Company, going east on one track, and a cable car operated by the North Chicago Street Eailroad Company, going west on another track, were so negligently •operated by those in charge of said cars, that plaintiff was caught and crushed between them. The second count alleges the negligent construction of the tracks of said companies by placing them in such close proximity to and parallel with each other as that it became and was dangerous and unsafe to operate and run cars upon and over the same, and especially so when cars were operated and hauled upon and over them in opposite directions; that the said companies, in operating the said cars upon their tracks moving in opposite directions, so negligently ran the same that plaintiff, exercising due care in crossing Eandolph. street, was caught between such cars and thereby crushed, etc.</p> <p>It appears from the evidence that on May 11,1892, appellee was going north on Clark street, and in attempting to cross Eandolph street, there being a number of trucks and other obstructions on the street, he stepped in the rear of one of the trucks upon the cable track, in front of a grip car moving west, but just as he did so the grip-man, and perhaps a policeman also, gave the alarm, and he jumped back out of the way of the grip, and as he did so was passed by the horses attached to the horse car, going east, thus being caught between the two cars moving in opposite directions, and thereby, as he claims, injured. The cars on either track were what are called box-cars, and the tracks were so constructed that these cars, when passing each other, were but about ten inches apart. The grip car was moving at the usual rate of speed and the horses to the other car were going in a trot. There was a considerable amount of confusion at the crossing occasioned by the traffic upon the streets, and more or less difficulty to foot passengers in crossing. A fuller statement of the facts will be found in the case reported in 62 Ill. App. 180, but the foregoing will suffice for the purposes of this opinion.</p> <p>On the trial in the circuit court plaintiff recovered a judgment against the defendants jointly, for $15,000 and costs of suit, which has been affirmed by the Appellate Court.</p>

John Gibbons, Judge, presiding. This case was before us in 1889, and will be found reported in 131 Ill. 147. Upon being remanded to the circuit court the suit was dismissed as to plaintiff VanPelt, and again tried. One of the attorneys for the plaintiffs made affidavit that both parties claimed title through a common source—Nelson C. Walton.

<p>1. Appeals and errors—reversal without remanding does not infringe right of trial by jury. The reversal of a cause upon the facts by the Appellate Court, without remanding, is not an infringement of the constitutional right of trial by jury, particularly where that right was waived below and a trial had before the court alone.</p> <p>2. Same—correctness of the law applied by Appellate Court is reviewable by Supreme Court. Whether facts exist which, under correct rules of law, would fix the rights of the parties, is a question upon which the finding of the Appellate Court is conclusive in suits at law, but whether that court applied correct rules of law to the facts so found is a reviewable question.</p> <p>3. Principal and agent—agent’s powers are limited to the scope of his agency. A general agent for the loaning, collecting and re-loaning of money does not have, as incidental to his employment, power to substitute himself as creditor in the place of his principal.</p> <p>4. Same—debt to a principal is not discharged by giving note payable to his agent. The unauthorized acceptance of a note payable to himself by an agent employed to loan and collect money, in satisfaction of a debt due to his principal, does not discharge the debtor from liability, in the absence of ratification.</p>

<p>1. Evidence—when not error to exclude evidence tending to impeach witness. It is not error to refuse to allow a witness to testify to alleged admissions of a party to a suit for the purpose of impeachment, where it does not appear that the denial was made in the manner indicated by the questions propounded or where the matters referred to are not material.</p> <p>2. Appeals and errors—objections not available on appeal unless ruled upon below. That an attorney made improper remarks to the jury in his argument cannot be assigned as error on appeal, unless the remarks are objected to specifically when made, the objections ruled upon and exceptions preserved to adverse rulings.</p> <p>3. Practice—noting exception avails nothing unless objection is made and ruled upon. Neither the remarks, “I take exception to tha,t statement,” “Exception,” etc., made by attorneys at trial, nor the remarks, “Let exception be noted,” or “Note the exception,” made by the court, are sufficient to show any error in the record on appeal, unless objections have been previously made and ruled upon adversely.</p>

<p>1. Appeals and errors—whether defendants were jointly negligent is a question of fact. Whether there was evidence fairly tending to show negligence on the part of one of two joint defendants in a suit for personal injury is a question of fact for the jury, and is conclusively settled by the affirmance of the Appellate Court.</p> <p>2. Evidence—of plaintiff’s health before and after injwyis admissible. In a suit against a railroad company for a personal injury, the testimony of plaintiff’s associates as to her appearance, health, disposition, etc., before and after the injury, is admissible, to be considered with the other evidence.</p>

<p>1. Evidence—testimony that an event did not take place is not negative. Where two classes of witnesses are of equal intelligence, have equal opportunities of knowing the facts and have had their attention directed thereto, then, although one class testifies that an event did take place and the other testifies that it did not, the latter cannot be regarded as negative testimony.</p> <p>2. Practice—not the province of the court to instruct jury as to weight of testimony. It is never the province of the court to tell the jury which class of conflicting testimony is entitled to be accorded the greater weight.</p>

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

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

<p>1. Elevated railroads—pillars supporting superstructure are not an unwarranted obstruction of street. The pillars used to support the superstructure of an elevated railroad are not an unwarranted obstruction of the street, as they are erections which aid- and facilitate the use of the street for purposes of travel and convenience.</p> <p>2. Same —permitting construction of elevated railroad on public street imposes no new servitude. Permission given by a city council to a company to construct and operate an elevated railroad upon a public street the fee of which is in the city, does not impose a new servitude on such street nor subject it to an unlawful use.</p> <p>3. Same—an illegal use of street must be redressed by public authority. Where the use of a street for construction and operation of an elevated railroad has not been legally authorized, the only remedy therefor is an information in chancery filed by the Attorney General or the State’s attorney in the name of the People, or a bill for injunction brought by the city.</p> <p>4. Injunction—abutting owner cannot enjoin construction of railroad, legally authorised. The legally authorized construction of an elevated railroad upon a public street the fee of which is in the city will not be restrained by injunction at the suit of an abutting owner, as he has a complete remedy at law by an action for damages.</p> <p>5. Same—abutting owner cannot enjoin illegal construction of elevated raib'oad in street. A court of equity will not, upon the allegation of an abutting owner that the ordinance authorizing the construction of an elevated railroad in a public street is illegal, enjoin the construction until the question of the illegality of the ordinance can be determined, but will remit him to his remedy at law.</p> <p>6. Same—Frontage act confers on abutting owners no new right. Neither the Frontage act, (Laws of 1883, p. 126,) nor clause 90 of section 1, article 5, of the City and Village act, (Laws of 1887, p. 115,) which require the consent of the owners of more than one-half the frontage before the council can act, confers any new rights on abutting owners by which they can enjoin the construction of a railroad authorized by the council without the required consent.</p> <p>7. Damages—present and future damages of abutting owner recoverable in one action. An abutting owner suing an elevated railroad company unlawfully using a public street, for damages resulting to his property from the road’s construction and operation, may recover in one action both present and future damages, as the injury is continuing and permanent, notwithstanding the road is unlawful.</p> <p>8. Estoppel—elevated railroad estopped to question validity of ordinance under which it is operated. An elevated railroad constructed and operated under an illegal ordinance, when sued for damages by an abutting owner, cannot defend on the ground that the road is liable to abatement as a nuisance, but, having availed itself of the grant of authority, is estopped to question its validity.</p>

<p>This case is controlled, by the opinion rendered in Roane v. Lake Street Elevated Railroad Oo. (ante, p. 510.)</p>

<p>1. Judicial power—what is “judicialpower," within the meaning of the constitution. Judicial power is that power which adjudicates upon and protects the rights and interests of individual citizens, and to that end construes and applies the laws.</p> <p>2. Same—adjudication need not conclude the parlies’ rights. An adjudication which involves the construction and application of the law and affects any of the rights and interests of the parties, though not finally determining them, is still a judicial proceeding and involves the exercise of judicial power.</p> <p>3. Constitutional law—act of 1895, concerning land titles, is unconstitutional. The act entitled “An act concerning land titles,” (Laws of 1895, p. 107,) is unconstitutional and void, as violating article 6, section 1, of the State constitution, by conferring judical power upon the county recorder of deeds (who is, by the act, made ex officio register of titles,) and upon his examiners.</p>

<p>This case is governed by the decision in People ex rel. v. Ohase, (ante, p. 527,) in which an act entitled “An act concerning land titles,” (Laws of 1895, p. 107,) is declared to be unconstitutional.</p>

James Goggin, Judge, presiding. This is an action, brought by appellee against appellant to recover an amount claimed to be due by the latter to the former for a certain grading or leveling, alleged to have been done under the contract hereinafter set forth. It is admitted that, before the work was abandoned, Keeler had paid Clifford $2400.00. It is alleged, however, that Keeler refused to pay any more upon the contract.

Abner Smith, Judge, presiding. This is an action by appellee, against appellant, begun in the circuit court of Cook county, to recover money due appellee under a contract to construct an elevator in a building belonging to appellant, which was destroyed during the progress of the work.

Elbridge Hanecy, Judge, presiding. This was a bill in chancery brought in the circuit court of Cook county by Arthur J. Hawhe, against the Chicago and Western Indiana Railroad Company and the Wabash Railroad Company, for partition of certain lands and for an accounting. It appears from the record that on or about December 31, 1872, Col. Arthur J. Hawhe died testate in Chicago, seized of the premises described in the bill of complaint.

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

<p>1. Contracts—in construing a contract partly written and partly printed, written part controls. In construing a contract drawn upon a printed form by filling in blank spaces with writing, the written part will, in case of conflict, control.</p> <p>2. Same—token money erroneously paid contractor is not paid under mistake of law. Where a contract for constructing a water tunnel provides that the contractor shall put in the “back masonry” without extra pay, money paid to him for performing such work is not paid under mistake of law, and may be applied, as over-payment, to other parts of the contract.</p> <p>3. Same—when clause of specifications does not modify provision of contract. A provision in a contract for constructing a water tunnel and shaft, concerning an additional compensation to the contractor for rock excavation in both tunnel and shaft, is not modified by a clause in the specifications making additional provision for rock excavation in the tunnel alone.</p> <p>4. Appeals and errors—when appellee need not assign cross-error. Where, in an action to recover a balance due on a contract, the judgment rendered is satisfactory to the defendant, in amount, he need not, upon the plaintiff appealing therefrom, assign as cross-error the trial court’s disallowance of his claim of over-payment in order to have the benefit of the same in the Appellate Court.</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. Penal institutions—the State reformatory at Pontiac is not a penitentiary. The State reformatory at Pontiac is not a penitentiary, within the meaning of section 12 of the Reformatory act, (Laws of 1893, p. 170,) which provides against the admission to the reformatory of youthful offenders who have previously been sentenced to a penitentiary in this or another State or country.</p> <p>2. Same—the term “State prison,” used in the Reformatory act, means “penitentiary.” The term “State prison,” used in section 12 of the Reformatory act, as amended in 1893, (Laws of 1893, p. 170,) means a prison of the class or grade of a penitentiary, and does not include the State reformatory at Pontiac.</p> <p>3. Practice—effect of erroneous sentencing of person to penitentiary instead of to reformatory. Where a person under twenty-one years of age has been regularly convicted of crime but erroneously sentenced to the penitentiary, directions will be given to the trial court, upon reversal on appeal, to enter a proper judgment on the verdict, and to sentence the prisoner to the reformatory.</p>

<p>1. Appeals and errors—objections to sufficiency of special taxation notice is waived by general appearance. Objections to the sufficiency of a special taxation notice cannot be sustained on appeal, where, without limiting their appearance, the parties appeared in the county court and filed objections to the confirmation.</p> <p>2. Same— objections not made below are deemed waived on appeal. An objection that the city council, in dividing a special tax into installments, failed to include all fractional amounts in the first installment, so as to leave the others in multiples of $100, cannot be sustained when first raised on appeal.</p> <p>3. Special taxation—city council may divide improvement into sections. Where an improvement to be paid for by special taxation will benefit contiguous property in unequal proportions, the city council may divide the improvement into sections to secure practical uniformity in distributing the tax, and the Supreme Court will not assume that the division was made for an improper purpose.</p> <p>4. Same—what is not a delegation of council’s power to engineer. A special taxation ordinance is not made invalid by a provision which confers on the city engineer a supervisory power over the improvement, to see that the work is done and the materials are furnished in conformity to the ordinance.</p> <p>5. Same—when power conferred on engineer renders ordinance invalid. A paving ordinance is invalid where the specifications, made a part thereof by reference, provide that inlets and catch-basin covers be placed at street corners where directed by the engineer, and that cross-walks be built in such form as directed by him at street intersections and other points, according to his grades and plans.</p> <p>6. Same—provision that engineer may make alterations changing cost of improvement is fatal. ' Specifications made a part of a paving ordinance by reference render it invalid, where they empower the engineer, in his discretion, to make alterations which increase or diminish the expense of the improvement, to determine the value of such alterations, and to add the same to or deduct it from the contract price.</p> <p>7. Same—mere irregularities which work no injury are not available as objections. That a special taxation ordinance provides that the tax installments shall not begin to draw interest until a later day than that allowed by statute is not available as an objection to the confirmation of the assessment roll.</p> <p>8. Same—property owner entitled to jury trial on question of benefits. Under the statute (Laws of 1895, p. 100,) the owner of property specially taxed for a local improvement is entitled to a hearing by a jury upon the question whether the amount taxed against his property exceeds the benefits.</p>

<p>1. Criminal law—the crime of burglary may be committed either in the day time or night. Under section 36 of the Criminal Code, as amended in 1885, (Laws of 1885, p. 73,) to constitute a crime burglary the time when the crime was committed, whether day or night, is material only in determining the minimum sentence.</p> <p>2. Same—a house does not cease to be a dwelling, though occupants are temporarily absent. A dwelling house does not cease to be such, within the meaning of section 36 of the Criminal Code, though its occupants are temporarily absent, as in such case the intention to return is the controlling consideration.</p> <p>3. Same—where specific intent is the essence of a crime, intoxication of accused may be shown in defense. Where, under an indictment, it is necessary to prove a specific intent on the part of the accused in order to establish the crime, it may be shown in defense that the accused was at the time so intoxicated as to be incapable of forming the intent, and an instruction to the contrary is erroneous.</p> <p>4. Pleading—criminal—not a variance to prove burglary in the night time where indictment is silent as to time. Where an indictment for burglary is silent as to whether the crime was committed in the day time or the night time, it is not a variance to prove that the crime was committed in the night.</p> <p>5. Same—effect as to minimum sentence where indictment fails to allege burglary in night time. Where an indictment for burglary fails to allege that the offense was committed in the night time, the minimum sentence to be imposed on conviction must be that provided for burglary in the day time.</p> <p>6. Instructions—when instruction which invades jury's province will not reverse. Where an indictment charges burglary in the night in one count and is silent as to time in another, an instruction as to the form of the verdict which fixes the minimum sentence at five years will not reverse, where the fact that the offense was committed in the night is not controverted.</p>

<p>1. Limitations—operation of section 19 of the Limitation act, as to right of action against personal representatives. By section 19 of the Limitation act, (Rev. Stat. 1871, p. 676,) if one against whom an action may be brought dies before the expiration of the time limited. for the commencement thereof, and the cause of action survives, an action may be brought against his personal representative after the expiration of that time but within one year after such representative is appointed.</p> <p>2. Parties—administrator not a necessary party to foreclosure suit. An administrator is not a necessary party to a bill to foreclose his intestate’s mortgage, where the bill seeks a foreclosure only, and not to charge him or the personal estate in his hands.</p>

<p>Appeal from the Appellate Court for the Third District;—heard iu that court ou appeal from the Circuit Court of Fulton couuty; the Hon. Jefferson Orr, Judge, presiding.</p>

Oscar P. Bonney, Judge, presiding. By the last will and testament of Jacob Dick he devised one-third of all his property, real and personal, after the payment of debts and funeral expenses, to his wife.

<p>1. Limitations—bar of twenty years' statute applied to right of way. Twenty years’ uninterrupted, open, adverse and exclusive possession of a portion of a railroad company’s right of way by a party claiming to own the same bars the rights of. the company therein.</p> <p>2. Same—title acquired by twenty years' limitation available for purposes of attack. Whenever the bar of the twenty years’ statute of limitations becomes absolute, and the party entitled is in possession under it, it is thereafter as available for purposes of attack as of defense, whether the occupant continues in the actual possession or not.</p> <p>3. Same—when defense of seven years’ statute cannot be sustained. The defense of the seven years’ statute to ejectment against a railroad company cannot be sustained, in the absence of evidence in the record to show that the company had ever listed the land with the Auditor, as required by its charter, or that the Auditor had ever assessed any taxes against the land, or against the railroad company, as owner.</p> <p>4. Taxes—when right of way, originally exempt, becomes taxable property. Land originally part of a railroad company’s right of way, and as such exempt from taxation except as provided by the company’s charter, which ceases to be the company’s property through the bar of the twenty years’ statute, is thereafter liable to assessment and taxation as other private property.</p>

<p>Appeal from the Circuit .Court of Ford county; the Hon. Alfred Sample, Judge, presiding.</p>