Volume 166 — Illinois Reports

<p>1. Wills—construction of provision concerning devise of a contemplated residence. A provision in a will that if the testator should acquire another home than the one he then occupied, as was contemplated, his daughter should hold the new home for life and that his widow might reside with her, cannot be construed to cover the home then occupied, which is otherwise devised.</p> <p>2. Homestead—homestead is limited to $1000, though rights of creditors are not involved. The estate of homestead to which a widow is entitled in her husband’s estate by the provisions of the Exemption act is limited in value to $1000, notwithstanding the rights of creditors are not involved.</p> <p>3. Equity—equity may require widow to accept value of homestead right and surrender possession. Where a testator devises his residence to his executor in trust for the beneficiaries in his will, and the value thereof exceeds the amount of the widow’s homestead therein, upon a bill for a construction of the will and relief equity may require the widow to accept $1000 in lieu of her homestead.</p>

<p>1. Telegraphs—right of telegraph company to refuse to have telephone putin its office. Mandamus will not lie to-compel a telegraph company to permit a telephone company to place a telephone in its office, to enable subscribers to the telephone company to use its line in receiving and transmitting telegrams, although the telegraph company has such an arrangement with a rival telephone company.</p> <p>2. Same—what is not a waiver of right to refuse verbal messages over telephone. The fact that a telegraph company has an arrangement with one telephone company whereby verbal messages are transmitted and received over the telephone line, does not operate as a waiver of its right to refuse verbal messages over the line of another telephone company.</p> <p>3. Same—section 6 of the act concerning telegraph companies construed. The refusal of a telegraph company to permit a telephone company to place a telephone in its office or to receive or transmit verbal messages over its lines, is not violative of section 6 of the act relating to telegraph companies, (Rev. Stat. 1874, p. 1053,) even if it were admitted that telephone companies are telegraph companies in contemplation of law.</p>

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

<p>1. Ejectment—ejectment for vacant property lies though defendant is notin possession. The provision of section 7 of the Ejectment act (Rev. Stat. 1874, p. 444,) authorizes the bringing of ejectment for premises not actually occupied, against any person claiming title thereto or an interest therein, although not in possession.</p> <p>2. Limitations—payment of taxes for seven successive years must he made prior to beginning ejectment suit. Payment of taxes in good faith, under color of title, on vacant property, as provided for in section 7 of the Limitation act, (Rev. Stat. 1874, p. 674,) is no defense to ejectment unless made for seven successive years prior to the beginning of the suit.</p> <p>3. Same—bringing ejectment arrests running of Statute of Limitations. The bringing of ejectment by the owner of the paramount title arrests the running of the Statute of Limitations in favor of one paying taxes under color of title, and judgment may then be recovered after the statutory limit has expired.</p>

Richard W. Clifford, Judge, presiding. This is an action on the case, brought in the circuit court of Cook county by appellee, against appellant, to recover damages for personal injuries. The trial resulted in a verdict and judgment in favor of appellee for $5000. Said judgment was affirmed by the Appellate Court.

<p>1. Boundaries—definite monuments will control description in subsequent plat. Stakes driven in the ground to show the surveyed line of city lots, which were pointed out by the owner to purchasers, are monuments which will control a plat subsequently executed and recorded by such owner, although the latter was mistaken, and the line so pointed out was not the true one.</p> <p>2. Estoppel—city may be estopped to change street boundary by acts in pais. Although limitation statutes do not apply to municipal corporations, yet recognition by a city of an existing boundary between lots and a street, evidenced by constructing a sidewalk and culvert and graveling the street with reference thereto, equitably estops the city to change such boundary as against an owner long in possession, who has built with reference thereto.</p> <p>3. Same—estoppel in pais does not depend on mere lapse of time. Courts decide the question of an estoppel in pais against the public, not by mere lapse of time, but by all the circumstances of the case, as right and justice may require.</p>

<p>Weit of Ekeob to the County Court of Vermilion county; the Hon.'John G. Thompson, Judge, presiding.</p>

<p>1. Special assessments—extent to which party defaulted, at confirmation is concluded from questioning prior proceedings. Where a county court has jurisdiction to enter a judgment confirming a special assessment, such judgment concludes a property owner, defaulted at the hearing, from afterward questioning any of the proceedings had prior to the judgment, unless they are so defective as to render the judgment void.</p> <p>2. Same—validity of objection to application for judgment of sale that only two commissioners acted. An objection that only two of three special assessment commissioners appointed acted in making the estimate, and only two, with a third party, signed the report, comes too late on application for judgment of sale for the tax, provided the other proceedings are sufficient to give the county court jurisdiction to enter the judgment of confirmation. (McChesney v. People, 148 Ill. 221, and Boynton v. People, 155 id. 66, distinguished.)</p> <p>' 3. Same—when paving ordinance need not specify width of street to be paved. An ordinance for paving and curbing which provides for the paving of an entire street for a designated distance is not void, as failing to specify the width of the street.</p> <p>4. Upon the point that the assessment was not divided into installments in the manner provided by law, the opinion follows the decision in Delamater v. City of Chicago, 158 Ill. 575.</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>

Frank Baker, Judge, presiding. This is a suit in assumpsit, commenced by attachment by appellants against appellees on September 23, 1893. Various motions to quash the attachment were made upon the ground of insufficiency of the affidavit for attachment. Some of these motions were allowed; and, besides the original affidavit for attachment, several amended affidavits were filed. The original declaration was filed on October 3, 1893.

T. G. Windes, Judge, presiding. Complainant, the appellant here, filed his bill for injunction in the circuit court of Cook county, in which it is averred that he is the owner of fifty feet of frontage on Lawndale avenue, in the city of Chicago; that the West and South Towns Street Railway Company is incorporated under an act in regard to horse and dummy railways; that on February 8, 1892, the city council of the city of Chicago, on the petition of said company and on the…

<p>Taxes—new notice of sale must be given when judgment of sale has been affirmed on appeal. Where a judgment of sale for a delinquent assessment has been affirmed, on appeal, after the time specified in the original notice of sale published with the delinquent list has expired, the county court has no power to order the property sold at public sale without a new notice.</p>

<p>1. Benefit societies—when mandamus to re-instate suspended lodge to its standing in order will not lie. Mandamus will not lie to re-instate a suspended subordinate lodge to its former standing in the order, where the remedy by appeal to a higher tribunal in the order has not been exhausted.</p> <p>2. Same—when property rights are not so involved as to justify interference by the courts. A judgment of the grand tribunal of a benefit society suspending a subordinate lodge until it obeys an order of the supreme lodge requiring the exclusive use of an English ritual, does not so affect property rights, either of the subordinate lodge or its members, as to justify interference by the courts. , .</p> <p>3. Same—suspension of incorporated subordinate lodge does not affect its corporate existence. The suspension of an incorporated subordinate lodge from its standing in the order of which it was a part does not affect its corporate existence.</p>

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

<p>1. Real peopeety—what language in will creates an estate tail at common law. A devise of real estate in the words, “To my wife (naming her) and her heirs by me,” would create at common law an estate in fee tail in the wife.</p> <p>2. Same—effect of statute on estate conveyed by a devise to testator’s wife in tail. By the provision of section 6 of the Conveyance act (Rev. Stat. 1874, p. 273,) a devise of land to the testator’s wife and her heirs by him conveys a life estate to the wife, with remainder in fee simple absolute to her child by the testator.</p> <p>3. Same—effect of death of remainder-man during existence of life estate. Where land is devised to the testator’s wife and her heirs by him, the estate in remainder is a vested one, and the fact that the remainder-man dies during the existence of the life estate does not change its. vested character.</p>

<p>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>1. Appeals and errors—when verdict in condemnation will not be disturbed on appeal. The verdict of a jury awarding damages in condemnation will not be disturbed, on appeal, upon the sole ground that it is contrary to the evidence, where the evidence as to the damage is conflicting, and the jury viewed the premises.</p> <p>2. Eminent domain—damages—measure of damages where railroad property is condemned for street. Where the use of a strip of land across a railroad company’s right of way and depot grounds is condemned for a public street, the measure of damages for the property taken is the decrease in value of its use for railroad purposes, caused by its being used as a street.</p> <p>3. Same—cross-petition for damages to railroad property not taken— what allowable. Where a strip of land across a railroad company’s depot grounds and right of way is condemned for a street, and the company files a cross-petition for damages to property not taken, the jury, in estimating such damages, may consider the increase in cost of transacting the company’s business and loss from interruption of the same, occasioned by the street. (Lake Shore and Michigan Southern Railway Co. v. City of Chicago, 148 Ill. 519, distinguished.)</p> <p>4. Instructions—an instruction using words “if any,” in referring to damage to land taken, is erroneous. An instruction as to the measure of damages in condemnation which uses the words “if any,” in referring to the damage to property actually taken, is erroneous, as both the constitution and the statute require just compensation to be paid for property taken, and not just compensation “if any.”</p> <p>5. Same—erroneous instruction of one party is not cured by correct instruction of opponent. Error in instructions given for petitioner in condemnation, relating to the rule for allowing damages, is not cured because one given for defendant announced the proper rule.</p>

<p>1. Special assessments—when ordinance sufficiently describes the improvement. An ordinance for a sewer which- specifies a certain number, each, of man-holes and catch-basins, their dimensions, materials, manner of construction, etc., is not invalid for insufficient description of the improvement, though the points for the man-holes and catch-basins are not designated.</p> <p>2. Taxes—what makes aprima facie case on application for judgment of sale. The county collector’s sworn report of the list of delinquent lands, together with proof of publication thereof and notice of application, makes a prima facie case on application for judgment’of sale for delinquent taxes.</p> <p>3. Evidence—what will not overcome collector’s prima facie case. The failure of the docket entries in the county court record to show the particular date when an assessment roll and judgment were certified to the city collector, does not establish that the land was not delinquent or overcome the collector’s prima facie case.</p>

<p>1. Evidence—burden of proof when creditors seek to reach money collected by wife on fire insurance policy. Creditors seeking to reach the proceeds of a fire insurance policy collected by the wife on property conveyed to her in-consideration of her joining with her husband in conveying his property, have the burden of showing that she had not insured the same for her own benefit.</p> <p>2. Husband and wipe—profits on wife’s capital used in husband’s business become his property. Where a wife furnishes capital to her husband, with permission that he employ the same in speculations on his own account and in conducting his business, the profits on -the same from investments are subject to claims of his creditors.</p> <p>3. A conveyance of property by an insolvent to a third party, and a subsequent purchase of the same by the wife, are held, under the particular facts and circumstances discussed in the opinion, to be in fraud of creditors.</p>

<p>1. Notice—possession of land under unrecorded lost deed is notice of possessor’s rights. Open, adverse and exclusive possession of land is notice of the possessor’s rights therein, derived under an unrecorded deed lost or destroyed, and, with proof of the deed and its loss or destruction, will prevail against a subsequent purchaser from the deceased grantor’s heir.</p> <p>2. Same—continued possession is notice though title under ivhich it is held is changed. Possession of lands by a husband, not originally taken under deed, will nevertheless inure to his benefit as notice of his rights under a deed made to him by his wife, and lost or destroyed, as against one purchasing from his wife’s heir after her death.</p> <p>3. Pleading—failure of pleadings to attack deed of homestead waives question of its validity. The validity of a deed by a wife, directly to. her husband, of their homestead, not joined in by the husband, is not raised where the pleadings do not question the deed for failure of the husband to join.</p>

<p>1. Appeals and errors—questions which are conclusively settled in Appellate Court. In an action against a city to recover damages for injuries received from a defective sidewalk, whether the plaintiff used due care, whether the city was negligent, and whether the injury resulted as charged and to the extent claimed, are questions of fact Anally settled by the Appellate Court’s judgment.</p> <p>2. Same—harmless errors are not ground for reversal. The rulings of the trial court in the admission and exclusion of testimony, which work no injury, are not ground for reversal, even though they may be erroneous.</p> <p>3. Same —failure to move to exclude evidence admitted without objection waives error. The fact that part of a witness’ answer to a question was objectionable cannot be assigned as error on appeal, where the question itself was not objected to, and no motion was made to exclude the objectionable part of the answer from the jury.</p> <p>4. Variance—to avail of variance objection must be made when evidence is offered. One desiring to avail himself of a variance between the allegations of the declaration and the proof must object to the evidence alleged to constitute the variance at the time it is offered at the trial.</p> <p>5. Evidence—right of plaintiff in personal injury case to testify as to his occupation. Where a declaration in a personal injury suit alleges that the injury has hindered plaintiff in transacting his business, wherefore he is damaged, etc., the plaintiff may show what his business was, what he was earning and what his labor was worth. (Wabash Railway Co. v. Friedman, 146 Ill. 583, distinguished.)</p> <p>6. Same—expert may give an opinion as to cause of injury from examination of injury itself. In an action to recover damages for personal injury, the opinion of a witness called as an expert as to the cause of the injury is competent, though based on a personal examination of the injury itself.</p>

<p>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>

Writ op Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Lake county; the Hon. Clark W. Upton, 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>Writ op Error to the Circuit Court of Rock Island couuty; the Hon. John J. Glenn, Judge, presiding.</p>

<p>1. Waiver—what is not a waiver of right to assign error. A defendant obtaining leave to give, under the general issue, all evidence competent under certain special pleas to which demurrer had been sustained, may afterward, before trial, with leave of court, withdraw the general issue and elect to stand by Ms special pleas, and may assign as error the sustaining of the demurrer thereto.</p> <p>2. Pleading—plea of want of consideration by guarantor—when bad on demurrer. Where a declaration alleges a contract of guaranty contemporaneous with or prior to the making of the note guaranteed, and as a part of the same transaction, a plea which avers that the guarantor was only a surety and that he received no consideration for his suretyship, but which fails to traverse the allegations of the declaration, is bad in substance.</p> <p>3. Same—plea in bar that guarantor has been garnished in suit against maker is bad. A plea in bar to a declaration on a contract guaranteeing payment of a note, which avers that the guarantor has been summoned in an attachment suit against the maker and payee of the note, and that the plaintiff was holding the note for the payee’s benefit, raises only matters in abatement, and is demurrable.</p>

George W. Stipp, Judge, presiding. This is an appeal from a judgment of affirmance by the Appellate Court of a decree for the partition of real estate between the heirs-at-law of Charles G. Read, deceased. Read died in July, 1887, leaving the following will, which was during the same month admitted to probate: “In the name of God, Amen.—I, Charles G-.

<p>Original petition for mandamus.</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>

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Peoria county; the Hon. T. M. Shaw, Judge, presiding.

<p>1. Instructions—effect of agreement that erroneous instruction may he given. The giving, by agreement of both parties, of an instruction containing an erroneous statement, precludes either party from complaining of an instruction given for the other which is liable to the same objection.</p> <p>2. Eminent domain—when verdict awarding nominal damages for leasehold will he sustained. A verdict awarding but nominal damages for a leasehold interest in land taken by condemnation will not be disturbed on appeal, though the uncontradicted testimony of defendant placed a large value on the same, where the jury viewed the premises, and where the lease, given in evidence, was by its terms terminable on thirty days’ notice by the lessor.</p>

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

<p>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—assessment against lots is invalid when plat is not recorded. A county court has no jurisdiction to enter a judgment confirming an assessment against property by the desefiption contained in a plat which has not been recorded.</p> <p>2. Taxes—objections going to jurisdiction are available on application for judgment. Objections which go to the jurisdiction of the county court in rendering a judgment of confirmation are available on application for judgment of sale of the property for the delinquent assessment.</p> <p>3. Estoppel—owner of plat which is unrecorded may deny its binding force. The act of submitting an acknowledged and certified plat by the owner to the town council for approval does not estop him, after approval but before recording, from denying its binding force, where there has been no sale of lots with reference thereto and no public acceptance of its streets and alleys.</p>

R. W. Clifford, Judge, presiding. On behalf of the People of the State of Illinois the Attorney General filed this information in the nature of a quo warranto against the appellant, the Illinois Health University, praying that it be required to show by what warrant it had misused and perverted its corporate powers and franchises as set forth in the information, and by what authority it had assumed powers, liberties, privileges and franchises not authorized by its charter,…

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

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

<p>1. Taxes— how far real estate may be charged with personal property taxes. Beal estate is not liable for taxes assessed against personal property except in the manner pointed out by statute.</p> <p>2. Same—construction of Revenue act as to charging real estate with personal tax. Section 255 of the Bevenue act, (Bev. Stat. 1814, p. 899,) which provides for charging real estate with personal taxes when they cannot be made out of the personal property assessed, contemplates an active effort by the collector to make the tax, and not merely a demand.</p> <p>3. Same—when judgment of sale against real estate for personal taxes will not be sustained. A judgment of sale against real estate for personal taxes will not be sustained where the personalty assessed has not been removed from the collector’s jurisdiction or disposed of, and no reason appears why it could not be taken to satisfy the tax. (Shelbyville Water Co. v. People, 140 Ill. 550, distinguished and explained.)</p>

<p>1. Negligence—when instruction as to ordinary care is not conflicting. An instruction that the plaintiff, as a passenger, need not exercise extraordinary" care or the highest degree of prudence to avoid injury, but only such care as an ordinarily prudent person would use under the circumstances shown, does not state conflicting rules.</p> <p>2. Same—passenger not hound to use the highest degree of care. A passenger upon a street car is not bound absolutely to use the highest degree of vigilance and care for his own safety.</p> <p>3. Special bindings—when special interrogatory is properly modified. In an action for damages for injuries received by the plaintiff from a collision between a coal wagon and a street car on which he was riding, the proper inquiry for a special interrogatory is, could he have avoided the injury by using ordinary care, and not, could he “have removed in time to avoid the injuries complained of.”</p>

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

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. George W. Wall, Judge, presiding. On June 22, 1893, H. G. Reinemer & Co. executed and delivered their two judgment notes to Kingman & Co., one of them for §1424.34, due July 1, 1893, and the other for §3536.27, due September 1, 1893. Said notes were signed also by the partners, H. G. Reinemer and Philip Knebel, as individuals.

Philip Stein, Judge, presiding. This is an action, brought by the appellee, the Chicago Hydraulic-Press Brick Company, against the appellant, James G. Cozzens and three other parties, to-wit: James M. Stebbins, John B. Mesney and Wheatley, Buck & Co., upon a contract of guaranty of the payment of a promissory note.

<p>1. Real property—surrender of particular estate must be by mutual agreement. A surrender is the yielding up of an estate for life or for years to him who has the immediate reversion or remainder, wherein the particular estate is extinguished by mutual agreement between the parties.</p> <p>2. Landlord and tenant—surrender of a lease may be express or implied. A surrender of a lease may be in express words manifesting the lessee’s intention to yield up his interest to the lessor, or it may be by operation of law from acts which imply that both parties have agreed to the surrender.</p> <p>3. Same—mere cancellation of lease is not of itself a surrender. The cancellation of the lessee’s copy of a lease by the lessor will not release the lessee from liability for rent, where the parties, by their subsequent conduct, show that they do not regard the cancellation of the lease as a surrender.</p> <p>4. Appeals and errors —general objection that trial court erred in refusing instructions is insufficient. A general objection that the trial court erred in refusing instructions, without attempting in any way to point out in what the error consists, is not sufficient to demand consideration by a court of review.</p> <p>5. Trial— the conduct of trials as to permitting delay rests with the court. The conduct of trials as to permitting delay on account of tardiness of counsel, etc., rests in the sound legal discretion of the trial court, with which discretion courts of review will not interfere, in the absence of abuse.</p>

Writ op Error to the Circuit Court of Effingham county; the Hon. E. D. Youngblood, Judge, presiding.

Writ op Error to the Appellate Court for the Fourth District;-—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. A. S. Wilderman, Judge, presiding.

O. H. Horton, Judge, presiding. Appellant, Crandall, as assignee of the contract set out below, filed this bill in the circuit court of Cook county, against Carl H. Willig, Antonie Willig and DeLaMoine Wickersham, for the specific performance thereof.

<p>1. Wills—executor may appeal from decree setting loill aside. One named as executor in a will, who is made defendant in a proceeding to set the will aside and on whose answer to the hill issue is joined, has such an interest in sustaining the will as entitles him to appeal.</p> <p>2. Same—proponents need not prove will where their adversaries prove it for them. Where those attacking a will offer evidence establishing, prima facie, its validity, it is error to direct a verdict against such validity, though the proponents of the will offer no evidence.</p> <p>3. Same—invalid alteration does not revoke will. An alteration made by a testator in his will, which fails for want of proper attestation, leaves the original -will in full force.</p> <p>4. Same—interlined clause is void, unless will is re-attested. A clause interlined in a duly executed will is invalid if unsigned and the will not re-attested, though the alteration is made hjr one of the witnesses by direction of the testator, and in his presence and in the presence of the other witness.</p>

County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.

<p>Writ op Error to the Circuit Court of Alexander county; the Hon. Joseph P. Hobarts, Judge, presiding.</p>

Benjamin R. Burroughs, Judge, presiding. This was an action brought by William Henry Sanders, against the Illinois Central Eailroad Company, to recover for a personal injury received on the 22d day of February, 1892, while in the service of the company as a brakeman. The declaration contained four counts, but as the fourth count contains a more accurate statement of the plaintiff’s cause of action than the other counts it will only be necessary to refer to that one.

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. Murray F. Tuley, Judge, presiding.

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

<p>1. Review—when hill lies to review decree entered by default. Where rights of third parties have not intervened, a bill lies to review a decree of foreclosure entered by default, which, by mistake not apparent from the face of the record, provides for the foreclosing of the interests of heirs not parties to the mortgage.</p> <p>2. Same—when affirmance of decree will not bar bill of review. A judgment of the Appellate Court, not reversed or appealed from, affirming a decree of foreclosure on a writ of error assigning errors apparent on the face of the record, does not bar a review of that decree for a mistake not appearing on the face of the record.</p>

Clair county; the Hon. A. S. Wilderman, Judge, presiding. This suit was brought by appellee, against appellant, in the circuit court of St. Clair county, to recover damages for an injury to his person, alleged to have been caused by the negligence of the defendant. The plaintiff was a brakeman on the Louisville, Evansville and St. Louis Consolidated railroad.

Charles Blanchard, Judge, presiding. This is a-n appeal from a judgment of the Appellate Court affirming a judgment of the circuit court of… Held: at the instance of the interpleader, the following propositions of law: 1. “That exhibits ‘X,’ ‘W’ and ‘V’ are bills of lading, as that term is accepted and understood by commercial usage and custom. 2. “When a party consigns live stock to another, and draws upon the consignee for funds with which to pay the purchase price of the…

Benjamin E. Burroughs, Judge, presiding. This is a bill by William Harkleroad and others to construe the will of his father, Isaac Harkleroad, deceased, late of Madison county.

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

<p>1. Receivers—objections to competency of receiver must be made in the proceeding wherein he is appointed. Where a decree appointing a corporation as receiver has been affirmed by the Supreme Court, the legality of the organization of such corporation cannot be collaterally attacked by the parties in a subsequent proceeding.</p> <p>2. Same—when receiver is not disqualified by becoming a creditor of the estate. The fact that the balance of account between a receiver and the estate under his control is in his favor does not disqualify him to act as receiver, where the indebtedness arose in the course of the receivership, and as a necessary incident to the proper performance of the receiver’s duties.</p> <p>3. Estoppel—when party is estopped to question legality of receiver’s appointment or competency. Where one of the parties to a proceeding appointing a receiver consents to an order providing for the advancement by the receiver of money to protect the estate placed in his control, such party is estopped to afterward question the legality of the receiver’s appointment or his competency to act.</p> <p>4. Same—one consenting to an order cannot impeach it on then existing grounds. One consenting to an order of the court concerning the conduct of a receivership cannot impeach it on any ground existing at the time he gave his consent.</p> <p>5. Judgments and decrees—court may change form of liens in administration of receivership. A decree providing that a receiver sell sufficient of the lands in his possession to satisfy existing liens does not take from the court the power to afterward authorize the receiver to borrow the money to satisfy the liens and subrogate the parties advancing the same to the rights of the former lienholders.</p> <p>6. Practice—parties to suit are bound to take notice of motions made therein. Where parties to a suit are properly in court no notice of motions made in the case need be given, except where required by some rule of court or by the provision of a decree formerly entered in the cause.</p> <p>7. Evidence—rules of court must be proved by the record. The record in which rules of court are entered is the only competent evidence to prove their existence.</p>

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. A. S. Wilderman, Judge, presiding.

<p>Fraud—when conveyance is in fraud of creditors. Where an insolvent purchases property but has the title conveyed to another, a conveyance by the latter to a third party at the insolvent’s request, to evade the payment of an existing judgment, will be set aside at the suit of the judgment creditor as fraudulent, where all the parties knew of the existence of the judgment and were merely co-operating to conceal the true ownership of the property.</p>

Benjamin R. Burroughs, Judge, presiding. This suit originated in the Madison circuit court.

Henry V. Freeman, Judge, presiding. This is a proceeding instituted by appellant for the condemnation of certain premises for its right of way, described as follows: The west nineteen feet of lots 5 and 6, in sub-block 1, of Page & Wood’s subdivision of block 50, canal trustees’ subdivision of section 7, township 39, north, -range 14, east of the third principal meridian.

<p>1. Propositions op law—must not ignore the issues in the case. Where, in an action of replevin, one of the issues is whether or not the article replevied was a fixture, a proposition of law is properly refused which wholly ignores that issue.</p> <p>2. Same—proposition of law must not single out particular evidentiary facts. A proposition of law holding that, upon certain facts recited, a machine used by a tenant in his business, and so attached by him to the realty that it could be removed without injury thereto, was a trade fixture and personal property, is properly refused, where there are other facts in evidence, ignored by the proposition, bearing upon that question.</p>

Benjamin R Burroughs, Judge, presiding. This is a petition for quo warranto by Charles E. Jennings, State’s attorney for Marion county, upon the relation of S. G. Burdick, superintendent of schools in said county, alleging that, on April 1, 1869, a board of education in the city of Centralia in said county was organized under a special act of the legislature, and thereafter until April 15, 1893, controlled and managed the free schools in said city under the authority granted…

<p>Appeals and errors—when error in the admission of evidence and giving of instructions will not reverse. Where plaintiff’s cause of action is clearly established by the admission of the defendant, errors in the admission of testimony and the giving and refusing of instructions will not work a reversal of the judgment.</p>

<p>1. Insurance—proofs of loss under policy may be legally made by the a.gent of insured. Where it sufficiently appears that the insured was not in a position to make proofs of loss, those made by his agent will be legally sufficient.</p> <p>2. Same—effect of inserting wrong name in policy by mistalce. Where an insurance policy, by accident, mistake or design, is made payable to a person by a wrong name, such person may sue in his true name without- resorting to equity for a reformation, by averring that the policy was made to him in the name therein appearing.</p> <p>3. Same—when policy is not avoided by fact that the insured- named is dead. Naming a deceased person as the insured in a fire policy, instead of his estate, will not render the policy void, where the company, through its agents, had notice that the person named was dead when the policy was issued.</p> <p>4. Evidence—-/or which party an insurance broker acted may be shown by parol. Whether an insurance broker acted for the insured or for the insurance company may be shown by parol evidence, notwithstanding the statements of the policy.</p> <p>5. Same—the question of agency is a mixed question of law and fact. Whether an insurance broker acted as the agent of the insured or of the insurance company is a mixed question of law and fact, to be determined by the jury, under proper instructions, from all the evidence.</p> <p>6. Appeals and errors—error without prejudice will not work reversal. The giving of an instruction not strictly accurate will not work a reversal where the evidence is so clear that no injury could result therefrom. •</p> <p>7. Waiver—refusal to pay policy upon specific ground waives other objections. The refusal of an insurance company to pay a policy upon the distinct and sole ground that it was void when issued, waives the objection that proofs of loss were insufficient because made by an agent of the insured.</p>

<p>1. Vested eights—there can be no vested right in a particular mode of procedure. There can be no vested right in any particular remedy or in any special mode of administering a remedy.</p> <p>2. Statutes —remedial statutes may be given retrospective operation. While, ordinarily, a statute will not be given retrospective operation in the absence of clear legislative intention, yet where an act merely changes the remedy or law of procedure all rights of action may be enforced thereunder, whether they accrue before or after the change. (Fisher v. Green, 142 Ill. 80, distinguished and explained.)</p> <p>3. Landlord and tenant—provisions of act of 1865 apply to previously executed leases. The provisions of sections 2, 3 and 4 of the Forcible Detainer act of 1865, (Laws of 1865, p. 107,) afterward incorporated in sections 8 and 9 of the Landlord and Tenant act, (Rev. Stat. 1874, p. 658,) apply to leases executed prior to the passage of the act of 1865 which provide for re-entry in case of breach.</p> <p>4. Same—sections 8 and 9 of the Landlord and Tenant act provide separate and entire remedies. Sections 8 and 9 of the Landlord and Tenant act (Rev. Stat. 1874, p. 658,) respectively provide separate, full and entire remedies for terminating a tenancy, and neither depends upon the other to give it vitality.</p> <p>5. Same—notice to quit is a sufficient demand for rent. The giving of the statutory notice provided for in section 9 of the Landlord and Tenant act, concerning the landlord’s election to terminate a lease for non-payment of rent, is a sufficient demand for rent, and no other notice or demand is necessary before bringing ejectment. (Carter and Wilkin, J.T., dissenting.)</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. Ferdinand Bookwalter, Judge, presiding.

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

<p>1. Witnesses—husband not competent in wife’s behalf when adverse party defends as executor. A husband is not a competent witness in behalf of his wife where the adverse party sues or defends as the executor of a deceased person.</p> <p>2. Evidence—what not sufficient to prove execution of a note. In an action by a daughter on a note alleged to have been made by her deceased father, the execution of which is denied by his executor by verified plea, proof of an admission by the father that plaintiff held his note for the amount specified will not entitle the note to admission in evidence, in the absence of further identification.</p>

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

<p>1. Appeals and errors—appeal does not lie except from,final order of court. An order of court dismissing a bill as to one party is not a final order, and cánnot be appealed from until there has been a final disposition of the case as to all other parties.</p> <p>2. Same—appeal from interlocutory order will be dismissed, in absence of showing of hardship. An appeal from an order of court not final will be dismissed, in the absence of any showing that a peculiar hardship will result from such dismissal, or that the final disposition of the case will be facilitated by entertaining the appeal.</p> <p>3. Same—suit to determine rights acquired by perpetual easement in land involves a freehold. A freehold is involved where the right of recovery in a suit depends upon the existence of a perpetual easement in land and the rights thereby acquired.</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>Affidavits—when affidavit is not ambiguous. An affidavit reciting that the affiant on oath says “that he is the duly authorized agent in this behalf of the plaintiff, and that he verily believes,” etc., is not ambiguous, as leaving it uncertain whether the affiant states his own belief or that of the plaintiff.</p>

<p>1. Equity—equity cannot substitute contract of its own making for that of the parties. Equity cannot create a contract between parties which was not intended by either, or, in the absence of fraud, accident or mistake, change a contract which expresses their deliberate intention.</p> <p>2. Same—example of rule that equity cannot substitute a contract for that of the parties. A mortgage executed by a debtor to his creditor to indemnify him for signing a note as security, cannot, upon failure of the debtor to sign the note as agreed, be enforced in equity as security for the original debt, although the creditor was to receive the money raised by his suretyship.</p>

■ Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit, Court of Cook county; the Hon. John Barton Payne, Judge, presiding. Held: that Richards was entitled to compensation, and reversed the decree of the circuit court, so far as it allowed the executrix $24,856.23, and affirmed it for $16,713.77.

<p>special assessment, construed. The provision of section 3 of the act of 1885, to vest in corporate authorities of cities and villages power to construct and maintain drains, ditches, levees, etc., (Laws of 1885, p. 60,) by the levy and collection of special assessments in accordance with section 9 of the City and Village act of 1872, adopts such section as it then existed, and does not adopt the subsequent amendments permitting the division of assessments into installments. bv</p> <p>2. Drainage—special assessment for construction of drain under act of 1885 cannot he divided into installments. A special assessment levied under the act of 1885, to authorize corporate authorities of cities and villages to construct drains and defray the cost by. special assessment, (Laws of 1885, p. 60,) cannot be divided into installments.</p>

<p>1. Variance—objection for, not considered on appeal when not raised below. An objection for variance between the allegation and proof cannot be considered on appeal when not properly raised at trial.</p> <p>2. Mortgages—assignment of mortgage is not perfect without notice to the mortgagor. Mortgages and deeds of trust come within the rule that an assignment of a chose in action, other than a negotiable instrument, is not perfect so as to protect the assignee as against equities between the original parties, without notice of the assignment to the debtor.</p> <p>3. Same—assignee of mortgage takes subject to existing equities. A mortgagor not having notice of the assignment of the mortgage, may, on suit by the assignee to foreclose, interpose any defenses arising out of the mortgage transaction which he might maintain against the mortgagee, notwithstanding the mortgage is given to secure a negotiable note.</p> <p>4. Same—when mortgagor is not chargeable with negligence in making payments. One giving a mortgage to a bank to secure a loan, payments on which are to be made by deposits evidenced by a passbook, is not chargeable with negligence in not demanding the production of the note when making deposits, where his action is justified by former dealings with the bank of the same nature.</p> <p>5. Same—when payment must be credited on mortgage debt though not endorsed on note. Payments made by a mortgagor, evidenced by a pass-book but not endorsed on the note, must be credited pro tanto in discharge of the mortgage lien on foreclosure by the assignee of the note and mortgage, and as to the amount so credited the assignee has his only remedy by an action on the note.</p>

Francis M. Wright, Judge, presiding. This was a bill for partition, assignment of ddwer and an accounting of rents and profits, brought by appellee, against appellant and others, at the March term, 1895, of the Champaign circuit court.

Writ op Error to the Appellate Court for the Third District;—heard in that court on appeal from, the Circuit Court of Cass county; the Hon. Lyman Lacey, Judge, presiding.

<p>1. Quo warranto—lies to determine right of city to exercise corporate powers. Quo warranto is the only remedy to determine the right of a city to exercise corporate authority over persons and property alleged to be without its territorial jurisdiction, where the contest involves the investigation of facts not appearing of record.</p> <p>2. Same—information should be against corporation in its corporate name, if corporate existence is not questioned. An information in the nature of quo warranto to determine the legality of the acts of a corporation should be in the name of the corporation, if its corporate existence is not questioned.</p> <p>3. Same—legality of corporation’s action is not admitted by filing information in its corporate name. An information in quo warranto against a city, in its corporate name, to determine the legality of annexation proceedings, while it admits the legal existence of the corporation does not admit the legality of the annexation.</p> <p>4. Same—corporation justifying to an information in quo warranto has the entire onus. A defendant justifying to an information in quo warranto, whether an individual or a corporation, has the entire burden of showing by what authority the powers complained of are exercised, and the People are entitled to a judgment of ouster if a prima facie case is not made out.</p> <p>5. Evidence—when city council’s finding of facts is not conclusive. Proof of the city council’s finding of facts constituting the statutory conditions under which the city exercised the power of annexation, together with proof of the ordinance reciting such facts, does not make out a prima facie case in quo warranto proceedings.</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>

Thomas F. Tipton, Judge, presiding. This was a bill in equity brought by the city of Chenoa, against Eoscoe G. Jordan, to enjoin him from closing up an alley in block 15 in Hamilton’s first addition to Chenoa, running east and west between lots 1 and 2 on its north side and lots 3 and 4 on its south side. The following plat which appears in the record shows the lots in block 15 and the streets and alley as they were originally platted: [[Image here]]

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Abner Smith, Judge, presiding.</p>

Cyrus Epler, Judge, presiding. This was a bill for partition, brought by Rebecca Mc-Neely, Maria Smith and Judea.

Dorrance Dibell, Judge, presiding. This is a bill originally filed on December 28, 1892, by the appellees, Annie Evans and Honor Judge.

O. N. Carter, Judge, presiding. This is an appeal from the judgment of sale rendered by the county court of Cook county against certain lots of appellant for a delinquent special assessment. The ordinance upon which the judgment of confirmation was based was adopted by the president and trustees of the village of Maywood, and was, in part, as follows: “Sec. 1.

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

Jacob Fouke, Judge, presiding. This is an appeal from a judgment of the Appellate' Court affirming a judgment of the circuit court of Macoupin county, wherein Randolph T. Anderson, administrator of the estate of Randolph Anderson, deceased, recovered a judgment of §4600 against the Chicago and Alton Railroad Company in a certain action in which it was alleged that the death of plaintiff’s intestate was caused by the negligence of the servants of the railroad company in…

<p>1. Motion—to strike plea from files is not part of record v,nless saved by bill of exceptions. A motion to strike pleas from the files, the decision of the court thereon and the exception taken do not become part of the record unless preserved by a bill of exceptions.</p> <p>2. Appeals and eebobs—action of trial court in sustaining motion is presumed correct, in absence of bill of exceptions. The action of the trial court in sustaining a motion to strike pleas from the files will be presumed correct on appeal, in the absence of a bill of exceptions preserving the motion, decision and exception.</p>

<p>1. Mortgages—validity of execution of power of sale by trustees succeeding those originally named. Trustees lawfully appointed to succeed deceased trustees originally appointed in a deed of trust, may execute a power of sale thereunder without an additional written conveyance of the property to them, where the deed provides that upon the death of the trustees named therein the same title and powers vested in them shall vest in their successors.</p> <p>2. Same— section lk of Mortgage act does not apply to railroads. Section 14 of the act on mortgages, (Rev. Stat. 1874, p. 713,) concerning the giving of notice of sales under powers contained in mortgages and deeds of trust in the county where the mortgaged property is located, does not apply to a sale under a mortgage of a line of railroad extending through several counties.</p> <p>3. Same—¿rustes in doubt as to their (duties may apply to equity. Trustees who are in doubt as to the performance of their duties under the deed of trust, or as to the manner of exercising the powers thereby conferred upon them, may apply to a court of general equity jurisdiction for its aid and direction.</p> <p>4. Jurisdiction—general rule as to jurisdiction of courts over specific property. Where the subject matter of a suit is specific property, and the relief, when granted, must act directly upon property and not upon the person of the defendant, jurisdiction must be exercised in the State where the subject matter is situated.</p> <p>5. Same— when it is immaterial that the res is beyond court's jurisdiction. Where a court of equity has jurisdiction of the parties, it is immaterial that the res in controversy, whether real or personal property, is beyond its territorial jurisdiction, and it may compel the parties to do all things according to the lex loci rei sitae which they could voluntarily do to give full effect to the decree rendered.</p> <p>6. Same—cowri of equity may decree sale of railroad extending beyond its territorial jurisdiction. A court of general equity jurisdiction, having jurisdiction of the parties, has power to decree sale of a line of railroad in accordance with the terms of the power in the trust deed, although the road extends beyond its territorial jurisdiction.</p> <p>7. Injunction —equity, on decreeing removal of cloud, may enjoin defendants from asserting title. A court of general equity jurisdiction, on decreeing certain mortgages to be a cloud on complainant’s title and ordering their removal, may enjoin the defendants from afterward setting up or attempting to enforce the same.</p>

<p>1. Corporations—power of corporation to perform corporate acts outside the State of its creation. In the absence of a statute to the contrary, a corporation has no power to perform strictly corporate acts outside, the State of its creation.</p> <p>2. Benefit societies— statutory requirements must be observed on amending a/rticles of association. A change in the articles of association of an incorporated benefit society must be made in accordance with methods previously assented to by its members, and the statutory provisions relating thereto must also be observed.</p> <p>3. Same—change in location of principal office—when not binding on members. Where an incorporated benefit society has by its fundamental law fixed its principal office at the place designated in its articles of association, such principal office cannot be changed, so as to bind members of the society, without the amendment of both its fundamental law and its articles.of association.</p> <p>4. Same—act of June 32,1893, repealed conflicting provisions of act of 1887, as amended in 1893. Section 10.of the act of 1893, concerning benefit societies, (Laws of 1893, p. 134,) is in conflict with section 18a of the act of 1887, as added by the act of 1893, (Laws of 1893, p. 116,) and repeals the conflicting provisions of that section.</p> <p>5. Same— benefit society cannot change its principal office at a meeting held outside the State. A benefit society organized under any law in this State, which has applied, for permission to continue business under the act of 1893, concerning benefit societies, (Laws of 1893, p. 130,) is prohibited by section 10 of that act from changing the location of its principal office at a meeting held in another State.</p> <p>6. Same—right of members of benefit society to bring suit against it. Section 12 of the act concerning benefit societies, (Laws of 1893, p. 135,) which provides for the bringing of suits against such societies by the Attorney General, has no reference to controversies between individual members of the society and the officers thereof to prevent the consummation of acts contrary to its fundamental law or its articles of association.</p> <p>7. Injunction—w/tro benefit society will be enjoined from removing its principal office. A benefit society, which has appropriated a large sum of money to defray the cost of the unauthorized and illegal removal of its principal office, maybe enjoined, at the suit of members of the society contributing to its support and interested in its funds, from consummating such removal.</p>

Theodore Brentano, Judge, presiding. Appellee Jennie Eadnitzer (formerly Jennie Lurie) filed her bill of complaint in the Superior Court of Cook county praying for the partition of certain lands owned by Adolph Lurie, her former husband, at the time of-his death.

<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. Negligence —traveler not bound, under all circumstances, to look and listen before crossing railroad. It is not a rule of law that a traveler is bound, under all circumstances, to look and listen before crossing a railroad track.</p> <p>2. Same—not negligence per se for person whose view is obstructed to cross railroad track.. It is not negligence, in every case and under all circumstances, for a person whose view is obstructed by smoke and dust from a train passing on one track to step upon a parallel track before his view becomes unobstructed.</p> <p>3. Same—question of negligence is ordinarily one of fact. Where the evidence in a case is such that reasonable men of fair intelligence may draw different conclusions, the question of negligence must be submitted to the jury.</p>

<p>Original information to strike attorneys from roll.</p>

that court on writ of error to the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding. This was a bill filed by the Oakland Building Association, one of the appellees, to foreclose a mortgage executed by John W. Rickey and wife upon a piece of ground described as the south one hundred feet of the north one hundred and fifty feet of lot 42, in Rosalie Villas, in Cook county.