Volume 167 — Illinois Reports

<p>1. Highways—elements necessary to constitute a highway by prescription. To constitute a highway by prescription, the use of the land by the public as a way for the requisite twenty years must be uninterrupted, adverse and under claim of title.</p> <p>2. Same—evidence material on attempt to establish a highway by prescription. Where a city seeks to establish a highway by prescription along a railroad right of way, evidence that the city, during the period it claims adverse user, had recognized the company’s right of way as an easement or by title is material and competent.</p> <p>3. Evidence—acts inconsistent with claim of adverse user for twenty years. The bringing of a suit and recovery of judgment by a city against a railroad for the cost of building a crossing over land which it alleged was the company’s right of way, and the levying of special taxes on the land against the company, all within the period for which the city claims adverse, uninterrupted possession of the land as a highway, are acts inconsistent with such claim.</p>

<p>Appeal from the County Court of Hancock county; the Hon. David E. Mack, Judge, presiding.</p>

<p>1. Special assessments—judgment confirming a special assessment is a judgment in rem. The judgment of a county court confirming a special assessment roll is a judgment in rem, and is several against each tract of land for the amount finally assessed against it.</p> <p>2. Same—what property affected by appeal from judgment confirming a special assessment. By section 34 of article 9 of the City and Village act (Rev. Stat. 1874, p. 237,) any appeal or writ of error taken from a judgment confirming a special assessment roll does not invalidate or delay the judgment except as to the particular tracts of land concerning which such appeal or writ of error is taken.</p> <p>3. Appeals and errors—on"e cannot assign for error that which concerns another alone. One cannot assign as error any act of the court in rendering a judgment confirming a special assessment against any land, in the absence of anything in the record or alleged in the assignment of errors showing that he has an interest in the land', or that he was a party to or injured by such judgment.</p> <p>4. Same—how parties' interests may be made to appear. Parties desiring a review of special assessment proceedings, whose names do not appear in the record as owners of the land assessed, should allege their ownership of the particular tracts in their assignment of errors, which allegation, on joinder in error, would, without a special .plea, stand admitted.</p> <p>5. Same—everything on which error is assigned must appear in the abstract. Parties taking cases to the Supreme Court for review must prepare and file complete abstracts of the record, in accordance with the rules of the court, in which everything upon which error is assigned must appear.</p>

Writ op Error to the Circuit Court of Randolph county; the Hon. George W. Wall, Judge, presiding. This was an action of ejectment to recover, as a part of the commons belonging to the inhabitants of Kaskaskia, a portion of an island in the Mississippi river called Brewer’s or McClure’s Island.

Edward P. Vail, Judge, presiding. On the 12th day of November, 1888, Edward O. Smith purchased from John C. and Edward Coleman a lot in San Jose, Cal., for which he executed his note for §4500. At the time of the purchase the grantors executed a deed and the grantee executed his note. The deed and note were left with E. Williams, with a distinct agreement that the deed was not to be delivered until the note was paid.

<p>1. Trusts—when trust will not be executed by Statute of Uses. Where land is conveyed under a parol agreement that it is to be held in trust, but the deed is intentionally and in good faith made absolute in form, purporting to be for a valuable consideration and to the sole use of the grantee, his heirs and assigns, the trust created is express, and is not executed by the Statute .of Uses.</p> <p>2. Same—grantee in deed absolute in form has sole power to declare express trust. The grantee in a deed absolute in form, who holds the property under an express trust not evidenced by writing, has sole power to declare the trust, which power is not affected by subsequent deeds of conveyance made by his grantor.</p> <p>3. Statute of Frauds—grantee may waive Statute of Frauds and declare express trust. The grantee in a deed absolute in form may waive the benefit of section 9 of the Statute of Frauds, and, by answer to a bill in chancery or otherwise, declare that he holds the land in trust.</p> <p>4. Same—when express trust may be proved by parol. Where a grantee in a deed absolute in form declares in his answer to a bill in chancery that he holds the land under an express trust not evidenced by writing, but that he is unable to recall its precise terms and conditions, such terms and conditions may be proved by parol.</p> <p>5. Same—grantee's declaration of trust is binding as to its nature and existence. A declaration of trust contained in the answer of a grantee in a deed absolute on its face, to a bill for partition of his grant- or’s estate, is binding upon all parties, in the absence of fraud or mistake as to the nature and existence of the trust.</p> <p>6. Estoppel—when party is estopped to plead the Statute of Frauds. Where both complainants and defendants to a partition suit rely for title to certain property upon the answer to their bill by a grantee in a deed to the property absolute in form, which waives the defense of the Statute of Frauds and admits the existence of an express trust the terms of which rest in parol, neither side can insist upon the Statute of Frauds as against the other.</p> <p>7. Notice—subsequent purchaser with notice of prior unrecorded deed is bound thereby. A subsequent purchaser of property who has notice of the existence of a prior deed, or has knowledge of facts and circumstances which charge him with notice, is bound by the terms of the prior deed though unrecorded.</p>

<p>1. Statíe Board op Health—construction of act of 1877 creating. Section 2 of the act creating the State Board of Health, (Laws of 1877, p. 208,) which provides that such board shall have supervisory power over “the interests of the health and lives” of citizens, must be construed in relation to the specific duties imposed and powers conferred upon the board by the act, taken as a whole.</p> <p>2. Same—supervisory power of board must be exercised in conformity to. law. The general supervisory power of the State Board of Health over the health and lives of citizens must be exercised in conformity to law, and is confined, within reasonable limits, to the administrative duties imposed upon the board by statute.</p> <p>3. Same—limitation upon power of board to make rules concerning public health. The power conferred by statute upon the State Board of Health to make rules and regulations for the preservation or improvement of the public health, does not authorize such board to prescribe conditions under which citizens may exercise rights and privileges guaranteed by public law.</p> <p>4. Vaccination—laws of Illinois do not reguirevaccination of children as condition precedent to attending school. The laws of Illinois give to<every child in the State of proper age the right to attend public schools, and there is no provision which requires vaccination as a condition precedent to the exercise of that legal right.</p> <p>5. Same—power to compel vaccination is derived from the general police power of the State. The power to compel the vaccination of children as a prerequisite to their attending public schools can be derived only from the general police power of the State, and can be justified only as a necessary means for preserving health.</p> <p>6. Same—when rule compelling vaccination is unreasonable. A rule adopted by the State Board of Health compelling the vaccination of children as a prerequisite to their attending public schools, is unreasonable where small-pox does not exist in the community, and there is no reasonable cause to apprehend its appearance.</p> <p>7. Same—school directors cannot exclude children from school because not vaccinated, except in emergency. School directors have no right, either under their own rules or by order of the State Board of Health, to exclude from public schools children refusing to be vaccinated, unless such course is necessary, or reasonably appears to be necessary, to prevent the appearance or spread of small-pox.</p>

<p>1. Principal and agent—facts insufficient to show the fiduciary relation of agency. Evidence that one party was formerly in another’s employ, that he shared the same office with him after his employment terminated, and that he sometimes attended to the other’s business during periods of the latter’s insanity, etc., is not of itself sufficient to establish the fiduciary relation of principal and agent between the two.</p> <p>2. Trusts—when purchase of land will not be declared to be in trust. A purchase in good faith by one party of land offered to his office associate, made during the latter’s absence, will not be declared in equity to have been made in trust, where no fiduciary relation existed between the two parties and the purchaser made a bona fide but unsuccessful effort to obtain the property for the other upon the latter’s terms.</p>

<p>1. Eminent domain—description of property in ordinance is aided by an accompanying plat made part thereof. Property is sufficiently described in an ordinance for condemnation, where an accompanying plat, which Is referred to in the ordinance and made a part thereof, renders the description certain.</p> <p>2. Same—what not proper element of damage on opening street across railroad. Prospective loss of profits which may result to a railroad from the destruction of approaches to grain elevators built upon land leased from the railroad company, occasioned by the extension of a street across the company’s right of way, cannot be allowed as compensation for the land taken.</p> <p>3. Same—fust compensation does not include imaginary or speculative damages. Just compensation for property condemned does not in-elude imaginary or speculative damages, which may or may not occur in the future.</p> <p>4. Same—market value is not the measure of damages on opening street across railroad. The market value of land taken from a railroad company by condemnation in extending a street across its right of way is not the measure of damages, as such property cannot be sold for general purposes.</p> <p>5. Same—when value of right of way for erection of structures other than tracks may he allowed. The value of a right of way for the erection of warehouses, and structures other than tracks, cannot be allowed as damages on opening a street across such right of way, unless the railroad company in good faith designs to erect such structures on the land condemned, for use in connection with its road. (Illinois Central Railroad Co. v. City of Chicago, 156 Ill. 98, explained.)</p>

<p>1. Appeals and errors—dilatory motions going to jurisdiction must be made in apt time. An objection that the justice’s transcript in forcible entry and detainer, filed on appeal in the circuit court, contained no written complaint, is waived by the objector going to trial without making the objection, where such complaint was in fact filed with the justice but omitted from the transcript by mistake. (Stolberg v. Ohnmacht, 50 Ill. 442, distinguished.)</p> <p>2. Landlord and tenant—an eviction may be actual or constructive. An eviction may be actual, as where there is a physical expulsion, or it may be constructive, as where, though amounting to an eviction at law, the tenant is not deprived of actual occupancy.</p> <p>3. Same—a lease of a building is not a lease of particular subjacent land. A lease of the first floor of a building at a certain street and number does not pass to the tenant such an interest in the subjacent land as that he is evicted from the part of the premises leased to him by the removal of the building to which his lease applies to another part of the same lot.</p> <p>4. Same—no constructive eviction exists without surrender of possession. A tenant who retains possession of leased premises after constructive eviction, thereby waives his right to abandon the premises.</p> <p>5. Same—tenant retaining possession after constructive eviction must pay rent. A tenant who retains possession of a building after constructive eviction by the landlord is not released from liability for rent, and, upon his refusal to pay, the landlord may recover possession of the property by proceedings in forcible entry and detainer.</p>

<p>1. Courts—ratZes of Oooh county circuit court apply alike to ail its judges. Rules adopted at a term of the circuit court of Cook county at which all the judges of such court were present are the rules of the circuit court of Cook county, and apply alike to all judges holding terms of the circuit court in such county.</p> <p>2. Same—effect of rule that clerk enter an order each term authorizing.5 him to open depositions. A rule of court that the clerk shall enter an order on the first day of each term giving leave to the clerk to open and file all depositions returned or to be returned to that term of court, is valid and binding, and authorizes the clerk to enter such order and act thereunder.</p> <p>3. Practice —when copy of lost deposition may be filed and admitted in evidence. Where the deposition of a witness residing in another State has been lost from the files without fault of the parties, leave may be given by the court, upon a satisfactory showing, to file a copy of the deposition, and such copy may be admitted in evidence.</p> <p>4. Eviden ce—fact that witness has been convicted of crime maybe shown by parol. The fact that a witness has been convicted of crime may, under section 1 of the Evidence act, (Rev. St at. 1874, p. 488,) be shown for the purpose of affecting his credibility, and such conviction may be proved as any fact not of record, by any witness cognizant thereof.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

O. N. Carter, Judge, presiding. On November 12, 1895, John B. Drake, a resident of Cook county, Illinois, died, leaving a last will and testament, in and by which Josephine C. Drake, Timothy B. Blackstone and the Illinois Trust and Savings Bank were appointed his executors and trustees.

T. M. Shaw, Judge, presiding. John Tanton, of Woodford county, died testate on January 2, 1892, leaving him surviving his widow, Hannah Tanton, and two children, namely: a son, T. O. Tan-ton, called Oscar Tanton, and a daughter, Mary E. Keller, the wife of Jacob M. Keller. John Tanton’s will is dated June 18,1887. He added a codicil dated July 21,1891, and a second codicil dated October 12, 1891.

Original petition for mandamus. This is a petition by the People, on the relation of the Attorney General, for a writ of mandamus.

E. F. Dunne, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the First District affirming a judgment of the circuit court of Cook county, entered in a forcible entry and detainer proceeding brought by the appellee, Emma Balke, against the appellant, Sophie Muller, to recover possession of certain property located at No. 63 Cleveland street, in the city of Chicago.

Philip Stein, Judge, presiding. This was an action brought by appellee, against Swift & Co., to recover for a personal injury received while in the employ of the defendant at its packing house at the Union Stock Yards in Chicago. The original declaration was filed on February 24, 1893, and on January 28, 1896, plaintiff filed two additional counts.

John J. Glenn, Judge, presiding. The Galesburg, Etherly and Eastern Railroad Company was organized April 6, 1894, with a capital stock of $150,000, for the purpose of building a line of railroad from Wataga, on the line of the Chicago, Burlington and Q.uincy railroad, in Knox county, to the mines of the Galesburg Coal Company,—a distance of about twelve miles.

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding. Albert M. Billings, and Cornelius K. G-.

Theodore Brentano, Judge, presiding. This was a bill to foreclose a mortgage, brought January 4,1895, by Cornelius S. Richey, administrator de bonis non of the estate of William J. Turner, deceased, against Hector M. Sinclair, Lynn Helm, Melville C. Barnes, James C. Miller, the Mechanics and Traders’ Loan and Building Association of Chicago, and Charles S. Young.

John Gibbons, Judge, presiding. This is a bill, filed on June 13, 1394, by the People, on the relation of the Auditor of Public Accounts by the Attorney General against the appellant, the Continental Investment and Loan Society, under section 17 of the Building, Loan and Homestead Association act, as said section was amended in 1893.

<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 First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding.

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of McLean county; the Hon. Thomas P. Tipton, Judge, presiding.

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

R. S. Tuthill, Judge, presiding. This was an action brought by the Huyett & Smith Manufacturing Company, a corporation of Detroit, Mich., against the Chicago Edison Company, a corporation of Chicago, upon a quantum meruit to recover for materials furnished and labor performed under an express contract, which was not completed by the plaintiff by reason of the destruction by fire of the building to which the materials were to be attached.

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

<p>1. Contracts—law in force at execution of contract becomes a part thereof. The law in force at the time a contract is executed enters into and forms a part of the contract.</p> <p>2. Mechanics’ liens—act of1895 does not apply to contracts previously entered into. The Mechanic’s Lien act of 1895 (Laws of 1895, p. 224,) does not govern mechanic’s lien cases arising out of contracts entered into prior to its passage, where the provisions of the act affect the substantial then existing rights of the parties.</p> <p>3. Same—sub-sub-contractor cannot enforce lien under oldlaw. Under the law as it existed prior to the passage of the Mechanic’s Lien act of 1895, one holding a contract to do work or furnish materials under a sub-contractor cannot maintain a bill or petition against a property owner to enforce a mechanic’s lien.</p>

Balfour Cowen, Judge, presiding. This is an appeal from a judgment of the county court of Macoupin county denying the application of the county collector for a judgment against the property of appellee for a delinquent sidewalk tax.

<p>1. Contracts—transaction to aid party to borrow money—personal liability. The fact that one party is acting in the interest of another to aid the latter in securing a loan to redeem his property, does not prevent the former from assuming a personal liability for the loan.</p> <p>2. Same—what will not relieve party from personal liability for loan. One who borrows money as principal and executes a trust deed on certain property as grantor will not be relieved from personal liability for the loan by proof of an agreement showing that the mortgaged property was conveyed to him as trustee, in order that he might obtain a loan thereon for the real owner, where the agreement does not, in terms, exempt him from such liability.</p>

T. M. Shaw, Judge, presiding. This was .a bill for partition, filed in the circuit court of Peoria county by Henry Smithes and others, alleging that one James Smithes died intestate on or about December 28, 1891, and that he was at that time the owner and in possession, with title in fee simple, of the east half of the north-west quarter of section 27, in Akron township, in said Peoria county; that he left no widow or descendants, and that complainants and defendants are all…

<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>

<p>1. Taxes—limitation on municipal tax levy—method of computing rate per cent. The aggregate tax levy for corporate purposes, in cities working under the general act of 1872, cannot exceed in any one year two per cent of the aggregate valuation of its taxable property as equalized for the preceding year, but in computing the rate per cent necessary to raise the required amount the assessed valuation for the year in which the tax is levied must be taken as the basis.</p> <p>2. Same—construction of the act of 1879, amending section 1, article 8, of the City and Village act. The act of 1879, (Laws of 1879, p. 66,) imposing a two per cent limitation on the tax levy of cities, is a general limitation on the taxing power of cities working under the general act of 1872, so far as the aggregate tax levy is concerned, and controls all acts granting powers of taxation for a particular purpose not before given.</p> <p>3. Same—{too per cent limitation does not apply to cities working under special charters. The two per cent limitation on the aggregate amount of corporation tax for any one year applies only to municipalities working under the general Incorporation act of 1872, and not to cities working under special charters.</p> <p>4. Same—legislative intention to exclude particular tax from general limitalion must appear. A grant of a new power to a municipality working under the general law, with the right to levy a tax to carry out the object of the grant, does not authorize a tax levy over and above the general two per cent limitation, unless so expressly provided or necessarily implied in the terms of the grant.</p> <p>5. Same—water-works tax is not excluded from general limitation. A tax “for water-works improvements” cannot be levied by a municipality working under the general law, in addition to or exclusive of the two per cent limitation on the aggregate corporation tax, but must be included with the other items in making up the general levy for corporate purposes. (Dutton v. City of Aurora, 114 Ill. 138, and Culbertson v.City of Fulton, 127 id. 30, distinguished.)</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. Frank Baker, Judge, presiding.</p>

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

T. M. Shaw, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a decree of the circuit court of Peoria county, wherein the injunction previously granted was dissolved and the bill dismissed at complainant’s costs.

Thomas G-. Windes, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment of the circuit court of Cook county.

<p>1. Parks—effect of permitting city to build viaduct on street which the commissioners are improving. Acceptance and user by park commissioners of a viaduct built by a city and a railroad company over the latter’s tracks in part of a street previously designated by an ordinance of such commissioners to be improved, is not such a relinquishment of jurisdiction to the city as deprives the commissioners of power to subsequently specially assess for the cost of such improvement.</p> <p>2. Same—the West Chicago Park Commissioners are “corporate authorities.” The West Chicago Park Commissioners are “corporate authorities,” within the meaning of section 9, article 9, of the constitution, and, as such, are properly clothed by statute with power to make local improvements by special assessment.</p> <p>3. Same —jurisdiction of park commissioners cannot be questioned in a collateral proceeding. Park commissioners, whose jurisdiction over streets leading to a park has been established by long unquestioned user under a city’s statutory consent, are not bound to establish by proof, in a special assessment proceeding, the regularity of their jurisdiction, which can only be questioned in a direct proceeding.</p> <p>4. Constitutional law—what is a sufficient designation of subject of statute in title. A provision in a statute that a new assessment may be made by park commissioners to pay for improvements completed before the passage of the act, is embraced in the title “An act to enable park commissioners to make local improvements, and to provide for payment therefor,” within the meaning of the constitution.</p> <p>5. Same—extent of power conferred by the constitution to provide by law for special assessments. Section 9, article 9, of the constitution, is broad enough to authorize the statutory provision (Laws of 1895, p. 289, sec. 20,) for successive assessments by park commissioners to pay for an improvement originally provided by a valid ordinance to be paid for by special assessment, where the original assessment has been set aside as invalid. (City of East St. Louis v. Albrecht, 150 Ill. 506, distinguished.)</p>

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

Writ op Error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding. This is a proceeding under the Burnt Records act. The destruction of records has nothing to do with the case, but is alleged simply for the purpose of giving the court jurisdiction.

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

Francis Adams, Judge,' presiding. This is an action of assumpsit, brought under the provisions of a contract made and entered into between appellant and appellee on May 17, 1887, the material parts of which are as follows: “This article of agreement, made and entered into this May 13, 1887, by and between the Illinois Terra Cotta Lumber Company, a corporation organized and existing under and by virtue of the laws of the State of Illinois, residing and doing business in the…

<p>1. Evidence—“bought and sold notes” are competent evidence to establish a contract. “Bought and sold notes,” such as are commonly used among brokers in making their sales, are competent evidence to establish a contract.</p> <p>2. Contracts—fact that broker has no city license does not invalidate his contracts. The fact that a broker is transacting business without a license, in violation of the city ordinance, does not invalidate contracts negotiated by him nbr affect their character as evidence.</p> <p>3. Same—action may be maintained on contract made by broker acting without a license. The rule that an action cannot be maintained which is predicated on a transaction prohibited by law does not apply to actions on contracts negotiated by a broker acting without a license, as, while the city may punish him with a fine, it can do nothing to invalidate his contracts.</p> <p>4. Appeals and errors—alleged improper remarks by cownsel not ground for reversal, in absence of rulings. Alleged, improper remarks by counsel during argument before the jury are not ground for reversal, in the absence of erroneous rulings thereon by the court.</p> <p>5. Damages—measure of damages on breach of contract to buy goods. The measure of damages on breach by the buyer of a contract to buy goods is the difference between the contract price and the, market price of the goods at the time of the breach.</p> <p>6. Interest—when interest is recoverable on breach of contract. On breach by the buyer of a contract to buy goods, evidenced by “bought and sold notes,” the seller is entitled to recover legal interest on the amount found due.</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 M. Wright, Judge, presiding.</p>

M. F. Tuley, Judge, presiding. This is a bill, filed on September 6, 1893, by the appellee, Mary Wallace, against the appellants, Malcolm M. Jamieson, Roland C. Nickerson, Irving H. Waggoner and Henry F. Billings, doing business under the firm name of Jamieson & Co. The bill alleges, that the defendants were stock brokers in Chicago, engaged in the business of buying and selling stocks; that, on December 5, 1892, the defendants contracted to give the complainant the…

<p>1. Appeals and errors—freehold is involved in action to set aside . conveyance of real estate. An appeal lies to the Supreme Court from a decree of a circuit court setting aside a conveyance of real estate on the ground of fraud and ordering a re-conveyance, as a freehold is involved.</p> <p>2. Same—certificate of evidence need not set out exhibits verbatim. A certificate of evidence, as originally presented and signed, is sufficient which shows that it contains all the oral testimony, stipulations and exhibits offered in evidence by both parties, although it does not set out the contents of the exhibits verbatim, but merely directs the clerk, in making the transcript, to insert them.</p> <p>3. Practice—mere grumbling about an opponent’s abstract of record presents no question. A party deeming the abstract of record made by his opponent insufficient should make and file a further abstract, and not seek by complaints to impose upon the court the burden of reading the whole record.</p> <p>4. Fraud—proof must be clear to set aside contract for representations not made warranties. To justify the setting aside of a contract on account of previous representations, the truth of which the party who made them refused to warrant, the proof of their fraudulent character must be clear and cogent.</p> <p>5. Same—representations held not to be fraudulent. A decree setting aside a conveyance of real estate and shares of railway stock on the ground of fraudulent representations, is held, under the particular facts discussed at length in the opinion, to be contrary to the evidence and is reversed.</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>

John Barton Payne, Judge, presiding. This is a bill, filed on March 14, 1895, by the appellee against the appellant and about twenty other persons, praying that his title to lot 1 in the assessor’s division of the north-east fractional quarter of section 3, township 40, north, range 13, east of the third principal meridian, in Cook county, Illinois, may be quieted, established and confirmed, and that certain deeds therein named may be set aside and declared void as clouds…

John Gibbons, Judge, presiding. Prior to January 18, 1855, William T. Phillips purchased certain real estate in Newark, N. J., from one Lewis Nichols, for which he had Nichols execute a deed, naming one of his minor daughters as grantee. His family then consisted of a wife and six children. The property was designed for a homestead, and soon after the purchase a dwelling house was built thereon, but before it was completed, in February, 1855, the wife died.

<p>1. Appeals and errors—matters desired, to be reviewed must be embraced in assignment of errors. An objection that a certain ordinance was improperly admitted at trial cannot be considered on appeal, where there is no assignment of error which questions the ruling of the court on the admission of evidence.</p> <p>2. Same—instruction for a particular verdict must be in writing. An instruction directing the jury to return a particular verdict must be in writing in order to preserve for review the action of the trial court in refusing to give the same.</p> <p>3. Practice—when motion in arrest of judgment is properly denied. A motion in arrest of judgment is properly denied where there is one good count in the declaration which is applicable to the evidence and sufficient to support the judgment.</p>

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Nathaniel C. Sears, Judge, presiding.</p>

<p>1. Contracts—when contract in lieu of alimony is an annuity. A contract between a divorced husband and wife, executed in satisfaction of a decree for permanent alimony, whereby the former agrees to pay the latter a certain sum each month, in quarterly installments, as long as she shall live or until she shall re-marry, is a contract for the payment of an annuity.</p> <p>2. Equity—equity has jurisdiction to enforce specific performance of an annuity contract. A bill in equity lies to enforce specific performance of an annuity contract on breach in the payment of installments, and relief will be granted providing for the payment of arrears and for the prompt payment of future installments, according to the terms of the instrument creating the annuity.</p>

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

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

W. G. Ewing, Judge, presiding. When begun, on July 28, 1893, this was a suit by appellee against appellant, as indorser of two promissory notes, for $1050 and $525, respectively.

Philip Stein, Judge, presiding. The appellee, Margaret Lally, and her husband, John Lally, sued the appellant, Bernard Bulle, individually and as administrator of the estate of his deceased wife, Sarah Ann Bulle, in assumpsit, for work and labor of Margaret for a period of twenty years, performed for the Bulles in their family, mostly before Mrs. Bulle’s death. The declaration consisted of the common counts only.

Writ of Error to the Superior Court of Cook county; the Hon. Jonas Hutchinson, Judge, presiding. This is an action of ejectment, commenced in the Superior Court of Cook county on January 15, 1889, by the defendant in error against the plaintiff in error.

<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>

Clark W. Upton, Judge, presiding. This is a bill filed by the appellees, Albert Egli, a minister of the Evangelical Association of North America, and William Goessele, a presiding elder of that denomination, and certain other persons, who are lay members thereof, suing on their own behalf, and on behalf of all the members of said association, and on behalf of the members of a certain society or congregation of said association, known as the Bethany Church, at Highland Park,…

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

<p>1. Evidence—condemnation—what not admissible on question of damages. In proceedings by a railway company to condemn for right of way, testimony as to the price paid to the defendant by another railway company for a strip of land through the same tract is not admissible upon the question of damages.</p> <p>2. Trial—improper remarks of counsel—when allowed to stand. An attorney who, instead of objecting to remarks of his opponent upon matters wholly outside the evidence, challenges him to a discussion of such matters and enters into the discussion himself, cannot complain of the refusal of the trial court to strike out such opponent’s remarks.</p> <p>3. Eminent domain—effect of stipulation by petitioner to perform certain acts. The filing in court of a stipulation by a petitioner in condemnation, by which it agrees to do certain things which will reduce the injury to property not taken, subjects the estate acquired by the condemnation judgment to a condition of a perpetual and binding character, which cannot be evaded or denied.</p> <p>4. Estoppel—when party is estopped to deny effect of his stipulation. A petitioner in condemnation who files a stipulation agreeing to do certain acts, and by his instructions given by the court construes such stipulation as a covenant running with the land, on which basis the damages are assessed, will never be permitted to deny the effect of the stipulation under his own construction.</p> <p>5. Appeals and errors—condemnation verdict rendered on conflicting evidence will not be disturbed. A condemnation verdict rendered on conflicting evidence by a jury who viewed the premises will not be disturbed if within the range of testimony, unless it is clear that injustice has been done, as a result of passion and prejudice.</p>

<p>Appeals and errors—chancellor’s finding of facts on conflicting evidence will not be disturbed. A finding of facts on conflicting evidence by a chancellor who saw the witnesses and heard them testify will not be disturbed by the Supreme Court on appeal, unless the evidence is clearly to the contrary.</p>

<p>1. Practice—section BO of Practice act, concerning instructions to disregard faulty counts, construed. The faulty counts in a declaration which the court is authorized, by section 50 of the Practice act, (Rev. Stat. 1874, p. 781,) to instruct the jury to disregard, are such only as would be insufficient to sustain the judgment after verdict.</p> <p>2. Same—effect of refusal by court of instruction to disregard faulty count. The refusal by the court to instruct the jury to disregard an alleged faulty count is not a decision that such count is faultless, but only that it is sufficient, after issue joined and in view of the evidence, to support a verdict and judgment for the plaintiff.</p> <p>3. Pleading—when verdict will cure defective pleading. A defect in pleading, in substance or form, which would have been fatal on demurrer, is cured by verdict where the issue joined is such as necessarily requires proof of the facts so defectively presented, and without which proof it is not to be presumed that the judge would have directed or the jury have given the verdict.</p> <p>4. Appeals and errors—token error in refusing instruction to disregard faulty count is harmless. Improper refusal to instruct the jury to disregard certain counts in a declaration is harmless where there is one good count in the declaration to which the evidence is applicable and which is sufficient to sustain the judgment.</p> <p>5. Master and servant—master voluntarily assuming a duty is liable for its negligent performance. A master who voluntarily assumes a duty toward his servant and undertakes to perform the same must do so in a proper manner, and if, by reason of his careless performance thereof, the servant is injured while exercising due care for his safety the master is liable.</p> <p>6. Trial—not improper for counsel to comment on opponent's withholding evidence. Where one party has withheld from the case evidence which is within his control, it is not improper for opposing counsel to comment upon that fact in his argument before the jury.</p> <p>7. Fellow-servants—whether servants of same master are “fellow-servants” is a question of fact. Whether servants of the same master are “fellow-servants,” within the legal significance of that term, is a question of fact to be determined by the jury from all the circumstances in each case.</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>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>Appeal from the Appellate Court for the Fourth. District;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. B. H. Canby, 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 Lake county; the Hon. Clark W. Upton, Judge, presiding.

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on writ-of error to the Circuit Court of Perry county; the Hon. B. R. Burroughs, Judge, presiding.</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. W. G-. Ewing, Judge, presiding.

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. Theodore Brentano, Judge, presiding.

Theodore Brentano, Judge, presiding. The following statement of the case is taken from the opinion of the Appellate Court: “This appeal is from a decree of sale entered in a suit brought by the appellee to foreclose a trust deed in the nature of a mortgage, made by appellant’s intestate, to secure payment of his certain promissory notes for the principal sum of §10,000.

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. Charles G. Neely, Judge, presiding.

<p>Motion to strike petition for rehearing from the files.</p>

<p>Appeals and errors—dismissal of action on motion—bill of exceptions must contain all the evidence. One desiring to review the judgment of the lower court in dismissing his action on motion must preserve the evidence heard thereon by a bill of exceptions which must purport to contain all the evidence, otherwise it will be presumed the lower court heard evidence sufficient to justify its judgment.</p>

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

<p>Motion by appellee to strike bill of exceptions from record and to affirm judgment below.</p>

<p>Motion to strike certificate of evidence from record.</p>

<p>1. Appeals and errors—payment of assessment installment is not a waiver of right of appeal. A party to a special assessment proceeding may prosecute a writ of error to reverse the confirmation judgment within five years after its entry, notwithstanding he has paid the first installment of the assessment.</p> <p>2. Parties —intervention—purchaser of assessment vouchers cannot be made party to record on appeal. A purchaser of special assessment vouchers who was not a party to the assessment proceeding can not be made a party to the record on an appeal from the judgment of confirmation by the lot owner.</p> <p>3. Practice—in Supreme Court—when stranger may file brief. The purchaser of special assessment vouchers, while not entitled to become a party defendant in an appeal by a property owner from the judgment of confirmation, has such a pecuniary interest that he will be allowed to file a brief in support of the judgment.</p>

<p>Original petition for contesting election of circuit judge.</p>

A. K. Vickers, Judge, presiding. This was a bill in equity brought by Wilson Brown, Sr., to cancel and set aside as void and a cloud upon complainant’s title the record of a deed executed on November 23, 1891, by Wilson Brown, Sr., and his wife, Neacy J. Brown, to Wilson Brown, Jr., purporting to convey the south-west quarter of the north-west quarter of section 7, township 13, range 2, east of the third principal meridian, containing sixty-four acres, situated in Johnson…

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

<p>Motion for leave to petitioner to file an original petition for mandamus.</p>

<p>1. Evidence—handwriting—court should compare signatures to satisfy itself. Where the issue in a trial without a jury is whether or not certain signatures are genuine, the court may, and should, compare them with signatures in evidence admitted to be genuine, as a means of determining whether they are genuine.</p> <p>2. Same—when evidence sustains trial court's finding. The finding of the trial court, in a case tried without a jury, that certain signatures are genuine on the evidence of two witnesses, one qualified as an expert and the other familiar with the handwriting, as against the mere denial of the party whose signature it purports to be, should not be disturbed by a court of review.</p>

<p>Amicus curle—not admitted in the cause without consent of attorneys. An attorney will not be permitted to enter a cause as amicus curice, and file brief and petition for rehearing, where the attorneys regularly in the cause neither request nor consent.</p>