Volume 168 — Illinois Reports

<p>1. Pleading—answering over waives error in overruling demurrer. One answering over after the overruling of his general demurrer thereby waives his right to assign such overruling as error.</p> <p>2. Equity—when equity will take jurisdiction in matters of account. Jurisdiction in equity exists where there are mutual accounts between the parties, or where the account is all on one side but there are complications or difficulties in the way of adequate relief at law, or where a fiduciary relation exists and a duty rests upon the respondent to render an account.</p> <p>3. Same—the re-transfer of letters patent is a matter of equitable jurisdiction. The compelling of a re-transfer of letters patent is a matter peculiarly within the jurisdiction of a court of equity.</p> <p>4. Same—-equity having acquired jurisdiction may retain it to do substantial justice. Where, on a bill for an accounting and discovery, the court has jurisdiction of the parties and the subject matter, and issue has been taken on any existing indebtedness, the court need not refuse to consider a part of the account which might be adjusted at law, but may retain jurisdiction of the whole matter to do substantial justice between the parties.</p> <p>5. Parties—on absolute assignment, assignee may sue in equity in his own name. Where an assignment is absolute and valid and the assignor retains no equitable interest, the assignee may file a bill in equity in his own name and without making the assignor a party to the suit.</p> <p>6. Appeals and errors—what is a waiver of right to assign error in sustaining a master’s report. An objection that the master reported only his conclusions of fact and law, whereas the order of reference required him to report the evidence also, will be deemed waived on appeal, where no motion was made below to require the evidence to be reported.</p>

<p>Writ of Error to the Circuit Court of Moultrie county; the Hon. E. P. Vail, Judge, presiding.</p>

Nathaniel C. Sears, Judge, presiding. This is an action by James F. Scanlan, administrator of the estate of Ida Pearl Fisk, deceased, to recover damages for the death of his intestate, alleged to have been occasioned by the negligence of the West Chicago Street Railroad Company, in the city of Chicago. It appears that the deceased, who was but a child, while playing on Western avenue, was run over by a car of the defendant and sustained injuries resulting in her death.

E. F. Dunne, Judge, presiding. The relators filed a petition for mandamus against appellee, to compel him, as judge of the probate court of Cook county, to allow an appeal from an order entered by him, as such judge, in a certain matter in the estate of William Hughes, deceased, and fix the amount of the appeal bond.

<p>1. Banks—bank is liable for money paid on forged indorsement of check or bill. A bank paying a bill of exchange or check on a forged indorsement of the payee’s name is liable to the owner of the instrument for the funds so wrongfully paid out.</p> <p>2. Same—when bank is liable to drawer of check and not to payee. A bank paying a check on a forged indorsement of the payee’s name is liable to the drawer of the check for the fund so misapplied, where the check has never passed into the control of the payee and he has acquired no interest therein.</p> <p>3. Same—what is not negligence by drawer so as to increase risk which bank assumes. The fact that the drawer of a check delivers it to a party falsely representing himself as the payee’s agent, without investigating the alleged agent’s authority, is not such negligence as will relieve the bank from liability for the payment of the check on a forged indorsement of the payee’s name by the alleged agent.</p>

Nathaniel C. Sears, Judge, presiding. This action was brought by Theodore P. Siddall, Jr., by his next friend, against Egbert L. Jansen and others, composing the firm of Jansen, McClurg & Co., wholesale and retail booksellers and stationers in Chicago, to recover damages for an injury received by being struck by a descending elevator of the defendants.

<p>Appeals and errors—Appellate Court’s.judgment is final in actions ex contractu involving less than $1000. In the absence of a certificate of importance the judgment of the Appellate Court in actions ex contractu involving less than $1000, exclusive of costs, is final. The statute regulating the right of appeal is peremptory.</p>

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

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

<p>1. Special assessments—whether property is benefited, and to what extent, is for the jury. Whether property specially assessed for an improvement is benefited thereby, and whether it is assessed more or less than its proportionate share of the cost thereof, are questions of fact for the jury.</p> <p>2. Same—property lying at end of street improved is assessable if contiguous. Property lying at the end of a street proposed to be improved, but contiguous thereto, is assessable for its proportionate share of the cost of the improvement.</p> <p>3. Same—court may change assessment roll before final judgment- By the provisions of section 33, article 9, of the City and Village act, (Rev. Stat. 1874, p. 236,) the court may, before final judgment, alter or change the assessment roll or cause it to be recast by the commissioners.</p> <p>4. Same—denial of motion to recast assessment—when not error. A motion by the owner of a block to recast a special assessment thereon, on the ground that he is the owner of the entire block whereas the property is assessed one-half in his name and one-half in the name of another party, may be denied, and the court may order the assessment to stand against the entire block in the name of the owner for the whole amount assessed against it.</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. Nathaniel C. Sears, Judge, presiding.</p>

Writ of Error to the Circuit Court of Macon county; the Hon. E. P. Vail, Judge, presiding. This was a suit brought by the city of Decatur before a justice of the peace, against F. W. Niedermeyer, for violating an ordinance of the city in obstructing a certain alley. A fine of ten dollars and costs was assessed against him, and he appealed to the circuit court of Macon county, where the case was tried before the court without a jury.

<p>Appeal from the Circuit Court of Cook county; the Hon. Elbridge Hanecy, 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 McLean county; the Hon. Thomas F. Tipton, Judge, presiding.

<p>1. Appeals and errors—when Supreme Court cannot review assigned errors—bill of exceptions. The Supreme Court cannot consider assignments of error which question the finding and judgment of the lower court in cases tried without a jury, as authorized by section 60 of the Practice act, unless exceptions thereto have been duly taken and preserved by a bill of exceptions.</p> <p>2. Same—-rule that exception to judgment must be taken and preserved is not a mere technicality. The rule that the Supreme Court cannot review assignments of error unless exception thereto has been taken and preserved by a bill of exceptions is statutory, and not merely technical, and counsel are bound to know of its existence.</p>

<p>1. Evidence—one asserting secret partnership has the burden of proof. Where, to all outward appearances and in their relations with third persons, there has been a dissolution of partnership and a transfer of the firm property to one partner, one asserting the continuance of a secret partnership has the burden of proof.</p> <p>2. Same—evidence held insufficient to sustain bill for dissolution of partnership. A loill alleging the existence of a partnership, and praying for a dissolution and an accounting, is held in this case, after a full consideration of the evidence, to have been properly dismissed by the trial court for want of equity.</p> <p>3. Contracts—contract to “corner” the marlcet is void, as a gambling contract. A contract between parties to purchase together, for future delivery, more of a certain commodity than it will be possible, owing to the shortness of the supply, for the sellers to deliver before their contracts of purchase mature, is a gambling contract, under section 130 of the Criminal Code, and is void.</p> <p>4. Courts— court may inquire into legality of contract, regardless of the pleadings. A court of equity may inquire into the real nature of the contract it is called upon to enforce, and may admit 'evidence of the parties to show that it is contrary to law, although no claim of its illegality is made by the pleadings.</p>

<p>Writ op Error, to the Circuit Court of Clark county; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

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. Henry V. Freeman, Judge, presiding. This was a proceeding against the plaintiff in error in the Superior Court of Cook county for contempt in interfering with the use of one of the court rooms in the court house of Cook county by Judge Henry V. Freeman, one of the judges of the Superior Court of said county.

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

Robert B. Shirley, Judge, presiding. This is a proceeding by quo warranto for the purpose of inquiring into the legal existence of a union school district, alleged to have been formed out of parts of four school districts theretofore existing; and for the purpose of ascertaining and determining, whether or not the new school district was legally formed and organized.

<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. Philip Stein, Judge, presiding.</p>

Nathaniel C. Sears, Judge, presiding. This is an action on the case, brought by the appellee, John Myers, against the appellant company on April 21, 1893, to recover damages for a personal injury. The accident happened at the corner of Division street and LaSalle avenue on the north side in the city of Chicago. A trench had been dug at the intersection of these streets to connect the eight-inch gas main laid in LaSalle avenue with the twenty-inch gas main in Division street.

<p>1. Appeals and errors—order allowing appeal must be complied with. Failure of appellant, on appealing a case from the county to the circuit court, to have the sureties on his appeal bond approved by the county court in accordance with the order allowing the appeal, is ground for dismissal of the appeal in the circuit court.</p> <p>2. Same—when motion for leave to file sufficient bond must be denied. A cross-motion in the circuit court for leave to file a sufficient appeal bond, made by the appellant upon motion by the appellee to dismiss the appeal for failure to have the county court approve the bond given, must be denied, in the absence of anything in the record indicating an attempt to have the bond so approved.</p> <p>3. Bill of exceptions—when action of court can be shown only by bill of exceptions. The facts that a good and sufficient appeal bond was presented by the appellant to the court for approval within the time allowed, and that the court refused to approve the bond for reasons not the fault of the appellant, can be shown only by bill of exceptions.</p>

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

<p>1. Special assessments—words “not less than” do not render ordinance uncertain. Words “not less than,” used in a paving ordinance in describing measurements and dimensions, as, “not less than seven inches of sand,” “a finishing coat not less than one-half inch thick,” will not render the ordinance void for uncertainty of description.</p> <p>2. Same—how far determination of special assessment commissioners is final. Commissioners appointed to spread a special assessment have large discretion in determining what property is benefited by the improvement, and in the absence of fraud their determination in that regard is final.</p> <p>3. Same—act of 1893, for dividing an assessment into installments, construed. The act of 1893, (Laws of 1893, p. 78,) which provides that special assessments may be divided into not more than seven installments, the first to include all fractional amounts, leaving the others equal in amount and multiples of $100, does not limit the first installment to one-seventh of the whole assessment plus the fractional amounts.</p> <p>4. Same—when ordinance dividing assessment into installments is sufficient. Under the act of 1893 an ordinance which divides the assessment into seven installments, the first to include twenty per cent of the assessment together with all fractional amounts, leaving the others equal in amount and multiples of $100, is sufficient.</p> <p>5. Same—statute does not prescribe the basis for estimating cost. The statute does not prescribe the basis for estimating the cost of an improvement or the benefits flowing therefrom, and the assessment commissioners may adopt such basis as will work a just result.</p> <p>6. Same—commissioners cannot impeach terms of their sworn report. Special assessment commissioners cannot be permitted, to impeach the terms of their sworn report concerning the items included in making their estimate.</p> <p>7. Same—when ordinance may require contractor to keep street in repair. A paving ordinance requiring the contractor to keep the street in repair for two years free of charge is not invalid, where the assessment commissioners did not consider the matter of repairs in estimating" the cost of the improvement.</p>

<p>1. Practice—eject of stipulation that bill of exceptions may be signed by a different judge. A stipulation fairly entered into by counsel that a bill of exceptions may be signed by a judge other than the one who heard the case, is binding, and the Supreme Court will not go behind the stipulation and strike the bill of exceptions from the files on motion of either party.</p> <p>2. Special assessments—commissioners’ report cannot be impeached by testimony of commissioner. The plain terms of a special assessment report, signed by all the commissioners appointed, and approved by the municipal authorities, cannot be contradicted or impeached by the testimony of one of the commissioners.</p> <p>3. Same—clerical error in omitting a letter from commissioner’s name will not invalidate assessment. A mere clerical error by the court in omitting a letter from the given name of one of the assessment commissioners in making out the order of appointment will not invalidate the assessment.</p>

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

<p>Writ of Error to the Circuit Court of Piatt county; the Hon. Francis M. Wright, Judge, presiding.</p>

<p>Motion to dismiss appeal.</p>

James A. Creighton, Judge, presiding. At the January term, 1895, of the circuit court of Sangamon county, the case of Olive Purdy against the city of Springfield was on trial. It was a suit for damages for injury caused by a defective sidewalk.

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding.

C. G-. Neeley, Judge, presiding. The statement of this case as made by the Appellate Court is adopted here: “This action was brought by appellant, as plaintiff, against appellee, as defendant, to recover damages for a breach of covenants against incumbrances contained in a warranty deed of certain real estate in Highland Park, Cook county, made by appellee to appellant in the year 1877.

Writ op Error to the Circuit Court of Coles county; the Hon. Francis M. Wright, Judge, presiding. This was a bill in chancery exhibited by the plaintiffs in error, who are minors, against the defendant in error and others, in the Coles circuit court.

Writ op Error to the Circuit Court of Moultrie county; the Hon. E. P. Vail, Judge, presiding. Plaintiffs in error, William H. and Thaddeus Hawkins, filed their bill in equity in the circuit court of Moultrie county, against defendants in error, claiming an interest, as heirs-at-law of Ann M. Shepherd, deceased, in certain lots in the city of Sullivan, in said county, and asking ■that the same be declared and that partition be made.

<p>Appeal from the County Court of Cook county; the Hon. Richard Yates, Judge, presiding.</p>

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

Writ of Error to the Circuit Court of Cook county;» the Hon. John Gibbons, Judge, presiding. This was a bill in chancery exhibited in the circuit court of Cook county by the defendant in error against the plaintiff in error.

<p>1. Pleading— answering over waives error in overruling general demurrer. One answering the complainant’s bill after his general demurrer thereto has been overruled thereby waives his right to assign such overruling as error.</p> <p>2. Practice—default in part payment of note—what sufficient declaration that whole amount is due. Under an agreement extending time of payment of a note secured by mortgage, which provides that on default in a certain payment the whole amount of the note shall be due, the filing of a bill to foreclose upon default in such payment is a sufficient declaration that the whole amount is due.</p> <p>3. Masters in chancery—master may require proof to he closed in vacation. A master may, on notice, cause proof to be taken within a specified time, and in the absence of a rule of court to the contrary he may require such proof to be closed when the court is not in session.</p>

John Gibbons, Judge, presiding. This is a bill in chancery by Hubert L. Taylor, the appellant, filed in the circuit court of Cook county, praying that he maybe permitted to redeem his equity in certain lands in Cook county from a foreclosure, the time for redemption as provided by statute having expired.

Elbridge Hanecy, Judge, presiding. This cause comes to this court by appeal from the Appellate Court for the First District, wherein a decree of the Superior Court of Cook county sustaining appellees’ demurrer to appellant’s bill of complaint and dismissing the bill for want of equity was affirmed.

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

Cyrus Epler, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Third District, affirming the judgment of the circuit court of Scott county, which affirmed an order of the county court of Scott county, removing Edward J. Wackerle, the appellant here, as guardian and appointing his successor.

<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. O. H. Horton, Judge, presiding.</p>

Thomas G. Windes, Judge, presiding. “In the spring of 1893 Bramhall, Deane & Co., Schlesinger & Mayer and the Berkey & Gay Furniture Company sold and delivered household goods to the Calumet Association to equip its hotel in Chicago, known as the ‘Rossmore Hotel.’ The purchaser executed to each of these firms chattel mortgages on the goods sold by each, to secure payment of the purchase price thereof.

<p>1. Wills—purpose in construing a will is to discover and carry 'out the testator’s intention. The purpose in construing a will is to determine the testator’s intention, and to carry out that intention unless some established rule of law presents an obstacle to its execution.</p> <p>2. Same—testator is presumed to have intended to dispose of all his estate. In construing a will it will be presumed that the testator did not intend to die intestate as to any portion of his estate, and, if possible, such a construction will be adopted as will dispose of the entire estate.</p> <p>3. Same— language of will creating a trust, construed. A devise of property to trustees, to be held by them for the testator’s grandson, so that he and “his wife and child or children might at all times have a comfortable support provided for them,” creates a “spendthrift trust,” terminating upon the death of the parties.</p> <p>4. Same—when cestui quetrusttdkes no vested right. A devise of property to trustees to hold in trust for the testator’s grandson and his wife and children, with directions to the trustees to pay over the same to such grandson, his wife or children, at the trustees’ discretion, so that the family might at all times have a comfortable support from the trust property, which should not be subject to the grandson’s debts, neither creates a vested estate in the grandson nor a gift in presentí, in the wife and children.</p> <p>5. Same—clause construed as to disposition of trust property upon termination of trust. Where the general plan of a will is to give to each of the testator’s children an equal share, but as to a grandchild taking a deceased child’s share the will creates a spendthrift trust, and provides that in case such grandchild die without children the property undisposed of when the trust ceased should go to the testator’s children or their descendants, upon the death of such grandchild leaving children the property undisposed of passes to the latter in fee.</p> <p>6. Trusts—when trustees take the fee in trust estate. Where property is devised to trustees with power to pay over the interest and principal to the cestui que, trust, his wife and children, or any of them, at the trustees’ discretion, so that the family might at all times have a comfortable support, the trustees take the fee in the trust estate during the continuance of the trust.</p>

James Shaw, Judge, presiding. This was a suit in assumpsit in the Winnebago circuit court, by Maria Zeitinger, as executrix of the last will and testament of Valentine Anthony Zeitinger, deceased, on an insurance policy, against the Manufacturers and Merchants’ Insurance Company, to recover the loss sustained by the total destruction of the property insured, by fire.

Clair county, the Hon. A. S. Wilderman, Judge, presiding. This is an action of assumpsit, begun in 1884 by the appellee against the appellant company upon a policy of life insurance, issued on March 21, 1866, at Belleville in St. Clair county, upon the life of one Jacob Kaysing, at that time the husband of appellee. The amount of the policy was §2000, payable to Elizabeth Kaysing, then the wife of said Jacob Kaysing.

Frank Baker, Judge, presiding. This is an appeal from the judgment of the Appellate Court affirming a judgment of the circuit court of Cook county, rendered against appellants for costs, in an action brought by them against the appellee company to recover upon an insurance policy.

Jonas Hutchinson, Judge, presiding. In October, 1892, the Webster Manufacturing Company was making certain improvements and additions to its factory in Chicago, including which was the putting in of a new engine. An iron steam-pipe, ten inches in diameter and about one hundred feet long, carried the steam from the boilers to this engine. The engine had been run for several days by the contractors who had installed it, and had just been turned over to appellant.

Francis Adams, Judge, presiding. The action was attachment brought in the circuit court of Cook county by the appellee, against the appellant bank. The declaration was in assumpsit, and contained one special and two common counts.

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Peoria county; the- Hon. T. M. Shaw, Judge, presiding.</p>

Writ of Error to the Circuit Court of Bureau county; the Hon. George W. Stiff, Judge, presiding. This was an action of ejectment brought in the Bureau circuit court by the St. Bede College,1 an educational corporation, against John Weber, Jr., and John Weber, Sr., to recover a wedge-shaped strip of land, containing 4.62 acres, part of a farm formerly owned by Daniel Webster.

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

Elbridge Hanecy, Judge, presiding. This is an appeal from a decree entered in the circuit court of Cook county sustaining a general demurrer to a bill in chancery filed by appellants against the appellees, and dismissing the bill at the cost of the appellants.

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; • the Hon. E. F. Dunne, Judge, presiding. This was a bill in chancery filed in the circuit court of Cook county by Selina Iago, defendant in error, against Bernard Iago, her husband, for divorce.

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

Writ op Error to 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>Roads and bridges—when mandamus to compel county aid will he denied. A petition for mandamus to compel a county board to pay a sum appropriated under the Road and Bridge act of 1883 to aid a town in building a bridge, will be denied, where, after the appropriation, the township highway commissioners abandoned the bridge then contemplated, and afterward, when a new law was in force, (Road and Bridge act of .1887,) built a bridge on a different plan, costing twice as much, without complying with the requirements of the new law concerning county aid.</p>

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

<p>1. Dower—husband may release to wife his dower interest in her property. A husband, being sui juris, may, for a valuable consideration, enter into a binding contract with his wife, releasing to her all his right, title and interest in her property, including his contingent right of dower and his interest as heir. (Crum v. Sawyer, 132 Ill. 443, and Heisen v. Heisen, 145 id. 658, followed.)</p> <p>2. Same—when husband mil be barred from asserting dower. A contract between husband and wife, duly acknowledged and recorded, whereby each agrees to live apart and to release to the other all “interest, right and title to any and all real estate,” etc., which the other possessed at the time of their marriage, will bar the husband’s right to assert dower after the wife’s death.</p> <p>3. Same—effectwhere agreement releasing dower provides that the parties shall live apart. The fact that a contract between husband and wife releasing to each other all interest, right and title in the other’s property provides that the parties shall live apart, will not invalidate that part of the contract relating to the release.</p>

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

R. W. S. Wheat-ley, Judge, presiding. Appellant and appellee were opposing candidates for the office of sheriff of Pulaski county at the general election held therein on November 6, 1894.

John Barton Payne, Judge, presiding. This case is now before this court for the second time. The decision of it, when it was here the first time, is reported as Helberg v. Nichol, 149 Ill. 249. The main facts, and the details of the” facts, together with the points involved, are fully set forth in Helberg v. Nichol, supra. Only such of the facts will be re-stated as are necessary to understand the case as now presented.

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Kane county; the Hon. M. 0. Southworth, Judge, presiding.

T. M. Shaw, Judge, presiding. This was an action of assumpsit, instituted in the circuit court of Peoria county by the appellee, against the appellant lodge, to recover on a beneficiary certificate issued by the appellant lodge, insuring the life of William Wieting for the benefit of the appellee, his wife. Plaintiff prevailed in the trial court, and the judgment in the sum of $2072 there rendered was affirmed by the Appellate Court for the Second District.

Writ op 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. Abner Smith, Judge, presiding.

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

<p>1. Certiorari—election of drainage commissioners cannot be questioned by certiorari. The legality of the election of drainage commissioners cannot be questioned by a common law writ of certiorari.</p> <p>2. Same—trial must be had exclusively upon the record brought up. Under a common law writ of certiorari the trial must be exclusively upon the record brought up, and no fact aliunde the record can be raised or determined.</p> <p>3. Same—when record fails to show petitioner a party thereto. A petition for a writ of certiorari to review proceedings of drainage commissioners will be denied where it appears by the record that the petitioner was not a party thereto, but that his wife was treated by the commissioners as the owner of the land condemned.</p> <p>4. Same—what acts of commissioners will not make land owner a party to the record. The fact that drainage commissioners had attempted to agree with the husband concerning the question of damages before he notified them that he had deeded his land to his wife, will not of itself make him a party to the record of their proceedings, or show that he was the owner or interested in the land.</p>

<p>1. Evidence—what immaterial in suit on unconditional promise to pay money. In a suit to recover a sum covering the wife’s interest in a farm, promised to her unconditionally by the purchaser for signing the deed with her husband, evidence that after the execution of the deed a sum sufficient to cover her interest in the farm had been paid to the wife at the husband’s request by third persons, who were indebted to the husband and wholly unconnected with the promisor, is immaterial.</p> <p>2. Contracts—husband has no implied authority to bind his wife as principal. An agreement made with a married man, which affects his wife’s interest in lands, is not binding on the wife unless the husband was acting with her authority as her agent in making the agreement, or she has expressly or impliedly ratified his action with knowledge of the facts.</p> <p>3. Trial—counsel must be allowed reasonable discretion in making arguments. While the court should see that no advantage is obtained by improper remarks of counsel to or in the presence of the jury, yet within reasonable bounds counsel should be left to their own discretion in making arguments.</p>

Orrin N. Carter, Judge, presiding. Appellee, Joseph H. Francis, was the assignee of Leon Hornstein, an insolvent debtor, who was a tenant of Rand, McNally & Go., occupying the fifth story of a building in Chicago under a written lease providing for the payment of rent at the rate of $2000 per year, payable monthly at the rate of $166.67. In addition thereto Hornstein was to be furnished steam power at the rate of $80 per year.

Dorrance Dibell, Judge, presiding. This is an action in assumpsit, commenced on January 30,1893, by the appellee against the appellant. The declaration consists of the common counts only, to which the plea of general issue was filed.

Writ of Error to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding. This is a bill in chancery, filed on June 23, 1894, by plaintiffs in error to contest the will of Samuel D. Win-get, who died in McLean county on July 9, 1891, leaving a widow, Hannah M. Winget, and no child or descendant. One of the plaintiffs in error is a nephew, one is a brother, one is a sister, and one is a brother-in-law of the deceased testator.

<p>1. Quo warranto—the action of quo warranto is a purely civil one. The action of quo warranto is purely a civil proceeding, wherein an appeal may be taken on the part of the People.</p> <p>2. Same—when appeal in quo warranto lies direct to Supreme Court. A proceeding by quo warranto to determine whether a township high school district has been legally organized involves a franchise, and an appeal therein lies directly to the Supreme Court.</p> <p>3. Same—proper parties to action of quo warranto to determine legality of school district. A proceeding by quo warranto to determine the legality of the organization of a township high school district is properly brought against the individuals who assume to exercise the corporate powers of the township high school board.</p> <p>4. Same—in quo warranto the bun'den of proof is upon the defendant. In quo warranto proceedings the whole burden is upon the defendant to prove good title to the franchise involved and lawful authority for the exercise of the corporate powers assumed. The People are not required to show anything.</p> <p>5. Schools—organization of township high school district—effect where city lies in two townships. Under the statute (Laws of 1891, p. 200,) where a city having not less than 1000 nor more than 100,000 inhabitants lies within two townships, that township in which the majority of the inhabitants of the city reside, together with the city, constitutes a school township for township high school purposes.</p> <p>6. Same—township high school—effect where city is a special school district and maintains a high school. The fact that a city has been created a special school district by an act of the General Assembly, and maintains a high school, does not take the city out of the operation of section 38 of the act on schools, relating to the establishing of township high schools.</p>

James A. Creighton, Judge, presiding. This is a bill, filed on the 18th day of October, 1895, by the collateral heirs of one John Smith, deceased, for the purpose of contesting his will. He died testate on April 9, 1894, leaving no children him surviving, but leaving a widow, named Katherina Smith. His will was executed on March 19, 1894, and was admitted to probate in the county court of Sangamon county, where the testator lived and died on April 9, 1894.

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

<p>1. Instructions—instruction substantially directing a verdict must embody all the facts. An instruction which substantially directs the jury to return a verdict for the plaintiff in case they find the facts therein recited to be true, must necessarily contain all the facts which will authorize the verdict directed.</p> <p>2. Same—erroneous instruction is not cured by contradictory ones. Error in giving an instruction substantially directing a verdict for the plaintiff, regardless of defenses which there was evidence fairly tending to prove, is not cured by the giving of instructions for the defendant contradictory of the one erroneously given.</p> <p>3. Evidence—when rules of board of trade are not admissible. In a suit by a broker, who was a member of a board of trade, to recover for losses sustained by him in closing out grain contracts negotiated by him upon the board of trade for a person not a member thereof, the rules of the board are not admissible in evidence, where there is no issue in the case affected thereby.</p> <p>4. Same—rules of board of trade not admissible merely to give transactions a fair appearance. In a suit by a member of a board of trade „ against a non-member to recover for losses sustained by the former in closing out grain contracts negotiated for the latter, all of which were settled before maturity by payment of differences, the rules of the board showing that members were liable to be disciplined for dealing in gambling contracts are not admissible to give the transactions a fair appearance.</p> <p>5. Same—what immaterial under issue of “gambling contracts.” In a suit between a member of a board of trade and a non-member, involving the issue whether contracts negotiated by the former for the latter upon the board, and closed out before maturity, were gambling contracts, evidence of the customs of the board in case the contracts had been held open until maturity, and the consequent liability of the member to other members with whom the contracts were made, is immaterial.</p>

Henry V. Freeman, Judge, presiding. This was an action by appellant, as administrator, against' appellee, for causing the death of Dora Goldman, seven years of age. The declaration contained three counts, the first charging appellee with killing the deceased through negligence of its servant in fast driving a team of horses.

O. H. Horton, Judge, presiding. This was a bill to foreclose a mortgage, brought by the State National Bank of St. Joseph, Mo., on real estate in Chicago owned by the John Moran Packing Company, mortgagor, a corporation organized under the laws of this State and doing business át St. Joseph, Mo. The Union National Bank of Chicago and the Atlas National Bank of Chicago, attaching creditors, were joined as defendants to the bill.

Robert B. Shirley, Judge, presiding. This was a bill in chancery, brought by appellees, against Prentiss D. Cheney and others, praying that partition be made of a number of tracts of land in Christian county, aggregating 5481 acres, which, as the bill alleged, were owned by the said complainants and the said Prentiss D. Cheney as tenants in common.

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. E. F. Dunne, Judge, presiding. This is an action on the case, brought by plaintiff in error against the defendant in error to recover damages for a personal injury. Verdict and judgment in the trial court were in favor of plaintiff in error. An appeal was taken from this judgment to the Appellate Court.

<p>1. Attachment—affidavit, bond and writ not evidence of defendant’s indebtedness. The affidavit for attachment, the bond and the writ are not evidence of the defendant’s indebtedness to the plaintiff.</p> <p>2. Same—when party interpleading in attachment is entitled to a verdict. One claiming attached property by interpleader is entitled to a verdict, as against the attachment plaintiff, where his uncontradicted evidence tends to prove his claims of ownership in the attached property, and the plaintiff fails to establish the fact that he is a creditor of the attachment defendant.</p> <p>3. Appeals and errors—affidavit in support of motion must be incorporated in bill of exceptions. An affidavit in support of a motion for new trial does not become part of the record, so as to be considered on appeal, unless incorporated in the bill of exceptions.</p>

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

Edward P. Vail, Judge, presiding. This ás a petition for partition, filed on July 17, 1894, by the appellant, Robert M. Peadro, who is also one of the attorneys for himself in this case. The property sought to be divided is described as lots 1 and 2 and twenty feet off of the east side of lot 3 in block 14 in the original town, now city, of Sullivan, in Moultrie county, Illinois.

<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. Philip Stein, Judge, presiding.</p>

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

Philip Stein, Judge, presiding. This was an action brought by appellee, against appellant, to recover damages for personal injuries alleged to have been sustained by him from a fall received while attempting to board one of appellant’s cars as a passenger on Clark street, at its intersection with Chestnut street, in the city of Chicago.

<p>1. Appeals and errors—appeals must be prayed within twenty days from rendition of .judgment. Appeals from the Appellate Court must be prayed for within twenty days from the rendition of judgment, as provided in section 90 of the Practice act, as amended in 1877. (Laws of 1877, p. 153.)</p> <p>2. Rehearing—right to apply for rehearing is not statutory. The right of a defeated party to apply for a rehearing is not given by statute, but is a matter of grace, growing out of the willingness of the court to correct inadvertent error.</p> <p>3. Same—pendency of petition for rehearing does not extend time for praying appeal. The pendency in the Appellate Court of a petition for a rehearing in a cause, and the granting of a stay of execution therein, do not operate to extend the time for praying an appeal to the Supreme Court until the petition for rehearing is disposed of.</p>

John Gibbons, Judge, presiding. On the 30th day of June, 1892, William K. Lowrey was the owner of seven certain lots in a subdivision of land laid out by him at the north-east corner of Western and… Held: and desired him to take them up by procuring a new loan.

John Barton Payne, Judge, presiding. This was an action of replevin, brought by Ernest H. Janes, the appellant, against James H. Gilbert, sheriff of Cook county.

John Barton Payne, Judge, presiding. This is a bill for partition, brought by Kajsa Greta Akerlund against Baba Brita Norlander and Hans Nor-lander, her husband, and Christina Adams and Henry W. Adams, her husband. The property sought to be divided is a certain house and lot in Cook county.

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

<p>Writ op Error to the Circuit Court of Macon county; the Hon. Edward P. "Vail, Judge, presiding</p>