Volume 169 — Illinois Reports

<p>Appeal from the Circuit Court of Livingston county; the Hon. C. R. Starr, 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. C. G. Neeley, Judge, presiding.</p>

Orrin N. Carter, Judge, presiding. During the winter and spripg of 1893 the Imperial Hotel Company purchased certain ground near the north end of Jackson Park, in Chicago, and erected thereon a building called the Windermere Hotel. Before the completion of the building it contracted with appellant for a large amount of goods for furnishing the hotel ready for use during the World’s Fair.

C. W. Upton, Judge, presiding. This is an appeal from an order, entered by the circuit court of DuPage county, granting to the city of Naperville authority to enter upon and take possession of and use certain premises of the appellants, condemned for the purpose of opening and extending Center street across the depot grounds of the appellant railroad company in the city of Naperville.

<p>The questions involved in this case have been disposed of in the opinion rendered in Doane v. Lake Street Elevated Railroad Co. 165 Ill. 510, and the decision in that case controls here.</p>

<p>1. Appeals and errors—alleged erroneous rulings not considered in absence of exceptions taken. An alleged erroneous ruling of the trial court in ordering pleas to be stricken from the files cannot be considered on appeal, where no exception is taken to the ruling in the lower court.</p> <p>2. Same—plea which is to be passed, upon must be set out in the abstract. Alleged error of the trial court in striking a plea from the files can not be considered on appeal, where the abstract of record, instead of setting forth the plea, contains only a statement of counsel that the plea was to the effect that another suit was pending at the time of the commencement of this suit, etc.</p>

<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 Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of McLean county; the Hon. Thomas F. Tip-ton, 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. W. G. Ewing, Judge, presiding.</p>

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

Elbridge Hanecy, Judge, presiding. This was a creditor’s bill brought by appellant, against appellees, alleging a judgment against two of appellees, which was assigned to the complainant, and on which execution had been issued and returned nulla bona and unsatisfied.

<p>1. Limitations—proof of payment of taxes under color of title must be clear. One relying on the payment of taxes for seven successive years under color of title has the burden of proving such payment by clear and convincing evidence.</p> <p>2. Evidence—when evidence is insufficient to prove seven years’ payment of taxes. Payment of taxes for seven successive years is not established where part of the tax receipts relied upon contain descriptions too uncertain to identify the payments as having been made upon the particular property in dispute, and there is no oral evidence connecting them therewith.</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>

Francis Adams, Judge, presiding. This was an action in assumpsit, brought by Lester E. Rose against Adolph Sutter and others, composing the firm of Sutter Bros., of Chicago, upon an assumption clause in a deed made by C. H. Peckham and wife to Adolph Sutter in May, 1890, conveying certain real estate in Wichita, Kansas. Peckham was indebted to Sutter Bros, in the sum of about §1258.33.

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

<p>Appeal from 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.</p>

<p>1. Judicial sales—duty of purchaser of shares of stock at execution sale. One purchasing shares of stock in a corporation at an execution sale must pay the amount of his bid before he is entitled to have the execution returned or an attested copy of the execution and its return left with the officer of the corporation having charge of the records, as provided by section 56 of the act on judgments, decrees and executions. (Rev. Stat. 1874, p. 628.)</p> <p>2. Same —purchaser at execution sale liable for the amount of his bid. A purchaser of shares of stock in a corporation sold by a constable under execution is liable to the constable for the amount bid, and the fact that the execution is not returned nor an attested copy of the execution and return left with the proper officer of the corporation within fifteen days after sale will not defeat a recovery.</p>

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

Writ op Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.

O. H. Horton, Judge, presiding. This was a bill for a mechanic’s lien.

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

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

<p>1. Pleading—rule as to variance not applied where allegation is surplusage. The rule that the allegations and proof must agree does not apply where the allegation may be stricken out as surplusage without impairing the legal effect of the declaration.</p> <p>2. Landlord and tenant—attornment to assignee of lease not essential to right of recovery for rent. Under the provisions of section 14 of the Landlord and Tenant act, (Rev. Stat. 1874, p. 659,) extending a lessor’s remedies to his assignee, attornment by the lessee to the assignee of the lease is not essential to the latter’s right of recovery for rent.</p> <p>3. Same—what will not release lessee from obligation to pay rent. The facts that the landlord has consented to an assignment of a written lease by his lessee, has accepted the assignee as his tenant and received rent from him, will not release the lessee from his express covenant to pay rent, unless such was the landlord's intention.</p> <p>4. Same—whether lessor's acts will releaselessee is for the jury. Whether the action taken by a lessor concerning the assignment of the lease by the lessee is such as will release the lessee from liability under the lease and substitute the assignee, is a question to be determined by the jury from all the circumstances, under proper instructions.</p> <p>5. Same—dissolution of partnership does not affect its liability under lease. Dissolution of a partnership does not release it' from liability under a previously executed lease, and attornment by a partner to the lessor’s assignee will bind the partnership.</p> <p>6. Evidence—letter need not be introducedbefore its answer can be admitted. It is not necessary that letters should be put in evidence before the answers thereto can be introduced.</p>

<p>The questions involved in this appeal were decided adversely to the appellants in the case of Doane v. Lake Street Elevated Railroad Co. 165 Ill. 510, and the decision in that case must control here.</p>

<p>1. Benefit societies—equitable rights may be acquired in benefit certificate. While a benefit certificate is not assignable, rights may be acquired therein which will be enforced in equity.</p> <p>2. Same—member cannot divest equitable interests in certificate by procuring new one. A member of a benefit society who, in consideration of a cash loan from his wife, makes her the beneficiary in his certificate, which is delivered to and retained by her, she paying all assessments thereon, cannot divest her rights therein by making a false affidavit that the certificate was lost, thus procuring from the society a duplicate certificate, naming new beneficiaries.</p> <p>3. Same—when new beneficiaries will not be protected as against original beneficiary. Beneficiaries designated in a new benefit certificate issued on the false affidavit of the member that his original certificate was lost, who are mere volunteers, having parted with no consideration, cannot be protected in equity as against the original beneficiary who has a vested equitable interest in the original certificate, and who is the victim of the member’s perjury.</p>

Thomas G. Windes, Judge, presiding. This was an action on the case, instituted by the appellee corporation against the appellant, to recover damages sustained by the corporation, as the declaration alleged, by reason of the action of the appellant, as sheriff of Cook county, in postponing the sale of a threshing machine, two steam engines and other articles of personal property in the possession of the sheriff under levy by an attachment writ, and advertised for sale by…

Theodore Bren-TANO, Judge, presiding. This is a bill in equity for the administration of the estate of an insolvent deceased, substantially alleging that complainant had a claim against a deceased debtor, and that the debtor, prior to his decease, for the purpose of defrauding, delaying and hindering his creditors, made a cloud on his real estate by a pretended deed of assignment made by another in his name.

Nathaniel C. Sears, Judge, presiding. On October 22,1894, Dora Feldstein, the appellee here, was injured -by the collision of two street cars at the crossing of State and Adams streets, in the city of Chicago.

<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>

C. C. Kohlsaat, Judge, presiding. Appellant, as administrator of Frederick Will, filed his petition to sell land to pay debts, which contained all jurisdictional averments. It appeared the deficiency of the personal estate to pay the debts of said deceased amounted to the sum of $1087.25.

<p>1. New trial—when motion for new trial must be made in chancery cases. Where an issue of fact arises in a chancery case which the statute requires shall be submitted to a jury, the verdict of the jury is necessary to the decree, and must stand unless challenged by motion for new trial.</p> <p>2. Certificates of evidence—motion for new trial must be saved in certificate of evidence. The question of the sufficiency of the evidence to sustain a decree cannot be considered on appeal, where the issues of fact were submitted to a jury, and no motion for a new trial and exception to its overruling are preserved in the certificate of evidence.</p>

John Barton Payne, Judge, presiding. Appellees, husband and wife, were seized in fee simple, as tenants in common, of a certain lot which they occupied as a homestead and had mortgaged to one Wagner to secure a note for $550, which note was assigned to one Caroline Leistikow.

C. M. Barickman, Judge, presiding. This is a proceeding, begun by the filing of a petition in the county court by the city of Pontiac, alleging the passage of an ordinance by the city council of that city for the improvement of Prairie street therein by the extension of the same across the lands, right of way and tracks of the appellant company.

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Massac county; the Hon. A. K. Vickers, Judge, presiding.

<p>1. Customs of trade—rule that one buying in certain market is bound by its customs. One employing another to act for him in buying or selling in a certain market will be held as having intended that the business should be conducted according to the general usages and customs of that market, though he does not know of their existence.</p> <p>2. Same—customs may be considered in interpreting intention of the parties. Where a transaction involving the purchase of stocks on the market is in fact a real purchase under an authorized contract, the customs of the market may be considered in construing the contract and in interpreting the otherwise indeterminate intention of the'parties.</p> <p>3. Same—effect where purchase was not directed to be made in a certain market. The fact that one did not direct that his stocks should be puchased in a certain market does not affect the rule that he is bound by the customs of the market where they were in fact purchased, if, with knowledge of the place of the purchase, he assented thereto and agreed to take and pay for the stocks.</p> <p>4. Instructions—when instruction concerning gambling contracts is properly modified. An abstract instruction that an option contract was a violation of the Criminal Code of the State of Illinois is properly modified by adding that it was for the jury to determine whether the contract in suit was to sell and purchase at an option.</p>

Thomas G. Windes, Judge, presiding. In September, 1892, the Sanitary District of Chicago filed its petition in the circuit court of Cook county to condemn for its right of way, among others, a number of tracts of land belonging to Thomas and Seth Piper and others, and also two tracts, known in the case as Nos. 68 and 70, belonging to John A. Cook, on which there were certain buildings and other improvements.

<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>

Original petition for writ of prohibition, and also an appeal from an order of the Appellate Court for the First District dismissing a petition for a like writ.

<p>Appeal from the Appellate Court for the Second District;—heard in that court on writ of error to the County Court of Henry county; the Hon. Anthony E. Mock, Judge, presiding.</p>

James Shaw, Judge, presiding. Appellee recovered a judgment for $2500, which has been affirmed by the Appellate Court, against appellant, for a personal injury received by her on North street, a public street of the appellant, caused, as it is alleged, by an obstruction in said street.

<p>1. Principal and agent—authority of agent to receive payment— when extended by implication. Though authority to an agent to receive payment of a debt is not of itself authority to receive it before maturity, yet such authority may be implied from a known usage of trade or course of dealing in the particular employment, or from a prior course of dealing between the principal and agent.</p> <p>2. Same—when authority to receive payment before maturity is properly implied. Evidence that an agent had full authority from a nonresident principal to make loans on real estate, to use his own judgment, collect the principal at maturity or extend the time of payment, determine the length of loans, pass upon titles, pay taxes, make repairs, procure insurance, look after tenants, and, in general, to look after the principal’s entire interests, without limitation by any writing, will warrant the implication that the agent had authority to receive payment of loans before maturity.</p>

<p>The questions involved in this case are disposed of in the opinion rendered in the case of H. B. Claflin Co.v. Kelley, {ante, p. 20).</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. James Gog gin, Judge, presiding.</p>

<p>1. Principal and agent—wife holding husband out as her agent is estopped to deny liability for his acts. A wife who holds her husband out as her agent for the making of a contract, is estopped to deny a liability for his acts done in her behalf with respect thereto.</p> <p>2. Mechanics’ liens—lien attaches to wife’s property under contract made by husband as agent. One furnishing materials for repairs upon a married woman’s property, under a contract executed by her husband with her knowledge and consent, is entitled to a mechanic’s lien upon the property.</p>

<p>1. Appeals and errors—introducing evidence after refusal of peremptory instruction is a waiver. Introducing evidence after the refusal of a peremptory instruction waives the right to assign such refusal as error.</p> <p>2. Same—peremptory instructions should be asked before case is submitted to .jury. Alleged error of the trial court in refusing a peremptory instruction will not be considered on appeal, where such instruction was not requested until other instructions had been given for the same party submitting the case to the jury.</p> <p>3. Pleading—prospective suffering may be recovered for, though not alleged. An averment in a declaration for personal injury that the plaintiff was bruised, hurt and wounded, and became sick, sore, lame and disordered, and so remained for a long space of time, suffering great pain, etc., authorizes an allowance of damages by the jury for prospective suffering.</p> <p>4. Same—the permanence of an injury need not be pleaded. The fact that an injury is permanent in its character is a matter of evidence, and the same need not be pleaded.</p> <p>5. Evidence—what sufficient to go to the.jury on question of plaintiff’s use of due care. Evidence that the plaintiff in a personal injury case, who was struck by a cable train, looked in the direction from which it came before starting to cross the tracks but did not see the train approaching, and that the train had been behind a heavy wagon for some distance before reaching the crossing, is sufficient to go to the jury upon the question of the plaintiff’s use of due care.</p> <p>6. Same—what sufficient to go to jury on question of defendant’s negligence. Evidence that a gripmau, whose train had been moving slowly behind a large wagon for seventy-five or a hundred feet, suddenly increased the speed when the wagon turned off at a street crossing, without looking to see if the crossing was clear, may go to the jury upon the question of negligence.</p>

Thomas G. Windes, Judge, presiding. This is an action upon a lease, dated April 25, 1887, executed by John B. Carson and Andrew J. Cooper, leasing certain premises in Chicago to the appellant for five years from May 1, 1887, at a total rental of §35,000.00 for the five years, to be paid in monthly installments of §583.33, on the first day of each month in advance.

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

Richard Yates, Judge, presiding. This is an appeal from a judgment of the county court of Cook county confirming a special assessment for the erection of lamp-posts on Ogden avenue, from Madison street to West Twelfth street, in the city of Chicago.

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

<p>1. Pleading—pleading to merits does not aid statement of a defective cause of action. Pleading over to the merits after the overruling of a demurrer will aid a defective statement of a good cause of action but will not aid a statement of a defective cause of action.</p> <p>2. Evidence—subject matter of written contract may be identified by proof. Extrinsic proof is competent to identify the subject matter of a written contract, and its admission is not a violation of the rule that the terms of a written contract cannot be varied or contradicted by parol evidence.</p> <p>3. Same—when description of leased premises may he aided by parol evidence. A description of property in a lease as “Lot No----,” in a certain block, subdivision, town, etc., may be aided, in an action at law, by parol evidence that the lessee took possession of certain premises under the lease and paid rent therefor to the lessor, who accepted the same as being due under the terms of the lease.</p> <p>4. Contracts—contract giving option on property not invalid for want of mutuality. A contract giving one party the privilege of purchasing lands upon certain conditions is not void for want of mutuality, on the ground that though the seller is bound upon those conditions the other party is not bound to purchase unless he desires.</p> <p>5. Same—when contract for sale of land is not invalid as resting partly in parol. A written contract giving one party the first opportunity to purchase land “provided he will pay as much as any other person,” is not invalid as being partly in writing and partly in parol, on the ground that the written contract does not specify the price to be paid or the terms and time of payment.</p> <p>6. Appeals and errors—absence of recital of facts in the Appellate Court’s judgment implies finding same as the trial court’s. The absence of a recital of facts in the Appellate Court’s judgment of affirmance implies that its finding agreed with that of the trial court, and is conclusive, in suits at law, of all controverted questions.</p> <p>7. Same—Appellate Court’s opinion not part of the record in that court. The opinion of the Appellate Court cannot be resorted to in order to support a contention that the recitals in its judgment do not truly set forth the action of the court.</p>

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

John Barton Payne, Judge, presiding. This was an action on the case, instituted in the Superior Court of Cook county by appellee, against the appellant company, to recover damages for personal injuries alleged to have been sustained by him by reason of the negligence of the servants of the appellant company.

<p>1. Appeals and errors—when Supreme Court cannot consider alleged error. An alleged error that the trial court, in a case at law-tried without a jury, failed to apply to the facts a proposition of law which it had held as correct, cannot be considered by the Supreme Court, where the Appellate Court has affirmed the judgment below and no question of law is presented by the record.</p> <p>2. Same—whether facts are controverted does not depend on evidence. Controverted questions of fact, within the meaning of section 89 of the Practice act, as amended in 1877, (Laws of 1877, p. 153,) arise from the pleadings, and not from the evidence.</p> <p>3. Practice—how to preserve question of sufficiency of evidence in cases tried without a jury. In a case at law tried without a jury, to preserve for review by the Supreme Court the question of the sufficiency of the evidence to sustain a verdict for the defendant, the plaintiff should raise the question in the trial court by demurrer to the evidence, proposition of law or motion to find for the plaintiff.</p>

<p>Adverse possession—herding cattle and cutting hay on open land are not “adverse possession.” Herding cattle upon and occasionally cutting hay from unenclosed lands are not alone such adverse possession as can be added to a subsequent actual possession of the land so as to complete the twenty years’ possession required by section 1 of the Limitation act.</p>

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

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

Arthur H. Chetlain, Judge, presiding. This was an action on the case, in the Superior Court of Cook county, by Charles A. Eckman, the appellant, against the Chicago, Burlington and Quincy Railroad Company, the appellee, for damages for injuries sustained while in the service of appellee, at Buda, Illinois. The declaration charged that the injury was caused by the negligence and recklessness of defendant. A plea of the general issue was entered and a trial had before a jury.

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

Theodore Brentano, Judge, presiding. By this proceeding the appellee sought to condemn the right of way of appellant for the extension of Seventy-first street across the same. The street sought to be opened was sixty-six feet wide and the right of way of appellant was two hundred feet wide, and at that point is occupied by eight tracks, with fifty feet on the west side and forty feet on the east side unoccupied.

<p>l. Municipal corporations—location of a sidewalk does not lessen city’s duty to repair. The obligation of a city to keep the sidewalks within its limits in reasonably safe repair is not lessened or changed by the location of the sidewalks or the extent of their use, though such location and use may affect the question of notice.</p> <p>2. Same—whether a city had notice of defects in a sidewalk is a question for the jury. Whether a city is chargeable with notice of defects in a sidewalk for a sufficient length of time before an injury to have repaired it is a question of fact for the jury, and not one of law to be stated to the jury by the court.</p> <p>3. Appeals and errors—harmless error in giving instruction will not reverse. Harmless error in the giving of an instruction is not ground for reversal.</p> <p>4. Same—when error in giving instruction is harmless. Error in giving an instruction holding, as a matter of law, that the existence of a defect in a sidewalk for a certain length of time charged the city with notice thereof, is harmless, where, had the jury found that the city had no notice, actual or constructive, of the defect complained of, their verdict would have been against the evidence.</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.

James Shaw, Judge, presiding. This is a bill for partition, filed by one of the daughters of Frank Brown, Sr., deceased, and her husband; and five grandchildren of said deceased; against the widow of said deceased; and his three sons and their wives; and two of his daughters and their husbands. .The property, sought to be partitioned as described in the bill originally filed, was 213 acres in Stephenson county and a certain lot in the village of Lena in that county.

William P. Early, Judge, presiding. James McKenzie departed this life April 15, 1878, seized in fee of the title to a tract of land lying… Held: possessed and enjoyed in the most full and complete manner, and disposed of as she may think best. ‘ ‘ Third—In the event that my said daughter, Ellen McKenzie, shall depart this life after my decease but before the death of my said wife, or in the event that my said wife should outlive or survive my said daughter, Ellen McKenzie,…

Writ of Error to the Circuit Court of Fulton county; the Hon. Jefferson Orr, Judge, presiding. This is a bill in chancery by John Skinner and others, against Ruth McDowell, Edward C. McDowell, Ellen D. Hasson, Charles McDowell and Alonzo McDowell, in the circuit court of Fulton county, to enforce the collection of certain judgments at law before that time rendered in their favor against Ruth M. McDowell and others, partners, as Turner, Phelps & Co., bankers.

Oliver H. Horton, Judge, presiding. This was a petition filed in the circuit court of Cook county by appellee, the A. Booth Packing Company, a corporation existing under the laws of Illinois, against appellant, Martin M. Cooney, and “all whom it may concern,” under the Burnt Records act, to establish and confirm its title to the east half of lot 7 in sub-block 1, and all of lot 12 in sub-block 2, all in Johnston’s subdivision of block 19, in Kinzie’s addition to Chicago,…

<p>1. Wills—estates in remainder vest at earliest possible period. Estates in remainder vest at the earliest possible period, unless a contrary intention of the testator is clearly manifested.</p> <p>2. Same—clause of will construed as to vesting of remainder. A devise of property to the testator’s wife for life, in trust, and after her death to her son, his heirs and assigns forever, he to take one-half of the property absolutely on attaining the age of twenty-live, passes a life estate to the wife with remainder in fee simple to the son, and upon the latter dying intestate before reaching the age of twenty-five, leaving his mother his only heir-at-law, the life estate and remainder in fee are united in her.</p> <p>3. Same—effect of proviso directing conditional disposition of property. Where property is devised to the testator’s wife for life, in trust, with remainder in fee to her son, the addition of a proviso that in case of the wife’s death "following” the testator’s, and the death of the son without issue or surviving wife, the property should be divided among the testator’s heirs-at-law and those of his wife, will not entitle the latter to share in the property where the son’s death, and not the wife’s, follows that of the testator.</p>

<p>Appeal from the Circuit Court of Lawrence county; the Hon. S. Z. Landes, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. George W. Brown, Judge, presiding.</p>

Writ of Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. This was a bill for an injunction filed in the Superior Court of Cook county October 16,1890, by A. Montgomery Ward and George R. Thorne, to enjoin the city of Chicago from erecting any buildings on what is known as Lake Park or Lake Front Park.

<p>1. Voluntary assignments—county court may require assignee to give additional bond. A county court finding that an assignee in insolvency has disposed of funds of the estate without the order of the court, and being satisfied that the sureties on the assignee’s bond are insolvent, may require an additional bond to be given.</p> <p>2. Same—fact that assignee's bond contains conditions not prescribed by statute does not release sureties. The fact that a new bond required of an assignee by the court contains conditions not prescribed by statute, which require the assignee to obey all orders of the court previously or subsequently entered, does not release a surety voluntarily executing the bond from liability, on the ground that such added conditions were illegally exacted.</p> <p>3. Bonds—when sureties on assignee’s bond will be liable for assignee's prior delinquency. The sureties on a new bond required of an assignee by the county court, which provides, in addition to the statutory conditions, that the assignee shall obey all orders of the court previously or subsequently entered, are liable upon the assignee’s failure to obey an .order of the court requiring him to account for funds of the estate which he had paid out without authority before the new bond was executed.</p> <p>4. Bes judicata—county court’s finding as to assignee’s delinquency is binding on bondsmen in collateral proceeding. The sureties on an assignee’s bond may appeal from an order of the county court requiring the assignee to pay over funds of his assignor’s estate found by the court to be unaccounted for, but such order cannot be attacked in a collateral proceeding to recover upon the bond.</p>

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. This was an action of trespass on the case, brought by the plaintiff in error, Berit Jorgenson, against the defendant in error, the Johnson Chair Company, a corporation, in the circuit court of Cook county.

M. F. Tuley, Judge, presiding. This is a bill, filed on August 24, 1894, in the circuit court of Cook county by Granville Foster- Ingraham, grandson and heir-at-law of one Granville S. Ingraham, deceased, which, as originally drawn and subsequently amended, prays for a construction of the fourteenth clause of the will of said Granville S. Ingraham, and that the same may be set aside and declared null and void.

Orrin N. Carter, Judge, presiding. This is.an appeal from a judgment of the county court of Cook county, entered September 30, 1896, against the property of the appellants, upon the application of the county treasurer for a judgment of sale of delinquent land and lots for the first installment of a special assessment levied and assessed by the authority of the village of Grossdale for the improvement of Burlington bouleyard.

P. Bookwalter, Judge, presiding. This is an action on the case, brought by appellee against appellant for slander. The trial resulted in verdict and judgment against appellant. A new trial was refused, and judgment was rendered upon the verdict. An appeal was prosecuted to the Appellate Court. The Appellate Court has affirmed the judgment of the circuit court; and the present appeal is prosecuted from such judgment of affirmance. The declaration consists of three counts.

<p>Appeal from the Circuit Court of St. Clair county; the Hon. A. S. Wilderman, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on. writ of error to the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.</p>

C. G. Neeley, Judge, presiding. This was an action brought by William R. Conway, against the Lake Shore and Michigan Southern Railway Company, to recover for an injury received on November 22,1892, at Twenty-first street, in Chicago. At that street crossing the defendant maintained gates which were operated from a tower-house situated near the north-west corner of the intersection of the tracks of the defendant with the street, and just west of the westernmost of the tracks.

S. Z. Landes, Judge, presiding. The subject matter of this suit was a petition filed before a justice of the peace in Wabash county for the vacation of a part of a public highway known as the “Maysville Road” and for the opening of two new roads.

Jonas Hutchinson, Judge, presiding. Judgment was entered in favor of the appellee bank, against the appellant, in the circuit court of Cook county at the May term, 1896. The action was in debt. The declaration was filed to the said May term of said court, and counted upon a decree rendered by the district court in and for the. county of Sheridan and State of Nebraska, in favor of the appellee bank, against .the appellant, in the sum of $3385.46.

Charles G. Neeley, Judge, presiding. On June 17,1890, Cook & Leake, doing business as the Bank of Hartford, and having sufficient funds on deposit to their credit with the appellee, the Park National Bank of Chicago, drew a check for, $1056 upon the latter bank, payable to appellant, William C. Niblack, and delivered it to him.

<p>1. Propositions op law—indefinite and incomplete propositions may be refused. In a trial without a jury the court may refuse to hold as the law of the case propositions which are indefinite and incomplete.</p> <p>2. Appeals and errors—one cannot complain of error in his own favor. Modification of a proposition of law which was wrong as presented, and which as modified and given was still erroneous as being too favorable -to the party who presented it, cannot be complained of on appeal.</p> <p>3. Fraud—a finding for defendants in action for fraud upheld. After a full consideration and review of the evidence in this case the action of the trial court in finding for the defendants in a suit for damages for false representations in the sale of land, tried without a jury, is upheld.</p>

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

<p>1. Res judicata—a valid judgment settles matters properly involved which might have been determined. A judgment of a court having jurisdiction of the parties and the subject matter is final, not only as to the matters actually litigated, but as to all matters properly involved which might have been raised and determined.</p> <p>2. Same—valid condemnation judgment bars action for damages against petitioner for trespass. A valid condemnation judgment, entered in a proceeding where the question of compensation and damage for land taken and for land damaged is properly before the court for determination, the amount of which judgment, with costs, has been deposited in accordance with the statute, bars an action for damages against the petitioner or its agents for entering upon and taking possession of the condemned property.</p>

Edmund W. Burke, Judge, presiding. The following excerpt from the opinion of the Appellate Court is a fair statement of the case: “Both parties are Illinois corporations, engaged in the manufacture and sale of bicycles, and on December 15, 1893, entered into a written contract of that date concerning the agency and sale within a specified territory, by the appellant, of the wheels of the appellee.

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

Writ of Error to the Circuit Court of Hancock county; the Hon. Charles J. Scofield, Judge, presiding.

<p>Appeal from 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.</p>

Writ of Error to the Circuit Court of Adams county; the Hon. Oscar P. Bonney, Judge, presiding. This is a common law writ of certiorari in the circuit court of Adams county, issued on the petition of plaintiff in error, Herman Behrens, against defendants in error, commissioners of highways of Melrose township in said county and the justice of the peace in that county, requiring them to send up a complete record of the proceedings in regard to laying out a highway.

Frank Baker, Judge, presiding. This is an action of assumpsit, brought by the appellee against the appellant to recover certain compensation claimed to be due to the appellee, as an assistant and deputy of the recorder of deeds of Cook county.

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

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Dorrance Dibell, 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 St. Clair county; the Hon. Benjamin R. Burroughs, Judge, presiding. This was a bill in chancery in the circuit court of St. Clair county by the plaintiffs in error, who are the legal heirs of John Steinert, deceased, against the defendant in error.

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, 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. Arthur H. Chetlain, Judge, presiding.</p>

Frank Baker, Judge, presiding. This is an action of trespass on the case, brought on August 26, 1893, by the appellant, the receiver of a telegraphic message, against the appellee company to recover damages, growing out of the alteration or change of such message, which was sent to appellant over the lines of appellee. Upon the trial in the court below, the court refused all the instructions asked by the plaintiff, and instructed the jury to find the defendant not guilty.

Francis M. Weight, Judge, presiding. Joseph W. Smith, who is the appellant here, filed his bill in the circuit court of Douglas county, Illinois, for a divorce from his wife, Selina Smith, charging her with extreme and repeated cruelty. The wife filed her answer denying the charges, and then filed a cross-bill praying for a divorce upon the same grounds,—that is, charging him with extreme and repeated cruelty.

A. K. Vickers, Judge, presiding. This was a suit brought in the circuit court of Massac county by appellee, against the Niagara Fire Insurance Company, to recover for the loss of a stock of merchandise which it is alleged was covered by a policy of insurance issued by appellant. The declaration was in the usual form, setting out the policy in hcec verba.

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

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

<p>1. Creditor’s bill—when rule requiring return of execution nulla bond does not apply. The rule requiring the return of an execution nulla bona before a judgment creditor can resort to equity, does not apply where, after a court of equity has assumed, jurisdiction for the final distribution of the debtor’s estate under a creditor’s bill filed in behalf of all creditors, on the return nulla bona of an execution issued on another judgment, the judgment creditor, at the invitation of the court, becomes a party to the suit.</p> <p>2. Same—allegations of cross-bill charging fraud held sustained by the evidence. The allegations of a cross-bill filed in creditor’s bill proceedings, charging that a certain judgment against the estate was fraudulently procured, are held by the court, after full consideration, to be sustained by the evidence.</p> <p>3. Fraud—assignee with notice cannot enforce fraudulent judgment. The assignee of a fraudulent judgment, having knowingly been a party to the fraud, cannot enforce such judgment as against the valid claim of a cross-complainant in a proceeding by creditor’s bill.</p> <p>4. Equity—equity will go beneath the garb of a transaction to discover its real character. Courts of equity will not be prevented from protecting the equitable rights of parties by the mere garb or form in which persons devising fraudulent schemes to obtain the property of others without recompense have clothed their transactions.</p> <p>5. Appeals and errors—when Supreme Court cannot review action of Appellate Court in not dismissing appeal. The action of the Appellate Court in not dismissing an appeal on the ground that it had not been taken in time, cannot be reviewed by the Supreme Court where the question of dismissal was not properly raised by motion to dismiss in the Appellate Court.</p>