Volume 171 — Illinois Reports

<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>i. Wills—when ability to transact ordinary business is not evidence of testamentary capacity. The ability to transact ordinary business and to understand the business in which one is engaged when making a will is evidence of testamentary capacity, unless the testator was affected with some insane delusion which influenced his action.</p> <p>2. Same—a will resulting from an insane delusion cannot be sustained. A will cannot be sustained which is the direct result of an insane delusion of the testator in regard to the person who is the object of his bounty, or in regard to his moral duty to make the will in favor of a particular individual, corporation or society;</p> <p>3. Same—belief in spiritualism as affecting testamentary capacity—• insane delusions. Belief in spiritualism is not proof of insanity or want of testamentary capacity, but where, through that belief, one is led into the delusion that another is a divinity or gifted with supernatural powers, the believer is insane on that subject, and a will prompted by that delusion cannot be sustained. (Whipple v. Eddy, 161 Ill. 114, distinguished.)</p> <p>4. Same—evidence held sufficient to sustain charge of undue influence and want of testamentary capacity. The court reviews at length the evidence and sustains the verdict of the jury setting aside the will in this contest, and holds that the evidence sustains the allegations of the bill that the will was the result of an insane delusion and was procured by undue influence.</p> <p>5. Marriage—the marriage of an insane person is. void. The marriage of an insane person is void, and, not being good for any legal purpose, its invalidity may be shown in any court, between any parties, either during the lifetime of the parties to such marriage or after their death.</p> <p>6. Same—marriage ceremony alone does not establish the relation of husband and wife. A mere marriage ceremony does not make a man and woman husband and wife. Capacity and consent are absolutely essential, but celebration only contingently so.</p> <p>7. Same—test for determining whether a person had sufficient mental capacity to enter marriage relation. The most approved test for determining whether a pel's on had sufficient mental capacity to enter the marriage relation is whether his mind could and did act rationally regarding the precise thing in contemplation,—marriage; not whether his conduct was wise, but whether it proceeded from a mind sane with respect to the thing done.</p> <p>8. Same—action of chancellor in annulling marriage of woman after her death is sustained. The court reviews the evidence in the case at length, and holds it sufficient to sustain the action of the chancellor in annulling the marriage of a woman after her death, upon the ground that she was insane when the marriage ceremony was performed and so remained until her death.</p> <p>9. Special findings—when special findings in a will contest are not inconsistent with a general verdict. Special findings in a will contest that the testatrix possessed sufficient mental capacity to transact ordinary business, and to understand the business in which she was engaged when making her will, are not inconsistent with a general verdict finding that the will was not the last will and testament of the testatrix, as the conditions, as found specially, may exist and yet the testatrix not possess testamentary capacity, owing to the presence of an insane delusion.</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.

Original petition for mandamus. At the June term, 1897, of this court, to-wit: on June 1, 1897, the Attorney General filed a motion for leave to file an original petition for mandamus. Leave was granted to file the petition, and it was so filed on June 2, 1897. The petition prays for summons to Joseph Kipley, superintendent of police of Chicago, and Adolf Kraus, Dudley Winston and Hempstead Washburne, civil service commissioners, requiring them to answer the petition.

Richard W. Clifford, Judge, presiding. This was an action brought by Anna Wiedeman, against Henry Keller, to recover on an alleged warranty in the sale of certain meats for domestic use.

Philip Stein, Judge, presiding. The action below was trespass, brought by the appellee, against Seth F. Hanchett, sheriff of Cook county, and G. W. and J. T. Kretzinger, to recover for damages sustained by reason of the alleged unlawful seizure of a certain stallion, and taking the possession of the said horse from the appellee.

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

Elbridge Hanecy, Judge, presiding. This is a bill for divorce, filed on November 29, 1895, in the circuit court of Cook county by the appellee, Isaac Duberstein, against his wife, the appellant, Haiah Feige Duberstein, seeking a divorce from her upon the charge of extreme and repeated cruelty exercised by her towards him.

<p>1. Former cases—language used, in Quiver v. People, 161 Ill. 89, explained and limited. The language used in the opinion in Culver v. People, 161 Ill. 89, to the effect that the assessment ordinance then under consideration was void, is to be applied only to the second section of the ordinance, which attempted to divide the assessment into installments.</p> <p>2. Constitutional law—-section 20 of act of 1895, concerning park boards, is constitutional. Section 20 of the act of 1895, concerning park commissioners, (Laws of 1895, p. 289,) which authorizes park commissioners to levy a new assessment to pay for an improvement completed under a former ordinance which has been declared invalid, is constitutional. (West Chicago Park Comrs. v. Sweet, 167 Ill. 326, followed.)</p> <p>3. Parks—power of town boards under Park act of 1873. The act of 1873, relating to parks, (Rev. Stat. 1874, p. 743,) does not confer power on town boards to levy an assessment for park purposes upon their own motion, but only at the request of park commissioners who initiate the improvement.</p> <p>4. Same—park boards now act independently of town boards. Since the act of 1895 (Laws of 1895, p. 286,) park commissioners may levy assessments for park purposes independently of the town authorities, and are not required to act through them, as formerly.</p> <p>5. Same—effect where former ordinance was passed by town board. The fact that a former assessment ordinance, which was held invalid because of an unauthorized division of the assessment into installments, was passed by the town board at the request of park commissioners, as required by the act of 1873, does not prevent the commissioners from passing an ordinance under section 20 of the act of 1895, (Laws of 1895, p. 289,) levying a second assessment to pay for the work completed under the former invalid ordinance.</p> <p>6. Same—act of 1895 did not repeal act of 1873. The act of 1895, to enable park authorities to make local improvements, (Laws of 1895, p. 286,) did not repeal the Park act of 1873, (Rev. Stat. 1874, p. 743,) but merely empowers the park commissioners to act independently of town boards, while not abridging their right to act through such town boards if they deem it of advantage.</p> <p>7. Same—acis of 1873 and 1895 do not duplicate municipal authority over same territoinj. The park acts of 1873 and 1895 do not create a duplicate municipal authority in the same territory in providing for the passage of improvement ordinances both by town boards and park commissioners, as in each case the power to initiate proceedings rests with the park commissioners.</p> <p>8. Same—word “streets,” used in section SO of the act of ISOS, includes “boulevards.” The word “streets,” used in section 20 of the Park act of 1895, which act confers power on commissioners to levy an assessment to pay for the improvement of “a street or streets, or parts thereof,” is broad enough to include in its meaning “boulevards” as well as streets.</p> <p>9. Special assessments—ordinance only partly invalid is a proper basis for new assessment. An assessment ordinance which has been declared invalid on appeal, for the sole reason that it attempted to divide the assessment into installments in an illegal manner, is not wholly void, and is a proper basis for a new assessment for work done thereunder.</p> <p>10. Same—special assessment may be levied upon contiguous property. The fact that an improvement ordinance provides for a special assessment upon “contiguous” property does not vitiate the assessment or constitute the proceeding one of special taxation, as a special assessment, as well as a special tax, may be levied upon contiguous property.</p> <p>11. Same—effect on new assessment where former one was for assessment of “contiguous” property. The fact that a former ordinance, which was held invalid, provided for a special assessment upon “contiguous” property, does not affect the right of park commissioners to levy a new assessment on property benefited to pay for the improvement constructed under the former ordinance.</p> <p>12. Res judicata—determination of benefits under void judgment of confirmation not res judicata. Where the ordinance on which an assessment is based has been held void the judgment of confirmation is void also, and the determination of benefits thereunder is not a bar to a different determination under a new assessment.</p>

<p>1. Election—general application of the rule that election once made is irrevocable. The rule that the right of election once exercised is irrevocable, applies to those cases where to permit the party to revoke his election would prejudice the rights of the opposite party.</p> <p>2. Same—party electing to declare a forfeiture may waive his election. A mortgagee who has elected to declare due the principal sum secured, for default in prompt payment of interest, may, upon payment of interest or for other reason satisfactory to himself, waive his election and permit the contract of indebtedness to continue under its original terms.</p> <p>3. Waiver—mere acceptance of amount due is not a waiver of notice of forfeiture. The mere acceptance, after default, of the amount of interest due is not in itself a waiver of a prior notice of election to declare the principal due; but where such interest is accepted as the entire amount then clue, it becomes a question of fact whether its acceptance was intended as a waiver of the notice of election.</p> <p>4. Evidence—what not admissible to show that acceptance of interest was not a waiver of notice of election. An endorsement, by the holder of a note, upon an interest coupon paid after due and after his notice of election to declare the principal due, that it was paid “upon the understanding that the principal remains past due as per notice,” is not admissible to show that the acceptance was not a waiver, where the endorsement was written after the money had been paid and accepted. (Carter and Cartwright, JJ., dissenting.)</p>

Frank Baker, Judge, presiding. This was a proceeding in the circuit court of Cook county, brought by the Metropolitan West Side Elevated Railroad Company, against Warren Springer, to condemn certain premises to be used in the construction and operation of its road in the city of Chicago.

<p>Appeal from the County Court of Christian county; the Hon. Lyman G. Grundy, Judge, presiding.</p>

<p>1. Township organization—legislature may provide for management of affairs in counties under township organization. On the adoption of township organization by any county in this State the affairs of the county may, under section 8 of article 10 of the constitution, be transacted in such manner as the General Assembly may provide.</p> <p>2. Same—by adopting, township organization people assent to the provisions of the law. By adopting township organization the people of Cook county, including the inhabitants of its several towns, accepted the law and all of its provisions, and consented to be taxed in the manner therein provided and by the officers therein designated for that purpose.</p> <p>3. Constitutional law—meaning of words “corporate authorities,” as used in constitution. “Corporate authorities,” within the meaning of the constitution, are those municipal officers who are directly elected by the people who are to be taxed by them, or appointed in some manner to which they have given their assent.</p> <p>4. Same—limits on power of legislature to confer power to tax municipalities. Section 9 of article 9 of the constitution is a limitation upon the legislature to confer the power to assess or collect taxes for corporate purposes upon any officers other than corporate or local authorities of the municipalities sought to be taxed.</p> <p>5. Same—GooJe county board is a “corporate authority” of towns within incorporated, cities in county. The Cook county board constitutes the proper corporate authority to ascertain the amount of taxes necessary to be raised for corporate purposes by towns lying wholly within incorporated cities in such county.</p> <p>6. Same—section U of article of the Township Organization act is constitutional. Section 4 of article 4 of the Township Organization act, (Rev. Stat. 1874, p. 1072,) which provides that all money necessary to be raised for corporate purposes in towns lying wholly within incorporated cities shall be ascertained by the county board, etc., is constitutional, and does not confer power upon one municipality to levy taxes upon another municipality for the latter’s corporate purposes without its consent.</p> <p>7. Same—section 7 of article IS of Township Organization aclis constitutional. Following the decision herein that section 4 of article 4 of the Township Organization act is constitutional, section 7 of article 13 of the same act, (Rev. Stat. 1874, p. 1081,) referring to the certifying of the aggregate amount of indebtedness of towns lying within incorporated cities to the county board, must be held to be constitutional and valid.</p>

<p>Appeals and errors—when no question oflaw is presented for review. No question of law is preserved for review in the Supreme Court on appeal from an action at law tried without a jury, where no objections are made to the admission or exclusion of evidence and no written propositions submitted to be held as the law of the case.</p>

<p>1. Practice—application of rule as to preservation of evidence in chancery. The rule that the party in whose favor a decree is entered must preserve the evidence, and that such decree must be reversed, if not sustained by the evidence in the record, applies only to pases where affirmative relief is obtained.</p> <p>2. Same—complainant must preserve evidence on decree dismissing his bill. A complainant whose bill has been dismissed for want of equity must preserve the whole of the evidence in the transcript of the record, in order that it may be determined whether he was entitled to the relief prayed.</p> <p>3. Appeals and errors—when decree dismissing bill must be sustained. A decree dismissing a bill for the want of equity must be sustained, on appeal, where the transcript contains only some of complainant’s depositions, which constitute a part of the record without a certificate of evidence, but does not contain any of the defendant’s evidence nor purport to contain all the evidence introduced on the hearing.</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. Karlin Q. Ball, Judge, presiding.</p>

<p>The questions involved in this case have been disposed of in the opinion rendered in the case of Hoover v. People ex rel. (ante, p. 182.)</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judg-e, presiding.

<p>1. Powers—discretionary power vested in executrix does not pass to administrator with will annexed. A discretionary power vested in an executrix to sell land does not, upon the executrix resigning, pass to her succeeding administrator with the will annexed, in the absence of any provision therefor in the will.</p> <p>2. Perpetuities—perpetuity defined. A perpetuity may be defined to be a limitation in a will or other conveyance which takes the subject matter of the grant or devise out of commerce for a period of time greater than a life or lives in being and twenty-one years thereafter.</p> <p>3. Same—devise is void if violation of rule against perpetuities may possibly happen—trusts. Where provisions of a testamentary character are such that under them a violation of the rule against perpetuities may possibly happen, the devise is void;—and this is true whether the devise is one which creates an absolute estate or a trust estate.</p> <p>4. Same—when devise is void as creating a perpetuity. A devise of land to executors in trust, to rent the same and divide the income among the beneficiaries, or, if any of the land is sold, to invest the proceeds and divide the interest in like manner, but which makes no provision for the vesting of the fee in any one at any time, nor fixes any time when the proceeds of land sold shall be paid to any one, is void, as creating a perpetuity.</p> <p>5. Same—language showing intention to create a perpetuity. Where a testator devises land to executors, to rent the same and divide the income among the beneficiaries, the fact he empowers the probate court, in case of death or disability of any executor, to appoint, from time to time “and for all time to come,” some suitable person as successor, shows an intention to create a perpetuity.</p>

<p>Appeal from the County Court of Christian county; the Hon. Lyman G. Grundy, Judg'e, presiding*.</p>

<p>1. Executors and administrators—statutory provisions concerning release of surely on administrator’s bond must be complied with. The power of the county court to release the surety on an executor’s or administrator’s bond is derived wholly from the statute, and the statutory provisions in that regard (Rev. Stat. 1874, chap. 3, secs. 33, 35,) must be strictly complied with.</p> <p>2. Same—court cannot waive requirements of statute on releasing surety on administrator’s bond. Under section 35 of the Administration act (Rev. Stat. 1874, p. 110,) the county court cannot release a surety on an executor’s or administrator’s bond without first requiring the executor or administrator to adjust his accounts and pay over the balance in his hands, and to file a new bond in such penalty and with such sureties as the court may approve.</p> <p>3. Same—heirs not entitled to notice of surety’s application for release. Notice of the application of a surety on an executor’s or administrator’s bond for his release need be given only to the executor or administrator, as the statute makes no provision for notice to heirs, creditors or other interested parties.</p> <p>4. Same—petition to release surety on administrator’s bond must be by the surety. A petition to release the surety on an administrator’s bond must be filed by the surety, and the court has no power to release such surety upon the petition of the administrator.</p> <p>5. Samis—surety’s consent to draft of order for release does not give court jurisdiction to release him. A draft of an order for the release of a surety on an administrator’s bond, bearing the written consent of the surety to the entry of the order and filed by the administrator with his petition asking for the release of the surety, does not give the court jurisdiction to enter an order of release.</p>

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. Abner Smith, Judge, presiding.

<p>Appeal from the County Court of Whiteside county; the Hon. H. C. Ward, Judge, presiding.</p>

<p>1. Special assessments—when ordinance for constructing sidewalk is uncertain. An ordinance for constructing a sidewalk is uncertain in description where it contains nothing from which it can be inferred whether the sidewalk is to adjoin the curb line or property line, or at what grade the walk is to be laid.</p> <p>2. Same—estimate of cost cannot beresortedto to aid defective ordinance. A statement in the report of commissoners appointed to estimate the cost of an improvement, which refers to the location of the improvement, will not aid a defective description of such improvement in the ordinance.</p> <p>3. Same—question of necessity for local improvement is for the council. The determination of the necessity for a local improvement is committed by law to the city council, and courts will not interfere with the exercise of its discretion unless the improvement ordinance is so unreasonable as to render it void.</p>

Abner Smith, Judge, presiding. This was an action brought by appellee, as administrator of the estate of Mary Moriarity, deceased, to recover damages resulting from the death of said deceased, caused, it was alleged, by injuries received from one of appellant’s ice wagons, in the month of November, 1893.

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

Writ of Error to the Appellate Court for the First District;—heard in that cbnrt on appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.

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

<p>1. Attachment—incorporation of partnership—what necessary to sustain levy by former creditor. A creditor for goods sold to a partnership which became incorporated after the purchase, who levies an attachment on the corporate property claiming it was transferred from the partnership to hinder creditors, must show, to sustain the levy, that the property attached was the same property transferred from the partnership, and that the transfer was fraudulent.</p> <p>2. Same—what not sufficient to show property attached was the property fraudulently transferred. The mere assertion by a witness that at the time of the levy of an attachment on corporate property by a creditor of members of the corporation, formerly a partnership, there was a large portion of the property formerly owned by the partnership on hand, will not sustain the levy, where such property is not distinguished from the general mass.</p>

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

John Barton Payne, Judge, presiding. Appellee, the Commercial National Bank of Chicago, commenced its- action in the Superior Court of Cook county, against John S. Woollacott and others, including these appellants, to foreclose two mortgages executed by Woollacott.

<p>Appeal from the County Court of Mercer county; the Hon. J. H. Connell, Judge, presiding.</p>

<p>1. Special assessments—recital of jurisdictional facts in confirmation judgment is conclusive in collateral proceeding. A recital in a confirmation judgment that the commissioners appointed by the court had complied with the law as to posting, publishing and mailing notices, is a finding by the court of facts giving it jurisdiction over property assessed, and is conclusive in a collateral proceeding.</p> <p>2. Same—what not sufficient to impeach recital of jurisdictional facts. A recital in a confirmation judgment that the commissioners appointed had complied with the law as to posting, publishing and mailing notices, cannot be impeached, in a collateral proceeding, by the publisher’s certificate and the affidavit of mailing notices, which shows that the name of one of the persons acting did not correspond with the name of any commissioner appointed.</p> <p>3. Same—the want of jurisdiction, to be available for collateral attack, must appear upon the face of the record. The want of jurisdiction to confirm a special assessment by reason of the commissioners’ failure to conform to the requirements of the law concerning matters preliminary to the application for judgment of confirmation, must appear upon the face of the record to be available for collateral attack upon the judgment.</p> <p>4. Estopped by verdict— one invoking an estoppel by verdict has the burden of proof. The burden of establishing an estoppel by verdict is upon him who invokes it, and if there is any uncertainty in the record concerning the matters litigated and determined in the former suit, the whole subject matter is open to further litigation, unless such uncertainty is removed by extrinsic evidence.</p> <p>5. Same—what must be shown to establish an estoppel by verdict. In order that a prior judgment shall be held to operate as an estoppel in a subsequent suit between the parties, it must appear, from the face of the record or by extrinsic evidence, that the precise matter claimed to have been adjudicated was raised and determined in the former suit.</p> <p>6. Same—when prior judgment will not operate as an estoppel in a subsequent proceeding. A judgment of the county court refusing sale for a delinquent installment of a special assessment will not operate as an estoppel upon the parties, on application for sale for another installment of the same assessment, where the evidence fails to show the former judgment or that the controlling facts were the same in each case.</p>

<p>Taxes—what not a forfeiture of religious society’s exemption from taxation. A society incorporated to establish an institution for theological instruction does not forfeit its exemption from taxation, under its charter, by exchanging its quarters for rooms at a university and being styled “The Divinity Department,” where it retains its corporate existence, appoints the instructors in the divinity department, prescribes their duties, pays their salaries, directs the course of instruction and pays the expenses of the school from its own income.</p>

<p>Writ op Error to the Circuit Court of Sangamon county; the Hon. Jacob Focjke, Judge, presiding.</p>

<p>1. Pleading—courts do nottalcejudiaial notice of city ordinances. A city ordinance relied upon as material to an action or the defense to an action should be specially pleaded, as courts will not take judicial notice thereof.</p> <p>2. Same—ordinance need not be set out in Zicec verba, but must be substantially pleaded. While it is not necessary to set out an ordinance in Zicec verba, yet those parts thereof relied upon in aid of or defense to an action should be substantially set forth, so the requirements thereof may be seen and shown.</p> <p>3. Same—when city ordinance is not sufficiently pleaded. A decíaration against a railroad company for the negligent killing of the plaintiff’s intestate, which alleges that the defendant was running its train at a speed of over twenty miles an hour through the limits of a certain city, “in violation of an ordinance of said city in such case made and provided,” is obnoxious to demurrer for insufficient pleading of the ordinance.</p> <p>4. Evidence—in absence of demurrer, an ordinance may be admitted though imperfectly pleaded. Where an ordinance is pleaded, though in an imperfect manner, the court may admit it in evidence at the trial, in the absence of a demurrer to the declaration.</p> <p>5. Same—when provision of ordinance is admissible under averment of negligence. A section of an ordinance requiring the continuous ringing of a locomotive bell within two hundred feet of street crossings is admissible under an averment in the declaration charging negligence in failing to ring such bell for eighty rods before reaching such crossings, where it appears that the crossings are so numerous as to make the ringing for two hundred feet and for eighty rods practically the same thing.</p> <p>6. Same—evidence that deceased was a man of careful habits is admissible when no one witnessed the accident. In an action against a railroad company for causing the death of plaintiff’s intestate at a street crossing, proof that the deceased was a man of careful habits may be admitted, where the evidence leaves it in doubt whether any person saw the deceased when he was struck by the train.</p> <p>7. Same—testimony of witness at former trial cannot be proved by bill of exceptions. What a witness who is beyond the jurisdiction of the court and whose deposition cannot be procured testified to at a former trial between the same parties cannot be proved by a bill of exceptions made up on the former trial, even though his testimony may have been taken in short-hand.</p> <p>8. Same—Witness may testify that train “was running fast,” without indicating rate of speed. The fact that a witness is not able to testify as to the rate at which a train was running does not prevent him from testifying whether it was running fast or slow, as the weight to be attached to his testimony is for the jury.</p> <p>9. Railroads—running train through city at speed prohibited by ordinance raises presumption of negligence. Under section 24 of the act on the operation of railroads, (Rev. Stat. 1874, p. 811,) the running of a train through the limits of a city, town or village at a speed prohibited by ordinance, whereby an injury is occasioned, is not negligence of itself, but merely raises a presumption of negligence.</p> <p>10. Instructions—erroneous instruction, if not misleading, is harmless. An erroneous instruction is harmless where the error is so slight that it could not have misled the jury.</p> <p>11. Trial—instruction to find for defendant must be refused if evidence tends to support declaration. The court must refuse an instruction to find for the defendant where there is evidence tending to support the averments of the declaration.</p>

<p>Real property—-what will not re-invest heirs with title divested by judicial sale. The fact that an administratrix obtains title to her intestate’s property by conveyance from the purchaser at a sale by the court upon her petition to sell the same to pay debts, does not re-invest the intestate’s heirs with the title divested by such sale, where it does not appear that the sale was merely colorable and that the administratrix was the real purchaser.</p>

<p>1. Trial—court, in trial without jury, need not find particular facts. Written propositions submitted to the court, in a trial without a jury, as “propositions of law,” should be refused where they do not ask for the holding of a rule of law, but merely that the court make certain findings of fact.</p> <p>2. Benefit societies—subordinate lodge is the agent of the principal lodge. The relation between a subordinate lodge of a benefit society and the principal lodge is that of agency, and where forfeiture of the certificate of a member of the subordinate lodge is sought, it may be shown in defense that the subordinate lodge, with knowledge of the alleged cause of forfeiture, treated the insurance as in force, receiving dues and paying them over to' the principal lodge.</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. Schools—board of education is merely the agent of the State. A board of education is a quasi corporation, created by general law to aid in the administration of the State government, and is charged with duties purely governmental in character.</p> <p>2. Master and servant—doctrine of respondeat superior does not apply to board of education erecting school building. A board of education erecting a school building in pursuance of the duties imposed upon it by statute, (Hurd’s Stat. 1897, chap. 122, pars. 173-184,) being merely the agent of the State, cannot be made to respond in damages, as master, for the negligent acts of workmen employed upon the building.</p> <p>3. Same—city co-operating with board of education in erecting school building is not liable as master. The doctrine of respondeat superior does not apply, as between a city and workmen employed upon a school building being erected by the city and the board of education, where the city’s connection with the work arises solely from its disinterested discharge of a public duty imposed, nolens nolens, by general law, as, in such case, those employed on the building are the servants of the State, and not of the city.</p>

<p>1. Contracts—public contracts which tend to prevent competition or create monopoly are void. Contracts, in which the public are interested, which tend to prevent the competition required by some statute or rule of law, or to create monopoly, are void.</p> <p>2. Ordinances—an ordinance creating monopoly or preventing competition'is void. An ordinance making the use of a certain article within the control of a single person or corporation indispensable in the construction of an improvement to be let to the lowest responsible bidder, is void, as creating a monopoly in favor of such person or corporation, and as preventing competition by limiting the bidders to those persons able to make the most advantageous terms with the favored person or corporation.</p> <p>3. Evidence—evidence is admissible to show that ordinance will tend to create monopoly or prevent competition. Where an ordinance for a pavement to be constructed by the lowest responsible bidder requires the cement to be made from asphaltum “obtained from Pitch Lake, in the island of Trinidad,” evidence that such lake is owned by a single corporation engaged in manufacturing cement, and that the asphaltum from such lake is not superior to that used by competing cement manufacturers, may be introduced to show the ordinance tends to prevent competition and create monopoly.</p> <p>4. Municipal corporations—city council may make some particular material the standard of quality. A city council may determine that some particular material within the control of a single person or corporation is best adapted for use in the construction of an improvement, but the ordinance should be so framed as to make such material the standard of quality and fitness, and to require the material furnished for the work to be equal to that standard.</p>

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

<p>1. Appeals and errors—Appellate Court's affirmance settles questions of negligence and due care. A judgment of the Appellate Court affirming a judgment against a railroad company in an action for personal injuries, conclusively settles the questions of the defendant’s negligence and the plaintiff’s exercise of due care.</p> <p>2. Same—/udgment will not be reversed if declaration contains one good count applicable to evidence. A judgment will not be reversed for alleged failure of the evidence to sustain certain counts, if there is one good count in the declaration to which the evidence applies.</p> <p>3. Pleading—ichen allegation of negligence is sufficiently specific. An allegation of negligence in a declaration against a railroad company that “the defendant, by its said servants, so carelessly and improperly drove and managed the said locomotive and train that by and through the negligence and improper conduct of the defendant, by its said servants in that behalf, the said locomotive engine and train ran into and struck against the plaintiff,” is sufficiently specific, after verdict, to support judgment for plaintiff.</p>

<p>1. Injunction—injunction will not lie to adjust rights to water power not established by law. Equity will not interfere by injunction to settle the respective rights of parties to the use of'water power, unless such rights have been definitely established at law.</p> <p>2. Same—when equity will not enjoin use of water power nights and on Sundays. Equity will not enjoin one of the parties entitled to water power from running his plant nights and Sundays, upon the ground that because the water was not allowed to accumulate at such times the other parties entitled to use the same dam were unable to obtain sufficient water to run their plants, where nothing appears to show that the rights of the respective parties had been established at law, and that the defendant was taking more water than he was entitled to use.</p>

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

O. H. Horton, Judge, presiding. This was a bill in chancery filed on the 20th day of April, 1895, by the appellee Philip Geuder, as executor of the last will and testament of Johann Geuder, deceased, and Edward S. Dreyer, trustee, against Gay Dorn, the appellant, and his wife and others, for the foreclosure of a certain trust deed.

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

<p>Estoppel—when owner is estopped to question description of property. The owner of a block who, in deeds to part of the lots, describes them as being in a certain subdivision, and who has paid the taxes for years by the same description, is estopped to question such description in a special assessment roll, though the original plat was never recorded and the recorded plat thereof was made by the owners of the remainder of the tract after he had purchased the block, who included the same in their plat without his authority.</p>

<p>- Special assessments—what not a valid objection on application for judgment of sale. A mere inaccuracy in an ordinance in the description of one of the termini of the improvement, which may be cured by reference to the plat of the improvement attached to the petition for confirmation, is-not a valid objection on application for judgment of sale for the unpaid assessment.</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 was an action of trespass on the case, brought by Marie M. Fenton, against Cyrus M. Hawley. The defendant was duly served with summons, but before the cause was reached for trial the plaintiff and defendant died. The appellant was duly appointed executor of the estate of Cyrus M. Hawley, and appellee was made executor of the estate of Marie M. Fenton.

<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>Appellant sued in chancery, in the circuit court of Cook county, to enjoin appellee from operating its cars over certain crossings of its tracks, and to prevent appellee from constructing any further or other crossings over its tracks. The circuit court sustained a general demurrer to the bill and dismissed it for want of equity, at the complainant’s cost. The Appellate Court having affirmed that order, this appeal is prosecuted.</p> <p>The parties were street railway corporations organized under the Eailroad Corporation act of this State, operating street railways by electricity, using the overhead trolly system, in the south part of the city of Chicago, their lines crossing each other at one or more points. On the first day of December, 1892, they entered into a contract in writing, as follows:</p> <p>“Whereas, the Calumet Electric Street Eailway Company is entitled to cross with a double-track crossing, at grade, the tracks of the South Chicago City Eailway Company at or near the junction of Commercial avenue and South Chicago avenue, and also at Ninety-second street and Harbor avenue; and whereas, the party of the second part desires to construct a loop for the convenience of operation of its road, from its tracks on South Chicago avenue along Ninety-first street and returning on Ninety-third street, and in order to construct said loop as an independent line it would be necessary to cross the tracks of the party of the first part lying on Commercial avenue, at Ninety-first street, and again at Ninety-third street; and whereas, both parties believe that crossings of electric railroad tracks at grade are dangerous to the public traveling on such roads, respectively, as well as inconvenient, expensive and dangerous to the companies operating them, and desiring to avoid any crossings of their roads at grade except those above mentioned, the party of the first part is willing to grant to the party of the second part a right of use, to be exercised jointly with the use by the party of the first part, in the ordinary course of its business, for the purpose of completing and operating its said proposed said loop, the west track, lying on Commercial avenue, between Ninety-first street and South Chicago avenue, upon the considerations, conditions and limitations in said contract stated, and the party of the second part is willing to receive such rights in place and stead of crossings of said tracks, as had been proposed:</p> <p>“Now, therefore, this agreement witnesseth: That upon the conditions and in consideration of the premises, etc., (here follows the grant to the appellee of the right to use appellant’s west track, in common with appellant, on Commercial avenue, between Ninety-first street and South Chicago avenue, with conditions, items, etc., for a period of nineteen years, from the first of January, 1893); and said parties mutually agree to and with each other, and this contract is made upon the express condition, that with the exception of the crossings mentioned in the recitation of the contract, namely, at the junction of Commercial and South Chicago avenues and at the junction of Ninety-second street and Harbor avenue, no other crossings of one of the said railroad companies’ road over the other, or over their joint tracks, shall ever be made, constructed or operated at grade, under any existing ordinance or which may hereafter be granted, without the written consent thereto of the parties to this contract, their successors or assigns.”</p> <p>The bill shows that appellee, after the making of the contract, obtained a license of the city of Chicago to build the necessary connection on Ninety-first street, and thereafter completed the loop, and continued its operation until December 22, 1895; that on November 11, 1895, the city of Chicago, by ordinance, granted the right to appellee, upon complying with certain conditions, to extend its lines over certain streets, and to cross at grade the tracks of appellant previously constructed, in twelve different and distinct places; that on November 22, 1895, appellee abandoned the connection with appellant’s track at the intersection of Ninety-first street and Commercial avenue, and pursuant to the ordinance of November 11, 1895, but contrary to the terms of the contract and under the protest of appellant, .constructed a crossing at grade over the tracks of appellant at the intersection of Ninety-first street and Commercial avenue, and on December 26, 1895, in a similar manner constructed a crossing at grade over appellant’s tracks at the intersection of Ninety-second and Erie avenue; that by means of these crossings and connecting lines appellee constructed a new loop, extending from its main track, at the intersection of South Chicago avenue and Ninety-first street, to Erie avenue, south on Erie avenue to Ninety-third street, and west on Ninety-third street to its main track at about the intersection of South Chicago avenue and Commercial avenue, and ever since has continued to use this loop; that at various other times and places, in a similar manner, pursuant to the ordinance, appellee has constructed other crossings at grade with appellant’s track.</p> <p>The prayer is that the contract between the parties of December 1,1892, be adjudged and decreed in full force and effect, and that the defendant be enjoined from operating its motors and cars over and upon each crossing of the tracks of the complainant described in the bill, except those at the intersections of South Chicago avenue and Commercial avenue and that on Harbor avenue opposite Ninety-second street, and from constructing or putting in any further or other crossings over the tracks as they now exist or may hereafter be constructed by the complainant, without its consent in writing.</p>

<p>1. Special assessments—ordinance need not show that improvement ivill be beneficial. A substantial compliance with the statute requiring the ordinance to specify the nature, character, locality and description of the improvement is sufficient, and it is not necessary to show that the improvement will be beneficial.</p> <p>2. Same —fact that street contains a joy does not make the improvement double. The fact that a street to be improved contains a jog does not constitute each portion of the street a separate street, so as to make the improvement double.</p> <p>3. Same—assessment against property may be set aside by agreement between petitioner and objector. Where the petitioner has become satisfied that particular property is not benefited by the assessment and that the assessment is unjustly spread upon it, it may confess such fact in court, and the court, upon hearing the objections, may set aside the assessment.</p> <p>4. Same—setting aside assessment on property by agreement does not invalidate proceedings. The fact that an assessment against particular property has been set aside by agreement between petitioner and objector does not invalidate the assessment against other property, in the absence of any showing that the property released was in fact benefited, or of collusion between the parties.</p>

. Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding. This case comes to this court on appeal from a decree of the circuit court of Cook county sustaining the demurrer to the amended bill of complaint of appellant, and finding that he was not entitled to the relief prayed for.

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

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

<p>Appeals and errors—when appeal from decree requiring conveyance of land lies to Appellate Court. An appeal from a decree requiring specific performance of a contract to convey land upon payment of the amount due, lies to the Appellate Court, where the making of the contract and the right to conveyance are conceded, the only objection being that the decree finds a wrong amount due.</p>

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

Abner Smith, Judge, presiding. This is an action by Euth E. Shreve to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the North Chicago Street Eailroad Company.

<p>1. Charities—gift to charity will stand though manner of managing gift fails. A gift to charity will not be allowed to fail for uncertainty as to the persons who are to take, or because the manner of managing the gift cannot be carried into exact execution, as, in such case, equity will sustain the gift and execute it, as nearly as possible on the original plan, by applying the doctrine of cy pres.</p> <p>2. Same—equity will not allow gift to charity'to fail for want of trustee. Equity will not allow a valid gift to charity to fail because of the testator’s failure to appoint a trustee, but will appoint trustees to take charge of the fund and manage the gift.</p> <p>3. Same—testator's intention to favor charity must prevail though fund could be more,judiciously applied. The testator’s intention -in making a primary gift to charity must prevail if it can be given effect, although the fund might be more efficiently or judiciously administered by applying it to a secondary bequest to charity, made by the testator in case of the failure of the primary gift.</p> <p>4. Same—bequest to charity sustained. A primary gift in trust, to accumulate to a certain amount, a portion of the fund to be then applied to the erection of a school building, if the city where the testator had lived would donate a suitable lot, for the purpose of educating poor boys, the balance of the fund to be invested and the income used to pay teachers employed, is a charitable bequest, and not void for uncertainty of beneficiaries, or for incomplete directions for maintaining the school and for future control of the fund.</p> <p>5. Wills—language of will construed as contemplating succession of trustees. The expressions, “I hereby will and devise to my executors all the remainder of my property, to be held by them as trustees, for the purpose of carrying out the full terms of this my last will and testament,” and, “I further direct that my trustees, and their successors, manage my estate,” etc., used by a testator, indicate his contemplation of a succession of trustees to carry out the will.</p> <p>6. Same—when bequest will not be held inoperative as requiring action by city beyond its power. A charitable bequest for the erection of a school building upon a lot to be donated by a city will not be held inoperative because of the city’s alleged lack of power to make the donation, where it appears from the bill to annul the bequest that the lot had been duly donated, and nothing appears to show that the city had exceeded its powers.</p>

<p>1. Special taxation—amendment of 1895 controls pending proceedings to confirm a special tax. Proceedings for the confirmation of a special tax, had after the passage of the amendment of 1895 to section 17 of article 9 of the City and Village act, (Laws of 1895, p. 100,) are controlled thereby, as respects the consideration of special benefits, notwithstanding all proceedings preliminary to the confirmation were had before the amendment was passed.</p> <p>2. Same—a “special benefit” is an increase in market value occasioned by the improvement. “Special benefits,” as used in the amendment of 1895 to section 17 of article 9 of the City and Village act, which provides that special taxes shall not exceed special benefits, means an increase in market value of the property taxed, occasioned by the construction of the improvement.</p> <p>3. Same—verdict of a jury as to benefits is not disturbed unless clearly against et:idence. A verdict finding that a special tax against property was not in excess of benefits will not be disturbed on appeal, where the evidence is conflicting, but is such as authorizes the jury to find the verdict returned.</p>

<p>1. The point that the description of the assessed property is defective is decided adversely to the objector upon the authority of Harts v. People ex rel. (ante, p. 373.)</p> <p>2. Special assessments—when ordinance mil not be held void, as providing for general improvement. An ordinance for constructing, by special assessment, a water-works system, including structures connected therewith, which are general improvements, will not be held void, on application for judgment of sale, as being for a general improvement, where the ordinance provides that “certain portions” shall be paid by special assessment, and the estimate of the commissioners shows that only such portions as were local were included. (O’Neil v. People, 166 Ill. 561, followed.)</p> <p>3. Appeals and errors—when trial court’s exclusion of evidence will be presumed correct. In the absence from the bill of exceptions of evidence excluded by the court at trial, it must be presumed, on appeal, that such evidence was properly excluded.</p>

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

Writ op Error to the Circuit Court of Douglas county; the Hon. W. Gr. Cochrane, Judge, presiding. At the April term, 1897, of the Douglas county circuit court the plaintiff in error was indicted for the murder of one Winfield Scott Swartz, alias Winfield Scott DeNune, and at the October term of said court he was tried and convicted, the jury fixing his punishment at twenty-five years in the penitentiary.

Writ oe Error to 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.

Thomas F. Tipton, Judge, presiding. The board of education of Kickapoo Union School District No. 22, etc., filed its bill in chancery alleging that it entered into a written contract with one H. A. Brown for the erection of a school house for said district, at the price of $4398, payable in five installments. A copy of the contract was filed with the bill.

<p>Writ op Error to the Circuit Court of Monroe county; the Hon. B. R Burroughs, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. O. P. Thompson, Judge, presiding.</p>

<p>Appeal from the County Court of McLean county; the Hon. Holland A. Russell, 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. Elbridge Hanecy, Judge, presiding.</p>

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

<p>Appeal from the County Court of Lee county; the Hon. R) S. Farrand, 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. Frank Baker, Judge, presiding.

<p>1. Banks—drawer cannot stop payment of check in hands of bona fide holder. The drawer of a check cannot stop payment thereof after it has passed into the hands of a bona fide holder.</p> <p>2. Same—bank cannot refuse payment of check to bona fide holder if drawer’s deposit is sufficient. Upon presentment of a check by a bona fide holder for value, the amount called for by the check is thereby absolutely appropriated to the holder if the drawer’s deposit is sufficient, and the bank cannot refuse payment, notwithstanding the drawer’s orders to the contrary.</p> <p>3. Same—bank having fu/nds is liable to holder of check on refusing payment. A bank having sufficient funds of the drawer on deposit is liable to a bona fide holder for value, upon its refusal to pay a duly presented check.</p> <p>4. Same—effect of private arrangement that new deposit shall not be applied to old checks. An arrangement between a depositor and his bank that his new deposits shall not be applied to the payment of checks previously drawn, does not authorize the bank to refuse payment of such checks upon presentment, if the amount of the drawer’s old and new deposits are together sufficient to pay them.</p> <p>5. Same—depositor may draw check in reasonable expectation of having funds to meet it. A depositor may draw a check in the reasonable expectation that he will have sufficient funds to meet it when presented, and the fact that Ms deposit is not sufficient when the check is drawn does not affect the holder’s right to payment on presentment, if the drawer’s deposit is then sufficient.</p>

<p>Appeals and errors—when appeal does not involve a constitutional question. An appeal calling for the construction of statutes enacted to give effect to a constitutional provision does not involve a constitutional question, where the validity of the statutes is admitted, and no claim is made that the adoption of any particular construction of the constitutional provision will affect the decision of the questions raised.</p>

<p>Writ op Error to the Circuit Court of Knox county; the Hon. G. W. Thompson, Judge, presiding.</p>

<p>Appeal from the County Court of Will county; the Hon. A. O. Marshall, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Logan county; the Hon. George W. Herdman, 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 Whiteside county; the Hon. J. C. G-arver, Judge, presiding.

<p>1. Pleading—•when defense of Statute of Frauds may be raised by demurrer. Where a bill for specific performance of an agreement to convey land shows affirmatively that part of the contract rests in parol, the defense of the Statute of Frauds may be raised by demurrer.</p> <p>2. Same—on demurrer, whether facts alleged show sufficient part performance is for the court. Where a bill states facts relied upon as part performance, for the purpose of taking an oral agreement out of the Statute of Frauds, upon demurrer admitting such facts the court must determine whether the facts relied upon do constitute a sufficient part performance.</p> <p>3. Statute op Frauds—Statute of Frauds cannot be invoiced to perpetrate a fraud. One who induces another not to assert, at law, his rights in certain property in which both are interested, by promising that if allowed to purchase the entire property at the partition sale he would make a deed to the premises for his portion of the property, and who permits the promisee to take possession of that portion and pay the taxes and assessments thereon, is estopped to invoke the Statute of Frauds as a defense to the promisee’s bill for specific; performance.</p>

<p>1. Revenue—statute imposes absolute duty on county board to review assessments of property. Under section 97 of the Revenue act (Rev. Stat. 1874, p. 873,) an absolute duty is imposed upon the county board to entertain, consider and determine the applications of parties feeling themselves aggrieved by reason of the assessor’s alleged over-valuation of their property.</p> <p>2. Mandamus—mandamus lies to compel county board to review assessments. Mandamus will lie to compel the county board to perform the duty imposed upon it by statute to hear and determine complaints of alleged over-valuation of property by the assessor.</p> <p>3. Injunction—tax cannot be enjoined because county board refused to review assessment. One who fails to apply for mandamus on refusal of the county board to consider his grievance as to an alleged overvaluation of his property by the assessor, cannot, in the absence of fraud, accident or mistake, enjoin the collection of the tax.</p>

<p>Specific performance—when equity will specifically enforce oral contract to convey land—Statute of Frauds. An oral agreement between parent and child, whereby the former agrees to convey land to the latter if he will take possession of, reside upon and improve the same, will be specifically enforced in equity when the child has fully performed his part of the agreement, as such.part performance takes the contract out of the Statute of Frauds.</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. Faelin Q. Ball, Judge, presiding.</p>

<p>1. Equity—bill in aid of execution may be filed as soon as complainant obtains judgment. A bill to remove an alleged fraudulent conveyance out of the way of an execution may be filed as soon as the complainant obtains judgment, and before he has attempted to satisfy it out of the defendant’s other property.</p> <p>2. Same —proof of defendant's insolvency is not necessary to equitable jurisdiction in aid of execution. Proof of the defendant’s insolvency is not necessary to give a court of equity jurisdiction to remove an alleged fraudulent conveyance out of the way of an execution.</p> <p>3. Fraud—statutory provisions concerning conveyances in fraud of creditors. Under sections 4 and 5 of the Conveyance act (Rev. Stat. 1874, p. 540,) every gift, grant, conveyance, etc., of or charge upon property, made with intent to disturb, hinder, delay or defraud creditors or other persons, is void as against such creditors, purchasers or other persons; but the title of a purchaser for value is not affected, in the absence of notice of the fraud.</p> <p>4. Same—modes of ascertaining fraudulent intent in the conveyance of property. Intent to defraud creditors by the conveyance of property may be ascertained by inferen.ee, from circumstances, as a conclusive presumption of law, or as a prima facie presumption of law, or as an argumentative conclusion of fact, according to the facts and circumstances in each case.</p> <p>5. Same—when conveyance is for valuable consideration, proof of fraudulent intent must be clear. Where a conveyance alleged to be in fraud of creditors is made for a valuable consideration, the fraudulent intent must be proved by evidence sufficient to establish the fact without the aid of legal presumptions.</p> <p>6. Same—when conveyance is voluntary, fraudulent intent may be inferred. Where a conveyance alleged to be in fraud of creditors is voluntary, the fraudulent intent may be inferred from proof of circumstances, such as the grantor’s insolvency, great indebtedness, or the like; but it is not necessary to show complete insolvency.</p> <p>7. Evidence—what sufficient to show valuable consideration. Uncontradicted evidence that a married woman conveyed her separate property to her son at a reasonable price; that the son paid part cash, assumed a mortgage and gave his note for the balance of the purchase price, which was afterward sold for nearly its face value, and that he paid the interest and part of the principal on the mortgage indebtedness, is sufficient to show valuable consideration.</p> <p>8. Same—when verbal admissions are not controlling. Alleged verbal admissions of a party that he did not own the farm upon which he resided are entitled to little weight, where, at the time they were made, the party had in his possession a deed to the property,—• particularly where the party seeking advantage from them seeks to connect the party making them with an alleged conspiracy to defraud the grantor’s creditors by conveying the farm.</p> <p>9. Conveyances—when conveyance from mother to son will not be set aside. A conveyance of her separate property by a woman to her son, for a valuable consideration, about a month prior to the failure in business of her husband, on whose note the mother was surety, will not be set aside in equity in aid of an execution issued on a judgment on such note, in the absence of proof of the wife’s fraudulent intent, or of the son’s knowledge either of such intent or of the business relations of his father and mother.</p> <p>10. Husband and wife—mere fact of wife’s loaning money to husband is not sufficient as against creditors. A wife may loan her separate property to her husband and take security which will be binding against creditors; but the mere fact of her letting him have money is not sufficient, where no contractual relation is shown.</p> <p>11. Same—as against creditors, mere delivery of money by wife to husband does not imply a promise to repay. x As against creditors the law does not imply, from the mere delivery of money by the wife to the husband, a promise of repayment, but requires either proof of an express promise or of circumstances showing that they dealt with each other as debtor and creditor.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding. This is a writ of error to reverse a judgment of the Appellate Court affirming a decree of the Superior Court of Cook county in a proceeding brought by defendants in error, Milton B. and Carl C. Bushnell, against plaintiff in error, Otto E. Weber, to enforce a mechanic’s lien.

<p>1. Bailments—in bailments for mutual benefit baileeis not an insurer. In bailments for mutual benefit the bailee is bound to use but ordinary care, and if the thing bailed is lost or destroyed without his fault the loss must fall on the owner.</p> <p>2. Same—illustration of bailment for mutual benefit. Amalting company which contracts to receive barley from a brewing company and malt the same for a certain price per bushel, delivered at the brewery, is a bailee for hire, and not an insurer of the barley while in its possession.</p> <p>3. Same—fact that bailee agreeg “to deliver” the article does not make him an insurer. An agreement between a brewing company and a malting company, whereby the -latter agrees to receive barley at any railroad in the city, haul it to its malting works, malt it and “deliver it” at the brewery, does not bind the malting company to assume all risks of inevitable accident to or destruction of the property while in its care.</p> <p>4. Appeals and errors—party trying case on one theory cannot substitute another on appeal. One suing a bailee for damages for the destruction of the article bailed, who tries the case and frames his instructions on the theory that under the contract the bailee was liable only for negligence, cannot, on appeal, question the soundness of his own construction of the contract, by attempting to hold the bailee liable as insurer.</p>

<p>Appeal from the Circuit Court of Greene county; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of DuPage county; the Hon. G. W. Upton, Judge, presiding.</p>

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

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

<p>1. Equity—equity will not suffer a right to be without remedy. Equity will take jurisdiction in all cases where a right recognized by municipal law exists, for the protection and maintenance of which courts of law provide no adequate remedy.</p> <p>2. Same—rights for which equity will provide a remedy must be recognized by municipal law. Those rights for the protection and maintenance of which equity will provide a remedy are not mere abstract moral rights, but rights recognized by existing municipal law.</p> <p>3. Same—;jurisdiction of equity to grant relief does not depend upon precedent. Where a right recognized by municipal law exists without adequate remedy in courts of law, equity will not refuse relief because no precedent can be found where equitable relief was granted under the same state of facts.</p> <p>4. Same—power of equity to order sale of trust estate conditioned against alienation. A court of equity having jurisdiction of a cause cannot be denied the power to order the sale of real estate which is the subject of a trust, upon the sole ground that the terms of the instrument creating the trust prohibit alienation; but such power should be exercised only when necessary to preserve the estate or the interests of the parties therein.</p> <p>5. Same—when equity may order sale of real estate, and re-investment, to protect rights of owners. Upon a bill by a life tenant equity may appoint trustees to take the fee in the property, sell the same and re-invest the proceeds for the benefit of the life tenant and the remainder man, where it appears that unless equity interferes the property will be lost to both life tenant and remainder-man.</p> <p>6. Parties—when decree will be binding upon parties not in being. Where devised property will be lost to the devisees without the aid of a court of equity, that court, having obtained jurisdiction of all devisees in being, may render a decree which will protect the rights of all the devisees, whether in being or unborn, and such decree will be binding upon devisees subsequently born.</p>