Volume 173 — Illinois Reports

<p>1. Statutes—all matters are properly included in act which are germane to its title. The constitutional provision requiring the subject of an act to be embraced in its title is complied with if all the provisions relate to one subject indicated in the title, and are parts thereof or incident thereto or reasonably connected therewith, or in some reasonable sense auxiliary to the object in view.</p> <p>2. Same—title of act need not he an index to its details. It is not necessary that the subject of an act shall be exactly expressed in the title, or that such title should be an index to the details of the act.</p> <p>3. Same—in construing act the courts may consider the mischief it was designed to remedy. In order to ascertain the true spirit and intent of an act the courts may consider the mischief such act was designed to remedy.</p> <p>4. Indictment—when allegation of time and place is sufficient. An indictment alleging that the defendant, on a certain day, in the particular county and State, unlawfully and willfully did, in a certain room, keep a certain slot machine, etc., is sufficient in its allegation of time and place without the use of the words “then and there,” preceding the word “keep.”</p> <p>5. Same—indictment charging offense in statutory language is sufficient. An indictment charging that the defendant did “keep a certain slot machine, the same then and there being a device upon the result of the action of which money or other valuable thing is staked,” is sufficient, being in the language of the statute.</p> <p>6. Constitutional law—'“Slot Machine” act of 1895 is constitutional. The act of 1895, to prohibit the use of clock, tape, slot or other machines or devices for gambling purposes, (Laws of 1895, p. 156,) is not unconstitutional on the ground that the subject of the act is not expressed in its title.</p> <p>7. Criminal law—mere keeping of slot machine is a violation of the statute. The keeping of a slot or other machine specified in the act of 1895 as a gambling device is a criminal offense, whether the machine is actually used or kept for gambling purposes or not.</p> <p>8. Same—purpose of act of 1895 is to altogether suppress the specified gambling devices. The purpose of the act of 1895 is not only to prohibit the use of slot or other machines specified in the act as gambling devices, but to altogether suppress such devices, even by their destruction, as shown by section 2.</p> <p>9. Evidence—evidence that machine was used for gambling is admissible. Where a party is indicted for “keeping” a gambling device, evidence is admissible that the machine was actually used by the defendant for gambling purposes, if merely to show that the machine was a gambling device.</p>

<p>Writ oe Error to the County Court of Coles county; the Hon. S. S. Anderson, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Williamson county; the Hon. Oliver A. Harker, Judge, presiding.</p> <p>This was an indictment returned by the grand jury at the November term, 1895, of the circuit court of Massac county, against the defendants below, under the act of 1879, for the protection of bank depositors. Defendants gave bail at the November term, and the cause was continued. At the April term of the Massac circuit court the defendants entered their motion before Hon. A. K. Vickers, presiding judge, to quash the indictment, which motion was by said judge overruled. The defendants then entered a plea of not guilty, and subsequently the venue was, on petition, changed from Massac to Williamson county, in the circuit court of which latter county the case was at the May term, 1897, tried on the merits before Hon. Oliver A. Harker and a jury, resulting in the conviction of said defendants, who thereupon sued out this writ of error.</p>

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

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

<p>1. Special assessments—effect of amendment of 1885 to section 35 of article 9 of City and Village act. The amendment of section 35 of article 9 of the City and Village act, (Laws of 1885, p. 63,) by which the clerk certifies the roll and judgment and issues the collection warrant directly to the collector, instead of to the city clerk, as formerly, repeals by implication that part of section 36 requiring the warrant to contain a copy of the judgment and roll.</p> <p>2. Same—it is sufficient if a certified copy of judgment and roll is attached to warrant. The provisions of section 36 of article 9 of the City and Village act, which require that the warrant for the collection of a special assessment shall contain a copy of the clerk’s certificate of the judgment describing the property assessed, etc., are sufficiently complied with if the copy of the assessment roll and judgment, and the clerk’s certificate, are attached to the warrant.</p> <p>3. Same—clerk may certify part of assessment roll before entire roil is confirmed. Where, for any reason, the entire assessment roll is not confirmed at one time, the clerk of the court may certify to the collector the partnof the roll confirmed, without waiting for the confirmation of the remainder.</p>

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

<p>1. Special assessments—ordinance must be viewed as a whole. A special assessment ordinance must be viewed as a whole, and one part may be referred to for the purpose of explaining another.</p> <p>2. Same—omission in ordinance not fatal if it may be supplied by reasonable intendment. A section of an ordinance providing that a sidewalk be constructed “on both sides of Sixty-fifth......, from,” etc.,</p> <p>is not void for uncertainty where another section requires the sidewalk to be laid to conform to the established grade of “said street,” and the ordinance is entitled “An ordinance for sidewalk on both sides of Sixty-fifth street,” etc.</p> <p>3. Courts—court will take judicial notice of abbreviations used in describing property. A description of property in the commissioners’ estimate of the cost of the improvement as lying in “Sec. 23,38,14,” is not uncertain in that regard, as the courts will take judicial notice that the figures “38” and “14,” as so used, refer, respectively, to township and range.</p> <p>4. Evidence—parol evidence is admissible to explain abbreviations. Where property is described as lying in “Sec. 23, 38,14,” parol evidence is admissible to show that such description has a well-defined meaning among surveyors.</p>

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

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

<p>Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, 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 Barton Payne, Judge, presiding.</p>

<p>1. Pleading—pleading to merits waives right to assign error on overruling of general demurrer. One desiring to have the action of the trial court in overruling his general demurrer reviewed on appeal should abide by his demurrer, as by pleading to the merits he waives the right to assign such overruling as error.</p> <p>2. Same—pleading over does not waive substantial defects in the declaration. One pleading over after the overruling of his demurrer does not waive- such substantial defects in the declaration as would render it insufficient to sustain a judgment, and the question whether such defects exist may be reviewed on appeal. .</p> <p>3. Same—when defects in pleading are cured by verdict. A defect in pleading, in substance or form, which would be fatal on demurrer, is cured by verdict where the issue joined is such as necessarily requires proof of the facts so imperfectly stated or omitted, and without which proof it is not to be presumed that the judge would have directed or the jury have returned the verdict.</p> <p>4. Same—a verdict will not aid a defective cause of action. A verdict-will aid a defective statement of a cause of action, but will not aid a statement of a defective cause of action.</p> <p>5. Same—m action for negligence declaration should aver facts which raise a duty. It is not sufficient that a declaration in an action for negligence alleges it was defendant’s duty to do certain things, but it must state facts from which the law will raise the duty.</p> <p>6. Same—what will not render declaration for negligence insufficient to sustain judgment. The relative rights of carrier and passenger are matters of law, and the fact that the duty alleged in a declaration against a carrier as a conclusion of law does not harmonize with the facts alleged as a breach of the duty doeá not render the declaration insufficient to sustain a judgment, if it avers sufficient facts to raise the duty the breach of which is alleged.</p> <p>7. Same—when declaration is sufficient after verdict. A declaration against a carrier alleging, in substance, that the plaintiff became a passenger, and while attempting to alight at his destination, using due care, the defendant carelessly and negligently caused the train to be violently started, whereby plaintiff was thrown and injured, is sufficient, after verdict, to sustain a judgment.</p> <p>8. Appeals and errors—putting in evidence after refusal of peremptory instruction is a waiver. A defendant who introduces his evidence after the refusal of his peremptory instruction offered at the close of the plaintiffs testimony, and who fails to renew the request for such instruction at the close of all the evidence, can not assign its refusal as error on appeal.</p> <p>9. Variance—objection of variance must be made in trial court. The objection of variance, to be preserved as a question of law for review on appeal, must be raised in the trial court and the variance pointed out, to enable the trial court to pass upon it.</p> <p>30. Same—Supreme Court will not presume that variance was a ground for asking peremptory instruction. Every presumption being in favor of the action of the trial court, the bill of exceptions must show that the question of variance upon which a ruling is asked was presented to the trial court, and the Supreme Court will not presume that the .question was argued in support of a motion to exclude or of an instruction directing a verdict.</p> <p>11. Damages—whether damages allowed are excessive is a question of fact. Whether the damages awarded by a jury in an action at law are excessive is a question of fact conclusively settled by the judgment of the Appellate Court.</p> <p>12. Trial—allowing exhibition of an injury is within the trial court’s discretion. Allowing a personal injury to be exhibited to the jury in an action for damages is primarily within the discretion of the trial court, and the exercise of its discretion in that regard, though it may be questionable, is not ground for reversal unless there has been a clear abuse.</p>

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

<p>1. Taxes —property held by a receiver is subject to taxation. Property held by a receiver is subject to taxation, and the fact that the tax is assessed to the party for whom the receiver holds possession, instead of to the receiver, does not affect its validity.</p> <p>2. Same—tax on property held by receiver is an expense of receivership. A tax on property held by a receiver may properly be regarded as part of the expenses of the receivership, and the court appointing the receiver may allow the amount of such tax and order it paid in full, though the tax is assessed to the party for whom the receiver holds possession, instead of to the receiver.</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, Judge, presiding.

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

<p>1. Special assessments—assessment presumed to have been made under existing statute. An assessment ordinance need not set out the particular statute under which the assessment is to be collected, as it will be presumed that the assessment was made in accordance with any then existing statute which authorized it.</p> <p>2. Same—assessment for drainage under act of 1885 cannot be divided into installments. A special assessment for a drainage improvement constructed under an ordinance passed on the authority of the Drainage act of 1885 (Laws of 1835, p. 60,) cannot legally be divided into installments. (City of Charleston v. Cadle, 166 Ill. 487, followed.)</p>

<p>1. Equity—power to entertain bill to set aside probate of will is wholly statutory. The power of equity to entertain a bill to set aside a will or the probate thereof is derived exclusively from the statute, and the jurisdiction thereby conferred can be exercised only in the manner and under the,limitations prescribed.</p> <p>2. Same—statute fixing time when bill to contest will must be filed is not a limitation law. Section 7 of the act on wills, (Rev. Stat. 1874, p. 1102,) which confers jurisdiction upon courts of equity to entertain a bill to contest a will within three years after probate, is not a limitation law, nor does it create in parties interested a vested right to the full term so fixed, regardless of legislative changes.</p> <p>3. Same—law in force when a bill to contest a will is filed controls as to jurisdiction. The law in force at the time a bill to set aside the probate of a will is filed controls the jurisdiction of the court to entertain the same, and not the law in force when the will was probated.</p> <p>4. Limitations—when change in limitation law is valid. A change in a limitation law which shortens the time within which a remedy may be invoked, is valid, if a reasonable time remains to enable parties having causes of action to invoke the remedy before the expiration of the new limitation.</p>

<p>1. Criminal laav—law changing punishment after commission of an offense is an ex post facto la,w. A law passed after the commission of an offense, which changes the punishment to be inflicted therefor to the prejudice of the accused, is an ex post facto law and invalid as to such offense.</p> <p>2. Same—Indeterminate Sentence law not applicable to previous offenses. The punishment for an offense committed before the Indeterminate Sentence law of 1895 went into effect should be fixed by the verdict of the jury in accordance with the law as it existed at the time the offense was committed, though the trial is had after the new law took effect.</p>

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

<p>Appeal from the Circuit Court of Clark county; the Hon. H. Van Sellar, Judge, presiding.</p>

<p>1. Equity—equity having jurisdiction for one purpose may retain it for all. Where equity has acquired jurisdiction for the purpose of administering equitable relief it may determine all matters at issue, though bj' so doing it may establish purely legal rights and grant legal remedies.</p> <p>2. Same—equity, on reforming bond, may assess damages for its breach. A court of equity having acquired jurisdiction to reform an injunction bond, is not required to remit the parties to their remedy at law for damages, but may incidentally assess such damages as are shown to have resulted from its breach.</p> <p>3. Same—jury trial is not a matter of right in chancery cases. It is discretionary with the chancellor to require issues of fact to be tried by a jury, and even where he submits such issues to a jury he is not bound by the verdict.</p> <p>4. Same—constitutional right of jury trial does not extend to chancery cases. The right of trial by jury guaranteed both by the United States and the Illinois constitutions, does not extend under either to cases in chancery.</p> <p>5. Same—chancellor's assessment of damages for breach of bond does not invade right of jury trial. The assessment of damages for breach of an injunction bond, by the chancellor without calling a jury, is not an invasion of the constitutional right of trial by jury.</p> <p>6. Injunction—failure to assess damages on dissolution is not a bar to recovery on bond. Failure to assess damages on dissolution of an injunction in the manner provided for in section 12 of the Injunction act (Rev. Stat. 1874, p. 580,) does not bar recovery on the bond.</p> <p>7. Same—damages are recoverable on dissolution of injunction. Damages are recoverable on an injunction bond whenever the injunction has been vacated, wholly or in part; and any order of court relieving a part of the subject matter of the injunction from its operation is, as to such part, a dissolution.</p> <p>8. Same—damages may be assessed before injunction suit is finally determined. Where an injunction bond provides for the payment of damages in case of dissolution, upon bill filed to reform the bond after the injunction has been dissolved on motion, equity may assess the damages though the merits of the injunction case have not been finally determined.</p> <p>9. Damages—attorney's fees for procuring dissolution of injunction may be allowed as damages. Attorney’s fees necessarily incurred in dissolving an injunction may be allowed in assessing damages provided for by the injunction bond in case of such dissolution.</p> <p>10. Bonds—stipulation modifying injunction does not release sureties on injunction bond. • The sureties on an injunction bond, in a suit to restrain a sheriff from paying over the proceeds of a sale of property on execution, are not released by a stipulation between the principal obligor and the execution creditors that the sheriff might retain the money until the determination of a motion in the case for the appointment of a receiver.</p>

John Gibbons, Judge, presiding. The original petition was filed herein on September 22, 1892, and was a petition for a mechanic’s lien. It set forth a contract made in 1891 by the appellees with the appellant for furnishing and setting the glass in a building then being constructed by appellant on a certain lot in the city of Chicago, then owned in fee simple by appellant.

Abner Smith, Judge, presiding. This is a bill, filed May 10, 1894, by Adele E. Flint against Jennie F. Winn and others, to foreclose a trust deed, executed by Jennie F. Winn to John J. Knickerbocker, trustee, to secure a note for §10,000.00 upon lots 6,7 and 8 in block 14 in Egandale in Cook county. Certain persons, holding trust deeds and judgments subsequent and subject to the trust deed owned by Adele E. Flint, were made defendants to the foreclosure bill.

Edmund W. Burke, Judge, presiding. This is an action on the case, brought by the appellee against the appellant company to recover damages for injuries received by him on December 11, 1894. The appellant company had a double-track line of railroad, running north and south along what is known as Stewart avenue in Chicago, and across Archer avenue and Twenty-second street in that city.

Charles H. Donnelly, Judge, presiding. This is an appeal from a judgment of the county court, allowing a claim of $3272.00 against the assets in the hands of William Spinks, assignee of Clyde D. Armstrong in a voluntary assignment proceeding. The judgment of the county court has been affirmed by the Appellate Court, where it was taken by writ of error. The present appeal is prosecuted from such judgment of affirmance, entered by the Appellate Court.

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. Richard S. Tuthill, Judge, presiding. This was an action brought by John Gall, against Augustus C. Beckstein, to recover for an injury received while in the service of the defendant in unloading a truck-load of salt.

<p>Appeal from the Circuit Court of Madison county; the Hon. M. W. Shaefer, Judge, presiding.</p>

E. F. Dunne, Judge, presiding. This was a bill in chancery exhibited by the appellees in the circuit court of Cook county, against the appellant.

<p>1. Pleading—motion to dissolve injunction for insufficiency of bill is, in effect, a demurrer. A motion to dissolve a temporary injunction, based solely upon the alleged insufficiency of the allegations of the bill, is properly treated as a demurrer.</p> <p>2. Parties—a city is a necessary party to a bill to enjoin sale for its delinquent assessment. A city is a necessary party to a bill to enjoin the county collector from selling property for a delinquent special assessment levied by such city, where the bill does not challenge the regularity of the judgment nor the legality of any act of the collector nor Ms omission of any duty, but only the right of the city to recover the assessment.</p> <p>3. Same—necessary parties must be brought in before proceeding to final decree. Where the issues raised by a demurrer to a bill for an injunction cannot be finally determined without materially affecting the rights of an individual or corporation not a party to the proceeding, such individual or corporation must be brought in as a party before proceeding to final decree.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>1. Corporations—president presumed authorized to consent to sale of mortgaged properly by owner. The consent of the president of a corporation to the sale, by the owner, of property upon which the corporation holds a chattel mortgage, is such an act as will be presumed, in the absence of contrary proof, to have been authorized by the corporation.</p> <p>2. Mortgages—assignee of chattel mortgage takes subject to existing equities. The assignee of a chattel mortgage takes it subject to any defenses which might then be successfully interposed against his assignor.</p> <p>3. Same—section 7 of Chattel Mortgage act construed. Section 7 of the act on chattel mortgages, (Rev. Stat. 1874, p. 712,) which declares the sale of mortgaged chattels by the mortgagor without the mortgagee’s written consent to be a misdemeanor, does not contemplate the punishment of the party purchasing the property from the mortgagor.</p> <p>4. Samis—purchaser is protected by mortgagee’s verbal consent to sale. A sale of mortgaged chattels by the mortgagor in accordance with the verbal consent of the original mortgagee while the owner of the mortgage, does not authorize an assignee of the mortgage to exercise an option given therein to declare the mortgage debt due, and take possession of the property in case of such sale.</p> <p>5. Evidence—admissions against interest by assignor of mortgage are competent against assignee. The admissions of an assignor of a chattel mortgage against his own interest, made before he assigned the instrument, are admissible against his assignee.</p> <p>6. Same—purchaser of mortgaged chattels may shoio verbal consent to sale. The purchaser of mortgaged chattels, on bringing replevin against the assignee of the mortgage, who took possession of the property claiming a breach by reason of the sale, may show that the original mortgagee, before he assigned the mortgage, gave his verbal consent to the sale.</p>

<p>1. Instructions—duty of the court to harmonize instructions. It is the duty of the court to harmonize instructions, so that they will present the legal questions in a consistent and intelligible manner.</p> <p>2. Appeals and errors—when failure to harmonize instnictions is not ground for reversal. . The failure of the court to harmonize instructions is not ground for reversal, if, upon examination of all the instructions, it appears the jury could not have been misled.</p> <p>3. Negligence—liability for overflow on changing bed of stream. One who changes the bed of a stream by making a new channel, discharges his duty to parties living near the stream if the new channel is as efficient in carrying off the water as the old, and he is not liable for damages from an overflow in time of flood which would have been the same had the channel not been changed.</p> <p>4. Same—whether damage from overflow was caused by defendant’s negligence is a question of fact. In an action for damages to plaintiff’s property from an overflow alleged to have resulted from defendant’s changing the channel of the stream, the question whether the new channel was as efficient as the old for carrying off the water is a question of fact finally settled in the Appellate Court.</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. Philip Stein, Judge, presiding.</p>

<p>1. Trusts—trustees under wills were not entitled to compensation prior to act of 1891. Prior to the act of 1891 (Laws of 1891, p. 216,) a trustee appointed by will was not entitled to compensation for his services in the absence of any provision in the will authorizing the same.</p> <p>2. Same—right of trustees under will to compensation under act of 1891. The act of 1891, (Laws of 1891, p. 216,) providing for a reasonable compensation to trustees who “shall hereafter act under any power or appointment” by will, is not limited to trusts created after its passage, but applies where trustees continue to act under trusts previously created, as the relation of trustee and cestui que trust involves no obligation of contract which the legislature would be powerless to impair.</p> <p>3. Same—effect where a trustee has received compensation as executor. The fact that a trustee appointed by will has received compensation as executor or administrator does not deprive him of his right to compensation as trustee, provided the duties are separate.</p> <p>4. Wills—meaning of word “issue” depends upon the testator’s intentions. Whether the word “issue” shall be. construed as meaning lineal descendants indefinitely, or merely children, depends upon the intention of the testator, as indicated by the context in which the word occurs or by the language of the entire will.</p> <p>5. Same—when the word “issue” will be construed as synonymous with “children.” The word “issue,” as used in a will, will be construed as synonymous with “children” where, from all the language used, such appears to have been the intention of the testator.</p> <p>6. Same—word “issue," to include grandchildren, must not be qualified. It is only when the word “issue” is not qualified or otherwise explained in any portion of the will that it will be construed to include grandchildren as well as children.</p> <p>7. Same—word “children" denotes immediate offspring. The word “children,” in its ordinary significance, denotes immediate offspring, and will not be construed to mean grandchildren unless a strong case of intention or necessary implication requires it.</p> <p>8. Same—when words of survivorship relate to testator's death. Where a will, after devising a remainder to specific persons and not to a class, provides that in case of the death of one of them leaving no issue the share of such one shall be divided equally among those surviving, the words of survivorship relate to the time of the testator’s death, and not to the termination of the intermediate estate.</p> <p>9. Costs—costs of litigation in construing ambiguous will—fee of guardian ad litem included. Where the testator’s language is sufficiently ambiguous to justify an application to equity for a construction of the will, the costs of the litigation must be borne by the estate, and the fee of a guardian ad litem for a minor beneficiary should be included, and not taxed against the fund from which the minor’s share is to come.</p>

<p>1. Taxes—in construing statutes exempting property from taxation all reasonable intendments are indulged in favor of the State. Property will not be held to be exempt from taxation'unless it clearly appears to have been included in the exemptions provided by law, and in construing exemption statutes all reasonable intendments will be indulged in favor of the State.</p> <p>2. Same—strict rule of construction of tax exemption statutes applies to municipal corporations. The rule requiring strict construction of statutes exempting from taxation property belonging to private corporations or individuals applies also to municipal corporations.</p> <p>3. Same—mere fact of municipal ownership of property does not exempt it from taxation. The mere municipal ownership of property is not sufficient to exempt it from taxation, the fact of its exemption depending upon whether it comes within the provisions of the statute enacted for that purpose, in conformity to the constitution.</p> <p>4. Same—it is the policy of Illinois to restrict tax exemptions. It is the public policy of the State of Illinois to restrict, rather than extend, exemptions from taxation, “so that every person and corporation shall pay a tax in proportion to the value of his, her or its property,” as required by the constitution.</p> <p>5. Same—construction of words “public grounds,” used in section 2 of Revenue act. The words “public grounds,” used in clause 9 of section 2 of the Revenue act, (Rev. Stat. 1874, p. 857,) by which such grounds are exempted from taxation, refer solely to grounds which are open for the designated use of the general public.</p> <p>6. Same—Zands belonging to the Sanitary District of Chicago are not “public grounds.” Lands belonging to the Sanitary District of Chicago are not such “public grounds,” within the meaning of clause 9 of section 2 of the Revenue act, as are entitled to exemption from taxation.</p> <p>7. Same—lands of Sanitary District are not exempt from taxation as State property. Lands belonging to the Sanitary District of Chicago are not exempt from taxation under clause 5 of section 2 of the Revenue act, which provides for the exemption of “all property of every kind belonging to the State of Illinois,” as the district is not such an agency of the State that its property may be regarded as State property.</p>

John Barton Payne, Judge, presiding. This is a suit in attachment, begun by the appellants, composing the firm of Shannon Bros. & Co., against one Edwin Strevell, a resident of Iowa, on August 5, 1889. The affidavit for attachment was made by Elmer J. Chamberlin,- as agent of Shannon Bros. & Co. The indebtedness of Strevell was upon a note, dated June 15, 1888.

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

<p>Original petition for writ of prohibition.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.</p> <p>One Thomas Ronan in 1865 became the owner of the west half of lot 10, block 4, in school section addition to the city of Chicago, and resided thereon from thence forward until his death, which occurred in 1888. On the 25th day of April, 1882, said Ronan conveyed said property to one Thomas Carbine. Carbine did not receive possession of the property, and on the next day after receiving the deed therefor conveyed it to the appellee, his daughter. Two days thereafter Mary Ronan, a daughter of the said Thomas Ronan, filed a petition in the county court of Cook county, alleging the said Thomas Ronan was, and for a period of more than two years prior thereto had been, a confirmed drunkard, and was, and for that period had been, by reason of said drunkenness, and unsoundness of mind thereby produced, incapable of managing or caring for his estate, and praying- the petitioner might be appointed conservator for her said father. Such proceedings were had in the said county court as that the said Thomas Ronan was declared an habitual drunkard and incapable of managing his estate, and the said Mary was appointed his conservator and received letters empowering her to act in that capacity.</p> <p>On the 2d day of June, 1882, the said Mary, as such conservator of her said father, filed a bill in chancery in the circuit court of said county against the said Thomas Carbine and the appellee, the prayer whereof was the said deed to Carbine, and from Carbine to the appellee, should be set aside and vacated. At the December term, 1882, a decree was entered in the cause, which recited that the court had jurisdiction over the said defendant, Carbine, by personal service of summons, and that appellee, Bluhm, was a non-resident of the State of Illinois and had been duly and legally notified of the proceedings by publication, as provided, by statute, and that neither came, either by plea or answer, and adjudged both to be in default and be deemed to have confessed the bill, and directed that the cause be referred to Henry Walker, master in chancery, to take and report the proof. Proofs were taken and reported by the master, and on the 12th day of January, 1883, a decree was entered finding that the allegations of the bill were supported by the proofs, and that complainant was entitled to the relief prayed; that the deeds from Ronan to Carbine, and from Carbine to the appellee, were null and void, and ordering appellee, Bluhm, to reconvey the premises to the said Thomas Ronan within a specified time, and that the master should convey in case of-her failure. In pursuance of this decree, and the failure of the appellee, Bluhm, to convey, the master, Henry Walker, executed a deed conveying the property to the said Thomas Ronan. Afterwards said Carbine entered a motion to set aside the default as to him, but the motion was overruled. Within a few days thereafter appellee, Bluhm, appeared in said court and filed her petition under the provisions of section 19, chapter 22, of the Revised Statutes, entitled “Chancery,’-’ to be allowed to file her answer to the said bill and be heard touching the matters of the decree entered against her. The prayer of the petition was granted, and the said appellee, Bluhm, given leave to file an answer within twenty days from the 21st day of May, 1883, but it does not appear from the record whether she filed an answér. No further proceedings were had in the matter until the 22d day of June, 1886, at which time, on the motion of the appellee, an order was entered that the suit should be dismissed for want of prosecution, but the order was vacated at the same term of the court.</p> <p>On the 21th day of February, 1888, said Thomas Ronan died, leaving- three children, viz., Mary, (now Mary Cron,) Annie, the appellant herein, and Michael Ronan, an insane son, who was at the time of the death of his father confined in the insane hospital at Kankakee. The death of Thomas Ronan was suggested to the court, but no steps were taken to make his heirs parties to the proceeding.</p> <p>On the 6th day of July, 1892, on motion of the appellee, an order was entered that the suit be dismissed for want of prosecution. On the 2d day of August, 1893, the appellant, Annie Ronan, and the said Mary Cron, (formerly Ronan,) and Michael Ronan, (the latter being insane, and appearing by Annie Ronan, his next friend,) filed a bill in chancery against the appellee, Bluhm. The bill set out the death of the said Thomas Ronan; that complainants were Ms only lieirs, and recited the legal proceedings hereinbefore mentioned, and prayed that the order of dismissal entered as aforesaid should be opened and the complainants allowed to take the place of the said conservator, and that the said appellee, Bluhm, should be ordered to answer the bill in accordance with the leave granted to her upon her petition, and that in default of such answer the former decree ag'ainst her should be in all things confirmed. It was also alleged in the bill that the bill on which said decree ag’ainst Carbine and appellee was entered, alleged that appellee paid nothing to Carbine as consideration for the conveyance to her, and that such deed was made only for the purpose of covering and secreting the interest of Carbine and preventing the conservator of Ronan from recovering such title, and, in effect, that Carbine remained the real owner of the premises, the deed to appellee being only colorable.</p> <p>The appellee appeared and filed a demurrer to the bill, but the demurrer was overruled and leave given her to answer in thirty days. She failed to comply, and on the 26th day of January, 1894, a default was entered against her and a decree entered setting aside the order of dismissal and confirming the former decree. On the 9th day of April of the same year, on the application of the appellee, Bluhm, the decree last referred to was set aside and she filed an answer. Replication was filed to the answer, and on the 26th of May, 1894, the cause was referred to George M. Rogers, as master, to take and report the proofs, together with his conclusions on the law and the evidence. Afterwards, on the 25th of January, 1896, leave was given said appellee, Bluhm, to file a cross-bill. The allegations of the cross-bill axe, that the complainant in the cross-bill received the deed from Carbine in good faith and as the owner of the property; that the said cross-complainant was a resident of the State of Illinois in the years 1882 and 1884, and that the attempt to get a decree against her as a non-resident was fraudulent and such decree void; that Thomas Ronan during his lifetime had possession of said premises, and his children since his death have retained the possession and have paid no rent therefor; that the cross-complainant paid all the taxes thereon, and the prayer is that the title to the property be quieted in the cross-complainant and that she be put in possession thereof.</p> <p>A demurrer to the cross-bill was overruled and answer thereto filed. The answer, in substance, denies the allegations of the cross-bill, and alleges the said appellee was a non-resident or was concealed so that her residence could not be known. Replication to the answer was filed, and the issues under the cross-bill were also referred to the said master, Rogers, to take and report the proofs, with his conclusions of law and fact. The report of the master as to his conclusions of law and fact was filed on the 8th day of May, 1897, together with the exceptions of the appellant and her co-complainants. The exceptions were (1) that said Thomas Carbine, who testified before the master as a witness for appellee, was incompetent to testify as to transactions with Ronan or as to any other alleged circumstance alleged to have occurred during the lifetime of said Ronan; (2) that the master erroneously excluded the former decree in the case against said Carbine and appellee, and also the report of the former master and the evidence taken before such former master, upon which such prior decree was pronounced; (3) that the master should have reported a finding affirming the former decree and recommending the cross-bill be dismissed. The report of the master was not accompanied by the testimony taken by him, and a further exception was taken and filed by the appellant on that ground, but the court, over the objection of appellant, ordered the cause to be submitted for trial upon the finding of the master, without the evidence taken by the master and such evidence was not on file and not produced on the hearing.</p> <p>It appeared from the master’s report that the said Thomas Carbine was produced, and, over the objections of the appellant, was allowed to testify as a witness. The master reported the objection to the competency of Carbine, and that he found from the evidence of Carbine, if it was competent to be considered, that the compensation paid to Thomas Ronan for the lot “was not so unconscionable as to be inequitable;” that the appellee, Bluhm, was a resident of the State of Illinois at the time in question; that the Ronans had retained possession of the property and that no attempt had been made to interfere with their possession. The report further recited, that after the testimony of said Carbine had been concluded the solicitor for the appellee offered in evidence an instrument in writing (to quote from the report) “dated August 1, 1893, in which said Mary F. C. Bluhm and her husband released said Carbine from any liability which might arise by reason of said deed, and the said Carbine, being recalled, swore that all of his previous testimony was true.” The master reported as his conclusion of law that Carbine was a competent witness, and that, it being established by the testimony of Carbine that appellee, Bluhm, was not a non-resident of the State at the time the original bill was filed against her, the decree entered in the case on service by publication was void, and that neither the decree, nor any of its recitals, nor any evidence preserved in the record of that case, was proper to be considered by him as entitled to any weight as against appellee, Bluhm, and that he refused to receive the same in evidence for any purpose. It also appeared from the recitals of the report that double payment of taxes was made by the Ronans and by Carbine, and that Carbine testified that the payments made by him were with the money belonging to the appellee, Bluhm, and that Carbine further testified that he “sent down and demanded the rent about once a year,” but never got any.</p> <p>Upon consideration of the recitals and findings of the master’s report the court entered a decree finding the appellee was a resident of the State at the time in question, and that the decree rendered against her in the proceeding" on service by publication was null and void; that no money had ever been tendered or offered by or on behalf of Thomas Ronan or any of the complainants in return for the money received from the said Carbine, and that the said Ronan and the complainants have occupied the premises since the date of the deed to Carbine, and decreeing appellee, Bluhm, was the owner of the premises in controversy and entitled to the relief asked in the cross-bill; that appellee should be let into the possession of the premises in thirty days, and that the appellant and her co-complainants should pay the costs. This is an appeal from such decree.</p>

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

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

<p>1. Mortgages—assignor of mortgage takes subject to existing equities. A mortgage cannot be assigned so as to cut off existing equities in favor of the mortgagor against the mortgagee.</p> <p>2. Same—agreement by grantee to pay mortgage does not confine mortgagee's remedy to the premises. The fact that a grantee agrees with the mortgagor to pay the indebtedness on the property does not, in the absence of consent by the mortgagee, cut off the latter’s right to an action at law against the mortgagor or his grantees on default in the payment of the debt.</p> <p>3. Same—agreement by grantee to pay mortgage gives the mortgagee an additional remedy. An agreement by a grantee with the grantor to pay a mortgage indebtedness on the property gives the mortgagee an additional remedy, by way of an action at law, against the grantee, but does not, in the absence of consent, affect the mortgagee’s right to an action at law against the mortgagor or his right to foreclose on the property.</p> <p>4. Same—suit at law on notes and foreclosure proceedings may be concurrent. A suit on mortgage notes against the maker, or the taking of judgment thereon by confession, may be pursued concurrently with a proceeding to foreclose the mortgage against the property.</p> <p>5. Same—mortgagee may release pail of property and retain lien against remainder. A mortgagee may release part of the premises and retain his lien for the whole indebtedness on the remainder, in the absence of notice that third parties have become interested in other parts of the premises than that released.</p> <p>6. Deeds—unrecorded deed, destroyed by mutual consent of the parties, cannot be regarded as in force. An unrecorded deed, destroyed by mutual consent of the parties in order to correct the transfer by making deeds to different portions of the premises, cannot be regarded as in force so as to charge a subsequent purchaser with notice of a provision therein, claimed to have been omitted by mistake from the deeds afterward made.</p> <p>7. Subrogation—purchaser paying unassumed mortgage to protect his title should be subrogated to mortgagor's rights. A purchaser of encumbered property who, not having assumed the encumbrance, is obliged to pay it off to protect his own interest or perfect his title, is entitled to be subrogated to the position of the encumbrancer with respect to all the latter’s rights, securities, remedies and priorities.</p> <p>8. Appeals and errors—when court will not presume a release was for nominal consideration. A release purporting to be for “one dollar and other good and valuable consideration,” will not be presumed, on appeal, to have been made for a nominal consideration.</p>

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

<p>1. Loan associations—right of member to withdraw from a foreign association doing business here. A foreign loan association doing business in Illinois can impose no greater restrictions upon the right of a resident shareholder to withdraw his stock than may be imposed by similar domestic associations under our statutes.</p> <p>2. Same—notice of withdrawal need not be in writing. The notice of a stockholder’s intention to withdraw his stock from a loan association need not be in writing, under the laws of Illinois.</p> <p>3. Same—withdrawing member need not prove condition of treasury. A shareholder suing a loan association in assumpsit after giving thirty days’ notice of his intention to withdraw his stock, need not prove affirmatively that at the maturity of his notice his demand did not exceed one-half the amount in the treasury applicable to withdrawals, or that the directors had consented to using the funds to pay his demand, such facts being matters of defense.</p> <p>4. Evidence—unauthenticated statement of affairs of association is not admissible. In an action by a withdrawing member against a loan association to recover the amount of his stock, an unauthenticated printed paper, purporting to be a statement of installment stock and of the resources, liabilities, gains and losses of the association to a certain day, is not admissible in evidence.</p>

<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. Charles G. Neely, Judge, presiding.»</p>

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

M. F. Tuley, Judge, presiding. This was a bill in chancery filed by the appellee, against the appellants and others, for partition of certain real property, to-wit: certain lots in Fern wood addition to Hyde Park, and for other relief.

<p>1. Trial—peremptory instruction comes too late when asked as one of the series. The Supreme Court cannot consider alleged error in refusing a peremptory instruction, asked, as one of a series, after the evidence is closed and the case submitted to the jury on the facts.</p> <p>2. Instructions—when Supreme Court cannot consider alleged error in refusing instruction. Alleged error in refusing an instruction directing the jury to find that the contract in suit was an executed and not an executory contract cannot be considered by the Supreme Court, as the correctness of its refusal depends upon a determination of facts finally settled in the Appellate Court.</p>

<p>1. Pledge&emdash;incorporeal property may be pledged by written transfer of title. Incorporeal property, such as negotiable instruments, stock in incorporated companies, and choses in action generally, may be pledged by written transfer of title.</p> <p>2. Corporations&emdash;purpose of amendment of 1883 concerning levy of execution on corporate stock. The purpose of the amendment of section 52 of the act on judgments, decrees and executions, (Laws of 1883, p. 110,) which provides that shares of stock shall not be taken on execution when sold or pledged for a valuable consideration, was to make shares of stock as nearly negotiable as possible, and to give more freedom in transfers of stock as collateral security.</p> <p>3. Same&emdash;stock may be pledged by delivery of certificate. As between the parties and as against third persons having actual or constructive notice of the transaction, the delivery of a certificate of stock as collateral security for a loan constitutes a valid pledge of the stock, although the transfer of the title to the pledgee is-not made on the books of the corporation.</p>

<p>1. Municipal corporations—city cannot determine what acts by street railway company shall be negligence. A city may adopt proper police regulations concerning the management of street railways, but has no power to determine when or under what circumstances a street railway company will be guilty of negligence, so as to authorize a recovery by a person injured.</p> <p>2. Evidence—when city ordinance is not admissible in action for negligence. In an action against a street railway company for an injury received by plaintiff on being thrown under a passing car while attempting to hold a frightened horse, it is error to admit in evidence a city ordinance providing that upon the appearance of danger to any person upon or near the track the car must be stopped, if an injury will thereby be averted.</p> <p>3. Same—when testimony as to condition of brakes at times prior to the accident is properly admitted. In an action against a street railway company for negligence in failing to stop a car, the testimony of a witness as to the condition of the brakes on the car at times prior to the accident is properly admitted, where he also testifies that the condition remained unchanged up to the time of the injury.</p> <p>4. Appeals and errors—harmless error will not work a reversal. Harmless error in the admission of evidence or in the rulings on instructions is not ground for reversal.</p>

<p>1. Limitations—amended count stating new cause of action does not relate back to original declaration. An amended declaration stating a new and distinct cause of action does not relate back to the time of the filing of the original declaration, so as to take the new cause of action out of the operation of the Statute of Limitations.</p> <p>2. The court considers the original and amended declarations filed in this case, and holds, for reasons stated at length in the opinion, that the amended declaration stated a new cause of action, and was therefore obnoxious to the Statute of Limitations.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. E. F. Dunne, 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 Henderson county; the Hon. John J. Glenn, Judge, presiding. The original bill in this case was filed in the circuit court of Henderson county on December 28, 1892.

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

M. F. Tuley, Judge, presiding. Appellants, as the legally constituted trustees under the will of Henry Witbeck, deceased, began this action in the circuit court of Cook county by bill in chancery, praying for a construction of the first, seventeenth, eighteenth, nineteenth and twentieth clauses of the last will and testament of said Henry Witbeck.

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. Elbridge Hanecy, Judge, presiding.

<p>Appeal from the County Court of Ogle county; the Hon. John D. Campbell, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Crawford county; the Hon. S. Z. Landes, Judge, presiding.</p>

Appeal.from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.

John Barton Payne, Judge, presiding. This is an appeal from a judgment of the Appellate Court, affirming a decree of the Superior Court of Cook county, removing appellant as trustee under a deed of trust made by the appellee, the Lake Street Elevated Railroad Company, to appellant, the Farmers’ Loan and Trust Company, and to appellee, the American Trust and Savings Bank, as trustees, and enjoining appellant from taking any steps to foreclose, or otherwise act as trustee…

<p>1. Courts—a recess over a judicial day is vacation. The meaning of the word “vacation” is not limited to the interval between terms of court, but includes any recess extending over a judicial day.</p> <p>2. Judgments and decrees—judgments entered on different days during recess do not pro rate.. Judgments by confession entered on different days during a recess extending over a judicial day are not entered during the same term, within the meaning of section 1 of the act on judgments, decrees and executions, (Rev. Stat. 1874, p. 621,) so as to be entitled to share pro rata.</p> <p>3. Same—effect of court's confirmation of judgment entered in vacation. An order by the court on convening after a recess, which purports to confirm a judgment by confession entered during the recess, does not advance the lien of such judgment so as to entitle it to share pro rata with prior judgments entered during such recess.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. A. H. Waterman, Judge, presiding.</p>

Henry V. Freeman, Judge, presiding. This is a bill in equity filed by the Illinois Central Eailroad Company against the city of Chicago, praying for an injunction restraining the city from interfering with or preventing the company from filling in certain land covered by the shallow waters of Lake Michigan, lying between Twenty-fifth and Twenty-seventh streets, produced, for the purpose of constructing an engine house thereon.

Writ op Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Montgomery county; the Hon. James A. Creighton, Judge, presiding.

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

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

R. J. McElvain, Judge, presiding. This is a petition, filed on June 4, 1897, in the county court of Jackson county by the appellee, a telegraph company, organized under the laws of Illinois on April 20, 1887, for the purpose of condemning a right of way for its telegraph line upon and along the right of way of the St. Louis and Cairo Railroad Company from Cairo in Alexander county to East St. Louis in St. Clair county, a distance of about 152 miles.

George W. Herdman, Judge, presiding. This is a bill, filed at the September term, 1894, of the circuit court of Logan county by the appellant, Richard E. Dorsey, as conservator of Jehu Walker, a distracted person, for the purpose of setting aside certain deeds and a contract made by said Walker in his lifetime, upon the alleged ground that said deeds were procured by fraud and undue influence, and that, at the time of their execution, the said Jehu Walker was mentally…

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

<p>1. Dram-shops—evidence^that plaintiff warned defendant more than five years before suit is admissible. In an action by a wife, under section 9 of the Dram-shop act, for injury to her means of support through sales of liquor to her husband, evidence that the plaintiff warned the defendant, more than five years before bringing suit, against selling liquor to him is admissible, although the recovery of damages is limited to sales made within such five years.</p> <p>2. Same—sales of liquor made after warning are willful. A sale of intoxicating liquor to a husband after the seller had been warned against it by the wife under threat of invoking the law may be regarded as willful, and such fact is proper for the consideration of the jury in determining the question of vindictive damages.</p> <p>3. Same —positive proof of numerous sales is not indispensable. Where the ground of recovery charged is the sale of liquor which has caused habitual drunkenness, the proof should be such that the jury can say that the defendant has made sufficient sales to materially aid in producing the effect charged, but positive proof of numerous sales is not indispensable to such conclusion.</p> <p>4. Instructions—erroneous instruction is harmless if it does not mislead. An instruction so drawn that the jury might believe it to be their duty to award exemplary damages, is not ground for reversal if the verdict cannot be regarded, under the evidence, as including more than actual damages.</p>

<p>1. Limitations—statute runs against land granted by State to Illinois Central Railroad Company. Land donated to the Illinois Central Railroad Company by the State of Illinois in 1851, being part of the strip 200 feet wide set apart as right of way, is not exempt from the operation of the Statute of Limitations as part of a public highway declared by Congress on granting the land to the State, as, by its charter, the company became the owner of the land in fee simple, and was not bound to include the whole 200 feet in its right of way or maintain it as such.</p> <p>2. Same—right of way may be acquired by adverse possession. Title to land reserved by a railroad company as right of way but not included within its fences may be acquired by an abutting owner by adverse possession, under section 1 of the Limitation act.</p> <p>3. Same—parol admissions made after bar is complete do not divest title. Parol admissions or declarations by an abutting owner after he has acquired title to railroad land by twenty years’ adverse possession do not divest the declarant or his heirs of the title thus acquired nor the right to possession of the land.</p> <p>4. Same—admissions after bar of statute is complete do not work estoppel. Admissions or declarations by an adverse owner, made after the bar of the statute has become complete, do not work estoppel, as tending to show a permissive use, nor involve any question of the settling of disputed boundary lines.</p>

Carroll C. Boggs, Judge, presiding. This is an action of ejectment, brought in the circuit court of Wabash county at the November term, 1893, by the appellant, Eliza A. Wright, against the appellee, James L. Stice, to recover the possession of 32.40 acres of land in that county. The defendant below filed a plea of not guilty. A jury was waived, and the cause was tried by the court by agreement without a jury.

<p>1. Special findings—when special finding is not inconsistent with general verdict. In an action for an injury received by plaintiff while walking between defendant’s railroad tracks laid in a public street, a special finding that the injury was not wanton is not inconsistent with a general verdict for plaintiff, though the declaration avers wanton injury, where it also avers negligence, as the averment of wanton injury in such case is unnecessary.</p> <p>2. Ordinances—detached switch engine is within ordinance regulating freight locomotives and cars. Evidence that a detached locomotive by which plaintiff was injured was a freight engine used in transferring cars from one road to another, is sufficient to bring it within the operation of an ordinance regulating the speed of freight locomotives and cars.</p> <p>3. Railroads—when walking in yards is not negligence per se. The fact that plaintiff was walking between the tracks in defendant’s yard, laid in a public street, over eight feet apart, does not constitute negligence per se, although there was a sidewalk and pavement free from tracks on one side of the street, where plaintiff, according to his custom, was seeking an employee who was on one of the yard engines, in order to deliver the employee’s dinner.</p> <p>4. Same—what not a private use of locomotive by employees. A custom of yard employees, including the general yard-master, in using a switch engine to carry them a distance of over a mile to their dinner, is not such a private use of the locomotive as relieves the company from liability for accidents during its trip.</p>

<p>1. Special assessments—city may levy new assessment if former ordinance is merely inadequate. Where an assessment has been set aside by a court of review, the city, if the ordinance is not a nullity but merely inadequate, may, under section 46 of article 9 of the City and Village act, (Rev. S'tat. 1874, p. 239,) levy a new assessment, though the work has been completed.</p> <p>2. Same—effect where contractor agrees to look solely to special assessment. Where a contractor has agreed to look solely to a special assessment for his pay, taking the risk of its invalidity, he has no right of action against the city for an unpaid balance in the event the assessment is set aside unless the ordinance is void, or the city, having the power to levy a new assessment, has refused to act.</p>

<p>1. Judgments and decrees—extent of lien of Federal judgment is a, Federal question. The extent of the lien of a judgment of a Federal tribunal is a question of Federal law-, to be determined by the construction placed upon Federal and State statutes by the United States Supreme Court.</p> <p>2. Same—extent of lien of Federal judgment. Where a State statute provides that the lien of a judgment of a State court shall be coextensive with that court’s territorial jurisdiction, the lien of a judgment of a Federal court in such. State in a similar action is co-extensive with the Federal court’s territorial jurisdiction.</p> <p>3. Same—act of 1889 amending section 1 of the act on judgments is not retroactive. The Illinois act of 1889, amending section 1 of the act on judgments, decrees and executions, (Laws of 1889, p. 195,) which provides that the filing of a transcript of a judgment rendered in one county with the clerk of the court in any other county shall create a lien on the debtor’s real estate situated in the latter county is not retroactive in operation.</p> <p>4. Same—prior to 1889 no transcript was necessary to the lien of a Federal judgment. A Federal judgment rendered in Illinois prior to the amendment of 1889 to section 1 of the act on judgments, etc., became a lien upon the defendant’s real estate situated in any county within the territorial jurisdiction of that court without the filing of a transcript of the judgment in such county.</p> <p>5. Same—section ‘¿ of act on judgments and decrees construed. Section 2 of the act on judgments, etc., (Rev. Stat. 1874, p. 621,) providing that where the owner of a judgment is restrained by injunction or appeal from obtaining execution, the time of such restraint shall not be counted as part of the year allowed in which to obtain execution to preserve the lien of the judgment from its rendition, applies to a writ of error made a supersedeas, as well as to an appeal.</p> <p>6. Same—effect of writ of erro r as to restraining issue of execution. The year allowed by section 1 of the Illinois act on judgments, etc., for obtaining execution, does not begin to run in a case where the owner of a Federal judgment is restrained from obtaining execution by the suing out of a writ of error from the United States Supreme Court, which is made a supersedeas, until the mandate affirming the judgment is filed in the lower court.</p> <p>7. Pleading—when cross-hill in foreclosure is not essential to affirmative relief. Where a bill to foreclose a mortgage alleges that certain defendants claim some interest which such defendants, by their answer, assert is a prior lien, and the amended bill prays that the property be sold and the proceeds distributed “according to law,” the court may order the claim of such defendants to be paid as a prior lien, without the filing of a cross-bill.</p>

<p>1. Practice—father having adverse interests cannot act as next friend for minor children. Where a hill filed by a father and his children for specific performance shows on its face that the interest of the father is adverse to that of the children, the court, upon its appearing that such children are minors, should appoint a guardian ad litem, as the father’s interest prevents his acting as next friend.</p> <p>2. Same—Supreme Court will not pass on rights of minors not properly represented. Where, on appeal, it appears part of the complainants were minors whose interests were adverse to that of their co-complainant, their father, and that the suit has been prosecuted to a final decree in his favor without the appointment of a guardian ad litem, the Supreme Court will remand the cause, with directions to appoint a guardian ad litem to properly represent them.</p>

<p>1. Injunction—fact that improvement does not conform to ordinance not ground for enjoining assessment. The collection of a special assessment cannot be enjoined nor the sale for former installment set aside on the ground that the improvement does not conform to the ordinance and that a part of the same has not yet been completed.</p> <p>2. Same—averment that confirmation judgment is void on its face not ground for enjoining a sale. An averment that a confirmation judgment is void because not properly entitled is not ground for enjoining the sale of property for the assessment, as such sale would constitute no cloud, the invalidity of the judgment being apparent from an inspection of the record.</p> <p>3. Same—effect of averment contradicting affidavit of posting notices. In the absence of any showing of fraud or ground of equitable relief, equity will not enjoin the sale of property for a delinquent installment of a special assessment and set aside the sales for previous installments on the mere averment that the affidavit of posting notices was untrue, in that but one of the notices was posted in the neighborhood of the proposed improvement.</p>

B. R. Burroughs, Judge, presiding. A bill in chancery was filed by appellee in the circuit court of Madison county to foreclose two mortgages given by appellants, T. B. Rhodes and Ellen Rhodes, his wife. Originally one mortgage, only, existed, which was given to secure an advance of §9000, and was executed May 3, 1893.

<p>Writ of Error to the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of McLean county; the Hon. Alfred Sample, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>