Volume 174 — Illinois Reports

C. B. Starr, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the Second District, affirming a decree entered in the cause in the circuit court of Iroquois county. The proceeding was in chancery.

Thomas P. Tipton, Judge, presiding. This is an action on the case, brought by appellee against appellant for alleged negligence in causing the death of her intestate. The jury found the issues for the plaintiff, assessing her damages at $5000.00. A new trial was denied, and judgment was rendered on the verdict. Upon appeal to the Appellate Court, this judgment has been affirmed, and the present appeal is prosecuted from such judgment of affirmance.

<p>Appeal from the Circuit Court of Effingham county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>Appeal from the Appellate 'Court for the Third District;—heard in that court on appeal from the Circuit Court of Macon county; the Hon. Edward P. Vail, Judge, presiding.</p>

F. Bookwalter, Judge, presiding. This is a suit, brought on May 31, 1894, by the appellant, the First National Bank of Hoopeston in Vermilion county, against the appellee railroad company, for the purpose of recovering damages for loss, alleged to have been sustained by the burning of an elevator, owned by the appellant, and situated at Hoopeston.

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

Edward P.Vail, Judge, presiding. This is an appeal from an order of the circuit court, refusing to direct payment to the appellant of an amount allowed her for “family allowance” by the superior court of Santa Clara county, California; which order was entered, upon an agreed state of facts, in a partition proceeding, instituted by appellees, as heirs of one Edward O. Smith, against the appellant, widow of said Edward O. Smith and others, upon the application of appellant to…

Jefferson Orr, Judge, presiding. This was a bill in equity, filed September 1, 1893, in the circuit court of McDonough county, by Charlotte Miller, Mary Jane Wolf, Robert N. Tyner and Elijah T. Wolf, against Joseph A. Keith, claiming the west half of the north-east quarter of section 7, township 7, range 1, in McDonough county, Illinois, devised to them under the following will of Martha A. Keith, the wife of Joseph A. Keith: “First—I give, bequeath and dispose of my…

<p>1. Bills of exception—when sufficient to present question of court’s action on instructions. The question of the correctness of the court’s action on instructions is sufficiently presented for review as a pure question of law where the bill of exceptions recites that the evidence tended to prove the facts, which, it is contended, rendered the court’s rulings upon the instructions erroneous.</p> <p>2. Same—all evidence must be saved to warrant court in holding error harmless. The entire evidence must be preserved in the record to warrant the Supreme Court in affirming on the ground that intervening errors in instructions were harmless.</p> <p>3. Appeals and errors—xvhen error in instructions in ignoring one of the issues will work reversal. Instructions in a will contest which ignore one of the issues made by the pleadings are erroneous, and the error will work reversal where the bill of exceptions recites that the evidence tended to prove both issues, but does not contain all the evidence, as the court cannot presume that the jury would have returned the same verdict had the instructions been correct.</p>

<p>Appeal from the County Court of DuPage county; the Hon. John H. Batten, Judge, presiding.</p>

Writ of Error to the County Court of Jersey county; the Hon. A. M. Slaten, Judge, presiding. This is a writ of error to reverse a judgment of the county court of Jersey county disapproving a conservator’s report of sale and ordering a re-sale of the property. Richard Kiely, conservator of Charles M. Boyle, insane, had petitioned the court for an order for the sale of certain real estate owned by the said Boyle.

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

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. A. S. Wilder-man, Judge, presiding.</p>

<p>1. Appeals and errors—Supreme Court does not weigh the evidence in suits at law. The refusal of an instruction to direct a verdict for the defendant railroad company for want of proof of ordinary care by the plaintiff does not raise the question of the sufficiency of the evidence to show ordinary care for consideration by the Supreme Court, but whether there was evidence tending to prove that fact.</p> <p>2. Evidence—ordinary care may be established by circumstantial evidence. In an action by an administrator against a railroad company for causing the death of his intestate, the plaintiff must show deceased was exercising ordinary care for his safety; but such fact may be established by circumstantial as well as direct evidence.</p> <p>3. Same—ivhat evidence tends to prove negligence in failing to fill spaces between ties. Evidence that spaces between ties on a railroad track were not filled to the surface for a distance of some ten or twelve feet, where there was no necessity for leaving them unfilled, and that at the point where plaintiff’s intestate met his death the unfilled space was six inches deep, tends to prove negligence on the part of the company in failing to fill such spaces.</p> <p>4. Instructions—when instruction in action for negligence is misleading. In an action against a railroad company for causing the death of the plaintiff’s intestate, an instruction that the jury should find for the plaintiff, if they believed, from the evidence, that the deceased, while in the discharge of his duties as switchman and using due care for his safety, “was killed in the manner and form as charged in the declaration,” is misleading, in failing to require proof of defendant’s negligence.</p> <p>5. Same—misleading instruction may be corrected by instructions of other party. A misleading instruction, not positively erroneous, may be cured by instructions of the other party which so clearly state the law as to correct the misleading instruction.</p> <p>6. Same—when instruction in action for negligence is not objectionable. An instruction is not objectionable which informs the jury they should find for the plaintiff if they believed, from the evidence, that he was entitled to recover under any one of the counts in the declaration, and that they should assess the damages at such sum as they thought, under the evidence, the parties for whose use the suit was brought had actually sustained, if any, not exceeding the amount asked for in the declaration.</p>

<p>1. Appeals and errors—when the Supreme Court will not consider objection that bill of exceptions was not sealed. An objection that the Appellate Court erred in passing upon the merits of the questions raised because the bill of exceptions was not sealed will not be considered by the Supreme Court when raised for the first time upon the submission of the case in that court.</p> <p>2. Evidence—parol evidence not admissible to change sealed executory contract. A sealed executory contract giving an option on land, which refers to the property as “estimated to contain forty-five acres, * * * the precise quantity of land in said estimated tract to be ascertained by a correct survey of the same,” cannot be chang'ed, so as to make good a tender of a sum based on the estimated quantity, by proof of a parol arrangement between the parties whereby the proposed vendor agreed to accept the estimate as the correct amount.</p> <p>3. Estoppel—equitable estoppel cannot be invoiced at law to enforce parol change in sealed executory contract. In an action at law on a sealed executory contract to convey an estimated quantity of land, the precise amount to be ascertained by survey, the plaintiff cannot invoke the doctrine of equitable estoppel to preclude the defendant from denying the effect of a subsequent parol executory agreement waiving the condition requiring the survey and accepting the estimate as correct.</p>

M. F. Tuley, Judge, presiding. This was a bill to foreclose a mortgage, brought by the Connecticut Mutual Life Insurance Company, against James Stinson. The mortgage was executed March 9, 1881, to secure a loan of $15,000 which Stinson obtained from the company, payable March 9, 1884, with interest payable semi-annually, at six per cent per annum.

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.

Dorrance Dibell, Judge, presiding. This was a bill in the nature of a creditor’s bill, filed December 26, 1893, by the First National Bank of Joliet, the appellant, against the Ashley Wire Company, a corporation in Joliet, Will county, Illinois, which for many years had been engaged in the manufacture of barbed fence wire, wire nails, étc.

John Barton Payne, Judge, presiding. Appellee was the owner, on the 13th day of March, 1893, of certain premises known as the “Hughes Dock,” on the north-west corner of Thirty-fifth street and the south fork of the' south branch of the Chicago river, in the city of Chicago, and on that day leased the premises to the Standard Eggette Coal Company until April 30, 1895, for a consideration of $10,225.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding.</p>

<p>1. Taxes—effect where act exempting property provides for its own liberal construction. Section 6 of the act of 1855, incorporating the Chicago Theological Seminary, which provides that the act “shall be liberally construed in all the courts for the purposes therein expressed,” does not prevent the application of the usual rules of strict construction of laws exempting property from taxation, but merely requires that when, under such rules, the purpose is ascertained, liberal construction will be adopted to give it effect.</p> <p>2. Same—in construing acts exempting property reasonable doubts are resolved in favor of State. In construing an act exempting property from taxation, if, by taking the express language used without extending its meaning by implication, it may be given a broad or more restricted meaning, the latter, if reasonable, will be adopted and the doubt resolved in favor of the State.</p> <p>3. Same—act incorporating Chicago Theological Seminary construed. Section 5 of the act incorporating the Chicago Theological Seminary, which provides that “the property, of whatsoever kind and description, belonging or appertaining to said seminary” be forever exempt from taxation, refers only to property used in immediate connection with the seminary, and does not include other property which may be owned, rented or held by the said seminary as an investment, even though the income therefrom is used solely for school purposes.</p>

Thomas F. Tipton, Judge, presiding. This is a bill, filed by the appellees as heirs of one David Henline, deceased, against the appellants, Delilah Smith and Paulina Smith, and one Shelton Smith, executor, and others, as defendants below, to set aside the will and codicil of the said David Henline. The bill was answered by the defendants, and replication was filed to the answer.

<p>1. Equity—when question of jurisdiction cannot be first raised on appeal. A defendant to a bill for injunction who makes no objection to the hearing of the cause but participates therein consents to the jurisdiction, and if the subject matter is such that jurisdiction thereof may be conferred by consent, he cannot afterwards complain of the want of jurisdiction.</p> <p>2. Warehouses—warehouses established by the act of 1871 are public agencies. Warehouses established under the act of 1871 (Rev. Stat. 1874, p. 820,) are public agencies, and the proprietors thereof, as licensees, pursue a public employment, which public policy forbids shall be so conducted as to expose them to temptation of serving their personal interests at the expense of their duty to the public.</p> <p>3. Same—public warehousemen cannot buy and store grain for themselves. A public warehouseman has no right, under the act of 1871, to buy and store his own grain, issuing his own warehouse receipts to himself as an individual and buying and selling through his own warehouse, as such a course is inconsistent with the full and impartial performance of his duty to the public.</p> <p>4. Same—effect of neglect of officials to prevent dealing by warehousemen. The failure of warehouse commissioners to question the legality of private grain deals by warehousemen through their own houses is not a construction of the act of 1871 in favor of such practice.</p> <p>5. Same—stockholder cannot use warehouse for individual business. A stockholder in a public warehouse cannot use the property to carry on his individual business as a grain dealer.</p> <p>6. Injunction—a change of defendant's relation avoids an injunction. An injunction against one in his relation as a stockholder in a public warehouse is not binding upon him after the relation of stockholder ceases.</p>

<p>1. Special assessments—first step to charge property is passage of ordinance. Until an ordinance has been passed providing for the making of an improvement by special assessment no work can be done or expense incurred which can be charged upon property to be afterwards assessed.</p> <p>2. Same—cost of improvement borne by public and that borne by private owners should be separated. Contracts for an entire improvement, the cost of which is borne partly by the public and partly by owners of property assessed, should contain data from which the actual cost of the part constructed by special assessment can be ascertained, as private owners are entitled to a rebate of the amount of estimate exceeding actual cost.</p>

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

<p>1. Bills of exception—affidavits in support of a motion must be saved in bill of exceptions. Affidavits submitted in support of and against a motion are not part of the record so as to be considered on appeal, where, though copied in the transcript, they are not incorporated in the bill of exceptions and certified to by the judge.</p> <p>2. Same—court’s action presumed warranted in absence of bill of exceptions. The trial court’s action in denying a motion to vacate a judgment by confession will be presumed to have been warranted by the state of proof, where the affidavits submitted for and against the motion are not saved by a bill of exceptions.</p> <p>3. Trial—whether pleas shall be filed at trial is largely discretionary with trial court. Whether the plaintiff shall be permitted to file an additional special plea at trial, after having already been allowed to file two others, is a matter largely for the trial court.</p> <p>4. Same—whether witness shall be re-called is within trial court’s discretion. It is within the discretion of the trial court to grant or refuse an application for leave to re-call a witness who has been examined and dismissed from the stand.</p> <p>5. Appeals and errors—trial court’s discretion not subject to review in absence of abuse. The action of the trial court in matters within its discretion will not be disturbed on appeal unless such discretion has been abused.</p> <p>6. Corporations—when authority to execute a corporate note will be presumed. A note and warrant of attorney to confess judgment, executed in the name and under the seal of a corporation and signed by its president, will be presumed to have been authorized by the corporation.</p>

<p>1. Wills—probate of will does not depend on recollection of subscribing witnesses. An attestation clause in due form, and bearing the signatures of witnesses which they admit to be genuine, is competent evidence in equity tending to establish the execution of the will, where the only defect in proof is the failure of the witnesses to recollect that all the formalities prescribed by the statute and recited in the attestation clause had been complied with. (Dickie v. Carter, 42 Ill. 376, and Crowley v. Crowley, 80 id. 409, explained.)</p> <p>2. Same—on appeal to circuit court proponent is not confined to evidence of subscribing witnesses. Under section 13 of the act on wills, on appeal to the circuit court from an order of the county court refusing to admit a will to probate, the proponent may introduce any evidence competent to establish a will in chancery, but is not relieved from the duty of producing the subscribing witnesses, if alive and sane and within the jurisdiction of the court.</p> <p>3. Witnesses—party does not vouch for truthfulness of witness required by law. One required by law to produce certain witnesses does not vouch for their truthfulness and integrity, and he may introduce proof of previous statements at variance with their testimony on material points, for the purpose of contradicting it.</p> <p>4. Same —proponent may contradict testimony of subscribing witnesses. A proponent is obliged by law to call the subscribing witnesses when within the jurisdiction of the court and competent to testify; and where they testify that they do not recollect that the formalities prescribed by statute and recited in the attestation clause, the signatures to which they admit are genuine, had been complied with, he may introduce affidavits made by them in a former proceeding, which had subsequently been dismissed, for the purpose of contradicting such testimony.</p>

<p>1. Mortgages—when principal secured by trust deed may be declared due on grantor's failure to pay taxes. Upon failure by the grantor in a trust deed to pay taxes, in violation of his covenant, the cestui que trust may declare the principal sum due and payable and institute foreclosure, notwithstanding the terms of the note, where the deed gives him the option of so doing upon the grantor’s breach of any of his covenants or agreements.</p> <p>2. Same—when payment of taxes by cestui que trust is not necessary to his right to foreclose. Payment of delinquent taxes by the cestui que trust, and redemption from tax sales, are not conditions precedent to Ms right to declare the principal sum due and institute foreclosure, although the deed provides that his advances for such purposes shall be an additional burden on the property, payable on demand, with interest, where the deed also provides for foreclosure upon the grantor’s failure to pay the taxes when due.</p> <p>3. Same—no demand is necessary where date of payment is fixed. A provision in a trust deed that money advanced by the cestui que trust to pay taxes shall be re-paid on demand, does not require the making of a second demand where the grantor fails to pay the money at a date fixed by agreement with the cestui que trust when the latter made Ms first demand.</p> <p>4. Trusts—trustee in trust deed is the representative of both parties. A trustee in a trust deed is the representative and trustee of both parties to the instrument, and he must act fairly and impartially, and not in the exclusive interest of either.</p> <p>5. Solicitors’ pees—trustee not entitled to solicitor's fee on foreclosing trust deed. A trustee in a trust deed, who is also an attorney at law, is not entitled to an allowance for professional services rendered in foreclosing the deed in Ms own behalf and for Ms co-complainant, the holder of the note, although the deed provides for the allowance of a reasonable sum for complainant’s solicitor’s fee.</p>

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

<p>1. Appeals and errors—condemnation verdict will stand on appeal, unless clearly against the evidence. A condemnation verdict rendered on conflicting evidence, by a jury which viewed the premises, will stand on appeal, unless clearly against the evidence.</p> <p>2. Same—error in instructions must be misleading to work reversal. Error in instructions will not work reversal unless of such a character as to be likely to mislead the jury.</p> <p>3. Evidence—when refusal to admit a stipulation in a condemnation proceeding is not error. The refusal to admit in a condemnation proceeding a stipulation made during the trial by counsel for the petitioning railway company, relating to the manner in which the company would use the condemned property in constructing its road-bed, is not error, where it does not appear that counsel had any authority to bind the company in that regard.</p>

Francis M. Wright, Judge, presiding. This is a bill for the partition of forty acres of land, alleged to have been owned by one George W. Whipple at the time of his death, and was filed at the March term, 1896, of the circuit court of Champaign county by the appellant, Jane F. Fletcher, a daughter of the said George W. Whipple, against the appellees, Minnie B. Shepherd and George Whipple, a daughter and son of the said deceased, and appellee, Emily Whipple, his widow.

<p>Appeal from the Circuit Court of Coles county; the Hon. Frank K. Dunn, Judge, presiding.</p>

<p>1. Insurance—the acts of June 33,1893, created distinct classes of insurance corporations. The two acts approved June 22,1893, (Laws of 1893, pp. 117,130,) were designed to create distinct classes of corporations furnishing life insurance or indemnity under various former acts, and to constitute a complete code for each. (Bastian v. Modern Woodmen, 166 Ill. 595, followed.)</p> <p>2. Assessment companies—Masonic Benevolent Association of Central Illinois is an assessment company. The business of the Masonic Benevolent Association of Central Illinois is that of life insurance, so far as it pertains to issuing insurance certificates and paying death benefits, and the association is governed by the act of June 22,1893, (Laws of 1893, p. 117,) entitled “An act to incorporate companies to do the business of life or accident insurance on the assessment plan,” etc.</p> <p>3. Same—when contract of insurance in assessment company is unilateral. An insurance contract in a benevolent association, wherein provision is made for forfeiture of all payments and benefits by a member upon failure to pay his assessments at a certain time, is unilateral in its obligation, and the right of the association upon a member’s failure to pay an assessment is to declare a forfeiture, and not to sue for the assessments.</p> <p>4. Same—what constitutes the contract of insurance. The constitution and by-laws of an assessment company, the application for membership and the certificate of insurance together constitute the contract of insurance, which is purely unilateral, in the absence of a promise by the member to be bound for unpaid assessments.</p> <p>5. Same—when provision for forfeiture of insurance is self-executing. Where a contract of insurance in an assessment company provides that upon the member’s neglect or failure to pay any dues or asessments at a certain time the insurance certificate shall become null and void and all benefits received and payments made thereunder be forfeited, the forfeiture provision is self-executing, and upon his failure to pay within the specified time the insured at once ceases to be a member.</p> <p>6, Same—levying an assessment does not create relation of debtor and creditor. Levying an assessment on an insurance certificate in an assessment company does not, where the contract is unilateral, create the relation of debtor and creditor between the company and the assessed member, and upon the member’s failure to pay the assessment when due, neither the company nor its receiver can enforce payment by suit.</p> <p>7. Same—liability for assessment for death while farty was a member. Where the admission fee in an assessment company pays the member’s insurance in advance up to the maturity of the first assessment, his payment of that assessment settles in advance for his insurance up to the maturity of the second assessment, and so on, so that when he ceases to pay, which, under his contract, immediately forfeits all his rights, he has paid for all the insurance received and is not liable for a death benefit, although such death occurred before he ceased to be a member.</p>

<p>Writ of Error to the Circuit Court of Kane county; the Hon. George W. Brown, Judge, presiding.</p>

<p>1. Statutes—courts cannot disregard plain language of statute. It is the duty of courts to accept a statute as they find it and enforce it as plainly written.</p> <p>2. Insurance—guaranteeing fidelity of trust officers and performance of obligations is insurance. The business of guaranteeing the fidelity of persons holding public or private places of trust, and the performance by persons, firms and corporations of contracts, bonds, recognizances and other undertakings, is “guaranty insurance.”</p> <p>3. Same—guaranty insurance company cannot be incorporated under the general act. Section 1 of the act on corporations, (Rev. Stat. 1874, p. 285,) which provides that corporations may be formed thereunder for any lawful purpose “except banking, insurance,” etc., excludes the organization under that act of a corporation to conduct the business of guaranty insurance.</p> <p>4. Same—fact that guaranty insurance is of recent origin does not except it from term “insurance.” The fact that at the time the general Incorporation act was passed only fire, inland navigation, marine and life insurance companies were in existence in Illinois, does not warrant the inference that the legislature intended to include only such forms in the term “insurance” and to exclude forms of insurr anee then practically unknown.</p>

<p>1. Real property—possession of land is notice of possessor’s rights. Possession of land under a bond for deed executed by the vendor during infancy is notice to subsequent purchasers, not only of the existence of the bond, but of any acts in affirmance thereof done by the vendor after attaining majority.</p> <p>2. Ratification—what sufficient to show intention to ratify deed made in infancy. Evidence that the vendor in a bond for deed made during her infancy told the vendee, after attaining majority, that she intended to .perform her part of the contract if he carried out his part, and that she subsequently requested an advance payment, which the vendee was unable to make, sufficiently shows the vend- or’s intention to ratify the contract.</p>

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

<p>1. Limitations—effect where tax receipts misdescribe land. One who has paid the taxes actually assessed against land under color of title acquired in good faith is entitled to the benefit of the statute, although the land may have been misdescribed in the tax receipts, provided he is able to remove the uncertainty by extrinsic evidence.</p> <p>2. Same—party cannot derive benefit from misdescription in tax receipt. The fact that part of the tax receipts held by defendant in ejectment include in their description the tract in controversy does not establish the defendant’s title thereto under the Statute of Limitations, where the evidence shows that the tract was not in fact assessed to the defendant nor the taxes thereon paid or intended to be paid by her.</p> <p>3. Propositions op law—court may refuse propositions repeating sections of the statute. Propositions of law which merely repeat the statute law of the State applicable to the case may be refused.</p> <p>4. Evidence—what not proper proof of entry of land. The statute makes the official certificate of the register or receiver of any land office evidence of an entry of any tract of land in his district, and such entry cannot be proven by a book certified by the State Auditor to the county clerk.</p>

<p>Appeal from the Appellate Court for the Third District;^—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Egbert B. Shirley, Judge, presiding.</p>

<p>1. Trespass—land need not be enclosed with fence to enable owner to maintain trespass. Any class of improvements or acts of dominion that indicate to neighboring residents who has the exclusive control of the land will constitute possession to the extent of the paper title under which such party entered, so as to enable him to maintain trespass for any injury to the estate.</p> <p>2. Same—when plat is admissible in action of trespass quare clausum fregit. A plat of the lot described in the declaration, showing the location of the division fence, is not improperly admitted in an action of trespass quare clausum fregit, where the party who made the same testifies that it is accurate in measurements and correct.</p> <p>3. Same—entry not resulting in open breach of peace is not necessarily peaceable. Where one entitled to the possession of land enters, as against another claimant, in a violent and tumultuous manner, such as would be likely to cause a breach of the peace, the fact it did not so result does not make the entry peaceable and lawful.</p>

Robert B. Shirley, Judge, presiding. This is a bill in equity in the nature of a creditor’s bill, by appellants, against appellees, filed in the Montgomery circuit court.

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

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

Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Kendall county; the Hon. C. W. Upton, Judge, presiding.

Writ of Error to the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. These five cases involve substantially the same questions.

<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>Appeal from the Circuit Court of Richland county; the Hon. E. D. Youngblood, Judge, presiding.</p>

John J. Glenn, Judge, presiding. This is an action of ejectment, broug'ht in the circuit court of Mercer county by the appellees against the appellant to recover the possession of forty acres of land in that county. The suit was commenced on August 1,1895. The plea was the general issue of not guilty. The case was tried before the court and a jury.

S. Z. Landes, Judge, presiding. This was an action on the case, brought by Charles Jenkins, against appellant, in the circuit court of Wabash county.

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

<p>Garnishment—joint judgment will not support garnishment for a several debt. A judgment creditor of two joint judgment debtors can not maintain garnishment to reach a debt owing to one of the joint judgment debtors individually. (Siegel, Cooper & Co. v. Schueck, 167 Ill. 522, followed. .</p>

<p>1. Taxes—board of town auditors cannot levy town taxes. The power to levy taxes for town purposes rests with the electors for exercise at the annual town meeting, and not with board of town auditors.</p> <p>2. Same—certificate of the town auditors does not authorize extension of town tax. A certificate by the board of town auditors as to the amount of tax for all town purposes for the ensuing year does not authorize the county clerk to extend the tax.</p>

<p>1. Deeds—there is a sufficient delivery if grantor loses all control of deed. There is a sufficient delivery of a deed to a third person, for the grantee, where the grantor, by his act of delivery, voluntarily parts with all control over the instrument intending to vest the estate in the grantee.</p> <p>2. Same—delivery is dependent largely on grantor’s intention. Whether a delivery to a third party is sufficient is a question to be determined largely from the grantor’s intention, to be ascertained from his acts and declarations and by the circumstances of the case.</p> <p>3. Same—presumption of delivery is strong in case of voluntary settlement. The presumption of delivery of a deed is stronger in case of a voluntary settlement than in case of an ordinary bargain and sale.</p> <p>4. Same—facts sufficient to constitute a valid delivery. A deed from father to son, executed to secure the ownership of the farm to the latter at his father’s death, in order that he might feel secure in making valuable improvements, and handed by the grantor to the notary to be placed in the latter’s safe at his bank, with directions to take and keep the deed and at the grantor’s death deliver it to the son, is well delivered.</p> <p>5. Same—when deed is not a testamentary devise—livery of seizin. Since the abolishment of livery of seizin in Illinois a conveyance delivered, but not to take effect or be recorded until the grantor’s death, is valid without the creation of an intermediate estate, and is not a testamentary devise, which must be executed like a will.</p> <p>6. The court reviews the evidence in this case, and holds it to be insufficient to sustain the charge of undue influence by the grantee, but rather as indicating the grantor’s deliberate intent to immediately invest the grantee with an estate in remainder, based upon the grantor’s life estate.</p>

<p>1. Appeals and errors—one cannot complain of alleged errors not affecting his interests. Neither the heir of an intestate nor the assignee of a lessee of coal fields lying under the intestate’s land can complain, on appeal from a partition sale of such lands, that the proceeds of the sale of the land en masse cannot be distributed, under the decree, so as to satisfy separate mortgage liens, in which neither is interested, upon separate parts of the land.</p> <p>2. Same—objection to commissioners' report cannot be first raised on appeal. An objection that the report of commissioners in partition proceedings .failed to state that the land was not susceptible of division cannot be raised for the first time on appeal.</p> <p>3. Judicial sales—sale of land en masse not set aside in absence of fraud or injury. A sale of land en masse, after offering each tract separately, for a larger amount than the aggregate of the separate bids, is not unlawful, and will not be set aside in equity, in the absence of fraud or injury.</p> <p>4. Same—when a partition sale is good though separate tract does not bring two-thirds of its value. Under section 27 of the Partition act (Bev. Stat. 1874, p. 752,) a partition sale is good though some particular tract does not bring two-thirds its valuation by the commissioners, if the aggregate proceeds of the sale of all the land is equal to two-thirds of the tgtal valuation thereof.</p>

<p>1. Colob OF title—bad faith in procuring color of title is not presumed. Failure by the holder of a tax deed, relied on as color of title, to comply with all the statutory requirements concerning deeds to land sold for taxes does not constitute bad faith.</p> <p>2. Limitations—part performance under section 6 cannot be tacked to section 7. Payment of taxes under color of title on vacant and unoccupied land for several years cannot be tacked to payment of taxes after the holder of color of title has enclosed the land and taken possession, so as to constitute seven years’ payment.</p> <p>3. Same—taxes paid before acquiring color of title are of no avail. Taxes paid by a party before he obtained color of title cannot be availed of to complete performance under section 6 or 7 of the Limitation act.</p> <p>4. Ejectment—action by minors should be brought in their names by guardian. An action of ejectment by minors is properly brought in their names by their guardian.</p>

W. T. Hodson, Judge, presiding. On March 15, 1897, the city of Chicago passed an ordinance, providing for the curbing, filling and paving of West Taylor street in that city from the west curb line of California avenue to the east curb line of Kedzie avenue, and that the cost of said improvement should be paid by special assessment.

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

<p>Appeal from the Appellate Court for the Fourth District;-—heard in that court on appeal from the County Court of Madison county; the Hon. William P. Early, Judge, presiding.</p>

John Barton Payne, Judge, presiding. This is an action in assumpsit, brought by the appellants against the appellee company to recover compensation claimed to have been earned by them under the agreement, dated April 17, 1894, hereinafter set forth, The declaration consisted of the common counts with an affidaxdt of claim. Attached to the common counts was a copy of the said agreement or contract. The appellee pleaded the general issue.

R. W. Clifford, Judge, presiding. This is an action on the case, brought by the appellant against the appellee, sheriff of Cook county, charging that the appellee unlawfully refused to levy a writ of execution, issued out of the office of the clerk of the superior court of Cook county in favor of appellant; and charging that the appellee, as such sheriff, made a false return of “no property found” upon such execution. The appellee filed the plea of the general issue.

<p>1. Evidence—action for wrongful death—sufficiency of evidence. Evidence that the deceased was seen at the only public crossing in the village, waiting for a freight train going east to pass, that the engine of a train going west on another track passed the caboose of the freight near the crossing at a rate of speed prohibited by ordinance, and that the body of the deceased, marked and bruised, was found half an hour later about eighty feet west of the crossing, no other train having passed in the meantime, tends to show that deceased was on the crossing and was there struck by the engine so running at unlawful speed.</p> <p>2. Same—due care need not be proved by direct evidence. Proof that the deceased was careful, sober, industrious, in good health, and so situated that it is fairly inferable that the instinct of self-presetvation was as strong in Mm as in other men, may be considered by the jury in determining whether he used due care, and in the absence of eye-witnesses to the accident proof of such circumstances legally tends to prove that fact.</p> <p>3. Same—witnesses need not be experts to testify as to the rate of speed. Witnesses who are familiar with trains are competent to testify as to the rate of speed at which a certain train was running when observed by them.</p> <p>4. Negligence—question of due care is ordinarily one of fact for the jury. Whether the deceased was exercising due care for his safety is ordinarily a question of fact for the jury, to be determined from all the facts and circumstances in evidence; and it is not error to refuse instructions stating that it was the duty of the deceased to do certain things and that the omission thereof would constitute negligence.</p> <p>5. Damages—lineal kindred entitled to nominal damages without proof of loss of support. Under the statute relating to actions for wrongful death, lineal kindred of the deceased are entitled to at least nominal damages without proof of loss of support.</p>

<p>1. Judicial sales—rule of caveat emptor applies to sale by administrator to pay debts. The rule of caveat emptor applies to a sale by an administrator under a decree of the county court, and a purchaser who fails to acquire a good title cannot be relieved, in the absence of fraud or mistake of such a character as vitiates the transaction.</p> <p>2. Same—administrator’s power is determined by the law and the decree. An administrator is vested only with a naked power to sell the intestate’s real estate under the decree of the county court, without power to warrant the title either for himself or the estate, or to make any terms except those fixed by the law and the decree.</p> <p>3. Same—when purchaser at an administrator’s sale cannot be relieved ugainst foreclosure. In the absence of fraud the purchaser of land at an administrator’s sale cannot defend against foreclosure for the purchase money, upon the ground that the intestate left minor heirs who have an estate of homestead in the land sold, which land, being worth less than $1000, was not liable to be sold for debts.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the City Court of the city of Alton; the Hon. B. H. Canby, Judge, presiding.</p>

<p>1. Deeds—a deed intended as a testamentary devise must be delivered during grantor’s life. A deed intended as a testamentary devise, but not executed with the formality of a will, must be delivered during the lifetime of the grantor or it is inoperative.</p> <p>2. Same—possession of a deed obtained by grantee without grantor’s knowledge is not a delivery. The possession of a deed obtained by the grantee without the knowledge or consent of the grantor does not show a good delivery.</p> <p>3. Bes judicata—when affirmance of decree dismissing bill to remove cloud does not bar ejectment. The affirmance by the Supreme Court of a decree dismissing a bill to cancel a deed as a cloud on complainant’s title, the decision being based upon the ground that as the complainants were not in possession their remedy was ejectment, the merits of the case not having been considered, is not a bar to a subsequent ejectment suit by the same parties to recover the premises covered by the deed previously sought to be canceled.</p>

<p>1. Amendment—board of education may amend record of a previous meeting to show the facts. A board of education may order the clerk to amend the record of a previous meeting to show the facts although the personnel of the board has changed, as the authority for such amendment does not rest upon the personal recollection of the members of the board, but upon the knowledge of the clerk, or such files, minutes or memoranda as put him in possession of knowledge of what transpired at such meeting.</p> <p>2. Por a statement of this case the court refers to the opinion of the Appellate Court reported in 74 Ill. App. 401, and approves the same as properly disposing of the substantial questions involved.</p>

<p>li Statute of Frauds—performance must be shown to take oral contract out of the statute. To warrant the enforcement, in equity, of a parol contract for the conveyance of land, such a performance on the part of the promisee must be shown as will take the contract out of the operation of the Statute of Frauds.</p> <p>2. Same—courts require strict proof after death of both parties to oral contract. An alleged oral promise by a father to convey land to his son will not be enforced by a court of equity after the death of both parties, unless the court is well satisfied of the existence and character of the promise and of the substantial justice of the demand for the exercise of its powers.</p> <p>3. Same—mere taking possession of land does not take contract out of statute. Equity will not enforce a parol promise by a father to convey land to his son unless the promise has been acted upon by the latter, not only by taking possession, but by the expenditure of his money thereon and by the making of lasting and valuable improvements thereon with the knowledge and consent of the promisor.</p> <p>4. Same—expenditure of promisor’s money is not a part performance. The expenditure of the father’s money in making valuable improvements upon land which he is alleged to have verbally promised to convey to his son is not such a part performance as satisfies the requirements of the Statute of Frauds, even though the son is in possession of the land.</p> <p>5. Evidence—wife cannot testify to declarations of deceased husband during coverture. A wife cannot testify as to declarations by or conversations with her husband during coverture, although the marriage relation has been severed by death or divorce.</p> <p>6. Same—loose declarations by promisor not satisfactory proof. An alleged parol promise by a father to convey land to his son must be established by clear, definite and unequivocal proof, particularly after the death of both parties, and loose declarations by the father to third persons, such as designating the land as his son’s without any explanation sufficient to evidence a gift, are not sufficient.</p> <p>7. The court reviews the evidence in this case at length, and holds that it is not sufficiently clear to warrant a finding that an oral promise to convey existed, or that the money used in making valuable improvements on the land was the money of the promisee.</p>

<p>1. Appeals and errors—Supreme Court does not weigh evidence in determining propriety of refusal of peremptory instruction. In determining the propriety of the trial court’s refusal of defendant’s peremptory instruction, the question is whether the evidence, with all reasonable inferences which the jury might draw therefrom, is sufficient to support a verdict for the plaintiff.</p> <p>2. Master and servant—master must use reasonable care to provide safe appliances for servant. The master must use ordinary care in providing reasonably safe appliances for the use of his servant.</p> <p>3. Same—master cannot shift responsibility for unsafe appliances on other parties. The master’s duty to exercise reasonable care in providing appliances for his servants is a positive obligation, and he is liable for failure to discharge that duty, whether he undertakes its performance personally or through other persons.</p> <p>4. Same—servant may assume that appliance is reasonably safe. A servant, while bound to take notice of patent defects in an appliance, is not required to make an examination for latent ones, and may properly act on the presumption that the master has used ordinary care "to make the appliance reasonably safe.</p>

<p>1. Trusts—wife’s laches may defeat her right to assert resulting trust. A wife who neglects, for a period of about seven years, to ascertain that the deed to property purchased with her money is made in her husband’s name, although the deed is in her own house and easily accessible during the entire period, cannot assert a resulting trust to defeat the lien of one who extended credit to the husband on the faith of his apparent title and without notice of the wife’s equity.</p> <p>2. Convey anoes—deed takes effect from date of record as to judgment creditor. A wife who obtains a deed from her husband upon ascertaining that he had taken title in his own name though the property was bought with her money, but who withholds such deed from record until after a creditor of the husband has obtained judgment and levied on the property on the faith of the husband’s apparent title, cannot assert title to defeat such lien.</p> <p>3. Notice—verbal notice of wife’s title after levy by husband’s judgment creditor is not sufficient. Verbal notice by the wife to a judgment creditor of the husband that she claims title to the property upon which he has levied an execution issued on a judgment for a credit extended to the husband upon the faith of his apparent legal title to the property, in no way affects such creditor’s rights or interest.</p> <p>4. Same—judgment creditor without notice occupies the same position as an innocent purchaser. One who has obtained a judgment against his debtor before the recording of a deed by which the debtor has transferred his title to a third party, occupies the same position as a subsequent purchaser without notice, within the meaning of section 30 of the Conveyance act.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. T. M. Shaw, Judge, presiding.</p> <p>This is a condemnation proceeding, begun by the appellant company for the purpose of condemning seven lots in the city of Peoria, to-wit, lots 29, 30, 31, 32, 33, 34 and 37 in Mills’ second addition to that city. Lots 29, 30 and 31 are the property of the appellee, the Leisy Brewing Company, and lots 32, 33, 34 and 37 belong to the appellee, Jane A. Guth. The lots front on Water street in the city of Peoria, and run back to or towards the Illinois river, or that part of the river which, at that point, is designated “Lake Peoria.” Each lot has a frontage of 50 feet and a depth of between 150 and 210 feet, except lot 37, which has a frontage of 66 feet. The tracks of the appellant company and those of another railroad company, being five or six in number, lie along Water street, adjoining the property sought to be condemned. The petition for condemnation states, that it is necessary for the petitioner to take, appropriate and use said lots for the purpose of laying side-tracks and switches thereon to enable it to properly do its business with the general public, and perform its functions as a railway company. The petition further alleges, that it is necessary to take the whole of said lots for the purpose of constructing thereon side-tracks and switches to be used with the other property of the apjiellant in the carrying on of its business, and that without said lots it cannot utilize its other property in said addition.</p> <p>Upon a trial of the case before the court and a jury, the jury returned a verdict assessing the compensation to be paid for lots 29, 30 and 31 at $4500.00, and for the other lots 32, 33, 34 and 37 at $5200.00; and, as compensation to one Spurck, for a tax title held by him on the property, one dollar. After overruling a motion for new trial, judgment was entered upon said verdict in accordance with the terms thereof, and of a certain stipulation, according to the brewing company the privilege of connecting its brewery with the river for the purpose of obtaining water and sewerage and maintaining a pump station upon the river bank, subject to the condition that such use by the brewing company should not interfere with the use by the railroad company of said property for the purposes of laying railway tracks and operating cars thereon; and, also, subject to the condition that the pumping station, if maintained by the brewing company, should be so constructed as not to prevent the filling in of said lots and laying tracks thereon. The present appeal is prosecuted from such judgment of condemnation.</p> <p>Instructions numbered 1, 2, 3, 4, 6, 8 and 9 given for the defendants are as follows:</p> <p>1. “The jury are further instructed, that, as owners of lands fronting upon and bounded by a navigable stream, the defendants in this case, subject to the rights of the public in such navigable stream, own their several lots to the middle thread of said stream, and the said defendants, as such lot owners, have the right to use and enjoy their several lots by building docks and wharves thereon, or by filling in the same with earth or other solid matter to any extent whatever, so long as they do not interfere with the rights of navigation by the public in such stream.</p> <p>2. “The jury are further instructed, that in determining- the fair cash market value of the property sought to be condemned in this case you have a right to take into consideration, and should take into consideration, all the purposes for which said property is adapted and is used or may be used., so far as such adaptation and uses are shown by the evidence or by your view of said premises, so far as the same may have affected the market value on 14th Sept. 1896.</p> <p>3. “The jury are further instructed, that the defendants in this case are each entitled to the fair cash market value on the 14th day of September, A. D. 1896, of their respective lots sought to be taken, regardless of the causes which gave them value at that time. If the jury believe, from the evidence in the case, including their own view, that the value of said lots, or any of them, on that day was owing, in whole Or in part, to the projection by the plaintiff of the improvement to its railroad facilities for which it seeks to condemn said lots, still the owners of said lots are entitled to the fair cash market value of said lots as they then stood.</p> <p>4. “The jury are further instructed, that the owner of lands or lots fronting- upon a navigable stream, and of which lands or lots such stream forms one of the boundary lines, has a lawful right to erect docks and wharves conforming to such boundary line in and along said river, conforming, however, to the regulations of the proper public authorities for the protection of the public rig'hts in such stream; and such owner may so place such docks and wharves as to have the benefit of the navigable part of such stream, but not interfering with the public rights of navigation.</p> <p>6. “The court instructs the jury, that in fixing the amount of compensation to be paid to the defendants, severally, you should take into consideration the use for which the property is suitable and to which it is adapted, having regard for its situation and the business wants of that locality, or such as may reasonably be expected in the near future, so far as the same appears from the evidence, and so far as the same affects its market value on the 14th September, 1896.</p> <p>8. “The court instructs the jury, that if you find, from the evidence in this case, that the lots in question, or any of them, are susceptible of enlargement and extension by filling, thus giving increased areas for any use to which the property may be put, then you have a right to take that into account in arriving at your verdict, and give such fact the weight which, in your judgment, it is entitled to receive, so far as the same affected their market value on the 14th of September, 1896.</p> <p>9. “The court instructs the jury, that the owners, severally, of the lots fronting on the Illinois river and here sought to be condemned, own to the middle thread of the stream, subject only to the right of the public to use the navigable portions thereof for purposes of navigation. Such owners have also the exclusive right to any and all ice forming in said river in front of their lots, respectively, to the middle thread of the stream, and may themselves cut and remove the same, or sell such ice to another with the exclusive right to harvest it.”</p>

<p>1. Wills—verdict in will case has same force as verdict at law. The verdict of a jury in a contested will case has the same force as a verdict in a common law case, and will not be set aside by an appellate tribunal unless manifestly against the evidence.</p> <p>2. Same—proponents in will contest should offer all their affirmative testimony in chief. Opinions of witnesses, called by proponent, as to the testamentary capacity of the testator, based upon a hypothetical question, should be given in chief, but it is not reversible error to permit them to be given in rebuttal.</p> <p>3. Same—certificate of oath of witnesses at first probate is admissible on contest. Under the statute (Rev. Stat. 1874, p. 1102,) the certificate of the oath of the witnesses at the time of the first probate is admissible in a subsequent proceeding to contest the will, and is entitled to such weight as the jury may give it,</p> <p>4. Same—competency of witness to attest will is determined as of the date of attestation. The competency of a witness attesting a will is to be determined by the state of facts existing at the time of the attestation, and not by that existing at the time the will is offered for probate, or when interested parties seek to contest the will.</p> <p>5. Evidence—proponent may show that testator regarded devisee'with affection. Letters written by the testator to his devisee are admissible in a proceeding to contest the will, as tending to show the affection of the former for the latter, the presumption being in favor of the validity of a will providing for one with whom the testator has maintained affectionate relations.</p> <p>6. Same—one offering letters in evidence is not compelled to read them in entirety. Permitting one offering letters in evidence tending to show the affectionate relations existing between the testator and his devisee, to read extracts therefrom, is not error, as, the whole letters being in evidence, the other party may read them in their entirety, if he desires.</p> <p>7. Same—admissibility of certificate of husband’s oath at probate in contest proceeding by wife. The husband of the testator’s sister, who takes no interest under her brother’s will as devisee, legatee, heir or executrix, is competent to attest the will, and the certificate of his oath at the time of the probate of the will is admissible in a contest in chancery to which his wife is a party complainant.</p> <p>8. Instructions—effect of instruction that burden of proof in will contest shifts. An instruction that the burden of proof shifts, in a will contest, upon the proponent’s making aprima facie case, is inaccurate, as the jury are to determine, from the whole evidence, whether the instrument offered is the will of the testator; but such an instruction will not reverse unless apparently misleading.</p>

<p>1. Bills and notes—endorsement by a party knowing he is not the payee is a forgery. An endorsement of a bill of exchange, negotiable only by endorsement, by a party who knows he is not the real payee though he bears the same name, is a forgery.</p> <p>2. Names—law does not recognize a middle initial as part of a name. An endorsement of a bill of exchange, payable to order, by a person who bears the name inserted as payee but who knows he is not the real payee, is no less a forgery because the real payee’s middle initial differs from the endorser’s, which corresponds to the one inserted in the bill.</p> <p>3. Banks—bank may refuse payment of bill endorsed by party who is not the real payee. One who in good faith purchases a bill of exchange x>ayable to order, and endorsed by a party having the same name as the real payee but who is not the person intended as payee, acquires no title, and cannot recover against the bank on which the bill is drawn upon its refusal to pay the same on the ground that the endorser was not the real payee.</p>

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

<p>1. Evidence-Umt?/ may find for plaintiff if evidence slightly preponderates in his favor. It is not error, in an action for negligence, to instruct the jury that while the burden is on the plaintiff to prove his case by a preponderance of the evidence, yet a slight preponderance in his favor would be sufficient to authorize a recovery.</p> <p>2. Same —jury may always consider interest of witness. It is always proper for the jury, in determining the credibility of a witness, to consider any interest which he is shown to have in the suit.</p> <p>3. Negligence—when modification of instruction concerning due care is not improper. An instruction, in an action for negligence, that plaintiff must prove that he was exercising “that degree of care and caution at the time of the injury which a reasonably prudent man would have exercised under like circumstances,” is not improperly modified by the court by adding the words, “and in the situation that plaintiff was placed, as shown by the evidence.”</p>

<p>1. Corporations—courts mil not control enforcement of reasonable by-laws. Courts will not interfere to control the enforcement of reasonable by-laws which infringe no rule of law or public policy, but will leave such enforcement to the corporation in the manner they have adopted for their own government and discipline.</p> <p>2. Same—member agrees to abide by reasonable by-laws. One becoming a member of a corporation agrees and is bound to abide by its by-laws and rules adopted with reference to its government and discipline, which are authorized by the nature of the corporation, and not unreasonable or against the law or public policy.</p> <p>3. Same—by-law providing for investigation of charges without notice to member is not unreasonable. A by-law of a board of trade providing that a reported ofiense by a member involving the good name of the corporation shall be investigated by a committee, without notice to the member, to determine whether charges will be preferred, is not unreasonable or against public policy or law, as such preliminary inquiry is not a trial.</p> <p>4. Same—fact that charges are preferred by member of trial board not ground for equitable interference. Equity will not enjoin the trial of a member of a board of trade by the board of directors upon a charge of violating its rules and regulations, although the charges are preferred by a member of said board and the preliminary inquiry was conducted by a committee composed of part of such board.</p> <p>5. Same—by-law excluding right to professional counsel is not illegal. Equity will not enjoin the trial of a member of a board of trade by the board of directors upon the charge of violating its rules and regulations, upon the ground that under the by-laws and rules, to which the member has subscribed, the right to professional counsel in such case is denied.</p> <p>6. Same—fact that member avers his innocence does not affect right of procedure. The fact that a member of a corporation avers his innocence of a charge against him which is clearly a violation of the by-laws, does not affect the right of the corporation to follow its prescribed rules of procedure in bringing the member to trial.</p> <p>7. Boards of trade—existence of unperformed contracts does not prevent expulsion of member of board of trade. The existence of unperformed contracts undertaken by a member of a board of trade will not prevent his trial and expulsion for a violation of its rules, as customers dealing with a member of such an organization are conclusively presumed to have dealt with reference to its rules.</p>

<p>1. Specific performance—specific performance defined. Specific performance is an equitable remedy which compels the performance of a contract in the precise terms agreed upon, or such a substantial performance as will do justice between the parties.</p> <p>2. Same—specific performance not a mere matter of favor. Although inflexible rules cannot be laid down for the government of courts of equity in decreeing specific performance, yet where all the necessary elements, conditions and incidents are present, relief by way of specific performance should be granted as a matter of right.</p> <p>3. Evidence—parol evidence is admissible to identify premises described in deed. On bill for specific performance of a contract to convey a certain lot in a certain block “in the city of,” etc., parol evidence is admissible to show that the property, described in the tendered deed by the same lot and block numbers but as in a certain subdivision, was in fact the property contemplated, and that there was no block by the same number in the original plat of the city.</p> <p>4. Same—evidence not admissible on question of sufficiency of title. On bill for specific performance, where the defendant alleges defective title to plaintiff’s property, it is a question for the trial court, upon a hearing, to determine from the contract, and as a question of law, whether such title is sufficient, and it is error to admit testimony of attorneys and examiners of title upon that question.</p> <p>5. Contracts—provision for furnishing abstracts of title construed. A provision in a contract that each party to a land trade should furnish a merchantable abstract of title within ten days from the date of the contract and a deed to the property within three days after the title was found to be good, does not require that the title be perfected within three days after delivery of the abstract, but allows a reasonable time to correct irregularities.</p> <p>6. Waiver—abandonment or waiver must be shown by clear proof. Courts will indulge no presumptions in favor of a waiver or abandonment of a contract sought to be specifically enforced, nor will they infer waiver or abandonment from slight proof.</p> <p>7. Fraud—a mere expression of opinion as to value is not a misrepresentation. The expression of an opinion by the owner of property as to its value is not, of itself, a fraudulent representation.</p>

<p>1. Special assessments—words appearing in copy of ordinance but not contained in original may be stricken out. Words inserted in the copy of a paving ordinance attached to the petition for confirmation to describe the quality of asphalt, which are not contained in the ordinance as passed, may be stricken out at trial by way of amendment, and confirmation may be had, if it is not shown that a re-casting of the assessment is rendered necessary by the change.</p> <p>2. Same—ordinance can be amended only by act of same grade. An ordinance for paving a street cannot be amended to change the character of paving material by certain “orders” passed by the council on motion.</p> <p>3. Same—unauthorized change of material by council after filing roll does not defeat confirmation. Gbnfirmation of a paving assessment cannot be defeated on the ground that the council had made an unauthorized change in the paving material after the assessment roll had been made and filed, in the absence of evidence showing the original ordinance was not followed in making the assessment.</p> <p>4. Same—right to pave street not limited to a single assessment. Confirmation of a special assessment for paving a street with asphalt cannot be defeated by the fact that the street had been paved with cedar blocks some eight years before and the cost thereof paid by special assessment, where the evidence tends to show that it was necessary to take up the blocks and lay a more durable pavement.</p> <p>5. Same—effect where commissioners assess no cost to city. The commissioners’ determination as to the relative amount of the cost of an improvement which is to be borne respectively by the municipality and the property owners is final, and the fact that the city’s share is fixed at “no dollars” does not show that the improvement is not a public one, such as might be made by special assessment.</p>

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p> <p>At the October term, 1897, of the criminal court of Cook county, the plaintiffs in error, Harry and Joe Feinberg, were convicted of the crime of robbery. One Burns, who was jointly indicted and tried with them, was acquitted. The evidence showed that on the night of July 8, 1897, five men,—four of whom wore masks,—entered a street car in Chicago at the end of its run, and with drawn revolvers made an assault upon the prosecuting witness, Charles F. Freligh, who was the conductor, and forcibly took from him his gold watch and $31 in money. Freligh identified Joe Feinberg at the trial as the one of the robbers who wore no mask, and it was shown that soon after the robbery Harry Feinberg had possession of the watch, and was arrested while endeavoring to dispose of it at a pawnshop. The defense disclosed by the cross-examination of the People’s witnesses, the remarks of counsel and affidavits for a new trial contained in the bill of exceptions,- (for no evidence was adduced by plaintiffs in error,) was an alibi, and that the identification of plaintiffs in error was falsely or mistakenly made.</p> <p>The indictment was returned at the July term, 1897. When the case was called for trial at the October term, John C. King', who had been employed by plaintiffs in error as their counsel in the cause, was not present, but Frank C. Zink, an attorney, appeared in court at his request and informed the court that King was then engaged in the trial of another cause which had been entered upon the previous day, and would continue to be so engaged for two days more, and moved the court to pass the case until King could appear for his clients. The attorney for the People informed the court that the case had been passed at a previous time because King was eng'aged in the trial of another cause, and the court denied the motion and directed that the trial proceed, and Zink, for plaintiffs in error, excepted. The court announced that he would appoint Zink to defend plaintiffs in error, but Zink, stating that he was wholly unfamiliar with the case and had made no preparation, was permitted to decline. Zink again asked the court to pass the case until he should go to the circuit court and inform King of the court’s decision, but his request was refused and he left the court room, and the court directed a jury to be sworn to answer questions. The court then asked plaintiffs in error if they wanted a lawyer, and they replied that they wanted no one but their own lawyer to defend them. The jury were then sworn to answer questions, and thereupon the plaintiff in error Joe Feinberg protested against their being tried in the absence of their attorney, and stated to the court that they could not defend themselves. Mr. Ramsey, attorney for the other defendant, Burns, then stated to the court that he did not know what the defense of the Feinbergs was, and could not defend them, and moved the court, on behalf of plaintiffs in error, to pass the case until King should become disengaged. The motion was overruled and an exception taken, and the court directed that the trial proceed. The court again asked plaintiffs in error whether or not they wanted counsel, and they replied that they did if they could not get their own lawyer, whereupon the court appointed Leon Horn-stein, an attorney present in court, to defend them, who stated to the court that he knew nothing about the case but would do the best he could under the circumstances. The jury were then examined, selected and sworn to try the cause. The witness Freligh was called and sworn, whereupon J. E. Ingram, an attorney, came and stated to the court that he came at the request of King, who was then engaged in the trial of another cause in the circuit court, to ask that the case be continued until King should be disengaged; that plaintiffs had been in prison for some months, and that he understood that their evidence was not then in court, and that they could not safely go to trial without their counsel and without their witnesses. The court stated that he had been informed by the State’s attorney that the case had been passed once for a similar reason and that he would not grant a second continuance for the same reason. Ingram and Hornstein thereafter represented plaintiffs in error throughout the trial.</p> <p>■ When the People rested their case, the record shows the following proceeding's were had:</p> <p>Mr. Ingram: “If the court please, I see it is now about adjourning time, and as the court appointed- Mr. Horn-stein to defend these boys this morning in court, and he informs me that he has not had an opportunity to examine them and see what their defense is, neither has he talked to any of the witnesses, and as I have already informed your honor that Mr. King is engaged in the trial of a case before his honor Judge Dunne, in the circuit court, and I chanced to come in court where Mr. King was engaged and he requested me to see if this case could not be passed until he finished the case in which he is now eng'aged, or, if the case was forced to trial, to proceed and assist in the defense, now, I would ask the privilege of the court for an opportunity to talk with the Feinberg boys, and also the indulgence of the court that I may talk to their witnesses, to see what they will testify to and of what knowledge, in general, they possess of the facts of this case.</p> <p>The court: “You have been sitting with them in court all day and had time enough to consult them, and I will not give you any time; so go ahead with your defense. You must finish this case right now.</p> <p>Mr. Ingram: “But, your honor, I have not talked with the defendants, and must hear their side of the case before placing them upon the stand,—that is, if I do so at all; and I must have an opportunity to examine their witnesses, and it will only occupy the indulgence of the court but a very short time. Your honor can’t conscientiously ask me to proceed under the circumstances under which Mr. Hornstein and myself are now placed in reference to a proper defense.</p> <p>The court: “You must proceed immediately.</p> <p>Mr. Ingram: “I object to the ruling of the court, inasmuch as the constitutional rights of these defendants are jeopardized.</p> <p>The court: “Are you g'oing to proceed, sir?</p> <p>Mr. Ingram: “I understand that Mr. ¡Ramsey is ready to put in his defense for his client.</p> <p>(Evidence for Michael Burns submitted by Mr. Ramsey.)</p> <p>The court: “Several witnesses for the Feinbergs were sworn this morning" and excluded from the court room. The usual hour for adjournment has not yet arrived. I will permit the defendants Joseph and Harry Feinberg tomorrow to call and examine any witnesses not now in attendance, but I will not adjourn now and permit witnesses now in attendance to be called and examined to-morrow.</p> <p>“And thereupon the court had all the witnesses who had been sworn at the request of the defendants and excluded from the court room, who had not been examined, brought to the bar of the court, and then said to the counsel for defendants:</p> <p>“If you want to examine any of these witnesses you must proceed with their examination now.</p> <p>Mr. Ingram: “I do not wish to examine any of these witnesses.</p> <p>The court: “Then we will adjourn, and to-morrow you can call and examine any witnesses except these now present.</p> <p>“And thereupon the court adjourned until the following day. Court convened pursuant to adjournment on the 6th day of October, 1897, and the taking of testimony was begun. Further testimony was offered on behalf of the defendant Michael Burns, and at the conclusion of the same, the court, addressing counsel for Feinbergs, said:</p> <p>The court: “Do you want to proceed with the defense?</p> <p>Mr. Ingram: “No, your-honor; we rest our case.”</p> <p>After verdict, in support of the motion for a new trial, affidavits of King", Hornstein and the Feinbergs were filed, showing that King had been retained to defend plaintiffs in error, that he had consulted with them and talked with their witnesses, and had made preparation for the trial, and setting" up, g-enerally, the matters hereinbefore stated. Other affidavits set forth facts which, if true, would have shown that at the time of the robbery Joe Feinberg was at the home of his parents, where upwards of fifteen persons were in attendance at a birthday party given for his sister.</p>

<p>1. Freehold—a suit requiring determination of existence of perpetual easement involves a freehold. A suit the issues of which necessarily require the determination of the existence or non-existence of a perpetual easement in land, involves a freehold.</p> <p>2. Drainage—Drainage ad, of 1S89 converts license to build draininio an easement. The Drainage act of 1889, (Laws of 1889, p. 116,) concerning drains constructed by mutual consent, agreement or license of the owners of adjoining lands, operates to convert all parol licenses for such drains, which were not revoked within the time limited by the act, into perpetual easements.</p> <p>3. Same—right to perpetual drainage easement is binding on owners of lands and their grantees. The Drainage act of 1889 (Laws of 1889, p. 116,) has the effect to make a drain constructed in the manner therein indicated an encumbrance upon the land through which it runs, and the right to have the ditch maintained and to have the water flow through it unobstructed is a permanent one, binding upon the owners of the land and their grantees.</p> <p>4. Same—owners of dominant estate may go upon the servient estate to make repairs. Owners of land having a perpetual easement in form of a drain constructed across the land of another have a right of access to the land through which it runs, and may go upon the same and make necessary repairs to keep the flow unobstructed.</p>

<p>Writ of Error to the Circuit Court of Effingham county; the Hon. S. L. Dwight, Judge, presiding.</p> <p>The bill in this case was filed by Fred Croft and Margaret Croft, plaintiffs in error, to set aside a deed made by them to William J. Perkins for 220 acres of land in Effing'ham county, Illinois, or in case the deed should not be set aside, the bill asks for a strict foreclosure of a vendor’s lien upon the land so deeded, for the amount of the unpaid purchase money.</p> <p>The bill alleges that on the 7th day of December, 1895, a contract was entered into in writing between Fred Croft and William J. Perkins, by which Croft agreed to convey to Perkins 220 acres of land, for which Perkins agreed to pay §15 per acre, making §3300. Said contract is as follows:</p> <p>“Contract between Fred Croft, of Watson township, and W. J. Perkins, of Union township, both of Effingham, county and State of Illinois: Now know ye, all men, etc., that I, Fred Croft, have bargained and sold to the said W. J. Perkins the following lands, to-wit: Sonth-west quarter section 1, town 6, north, range 6, and the north half of the south-west quarter of section 36, and the north-east quarter of section 36, and 20 acres off of the south side of the south-east quarter of the north-west quarter of section 36, all in town 7, range 6, except the first 80 acres, for the sum of $15 per acre, to which the said Fred Croft agrees to give the said W. J. Perkins an abstract title, and the said Fred Croft agrees to take of the said W. J. Perkins the east half of the south-east quarter of section 3, town 6, range 6, as part payment, for the sum of $1000, and the said Perkins agrees to give the said Fred Croft an abstract title to the same. Now, it is further agreed that the said Perkins is to pay the said Croft all the money, less $1000 to be paid in land, if he can possibly get it, on or before the first day of March, 1896, but it is also agreed that if the said Perkins can’t raise the said amount to pay it all, then the said Croft is to accept of $2500, including $500 paid by said Perkins in land, and then take a second mortgage for the remaining $800, due in one year, with seven per cent interest.</p> <p>“Dated this 7th day of December, 1895.</p> <p>Fred Croet,</p> <p>W. J. Perkins.”'</p> <p>The bill charges that the land sold to Perkins, and the 80 acres he was to let Croft have, should be conveyed by perfect titles and free from encumbrance, the words in the contract, “an abstract title,” being understood by the parties to mean a perfect title, free from encumbrance; that Perkins had the deed prepared for Croft and wife for the 220 acres, and also the deed from himself and wife to Croft for the 80 acres which were to be taken towards the payment of the 220 acres; that Perkins represented that the money was ready to pay for the land, and thereupon Croft and wife executed the deed for the 220 acres; that after the deed was executed Perkins stated the money was not there, but at Effing-ham, and that in order to obtain the money it was necessary for Perkins to have the deed and take it to Effingham and have it recorded, when he would get the money and return immediately and pay Croft, and thereby complainants were induced to let Perkins take the deed; that Perkins was a near neighbor to the Crofts, and had often in the past few years advised them in regard to their business matters, and had their confidence; that Perkins did not have the money ready at Effingham, or elsewhere, to pay for the land according to the contract, and had not then even applied for a loan of money; that afterwards, on the 16th of January, 1896, Perkins applied for a loan on the 220 acres of land, and on the 14th of February, 1896, he obtained a loan of §1500 on the said 220 acres so conveyed to him, out of which he paid a §600 mortgage and §42 interest thereon, and §50 interest on a mortgage due from Croft to one Gilmore on another tract of land, and certain expenses, making in all about §696.75, and retained out of the §1500 the sum of §500, which he converted to his own use instead of paying it to Croft; that he only paid Croft §300, making, with the mortgagee he paid off for Croft, and the interest, about $996.75; that said sum was all that Perkins had ever paid to Croft in money, directly or indirectly, on the purchase of the land, all of which money was a part of the proceeds of the §1500 mortgage which Perkins put upon the land; that at the time of the payment of the §300 he asked complainants to take a mortgage for the balance of the cash payment, which they refused to do, but were williug to take a mortgage for $800, as provided in the written contract; that Perkins having obtained the deed for the 220 acres of land, and having mortgaged the same for §1500 and retained $500 himself, demanded of the Crofts that they should take a second mortgage on the 220 acres for $1800, due in four years, for the residue of the purchase money, and informed them he could get no more money and could pay no more on the land; that Perkins sets up as an excuse that there had been a change made in the terms of payment, by which Croft agreed to take a second mortgage on the land for $1800; that Perkins was insolvent and unable to pay anything on the purchase of the 220 acres except what he realized by mortgaging or selling the land; that the Crofts, when Perkins refused to make the payment for the land according to the terms of the contract, retained possession of the 220 acres, and did not take possession of the 80 acres Perkins had conveyed to them in part payment for the 220 acres of land. The bill prays for an injunction, and asks that the deed from Croft and wife to Perkins be set aside and said contract canceled, or, in case said deed is not set aside, that complainants be decreed to have a vendor’s lien upon the lands in the deed so executed by them, for the unpaid purchase money, etc.</p> <p>The answer of defendants denies that defendant William J. Perkins stated to complainants on the 7th of January, or at any other time, that he was ready to pay for said premises according to said agreement, but avers the agreement was abandoned by complainants and defendants and a new verbal contract made on or about the 20th day of December, 1895, by which complainants agreed to sell said 220 acres of land to defendant Perkins for the sum of $3300, the land to be paid for, in part, by conveying the title to the east half of the north-west quarter of section 3, township 6, north, range 6, east of the third principal meridian, in Effing'ham county, Illinois, for $1000, and Perkins to negotiate a loan for as large an amount as could be borrowed upon the said land, and after deducting $500 from said amount of said loan said defendants to pay the complainants the remainder; that for the residue of said $3300 defendants would execute a note, secured by a second mortgagee upon the said 220 acres of land, payable in five years, with seven per cent interest, and that complainants should convey the title to said 220 acres to William J. Perkins and enable him to negotiate a loan and comply with that agreement; admits the conveyance was made January 7, 1896, by complainants to him, but denies it was in fraud of complainants’ rights or for the purpose of injuring them; that after obtaining the title to said 220 acres, and with knowledge on the part of complainants, he obtained from Kagay & Kelly a loan thereon for the sum of §1500; that it was agreed complainants should pay to Perkins out of the proceeds of the loan the sum of §500; that he retained said sum, and then paid §600 to Kagay & Kelly on a prior mortgage, with §42 interest, and to S. F. Gilmore §50 interest on a mortgage, and §10 for abstracts, and paid complainants §300 in cash; that defendants, on the 7th of January, conveyed to complainants the 80 acres in section 3; that afterwards defendants executed a note for §1800, payable to complainants four years from January 1,1896, with seven per cent interest, and prepared a mortgage on said 220 acres, to be second to the mortgage for §1500, but that complainants refused to accept the same and refused to deliver possession of the land. The answer denies all fraud and intention of dispossessing complainants or encumbering the land, except as before stated.</p> <p>A replication was filed, and at the October term, 1897, a hearing was had and a decree rendered by the circuit court of Effingham county dismissing the bill and rendering a decree against the plaintiffs in error for costs. A writ of error was applied for and the case brought to this court.</p>

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