Volume 176 — Illinois Reports

<p>1. Streets and alleys—limiting use of street to pleasure driveway is not a violation of public trust. Limiting the use of a street to a pleasure driveway, under authority of a general act of the legislature, is not a violation by the municipality of the trust upon which it holds such street for the public, as the legislature has full control of public streets, subject only to constitutional restrictions and the private rights of property owners.</p> <p>2. Same—the right to use traffic wagons on every street is not a property right. ,The property rights of parties in a public street, which the legislature must respect, are ordinarily such rights and easements as they have by virtue of their being owners of abutting property, and do not include the right to use every kind of a vehicle thereon.</p> <p>3. Constitutional law—the act of 1889, concerning pleasure driveways, is constitutional. The act of 1889, (Laws of 1889, p. 83,) which empowers municipal corporations to set apart not exceeding two streets for pleasure driveways and to exclude traffic wagons therefrom, is not unconstitutional, as depriving the public of their property rights in such street without due process of law.</p> <p>4. Municipal corporations—ordinance vesting arbitrary power in board of trustees is unreasonable. An ordinance creating a pleasure driveway, under the act of 1889, which forbids the use of heavy vehicles thereon except "upon special permission” of the board of trustees, without prescribing any general conditions upon which such permission shall be granted, is unreasonable and invalid, as vesting the board with arbitrary power.</p> <p>5. Injunction—bill to enjoin enforcement of illegal ordinance—when partial validity is no defense. The fact that the invalid portion of an ordinance might be so separated from the valid portion as to enable the latter to stand, is no defense to a bill to enjoin the prosecution of complainant’s servants for violating the illegal portion.</p> <p>6. Same—when a bill to enjoin a breach of public trust shows a special damage. A bill by a lumber company to enjoin the prosecution of its teamsters for driving traffic wagons on a pleasure driveway contrary to ordinance without permission of the trustees, shows a special damage, where it alleges that the only street, other than the pleasure driveway, over which it has an outlet has been rendered impassable by the construction of a public improvement therein, and that, the use of heavy wagons being necessary and the right to use them on the pleasure driveway being forbidden, the business of the company is thereby injured and destroyed.</p> <p>7. Same—equity may enjoin enforcement of invalid ordinance to prevent irreparable injury. A court of equity has jurisdiction to enjoin the enforcement of an invalid ordinance when necessary to prevent an irreparable injury.</p> <p>8. Costs—when defendant should bear costs on dismissal of bill for an injunction. Where, under the case made by a bill to enjoin a municipal corporation from enforcing an invalid ordinance, the complainant is entitled to the relief prayed, but the defendant, by repealing the ordinance, removes the ground of complaint, the latter, in the absence of any agreement, should bear the costs upon the dismissal of the bill, even though the complainant’s contention that the act under which the ordinance was passed was unconstitutional could not have been sustained.</p>

Colostin D. Myers, Judge, presiding. On December 31, 1892, Kirkwood, Miller & Co. made a general assignment for the benefit of their creditors to Isaac C. Edwards, the appellee. They were conduct-, ing the general business of selling farming implements, wagons, buggies and bicycles, having two establishments, the main one at Peoria, Illinois, and a branch at Cedar Rapids, Iowa.

<p>Appeal from the Circuit Court of Pike county; the Hon. Jefferson Orr, Judge, presiding.</p>

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

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.

Charles J. Scofield, Judge, presiding. This bill for specific performance was brought by appellant, Joseph R Morton, against the heirs-at-law of John F., Murray, deceased, to compel them to make him a deed to the east half of the south-east quarter of section 18, in township 5, north, range 3, west, in McDonough county.

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

Richard M. Skinner, Judge, presiding. This was a petition to sell real estate to pay debts, filed in the county court of Bureau county by Henry B. Read, as administrator with the will annexed of Olivia Read, deceased. The facts appear to be as follows: Charles G. Read died testate about July 1, 1887, leaving Olivia Read, his widow, but no descendants, nor father or mother, surviving him, but leaving brothers and sisters, nephews and nieces, as his heirs.

Writ of Error to the Circuit Court of DeKalb county; the Hon. Charles Kellum, Judge, presiding. This is a bill, as originally filed and as subsequently amended, against the plaintiff in error, Elza McClelland, for the purpose of setting aside a deed, executed by Mary McClelland and Mason McClelland, her husband, the mother and father of plaintiff in error, to the plaintiff in error on January 22, 1889, conveying to him a farm of fifty-two acres of land in DeKalb county.

<p>1. Benefit societies—society organized under the general law may restrict class of beneficiaries. A benevolent association, organized under the general Incorporation act as a corporation not for pecuniary profit, may, by its certificate of incorporation, constitution and benefit certificate, restrict the class of eligible beneficiaries to members of the association and their immediate families, notwithstanding the statute is broader in its terms.</p> <p>2. Same—courts will enforce restrictions as to eligibility of beneficiaries. A benevolent association organized to furnish a home for indigent old people cannot be permitted to take, as beneficiary, under a benefit certificate of a society which limits its benefits to its members and their immediate families.</p> <p>3. Same—a member’s brother and daughter belong to his immediate family. A brother of a member of a benefit society, living in his household, may be appointed as beneficiary in a certificate restricting its benefits to members of the society and their “immediate families,” and a daughter of such member is entitled, as heir-at-law and as being of his immediate family, to take benefits which the named beneficiary is incompetent to take.</p>

Frank Baker, Judge, presiding. This is an action for damages under the statute by Louise Hansen, as administratrix of the estate of her deceased husband, Oscar Hansen, against the George A. Fuller Company and the Pioneer Fireproof Construction Company. In February, 1892, the Georg'e A. Fuller Company was engaged, as general contractor, in erecting a, fourteen-story building at 34 and 36 Washington street, Chicago.

<p>1. Eminent domain—petitioner may show that a former proceeding, relied upon as a bar, was enjoined. A decree enjoining further action in a condemnation proceeding to open a street is admissible in evidence in a second proceeding under a new ordinance for opening the same street, to defeat the objector’s claim that the former judgment was a bar. t</p> <p>2. Same—condemnation judgment cannot be attacked in supplemental assessment proceeding. Parties duly served, or who appeared in condemnation proceedings by a city, cannot, in the supplemental proceeding under section 53 of article 9 of the City and Village act, raise any objection to the condemnation judgment which might have been urged in the condemnation proceeding, as the supplemental proceeding is merely collateral.</p> <p>3. Same—one having right of travel is not a necessary party to proceeding to condemn. One having an easement of right of travel over land is not a necessary party to a proceeding to condemn such land for the purpose of opening a street.</p> <p>4. Same—when affidavit is sufficient, on collateral attack, to authorize publication of notice. An affidavit which states that certain of the defendants to a condemnation proceeding cannot, after diligent search, be found within the State of Illinois, so that process cannot be served upon them, and that the places of their residence can not be ascertained after diligent inquiry and search, inferentially states that such defendants are non-residents, and will be held sufficient, on collateral attack, to authorize publication of notice.</p> <p>5. Same—one can only assign error on matters affecting his own property. A condemnation judgment has the effect of a several judgment as to each tract or lot of land, and one land or lot owner can not take advantage, in a court of review, of an error which does not affect him or his property.</p> <p>6. Same—to authorize an assessment city need not have easement in all property needed. It is not necessary, to authorize a supplemental proceeding to levy a special assessment under section 53 of article 9 of the City and Village act, that the city shall have acquired, by the condemnation judgment, an easement in all the property which must be taken in order to complete the improvement.</p> <p>7. Special assessments—supplemental petition need not recite the ordinance. A supplemental petition for a special assessment filed under section 35 of article 9 of the City and Village act need not recite the ordinance, as the ordinance has already been recited in the condemnation proceeding.</p> <p>8. Same—commissioners presumed to have exercised sound discretion in spreading assessment. The power of spreading an assessment is conferred by statute upon the commissioners appointed by the court, and it will be presumed that in so doing they exercised sound judgment and discretion,</p> <p>9. Same—assessment not re-cast because witnesses do not agree with the commissioners. An assessment will not be re-cast merely because a difference of opinion may exist among witnesses as to whether the commissioners exercised sound judgment and discretion in spreading the assessment.</p> <p>10. Same—assessment will not be re-cast unless commissioners, in effect, acted fraudulently. An assessment will not be re-cast unless the commissioners’ action was so negligent or improper as to be, in effect, fraudulent; and the mere opinions of witnesses that property was not assessed which in their judgment was benefited, does not show fraud on the part of the commissioners.</p> <p>11. Appeals and errors—verdict of jury as to benefits not lightly disturbed. Questions arising on the opinions of witnesses with reference to the extent to which property is benefited by an improvement, or whether it is benefited at all, are of a character peculiarly within the province of a jury, and their verdict will not lightly be disturbed.</p>

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

<p>1. Eminent domain—condemnation judgment merely settles value of land to be taken. A judgment in a condemnation proceeding to open a street merely fixes the value of the property which the city is to take, and the latter is under no obligation to pay for the property if it abandons the proceedings and leaves the street unopened.</p> <p>2. Same—city not liable in assumpsit for the amount of condemnation judgment. A city having abandoned the contemplated opening of a street, repealed the ordinance and dismissed the condemnation proceeding, is not liable in an action of assumpsit for the amount of the condemnation judgment.</p> <p>3; Same—owners’ remedies where city tabes possession after dismissing condemnation proceeding. After repealing an ordinance for opening a street and dismissing the condemnation proceeding the city has no right to take possession of any of the property condemned, and if it does so, the owners may bring ejectment or trespass, or proceed by motion under section 53 of article 9 of the City and Village act, as amended in 1891. (Laws of 1891, p. 80.)</p> <p>4. Same—city can acquire property for street only by ordinance. The statute which provides that a city may acquire private property for opening a street by the passage of a condemnation ordinance impliedly forbids the acquiring of such property by private purchase, or in any other manner than by ordinance.</p> <p>5. Same—ordinance for opening street by special assessment excludes idea of payment in any other way. The adoption of an ordinance for opening a street by special assessment excludes payment therefor by general or special taxation, and, the mode of making such local improvements not being subject to judicial control, the courts can not indirectly cause the improvement to be paid for out of the general fund by enterjng a judgment against the city in assumpsit for the amount of the condemnation judgment.</p>

<p>1. Municipal corporations—power to pass penal ordinances must be strictly construed. The power to pass an ordinance and impose a penalty for its violation must be strictly construed, and not extended, by implication, to persons or things not expressly within the terms of such power.</p> <p>2. Same—power of city to license occupation of brewer—where derived. The power of a city to require a person or corporation to take out a license to carry on the business of a brewer is derived from clause 91 of section 1 of article 5 of the City and Village act, (Rev. Stat. 1874, p. 223,) which confers power “to tax, license and regulate auctioneers, distillers, brewers,” etc.</p> <p>3. Same—one selling or delivering beer made by others is not a brewer. An ordinance requiring parties carrying on the brewing business within the city limits to take out licenses cannot be made to apply to a person engaged in selling or delivering beer manufactured outside the city, by providing that such sale or delivery “shall be held to be carrying on the business of a brewer.”</p>

<p>1. Contracts—right of the buyer to recover consideration advanced by third party where seller is unable to perform. One who contracts to buy-land for which the seller is to furnish a good title, may, upon the seller’s declaring the' contract rescinded for his inability to give good title, recover the consideration paid, although it represents services rendered by a third party to the seller and advanced by such third party to the buyer at a sum agreed to by the seller.</p> <p>2. Lotteries—when distribution of land by lot is unlawful. The distribution of parcels of land of very unequal value by lot is a lottery, and within section 180 of the Criminal Code, (Rev. Stat. 1874, p. 378,) where the drawing is had before the right or title to any part of the land is vested in the ticket holders.</p> <p>3. Samé—partition among joint owners by lot is not unlawful. A partition of property divided into parts of as nearly equal value as possible may be made among the joint owners thereof by lot, to determiné which part shall go to each joint owner, such a transaction not being within the prohibition of the statute against lotteries.</p> <p>4. Same—instance where distribution of land is not a lottery. A contract between shareholders of a syndicate formed to purchase lots, each share representing a lot sold to the shareholder at a fixed price, from which is to be deducted his pro rata share of the profits arising from an auction sale of the choice of lots to shareholders, to be had after all the shares are sold, whereby the lots remaining after there appears to be no choice are to be distributed by lot among shareholders not purchasing a choice, is not illegal, as within the statute against lotteries.</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. Theodore Brentano, Judge, presiding.</p>

<p>1. Partnership—as between the parties, question of partnership is one of intention. As between the parties the question of the existence of a partnership relation is one of intention, to be gathered from all the facts and circumstances.</p> <p>2. Same—agreement to share profits and losses does not necessarily create a partnership). An agreement between a contractor and a firm in his employ to share the profits and losses of the enterprise does not create a partnership as between the parties, where it is clear the arrangement was made to measure the compensation of the employees, and not with the intention of creating a partnership.</p> <p>3. Bonds—when surety is not released from liability for one-half loss' sustained. A surety company on the bond of a sub-contractor is not released from liability for one-half the loss sustained by the contractor, the obligee, upon the ground that after taking the contract, but before accepting the bond, the contractor entered into an agreement with a firm in its employ to share the profits and losses of the work, which, it is claimed, constituted a partnership.</p>

<p>Specific performance—equity will not enforce abandoned contract. An agreement to convey land, at the owner’s death, in consideration of the promisee moving into the owner’s house and taking care of him in his advanced years, will not be enforced in equity where the evidence shows the contract was abandoned by a cash settlement, based upon the value of the board and attention received by the promisor, less the rent for the house for a portion of the time when he was residing elsewhere.</p>

<p>1. Registration op titles—register’s duties on initial registration are ministerial. Under the Conveyance act of 1897, commonly known as the “Torrens Law,” (Laws of 1897, p. 141,) the register’s duties upon initial registration are ministerial only, the ownership of the land being determined by a court of competent jurisdiction.</p> <p>2. Same—sections If/ and 60 do not confer judicial power on register. Sections 47 and 60 of the Torrens law of 1897, relating to the transfer of land after registration and to the registering of liens and claims, do not confer strictly judicial power upon the register, the discretionary power which he thus exercises being quasi judicial, and incidental to the proper performance of his ministerial duties.</p> <p>3. Same—effect of provision concerning transfer of trust property. The power conferred by sections 68 and 69 of the act of 1897, whereby the register’s transfer of trust property, upon the judgment of the court or upon his own concurrence in the opinion of the examiners that the transfer is in accordance with the terms of the trust, is made conclusive of such fact in favor of the transferee, does not render the act unconstitutional, as it merely abrogates a rule of equity which courts” are not now inclined to follow.</p> <p>4. Same—provisions for initial registration considered with reference to notice to parties. The fact that a provision of the Torrens law of 1897, concerning the proceedings for initial registration, may be construed as rendering it possible for a judgment to be obtained against a resident of the State upon mere constructive notice, does not render the entire act unconstitutional, as the act may be given practical effect without such provision.</p> <p>5. Same—legislature has power to change mode of transferring title. So long as vested rights are not disturbed, the legislature may, at any time, change the tenure upon which land is held, may alter the conditions under which it may be alienated and modify the rules of evidence by which title is to be determined, and may make compliance with the law, as to future transactions, compulsory.</p> <p>6. Same—Torrens law does not allow taking of property without due process of law. The Torrens law of 1897, in providing that vested rights in real property shall be subjected to an adjudication in a court of competent jurisdiction, upon due notice, in order that the true state of title may be ascertained and declared, and that thereafter the tenure of the owner, the right of transfer and incumbrance, and all rights subsequently accruing, shall be determined by the provisions of that law, is not unconstitutional, as authorizing the taking of private property without due process of law.</p> <p>7. Same—section 26 of Torrens law of 1897. construed. Section 26 of the Torrens law of 1897, in so far as it attempts to bar vested rights after the expiration of two years from the rendering of a decree in a suit to which the holders of such rights were not parties, cannot be upheld, but may be upheld as a limitation law limiting the time within which one who has a mere right of action shall bring suit.</p> <p>8. Same—Torrens law is not a special law, nor does it delegate legislative power. The provision of the Torrens law of 1897 that it shall take effect only after a favorable vote by counties is not a delegation of legislative power, nor does it make the act special or local in character. (People v. Hoffman, 116 Ill. 587, followed.)</p> <p>9. In upholding the constitutionality of the Torrens law of 1897, the court merely determines that the act does not so violate the constitution as to render it void, and leaves the construction of provisions not going to the validity of the entire law until the necessity therefor arises.</p>

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

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

<p>1. Attorneys at law—information to strilce from roll—what must be alleged. An information for a rule against an attorney at law to show cause why his name should not be stricken from the roll is insufficient which alleges that he made a false affidavit to the board of law examiners concerning his term of study, but which fails to state that the affidavit was fraudulently made with knowledge of its falsity or with intent to fraudulently secure a certificate of qualification from the law examiners.</p> <p>2. Same—Supreme Court will not anticipate result of trial of attorney on a criminal charge. The Supreme Court will deny leave to file an information for disbarment on the ground that the attorney sought to be disbarred has been guilty of subornation of perjury and has been indicted therefor, as the result of the trial under the indictment will not be anticipated.</p>

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

<p>1. Special assessments—ordinance must describe nature, locality and character of improvement. A special assessment ordinance is invalid which fails to so specify the nature, character, locality and description of the improvement as to enable an intelligent estimate of its cost to be made.</p> <p>. 2. Same—when ordinance for paving and curbing is invalid for insufficient description. An ordinance for paving and curbing which describes the stones upon which the curb stones are to be bedded merely as “flat stones,” without specifying their character or dimensions, is such an insufficient description of the improvement as invalidates the ordinance.</p>

<p>1. Contracts—mere inaccuracy of language should not defeat clear intention. Where there is an obvious mistake on the face of a written instrument, which is corrected by other expressions therein, a court of law has power to construe the instrument according to the evident intent of the parties as manifested by all the language used.</p> <p>2. Estoppel—an estoppel, to be binding, must be reciprocal. An estoppel, to be binding, must be reciprocal and conclude both parties, and there can be no estoppel by representations where both parties are equally in possession of all the facts pertaining to the matter relied on as an estoppel and each acts on his own judgment.</p> <p>3. Same—when lessee is not bound by his construction of lease in answer to the lessor’s bill. A lessee is not bound by his construction of the lease in his answer to the lessor’s bill in equity to reform an alleged mistake, though the lessor subsequently dismisses his bill, where the lessor has an equal knowledge with the lessee of all the facts and circumstances, and his action in dismissing the bill is not induced by any representations by or understandings with the lessee.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William Hartzell, Judge, presiding.</p>

<p>1. Municipal corporations—section 9 of article 7 of City and Village act, concerning deposit of fundís, construed. Section 9 of article 7 of the City and Village act, (Bev. Stat. 1874, p. 228,) providing that a city may, by ordinance, require.the treasurer to keep the city funds in a “regularly organized bank,” contemplates a bank organized under the State law or an act of Congress, and not a private bank owned by an individual.</p> <p>2. Same—treasurer cannot be compelled to deposit city funds in private bank. A city treasurer cannot be compelled by mandamus to deposit city funds in a' private bank designated by ordinance, notwithstanding the provision of section 9 of article 7 of the City and Village act, requiring a bond from the bank so designated.</p>

Writ op Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. This was an action of replevin brought by the L. Fish Furniture Company, against .James Pease, sheriff of Cook county, to recover certain furniture fully described in the affidavit upon which the action was brought.

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

H. Van Sellar, Judge, presiding. This is a proceeding in chancery; begun in the Edgar circuit court, to compel the specific performance of a contract to convey a tract of land.

<p>Writ of Error to the Circuit Court of Johnson county; the Hon. A. K. Vickers, Judge, presiding.</p>

<p>1. Eminent domain—jury's verdict on conflicting evidence is entitled to great weight. A condemnation award within the range of conflicting oral testimony will not be disturbed on appeal, in the absence of errors of law.</p> <p>2. Trial—party should obtain court’s ruling on alleged incompetent ■answer by witness. One desiring the Supreme Court to pass upon the competency of part of a witness' answer to a question not objected to, should obtain the trial court’s ruling by moving to strike out the objectionable matter, or otherwise.</p> <p>3. Appeals and errors—one cannot object to evidence he has himself called out. One obtaining a fairly responsive answer to a question put by him upon cross-examination cannot object to its competency as evidence.</p> <p>4. Roads and bridges—section 7 of Road and Bridge act construed. Section 7 of the Road and Bridge act (Laws of 1883, p. 138,) does not make willow trees in a public highway necessarily a nuisance, but is directed against willow hedges and lines of cottonwood trees planted along the margin of the highway so as to prevent its being properly tiled.</p>

<p>1. Municipal corporations—courts will not presume that legal act was done for illegal purpose. The courts will not presume that an act by a city council was done for an illegal purpose, where it is apparent the act is one which the council might legally perform.</p> <p>2. Same—city may impose mileage tax on street railroad as compensation for use of streets. A city may, by the ordinance granting the franchise, impose a reasonable annual tax for each mile of railroad laid by a street railroad company,' even though such tax is for the purpose of compensating the city for the use of its streets.</p> <p>3. Same—mileage tax on street railroad is not violative of constitutional rights. A city having power, under the statute, to grant or refuse a franchise to á street railway company, as “it shall deem for the best interest of the public,” may impose a special mileage tax in particular cases, in the absence of any general statute or general ordinance fixing a uniform tax of a similar nature.</p> <p>4. Same—by accepting franchise street railway' is bound by its terms. A street railway company having accepted its franchise in its entirety, and enjoyed the benefits thereof, is bound by its terms and conditions not against public policy nor prohibited by statute.</p>

Edmund W. Burke, Judge, presiding. The opinion of the Appellate Court for the First District, by Mr. Justice Windes, is as follows: “Appellee brought trover against appellant to recover the value of one hundred and one boxes of turkeys. Appellant pleaded not guilty, and property in defendant. By agreement the cause was referred to a referee to take testimony and report his conclusions of law and fact.

<p>1. Taxes—bridge and approach thereto need not be separately assessed. The fact that an approach to a bridge is worth less per lineal foot than the bridge proper does not require that the bridge and the approach be separately assessed, the only feasible way being to assess them in gross, as constituting one continuous structure.</p> <p>2. Boundaries—boundary between Dlinois and Iowa is in the middle of the main navigable channel of the Mississippi. The legal boundary line between Illinois and Iowa is in the middle of the main channel of the Mississippi river. (Keokuk and Hamilton Bridge Co. v. People, 145 Ill. 596, and 167 id. 15, followed.)</p>

<p>1. Practice—when Supreme Court cannot consider sufficiency of the evidence. The refusal of a peremptory instruction for defendant, offered at the close of plaintiff’s evidence, after which the defendant introduces his evidence, and the refusal of a similar instruction asked in the series submitting the case to the jury, do not preserve for review by the Supreme Court the question of the sufficiency of the evidence to sustain a verdict for plaintiff.</p> <p>2. Master and servant—a sei-vant does not assume risk of injury chargeable to master’s negligence. An inexperienced servant employed to tend a steam shovel used to remove shale from an embankment, the upper part of which, composed of clay, is to be removed by hand, does not assume the risk of the clay falling upon him while performing his duties, where the master, knowing the servant’s inexperience, fails to warn him of that danger and the servant is unconnected with the removal of the clay.</p> <p>3. Instructions—instructions must be based upon the evidence. An instruction, though stating a correct abstract rule of law, may be refused if not applicable to the evidence in the case.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. F. Bookwalter, Judge, presiding.</p>

Richard S. Tuthill, Judge, presiding. This suit was brought by appellee before William S. Everett, a justice of the peace, to recover from appellant the value of a cash register.

<p>1. Judgments and decrees—defendant may show that decree pro confesso was not justified by the averments. On appeal from a decree pro confesso the defendant may show that the decree was not justified by the averments of the bill.</p> <p>2. Loan associations—stockholder not liable for fines after forfeiture of stock. Where a loan association elects, under its contract, to forfeit its member’s stock for non-payment and to declare the debt due, the shareholder’s relation as a member is thereby terminated, and he should not be charged with subsequent fines.</p> <p>3. Waiver—what not a waiver or right to assign error on decree. Payment of a deficiency decree, by a mortgagor, under stress of a supplemental decree, in order to procure her discharge and regain the possession of her property from a receiver, does not waive her right to assign error thereon.</p>

Thomas F. Tipton, Judge, presiding. This was a bill in equity brought by Milton Harness, against the appellants, to construe the will of his father, Isaac Harness, and to set aside certain sales of the lands described in clause 6 of the will, wherein the appellants became the purchasers under executions issued on judgments rendered against the appellee.

Orrin 1ST. Carter, Judge, presiding. On July 25,1896, appellees herein, Alex. B. Leith, Benjamin Hampton and Arthur J. Adams, constituting a co-partnership under the name and style of Fulton Machine Works, made their deed of assignment, under the statute, to George T. Robie, for the benefit of creditors.

<p>1. Municipal coepobations—a material change in a contract after opening the bids requires new advertisement. A municipal corporation, after opening bids for a public contract which the law requires shall be let to the lowest’ responsible bidder, has no power to materially change the contract and award it to one of the original bidders without a new advertisement.</p> <p>2. Special taxation—a valid ordinance must precede construction ■of improvement. A valid ordinance for the construction of an improvement by special taxation is the foundation of the proceeding, and all steps taken without such ordinance are absolutely void.</p> <p>3. Same—city’s acceptance of unauthorized work imposes no liability on property owners. Acceptance by a municipal corporation of an improvement constructed without the authority of a valid ordinance does not authorize the levy of a special assessment or special tax to pay for the same.</p> <p>4. Same—effect where part of the work is done after amendment of ordinance. Where, after opening bids for the construction of a pavement by special taxation, the city changes the contract to call for a pavement of less width and lets it to one of the original bidders without new advertisement, who begins work thereunder before the ordinance is amended to conform to the change, the city cannot pay for the improvement by special taxation or assessment, although part of the work was done after the ordinance was amended.</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>1 Appeal from the Criminal Court of Cook county; the Hon. W. G. Ewing, Judge, presiding.</p>

<p>1. Res judicata—affirmance of decree establishing right to accounting is res judicata. The affirmance of a decree finding the existence of facts which give a right to an accounting and directing the basis of the account, is res judicata upon the parties, and they cannot afterward be heard to say that the decree was merely interlocutory, or that the basis fixed for the accounting vías incorrect. ■</p> <p>2. Patents—when State court may entertain a bill for accounting for royalties. A State court has jurisdiction of a bill by the owner of a patent for an accounting for royalties accruing from the use of his patent by a manufacturing company under a contract with a third party, who claimed a right to an assignment of the patent under an agreement with the owner, which bill proceeds upon the theory of a ratification of the contract by the owner of the patent so far as executed, but also claims the royalties in equity.</p> <p>3. Same—when parties cannot set up infringement to defeat jurisdiction of State court as to royalties. Royalties accruing from use of a patent during the pendency of an appeal from the decree of a State court holding invalid the license under which the right to use the patent was claimed and ordering an accounting for royalties, are within the jurisdiction of the State court as the subject of accounting, upon the affirmance of the decree, where the license was not surrendered after the decree but was treated by the users as in force.</p> <p>4. Estoppel—licensee estopped to question validity of patent. A licensee of a patent, who has enjoyed the benefits thereof, is estopped to question the validity of the patent in any proceeding relating to acts done by him under the license.</p>

<p>1. Evidence—the contents of burnt judgment record may be proved by parol. The rule that the record of a judgment, or an exemplified or sworn copy thereof, must be produced to sustain an action of debt théreon, is limited to cases in which it is within the power of the plaintiff to produce such evidence, and does not apply where the record of the judgment has been destroyed by fire, and for that reason cannot be produced.</p> <p>2. Same—wKat sufficient secondary proof that action was brought for fraud. The testimony of the attorney who drew the declaration in a suit the record and files of which, containing the only copy of the declaration, had been destroyed by fire, that the declaration alleged the defendant induced plaintiff to advance him money by falsely and fraudulently representing certain facts, sufficiently shows that the action was for fraud. «</p> <p>3. Pleading—effect of allegation that a thing was falsely and fraudulently done. An allegation in a declaration that certain representations by the defendant for the purpose of obtaining money were falsely and fraudulently made, implies that defendant was aware of their falsity.</p> <p>4. Bankruptcy—discharge in bankruptcy does not affect debt created by fraud. A discharge in bankruptcy is no defense to an action of debt upon a judgment rendered in an action for fraud prior to the bankruptcy proceedings, nor would the receipt of a dividend on such judgment, had it been proved in the bankruptcy proceedings, operate to discharge the unpaid balance.</p> <p>5. Appeals and errors—objection that amended declaration omits the ad damnum must be made below. An objection that an amended declaration contains no ad damnum will not be considered on appéal, in the absence of any specific objection in the trial court or on motion in arrest of judgment.</p> <p>6. Costs—when appellant is not entitled to costs on remittitur of excess damages on appeal. Appellant who fails to specifically call the attention of the trial court to the fact that the damages allowed in an action of debt are excessive is not entitled to recover his costs upon the entry in the Appellate Court of a remittitur of such excess of damages.</p>

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

<p>1. Amendment—bill filed in name of insane person may be amended to make conservator a party. A bill filed in the name of a non-resident insane person “by * * * conservator and guardian,” may be amended before final decree, under section 24 of the Practice act, (Rev. Stat. 1874, p. 778,) so as to make the conservator a party in his own name, and the retaining of the insane person as a party is merely an irregularity not calling for reversal.</p> <p>2. Same—amending bill to change style of complainants does not affect jurisdiction over defendants. Amending a bill to change the style of the parties complainant does not affect the jurisdiction of the court over the defendants, and acts done by them prior to the amendment are done pendente lite.</p> <p>3.. Pleading—when prayer for general relief will warrant cancellation of deed pendente lite. A prayer for general relief, in a bill to set aside and cancel a warranty deed to the defendants, is sufficient to authorize a decree canceling also a quit-claim deed made pendente lite from one defendant to the other, although the bill makes no reference thereto.</p> <p>4. Deeds—delivery is essential to the validity of a deed. A good delivery is as essential to the validity of a deed as the acts of signing and acknowledging.</p> <p>5. Same—effect of delivery of deed during grantor’s insanity. A deed executed contemporaneously with a will, and kept by the grantor in a sealed envelope in Ms trunk, intending it to be delivered after Ms death to carry out the terms of the will without the expense of probate, cannot be legally delivered by a third party during the grantor’s insanity, though such third party possesses a general power of attorney signed by the grantor while insane.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judg'e, presiding.</p> <p>This is a suit in replevin, begun on December 21,1892, by the appellees against the appellants to recover the possession of three boilers, and the smoke-stacks, plates, valves and attachments belonging thereto. The valves and. attachments were not found. There was a count in trover in the declaration to recover the value of the articles not found. The pleas were non cepit, non detinet, property in defendants, and that the boilers, etc., were fixtures, belonging to real estate and buildings owned by defendants, and designed for a tin plate mill and plant and, therefore, not the subject of replevin. To the plea of property in defendants the plaintiffs replied, that the property replevied was the property of plaintiffs, and not of defendants; and they also replied that the property replevied was not fixtures. Plea of not guilty was filed to the count in trover.</p> <p>Two trials were had. Upon the first trial verdict and judgment were in favor of the plaintiffs. Upon appeal to the Appellate Court the judgment was reversed, and the cause was remanded, as will be seen by reference to the case of Hacker v. Munroe & Son, 56 Ill. App. 532.</p> <p>Upon the remandment of the cause to the circuit court it was re-docketed for trial, and tried a second time. Upon the second trial the jury found the issues in favor of the plaintiffs, the present appellees, on the counts in replevin, and assessed their damages at one cent; and-they also found the defendants guilty of withholding the goods named in the trover count, and assessed the damages at §180.00. Motion for new trial was overruled, and judgment was rendered upon the verdict and for costs against defendants. An appeal was taken to the Appellate Court from this second judgment, and the judgment has been affirmed, as will appear by reference to the case of Hacker v. Munroe & Son, 61 Ill. App. 420. The present appeal is prosecuted from such judgment of affirmance.</p> <p>The appellees made the boilers and attachments at their factor}'- in Pennsylvania, and sold and delivered them to the Lewis Steel Sheet and Tin Plate Company, an Illinois corporation, engaged in building a tin plate and steel sheet plant in Joliet, Illinois. D. Trevor Lewis held an official position in this company, and in July, 1891, went to the office of appellees in Pittsburg for the purpose of buying boilers for the mill to be erected in Joliet. In August, 1891, J. Davis Lewis, president of the company, had a conversation with R. Munroe, Jr., one of the appellee's, and there closed the contract for the boilers. By the terms of the contract the company was to pay $1261.00 cash down, and give a note for $1700.00. On October 26, 1891, the boilers and attachments, etc., were shipped on board the cars to said Lewis Steel Sheet and Tin Plate Company at Joliet. Although $1261.00 was to be paid down, nothing had been paid when the boilers reached Joliet. The company had no money to pay for the boilers. Nobody was at Joliet to give the note for $1700.00. The company was insolvent and unable to pay the freight on the boilers and attachments.</p> <p>Some property owners in Joliet, interested in the establishment of the-tin plate mill upon and near their property, made an agreement with the tin plate company and the Lewises, by the terms of which the Lewises agreed to bring to Joliet a corporation having a paid-up capital stock of not less than $500,000.00, and to erect upon twenty acres of land, offered by the property owners, a mill for the manufacture of tin plate and sheet steel; and said property owners agreed to donate said twenty acres of land to be deeded to the said Lewises, but the deed to be held in escrow until the completion of the said mill. By the terms of said agreement said property owners also agreed to pay to the said Lewises the sum of $20,000.00 to be expended for the benefit of the plant. The original agreement thus referred to was made on February 24, 1891.</p> <p>A supplemental agreement was entered into between the tin plate company, and J. Davis Lewis, and Nathaniel D. Lewis, of the first part, and said property owners, including one Thomas M. Creevy, of the second part, which supplemental agreement was dated July 2, 1891. By the terms of the latter agreement it was recited, that the land owners feared that said parties of the first part would be unable to comply with the terms of their contract; and it was therein agreed that a part of the capital stock of said company should be placed in the hands of a trustee to secure the performance of said contract; and the property owners thereby agreed to pay over within a certain time the unpaid portion of said sum of $20,000.00 towards the completion of said plant, and to convey ten acres of land to a trustee, named Speer, until the terms of the contract should be performed.</p> <p>When the boilers arrived in Joliet, said Creevy, one of said property owners, who was in possession of block 18, upon which the erection of the mill had been begun, was notified by the railroad company to take the boilers; and, thereupon, he paid the freight out of his own pocket, and placed the boilers on blocking, made of timbers, some fourteen inches higher than the walls where the legs of the boilers would eventually rest, but said boilers were in no way attached to any part of the boiler house or to any part of the brick walls thereof.</p> <p>Creevy testified, that he took the boilers and placed them on the land for the purpose of saving them for the appellees, as appellees had received no pay for them. Some arrangement was afterwards made, in consequence of the failure of the tin plate company to erect the mill, by the terms of which the real estate in question was transferred to the wife of one of the Lewises, in trust for her brother and father, the brother-in-law and father-in-law of one of the Lewises, who bought the boilers from the appellees. No actual transfer of the boilers themselves and the attachments -thereto was ever made to Mrs. Lewis. One of the property owners, interested in the property where the tin plate mill was to be erected, and whose ñamé was Zarley, had, prior to the organization of the tin plate company, contracted to sell the land, turned by him into the common pool and conveyed to' Speer as trustee, to the appellants herein. Such contract of sale from Zarley to the appellants was of record. Appellants filed a bill for the specificvperformance of the contract, and obtained a decree requiring Zarley to convey the premises to them, and he had conveyed the premises to them. The title of Mrs. Lewis was junior in right to this claim of the appellants; but thereafter Mrs. Lewis and her husband conveyed by deed whatever interest they had to the appellants. There is no evidence, however, that any transfer of any kind was made of the boilers and attachments to the appellants.</p>

George W. Herdman, Judge, presiding. On March 24, 1891, the appellant was granted, by ordinance, the right to erect and operate an incandescent electric light plant in the village of Mt. Pulaski for the term of twenty years. On the 18th of April of the same year he purchased a lot on which a flour mill formerly stood, which, when in operation, had been supplied with water from a well in Green street, near its intersection with Spring street, in the village.

<p>1: Constitutional law—section IS of article 9 of the constitution construed. An obligation payable in the future upon a contingency, such as the rendering of services or the delivery of property, is a debt, within the meaning of section 12 of article 9 of the constitution, which prohibits municipal corporations from becoming indebted beyond five per cent of value of taxable property therein.</p> <p>2. Municipal corporations—city in debt beyond constitutional limitation cannot malee contracts for current expenses. A city having an aggregate indebtedness exceeding the constitutional limitation of five per cent is powerless to create any additional debt, even for its ordinary and current expenses, and no contract for the payment of money made while the city is so situated can be enforced.</p> <p>3. Same—effect where total indebtedness wider contract would overreach the constitutional limitation. If, at the time of making a contract extending over a number of years and calling for periodical payments, the city is not indebted beyond the constitutional limit, the total amount of indebtedness entailed by the contract is not the test of the validity of the whole contract, and if the contract is divisible it may be enforced to the extent of the difference between the existing municipal indebtedness and an amount equal to the constitutional limitation. (City of East St. Louis v. Gas Light and Coke Co. 98 Ill. 415, and City of Carlyle v. Water Co. 140 id. 445, explained.)</p> <p>4. Same—a contract for removal of garbage creates a debt. A contract by a municipal corporation for the removal of garbage, which calls for monthly payments as the work progresses, creates a debt, within the meaning of the constitution, and cannot be enforced if, at the time of making the contract, the municipal corporation was already in debt in excess of the constitutional limit.</p> <p>5. Same—in estimating aggregate indebtedness, amount in the treasury should not be deducted. In determining the aggregate indebtedness of a municipal corporation the amount in the treasury should not be deducted from the sum total of the debts, as the question is one of indebtedness and not of insolvency.</p> <p>6. Same—“water loan” bonds constitute an indebtedness. “Water loan” bonds issued by a city in the same form as its other bonds except as to name, constitute an indebtedness, within the meaning of the constitution, even though it is expected that they will be paid out of the profits of the water system, as, should such expectation not be realized, the city would be required to pay them, and, if necessary, raise the amount by general taxation.</p>

<p>1. Deeds—grantor’s uncorroborated denial of signature will not overcome notary’s certificate. The uncorroborated testimony of a grantor that Ms deed is a forgery will not overcome the certificate of the officer who took the acknowledgment, in the absence of proof of fraud, collusion or imposition by the latter.</p> <p>2. Same—ride applying to deeds applies to a release. The rule making the grantor’s uncorroborated denial of his signature insufficient to overcome the officer’s certificate applies to a release of damages containing covenants affecting the grantor’s rights in land, although it also contains the elements of a contract on the part of the grantee to use the land in a certain way.</p>

<p>1. Pleading—it is not necessary to aver matters of conclusion. A declaration against a railroad company by a baggage-man for injuries received through the alleged negligence of the engineer need not aver, in terms, that the engineer was not a fellow-servant of the plaintiff, where the facts showing their relation are stated.</p> <p>2. Fellow-servants—whether relation exists in particular case is for the jury. The definition of the legal term “fellow-servants” is a question of law, but whether the facts in a particular case bring the relation shown to exist between the parties within that definition is ordinarily a question of fact for the jury.</p> <p>3. SAME—baggage-'man and engineer not fellow-servants as a matter of law. The baggage-man and the engineer of the same train are not, per se and as a matter of law, fellow-servants. (Leeper v. Terre Haute and Indianapolis Railroad Co. 162 Ill. 215, explained.)</p>

<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. Elbridge Hanecy, 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. Frank Baker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Henry B. Willis, Judge, presiding.</p> <p>This was a bill filed at the March term of the circuit court of DuPage county by John Knippin and Martin Stark, against Duncan McDonald, for obstructing and encroaching upon a portion of South Railroad street, in the city of Wheaton, DuPage county, and also for an injunction against said defendant, McDonald, enjoining him from further obstructing and encroaching upon said street by erecting and completing any structures or buildings thereon. After the filing of the bill the venue was changed to the circuit court of Kane county, where the cause was heard, but before the decree was entered, John Knippin, one of the original complainants, died, and by an amendment of the bill Christine Knippin, the widow, and the children and heirs of John Knippin, were made complainants in the place of John Knippin, deceased. A decree was entered in their favor and that of Martin Stark, against appellant. Appellant broug'ht this appeal.</p> <p>The bill alleges that on or about the 20th day of June, 1853, Jesse C. Wheaton and others platted certain lands in Wheaton, which plat is known as the original plat of Wheaton, on which plat South Railroad street was designated; that by the certificate annexed to the plat it is stated that all the streets, except North Railroad, Main and East streets, were one chain in width; that the plat was duly recorded; that afterwards, and about the 2d day of July, 1855, Jesse C. Wheaton and others made a plat known as J. C. Wheaton’s addition to Wheaton, on which South Railroad street was indicated as a four-rod street, and on that plat was block 4, abutting on said South Railroad street between Hale and Bird streets; that all such streets were platted and laid out to the width of four rods; that on or about the 8th day of March, 1864, Martin Stark became the owner of lot 1 in said block, by deed duly recorded, and on the 14th of September, 1878, he obtained a conveyance of a strip three rods wide on the south end of lot 2-in block 4 of said addition; that John Knippin, about the 27th day of December, 1871, became the owner of lot 5 of said addition by a conveyance to him, which was duly recorded; that when complainants purchased their respective properties said South Railroad street was a platted street on said original plat and addition, of the width of four rods the entire length of said block 4, and the same was then open and unobstructed to its full width and used and traveled as a public street of said town of Wheaton; that complainants purchased their respective properties in reference to said plat, and were informed thereby that South Railroad street, abutting on said block 4, was a four-rod street, and they relied that it should ever remain so; that north of said block 4 and South Railroad street are located the tracks and right of way of the Chicag'o and Northwestern Railroad Company, which passes through the city of Wheaton in an easterly and westerly direction; that lying between said right of way and said South Railroad street, directly north of said block 4, is a narrow strip of land shown on said plat but not marked, which was owned by Jesse C. Wheaton when said plats were made; that said Wheaton, about the 10th of July, 1880, conveyed said strip of land to appellant for $336 by deed of that date, which was duly recorded about the 13th day of July in said DuPage county; that soon after receiving said conveyance appellant began to put improvements upon the said premises and began to encroach on said South Railroad street, to which complainants and other property owners objected, but .that appellant, in spite of said objections, willfully and maliciously contrived to encroach upon said street and to place permanent structures therein to prevent the public use to the full width of four rods; that in the month of June or Jiily, 1884, certain prosecutions were commenced or threatened against appellant for such encroachments, and thereupon appellant obtained a quitclaim deed from said Jesse C. Wheaton of one rod in width off: the. north side of said street the entire length of said block 4, which deed was executed about the 11th day of July, 1884, and duly recorded in DuPage county on the 29th day of October, 1884; that said South Railroad street was never vacated by the public authorities and that complainants never acquiesced in placing such alleged obstructions in the street, but always remonstrated- with appellant for so doing, on the claim that it was a four-rod street and that such obstructions were an injury to the property of complainants; that complainant Martin Stark has upon his said property a hotel building which for a number of years has. been run as a public hotel, fronting east on said South Railroad street, and the full width of said street in front thereof is necessary for the approaches to the said hotel, and that on the premises of complainant Knippin is situated his dwelling house; that appellant, McDonald, has commenced to erect an ice house within the lines of said street, and that complainant Stark, as soon as appellant commenced to erect said ice house, served him with a written notice protesting against the said threatened encroachment, but said McDonald gave no heed thereto, but proceeded, and is now proceeding, to complete said structure in defiance of the protests of complainants and other property owners on the said street whose property will be injured and depreciated thereby, and against the protests of the public authorities of said city of Wheaton, who have protested against the said encroachment and the erection of said building's and structures, but refuse to bring any action to prevent the erection of the same or to have them removed; that complainants are remediless except in a court of equity. The bill prays that said quit-claim deed from Jesse C. Wheaton to appellant be set aside, and the dedication of said South Railroad street, as on the said plat indicated, be declared effectual to constitute the said street a four-rod street as the same was platted, and that appellant be decreed to remove out of said South Railroad street the said building and all obstructions placed thereon by him prior to the commencement of this suit or during the pendency thereof, and that upon a final hearing a perpetual injunction be decreed enjoining and restraining appellant from further obstructing and encroaching upon said street and from erecting and completing any structures and buildings thereon.</p> <p>The defendant answered said bill, in which answer he neither admitted nor denied that Jesse G. Wheaton and others laid out and platted the lands mentioned or made the plat known as the original plat of Wheaton, or that any such street as South Railroad street was ever laid out or designated on said plat, and if it was, it was not one chain in width, and neither admitted nor denied that Jesse C. Wheaton and others made a plat known as Jesse C. Wheaton’s addition to Wheaton, but called for proof; denied that said South Railroad street was indicated on the said plat, or on any plat, as a four-rod street; denied that when complainants purchased their respective properties said South Railroad street was a platted street of the full width of four rods the entire length of said block 4, and that the same was then open and unobstructed to its full width and used and traveled as a public street of the town of Wheaton, but that said South Railroad street never was open and unobstructed to the width of four rods, was never used and traveled as a public street of Wheaton to the width of four rods, and never was accepted by the incorporated village or city of Wheaton as a street of the width of four rods, and never accepted or worked by the said village or city, or the authorities thereof, to a greater width-than three rods; admitted that on the 10th of July, 1880, Jesse 0. Wheaton conveyed to defendant a strip of land described in the bill of complaint, and soon thereafter defendant began putting improvements on said premises, but denied that he thereby encroached upon said street, or that there was any collusive or wrongful agreement made with Jesse C. Wheaton to deprive the public, or complainants, of the use or approaches of the said street by the execution of the quitclaim deed described in said bill of complaint; denied that the public authorities of Wheaton ever protested against defendant putting his buildings where they now are on any claim that it was a four-rod street, but, on the contrary, the authorities of said village or city of Wheaton have always known and accepted the said street as a three-rod street only, and have refused to bring any action to prevent the erection of defendant’s buildings or to have them removed, for the reason that they well knew that the said street was only three rods wide and that defendant’s buildings do not encroach on the street; alleged that on or about the 24th day of August, 1885, the said Martin Stark, one of the complainants, commenced a proceeding in the name of the People of the State of Illinois, against defendant, for obstructing said South Railroad street by his said buildings and fences, which suit was tried in the circuit court of DuPage county, at the March term, 1887, in which it was determined by the court that defendant was not guilty of obstructing the said street by his said buildings and fences, and that said South Rail - road street had never been accepted as a street by the public authorities either of the village or city of Wheaton to a greater width than three rods, and that it was not a street to a greater width than three rods; averred that whether said street was three or four rods in width, or whether he had obstructed the said street, is res judicata and cannot be litigated again in this proceeding, but is a bar thereto, and claimed the same right of setting up the same as a bar as though he had pleaded to the same; averred that about the year 1880 defendant began putting buildings and making improvements on the strip of land in question, and erected thereon a blacksmith shop, a house, barn and other improvements, to the value of $2500 or $3000, with the knowledge and acquiescence of the complainants, and neither of them has ever objected to his putting said building and improvements upon the said land, or ever claimed to him that the same, or any of them, were in said South Railroad street, until the 29th of August, 1893, when a written notice was served by complainant Martin Stark upon him objecting to the building of the ice house upon the said premises on the ground that it was in the street; that the bill in this case was not filed until the year 1894, and that if complainants ever had any right in said strip of land on account of its being a part of the street they slept upon such rights for a long number of years, and did not seek to enforce them against defendant, and were guilty of laches, and on account of such laches have no right to the relief prayed for, and set up the defense of laches.</p> <p>A replication was filed to the answer, and upon the hearing on the pleadings and evidence the court rendered a decree finding that said South Railroad street was platted and originally laid out four rods wide, and that it was used and traveled as a public street of the town of Wheaton to the full width of four rods; that complainants purchased their laud relying that South Railroad street would always remain of the width of four rods; that defendant encroached with his improvements and buildings on said street and obstructed the same therewith, and the municipal authorities of the said town of Wheaton notified and ordered defendant to remove the obstruction from said street; that the property of complainants was impaired and injured and its convenient use destroyed by the buildings and improvements of defendant; that said South Railroad street opposite block 4, for the entire length of the block, was four rods wide; that defendant remove or cause to be removed all the buildings and structures erected by him, and that on a failure to do so a writ or writs be issued on the decree to carry the same into effect, at the costs of the defendant.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Effingham county; the Hon. E. D. Youngblood, Judg'e, presiding.</p>

Writ op Error to the Circuit Court of Macon county; the Hon. Edward P. Vail, Judge, presiding. This was a bill in chancery filed by Eugenie Pope, against her father and mother, Francis and Rosina Dapray, in the circuit court of Macon county, to declare a constructive trust and compel the convejmnce of one hundred and sixty-acres of land in Carroll county, Missouri.

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. James Góggin, Judge, presiding.

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

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

<p>1. Railroads—lessee of a railroad assumes obligations of the lessor’s charier. A lessee of a railroad assumes the rights, franchises and obligations contained in the lessor’s charter and must conform to its requirements.</p> <p>2. Same—when the duty of running a train for passengers exclusively is implied. The duty of furnishing a separate train for passengers only, and not for freight and passengers together, is implied in the duty of a railroad company to furnish necessary rolling stock and equipment for the suitable and proper operation of the road.</p> <p>3. Same—mandamus lies to compel railroad to run separate passenger train. A duty sufficiently specific to be enforced by mandamus is imposed upon a railroad company with respect to the running of a passenger car or cars separately from freight cars.* </p> <p>4. Same-—sufficiency of earnings to justify running separate passenger train—how determined. The sufficiency of the earnings of a railroad to justify the expense of running a separate passenger train over a certain branch line constituting part of the entire system is not to be determined by considering the profits of that branch alone, but of the whole business of the various parts of the road operated with the branch as one continuous line.</p> <p>5. Same—when preferred stock of railroad company cannot be considered in determining indebtedness. Preferred stock of a railroad company is not an indebtedness which can be considered in determining whether its obligations are such as to prevent its operating a passenger train separately from its freight trains.</p>

<p>^ Writ op Error to the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.</p>

<p>1. Deeds—deed construed as a present grant of a future estate. The granting clause of a deed duly executed and delivered, which provides that the grantors “do hereby remise, release and quit-claim” to the grantee, his heirs and assigns, “after the death” of grantor, is a present grant of a future estate, the words “after the death,” etc., limiting the grant to the remainder after grantor’s death.</p> <p>2. Same—when deed is not void as a testamentary devise. A deed delivered in the grantor’s lifetime, which grants a present interest in the remainder after the grantor’s death, is not void as a testamentary devise because it provides 'that the property shall be in full of the grantee’s share of the grantor’s estate, where such provision is reconcilable with the granting clause as a condition subsequent, made binding upon the grantee by his acceptance of the deed and his conduct after the grantor’s death.</p> <p>3. Same—effect where deed is not to take effect until grantor's death. A delivered deed in the usual form of a bargain and sale deed, which contains a clause, following the description of the property, that it is “not to be of any force and effect until after the death” of the grantor, is a present conveyance of a remainder after the death of the grantor. (Shackelton v. Sebree, 86 Ill. 616, and Harshbarger v. Carroll, 163 id. 636, followed.)</p>

Thomas M. Shaw, Judge, presiding. This was an action of assumpsit commenced to the February term, 1897, of the circuit court of Peoria county, by the Hanna Wagon Company, a corporation engaged in the manufacture of farm wagons at Peoria, Illinois, to recover from Kingman & Co., also a corporation, for the alleged breach of a certain written contract dated December 22,1892, and modified by a written contract dated March 22, 1894.

<p>Ejectment—increasing depth of water in stream by erecting dam not a taking of the land. The building of a dam, which causes the water in the stream to stand deeper between its banks some two miles from the dam, is not such a taking of the land at that point as entitles the owner of the land and stream to maintain ejectment.</p>

<p>1. Appeals and eeeoes—counsel’s assertion that constitutional question is involved is not sufficient. The assertion of counsel that in some view of the case the validity of a statute may become involved does not warrant the Supreme Court in assuming jurisdiction of an appeal as raising a constitutional question, where it is apparent the validity of such statute is not involved.</p> <p>2. Same—when appeal does not involve the validity of a statute. An appeal by a member of an assessment company from a decree dismissing his bill against the association, filed to prevent a forfeiture of Ms insurance certificate and compel a specific performance of his contract of insurance, does not involve the validity of section 20 •of the act concerning assessment companies, (Laws of 1893, p. 126,) relating to actions to be brought by the Attorney General.</p>

Appeal frpm the Circuit Court pf Christian county; the Hon. William M. Farmer, Judge, presiding.

<p>1. Upon the authority of Walker v. People, 170 Ill. 410, where the ordinance here involved was in question, the court holds that the ordinance is not void for uncertainty, nor for providing that-the hoard of trustees reserved the right to reject proposals.</p> <p>2. Bills op exception—in absence of bill it is presumed the court heard evidence to sustain its finding. In the absence of a bill of exceptions it will be presumed, on appeal, that the county court heard evidence sufficient to sustain its finding, that the commissioners appointed to spread an assessment took the oath required by law.</p> <p>3. Special assessments—division into installments—effect of subsequent change in aggregate of installments. After an assessment has been divided into installments, in accordance with the statute, the-fact that a change is made in the amount of the several installments by reason of the dismissal as to part of the property, so that they are no longer multiples of $100, is not ground for reversing the confirmation nor for a new division into installments.</p>

Original petition for mandamus. This is an original proceeding in this court by the People, on the relation of Hetty H. R. Green, to obtain a writ of mandamus to compel the board of commissioners of Cook county to act as a county board of review to review the assessments for 1898 on certain property of the petitioner situated in the town of Lake, in said county, and particularly described in the petition.

<p>1. Criminal law—in determining sufficiency of an indictment, dates alleged are taken as true. In determining the sufficiency of an indictment the court must consider the dates alleged therein as correct, even though the proof at trial need not correspond therewith.</p> <p>2. Same—indictment against public officer for not turning overfunds—■ what must be alleged. An indictment for embezzlement under section 215 of the Criminal Code, which alleges that the accused, at the time of the offense, was the treasurer of a muriicipal corporation, must affirmatively show a failure by accused to turn over the funds upon demand made, after his term of office had expired, by the party entitled to receive them.</p> <p>3. Same—when averment does not show expiration of term of office. An averment in an indictment against a treasurer of a municipal corporation for failing to turn over the funds to his successor, which alleges a demand by a person “duly appointed and qualified as the successor” to the accused, “as treasurer,” does not show that the term of office of the accused had expired, as against a prior allegation that at the time of the offense the accused was treasurer.</p> <p>4. Same—when demand by successor in office is not sufficient. A written demand by a successor in office on his predecessor to turn over funds, delivered at the residence of such predecessor by a messenger' not authorized to receive the funds, will not ground an indictrhent for embezzlement under section 215 of the Criminal Code, where there is no particular place for transacting the business of the office, and the demand fails to state where the successor might be found to receive the funds.</p> <p>5. Public officers—Interest act of 1898 has not changed fiduciary character of public officers. The act of 1893, (Laws of 1893, p. 136,) to compel custodians of public funds to account for interest thereon, has not changed the fiduciary character of the obligations of such custodians so as to make the relation between them and their respective depositors that of debtor and creditor, but merely imposes an additional duty on such custodians to make the funds in their control interest-bearing.</p>

<p>Appeal from the County Court of Cook county; the Hon. R. W. S. Wheatley, Judge, presiding.</p>

<p>1. Conspiracy—all parties to a conspiracy to ruin business of another are liable for loss. All parties to a conspiracy to ruin the business of another because of his refusal to do some act against his will or judgment, are liable for all overt acts illegally done in pursuance of such conspiracy and for the consequent loss, whether they were active participants or not.</p> <p>2. Same—a boycott is an actionable wrong. Members of a labor union have no right to insist that another person unite with them or fix his scale of prices the same as that of the union, and make his refusal a pretext to break up his business by inducing his customers to break their contracts and stop dealing with him.</p> <p>3. Personal rights—malicious interference until another's business is actionable. Every man has.a right to full freedom in disposing of his own labor or capital, and any one who maliciously invades that right by misrepresentation, intimidation, obstruction or molestation is liable for the loss thereby occasioned.</p> <p>4. Same—malicious interference with business is not lawful competition. Lawful competition does not give rise to an action for damages, even though it results in driving another out of business: but malicious interference with another’s business for the sole purpose of injuring or destroying it, such as the inducing of third parties to break their contracts with the latter, is not lawful competition.</p> <p>5. Appeals and errors—question of proximate and remote cause is not open in the Supreme Court. Whether the injury sustained by the plaintiff was the direct result of the acts of the defendants in inducing others to break their contracts with the plaintiff, or was the result of the independent acts of the parties to such contracts, is a question of fact not open to review in the Supreme Court.</p>

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

<p>Appeal from the County Court of Lake county; the Hon. D. L. Jones, Judge, presiding.</p>

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