Volume 178 — Illinois Reports

<p>Appeal from the Circuit Court of Wayne county; the Hon. E. E. Newlin, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Vermilion county; the Hon. F. Bookwalter, Judge, presiding.</p>

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

James A. Creighton, Judge, presiding. This is a bill filed by the appellants against the appellee, praying that the appellee may be decreed to take down two electric wires and a cross-arm, stretched and extending over a private alley in the rear of the property of the appellants in the city of Springfield, and to remove said wires and cross-arm from said alley, so as to render the use thereof with the appurtenances by the appellants as the same was used previous to the…

<p>1. Witnesses—parlies to void marriage may testify against each other. A void marriage does not operate to disqualify either party from testifying against the other.</p> <p>2. Same—when testimony of alleged wife is competent in criminal case. In a prosecution for forgery the alleged wife of the accused is properly permitted to testify against him upon proof that he had a wife living when the marriage ceremony with the witness took place, which is not contradicted by the accused though he took the stand in his defense.</p>

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

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

C. F. Wheat, Judge, presiding. Henry C. Sumpter brought an action of attachment in the county court of McDonough county against the Supreme Sitting Order of the Iron Hall, a corporation organized in Indiana under the laws of that State. James H. Grigsby, the appellee, was summoned as garnishee.

<p>This case is controlled by the decision in Sowell v. Covenant Mutual Life Ass. 176 Ill. 557.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. T. M. Shaw, Judge,' presiding.</p>

J. C. Broady, Judge, presiding. This is an action of ejectment brought by appellant, against appellee, in the circuit court of Adams county, to obtain possession of certain lands in that county and in the Indian Grave drainage district, to which lands appellant claims title under a tax deed issued in pursuance to a tax sale on June 2, 1894. A jury was waived by agreement and the case was tried by the court at the March term, 1897, resulting in a judgment for appellee.

Eben E. Gower, judg'e, presiding. This was assumpsit by the appellee, against the appellant town. The declaration contained the common money counts, a common count for goods, wares and merchandise, a like count for work and labor done and material provided, and a common count in account had and stated. In addition to a breach in the ordinary form the declaration alleged demand had been made on the treasurer of the said town for payment of the alleged items of indebtedness.

E. F. Dunne, Judge, presiding. The National Bank of Illinois, at Chicago, sold to Harris Wolf certain bonds known as bonds of the Chicago Auditorium Association, and at the time of the several sales entered into the following agreements and undertaking's with appellant: “H. Wolf, Esq., City: “CHICAGO, June 22, 1896. “Dear Sir—We “have this day sold to you $11,000 of the five per cent bonds of the Chicago Auditorium Association, at par, and interest.

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

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

<p>1. Wills—bill to contest must be filed vñthin two years from probate. Except in case of disability a bill in chancery to contest a will must, under section 7 of the act on Wills, (Laws of 1895, p. 327,) be hied within two years from the time of probate.</p> <p>2. Same—bill for partition construed as a bill to contest will. A bill for partition which alleges that complainant is a tenant in common by inheritance but that defendants fraudulently procured a will devising the property to them, which was improperly admitted to probate and which constitutes a cloud on complainant’s title, is a bill to contest the validity of the will.</p> <p>3. Same—irregularities in probate do not excuse filing of bill within two years. Mere irregularities in probate proceedings which could only be availed of in a direct proceeding do not render the probate a nullity, so as to permit the filing of a bill to contest the will more than two years after such probate.</p>

John J. Glenn, Judge, presiding. This was a bill in equity, filed in the circuit court of Mercer county by John McCaffrey, against the Schulenburg & Boeckeler Lumber Company and its assigmees, and Knapp, Stout & Co. Company. Said corporations, for brevity, will here be called the Schulenburg company and the Knapp company.' The object of the bill was to establish and enforce a bailee’s lien upon a half raft of lumber at Boston Bay, in Mercer county.

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

<p>1. Executors and administrators—when an administrator may maintain bill to sell real estate. Where the terms of a will cannot be carried out by the executor without converting the real estate into money, an administrator de bonis non with the will annexed has a standing in equity to maintain a bill for a construction of the will and appointment of a trustee to sell and make distribution. (Stoff v. McGinn, ante, p. 46, followed.)</p> <p>2. The contention that the decree sought to be set aside in the court below was void for want of jurisdiction has been decided adversely to plaintiffs in error in Stoff v. McGinn, supra.</p>

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

Henry V. Freeman, Judge, presiding. This is an action of assumpsit, originally brought by the appellee, William Fleming, against the appellant, William E. Webster. A demurrer was filed to the original-declaration and sustained. A demurrer was also filed -to the declaration, after it had been-amended, and sustained.

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. Murray F. Tuley, Judge, presiding.

M. W. Shaefer, Judge, presiding. John Anderson, the father of appellant and appellee, died testate April 11, 1876. His will was duly admitted to probate. By the twelfth clause he gave to the heirs of his body by his wife, Margaret, all moneys and personal property remaining after the payment of all other legacies and bequests. Margaret had then two infant children by the testator—appellee and a daughter.

<p>1. Appeals and errors—one cannot appeal from order giving Mm the precise relief sought. A petitioner for a road, who has obtained the precise relief sought and who has no adverse interest in any question of damages, cannot appeal from the order of the commissioners granting the prayer of his petition.</p> <p>2. Same —when justice of peace cannot assume jurisdiction to allow an appeal. A justice of the peace who is one of the petitioners for a highway, or who is substantially interested in the proceedings, can not assume jurisdiction to grant an appeal from the order of the commissioners, by approving the bond and selecting the members of the reviewing tribunal.</p> <p>3. Injunction—equity will not enjoin void appeal. Equity will not enjoin an appeal from the highway commissioners to the supervisors, of which, under the facts alleged in the bill and admitted by demurrer, the supervisors have no jurisdiction, as any order they might make would be void and could be resisted in any proceeding.</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. Philip Stein, Judge, presiding.</p>

<p>1. New trials—affidavit for, on ground of new evidence—token insufficient. An affidavit in support of a motion for new trial does not show due diligence in seeking to discover the name and procure the attendance of a witness claimed by the accused to have been present when the bond was signed by the party whose name the accused was convicted of forging, which fails to state the names of the parties of whom the accused made inquiries.</p> <p>2. Same—one unable to ascertain name of important witness should ash for continuance. One charged with crime who has forgotten the name of an alleged important witness should ask for a continuance to enable him to ascertain the witness’ name and procure his testimony, and if he fails to do so and goes to trial without such testimony he is not entitled to a new trial in order to procure it.</p> <p>3. The court reviews the evidence in this case and declines to disturb the verdict of the jury convicting the plaintiff in error of forging a bond.</p>

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

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

<p>1. Railroads—communication of fire by engine need not be proved by direct evidence. Evidence that an unused, closed and locked elevator adjoining a side-track was seen to be on fire in its cupola just after an engine had passed emitting sparks tends to show the fire was communicated by the engine, where there had been no fire in the elevator, the wind was blowing from the engine toward the building, and the defendant advances no other reasonable theory as to the origin of the fire.</p> <p>2. Evidence—what will not justify inference that fire ivas burning in private house. Evidence that the burning of an elevator was at a time of year when it might be presumed the weather was cold has no tendency to prove that a fire was burning in a house near the elevator, the occupants of which had been in bed for over an hour before the elevator fire broke out, from which it is claimed sparks might have been carried to the burned building.</p> <p>3. Same—ivhen error in admitting evidence will not reverse. Error in permitting a witness who had no knowledge of how an elevator took fire, to give her conclusion that there was no other way for it to take fire except from a passing engine, is not ground for reversal, where, under the evidence, there was no other reasonable conclusion to be drawn.</p> <p>4. Instructions—words “prima facie” may be used without explaining their meaning. An instruction repeating the language of the statute making the fact of the communication of fire from a locomotive prima facie evidence of negligence, is not erroneous in not explaining the meaning of the words “prima facie.”</p> <p>■ 5. Appeals and errors—whether prima facie case is overcome is not for the Supreme Gourt. Whether a prima facie case of negligence, made by evidence tending to prove the fact of the communication of a fire from defendant’s engine, has been overcome is not a question for the Supreme Court.</p>

<p>1. Evidence—when conversations not in presence of accused are competent. Where a saloon-keeper is charged, as principal or accessory before the fact, with taking part in a confidence game, conversations between the prosecuting witness and others who aided in the crime, which were the means of inducing him to accompany them to the saloon, are competent.</p> <p>2. Confidence games—what is a confidence game and not a robbeip. Inducing a man to bet on the top and bottom of dice, and taking his pocket-book and money from his pocket for the purpose of betting, is a confidence game rather than a robbery, even though fear is aroused in him for the loss of his money.</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. Murray F. Tuley, Judge, presiding.</p>

E. D. Youngblood, Judge, presiding. This is an action of assumpsit brought by appellee, against appellant, to recover for a loss under a fire insurance policy issued by appellant on the buildings' and personal property of appellee, described in the policy. It was made September 2,1895, for a term of three years, and covered a loss not exceeding $2575. The greater part of the property covered by it was destroyed by fire the night of February 3, 1896.

<p>Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.</p>

F. Bookwalter, Judge, presiding. The opinion announced in this case by Mr. Justice Burroughs, speaking for the Appellate Court for the Third District, states fully the points of law and fact involved, and is as follows: “The appellee commenced, in the circuit court of Vermilion county, mandamus proceedings against the appellant. The original petition for the writ was demurred to and the demurrer sustained.

John C. Garver, Judge, presiding. This is a bill filed op. October 7, 1895, by the appellee, Clara A. Mensch, against the Zion Church of Sterling, Illinois, to foreclose a mortgage given by said church to secure a loan for $1000.00 made by her to it June 24, 1898.

<p>Appeal from the County Court of Morgan county; the Hon. Charles A. Barnes, Judge, presiding.</p> <p>This was a proceeding in the county court of Morgan county, under the provisions of the act of the legislature, entitled “An act concerning local improvements,” approved June 14, 1897, in force July 1, 1897, for the construction of a brick street pavement on South Diamond street, in the city of Jacksonville, by special taxation of contiguous property, except as to- intersections of cross-streets and alleys, the expense of the paving as to cross-streets and alleys to be paid for by general taxation.</p> <p>On March 17, 1898, a petition was presented to the board of local improvements of said city, signed by the owners of a majority of the real estate or property abutting upon said street proposed to be improved. The board of local improvements,' after giving notice of the time and place for hearing, caused to be prepared and presented to the city council, at its regular meeting on August 4, 1898, its recommendation of the construction of said improvement, together with the estimate of cost of the improvement as prepared by the engineer of the city, and also an ordinance providing for the construction of the improvement. The estimate of cost was approved and the recommendation concurred in, and the ordinance, was duly passed by the council. On August 15,1898, the city attorney, as directed by the ordinance, filed a petition in the county court of said county asking for the confirmation of a special tax for the construction of the improvement, as provided by law. A commissioner was appointed for the purpose of preparing" a special tax roll, as provided by law, and, the necessary steps having been taken, the assessment roll was returned into court on the 17th day of August, and notices of time and place of application for confirmation of the assessment roll were given, as provided by law.</p> <p>Objections were filed to the confirmation of the assessment roll as returned by the commissioner by H. M. Hamill, Martha Tapp, Mary Fitzgerald, Thomas White, Jeanette Watkinson, (widow and heir-at-law of Isaac Watkinson, deceased,) Libby Hatfield, Mrs. L. B. Mack, Richard T. Mathews, John W. Muse, George Washington, Margaret Kennedy, Pat Duffy, Thomas White, Ruby White, Albert White, Frances Rightmeier, (heirs-at-law of John C. White, deceased,) Thomas Harrison and William S. Wyatt. These objectors filed seven objections. The fifth was, that the property of the objectors is not benefited to the amount of their respective assessments as returned by the commissioner. The sixth was, because the property of each objector is assessed more than its' proportionate share of the cost of said improvement.</p> <p>Objections 1, 2, 3, 4 and 7 were overruled, and a jury was called to try the issue raised by the fifth and sixth objections. By the verdict of the jury there was a reduction of $2991.78, in the aggregate, from the amount of the assessment as returned by the commissioner, and the objectors moved the court to distribute said amount of reduction upon the other property. The petitioner, the city of Jacksonville, filed an objection in writing, supported by affidavit of C. W. Brown, to the distribution of said reduction, on the ground there was not a deficiency remaining in the amount assessed with which to construct the proposed improvement, and objected to placing any of such amount upon the city as public benefits, because the distribution made by the commissioner between the public and private property was final. Isaac L. Morrison, one of the defendants below and one of the appellants here, objected to the placing of any of said reduction upon his property because there was no evidence that his property would be specially benefited to the additional amount, and because the notices required by law in such cases had not been given. The court overruled the objections of the city of Jacksonville and also the objections of Isaac L. Morrison, and placed one-half of the amount of the reduction caused by the jury trial upon the city of Jacksonville as public benefits, and the other one-half upon the property between Grove and Edgmon streets, except the property objected for, in proportion to the assessment made by the commissioner. From this ruling of the court the city of Jacksonville and the said Isaac L. Morrison appeal.</p>

<p>1. Pleading—when judgment of nil capiat is properly entered. Upon the sustaining of a demurrer to a replication interposed to a plea which constitutes a bar to plaintiff’s action, judgment of nil capiat should be entered if the plea remains unanswered, notwithstanding there are one or more issues of fact.</p> <p>2. Same—what need not be averred in plea setting up breach of covenant against suit on note. Where an encumbrance exists upon one of several tracts of land which the vendor has covenanted to convey in fee simple, free from all encumbrance, the vendee, in defending a suit upon the last note of the series given for the purchase price, is not required to aver that the encumbered tract is worth the amount of the note in suit, with interest.</p> <p>3. Contracts—obligation to pay purchase price notes and covenant against encumbrance are concurrent conditions. The obligation to pay notes given for the purchase price of lands and the vendor’s covenant to convey the premises in fee simple, free from encumbrance, are dependent, concurrent conditions, and the vendor cannot enforce payment for all the lands if one of the tracts is encumbered.</p> <p>4. Covenants—an easement is within covenant against encumbrance. An ice-cutting privilege is an easement constituting an encumbrance, which the vendee is not obliged to assume under a covenant by the vendor to convey the premises in fee simple, free and clear from all encumbrance.</p> <p>5. Same—vendee’s notice of encumbrance does not release vendor’s covenant. That a vendee knew at the time of contracting to purchase land, which the vendor covenanted to convey free from encumbrance, that the ice-cutting privilege had been previously conveyed to other parties, does not release the vendor’s covenant nor entitle him to recover the full purchase price and compel the vendee to accept a conveyance subject to such easement.</p>

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

<p>1. Drainage—lien for drainage assessment may be foreclosed in equity. A bill in chancery in the name of the People is a proper remedy, under section 253 of the Revenue act, (Laws of 1881, p. 130,) to foreclose a lien for drainage assessments which have been forfeited for over two years. (Hammond v. People, 169 Ill. 545, followed.)</p> <p>2. Same—county'court cannot increase the amount allowed by jury for repairs. A decree foreclosing a lien, for forfeited drainage assessments should not include an amount allowed by the county court as a repair assessment in excess of the amount awarded by the jury.</p> <p>3. Same—land must bear cost of foreclosure of lien for drainage assessments. The cost of proceedings to foreclose a lien for drainage assessments in a manner authorized by law must be taxed against the land subjected to the lien.</p>

<p>Appeals and errors—when Appellate Court cannot entertain appeal. The Appellate Court has no jurisdiction of an appeal in suit against a city upon a contract, where one of the principal issues is whether such contract, under the particular circumstances, is within the constitutional inhibition against a city’s incurring any indebtedness when already indebted beyond the five per cent limit.</p>

Oliver H. Horton, Judge, presiding. The appellant is a religious corporation organized by virtue of a general statute adopted by the General Assembly on the 6th day of February, 183.5, under the corporate name of “The Methodist Episcopal Church of the town of Chicago.” This corporate name was changed to “The First Methodist Episcopal Church of Chicago,” its present name, by an act of the General Assembly approved February 14, 1857.

<p>Writ of Error to the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding.</p>

Egbert B. Shirley, Judge, presiding. On the 6th day of May, 1895, in the circuit court of Scott county, a judgment was entered in an action at law, in favor of the relator, Mary E. Grady, against the appellant town, in the sum of $750. The town of Manchester is a municipal corporation incorporated by a special charter adopted by the General Assembly in 1861.

<p>This case is controlled by the decision in Blake v. State Bank of Freeport, (ante, p. 182.)</p>

<p>1. Specific performance—when evidence does not warrant decree. Equity cannot specifically enforce an oral contract to convey land resting upon the sole testimony of the complainant, which is contradicted in every material point by the unimpeached testimony of the defendant and another witness, who, the complainant testified, was connected with the contract and acquainted with its terms.</p> <p>2. Same—when no benefit can be claimed from the making of improvements. The making of lasting and valuable improvements upon one tract of land, the legal title to which was in the complainant by deed from the defendant, is not a circumstance tending to support complainant’s bill to compel the conveyance of another detached tract claimed to have been included with the former tract in an oral contract to convey.</p>

Writ of Error to the Circuit Court of Vermilion county; the Hon. F- Bookwalter, Judge, presiding.

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

<p>1. Ejectment—one relying on twenty year bar need not trace title to government. One who proves continuous adverse possession of land by himself and his grantors for over twenty years need not trace his title to the government to sustain'his right to recover.</p> <p>2. Same—outstanding title is no defense if barred. Proof of an outstanding paramount title will not defeat plaintiff’s right to recover in ejectment if such title was barred at commencement of suit.</p> <p>3. Color op title—master’s deed is color of title though not sealed. A master’s deed purporting to convey the land in controversy in ejectment, which is formal in all respects except as to its having no seal, is good color of title.</p> <p>4. Deeds—what not a material alteration of deed. Striking out the word “Vermont” and inserting “Illinois,” by the grantor at the grantee’s request after delivery, for the purpose of correcting the description, is not a material alteration, where the deed, before the change, referred to another recorded deed for a more particular description which was correctly drawn.</p> <p>5. Evidence—tax receipts must identify the land. Tax receipts which omit the number of the township and range are not sufficient to establish payment of taxes in connection with possession, in the absence of extrinsic evidence supplying the omissions.</p> <p>6. Adverse possession—one entering under another does not hold adversely. One erecting fences and taking possession of land under permission of another cannot dispute the title under which he entered, as his possession is permissive rather than adverse.</p>

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

<p>Motion for leave to file petition for mandamus.</p>

<p>The questions in this case are disposed of by the opinion in West Chicago Street Railway Co. v. City of Chicago, ante, p. 339.</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. John Small, Judge, presiding. ■</p>

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

John Gibbons, Judge, presiding. Appellee filed a bill to foreclose a certain mortgage upon certain property therein described, in which it was recited that the defendants became indebted to the complainant in the sum of §4900, which was to be paid in ten years from the date of the mortgage in gold coin of the United States of the then standard weight and fineness.

<p>1. Constitutional law—Mob law of 1887 is constitutional. The Mob law of 1887 (Laws of 1887, p. 237,) is a valid police enactment, and is not violative of sections 9, 10 and 12 of article 9 of the constitution, nor of the separate section prohibiting cities or counties from making donations to private corporations.</p> <p>2. Same—Mob law of 1887 does not create a debt against cities or counties. The Mob law of 1887 does not create a debt against cities or counties, but merely gives the owner of property destroyed by mobs a right of recovery upon proving all the facts prescribed by the act as necessary to fix a liability upon the city or county.</p> <p>3. Same—city’s financial condition has no bearing upon constitutionality of Mob law. The fact that a city is already indebted beyond or up to the constitutional limit has no bearing upon the constitutionality of the Mob law of 1887, as that fact could only be considered, if at all, upon a proceeding to collect the judgment.</p> <p>4. Same—wisdom of law not considered in determining its constitulionr ality. Neither the wisdom of a law nor the hardships which it may impose upon municipalities without fault or neglect of duty upon their part are matters for consideration in passing upon the constitutionality of the act.</p>

<p>1. Wills—if possible, a will should be so construed as to give effect to all its parts. A will should, if possible, be so construed as to give effect to all its parts, and not so as to render some of its provisions invalid or ineffectual.</p> <p>2. Same—repugnancy cannot be based upon void clause. A clause in a will cannot be rejected as repugnant to a former clause if the construction which must be placed upon the former clause to sustain the claim of repugnancy renders it void.</p> <p>3. Same—in construing will court may consider the alienage of donees. In order to understand the testator’s circumstances, the court, in construing a clause of a will disposing of the residue of the testator’s estate to the children of his deceased brother, may receive evidence as to the character of the testator’s property, that the children of the deceased brother were non-resident aliens, and that the testator knew that fact.</p> <p>4. Same—it is presumed that testator knew the law and intended to dispose of all his property. It will be presumed that the testator knew the law of the State disqualifying non-resident aliens from taking real estate, and that he did not intend to die intestate as to a part of the property.</p> <p>5. Same—purpose of act disqualifying aliens as devisees. The purpose of the act disqualifying aliens as devisees was not to inhibit them from becoming beneficiaries under wills, but merely from acquiring or holding title to land in Illinois.</p> <p>6. Equitable convebsion—term “equitable conversion” defined. An equitable conversion is a change of real property into personal, or vice versa, presumed to exist only by intendment of equity.</p> <p>7. Same—equity regards that as done which ought to be done. Where the provisions of the will make it the duty of the executrix to sell land and pay over the proceeds to legatees, equity will regard the conversion as having taken place at the testator’s death, the status of the beneficiaries in such case being legatees of personal property and not devisees of real estate.</p> <p>8. Same—duty of executrix to convert land into money may be implied. Where the power granted to an executrix to convert land into money is full and complete and not referred to her discretion, the absence of an express command or direction will not render the exercise of such power discretionary, when to so hold would defeat the testator’s intention as manifested from the whole will.</p> <p>9. Same—when aliens take as legatees under equitable conversion. Nonresident aliens who would be incompetent to take real estate will take as legatees, under the principle of equitable conversion, where, upon a fair construction of the will, it is the duty of the executrix to sell the land and-distribute the proceeds among them in order to carry out the testator’s intention.</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. John Barton Payne, Judge, presiding.

<p>1. Voluntary assignments—assignee in a voluntary assignment is the trustee for creditors. A voluntary assignment for the benefit of creditors creates trust relations, the assignee becoming trustee for the creditors.</p> <p>2. Same—assignee is personally liable on contracts for estate. An assignee for creditors, though continuing the insolvent’s business by order of the court, is personally liable on contracts made by him for the estate, in the absence of express contrary provisions.</p> <p>3. Same—personal liability of assignee does not depend on whether claim is proper charge against estate. The personal liability of an assignee for creditors upon contracts made for the estate does not depend upon whether the charge is a proper one against the estate, although, if such is the case, he is entitled to reimbursement.</p> <p>4. Same—filing petition against estate does not show an agreement to release assignee. The mere fact that one who sold goods to an assignee for use in continuing the insolvent’s business files a petition in the county court to require the assignee to pay his claim, upon the equitable ground that the goods were used by the estate and beneficial thereto, does not tend to establish a contract not to hold the assignee personally liable.</p> <p>5. Same—receipt of dividend from estate does not estop claimant from asserting liability against assignee. Estoppel to assert a personal liability against an assignee for the balance due on goods sold for use in continuing the insolvent’s business does not arise from the fact that the vendor received a dividend from the estate for part of his claim after filing a petition to require payment from the estate, which was not acted upon by the court.</p> <p>6. Actions and defenses—remedies must he inconsistent to preclude resort to one after adoption of other. One having co-existent remedies which are consistent with each other may select one or pursue all, and nothing but the satisfaction of the demand under one remedy will bar the others.</p> <p>7. Same—instance where remedies are not inconsistent. A petition in the county court to require an assignee to pay for goods furnished for use in continuing the insolvent’s business, as ordered by the court, is not inconsistent with a petition against the deceased assignee’s estate for the same claim, where the assignee, although personally liable, would be entitled to reimbursement from the insolvent’s estate, as the estate is, in such case, the common source of payment on both demands.</p>

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

Edmund W. Burke, Judge, presiding. This was a bill for partition brought by Louis P. Kotz in the circuit court of Cook county on the 28th day of April, 1894.

Hiram Bigelow, Judge, presiding. This was assumpsit by the appellee, (formerly Marcia K. Baton,) against the appellant, to recover upon the following note: “$5000. Chester Depot, Vt., Dec. 3, 1879. “For value received we jointly and severally promise to pay Mrs. Marcia K. Baton, or her order, five thousand dollars on demand, with interest annually. Philemon H. Robbins, Joseph R. Richardson, Witness, R. P. Pollard. Chas.

<p>1. Tax deeds—effect of reversal of decree enjoining taking out tax deed. The reversal by the Supreme Court of a final decree making perpetual a temporary injunction against taking out a tax deed, the effect of which is to hold that complainant was not entitled to an injunction, works a dissolution of the latter, which, in the absence of any order of the court on re-docketing the cause, cannot be regarded as in force so as to prevent the defendant from taking out his deed in pursuance of section 225 of the Revenue act.</p> <p>2. Estoppel—when supplemental bill is not lis pendens and matters adjudicated not res judicata. A supplemental bill filed by the complainant in the original bill after parting with all title to the land in controversy is not Us pendens as to the title conveyed, and the matters adjudicated thereunder are not res judicata as to the grantee, where the purpose of the supplemental bill is to litigate matters unconnected with the original bill and arising after the latter was filed and the conveyance made, and where there is no sufficient evidence that the grantee was privy to the filing of the supplemental bill or the proceedings thereunder.</p> <p>3. Evidence—one asserting validity of tax title has the burden of proving it. A defendant in a burnt-records proceeding, who files a cross-bill claiming title in himself by virtue of tax deeds and asking to have certain of petitioner’s deeds set aside as clouds, has the burden of proving the validity of his deeds.</p>

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

<p>Writ op Error to the Circuit Court of St. Glair county; the Hon. W. S. Hartzell, Judge, presiding.</p>

George W. Brown, Judge, presiding. This is an appeal from the decision of the circuit court of Kane county in a proceeding under the act in regard to horse and dummy railroads of this State, instituted by appellant, against appellees, to condemn the real estate described in its petition.

<p>1. Drainage—city may create drainage district independently of Drainage act of 1885. By virtue of the provisions of clauses 13 and 29 of section 1 of article 5 of the City and Village act of 1872, (Rev. Stat. 1874, pp. 220, 221,) a city may construct a drainage system in a district having its limits bounded by ordinance, independently of the Drainage act of 1885. (Laws of 1885, p. 60.)</p> <p>2. Special assessments—when property not on line of main sewer may be assessed. Property not abutting on the line of a main sewer may be assessed to the extent of its benefits if it is within the defined limits of a district having the right to drain into the sewer, or some provision is made securing that right to the property.</p> <p>3. Same—drainage assessment, under general law, may be divided. A special assessment for a drainage improvement in a district created under the provisions of the City and Village act of 1872 and its amendments may be divided into installments. (City of Charleston v. Cadle, 166 Ill. 487, and Andrews v. People, 173 id. 123, distinguished.)</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. Charles J. Scofield, Judge, presiding.</p>

<p>This case is controlled by the decision in Holden v. City of Chicago, 112 Ill. 263.</p>

<p>1. Carriers—delivery to carrier is ordinarily constructive delivery to consignee. A delivery of goods to a common carrier consigned to a particular person, without specific directions different from ordinary usage, is a constructive-delivery to the consignee.</p> <p>2. Same—on delivery to carrier property vests in consignee subject to, stoppage in transitu. By the delivery of goods to a common carrier consigned to a particular person without restriction, the property in the goods vests in the consignee so far as the consignor is concerned, subject only to the latter’s right of stoppage in transitu.</p> <p>3. Same—agent of consignee cannot exercise right of stoppage in transitu for third person. A purchasing agent who has forwarded the goods to his principal, as consignee, without restriction, cannot exercise the right of stoppage in transitu by authorizing a change in billing directions so as to substitute a third person as consignee, in order to give such person a lien on the goods.</p> <p>4. Same—when a carrier is not liable on-common counts for failure to deliver. A bank, knowing that cattle purchased by an agent have been forwarded to the principal, as consignee, without restriction, does not, by obtaining a bill of lading therefor as shipper substituting itself as consignee in order to secure money advanced, acquire a right of action against the carrier, under the common counts, for failure to deliver the cattle according to the bill of lading, where the latter are delivered as first billed.</p> <p>5. Same—a bill of lading may be contradicted by parol. A bill of lading, in so far as it is a receipt for goods, may be explained or contradicted by parol evidence.</p> <p>6. Same—a carrier may defend suit for non-delivery by showing it received no goods from plaintiff'. In an action under the common counts on a bill of lading for failure to carry and deliver the property, the carrier may show in defense that no property was received from the plaintiff, but that the bill of lading was issued to him after the property had been received from a third person and was already in transit, consigned without restriction to the true owner, to whom it was delivered.</p> <p>• 7. Same—when carrier is not estopped to contradict bill of lading though money was advanced thereon. A carrier, having issued a bill of lading for goods shipped by a purchasing agent to his principal, is not estopped to deny the receipt of the goods from the bank, although the latter advanced money on the strength.of the bill of lading, where the bank was aware, when it obtained the bill of lading, that the property was already in transit, consigned to the principal, without restriction.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

Colostin D. Myers, Judge, presiding. The following statement of this case is made by the appellant in this court: “This is a proceeding by scire facias, by Revilo Oliver, appellant, against Edward R. Oliver and other heirs of Franklin Oliver, deceased, and the tenants in possession of the lands in question, and J. E. Brown, trustee, who holds the lands in trust for the heirs of Franklin Oliver, deceased, appellees.

<p>Writ of Error to the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.</p>

Farlin Q. Ball, Judge, presiding. On June 15, 1894, a bill was filed by William Fleming and others against John J. Shutterly and others to foreclose a trust deed upon certain improved property in Cook county. Appellee was the owner' of the equity of redemption and was made a party defendant. An order was entered in the cause appointing appellant Julius H. Stevens receiver of the premises, with the usual powers of receivers in such cases.

<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. A. H. Chetlain, Judge, presiding".</p>

<p>Practice—master's findings of fact are conclusive in the absence of exceptions. Confirmation of the master’s report is conclusive of matters of fact on appeal, where no exceptions to the report are filed after the master has overruled the objections thereto.</p>

<p>1. Amendments—delinquent list is under control of collector until time of application for judgment. A tax collector, not being required to file his published list until the time of application for judgment, may before such time re-file a list previously filed and add a new certificate, although the better practice would be to file a new list.</p> <p>2. Same—court may permit amendment of certificate of publication beforejudgment. The county court has power to permit the amendment of a certificate of publication to a delinquent list while the application for judgment is still .pending.</p> <p>8. Taxes—parol evidence as to publication of list is admissible. Upon application for judg'ment against delinquent lands it is not error to admit parol evidence of facts relating to the publication of the delinquent list.</p> <p>4. Same—effect of clerk's failure to place file-mark on delinquent list. The clerk’s failure to place his file-mark upon a delinquent list does not destroy its validity, where the evidence shows that the book containing the list was delivered to the clerk of the county court within the time required by law.</p> <p>5. Same—general appearance cures defective notice of application. A general appearance by the owner in a proceeding to sell lands for delinquent taxes or assessments cures the defects in the notice of the application for judgment.</p> <p>6. Same—special appearance must be confined to matters of jurisdiction. An objection to an application for judgment of sale for taxes, based upon the county collector’s refusal to permit the objector to examine the books containing the city collector’s report and warrants, does not go to the jurisdiction of the court to enter judgment, and operates as an entry of general appearance.</p> <p>7. Same—collector's refusal to permit inspection of books not ground for refusing judgment. The county collector’s denial of the right of a property owner to examine the books containing the city collector’s warrants and report is not ground for refusing judgment of sale, in the absence of any application to the court to postpone hearing to permit an inspection of such book.</p> <p>8. Same—ivhen judgment is in substantially correctform. A judgment against the property of the objector, in the name of the People, substantially complies with section 191 of the Revenue act, though it does not read as entered against “the aforesaid tract of land.”</p>

<p>Writ of Error to the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.</p>

T. H. Mehan, Judge, presiding. On the 6th day of September, 1875, one William Knight conveyed to the appellant lots 3 and 4, in block 96, in Beard & Weare’s addition to the city of Beardstown. The grantor, with his children, then lived in a dwelling house situate on the lots and occupied the premises as a home.

<p>1. Special assessments—when ordinance is invalid for insufficient description. An ordinance providing for the curbing of a street with a “granite concrete combined curb and gutter,” to be “laid in alternate blocks six feet in length and six inches in thickness,” is invalid, where there is nothing showing the width of the blocks or height of the curb. (Holden v. City of Chicago, 172 Ill. 263, followed.)</p> <p>2. Appeals and errors—one against whose property judgment of. confirmation was refused cannot bring error. Parties against whose property judgment of confirmation was refused cannot bring a writ of error or join with others whose property was included in the judgment of confirmation.</p>

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.

<p>1. Corporations—a water company is subject to legislative regulation as to rates. A corporation organized under the general law and authorized by a city to construct water-works and supply the public with water is a quasi public corporation, and as such is subject to legislative restriction and regulation as to rates.</p> <p>2. Municipal corporations—city’s power to regulate water rates is a continuing one. The power of a municipal corporation, under section 1 of article 10 of the City and Village act, (Rev. Stat. 1874, p. 240,) to fix water rates is a continuing one, which may be exercised from time to time, as changed conditions may affect the reasonableness of rates formerly established.</p> <p>3. Same—ordinance fixing water rates for thirty years not a contract. An ordinance granting a corporation the right to use public streets for thirty years for a water-works system and fixing the rates to be charged for that period is merely a declaration that such rates are reasonable, and is not a contract which binds the city to recognize such rates as reasonable for the full period.</p> <p>4. Same—annexation clothes council with power to reduce water rates in annexed territory. Annexation of a village by a city clothes the council with power to reduce water rates of a corporation, which is operating a water system in the annexed territory under an ordinance fixing the rates for thirty years, to conform to the rates in other parts of the city, and if such rates are reasonable the corporation must abide by them.</p> <p>5. Contracts—one taking water does not contract to pay present rates regardless of reduction by city. An application for water by an inhabitant of a city, and its acceptance by the water company, merely binds the inhabitant to pay the rates then in existence as long as the company has the right to demand them, and upon their reduction by the city the inhabitant may by mandamus compel the company to furnish water at the reduced rates if they are reasonable.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. Richard Yates, Judge, presiding.</p>

<p>1. Pleading—when additional counts do not state new cause of action. Additional counts in an action against a railroad company, which state the same transaction and the same injury, and charge as the cause thereof, though in somewhat variant language, the same negligence in not stopping the train a reasonable time, do not set up a new cause of action, although they allege other negligence not connected by any averment with the plaintiff’s injury.</p> <p>2. New trial—when affidavit in support of motion is properly rejected. An affidavit by the defendant in support of a motion for new trial, which states affiant’s belief that newspapers containing notices of a former trial of the cause and the amount of the verdict then awarded had found their way to the jury room, is properly rejected, even though affiant’s belief is well founded, if such newspapers express no opinion or state no facts affecting the merits of the case.</p> <p>3. Trial—mere withdrawal of improper question after answer does not cure harm. Prejudice arising from incompetent evidence adduced in response to improper questions or from improper remarks by counsel is not removed by their mere subsequent withdrawal.</p> <p>4. Same—it is.error for the court to express opinions on questions of fact. The remark, “The only question in this case is whether this lady [the plaintiff] had time to get off this train or not,” made by the court to counsel in the presence of the jury, is error, where there is evidence before the jury which, if credited, would establish negligence on the part of the plaintiff.</p> <p>' 5. Same—when court’s remarks before jury will work reversal. Statements by the court before the jury, in an action for negligence, that plaintiff’s counsel might refer to the ad damnum and “comment upon that as your measure of damages,” and that the jury might “consider the damages laid” and “find whatever they want, but not exceeding the ad damnum,” are ground for reversal, in the absence of anything in the instructions sufficient to cure the error.</p>

Original petition for mandamus. This is a petition filed in this court by the relator for a writ of mandamus against the respondent, the Suburban Railroad Company.

<p>Appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judg'e, presiding".</p>

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

<p>This case is controlled by the decision in Holden v. City of Chicago, 172 Ill. 263.</p>

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

Writ of Error to the Circuit Court of DeKalb county; the Hon. George W. Brown, Judge, presiding. The board of supervisors of the cóunty of DeKalb denied the prayer of a petition presented to it asking a new town be created out of territory to be disconnected from the town of Somonauk, an existing town under the township organization system, in that county. A petition in the name of the People of the State of Illinois, ex rel.