Volume 182 — Illinois Reports

Frank Baker, Judge, •presiding. This is an action by Gebhardt W. Zeiger to recover' damages for personal injuries and for expenses to which he was put, together with damages for injuries to property, alleged to have been sustained by him by reason of the negligence of the North Chicago Street Railroad Company.

Philip Stein, Judge, presiding. This is an action by appellee, against appellant, to recover for personal injuries received by him while a passenger on one of defendant’s cable cars.

George A. Trude, Judge, presiding. This was an action brought by appellee, a minor aged fourteen years, against Swift & Co., to recover for a personal injury received while in the employ of the defendant at its packing house at the Union Stock Yards in Chicago, on the 30th day of June; 1892. A trial before a jury resulted in a verdict and judgment for plaintiff of $5000, which, on appeal, was reversed in this court on account of an erroneous instruction.

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Benefit societies—constitution of local lodge controls in case of conflict between it and constitution of head lodge. The constitution of a local branch of a benefit society forms a part of a member’s contract of insurance, and where there is no requirement that the constitution and by-laws of the subordinate societies must strictly conform to those of the association, which has no transactions with the members directly, the former governs in case of conflict.</p> <p>2. Same—society relying on forfeiture must show that the constitution was strictly followed. It is incumbent upon a benefit society to show that a forfeiture and suspension relied on as a defense to a suit for mortuary benefits were made in accordance with the constitution and by-laws of the society.</p> <p>3. Trial—when remarles by the court to witness are not objectionable. Remarks made by the court in an endeavor to get the evidence before the jury in a manner to be understood by them are not objectionable where the witness testified in a foreign language.</p> <p>4. Appeals and errors—when refusal of defendant’s instructions is not erroneous. Refusal of instructions requested by the defendant association in an action upon a benefit certificate is not error, when no defense against th e prima facie case of plaintiff is made out.</p>

Theodore Brentano, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming the judgment of the superior court of Cook county, in an action brought by appellee, against appellant, on a policy of fire insurance.

E. E. Hewlin, Judge, presiding. This is an action of assumpsit, brought on May 11, 1896, by James Hardesty, administrator of the estate of Henry Hardesty, deceased, on a fire insurance policy, dated January 21, 1892, issued to Henry Hardesty, insuring certain dwelling houses, household furniture, and grain hereafter described. The declaration sets out the policy in Ticec verba, and contains averments setting up the facts hereinafter stated.

<p>1. Insurance—when policy will not be forfeited for alleged false statements. A life insurance policy issued by a company engaged in the insurance of sub-standard risks and upon a copy of the application which the insurer knew had been rejected by another company, is not forfeited because of a statement in the application, which was true when made, that applicant had not been previously rejected.</p> <p>2. Same—;fraud cannot be based on physician’s opinion if the facts are truthfully stated. A charge of fraud sufficient to avoid a life insurance policy cannot be based upon the examining physician’s opinion, when accompanied by a correct statement of the facts upon which the opinion rested.</p> <p>3. Same—;forfeiture cannot be based on cause within agent’s knowledge when issuing policy. An insurance company cannot insist upon the forfeiture of a policy for a cause within the knowledge of its agent at the time the policy was issued.</p>

James S. Baume, Judge, presiding. This was a bill in chancery for partition. The circuit court ruled the complainants in the bill and in the bill of interpleader had no title or interest in the premises involved, and dismissed the original bill and the bill of interpleader.

D. L. Jones, Judge, presiding. On October 13,1896, Isaac Goldberg filed in the county court of Lake county a deed of assignment, dated as of that day, and executed by him to the Chicago Title and Trust Company under the Voluntary Assignment Act. The deed of assignment was acknowledged by Goldberg on the day of its date, and, on the same day, was recorded in the recorder’s office of said county; and, on the same day, the trust was accepted by the assignee therein named.

James A. Creighton, Judge, presiding. This is a bill in chancery, filed September 1, 1896, by W. M. Pogler, and Georg'e W. Brown, the latter being administrator with the will annexed of the estate of Nathaniel M. McCurdy, deceased, and others, stockholders or partners in a certain banking firm, known as the Bank of Vandalia, against certain other stockholders or partners therein, and Imogene Marr, Harrietta Marr, McKendree College, and the Church Extension Society of the…

Writ op Error to the Circuit Court of Clinton county; the Hon. A. S. Wilderman, Judge, presiding. On the 16th day of January, 1890, Robert J. Drayton died testate.

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

<p>1. Dower—what findings of fact will sustain a decree for dower. Findings that the deceased died seized in fee of specified real estate, leaving surviving her the petitioner (her husband) and certain heirs, and that the premises set off to petitioner as his dower are one-third part of the property of the deceased, are sufficient to justify a-decree vesting the property in petitioner for'his dower.</p> <p>2. Same—when allowance of damages for detention of dower cannot be sustained. Damages for the detention of dower, allowed in a decree vesting specified property in the petitioner for his dower, cannot be sustained when the decree contains no recital authorizing the allowance and the evidence is not preserved in the record.</p>

<p>1. Trial—right of court to direct verdict not taken away by conflict on immaterial matter. A conflict in the evidence upon immaterial matter does not deprive the court of the right to take the case from the jury by an instruction.</p> <p>2. Same—court need not submit issues to jury not based on the evidence. Whether the contract sued upon had been abandoned should not be submitted to the jury in the absence of evidence of abandonment.</p> <p>3. Sales—what a sufficient tender of goods sold. Merchandise sold is sufficiently tendered, to entitle the seller to maintain an action for breach of contract, where it was shipped to the city in which the purchaser resided but was not delivered because of his refusal to pay the draft attached to the bill of lading.</p> <p>4. Same—sufficiency of tender of goods is waived by failure to object at the-time. Unless the sufficiency of the tender of goods purchased is questioned at the time, the purchaser cannot thereafter be heard to object to it.</p> <p>5. Same—refusal of purchaser to give shipping directions is a refusal of goods. The refusal of a purchaser to give shipping directions for the goods is a refusal to accept them and relieves the seller from his obligation to forward them,—especially where the purchaser has an option as to the place of delivery.</p>

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

John Barton Payne, Judge, presiding. This is an action in assumpsit, brought by the appellee against the appellant to recover the sum of $677.30, alleged to be due him upon an oral contract with the city made in 1897 to do stenographic and typewriting work to that amount in a certain action tried in the superior court of Cook county, brought by one Ella C. Quinlan against John J. Badenoch and John E. Fitzpatrick, which work is alleged to have been done under said agreement.

<p>Appeals and errors—when no question of law is presented to Supreme Court. No question of law is presented to the Supreme Court for review in an action of ejectment tried by the court without a jury, where no objection was made to the admission or rejection of evidence, or any exception taken to the overruling of the motion for a new trial, or to the finding, or to the entry of judgment, or any propositions of law submitted.</p>

<p>1. Partnership—it is the duty of the surviving partner to settle firm affairs. It is the duty of a surviving partner, under the law, to make a settlement of the firm affairs, and only in this way can the interests of the deceased partner be ascertained.</p> <p>2. Same—when partner purchasing deceased partner’s interest cannot enforce subsequently discovered liability. A surviving partner who, upon purchase of the interest of the deceased partner, assumes the debts shown by the books and papers of the firm, cannot enforce against the deceased partner’s estate a subsequently discovered liability of the firm not shown by the journal and daily balance book, but which appears from a register and other papers of the partnership, which were in his hands for about ten months before the purchase.</p> <p>3. Same—partner’s indebtedness to firm presumed to have been considered in fixing selling price of his interest. A partner who sells his interest in the firm property cannot be presumed, in the absence of any agreement, to have sold his own indebtedness to the firm, but it will be presumed that such debt was taken into consideration in fixing the selling price.</p> <p>4. Same—when purchasing partner cannot enforce claim against selling partner’s estate. A member of a partnership who purchases the interest of a deceased member cannot recover against his estate on the theory that the books were not correctly kept by him, when he thereby attempts to assert a claim which, if valid, would exist in favor of former partners, and where he was familiar with the business and had possession of its books before purchasing the interest.</p>

<p>1. Statutes—when subject of act is sufficiently expressed in title. The provisions of a statute are within its title when they relate to a particular subject indicated in the title, and are a part of or incident to it, or in some reasonable sense connected with or auxiliary to the object in view.</p> <p>2. Constitutional law—provisions of Appropriation act of 1897 to State Normal University are within its title. The provisions of the act of 1897, (Laws of 1897, p. 79,) entitled “An act to make an appropriation for the ordinary and other expenses of the Illinois State Normal University at Normal, Illinois, and for the completion and equipment of its gymnasium building,” are within the title of the act, and the act is therefore constitutional.</p> <p>3. Same—when legislative determination of policy of State is conclusive. Section 1 of article 8 of the constitution, requiring the General Assembly to provide a “thorough and efficient system of free schools,” is a mandatory provision without restriction as to methods, and the legislative determination of the policy of the State in selecting its own agencies or instrumentalities for the purpose of carrying out such provision is conclusive.</p> <p>4. Same—effect of contemporaneous legislative construction of constitur tionalprovision. Uniform, continued and contemporaneous construction given by the legislature to a ‘constitutional provision, and generally recognized as its meaning or intention, affords a strong presumption that such construction is correct.</p> <p>5. Same—appropriation act of 1897 to State Normal University is constitutional. The provision of section 20 of article 4 of the constitution, that the State shall never pay, assume or become responsible for the debt of, or loan or extend its credit to, any public or other corporation, does not prevent the State from appropriating money to defray the expenses and complete buildings of the private corporation known as the Illinois State Normal University, which before the adoption of the constitution was au agency of the State for the education of teachers, and appropriations may properly be made to continue it as Such.* </p>

<p>' 1. Equity—equity may entertain bill to enforce equitable assignment of particular fund. A court of equity has jurisdiction of a bill filed, to reach a part of a particular fund due to a contractor, who, it is claimed, equitably assigned it to the complainant, since the suit is one to enforce a trust. f'</p> <p>2. Contracts—word “earnings” does not mean net earnings unless properly qualified or explained. The word “earnings,” as used in the acceptance of an order given by a sub-contractor bn the original contractor, does not mean net earnings, where the drawee agreed to pay the amounts specified on the dates mentioned, provided the sub-contractor’s earnings for the period named were sufficient to. cover them, without further qualification or restriction.</p>

<p>1. Entails—Conveyance act changes effect of a deed creating an estate in fee tail. A conveyance to a grantee and her “bodily heirs” and assigns creates an estate in fee tail general at common law, but, since the abolition of estates tail, passes, under section 6 of the Conveyance act, (Rev. Stat. 1874, p. 273,) an estate for the grantee’s natural life only, with the remainder in fee simple absolute to the persons to whom the estate tail would, on the death of the grantee, first pass at common law.</p> <p>2. Deeds—when equity may correct deed containing a mistake of law. Equity will not refuse to correct a deed on the ground that the error is a mistake of law, where the scrivener, from ignorant presumption, has inserted in the deed words limiting the estate of the grantee contrary to the intention of the parties, who, upon discovering the mistake and before any estoppel in favor of third parties had arisen, attempted to correct it by a second deed omitting such words. (Fowler v. Black, 136 Ill. 363, distinguished.)</p> <p>3. Same—what evidence competent in suit to reform deed. In a suit to reform a deed, testimony as to what was said as to the necessity of a new deed when that executed and recorded was brought back to the scrivener who drew it, is admissible, as part of the res gesta, on the question as to the reason and purpose of a second deed.</p> <p>4. Same—when reformation of deed is not dangerous to stability of titles. It is not dangerous to the stability of titles to real property to correct deeds upon parol evidence after the lapse of many years, when such evidence, taken in connection with subsequent deeds, tends to sustain a title, or at least the equitable right to it, which all parties have recognized and acted upon for many years.</p>

<p>1. Appeals and errors—objections not presented in Appellate Court are waived. Objections not brought to the attention of the Appellate Court cannot be raised in the Supreme Court as ground for reversing the judgment of the Appellate Court.</p> <p>2. Same—chancellor’s exclusion of incompetent affidavit cures master’s error in admitting it. An objection that the master erroneously admitted an affidavit in evidence is unavailing on appeal, where the chancellor, upon exception to the master’s report, excluded the affidavit and made his finding from other competent evidence.</p> <p>3. Payment—when payment cannot be regarded as made by stranger. Payment by a principal of a claim presented for merchandise delivered to his agent cannot be deemed a satisfaction of the demand by a mere stranger, and it extinguishes the obligation so far as the creditor is concerned.</p> <p>4. Evidence—what evidence will establish plea of payment. In the absence of countervailing proof, a plea of payment is established by evidence that the plaintiff's demand was interposed by him as a set-off in a former action brought by the defendant’s principal, which was settled in full and discontinued by stipulation of the parties, without costs.</p>

Charles A. Bishop, Judge, presiding. This is a bill in chancery filed by Ernest 0. Schroeder, the appellee, in the circuit court of DuPage county, to the October term, 1897, of said court, praying for an injunction, against the village of Itasca, impleaded with William Wischsteadt, William Pieper and Edward Pfluger, to prevent them from moving the road-bed of Main street, in the village of Itasca, west fifteen or twenty feet onto the land of complainant.

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

Henry B. Willis, Judge, presiding. Appellant was engaged in the lumber business, and was unloading a boat-load of lumber upon a dock which it owned and controlled. Two sets or gangs of men were employed in unloading the cargo, one set passing the lumber out from the vessel and the other set receiving the lumber and piling it upon the dock.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Henry B. Willis, Judge, presiding.</p>

H. M. Trimble, Judge, presiding. This was an action on the case by appellee, to recover for damages alleged to have been received by him on the night of September 25, 1897, through the negligence of appellant in leaving open and unprotected a ditch in one of its streets, some five feet deep and three feet wide.

Writ op Error to the Branch 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.

John Gibbons, Judge, presiding. This was a petition for a common law writ of certiorari, brought in the name of the People, on the relation of John Maloney, against Robert Lindblom, Edward Carroll and John W. Ludwig, civil service commissioners.

<p>1. Appeals and errors—when remarks of judge cannot be assigned as error. Remarks made by the judge in announcing his decision in a special assessment case, and which it is urged show that he entertained erroneous views as to the legal principles applicable to the cause, cannot be assigned as error when written propositions were not presented to be held as the law of the case.</p> <p>2. Same—court's finding of fact on matter resting in opinion of witnesses not lightly disturbed. The findings of fact by the trial court will not be disturbed, as against the weight of evidence, when based on conflicting testimony concerning a matter resting in the mere opinion of the witnesses.</p> <p>3. Parks—a new assessment cannot reach property which has already paid as much as its benefits. An application for the confirmation of a new special assessment levied under section 20 of the Park act of 1895, (Laws of 1895, p. 289,) to defray the cost of an improvement a former assessment for which has been held void, is properly denied where it appears that the property has not been benefited in a greater amount than that paid under the previous assessment.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Appeals and errors—when appeal will not be dismissed. A motion to dismiss an appeal on account of the insufficiency of the appeal bond will be denied when not made until after the parties have submitted their controversy to the court, there being no motion to set aside the order under which the case was taken.</p> <p>2. Evidence—when the contents of property owners’ petition can not be shown by parol. Oral testimony as to the contents of the petition of the property owners consenting to a public improvement is inadmissible in a proceeding to confirm a special assessment, when the absence of the petition itself is not accounted for.</p> <p>3. Same—cost of portion of improvement abutting on particular property cannot be shown at confirmation. In a proceeding to confirm a special assessment testimony showing the cost of that portion of the improvement upon which the property of some of the objectors abutted is inadmissible, since the different pieces of property must share proportionately the cost of the improvement as a whole.</p> <p>4. Special assessments—one cannot urge objections in no way prejudicial to him. An objection to the validity of a special assessment that the original ordinance limited the assessment to contiguous property while the new ordinance provides for an assessment upon all property benefited, cannot be raised by the owner of land contiguous to the improvement, since he is not prejudiced thereby.</p> <p>5. Same—what not a premature adoption of ordinance for second assessment. A new ordinance levying an assessment for a public improvement completed under a prior ordinance declared void on appeal is not prematurely adopted, although after its passage and pending confirmation proceedings parties to the original proceeding, which had been stricken from the docket of the county court, caused it to be reinstated for the purpose of filing the remanding orders of the Supreme Court therein.</p> <p>6. Same—when new trial mil not be granted for newly discovered evidence. A new trial will not be granted on the ground of newly discovered evidence in a proceeding to confirm a special assessment, where the testimony relied on is contained in the ordinance, plans, specifications and estimates, and the alleged changes in the manner of the construction of the improvement were apparent and might have been known by the exercise of slight diligence.</p> <p>7. The other objections raised by appellants are discussed and determined in Cummings v. West Chicago Park Comrs. 181 Ill. 136.</p>

Frank D. Ramsay, Judge, presiding. The appellant company held two judgments against the appellee George G. Mowry, on which executions had been returned nulla bona. This was a creditor’s bill by the appellant company to set aside certain transactions alleged to have been consummated in fraud of its rights, as the owner of those judgments.

<p>1. Appeals and errors—section 90 .of Practice act and section 8 of Appellate Court act are in pari materia. Section 90 of the Practice act and section 8 of the Appellate Court act, which relate to the right of appeal to and from the Appellate Court, are in pari materia, and must be construed together.</p> <p>2. Same—when appeal will not lie to Supreme Court. The Appellate Court’s judgment affirming an order of the county court, in voluntary assignment, denying the assignor’s petition for an exemption of $400, is final under section 90 of the Practice act, Since the amount involved is less than $1000; nor is an appeal therefrom authorized by section 8 of the Appellate Court act, allowing appeals in “all other cases” except in actions ex contractu and those sounding in damages which involve less than $1000.</p>

Colostin D. Myers, Judge, presiding. . Appellee, as the administratrix of George J. Kelly, brought this suit against appellant for negligently causing the death of her intestate. A trial by jury resulted in a verdict and judgment against appellant for $5000, from which it appealed to the Appellate Court, where the judgment has been affirmed. The present appeal is from such judgment of affirmance.

<p>Appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p>

<p>1. Courts—right of a superior or circuit judge to preside in criminal court of Cook county. A judge of the superior or circuit court of Cook county is authorized to preside in the criminal court although not " previously designated by the judges of the circuit and superior courts for that duty, under section 26 of article 6 of the constitution, providing for the holding of such court by such judges, as nearly as may be in alternation, as In ay be determined by them.</p> <p>2. Perjury—legality of appointment of master administering oath can not be questioned in perjury case. The legality of the appointment of a master in chancery or his power to administer an oath cannot be questioned on the trial for perjury of one who, it is alleged, testified falsely before him.</p> <p>3. Same—/aci that the defendant in perjury case was sworn raises presumption that the oath was binding. In a trial for perjury committed before a master in chancery, proof that the defendant was sworn as a witness sufficiently establishes, in the absence of proof to the contrary, that a binding oath was administered to him.</p> <p>4. Same—conviction may be had while suit in which false testimony was given is pending. The court may, in its sound discretion, proceed to final verdict in a trial for perjury although the. case in which the false testimony was given is still pending.</p> <p>5. Same—when periury indictment is sufficient in averment of materiality of false testimony. An averment in an indictment for perjury that the alleged false testimony was in a matter material to the issue is sufficient, and a preceding allegation relating to the materiality of the matter may be entirely rejected as surplusage.</p> <p>6. Same—when false testimony is upon material issue. In an action to foreclose a mortgage for the whole debt declared due by its holder upon non-payment of interest coupons, testimony in support of a defense that the amount of the interest was tendered to the complainant is material to the issue, and if falsely given is perjury.</p> <p>7. Appeals and errors—objection of variance must be made below. An objection for variance, to be available upon appeal or writ of error, either in a civil or criminal action, must be urged in the court below, since, if pointed out and insisted upon, it might have been avoided by amendment or other proofs.</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. E. F. Dunne, Judge, presiding.</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. Philip Stein, Judge, presiding.</p>

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

John H. Batten, Judge, presiding. On the 19th day of June, 1895, the president and board of trustees of the village of Hinsdale passed an ordinance for the construction of a sewer in Third street, in said village. By the ordinance James A. Blood, 0. A..

<p>1. Witnesses—section S of Evidence act applied. Defendant to a suit brought by an heir of his deceased wife to compel compliance with an ante-nuptial contract is incompetent, under section 2 of the Evidence act, to testify in support of the allegations of his cross-bill concerning acts and declarations of the wife relied upon as showing the contract was inoperative.</p> <p>2. Evidence—possession of written instrument is prima facie evidence of delivery. Possession of a written agreement by a party thereto after its execution by the other party raises a presumption of delivery, which can only be overcome by clear and satisfactory proof.</p> <p>3. Contracts—ante-nuptial contract must be clear to deprive parties of marital rights. The marital rights of a husband or wife in the estate of the other will not be taken away by an ante-nuptial contract unless the intention to do so is clearly apparent from the contract, the terms of which should be construed not only with reference to its general scope and purpose, but to the circumstances surrounding the parties at the time it was made.</p> <p>4. Same—ante-nuptial contract construed as barring husband’s rights in wife’s property. A provision in an ante-nuptial agreement that the husband will not claim any right in the wife’s property, and will, upon request, execute any deed which may be deemed necessary to more effectually bar or extinguish any right of dower, homestead or inheritance in the estate of the wife, is not ambiguous, but clearly manifests an intention to relinquish all claim to the wife’s estate, even though not conveyed by her before death.</p> <p>5. Same—extent to which recital in agreement may be resorted to in its construction. A recital in an agreement may be resorted to where the words in the operative part of the agreement are of doubtful purport, but cannot control their clear intent and meaning.</p> <p>6. Parties—when complainant in bill to enforce ante-nuptial contract is not a mere volunteer. A collateral heir of a deceased wife is not a volunteer, outside of the influence of the consideration of marriage, upon which a marriage settlement was based, but may ask enforcement of the ante-nuptial agreement in a court of equity, where the husband contracted for himself and his heirs with the wife and her heirs and relinquished all claim to her estate.</p>

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

Harvey M. Trimble, Judge, presiding. Appellants filed their bill asking for partition of certain lands in Bureau county, containing one hundred and twenty acres, described as the north half of the northeast quarter of section 1, township 17, north, range 7, east, known as lot 2, upon the east half of which were situated the homestead improvements, and the east half of the south half of said north-east quarter of section 1, known as lot 1, which they claimed their mother…

<p>1. Practice—motion undisposed of at term is continued by operation of law. A motion to set aside an order may be entered during the term at which such order was made, and, if undisposed of, it stands continued until the next’term by operation of law, without any formal order of continuance. .</p> <p>2. Voluntary assignments—when general creditors are not estopped to object to allowance of claim as a preference. The failure of general creditors to file objections to the report of an assignee within thirty days, concerning which no order of approval was entered, does not estop them from subsequently making the objections, when the judicial power of the court is invoked for the allowance of a reported claim as a preference, which the assignee had paid without his report being approved.</p> <p>3. Same—when beneficiaiy cannot enforce claim for trust fund as a preference. The owner of a trust fund, which the trustee has mingled with his own money, is not entitled, upon the trustee’s insolvency, to enforce his demand as a preferred claim against the trustee’s estate assigned for the benefit of creditors, unless the fund can be identified or distinguished from other assets of the estate.</p> <p>4. Same—trust fund mingled with insolvent’s property passes to the assignee. A trust fund so blended with the mass of the trustee’s property that it cannot be distinguished passes to his assignee for the benefit of all creditors.</p>

Theodore Brentano, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a. judgment of the superior court of Cook county, in which appellee recovered $16,500 damages for a personal injury received while in appellant’s service.

Elbridge Hanecy, Judge, presiding. We take the following statement of facts from the opinion of the Appellate Court: “February 7, 1894, the Flour City National Bank of Minneapolis, by its cashier, A. A. Crane, for the sum of $35.10 to it then paid, drew and delivered its draft for $35 to Frank H. Harper, payable to his order and directed to appellee.

B. R. Burroughs, Judge, presiding. The appellant brought its action of ejectment against.v the appellee to recover possession of certain premises in the city of Chester, described as “all that part… Held: for the purpose, as shown by the minutes, of taking action “on the extension of railroad facilities to the Southern Illinois penitentiary,” then being constructed near the city of Chester.

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of McLean county; the Hon. John H. Moffett, Judge, presiding. This action was brought against the defendants, as sureties upon the bond of Joseph Wilson, executor of the last will and testament of Isaac Wilson.

Writ op Error to the Circuit Court of Williamson county; the Hon. A. K. Vickers, Judge, presiding. This is an indictment 'against plaintiffs in error for the murder of one John Young, Jr., on the 16th day of October, 1897. The indictment was found by the grand jury of Williamson county at the May term, 1898, of the circuit court of that county, and the trial was had at the September term, 1898, of said court.

Original information for disbarment. This is an information, filed in this court by the Attorney General of the State on behalf of thirty-nine members of .the bar of Vermilion county, alleging that the defendant is a licensed attorney, and has been guilty of malconduct as such in bringing and prosecuting suits for divorce, in which fraud was practiced on the court, of which the defendant had notice.

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. M. W. Schaefer, Judge, presiding.</p>

<p>1. Appeals and errors—when judgment of Appellate Courtis conclusive. A judgment of the Appellate Court settling a question of fact against the appellees, from which the appellees neither appeal nor assign cross-errors upon the further appeal by the appellant, is conclusive upon the Supreme Court as to such question.</p> <p>2. Voluntary assignments—general assignment does not pass title to property previously fraudulently conveyed. A general assignment for the benefit of creditors does not pass to the assignee any interest in property which had been fraudulently transferred by the assignor before the assignment, nor any right to impeach or set aside such fraudulent transfer.</p> <p>3. Fraud—fraudulent conveyance prior to assignment is ineffectual as against judgment creditors. A fraudulent conveyance of property made by a debtor prior to a general assignment for the benefit of creditors is ineffectual and inoperative as against a judgment creditor by whom it may be impeached.</p>

<p>1. Voluntary assignments—county court has exclusive jurisdiction in voluntary assignments. The county court has, under the Voluntary Assignment law, exclusive jurisdiction to control the application of the assets of an insolvent estate to the payment of claims, and a decree of the circuit court ordering payment of a claim by the assignee as a preference is not of binding force.</p> <p>2. Same—when general creditors are not bound, by decree awarding preference, to particular claim. A decree awarding, a specified claim preference in the settlement of an assigned estate is not binding upon the general creditors of the assignor where they were not made, parties to the proceeding, although both the assignor and the assignee appeared.</p> <p>3. Same—general creditors are not primes of assignor or assignee. The general creditors of an assigned estate are not privies of the assignor or assignee, so as to be bound by a decree awarding preference* to a claim, and rendered in a proceeding in which the assignor and assignee appeared but to which the creditors were not parties.</p> <p>4. Same—when assignee may be charged with money he has not actually received. An assignee for the benefit of creditors may be charged with' money which he never actually received, if in his report he treats it as assets and claims credit for its disbursement.</p> <p>5. The objection that the trust property involved was never the property of the insolvent trustee, and hence did not pass to his assignee, is determined in Estate of Seiter v. Mowe, (ante, p. 351).</p>

<p>1. Principal and agent—power to collect is not implied in power to loan. It cannot be inferred, in the absence of such usage, that an agent to loan money is empowered to collect it.</p> <p>2. Same—when party paying debt to trustee is chargeable with notice of his want of power to receive payment. One who pays to the trustee named in a trust deed the debt secured thereby, which he is not authorized to receive, and takes from him a release but does not obtain the notes, which are not in the trustee’s possession, is chargeable with notice of the trustee’s want of power to receive payment.</p> <p>3'. Same—when charges against agent do not make principal responsible for Ms subsequent acts. Charges against an agent do not make the principal responsible for a subsequent act of the agent beyond the scope of his actual or implied authority, and in a transaction other than that concerning which complaint was made..</p> <p>4. Payment—when payees of notes secured by trust deed are not bound by payment to trustee. The payees of notes secured by a» trust deed are not bound by payment to the trustee before maturity, in reliance upon his false representations, when he had neither actual nor implied authority to receive it, although he released the trust deed, where the notes were not surrendered but remained in the hands of the payees, who had no. knowledge of the payment.</p>

Henry B. Willis, Judge, presiding. This was a bill for partition, broug'ht by James M. Mills, against Frederick N. Mills, Jennie M. Mills, Katherine L. Mills, Charles Whitcomb and Hugh N. Fleming, for partition of certain premises in Chicago, and to set aside a certain warranty deed executed by Eliza A. Mills to Maria L. Fleming on June 24, 1892. There is no substantial dispute between the parties in regard to the facts.

Lyman Lacey, Judge, presiding. Thomas Snell, on December 9,1875, filed his bill against Abner Taylor, in which he averred that about the year 1870 he and Abner Taylor became partners in the business of buying and selling real estate in equal shares as to profits and losses, the business to be carried on at Chicago under the name of Snell & Taylor; that the co-partnership thus formed was commenced December 31, 1870, and its business carried on at Chicago under said firm name,…

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

Theodore Brentano, Judge, presiding. The firm of McDougall & Hammond was engaged in the business of contracting for street work, in which they employed labor and used materials for plumbing, grading, paving, etc. They had made a contract with the village of South Evanston for curbing, grading and paving certain of its streets, including West Lincoln avenue.

<p>1. Appeals and errors—when giving of instruction as to burden of proof is reversible error. In an action upon an accident policy, where the defense is that the insured committed suicide, an instruction that the burden of proof is upon the defendant is reversible error, where it is indispensable to the right of recovery to show, by preponderance of evidence, that the assured came to his death through accidental means, as alleged.</p> <p>2. Evidence—burden in suit on accident policy is on plaintiff. The burden resting upon the plaintiff in an action upon an accident policy to establish, by a preponderance of the whole evidence, that the assured met accidental death', is not shifted to the defendant company by pleas raising the defense of a stipulation in the policy that if the deceased committed suicide while insane only premiums paid should be recovered, so as to require the defense to be proved by a preponderance of the evidence.</p>

<p>1. Pleading—when the plea of non damnificatus is not a good defense in debt. A general plea of non damnificatus is not good in debt as against a declaration based upon the breach of a covenant to pay-specified sums of money, although the covenant may have been given by way of indemnity only.</p> <p>2. Appeals and errors—when appeal bond is not improperly conditioned. A bond given on appeal from an order dissolving an injunction restraining a terminal railroad company from excluding the appellant company from the use of terminal facilities is, where the injunction is continued at the appellant’s request pending appeal, properly conditioned for payment of the rent which the appellant company bad been notified, before entering into possession, it would be required to pay, where the controversy is-whether such rent is unjust and a discrimination against the appellant.</p> <p>3. Res judicata—what is not an available defense in suit on appeal bond. In an action on a bond given on appeal from an order dissolving an injunction, matter which goes to the merits of the injunction suit and might have been litigated in it is not an available defense, being res.judicata.</p> <p>4. Instructions—instruction concerning matters set up in bad. plea is properly refused. An instruction concerning matters sought to be set out in defense in pleas to which demurrers have been sustained is properly refused.</p>

T. M. Shaw, Judge, presiding-. This is an appeal from a judgment of the Appellate Court affirming a judgment of the circuit court of Tazewell county for costs and in bar of an action brought by the appellant, Ubbo A. Ubben, against appellee, William H. Binnian. The amended declaration contained four special counts and the common counts.

<p>1. Tax deeds—when tax deed is invalid because of insufficient affidavit. A tax deed is invalid where the affidavit upon which it is based fails to state the notice of purchase was served upon the owner. (Rev. Stat. 1874, sec. 216, p. 893.) Nor is it sufficient to allege that upon diligent search the only owner found was a specified person, upon whom notice was served “as owner,” and that such person “had some interest, either as owner or otherwise, in the premises.”</p> <p>2. Same—when defendant may be required, to pay his own costs on setting aside tax deed. In a suit to set aside a tax deed, in which the relief prayed for is granted, the defendant cannot complain that he was required to pay his own costs, where, before commencement of the suit, he refused a tender of the amount due, with interest.</p> <p>3. Interest—since 1891 interest rate on amount paid at tax sale is five per cent. Interest at the rate of five per cent, only, is recoverable, since the passage of the Interest law of 1891, upon the amount of taxes paid by a purchaser of lands at tax sale.</p>

<p>1. Bill op exceptions—when bill becomes part of record.- A bill of exceptions, settled and signed within the time ordered, becomes part of the record though not filed with the clerk until later, where no time for filing was fixed by the court and the parties stipulated that it be filed.</p> <p>2. Quo warranto—proceeding cannot be instituted without consent of Attorney General or State’s attorney. A quo warranto proceeding under section 1 of act entitled “Quo Warranto,” (Rev. Stat. 1874, p. 787,) can only be instituted by the Attorney General, or the State’s attorney of the county in which it is brought, and it cannot be maintained by private individuals without the consent of one of such officers or petition by one of them for leave to file the information, though private rights are involved and no other remedy available.</p>

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

<p>Pleading—when general allegation is sufficient to authorise damages for the injury proven. In an action where injury to the “back, spine and brain” is alleged, and the evidence tends to show that such injury was the natural and proximate cause of the defective nutrition to the optic nerve and impairment of the plaintiff’s eyesight, the damages claimed therefor are not special, but general, and can be recovered without being declared for specially.</p>

John Gibbons, Judge, presiding. This is a proceeding by information in the nature of quo warranto in the name of the People of the State, filed in the circuit court of Cook county on September 16,1898, by the State’s attorney of that county, charging that the defendant, James A. Bollam, for a space of over one month then last past and more during the year 1898, unlawfully held and still does hold and execute without any warrant or right whatsoever, the office of constable in…

John C. Carver, Judge, presiding. This is an action by appellant, against appellee, to recover damages for personal injury.

<p>This case is controlled by the decision in Terre Haute and Indianapolis Railroad Co. v. Peoria and Pekin Union Railway Co. (ante, p. 501.)</p>

<p>1. Appeals and errors—Supreme Court may consider testimony though decree pro confesso was entered. Testimony taken on behalf of the complainants upqn an issue of fact raised by the bill, answer and replication may be considered by the Supreme Court in passing upon the issues involved, although the answers were withdrawn and a decree pro confesso entered.</p> <p>2. Same—when error will not .justify remandment. Error in sustaining a demurrer interposed by a party who has no interest in the controversy or as to whom the plaintiff consents the bill may be dismissed is not sufficient to justify a remandment of the cause for the purpose of allowing him to answer the bill.</p> <p>3. Practice—when bill should not be dismissed for want of equity. A bill sufficient on its face to justify the relief prayed for and sustained by proofs should not be dismissed for want of equity as to defendants, who, by their defaults, have confessed the bill.</p> <p>4. Banks—option contract to sell manufacturing plant to banking corporation is void. A banking corporation organized under the laws of Illinois has no power to purchase the plants and properties of manufacturing corporations, and option contracts providing for the sale of such properties to the bank are absolutely void.</p> <p>5. Trusts and combines—consolidation of corporations to create monopoly constitutes a “trust.” A trust is created where a majority of the stockholders in competing corporations consolidate their interests by conveying all their property to a corporation organized for the purpose of taking their property, when the necessary consequence of the combination is to control pric.es, limit production or suppress competition in such a way as to create a monopoly.</p> <p>6. Same—public policy of Illinois is against “trusts” and combinations creating monopolies. The public policy of the State of Illinois has always been against trusts and combinations organized for the purpose of suppressing competition and creating monopoly.</p> <p>7. - Same—agreement to form illegal trust may rest upon verbal understanding. An agreement to form an illegal combination or trust •need not be embodied in writing, but may rest upon a verbal understanding evidenced by the acts of the parties.</p> <p>8. Same—/act that prices may be reduced does not relieve a trust of its objectionable features. A combination or trust which has power to raise the price of an article of merchandise at any time it sees fit to dp so is not relieved of its objectionable features by the fact that it may reduce prices, since the reduction may be made for the express purpose of crushing competition.</p> <p>9. Same—parties forming illegal trust are guilty of conspiracy. Parties who create and enter into a combination to regulate and fix the price of a manufactured product and limit the quantity produced or sold, are guilty, under section 1 of the act of 1891, on trusts and combines, (Laws of 1891, p. 206,) of a conspiracy to' defraud.</p> <p>10. Corporations—corporation cannot perform strictly corporate acts outside the State of its creation. A corporation, as a general rule, is without power to perform corporate acts, such as the holding of a stockholders’ meeting, outside of the State of its creation and where the laws under which it was incorporated have no force.</p> <p>11. Same—stockholder has a right to hold his investment in stock. A stockholder has a right to hold his investment in the form of stock, and a change of such investment against his consent, by a sale of the property, is a change which affects his pecuniary interests, notwithstanding he is to receive his proportion of the proceeds.</p> <p>12. Same—stockholder may enjoin sale of corporate property to “trust.” A stockholder, to protect himself from pecuniary injury, may, on behalf of himself and other stockholders, maintain a bill to enjoin a sale and transfer of the property of the corporation engaged in a profitable business to a trust organized to suppress Competition and create a monopoly, where the wrongdoers comprise the officers and a majority of the stockholders.</p> <p>13. Same—foreign corporations in Illinois are subject to local restrictions. Foreign corporations are subject in the State of Illinois to the same restrictions and duties as domestic corporations, and have no other or greater powers.</p> <p>14. Same—-court may restrain a foreign corporation from transferring its local real estate to a “trust.” The courts have power to restrain a foreign corporation from transferring its property within the State, and consisting largely of real estate, to another foreign corporation, in violation of laws against trusts and combines.</p> <p>15. Contracts—when a contract is void as in total restraint of trade. A contract not to manufacture or sell glucose and grape sugar or by-products within a specified territory, within which, only, they can be manufactured successfully^ is an agreement in total or general restraint of trade, and void.</p> <p>16. Pleading—demurrer is overmled by answer to same part of bill. A defendant cannot both answer and demur to the same part of a’ bill, and if he does so the demurrer is overruled by the answer.</p> <p>17. Lis pendens—a purchaser pendente lite is bound by the decree. A purchaser pendente lite is bound by the decree rendered against the personCErom whom he derived title.</p> <p>18. Witnesses—witness cannot base refusal to. answer on alleged immateriality of testimony called for. A witness cannot base his refusal to answer a question which does not involve self-crimination or privileged communication, on the ground that it calls for immaterial testimony.</p> <p>19. Evidence—party’s improper refusal to answer must be considered against him. A party’s refusal to answer questions solely on the ground that immaterial testimony is called for must be considered against him, the same as any other refusal to produce evidence within the power of the witness. .</p>

Joseph P. Robarts, Judge, presiding. Prior to June 18, 1883, appellee owned one hundred and sixty acres of land in Johnson county, being the east half of the north-east quarter of section 23 and the west half of the north-west quarter of section 24, in township 12, south, range 3, east. On the above mentioned date appellee conveyed to John S. Whiteside the west half of the north-west quarter of section 24, above named.