Volume 191 — Illinois Reports

<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. R. W. Clifford, Judge, presiding.</p> <p>The following statement of facts is made by the Appellate Court in their decision of this case:</p> <p>“This is an action on the case, brought by appellees against appellant, together with the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, the Chesapeake and Ohio Railway Company, the Richmond and Danville Railroad Company, and the Pennsylvania Railroad Company. The jury, before whom the case was tried, brought in a verdict of guilty against the Chesapeake and Ohio Railway Company, the Pennsylvania Railroad Company and the appellant, and assessed the plaintiffs’ damages at $1913.31. At a former trial a jury had found the Cleveland, Cincinnati, Chicago and St. Louis Railway Company not guilty, and service of process was never had against the Richmond and Dan-ville Railroad Company. The verdict of the jury in the present case, therefore, found all the remaining defendants. guilty. A motion for a new trial was granted as to the others, and the suit dismissed as to them, but the motion was overruled as to appellant. The circuit court denied a motion in arrest, and entered judgment for the full amount of the verdict against appellant alone.</p> <p>“The material facts are, that in April, 1890, appellees, who were doing business at Malvern, Iowa, shipped a quantity of potatoes to Philadelphia. It appears that the route chosen was not the most direct. But the agent of the Omaha and St. Louis Railway Company at Malvern induced appellees to ship over the latter road, promising, it is said, to' get the potatoes- to Philadelphia within five days. They were billed by the agent of the Omaha and St. Louis Railway Company at Malvern, Iowa, to go by ‘Kanawha Dispatch’ from East Dubuque, Iowa. The ‘Kanawha Dispatch’ is said by appellant’s counsel to be ‘a combination of divers roads for the transmission of freight from western and eastern points, ’ and it is stated that the appellant is not a member of that combination. It is conceded, however, that ‘the freight agent of the Illinois Central Railroad Company, and his corps of clerks transact all the routine business of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, and the Kanawha Dispatch at Chicago,’ but it is insisted that they get all their instructions, orders, etc., in relation to such business from the general agent of the so-called ‘Big Four’ company, and from the ‘Kanawha Dispatch’ offices, and not any from appellant.</p> <p>“The two car-loads of potatoes in question came to appellant’s yards in Chicago in due course, and were immediately transferred, as directed by the transfer slips, and forwarded by appellant over its own line to Kankakee the same day. It is not disputed that there was no delay in transit while the potatoes were on appellant’s tracks. But there is some evidence, tending to show unnecessary delay on the part of the Chesapeake and Ohio, and of the Pennsylvania companies. The claim against appellant is, that a mistake was made by its employees at Chicago in billing, by which the potatoes were caused to be shipped via the Clyde line of steamers, instead of being forwarded all-rail. The way-bills were made out by appellant and were- erroneous. They were made to read ‘over Illinois Central and Chesapeake and Ohio to Richmond, for Philadelphia, via Clyde line of steamers.’ They should have been billed ‘to Charlottesville, Alexandria, all-rail to Philadelphia. ’ The error occurred through a mistake, inadvertently committed by the agent or employee at Chicago, who made out the bills. The result was that, upon arrival at Richmond, the potatoes, which were in bulk, were refused by the Clyde line of steamers, because, as the published tariff of rates of the ‘Kanawha Dispatch’ specifically states, bulk freight is not taken on the Clyde line. At Richmond the way-bills were corrected, and the potatoes at length forwarded to Philadelphia. There they were refused by the consignee on account of their condition, caused, it is said, by continued exposure to warm weather while delayed en route. There is evidence, tending to show that the cars, while in actual transit, made ‘fair average time,’ and that the delay was caused by the mis-billing.”</p> <p>From the judgment entered by the circuit court against appellant an appeal was taken to the Appellate Court, and the judgment has been there affirmed. The present appeal is prosecuted from the judgment of affirmance, so entered by the Appellate Court.</p>

Elbridge Hanecy, Judge, presiding. The National Linseed Oil Company, a corporation of this State, engaged in the business of manufacturing and selling linseed oil, sold to the Heath & Milligan Manufacturing Company, another corporation, engaged in the business of manufacturing and selling paints, large quantities of linseed oil. The sales were made from time to time, extending over a period of more than five years.

<p>Writ of Error to the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Statutes—complete revision of a subject matter repeals prior act. A statute which completely revises the subject matter of a prior act and provides a perfect system in itself, operates as a repeal of such prior act although it does not contain an express repealing clause.</p> <p>2. Medicine and surgery—act of 1899, regulating practice of medicine and surgery, is the only one in force. The act of 1887, to regulate the practice of medicine and surgery in Illinois, being a complete revision, repeals by implication the act of 1877; and since the act of 1899 (Laws of 1899, p. 273,) expressly repeals said act of 1887, the act of 1899 has become the measure of the power of the State Board of Health with respect to all matters embraced in the la‘tter act.</p> <p>3. Same—provisions of sections % and 6 of act of 1899 construed. The provision in section 2 of the act of 1899, regulating the practice of medicine, (Laws of 1899, p. 274,) to the effect that no person “shall hereafter begin the practice of medicine” without first obtaining a license from the State Board of Health, by implication excludes persons practicing medicine prior to July 1, 1899, when the act took effect; and the provision in section 6 giving the board of health power to revoke “such certificates” refers only to certificates issued under the provisions of the act.</p> <p>4. Same—board of health cannot revoke licenses issued prior to July 1, 1899. The act of 1899, to regulate the practice of medicine, does not empower the State Board of Health to discipline holders of certificates to practice medicine issued prior to July 1,1899, nor to revoke such certificates.</p>

Writ op 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. George W. Brown, Judge, presiding.

<p>Appeals and errors—when appeal in will case lies to Supreme Court. If a will disposes of the fee of the testator’s real estate, an appeal from an order of the circuit court refusing probate and dismissing the petition lies to the Supreme Court upon the ground that a'freehold is involved.</p>

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

<p>1. Mortgages—purchaser of mortgaged p roperty not personally liable unless he assumes the debt. The purchaser of mortgaged premises is not personally ’liable for the debt in case of a deficiency unless there is a contract upon his part, express or implied, amounting to an agreement to pay the mortgage debt or some part thereof.</p> <p>2. Same—a promise to pay mortgage debt may be implied. If the amount of an encumbrance is included in and forms a part of the consideration which a grantee promises to pay for the premises, and he retains that part of the purchase price, the law will create a personal liability against him, upon the ground that he has agreed to pay such indebtedness.</p> <p>3. Same—encumbrance must be expressly assumed or amount must be allowed in purchase price. In order to create a personal liability on the part of the purchaser of mortgaged premises there must be an express assumption of the indebtedness or the amount must be allowed in the purchase price, so that the law will imply a promise.</p> <p>4. - Same—an implied promise cannot exist where there is a contrary express agreement. The implied contract to pay to the holder of an encumbrance money retained for that purpose by the grantee, arises only from the presumed understanding of the parties, and cannot exist where there was an express understanding to the contrary and a distinct refusal by the grantee to pay the debt.</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. Joseph E. Gary, Judge, presiding.</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. Leslie D. Puterbaugh, Judge, presiding.</p>

W. H. Gest, Judge, presiding. This is an action of assumpsit, brought by the appellees against the appellant, Merritt, and one L. Silverman on a note made by Silverman and Merritt, which note was payable to their own order and endorsed by them in blank. The declaration contains a special count on the note, and the common counts.

<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. Jesse Holdom, Judge, presiding.</p>

<p>1. Contracts—verbal promise to pay mortgage debt as part of consideration is valid. A verbal promise to pay an existing mortgage debt as part of the consideration in a purchase of the property is an assumption of the mortgage debt, and may be enforced by the grantor or the holder of the mortgage.</p> <p>2. Same—grantee who has assumed mortgage debt cannot dispute consideration for mortgage. A grantee who, as part of the consideration for the conveyance to him, has assumed a mortgage debt upon the property, is estopped to dispute the validity of the mortgage upon the ground there was no consideration for the mortgage debt; and this estoppel extends to those claiming under him.</p>

the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

<p>1. Special assessments—objections available at confirmation can not be made to application for sale. Under section 66 of the Local Improvement act of 1897 no defense or objection can be made or heard, on application for judgment of sale, which might have been interposed in the proceeding for the making of the assessment or on the application for confirmation thereof.</p> <p>2. Same—what not an available objection on application for sale. That the completed paving improvement deprives the objector of a sidewalk in front of his property is not a valid objection on application for judgment of sale, where it is shown that the improvement was completed in strict conformity with the ordinance and the maps, plans and detail drawings prepared by the city engineer, on file in his office and referred to in the ordinance, and where no satisfactory reason appears why the objector could not have appeared and filed his objections on application for confirmation.</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. Charles H. Donnelly, Judge, presiding.</p>

Charles G. Neely, Judge, presiding. Appellee brought an action of debt in the circuit court of Cook county against appellant, as surety for the American Fire Extinguisher Company. Judgment was rendered in favor of the plaintiff for $8404.37 debt, the amount of the bond, and $7443.49 damages. Hotions for new trial and in arrest of judgment were overruled and final judgment entered, to which the defendant excepted and prosecuted an appeal to the Appellate Court.

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

Writ of Error to the Circuit Court of Ogle county; the Hon. James S. Baume, Judge, presiding. In January, 1868, James M. Summers died testate in Ogle county, leaving his widow, Anna M. Summers, and four children, Martha Summers, Laura A. Summers, Edward Summers and William Summers.

<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. Marcus Kavanagh, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding.</p>

R. W. Clifford, Judge, presiding. ' The appellee, the National German-American Bank of St. Paul, Minnesota, claiming title in fee simple to a certain 96£ acre tract of land in Cook county, derived through mesne conveyances from the United States government, filed its bill, making the appellants, Charrie A. Bacon and others, parties thereto, to establish its title under the Burnt Records act.

Writ of Error to the County Court of Cook county; the Hon. Frank Scales, Judge, presiding. This is a special assessment proceeding to pay the cost of a connected system of sewers in the city of Chicago. The ordinance,' providing for such connected system of sewers, was passed by the city council on November 2,1891.

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

<p>1. Trial—case should go to jury if evidence warrants different conclusions. In an action for negligence, if reasonable minds might reach different conclusions from the evidence introduced, together with all justifiable inferences to be drawn therefrom, the court should not take the case from the jury.</p> <p>2. Master and SERVANT---seruani not required to disobey foreman unless danger is imminent. A servant ordered by his foreman to work in a dangerous place is not required by law to disobey him, nor by obeying to assume the risk of obedience, unless the danger is so imminent that a man of ordinary prudence would not incur the risk.</p> <p>3. Same—whether an ordinary man would not have incurred risk is a question of fact. Whether the danger to which the plaintiff’s intestate was exposed was so imminent that a man of ordinary prudence would not have incurred it is a question of fact for the jury.</p> <p>4. Same—what facts immaterial to right of recovery in action for negligence. In an action for the death of a servant, caused by falling from a dangerous scaffold where he was ordered by his foreman to go and assist in keeping the upper sections of a heavy iron pipe from turning while the lower one was being unscrewed, it is immaterial to the right of recovery whether the servant lost his balance and fell from his perilous position or whether he was twisted off the scaffold by the efforts of the other men to unscrew the pipe.</p> <p>5. Same—rule where foreman is acting temporarily as a co-laborer with injured servant. If a servant is injured as the result of an act of the foreman involving the exercise of his authority, the fact that the foreman, at the time of the injury, is temporarily acting as co-laborer with the injured servant does not relieve the master from liability upon the ground that they were fellow-servants.</p>

L. D. Puterbaugh, Judge presiding. This is an action, brought by appellee against the appellant company to recover damages for personal injuries, claimed to have been sustained by her on Novemher 14, 1899, in the city of Peoria in a collision with one of the street cars then being operated by appellant on Adams street in that city. The trial below resulted in verdict and judgment in favor of appellee, from which an appeal was taken to the Appellate Court.

Writ op Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. E. W. Clifford, Judge, presiding.

<p>1. Mortgages—assigned mortgage is not subject to latent equities of third parties. A mortgage is assignable only in equity, and in a proceeding to enforce the lien created by it it is subject to all equitable defenses existing between the original parties, but not to latent equities of third persons.</p> <p>2. Same—when assignee of a mortgage is protected against payments made to trustee. The rule requiring the assignee of a mortgage securing notes endorsed in blank to give notice, actual or constructive, in order to protect himself against payments by the mortgagor to the mortgagee, does not extend to subsequent purchasers of the property who assume and agree to pay the encumbrance, and, notwithstanding the assignee has not recorded the assignment or given notice thereof to any one, he is entitled to protection against payments made by the purchasers to the mortgagee in the belief that he still owned the indebtedness.</p>

<p>1. Statutes—statute should be construed so as to give effect to the main intent. The several provisions of a statute should be construed together in the light of the general objects and purposes of the enactment and so as to give effect to the main intent, even though particular provisions are not construed literally.</p> <p>2. Same—in construing a statute the court loill have regard for contemporaneous conditions. In determining the meaning of a statute the court will have regard to existing circumstances or contemporaneous conditions, and will also look to the objects sought to be obtained by the act and the necessity for its adoption.</p> <p>3. Intoxicating liquors—section 18 of Annexation act, preserving dram-shop ordinances, construed. The provision of section 18 of the Annexation act, preserving in full force all ordinances of the annexed territory “whereby the licensing of dram-shops is prohibited or regulated,” means all ordinances entitled “dram-shops,” and which were enacted to license and regulate the sale of intoxicants.</p> <p>4. Same—section 18 of Annexation act preserves in force all the Hyde Park liquor ordinances. Under section 18 of the Annexation act all of the Hyde Park liquor ordinances in force at the time of the annexation of the village of Hyde Park.to the city of Chicago are preserved in full force for all time to come, except as they may be changed in the manner provided in such section.</p>

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

<p>1. Executors and administrators—what does not justify administrator’s refusal to pay overfunds. If an administrator admits that a certain sum should be paid over by him to his successor, he can not justify his refusal to pay over the same by setting up a pending appeal by him from an order of court requiring him to pay over an additional amount.</p> <p>■ 2. Same—administrator’s appointment cannot be questioned in a collateralproceeding. If the court has jurisdiction of the subject matter and of the person its appointment of an administrator is not void, however erroneous it may be; and the legality of such appointment cannot be questioned in a suit on the bond of a former administrator for failure to turn over the funds to the administrator appointed as his successor.</p>

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

E. F. Dunne, Judge, presiding. This is an appeal by the appellants, Thomas Huber, Mary T. Huber, his wife, and K. G. Schmidt Brewing Company, a corporation, from a decree rendered by the circuit 'court of Cook county on December 12, 1900, upon the application of appellee, Edwin J. Hess, filed on August 24, 1900, under the Torrens law, to register the title in himself to lots 10 and 11 in Hapgood & Barry’s subdivision of the north half of block 24, in the canal trustees’…

<p>Contracts—to authorize termination, default need not be such as to defeat whole purpose of contract. In order to authorize one party to a contract who is not in default to terminate the contract for default of the other party it is not necessary that such default be of a character to defeat the whole purpose of the contract, but it is sufficient if the default would render further performance a thing different, in substance, from what was contracted for.</p>

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

E. F. Dunne, Judge, presiding. The following statement of facts in this case is made by the Appellate Court: “This is an action to recover damages for personal injuries sustained by appellee, as is charged, through negligence of appellant. Appellee was employed as night foreman of appellant, a corporation engaged in conducting an iron foundry. The'work of appellee consisted in part in superintending the removal of cinders and refuse from the furnaces to a dump-pile.

<p>Writ op Error to 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 Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.</p>

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

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

<p>1. Appeals and errors—rule as to amount involved in mechanic’s lien appeal. Intervening petitions, filed in a mechanic’s lien proceeding, on behalf of separate parties, to enforce claims having no connection with each other, are to be treated as separate suits, and the several amounts allowed as liens cannot be added together in order to make the jurisdictional amount necessary to authorize an appeal from the Appellate to the Supreme Court.</p> <p>2. Same—when allowance of a mechanic’s lien must be sustained on appeal. The allowance of a mechanic’s lien will be sustained, on appeal, where the objection to the claim is not sufficiently specified in any of the several objections to the master’s report.</p>

<p>1. Special assessments—proper objections arising after confirmation are available on application for sale. Objections of a nature to annul the judgment of confirmation and defeat the assessment may be made upon application for judgment of sale, if the facts upon which they are based have arisen since judgment of confirmation.</p> <p>2. Same—court of equity will control manner of performing work while it is in progress. While the work upon a local improvement is in progress a court of equity has power to control the manner of its performance, upon the application of a property owner assessed to pay for the improvement, to prevent any substantial departure from the terms of the ordinance.</p> <p>3. Same—when objection that improvement was not completed in accordance with ordinance is not available. If the improvement is the one provided for in the ordinance, and it has been completed and accepted by the city authorities having power to determine whether the contract has been complied with, the objection that the improvement was not completed in accordance with the terms of the ordinance is not available upon application for judgment of sale, even though the contractor has not performed the work as well or with as good materials as the ordinance calls for.</p> <p>4. Same—limits of rule that objections to manner of completing improve^ ment are not available. The rule that objections to the manner in which an improvement is completed are not available on application for judgment of sale does not extend to cases where the improvement authorized is changed for another, or where the city authorities accept a different improvement from the one for which the assessment was levied.</p> <p>5. Same—honest fulfillment of public contract must be enforced by a direct proceeding. .While those assessed to pay for an improvement may compel the honest fulfillment of the contract therefor, yet it must be by a proceeding to enforce the performance of the duty which the city owes to the assessed property owners to see that the contract is performed in compliance with the ordinance.</p>

<p>1. Special interrogatories—when answer relates to ultimate fact. In an action to recover money loaned by the defendant, as agent for plaintiff's intestate, to insolvent parties, where the issues are the existence of a promise or duty on the part of the defendant to use due care in making the loan and his failure to exercise such care, the answer “no” to the special interrogatory “was Daniel , Watson [the defendant] reasonably prudent and careful in making the loan in question?” is not objectionable as relating to an evidentiary and not an ultimate fact.</p> <p>2. Principal and agent—agent to loan money must exercise reasonable care. A banker engaged in loaning money as agent for a customer must use the ordinary care and prudence common to bankers to guard against loaning the money to insolvent parties.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.

<p>1. Trusts—when trustee is not chargeable with interest. Where the only duty of one receiving a deposit of money on trust is to be always ready to pay it over whenever the beneficiary is entitled to it, he is not ordinarily chargeable with interest.</p> <p>2. Same—when mingling of trust funds does not create liability for interest. One who receives money under an agreement to pay the same over to a party when the title to certain property should be cleared, is not liable for interest before such title is clear, although he deposited the money, with other funds, in his own name, where it appears there never was a time after the deposit was made that his check for the amount would not have been honored by the bank where the money was" deposited. (Magruder, J., dissenting.)</p> <p>3. Same—when executors are chargeable with interest for withholding trust fund. Executors are chargeable with interest upon a fund which was held by their testator, to be paid over by him to a certain party as soon as the title to certain land was perfected, where, though the title to such land was perfected by limitation soon after their testator’s death, they refused to pay over the money until deeds were made or some proceeding was had to perfect the title; but such action is not ground for compounding interest.-</p> <p>4. Same—equity will not compound interest except in a case of gross delinquency. A court of equity has power to compound interest annually or at shorter periods, according to the delinquency of the trustee; but interest will not be compounded except in cases of gross delinquency.</p>

Harry Higbee, Judge, presiding. This is a bill in chancery filed on May 26,1892, in the circuit court of Cook county, by Mary T. McGrath, Nellie McGrath Hallinan, John T. McGrath, Katie McGrath Hynes, Thomas E. McGrath and Anastasia McGrath, as heirs-at-law of Mary McGrath, deceased, against John Waddington, Jr., and James J. McGrath, their father, to cancel two deeds purporting to convey the title to lots 24, 25 and 26, in block No. 5, in David S. Lee’s addition to Chicago,…

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Alimony—contempt proceeding for failure to pay alimony—burden of proof. One attached for contempt of court in failing to pay alimony has the burden of proving that, acting in good faith and with an honest purpose, he was unable to comply with the decree.</p> <p>2. Same—alimony is not a debt which may be discharged in bankruptcy. Unpaid alimony is not such a debt owing from husband to wife as may be discharged by an order in bankruptcy, whether the alimony accrues before or after the bankruptcy proceeding, since the duty of a husband and father to support his wife and children is a social obligation as well as a pecuniary liability, and is not a debt contemplated by the Bankruptcy act.</p>

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

Writ op Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Jonas Hutchinson, Judge, presiding.

H. VanSellar, Judge, presiding. Appellees, who are the adult heirs of Bruce B. Blanchard, deceased, filed their bill in the circuit court of Edgar county, against Elizabeth Blanchard, their step-mother, and nominally against their infant brother and sister, to partition eighty acres of land which had formerly belonged to their father.

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding.

Samuel L. Dwight, Judge, presiding. This is a bill for the partition of one hundred and sixty acres of land in Shelby county, filed originally on September 3, 1900, by the appellee, Silas E. Seeley, against the appellant, George P. Bliss, and the following persons, to-wit: Absolom H. Kercheval, George A. Hall, Estella Denham, Caroline McDonald, James C. Hall, Dora A. Hall, Sarah S. Smith, Minnie Cloe, Etta B. Middleton and Mary'Jane Pollock.

<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. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Sheriffs—sheriff’s powers not suspended by sending militia to preserve peace. The sending of troops by the Governor into a county to aid in preserving the peace under the act of 1887, relating to riots, (Laws of 1887, p. 239,) does not suspend the powers and duties of the sheriff nor deprive him of power to appoint deputies to aid in protecting property and preserving the peace.</p> <p>2. Counties—liability of county for subsistence of special deputies in riot cases. Under section 2 of the act of 1887, concerning mobs and riots, the county is liable for the subsistence of each deputy while on duty as such, whether such subsistence is provided for himself at his own home, or elsewhere.</p> <p>3. Pleading—a demurrer does not admit conclusions of law. A demurrer admits facts which are well pleaded, but not the legal conclusions drawn therefrom by the pleader.</p> <p>4. Work and labor—eight-hour-day law does not apply to deputies appointed to preserve peace. The act making eight hours a legal day’s work applies only to mechanical trades, arts and employments of like character, and not to services of an official character, such as those of deputy sheriffs appointed to aid in preserving the peace.</p> <p>5. Same—extra time cannot be recovered for in absence of agreement. In the absence of any agreement for an eight-hour day no recovery can be had for extra time.</p>

Henry B. Willis, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Second District, affirming a judgment for $5000 rendered in an action on the case brought by James Duffy ag'ainst the appellant, in the circuit court of Kane county, to recover damages for the loss of his arm. The. accident was occasioned by a collision of the appellant’s train with the wagon of appellee at a street crossing in the city of Aurora.

<p>. 1. Quo warranto—when information should not be deemed a private suit. If an information in the nature of quo warranto to test the legality of village organization is signed by the State’s attorney, and purports to have been filed by him on behalf of the People, the fact that the people of the community affected employed counsel to assist in the prosecution does not require the dismissal of the information as having been brought by private parties.</p> <p>2. Same—in quo warranto the bwrden of proof is upon the respondents. Where the question on information in the nature of quo warranto is whether the territory organized into a village contained the requisite number of inhabitants, the burden is upon the respondents to prove the affirmative, and the People are not required, in the first instance, to prove anything.</p>

W. H. Gest, Judge, presiding. This is an action of debt, (debt $10,000.00; damages $10,000.00) begun on March 23, 1899, by the People suing for the use of Ellen L. Brooks, widow, and Elmer O. Brooks, Fannie J. Brooks, Frank S. Brooks, Clarence E. Brooks, Genevra Brooks, Rolla W. Brooks and Eunice E. Brooks, children of one Benjamin F. Brooks, deceased, against the appellees, Richard S. Petrie and Cornelius L. Petrie, sureties upon a bond executed in his lifetime by one…

<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. Axel Chytraus, Judge, presiding.</p>

<p>1. Appeals and errors—•allegation of counsel that a constitutional question is involved does not confer jurisdiction. Allegations of counsel in a pleading that a construction of a constitutional provision is involved does not confer jurisdiction on the Supreme Court.</p> <p>2. Same—when construction of constitution is not involved. The action of a court of equity in refusing to require a receiver to pay to the insolvent money for costs and solicitors’ fees incurred by the insolvent on account of the receivership proceeding, does not require, on appeal, a construction of the constitutional provision that “no person shall be deprived of life, liberty or property without due process of law,” and an appeal from the decision of the court lies to the Appellate Court.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>1. Mortgages—when record of mortgage is sufficiently certain to be constructive notice. The record of a mortgage is sufficiently certain to be constructive notice even though the amount of the note secured is not expressly stated, where the note is in other respects identified and the rate of interest is specified, together with the' number and amount of each interest coupon and the respective dates for their payment.</p> <p>2. Equity—when cross-bill is unnecessary. On bill to foreclose a mortgage, if the answers of the various parties claim liens, the court has power, without the filing of a cross-bill, to determine the existence and priority of the various liens, and to order the premises sold and the proceeds distributed in discharge of such liens according to priority.</p> <p>3. Same—failure offoreclosure decree to specify time for paying amount due is not reversible error. Failure of a foreclosure decree to specify a period of time within which the defendant might pay the amount found due before the master could advertise the premises-for sale is not reversible error, since the allowance of such time is not required by statute but is in the discretion of the chancellor; but such practice is not approved.</p>

<p>1. Special assessments—matters of description are certain in law if capable of ascertainment by computation. Matters of description in a special assessment ordinance are certain in law if they may be rendered certain by simple computation from data given.</p> <p>2. Same—requirements of confirmation petition under section 37 of the act of 1897. Under section 37 of the Local Improvement act of 1897 a confirmation petition need only identify the ordinance by proper reference, and incorporate it, together with the recommendation of the board of local improvements, both duly certified, either by attaching them or filing the same therewith, and conclude with a prayer for the assessment in accordance with the ordinance.</p> <p>3. Same—fury do not try the issue as to the necessity for the improvement. On the hearing of the issue of benefits before the jury in confirmation proceedings it is proper to sustain an objection to a question calling for the opinion of the witness as to the necessity for the improvement.</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. R. S. Tuthill, Judge, presiding.</p>

Robert B. Shirley, Judge, presiding. Prentiss D. Cheney, a resident of Jerseyville, in Jersey county, died testate in that city on July 3, 1900, leaving Annette H. Cheney his widow, and Alexander M. Cheney, the appellee, his only son and only heir-at-law. His will, which bore date January 11, 1896, was admitted to probate in said county in August, 1900. The substance of the will is stated in the opinion of the court.

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

John H. Moffett, Judge, presiding. Garrett M. LaForge died in 1891 leaving a last will and testament, which, in part, is as follows: “First—It is my will that all my debts shall be fully paid by my executors, and all notes and accounts or choses in action, of any and all kinds, shall be collected by them as soon after my decease as practicable.

<p>1. Reward—terms of reward must be substantially complied with by claimant. One offering a reward may prescribe whatever terms he sees fit, and such terms must be substantially complied with before any contract arises between him and the claimant.</p> <p>2. Same—what not a compliance with terms of reward. The terms of a reward “for the arrest and conviction of the murderer or murderers” of a party are not complied with by one who merely furnishes some information to the police which led to the arrest of one of the murderers, and identified both murderers as having been in the vicinity of the scene of the crime, but did nothing more toward securing their conviction, which was had upon other information obtained by the police authorities.</p> <p>3. Same—services must be performed in view of the reward. A reward cannot be recovered unless the claimant knew, at the time of the performance of his services, that the reward had been offered, and in consideration thereof, and with a view to earning the same, rendered the services specified in the offer.</p>

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

<p>Writ op Error to the Circuit Court of Douglas county; the Hon. W. G. Cochrane, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Henry county; the Hon. Hiram Bigelow, Judge, presiding.</p>

Clair county; the Hon. M. W. Schaefer, Judge, presiding. This is a bill for specific performance and to enjoin an action of ejectment, filed on January 20, 1900, by the appellant company against the appellees, Gustave VanHoorebeke and Given Campbell. The appellees answered the .bill, denying the material allegations thereof.

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

<p>1. Wills—whole will should be considered in determining meaning of particular clause. The whole will and all of its parts should be construed together to determine the true meaning of a clause containing a particular bequest.</p> <p>2. Same—language of a will construed. Under a will giving the homestead and household goods to the testator’s wife for life, and providing that the executor shall convert all property into an interest-bearing fund, the interest to be paid to the wife, and if it amounts to less than $50 a month resort to be had to the body of the fund, the homestead and household goods to be sold after the wife’s death and the proceeds put at interest, and, after making specific bequests, leaving the balance of the estate to the wife, “to be distributed as she sees fit after her death,” the wife takes the homestead and household goods for life, with the right of support from the fund, as provided in the will, and with the right to make testamentary disposition of any balance of the fund, including the proceeds of the sale of the homestead, remaining in the hands of the executor after he has paid the specific bequests.</p>