Volume 199 — Illinois Reports

Jesse Holdom, Judge,- presiding. This is an action in case, brought in June, 1895, by the appellee against the appellant railway company to recover damages, sustained by her, for a personal injury. She charges in her declaration, that she was struck by one of appellant’s cable trains at the corner of Forty-eighth and State streets in the city of Chicago on the night of April 30, 1895.

Writ op Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Peoria county; the Hon. L. D. Ptjterbaugh, Judge, presiding.

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. Murray F. Tuley, Judge, presiding.

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

<p>1. Lunatics—lunatic may sue by next friend. If a person of unsound mind has not been so adjudged or has no conservator, a suit to protect the rights of such person may be brought in his name by some responsible party appointed by the court to represent him as next friend. (Covington v. Neftzger 140 Ill. 608, overruled so far as conflicting.)</p> <p>2. Same—it is presumed that all adult persons are of sound mind and capable of managing their affairs. The presumption that all adult persons are of sound mind and-capable of managing their own affairs is not rebutted by an order of court, based upon an ex parte affidavit, appointing the affiant to act as next friend of the party alleged in the affidavit to be of unsound mind.</p> <p>3. Same—proper course where party alleged to be insane moves to dismiss suit brought by next friend. If the court has taken jurisdiction of a case by permitting a bill to be filed in the name of an alleged insane person by a party appointed by the court as next friend, the fact that the alleged insane person appears by attorney and moves to dismiss the case does not oust the court of jurisdiction, but the court may investigate the mental condition of such person, either by hearing evidence and passing upon the question or by submitting the question to a jury.</p>

<p>1. Municipal corporations—city has power to regulate storage of gasoline. Under subdivision 65 of section 1, article 5, of the City and Village act, a city has power to provide by ordinance that gasoline or any of the products of petroleum shall not be kept or stored within one thousand feet of any building in a quantity greater than five 'barrels of fifty gallons each, and such ordinance will not be declared unreasonable, in the absence of proof.</p> <p>2. Same—right of city to regulate dangerous business. As the limits of the inhabited portions of cities extend, establishments that endanger the health, safety or comfort of the population in such extended portions may be regulated as to the manner of conducting business or may be required to move to other localities.</p> <p>3. Same—effect where city builds up around dangerous establishment. The fact that the greater number of houses and buildings were erected within one thousand feet of an oil company’s plant after the same had been located, does not entitle the company to insist upon a vested right to store oil upon its premises in greater quantities than is permitted by ordinance to be stored within one thousand feet of buildings.</p> <p>4. Practice—mere assertion of counsel that ordinance is unconstitutional is unavailing. Mere general assertions of counsel that an ordinance is in contravention of the constitution does not raise the question of its constitutionality, so as to impose upon the court the duty of investigating to ascertain if some constitutional objection to the validity of the ordinance may not be found.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

R. W. Clifford, Judge, presiding. This is a garnishment proceeding commenced by John and William G-. Oliver in the circuit court of Cook county, as judgment creditors of Samuel Williams, to reach the amount of a judgment of $3000 which Williams had recovered in an action on the case for a personal injury, against the West Chicago Street Eailroad Company.

<p>1. Constitutional law—section 22 of article j, concerning special legislation, considered. Section 22 of article 4 of the constitution, which, after inhibiting special legislation in certain enumerated cases, provides that “in all other cases where a general law can be made applicable no special law can be enacted,” is addressed to the General Assembly alone, and when that body has concluded that a special law is necessary, except in the cases expressly prohibited, its conclusion is not subject to judicial review.</p> <p>2. Same—provision of Sanitary District act for attorneys’ fees in damage cases not invalid. The provision of section 19 of the Sanitary District act of 1889 allowing attorneys’ fees to the plaintiff in an action against a district for damages to land caused by overflow is not in violation of section 22 of article 4 of the constitution.</p> <p>3. Res judicata—when condemnation judgment does not bar damage suit. A condemnation judgment in favor of a sanitary district is not a bar to a subsequent suit for damages to the land caused by overflow, alleged to be due to negligent construction of the new channel, where the judgment does not show that any damages were allowed for land not taken, or that any damages were claimed for supposed injury from subjecting the land to overflow.</p> <p>4. Same-—when suit for damages is not barred by former recovery. A suit by a tenant against a sanitary district for loss of crops, caused by the alleged negligence of the district in constructing the new channel, whereby the land was overflowed, is not barred by a former recovery for loss of crops in a preceding year. (Chicago and Eastern Illinois Railroad Co. v. Loeb, 118 Ill. 203, distinguished.)</p>

<p>Taxes—board of review has no power to increase assessment without notice. If the assessor accepts an owner’s schedule as correct, the board of review has no power to increase the assessment without notice to the owner, and in case such increase is attempted, equity-will enjoin the county clerk from extending such increase.</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. Charles G. Neely, Judge, presiding.

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

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

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

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. Elbridge Hanecy, Judge, presiding.

<p>Appeal from the Circuit Court of Edgar county; the Hon. H. VanSellar, Judge, presiding.</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. Charles G. Neely, Judge, presiding.

<p>1. Leases—liability of lessee for rent in case leasehold interest is condemned. A lessee whose leasehold interest is condemned may remain in possession of the premises until the entry of judgment and payment of the compensation and damages, and he is liable for the rent until that time.</p> <p>2. Evidence—evidence cannot be received to impeach record. Where the record of a proceeding to condemn a leasehold interest shows the items going to make up the judgment for compensation and damages, parol evidence cannot be received, in a subsequent suit for rent, to show that unpaid rent was reckoned in the condemnation proceeding and deducted from the amount of the judgment, which fact does not appear in the record of the judgment..</p> <p>3. Condemnation—stipulation by petitioner's attorney as to damages •must be authorized. A stipulation alleged to have been made by the attorney for a railroad company in a proceeding to condemn a leasehold interest, to the effect that unpaid rent might be deducted from the amount of the condemnation judgment, is not binding upon the company unless it was authorized.</p> <p>4. Same—when record of condemnation suit is binding upon parties. If the record of a condemnation suit shows the cause of action, the matters litigated and the judgment, it is binding upon a party thereto in a collateral proceeding and evidence is inadmissible to contradict or impeach it.</p>

<p>The facts in this case, and the questions involved, are the same as in the case of Illinois Steel Co. v. McFadden, 196 Ill. 344, and the court holds, as in the MeFadden ease, that the defendant’s motion for a peremptory instruction was properly denied.</p>

Writ of 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. Theodore Brentano, Judge, presiding.

. Jonas Hutchinson, Judge, presiding. This is an appeal from the Appellate Court for the First District to reverse a judgment in that court affirming a judgment rendered in the superior court of Cook county in favor of George Stonevick, against the Illinois Steel Company, in an action for a personal injury.

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

<p>Writ of Error to the Circuit Court of Jackson county; the Hon. Joseph P. Bob arts, Judge, presiding.</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. Elbridge Hanecy, Judge, presiding. This suit was brought in the circuit court of Cook county by S. M. Meek, defendant in error, against Adolph Gray, plaintiff in error, on a certain written contract and supplemental contract between the parties.

<p>1. Benefit societies—subordinate lodge acts as agent of the grand lodge. In Illinois the relation of subordinate lodges to the grand lodge, in beneficial organizations, is that of agency.</p> <p>2. Same—when notice is admissible as tending to show waiver. In an action against a benefit society upon a benefit certificate, where the defendant denies liability upon the ground of the failure of the deceaséd to pay a certain assessment on the 28th day of February, at which time, under the constitution, he would be regarded as suspended and his rights forfeited, a notice from the subordinate lodge of which deceased was a member that his assessment must be paid by March 25 is admissible, as tending to show a waiver of the provision for immediate forfeiture.</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>

Marcus Kavanagh, Judge, presiding. This is an action in assumpsit, brought on April 18, 1898, in the superior court of Cook county by the appellant, the Jackson Paper Manufacturing Company of Jackson, Michigan, against appellee, the Commercial National Bank of Chicago. The declaration contained two special counts, and the common counts.

B. E. Burroughs, Judge, presiding. This is an appeal by Elizabeth L. Donaldson from the circuit court of Madison county, to reverse a decree there rendered In a partition proceeding by her against James Duncan to divide a tract of land containing one hundred and fifteen acres, adjoining the city of Alton, in which she owned a one-fourth interest, defendant being the owner of the remaining three-fourths.

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. L. D. Puterbaugh, Judge, presiding.</p>

<p>1. Trial—when case should go to jury in action for negligence. In an action by a section hand for injuries claimed to have been received while obeying orders of his foreman to do work in a dangerous manner, if the evidence is conflicting as to the language used by the foreman, the jury should determine what directions were given, what conclusions the plaintiff might draw therefrom, and whether the hazard of obedience to such directions was so imminent that a man of ordinary prudence would not have incurred it.</p> <p>2. Master and servant—when a foreman's order is specific. An order by a section foreman to one of his men to take a claw-bar and pull the spikes in a certain rail half way out and for another man to take a maul “to drive the bar for him,” is a specific order to draw the spikes by using the claw-bar and maul, and is not a direction which the servant might carry out in his own manner.</p>

<p>1. Specific performance—what must be shown by complainant. The complainant in specific performance has the burden of establishing the execution of the contract relied upon, and of showing a full and complete performance, or offer to perform, on his part.</p> <p>2. Same—contract must be complete and fair. To entitle a party to specific performance the agreement must be fair, certain and complete; and if the language used leaves the intention of the parties in doubt, equity should not decree specific performance.</p> <p>3. Same—contract must be binding upon both parties. If at the time a contract is executed it is not to be binding upon one party until he has obtained further information, then it is not binding upon the other, and should not be specifically enforced in the .absence of satisfactory proof that it afterwards became binding.</p> <p>4. Same—when contract as to fmrnishing abstract is not performed. If the complainant in specific performance agreed to furnish an abstract of title showing a good and sufficient title, his agreement is not performed by furnishing an abstract showing a defect in title and an encumbrance which the defendant had not assumed, and he is not entitled to a specific performance though he afterward pays off the encumbrance and makes the title good.</p>

<p>Appeals and errors—when findings of the chancellor should not be disturbed. If a chancery case is heard in open court, on oral testimony, and the evidence is conflicting, the findings of the chancellor will not be reversed unless error is palpable.</p>

Theodore Brentano, Judge, presiding. The International Building, Loan and Investment Union of Chicago was in 1898 found insolvent in the superior court, and a decree entered dissolving it, ordering its assets administered upon and distributed, and appointing receivers. February 6, 1900, the receivers filed their petition showing claims filed by stockholders and others, and praying that the claimants be required to appear and prove their claims.

A. H. Chetlain, Judge, presiding. The appellee bank, at the February term, 1897, of the superior court of Cook county, obtained a j udgment against George A. Leslie for $419 and costs.

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. E. W. Burke, Judge, presiding.

<p>1. Contracts—contract for services in securing frontage consents construed. A contract to obtain frontage consents to the building of an elevated railroad loop, whereby the company agreed to pay its employee $500 per month for his services and in case the company was “successful” and his efforts had helped in securing the required frontage to pay the further sum of $5000 within thirty days after the passage and acceptance of the ordinance, does not make such extra compensation dependent upon the passage of an ordinance for the entire line of the loop, but upon the successful completion of the loop and the effectiveness of the employee’s services.</p> <p>2. Same—agreement to obtain frontage consent not against public policy. An agreement to pay so much a month to a party to obtain frontage consents for a public improvement is not against public policy, even though extra pay is promised after the passage of the ordinance if the party’s efforts in obtaining consents have aided in the success of the enterprise, where he has nothing to do with the council or the passage of the ordinance except to get property owners’ consents.</p> <p>3. Interest—when allowance of interest is conclusive. The allowance of interest by the trial and Appellate Courts upon a claim at law is conclusive upon the Supreme Court where there is some evidence tending to show unreasonable and vexatious delay.</p>

<p>1. Pleading—when cross-bill is necessary to relief on bill for partnership accounting. The general rule that affirmative relief will not be granted a defendant unless he files a cross-bill, applies to a bill for dissolution of partnership and an accounting, where one of the partners desires affirmative relief upon grounds other than that of an adjustment of the accounts of the partners.</p> <p>2. Laches—complainant should state in the bill what he relies upon to overcome presumption of laches. One who delays for over twelve years after knowledge of the facts before seeking relief in equity must set up what he relies upon to rebut the presumption of laches.</p> <p>3. Same—when pendency of former suit does not remove imputation of laches. The presumption of laches arising from a delay of twelve years in filing a bill for relief in equity is not overcome by a showing that for nine years a bill by the defendants against the complainant for a dissolution of partnership and an accounting was pending, which bill complainant answered but filed no cross-bill, and which was dismissed at the end of such period, over complainant’s objection, where the relief sought by the complainant in his bill is of a character which could not have been granted in the former proceeding without his filing a cross-bill.</p>

<p>1. Insolvent debtors—term “malice” construed, as used in section 2 of Insolvent Debtors' act. The term “malice,” as used in section 2 of the Insolvent Debtors’ act, authorizing the release of a debtor from imprisonment when “malice is not the gist of the action,” applies to that class of wrongs which are inflicted with an evil intent or purpose, and implies that the guilty party was actuated by improper motives to intentionally inflict an injury on another.</p> <p>2. Same—effect where pleadings show that malice is gist of the action. If it appears from the pleadings in the civil suit under which an insolvent debtor was imprisoned that malice is the gist of the entire action, the judgment in such action is conclusive of the question of malice, and is res judicata.</p> <p>3. Same—effect where malice is the gist of one, only, of several counts. If there are several counts in a suit against an insolvent debtor and malice is the gist of only one of them, a judgment upon a general verdict is not conclusive that there was malice, and the debtor, upon petitioning for his discharge from imprisonment, may show the verdict was upon counts of which malice was not the gist.</p> <p>4. Same— burden is upon the debtor to show that malice was not the gist of the action. If issues are made upon all the counts in suit against an insolvent debtor, including one of which malice is the gist, a judgment upon a general verdict is responsive to such issues and prima facie establishes that malice was the gist of the action, and the burden is upon the petitioning debtor to show the contrary.</p>

<p>1. Street railways—company does not occupy same position as an •abutting owner. A street railway company does not occupy the position of an owner of property abutting upon the street, and hence it does not follow, because the burden of keeping a portion of the street clear of snow, dirt and other accumulations cannot be imposed upon an abutting owner, that the company cannot be required to clean the portion of the street occupied by its tracks.</p> <p>2. Same—city cannot, by ordinance, deprive itself of powers concerning public health and safety. A city cannot, by an ordinance granting a street railway franchise, deprive itself of the power nor relieve itself of the duty of enacting and enforcing ordinances necessary for the preservation of the health, safety and comfort of the public; nor can the company, by any contractual terms of the ordinance, exempt itself from control of the city in such respect.</p> <p>3. Same—a city has power to require company to keep portion of street ■dean. In the interest of the public health, safety and comfort a •city has power, by uniform ordinance, to require street railway companies to remove all snow, dirt or other accumulations from so much of the surface of the streets as is occupied by their tracks. (Gridley v. Bloomington, 88 Ill. 554, and Chicago v. O'Brien, 111 id. 532, distinguished.)</p> <p>4. Same—a street railway is subject in a higher degree to municipal control than a railroad. The business and property of a street railway company are impressed with a public interést, and it may be subjected to municipal regulations, in the interest of the public at large, of a greater scope than may be a railroad company exercising its franchise upon its own road-bed.</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>1. Plats—ownership of fee in streets where plat does not constitute a statutory dedication. A plat executed and acknowledged by an attorney in fact does not constitute a statutory dedication of the streets to the municipality, and the title thereto remains in the owner so long as none of the lots are sold; but if he sells lots by reference to the plat, title to the soil in front of such lots, to the center of the street, attaches to the lots conveyed.</p> <p>2. Same—street need not be marked on plat as a street or way. If a plat is made and recorded and the lots and blocks are designated thereon, with spaces left which fairly indicate they are set apart to the public, the spaces thus indicated are, presumptively, streets.</p> <p>3. Same—when space will be presumed to be intended for one-half of a street. If a space left on a plat is a part of the subdivision but not part of any platted lot, and extends clear around the subdivision, constituting on three sides one-half of the public streets, it will be presumed that the space upon the fourth side, though unmarked, was intended as one-half of a street, the other half of which it was expected by the owner would be dedicated from the adjoining property when platted; and in such case a conveyance, by reference to the plat, of a lot bordering upon such strip will pass the fee'to the entire width of such strip, and not merely to the center thereof.</p> <p>4. Same—effect where a plat is not made by the owner. Although a plat is not made by the owner of land, yet if the plat is recorded and the owner conveys lots by reference thereto, he is bound by all the dedications and reservations shown thereon.</p> <p>5. Same—plat referred to in deed becomes part of the deed. If deeds convey lots according to their description upon a recorded plat, the plat and all particulars thereon shown are a part of the deed as though recited therein,</p> <p>6. Same—effect where levy ignores plat. If a recorded plat made by a stranger has been adopted by the owner by conveying lots with reference thereto by deeds of record, a levy of attachment against such owner upon the tract of land as unsubdivided will op-” erate only upon such of the lots shown upon the plat as have not been conveyed by the owner, and a sale under such levy can create no rights or interests in the streets and alleys shown upon the plat, inconsistent with those of the owners of the lots.</p> <p>7. Same—when dedication is binding upon all persons claiming under attachment sale. If the owner of land recognizes and adopts a recorded plat of the same made by a stranger, and sells lots with reference thereto prior to the levy of an attachment writ against him upon the entire tract as unsubdivided, the plat, together with its dedication of the streets and ways shown thereon, is binding upon the plaintiff in attachment, the purchaser at the sale and all persons holding under him; and the latter have no right to re-plat streets into lots, as against the rights of abutting lot owners.</p> <p>8. Parties—parties owning fee in street are necessary parties to burnt records petition. Parties purchasing lots with reference to a recorded plat not sufficient to constitute a statutory dedication, are owners of an interest in fee, within the meaning of section 11 of the Burnt Records act, in the street upon which their lots abut, and are necessary parties to a burnt records proceeding to establish title to the strip, reserved for such street, in the purchaser at an attachment sale of the entire tract of land as unsubdivided.</p> <p>9. Same—what sufficient to give notice that lot owners are necessary parties. If a plat is sufficient to give notice to a purchaser at an attachment sale of the entire tract as unsubdivided that the city is the owner in fee of the streets shown thereon if all statutory requirements in the making of the plat are complied with, it is also sufficient to give notice that purchasers of lots with reference to such plat are necessary parties where the city has not acquired the fee by reason of irregularities in making the plat.</p> <p>10. Deeds—notice of defects in title appearing of record is chargeable to grantee. Notice of defects in the grantor’s claim of title, such as grow out of and appear from the public records of deeds, is chargeable to the grantee, and he takes no better title than his grantor had.</p> <p>11. Injunction—when injunction is a proper remedy. Injunction is a proper remedy to prevent the placing of obstructions in a public street or way which the complainants, as owners of the lots abutting thereon, have the right to insist shall be kept open and unobstructed.</p>

R W. Clifford, Judge, presiding. The original bill in this case was filed on November 21,1896, by the Tacoma Safety Deposit Company against Charles F. Stewart, Sarah Anna Stewart, Harry W. Christian, trustee, and George P. Law, successor in trust, James H. Christian and Mary J. Christian, his wife, Neil A. Fader, and others, to foreclose, upon certain property lying west of Vincennes avenue in Cook county, a trust deed, dated March 14,1895, and recorded in the recorder’s…

<p>1. Plats—conveyance carries title to center of street in case of common law dedication. A conveyance of property abutting upon a street shown upon a plat, which plat is not sufficient to constitute a statutory dedication, carries with it the fee of the soil to the center of the street, although the property is conveyed by lot or block number only, unless the title to the street is expressly reserved to the grantor or excluded from the grant.</p> <p>2. Deeds—intention to exclude street must appear from the deed. The intention of a grantor to exclude land in the street from the operation of the conveyance must appear from the language of the deed, as explained by the surrounding circumstances.</p> <p>3. Pleading—what must be alleged, in a bill claiming title to streets. A bill by the heirs of the owner of a platted tract, where the plat was not sufficient for a statutory dedication, to enjoin defendants from mining coal under the streets of the subdivision, should set forth the language of the deeds and the surrounding circumstances relied upon by the complainants to rebut the presumption that such deeds conveyed the fee of the soil in the street with the abutting property, otherwise an averment that their ancestor had conveyed many of the lots designated on the plat to divers persons in fee simple must be held to be an averment of absolute sale, carrying title to the center of the street with the abutting property.</p> <p>4. Trial—right of chancellor to order master to re-open case. If the defendant, relying upon the insufficiency of the complainant’s evidence, introduces no evidence until after the master has filed his report, the chancellor may, upon a proper showing, order the master to re-open the case and hear the defendant’s evidence.</p>

<p>1. Appeals and errors—when constitutional question is not involved on appeal. If the trial court adopts the defendants’ construction of a statute, the defendants, if defeated, cannot take a direct appeal to the Supreme Court upon the ground that had the trial court adopted the construction contended for by the plaintiff the statute would have been unconstitutional.</p> <p>2. Same—Supreme Court has no jurisdiction of direct appeal where construction of statute is involved. If the only question presented to the trial court is the proper construction of a statute, the Appellate Court, and not the Supreme Court, has jurisdiction of appeal.</p>

G-. W. Brown, Judge, presiding. This is a bill, filed in the circuit court of Kane county on July 31,1900, by the appellant, the Chicago Telephone Company, against the appellee, the Northwestern Telephone Company, for the purpose of enjoining appellee from interfering with the poles, wires and telephone system of the appellant, as existing in the streets of the city of Aurora. When the bill was filed, a temporary writ of injunction was issued in accordance with its prayer.

<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 G. Neely, Judge, presiding.</p>

Jesse Holdom, Judge, presiding. This is a bill, filed in the superior court of Cook county on December 14, 1901, by the appellee, Herbert Hammond, against John Clay, Jr., one of the appellants, and his wife, Euphemia F. Clay, William H. Forrest, Frank H. Connor, and his wife, Evelyn B. Connor,Thomas Donohue, and the appellant, John Parry, Parry and Donohue being tenants occupying the premises under John Clay, Jr. The bill alleged that appellee was the owner in fee simple of…

Theodore Brentano, Judge, presiding. This suit was brought by appellee, by his next friend, to recover damages for an injury to his person through the alleged negligence of appellant’s employees. He recovered a judgment in the superior court of Cook county for §15,000 and costs of suit, to reverse which the defendant appealed to the Appellate Court for the First District, but that court affirmed the judgment below, and hence this further appeal.

<p>1. Explosives—liability of party using explosives in excavating a tunnel. A public contractor who uses dynamite in excavating a tunnel at a place where such use is not necessary or permitted by the contract with the city, is liable for injury done to the buildings in the neighborhood from the concussion or vibration of the explosions, however great the care used in the work.</p> <p>2. Same—courts will take judicial notice that use of dynamite in city is dangerous. Courts will take judicial notice that use of dynamite in excavating a tunnel in a populous city is dangerous.</p> <p>3. Damages—liability for use of explosives not confined to actual invasion of property. The liability for damages to property from the use of explosives is not confined to actual invasion of the property by rocks or other material being thrown thereon, but extends to damage done by the concussion or vibration of the earth or air.</p> <p>4. Same—measure of damages in action for damage to building from use of dynamite. In an action for damages for injury to plaintiff’s building caused by the defendant’s use of dynamite in excavating a tunnel, the true measure of damages is the cost of repairing the building and restoring it to its proper condition.</p>

<p>1. Parties—declaration may be amended so as to change name of the plaintiff. Under section 23 of the Practice act and section 1 of the act of amendments and jeofails, amendments may be allowed even to the extent of changing the name of the plaintiff.</p> <p>2. Same—assignee is proper party to bring suit under the Voluntary Assignment act. Under the provisions of the Voluntary Assignment act the assignee was the party to bring suit upon the debtor’s choses in action; but this right was official, and ceased when the assignee was removed or the proceedings were discontinued, the power to sue being merely incident to the office.</p> <p>3. Same—proper party to sue after the assignee is discharged. If an assignee, under the Voluntary Assignment act, begins suit in assumpsit upon one of his debtor’s choses in action, but pending suit he sells the chose in action under an order of court and is discharged and the assignment proceeding is discontinued, the purchaser of the chose in action may continue the suit in the name of such debtor, and the declaration may be amended accordingly.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on writ of error to the' Circuit Court of Cook county; the Hon. Charles G. Neely, Judge, presiding.</p>

<p>1. Corporations—right of stockhholclers to intervene in foreclosure suit. Stockholders in a corporation are not necessary parties to a foreclosure suit, and can only intervene in its behalf by showing the existence of a defense which the corporation neglects or refuses to make.</p> <p>2. Same—section 18 of the Corporation act construed,. Section 18 of the Corporation act, which provides that persons assuming to exercise the powers of a corporation before all stock is subscribed in good faith shall be jointly and severally liable for all debts and liabilities made by them, does not limit creditors of the supposed corporation to such remedy alone.</p> <p>3. Same—corporation may be defacto without complete organization. If an association is in the exercise and use of a corporate franchise under color of a legal organization, in pursuance of the general law, it is a corporation defacto as to third persons dealing with it, and subject to the same liabilities as a corporation dejwre.</p> <p>4. Same—certificate of complete organization is prima facie evidence of corporate existence. A certificate of complete organization, executed and recorded as provided by law, is prima facie evidence of corporate existence, and is sufficient to justify third parties in dealing with the corporation without investigating to ascertain whether or not the subscriptions to stock were in bad faith.</p> <p>5. Same—existence of personal liability of directors does not destroy right against corporation defacto. The fact that directors of a supposed corporation may be personally liable to creditors under section 18 of the Corporation act does not destroy rights which such creditors may have against the company as a corporation defacto.</p> <p>6. Same—when stockholders cannot intervene in foreclosure. Stockholders cannot intervene in a proceeding to foreclose a trust deed given for a purpose not ultra vires, upon the ground the greater portion of the stock subscribed was fictitious and was surrendered after a certificate of organization was obtained, and that the officers and directors acted fraudulently in certain matters which, while entitling the stockholders to relief against them personally, have no connection with the execution of the trust deed and bonds.</p>

R. W. Clifford, Judge, presiding. The appellant, on Saturday, the 10th day of December, 1898, exchanged a farm of 280 acres, located in the State of Indiana, for a stock of merchandise belonging to Day & Co. of Chicago, situated in a store building located at 312-314 West Sixty-third street, in said city..

<p>1. Actions and defenses—money paid by municipality wnder mistake of law cannot be recovered. The rule that money paid under mistake of law, there being no fraud or mistake of fact, cannot be recovered back, applies to municipal corporations as well as to individuals.</p> <p>2. Same—when village cannot recover fees paid to a county clerk. • If the charges of a county clerk to a village for his services in connection with the making of tax deeds to it are investigated and settled by the village and voluntarily paid, except as to the fees for recording certificates, which are paid under protest, fees not included in those paid under protest cannot be recovered back, where there was no fraud, concealment or misrepresentation.</p> <p>3. Appeals and errors—when validity of statute is not involved. The validity of a statute is not involved unless it is material to the rights of the litigants and connected with the controversy out of which the litigation grew.</p>

<p>Marriage—what sufficient proof of marriage. If the parties to an intended marriage supposed that the decree of divorce obtained by the husband from a former wife was legal although it was in fact void for want of jurisdiction, the fact that they lived together as man and wife after the death of such former wife, with the continued desire and intention of being married, is sufficient proof of a common law marriage.</p>

<p>1. Deeds—what constitutes a valid delivery of deeds. Deeds executed and placed in the hands of a third person for delivery to grantees after the death of the grantor, upon the express understanding that the latter shall have no right to re-call or revoke them, are well delivered if accepted by the grantees.</p> <p>2. Same—what does not render deed a testamentary disposition of land. The mere fact that the grantor retains possession of land for her use during life does not render her deed a testamentary disposition even though it was not to be delivered until after her death, where the grantor reserved no right to alter the disposition of the property, which is an essential feature of a testamentary disposition.</p>

<p>1. Contracts—when parol agreement to convey right of way is binding. If a parol agreement between a land owner and a railroad company for the conveyance of right of way is carried out by the company and the railroad constructed, the possession of the railroad company is notice of its rights to subsequent purchasers, and the agreement is binding upon the original owner and his grantees.</p> <p>2. Laches—railroad company in possession of right of way not chargeable with laches. A railroad company in actual possession of a right of way under a parol agreement by the owner to convey, is not guilty of laches in failing to file a bill for specific performance and an injunction until suit is brought against it for possession.</p> <p>3. Parties—one who has parted with interest in land not a necessary party to specific performance bill. If the owner of land, under whose agreement to convey a right of way a railroad was constructed, parts with all interest in the land before suit in ejectment against the railroad company is begun, neither she, nor her heirs in case of her death, are necessary parties to a bill by the railroad company for specific performance and to enjoin the ejectment.</p>

<p>1. Real property—effect of section IS of Conveyance act. Under section 13 of Conveyance act, if an estate is devised to a named person without the use of the words “heirs and assigns” the devisee will take a fee simple estate of inheritance, unless it appears from the will by express words, or by construction or operation of law, that a less estate than a fee is limited.</p> <p>2. Wills—devise construed as passing life estate only. A devise to "my son, Horace Stone Hause,” of certain described land, “on the same principles as that of his brother, George Willis Hause, not being subject to sale, transfer or liability for debts, but to descend to his bodily heirs, and, in case of none, to his.brothers and sisters,” passes a life estate, only, to Horace Stone Hause with remainder to the heirs of his body, notwithstanding the devise to the brother is to “George Willis Hause, my son, and to his heirs,” since the words “on the same principles” refer to the provisions against alienation, and not to the word “heirs.”</p> <p>3. Deeds—life tenant cannot convey a greater estate than he possesses. A deed from a life tenant passes only a life estate to the grantee, and the possession of the latter is, in contemplation of law, the possession of the remainder-man, the same as was the possession of the original life tenant.</p> <p>4. Limitations—section 6 of Limitation act must be construed in connection with section 3. Section 6 of the Limitation act, relating to possession and payment of taxes for seven years under claim and color of title, must he construed in connection with section 3 of that act, the third clause of which provides that the right of a remainder-man to bring an action to recover land, so far as it is affected by the Limitation act, shall be deemed to accrue when the intermediate estate would have expired by its own limitation.</p> <p>5. Same—statute does not run against remainder-man while life tenant lives. The Statute of Limitations does not begin to run against a remainder-man until the death of the life tenant.</p> <p>6. Evidence—when certified copy of mil is admissible. An objection that a certified copy of a will is not admissible in evidence because no court was shown to have been in existence to make the order of probate attached to the copy is without force, where the order shows in what probate court it was rendered and by what judge, the date, and jurisdiction of the parties.</p>

<p>1. Assignments—equity will enforce bona fide assignment of judgment. While a judgment is not assignable at common law or under our statute, yet a court of equity will protect and enforce such assignments if bona fide and for valuable consideration.</p> <p>2. Same—assignee of judgment takes all interest of assignor. Although an assignee of a judgment takes the same subject to all equities existing between the original parties prior to such assignment or between his assignor and a prior assignor, yet -if the assignment was made in good faith and for a valuable consideration all interest of the assignor passes to the assignee in equity, and he will be protected accordingly.</p> <p>3. Same—burden of establishing equities to avoid assignment is upon party asserting them. If an assignor seeks to overthrow an assignment made by him, the burden is upon him to prove equities entitling him to be relieved-against his own act; and when a third party has parted with his money in good faith upon the strength of the assignment, a court of equity should have clear and convincing proof of all that is required to avoid the assignment.</p>

<p>1. Street railways—street railways are within clause k$, section 1, article 5, of City and Village act. Street railways come within the purview and meaning of clause 42 of section 1 of article 5 of the City and Village act, empowering cities and villages to “license, tax and regulate hackmen, draymen, omnibus drivers, carters, cab-men, porters, expressmen, and all others pursuing like occupations, and to prescribe their compensation.”</p> <p>2. Same—city of Chicago had power to pass ordinance requiring transfers. As a question of power, simply, the common council of the city of Chicago was authorized to enact the ordinance of June 26, 1890, (subsequently re-enacted in 1897 as sections 1723 and 1725 of the Revised Code,) which provides that the maximum rate of fare for one continuous passage on any line of a street railway company for any distance within the city limits shall be five cents, and that transfers shall be given where any such line connects with or comes within two hundred feet of any other line owned, leased or operated by the same company.</p> <p>3. Same—power to fix fare includes power to provide for transfers. The power of a city to fix the maximum rate of fare to be charged by a street railway company includes the power to fix the rate for carrying a passenger over two or more lines operated by one company as well as over one line, the question being, not as to the reasonableness of the charge, but as to the power to fix the charge.</p> <p>4. Same—section 17$S of the Revised Code of Chicago is not in violation of the constitution. The enactment of section 1723 of the Revised Code of Chicago, as made in 1897, was a valid and lawful exercise of the city’s power to regulate street railway fares and transfers, and does not violate any provision of the constitution of the State.</p> <p>5. Same—applicability of section 17$S of the Revised Code of Chicago. Section 1723 of the Revised Code of Chicago of 1897 applies where a person, firm or corporation has subsequently become and still is the owner or lessee of or is operating two or more lines of street railway within the city of Chicago which join, connect, cross or come within two hundred feet of each other, notwithstanding such lines were before operated by separate persons or companies.</p> <p>6. Same—when lessee of a street railway must operate it under its own charter. If a corporation is organized under the general Incorporation act for the purpose of leasing street railways and operating the same, it must operate them under its own charter and subject to the provision of section 9 of the Incorporation act, requiring obedience to reasonable regulation by the General Assembly, and cannot claim the benefit of any contract or privilege possessed by its lessor which is in violation of its own charter.</p> <p>7. Same—corporation operating street railway under lease must submit to reasonable regulation as to fares. A corporation organized under the general Incorporation act for the purpose of leasing street railways and operating the same, must, in its business of operating such railways, submit to reasonable regulations by the common council as to its rate of fare.</p>

<p>1. Appeals and errors—when an objection that authority to sue for taxes is not shown comes too late. While it is true that the State’s attorney cannot, of his own motion, begin and carry forward an action of debt for general taxes, yet the objection that his authority to sue is not shown comes too late on appeal.</p> <p>2. Taxes—what an admission of ownership and value of property in suit for taxes. In an action of debt for general taxes upon personal property for the years 1899 and 1900, proof of the payment by the defendants, through their agent, of the State and county taxes for 1899 and a tender of the State and county taxes for 1900, amounts to an admission of the ownership of the property and its value.</p> <p>3. Same—credits should be, assessed where owner resides. Money and choses in action belonging to a resident of this State should be assessed where the owner has his residence, even though they are in the actual possession of an agent who resides in another township.</p> <p>4. Same—board of review has power to transfer assessment from one township to another. A board of review has power, without notice to the owner of mortgages and credits, to transfer the assessment thereof from the books of the township where the owner’s agent resides to the books of the township where the owner resides, even though they are in the actual possession of the agent and the tax rate is higher in-the latter township than in the former.</p> <p>5. Same—suit for taxes is properly brought in the name of the People. An action of debt for general taxes for the years 1899 and 1900 is properly brought in the name of the People, notwithstanding the State and county taxes for 1899 were paid and the State and county taxes for 1900 were duly tendered.</p>

<p>1. Deeds—it is essential to delivery that grantor part with possession of deed. It is essential to a valid delivery of a deed that the grantor part with the possession of the deed and all control over it.</p> <p>2. Same—possession of land by a grantee does not take the place of delivery of deed. The possession of land hy the grantee in an undelivered deed may serve as notice of title, and, with other facts, may constitute part performance of a verbal contract to convey, but it does not take the place of delivery of the deed and cannot operate as a conveyance.</p> <p>3. Same—what does not show delivery of deed. Testimony by the grantor in a deed to a corporation, of which he was chief stockholder, that he delivered the deed to himself as president of the corporation, and accepted it as such president at the date of the deed, does not show delivery, where there is no evidence of any resolution of the corporation or act of the directors authorizing such transaction, nor that any stockholder or officer of the corporation, other than the grantor and his wife, knew of the deed.</p> <p>4. Voluntary assignments—deed filed just before filing deed of assignment is part of same transaction. If a deed is filed hy the grantor just before he files a deed of assignment it is part of the assignment itself, and any preference created thereby would be void under the statute.</p> <p>5. Same—assignee may file bill to have deed set aside. If a deed is filed by the grantor just before filing a deed of assignment, the assignee has a right to file a bill in equity to determine whether the deed is part of the general assignment, and if so, to have any attempted preference therein declared void, the legal title to the property vested in him as assignee, and to bring it into the assignment proceeding to be administered by the county court.</p> <p>6. Same—county court’s jurisdiction is exclusive after property comes into assignee’s possession. While an assignee under a deed of assignment must resort to some court of competent jurisdiction to recover property, yet when it comes into his possession under the provisions of the statute, the county court has exclusive jurisdiction to decide upon the rights, interests and liens of the claimants.</p> <p>7. Same—jurisdiction of county court to direct the assignee to dismiss chancery suit. If an assignee files a bill in equity to have a deed of his insolvent set aside and the legal title vested in him upon the ground that the deed was part of the general assignment, the county court has jurisdiction to order him to dismiss the suit in accordance with an agreement of substantially all the creditors who had filed claims, that the interest of the assignee should be conveyed to trustees; and the propriety of such order can only be questioned in a direct proceeding.</p> <p>8. Same—probable termination of suit is not material if county cowt had jurisdiction to order its dismissal. If the county court has jurisdiction to order an assignee to dismiss a suit in chancery begun by him to have a certain deed set aside as being a part of the general assignment, the question how the litigation would have terminated is not material in a collateral proceeding by a creditor who seeks to have such deed set aside.</p>

<p>1. Railroads—a railroad company is not required to fence station grounds. The absence of fences and cattle-guards in depot or station grounds does not give rise to a liability upon the part of a railroad company for the death of a brakeman killed in the derailment of a train, caused by running upon cattle which had strayed upon the tracks on such depot or station grounds.</p> <p>2. Same—when brakeman assumes risk of running engine backwards without pilot or headlight. A brakeman put upon a branch run at his own request, who works there for over two months without objection, knowing the engine must run backwards upon return trips and knowing that it is not equipped with a pilot or headlight upon rear of the tender, assumes the risks incident to such conditions.</p>

<p>1. Street railways—duty to give transfer tickets is a public duty? The duty to give transfer tickets, imposed by section 1723 of the Revised Code of Chicago, is one which arises out of the public character of the business of street railway companies; and this duty rests not merely upon the technical owner, but upon the real or beneficial owner of the lines of street railway.</p> <p>2. Same—corporate forms and fictions cannot be used to evade public duties. In determining the duty of a public service corporation to the public the substance of things will be looked to, and consideration will not be given to corporate forms and fictions.</p> <p>3. Same—when section 1123 applies although corporations are separate legal entities. Section 1723 of the Revised Code of Chicago, in so far as it requires transfers to be given where any street railway owned, operated or leased by any person, firm or corporation connects with or comes within two hundred feet of any other street railway owned, leased or operated by the same person, firm or corporation, applies to a case where one corporation is the legal owner of one line and beneficial owner of another, even though legal title to the latter line may be in another corporation.</p> <p>4. Same—Chicago Union Traction Company and Chicago Consolidated Traction Company must exchange transfers. The Chicago Consolidated Traction Company bears such a relation to the Chicago Union Traction Company as to be regarded as the “same corporation,” within the meaning of the language used in section 1723 of the Revised Code of Chicago, in so far as transfer tickets are concerned.</p> <p>5. Same—rate of fare prescribed by ordinance is presumed to be reasonable. The rate of fare prescribed in section 1723 of the Revised Code of Chicago will be presumed to be reasonable until its unreasonableness is shown, and the burden of proving such unreasonableness is upon the party asserting it.</p> <p>6. Same—public service corporation is'entitled to profit on actual investment only. A public service corporation, such as a street railway company, is entitled, at the most, only to a profit on its actual investment, and the fact that it is not permitted to charge enough to pay interest on all its outstanding obligations and a dividend upon all stock, in addition to operating expenses, does not deprive it of its property without due process of law nor deny it the equal protection of the laws.</p> <p>7. Same—basis of calculation as to reasonableness of rates is the fair value of the property. The basis for calculating the reasonableness or unreasonableness of rates to be charged by a corporation maintaining a highway under legislative sanction is the fair value of the property used by it for the convenience of the public; and the apparent value of the property and franchises, as represented by stocks, bonds and obligations, is not alone to be considered.</p> <p>8. Same—one method of showing reasonableness of rates. One method of determining what is a reasonable rate for transportation is to show that other companies of a similar character charge the same rate for transportation for the same or longer distances.</p> <p>9. Same—what must be proven to present claim that rate is unreasonable. A street railway company desiring to present the question whether an ordinance fixing rates of fare and providing for transfers is unreasonable, must show the profits and earnings of its entire system and the effect which the enforcement of the ordinance will have upon such system.</p>

<p>1. Practice—when assignments of error are sufficient. Assignments of error that the circuit court erred in finding for the plaintiff, in rendering judgment for the plaintiff and in not rendering judgment for the defendant, raise the question whether the evidence justified the findings and judgment of the circuit court, and authorize the Appellate Court to review the questions of fact.</p> <p>2. Same—when proposition of law is unnecessary to preserve question for review. Where the question whether a benefit society waived a certain by-law is put in issue by the pleadings as a question of fact, no proposition of law is necessary to make the finding upon such question reviewable by the Appellate Court.</p> <p>3. Same—Appellate Court’s judgment conclusive of mixed question of law and fact. What facts constitute a waiver of a provision of a benefit certificate or of a by-law is a question of law, but whether such facts exist in a particular case is a question of fact; and the findings of the Appellate Court upon such questions of fact are conclusive in suits at law.</p>