tiff had had his day in court, and, not having [ at the hearing, and what evidence, if any, urged such question on the original trial, was was introduced showing the foreign law not entitled to a writ of review to enable him to do so. cannot be ascertained. It must be assumed, however, that the case was heard on the petition and answer. [Ed. Note.-For other cases, see Review, Cent. Dig. 88; Dec. Dig. § 8.*] Report from Superior Court, Essex County; Robt. F. Raymond, Judge. Petition for writ of review by Stewart Browne against Joseph Fairhall, as executor of J. B. Browne, deceased. The petition was dismissed in the superior court, and the case reported to the Supreme Judicial Court. Dismissed. For facts, see Browne v. Fairhall, 213 Mass. 290, 100 N. E. 556, 45 L. R. A. (N. S.) 349. Wm. A. Morse and Robt. O. Harris, both of Boston (Schell & Elkus, of New York City, of counsel), for petitioner. Chas. A. Sayward, of Ipswich, for defendant. [2, 3] The petition under section 22 is ad dressed to the discretion of the court in which judgment was rendered. It is in effect a motion for a new trial after judg. ment, and the order granting or denying it cannot be reviewed on exceptions. Dearborn v. Mathes, 128 Mass. 194, 196. But if rulings are made at the hearing as to the admissibility of evidence, or the jurisdiction of the court, or the law applicable to the case which could not have been raised before verdict, they can be reviewed on report or exceptions. Dearborn v. Mathes, 128 Mass. 194; Hayes v. Collins, 114 Mass. 54: Weeks v. Adamson, 106 Mass. 514. [4, 5] The appeal brings up only questions of law apparent on the record. Given v. BRALEY, J. By the decision in Browne v. Johnson, 213 Mass. 251, 252, 100 N. E. 369, Fairhall, 213 Mass. 290, 100 N. E. 556, 45 and cases cited. And the refusal at the origL. R. A. (N. S.) 349, when the case was first inal trial to rule, as the defendant requestbefore this court on the report of the pre-ed, that the contract was the personal undersiding judge, after verdict for the plaintiff at a trial on the merits, judgment was ordered for the defendant on the ground, that performance of the contract for breach of which the action was brought had been rendered impossible by the death of the testa tor. taking of the testator which could not be performed by his executor, as well as the ruling that the contract survived, recited in the petition, were apparently made at the close of the evidence. If he relied upon the law of a sister state as being different from our own relating to the survival of actions of contract, the petitioner was not precluded from introducing evidence in support of his contention. If such evidence had been offered, but excluded, his rights could have been amply protected by the report. But if, being satisfied with the ruling that the action could be maintained under our laws, he did not deem it expedient to offer the evidence, or to contend that the contract was governed by the foreign law, the omission affords no reason for granting a review. The petitioner in other words has had his day in court, where he could have availed himself of the decisions now relied on in support of the petition, of which opportunity he has not been deprived by any act of the respondent, and his failure to offer them in evidence is insufficient to ground a petition for review. Dearborn v. Mathes, 128 Mass. 194; Ryder v. Phoenix Ins. Co., 101 Mass. 548, 550, 551. [1] It is to be assumed that the order was followed, and thereupon the plaintiff seasonably brought this petition under R. L. c. 193, § 22, for a writ of review to vacate the judgment to enable him to present evidence at a new trial, that by the laws of the state of New York where the petition alleges the contract to have been made, and where it was to be performed, the cause of action survived. The respondent having answered to the merits admitting the allegations of fact in the petition, but claiming that they were insufficient to authorize a writ of review, the trial judge ruled "as matter of law that this action cannot be maintained and for that reason" dismissed the petition, and the petitioner appealed. The report in the former case formed no part of the record, and while the plaintiff's affidavit is sufficient to prove facts known only to himself as reasons for the issuance of an order of notice, the affidavit also filed of a notary public and But even if the second affidavit is treated counselor at law giving his opinion as to the as evidence before the trial judge, and the law of another jurisdiction was inadmissible report is considered as incorporated in the and could not be considered because the appeal, we do not understand that upon the respondent had been given no opportunity of facts appearing in the report the construccross-examination. Coolidge v. Inglee, 13 tion of the contract adopted in Browne v. Mass. 26, 50, 51; Parker v. Inhab. of Fram- Fairhall, 213 Mass. 290, 100 N. E. 556, 45 ingham, 8 Metc. 260, 264; Warner v. Collins, | L. R. A. (N. S.) 349, is essentially at variance 135 Mass. 26; Rogers v. Hill, 4 Mass. 349; with the foreign law invoked by the petiGiven v. Johnson, 213 Mass. 251, 100 N. E. tioner. Dexter v. Norton, 47 N. Y. 62, 7 369; Gray v. Moore, 7 Gray, 215. The rec- Am. Rep. 415; Lorillard v. Clyde, 142 N. ord is bare of any recital of the proceedings | Y. 456, 462, 37 N. E. 489, 24 L. R. A. 113; Dolan v. Rodgers, 149 N. Y. 489, 491, 44 N.) (264 111. 272) (No. 9047.) LOTT v. DAVIS et al. (Supreme Court of Illinois. June 16, 1914. Rehearing Denied Oct. 7, 1914.) 1. APPEAL AND ERROR (§ 193*) - REVIEW PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW. Where defendants' answer went to hear ing without objection, they cannot in the Appellate Court contend that complainant's bill to remove their execution deed as a cloud on his title was insufficient because not alleging that complainant was in possession of the land or that the property was unoccupied. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1226-1238, 1240; Dec. Dig. § 193.*] JUSTICE'S 2. JUDGMENT (8 768*) LIEN [Ed. Note.-For other cases, see Judgment, The Chicago municipal court was created under Const. art. 4, § 34, providing for the abolition of justices of the peace and police magistrates. The Municipal Court Act gave to that tribunal jurisdiction of certain classes of cases which exceeded the jurisdiction of the justices of the peace but did not give all of the powers of the circuit court, and section 63 (Hurd's Rev. St. 1913, c. 37, § 326) provides that judgments of the municipal court in cases of the first and second class shall be liens on real estate in the same manner as judgments of the circuit court, but that no judgment other than one of the first or second class shall be a lien upon the real estate of the defendant until a levy thereon and a certificate of such levy shall be filed in the recorder's office. Held, that this provision was not in violation of Const. art. 6, § 29, providing that the proceedings and practice of all courts of the same grade shall be uniform, for the municipal court is a composite court, in the first and second class of cases exercising jurisdiction concurrent with the circuit court, while in the other class of cases its jurisdiction is similar to that of a justice of the peace whose judgments are not a lien upon real property until filed in the cir Samuel B. King and Jule F. Brower, both of Chicago, for plaintiff in error. Charles T. Farson and Wm. Chones, both of Chicago, for defendants in error. CARTWRIGHT, C. J. Arthur E. Lott, plaintiff in error, filed his bill in the superior court of Cook county, alleging that he was the owner, in fee simple, of the lots in the city of Chicago therein described, and asking the court to enjoin the execution of a deed to the same in pursuance of a certificate of sale executed by Thomas M. Hunter, bailiff of the municipal court of Chicago, to Abel Davis by virtue of an execution against Albert F. Lott on a judgment in favor of John E. Mullally and to remove said certificate as a cloud upon his title. Davis, Hunter, and Mullally were made defendants, and Davis answered the bill. Mullally was defaulted, and it was stipulated that the answer of Davis should stand as the answer of Hunter. The ground for asking relief was that the execution was not a lien on the lots when the complainant acquired them. The facts were not in dispute, and the defense made by the answer was that the provision contained in section 63 of the act relating to the municipal court of Chicago (Hurd's Rev. St. 1913, c. 37, § 326), that no execution upon a judgment other than one of the first class or one of the second class shall be a lien upon the real estate of the defendants until the same shall be levied thereon and the certificate of such levy filed in the recorder's office, is void. The evidence was heard by the court, and the claim of the defendants was sustained and the bill dismissed for want of equity. The record has been brought to this court by writ of error. [1] In reply to the errors assigned, it is urged that, regardless of the question of law, the decree dismissing the bill was justified, for the reason that it did not allege that the plaintiff was in possession of the lots or that they were unoccupied. The bill did not make any allegation respecting occupancy, and there was no evidence on the subject; but, if any averment concerning possession or occupancy was required in a case where the removal of a cloud upon title was not the sole object of the bill, the want of the averment was waived by the defendants failing to demur specially for that cause. The de[Ed. Note.-For other cases, see Courts, Cent. fendants who answered proceeded to a hearDig. §§ 409, 412, 413, 429, 458; Dec. Dig. §ing without objection, and cannot now insist cuit court. 189.*] that the bill was defective in failing to al Error to Superior Court, Cook County; lege that the complainant was in possession Wm. E. Dever, Judge. Bill by Arthur E. Lott against Abel Davis and others. There was a decree dismissing the bill, and complainant brings error. Reversed and remanded, with directions. See, also, 262 Ill. 148, 104 N. E. 199. or the lots vacant. Gage v. Schmidt, 104 Ill. 106; Monson v. Kill, 144 Ill. 248, 33 N. E. 43. The complainant had a right to file his bill to protect his title against the execution sale. Groves v. Maghee, 64 Ill. 180; Phillips v. Pitts & Co., 78 Ill. 72. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [2, 3] The defendant John E. Mullally re-, it should not be a lien upon the real estate covered a judgment in the municipal court of the defendant until the same should be levied thereon and a certificate of the levy filed in the recorder's office; but it is contended that the provision of the Constitution requires that all judgments of the municipal court shall have the same force and effect and become liens upon the real estate of the defendants to the same extent as judgments of the circuit court. It is therefore insisted that, in order to secure the uniformity required by the Constitution, the provision making judgments of the circuit court liens upon real estate from the time of their rendition must be regarded as valid, and the provision that judgments of the municipal court, except in two classes of cases, shall not become liens until executions are levied and certificates filed, is void. Disregarding other questions which suggest themselves, that conclusion can only be reached if we find that the municipal court, în the exercise of its jurisdiction in cases of the fourth class, like this one, is of the same class or grade as circuit courts. of Chicago on April 17, 1909, against Albert F. Lott for $520 and costs. On April 19, 1909, a transcript of the judgment was filed in the office of the recorder. In May, 1909, a stay bond was filed on a writ of error from the Appellate Court for the First district and the writ was made a supersedeas. On November 26, 1909, the premises were conveyed to the complainant by the judgment debtor, Albert F. Lott, and his wife. The Appellate Court affirmed the judgment on June 19, 1911. Mullally assigned the judgment on June 26, 1911, to the defendant Abel Davis. An execution was issued to the defendant Hunter, as bailiff of the municipal court, and on July 25, 1911, the execution was levied on the lots, and the next day a certificate of the levy was filed in the office of the recorder. On August 28, 1911, the property was sold, by virtue of the execution, to the defendant Abel Davis for $642.12 and the execution was returned. Section 63 of the act in relation to the municipal court of the city of Chicago provides that the orders, judgments, and decrees of that court, in cases of the first class and cases of the second class, shall have the same force, be of the same effect, be liens on real estate in the city of Chicago, to the same extent and under the same circumstances and be executed and enforced in the same manner as the judgments, orders, and decrees of the circuit court of Cook county; that all other judgments of the municipal court shall have the same force, be of the same effect, and be executed and enforced in the same manner as the judgments of the circuit court, but no such judgment shall be a lien upon the real estate of the person against whom it is obtained, except from the time of the filing of a certified transcript thereof in the office of the recorder; that in all cases executions may be levied upon the property, real and personal, of the defendants situated within the city, to the same extent as executions issued out of the circuit court; but that no execution upon a judgment other than one of the first class or one of the second class shall be a lien upon the real estate of the defendant until the same shall be levied thereon and a certificate of such levy filed in the recorder's office of the county in which the real estate is situated. Section 29 of article 6 of the Constitution provides that the organization, jurisdiction, powers, proceedings, and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments, and decrees of such courts, severally, shall be uniform. The judgment against Albert F. Lott was not rendered in a case of the first class or a case of the second class, and came within The municipal court of Chicago was created after the adoption of section 34 of article 4 of the Constitution, which, in contemplation of the creation of the court, provided that if the General Assembly should create such a court it might abolish the offices of justices of the peace, police magistrates, and constables within the city and limit the jurisdiction of justices of the peace of the county outside of the city to that territory. The primary and leading purpose manifest from the constitutional provision was to create a court with the jurisdiction and functions of justices of the peace and police magistrates and to abolish their offices for the territory within the city. While that was the well-known purpose of section 34 and the occasion for creating the court, the General Assembly saw fit to add to the jurisdiction of justices of the peace and police magistrates jurisdiction in certain classes of cases of more importance in which jurisdiction had been exercised by county and circuit courts. This was done under the provision that the jurisdiction and practice of the court should be such as the General Assembly might prescribe, and in the exercise of its discretion the General Assembly did not give to the municipal court all the jurisdiction of any other court except the courts of justices of the peace and police magistrates. If the municipal court is considered in its entirety, it is impossible to assign to it a place identical with the grade or class of any other court which now exists or ever has existed. The court goes under the generic name of a city court, but it belongs to a specific class different from the city courts created under the general city court act, and is created, not as a part of (264 I11. 206) CITY OF CHICAGO v. MANDEL BROS. (No. 9153.) (Supreme Court of Illinois. June 16, 1914. Rehearing Denied Oct. 7, 1914.) ERS. but as a local court of the city for the purpose of administering the law within the city. People v. Hibernian Banking Ass'n, 245 Ill. 522, 92 N. E. 305. It has none of the more important classes of jurisdiction of circuit courts, including the entire chancery 1. MUNICIPAL CORPORATIONS (§ 60*)—Powjurisdiction, actions for torts where the damages exceed $1,000, as well as ejectment, mandamus, quo warranto and habeas corpus. The municipal court is composite in its nature and jurisdiction, and in the exercise of jurisdiction of the same nature conferred by general laws upon justices of the peace and police magistrates outside of the city it cannot be regarded as of the same class or grade as circuit courts. The authority of a city council to pass an ordinance depends on statute conferring the authority, and any reasonable doubt of its existence must be solved against the right of the city to exercise the power. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 150, 151; Dec. Dig. § 60.*] [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1334; Dec. Dig. § 603.*] 3. MUNICIPAL CORPORATIONS (§ 595*)—OrdiNANCES-POWER OF CITY TO ENACT. 2. MUNICIPAL CORPORATIONS (§ 603*)—ORDINANCES-POWER OF CITY TO ENACT. Under Cities and Villages Act, art. 5, § 1, cls. 61-66 (Hurd's Rev. St. 1913, c. 24, § 62), Justices of the peace cannot render judg-conferring on city councils power to regulate the ments which will be a lien upon real estate construction and use of private buildings to from the time of their rendition, but their guard against fire, and to provide protection against dangerous conditions in respect to fires, judgments only become liens by the filing and to regulate the police of the city or village of a certified transcript in the office of the and pass and enforce necessary police ordinancclerk of the circuit court of the county in es, a city has authority to adopt an ordinance prohibiting the use of more than one floor of which the judgment is rendered. There is any basement for the retail sale of goods, and a similar provision in section 63, with the permitting the use of any sub-basement for exception that the transcript is to be filed dressing rooms, provided that the space thus with the recorder, and no execution issues occupied is separated from the remainder of the basement by fireproof partitions, and there upon the transcript. The execution is issued are at least two flights of stairs placed as far from the municipal court, and it is provided apart as practicable, leading from the first floor, that it shall not be a lien upon real estate inclosed in fireproof partitions, etc., for the ordinance is not intended to regulate the retail until a levy is made and a certificate filed. sale of goods, but to protect the public against It is argued that there is a distinction be- danger from fire. tween the lien of a judgment and the lien of an execution, which is true; but the statute requires two conditions for the creation of a lien upon particular real estate: First, that a transcript shall be filed; and, second, A city, in the exercise of the power conthat an execution shall be levied and a cer- ferred by Cities and Villages Act, art. 5, § 1, cl. tificate filed. Both of the provisions are 66 (Hurd's Rev. St. 1913, c. 24, § 62), authorexpressed in the negative, and the only pro-izing councils to regulate the police of the cities or villages, and to pass and enforce necessary cess for executing a judgment is by issuing police ordinances, must confine itself within the an execution and making a sale of property scope of its municipal functions, and to the subby virtue of it. The General Assembly prob- jects designated in its charter; but within such ably had in mind the Justices' Act in pro-and safety of its inhabitants are within the po limitations regulations necessary to the health viding for filing a transcript and making a judgment a lien upon real estate, but, instead of providing that execution might issue thereon, it was provided that there should be no lien until an execution should be levied and a certificate filed. The provisions, as applied to jurisdiction like that given to justices of the peace and police magistrates, are quite similar to the provisions governing sales of real estate under judgments of justices of the peace and police magistrates, differing, however, in the office where the transcript is to be filed and the authority issuing execution. The provision which is alleged to be void is not subject to any objection which has been made to it in this case. The decree of the superior court is reversed, and the cause is remanded to that court, with directions to grant the relief prayed for in the bill. lice power, and the council may pass all reasonable ordinances for the health and safety of the inhabitants. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1321, 1322; Dec. Dig. § 595.*] 4. MUNICIPAL CORPORATIONS (§ 625*)-ORDINANCES-VALIDITY. retail sale of goods on a floor more than 20 feet A municipal ordinance, which prohibits the below the street grade, but which permits the use of 12 stories above the street for the retail sale of goods, and permits the use of stories above the twelfth, if equipped with an approved automatic sprinkler system and inclosed stairways, is not unreasonable, so far as it applies to the basement, as against the objection that a the street, since that was a question for the basement may be made as safe as any floor above council adopting the ordinance. [Ed. Note.--For other cases, see Municipal Corporations, Cent. Dig. §§ 1378, 1379; Dec. Dig. § 625.*1 5. MUNICIPAL CORPORATIONS (8_625*)-ORDINANCES-VALIDITY-JUDICIAL QUESTIONS. Where an ordinance enacted to promote Reversed and remanded, with directions. public safety is adapted to the object sought, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes and is not manifestly unreasonable, the court will not adjudge it unreasonable. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1378, 1379; Dec. Dig. § 625.*] 6. CONSTITUTIONAL LAW (§ 208*)-CLASS LEGISLATION ORDINANCES - VALIDITY JUDICIAL QUESTIONS. the kind, and because this particular ordinance is unreasonable. [1-3] It is argued that the city council has no power to enact an ordinance regulating the retail sale of goods; but it seems reasonably apparent that this is not such an ordinance, but is a police ordinance, having for its object the protection of the public against danger from fire in places where people are likely to assemble in great numbers. Evidence in regard to the ventilation and sanitary condition of the basement and sub-basement was not material, for the ordinance was not aimed at those conditions. [Ed. Note. For other cases, see Constitutional The authority of the city council to pass any Law, Cent. Dig. §§ 649-677; Dec. Dig. § 208.*]| ordinance must be found in some act of the Error to Municipal Court of Chicago; John R. Caverly, Judge. An ordinance prohibiting the retail sale of goods on a floor more than 20 feet below the street grade, but permitting the use of the first 12 stories above the street for such business, and the use of stories above the twelfth, if properly equipped, is not invalid as class legislation, merely because it is limited in its application to department stores, for the classification is not arbitrary. Mandel Bros. were charged with violating an ordinance of the City of Chicago, and there was a judgment adjudging the ordinance invalid, and the City brings error. Reversed and remanded. William H. Sexton, Corp. Counsel, and James S. McInerney, Pros. Atty., both of Chicago (J. Henry Kraft, Leon Hornstein, and Charles M. Haft, all of Chicago, of counsel), for plaintiff in error. Tolman & Redfield, Howard W. Hayes, and Henry P. Chandler, all of Chicago, for defendant in error. DUNN, J. In an action for the violation of an ordinance of the city of Chicago the municipal court held invalid the following provisions, being paragraphs (b) and (c) of section 480 of the ordinances of the city: "(b) Not more than one floor of any basement or cellar shall be used for the retail sale of goods. Such floor shall be the floor nearest to the inside street grade. Such floor used for the retail sale of goods shall not be more than twenty feet below the inside street grade. "(c) No sub-basement, cellar or part of a basement below such floor shall be used for the sale of any goods in any manner, but locker and dressing rooms may be placed in the sub-basement, provided the space thus occupied be separated from the remainder of the basement by fireproof partitions, and that there be at least two flights of stairs, placed as far apart as practicable, leading therefrom to the first floor, inclosed in fireproof partitions. Such stairs from such locker or dressing rooms shall be in addition to other stairways required by this chapter for such buildings, and at least one of Buch stairways shall open directly on a street, alley or court opening on a street or alley, or on a fireproof passage leading to the street, alley or such court. Where more than five lockers are in one room such lockers shall be of incombustible material." The city sued out a writ of error from this court; the trial judge having certified the public interest so required. Legislature. Such authority is always strictly construed, and any reasonable doubt of its existence must be solved against the right of the municipality to its exercise. City of Chicago v. Ross, 257 Ill. 76, 100 N. E. 159, 43 L. R. A. (N. S.) 205. The Legislature has conferred upon city councils power to regulate the construction and use of private buildings, to guard against the calamities of fire, and to provide protection against dangerous conditions in respect to fires. The provisions conferring such power are found in clauses 61 to 65 of section 1 of article 5 of the Cities and Villages Act (Hurd's Rev. St. 1913, c. 24, § 62). While they do not, in terms, confer express authority to enact the ordinance in question, they do impose upon the council a duty in the protection of the public from the danger of fires in private buildings growing out of the manner of construction and use of such buildings. The protection of the public against such danger is a subject thus delegated to the municipality. Clause 66 gives the council authority "to regulate the police of the city or village and pass and enforce all necessary police ordinances." We have held that this clause is not a delegation of all the police powers of the state, and that municipalities, in the exercise of the police power, must be confined within the scope of municipal functions and to the subjects designated in their charters. City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753. Within such limitations regulations necessary to the health and safety of the inhabitants of the city are within the police power of a municipality, and the necessary police ordinances which the city council may pass include all reasonable ordinances conducive to the promotion of the health and safety of such inhabitants. City of Chicago v. Kluever, 257 Ill. 317, 100 N. E. 915; Spiegler v. City of Chicago, 216 Ill. 114, 74 N. E. 718. By virtue of the authority to pass necessary police ordi The defendant in error violated the ordinances granted by clause 66, an ordinance nance, and the only question presented is its validity. The defendant in error contends that the ordinance is void, both because the city had no power to pass any ordinance of which prohibited the keeping open of places of business on Sunday for the sale of goods, wares, and merchandise was held within the police power of the village in McPherson v. |