Volume 136 — Illinois Reports

<p>Appeal from the County Court of Madison county; the Hon. C. L. Cook, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county.</p>

<p>1. Elections—contested election—as to school officers—jurisdiction of county court—the statute construed. County courts are vested by law with jurisdiction to try and determine all contested elections of school officers.</p> <p>2. The act of April 3, 1872, in regard to elections, after appointing Proper tribunals before which contests may be had of the election of certain officers named, provides that “the county court shall hear and determine contests of election of all other county, township and precinot officers, and all other officers for the contesting of whose election ho provision is made.” This, it is held, includes contests of the election of school officers, such officers being of the same class as county, city and township officers.</p> <p>Same—ballot for the same person for two offices which'are incompatible. One may become a candidate and be voted for on the same ballot for two incompatible offices, but if elected to both he will be compelled to elect which office he will accept. The fact that he is voted for for two incompatible offices will not authorize the rejection of the ballots on the ground of uncertainty.</p> <p>4. So where a candidate for the office of president of a board of education had some votes cast for him both for that office and also for the office of member of the same board, it was held, that he was entitled to have such votes as were cast for him for president of the board, counted for him.</p> <p>5. Statute—rule of construction. The rule for the construction of statutes, that a general description following a specific enumeration of objects or things will be held to include only such things or objects as are of the same kind specifically enumerated, does not require the rejection of the general terms entirely. Every part of a statute should, if possible, be upheld, and given its appropriate force and effect.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.</p>

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

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

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

<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. J. G. Wilson, Judge, presiding.</p>

<p>1. Contracts—conditions precedent—compliance therewith—or excuse for non-compliance—to be shown. Compliance with a condition precedent to a right of recovery upon a contract, or excuse for non-compliance, must be averred in the pleadings and established by the evidence in an action upon the contract; and the rule requiring compliance or -excuse for non-compliance with a condition precedent, applies as well "to a proceeding in equity as to a suit at law.</p> <p>2. Same—contract partly printed, and partly in writing—construction. In the case of a contract partly printed and partly in writing, it is only where there is an inconsistency between the printed and written parts that the rule of construction giving the written part a controlling effect, prevails. If effect can be given to both the written and printed matter -that should be done, so that each and every part of the contract shall have some effect.</p> <p>3. Building contract — architect’s certificate—whether necessary. Where provision is made in a building contract, for the'payment of the price, or a portion or portions of such price, upon the certificate or certificates of the architect in charge of the construction of the building, the obtaining or the presentation of such certificate or certificates is a condition precedent to the right to require payment, and such condition must be strictly complied with, or a good and sufficient excuse shown.</p> <p>4. A building contract provided for payment in six installments,— the first three at various stages of the work, the fourth when the building was completed, the fifth thirty days thereafter, and the last six months thereafter, and that in each case of the said payments a certificate should be obtained from the architect that the work was done in strict accordance with the plans and specifications. It. was contended that after completion of the building the architect’s fourth certificate was conclusive as to the character of the work, and no other certificate was necessary to a recovery of the other installments: Held, that the certificate of the architect was necessary as to each and every payment.</p> <p>5. Same—architect’s certificate—sufficiency. Where a building contract requires the contractor, before each payment on the price of the work and materials, to procure a certificate signed by an architect therein named, “to the effect that the work is done in strict accordance with drawings and specifications, and that he considers the payment properly due,” a mere order signed by the architect, addressed to the owner, requesting him to pay a given sum to the contractor, will not conclude the owner. The certificate must be substantially such as the contract calls for.</p> <p>6. Same—architect’s certificate—excuse for not procuring it. Where a building contract makes the architect’s certificate a condition precedent to the payment of the several installments upon the work, an allegation in the bill brought to enforce a mechanic’s lien, that the complainant demanded such certificates of the architect, but. that he, acting in furtherance of a conspiracy with the defendant to cheat and defraud the complainant, fraudulently withheld the same, and a full compliance with the contract in all other respects, is a sufficient charge of fraud, and if sustained by the evidence will be amply sufficient to relieve the contractor from the necessity of procuring the architect’s certificates.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Dorrance Dibell, Judge, presiding.

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

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

John P. Altgeld, Judge, presiding. On May 9, 1883, the Chicago West Division Railway Company recovered a judgment in ejectment, in the Superior Court of Cook county, against appellant, for the premises in controversy, in fee, and a writ of possession was awarded. No writ was in fact issued until May 23, 1884,—a year and fourteen days after the rendition of said judgment.

James A. Creighton, Judge, presiding. This was an action on the case, for slander, brought in the circuit court of Sangamon county, by… Held: used and exercised the office of president of the Illinois Miners’ Protective Association, by appointment of said association, and received and enjoyed therefrom a salary of, to-wit., $100 per month as such president, which said association was then and there, and for a long period theretofore had been, a voluntary association of all…

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Dorrance Dibell, Judge, presiding.

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

<p>Appeal from the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding.</p> <p>Mr. E. A. Otis, and Mr. Edward Maher, for the appellees :</p>

<p>Writ of Error to the Circuit Court of Jefferson county; the Hon. C. C. Boggs, Judge, presiding.</p>

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

John P. Altgeld, Judge, presiding. The following opinion of the Appellate Court contains a sufficient statement of the case: Gary, P. J. “This is an action by the appellee, to recover damages for personal injury sustained by him while employed in the foundry of the appellants.

<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. Lobin C. Collins, Judge, presiding.</p>

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

This was a hill brought by Charles Counselman and others, against Taylor A. Snow and Asahel Gage, to set aside and remove, as a cloud upon the title of complainants, a certain deed executed by Asahel Gage to Taylor A. Snow, purporting to convey certain lots in the subdivision of block 28, in the canal trustees’ subdivision, in Chicago. Gage interposed a general demurrer to the bill, and Snow a plea in bar, which were both overruled.

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

<p>Appeal from the Circuit Court of Stark county; the Hon. T. M. Shaw, Judge, presiding.</p>

<p>1. Special assessment—of the ordinance—how far essential—requisites—and of the requirements under it. A valid ordinance is the foundation of every special assessment proceeding for the improvement of a street.</p> <p>2. Where an ordinance for the improvement of a street is repealed, in part, by a subsequent one, or such ordinance is so changed as to provide for the construction of a viaduct in a certain part of the street, whereby a part of the improvement is abandoned, a special assessment for the whole cost of the work as originally intended will not be sustained.</p> <p>3. An ordinance for the improvement of a street must describe the improvement as made or to be made. If made for the paving of a street, it will not authorize an assessment for the paving of only a part of the street. The property owners can not be specially assessed for the cost of work not intended to be done.</p> <p>Í. A special assessment can not be levied to pay for a part of an improvement required by an ordinance, nor can a special assessment be levied to pay for the whole after a part has been abandoned. The improvement required by ordinance is an entirety, and the abandonment of a part of it is fatal to the whole proceeding.</p> <p>5. While the completion of an entire improvement of a street as ordered may be beneficial to all the property to be assessed therefor, the completion of less than' all may n.ot only be of no benefit to any, but an injury to all, or some part of, the property in front of which the work is required to be done.</p>

Lorin C. Collins, Judge, presiding. Bill by appellant to enj oin appellee from using certain words-in imitation of complainant’s trade name.

James H. Cartwright, Judge, presiding. This was a suit in chancery, brought by Mary Tinker against Alexander D. Forbes, to restrain him from erecting a building on the east half of lot 9, in the south block of the Rockford Water Power Company’s lots, west of Rock River, in the city of Rockford.

Clair county; the Hon. Amos Watts, Judge, presiding. Held: and is still held by the Bank; that the premises so sold to the Bank were reasonably worth $10,000.00 at the time of the sale; that, at the time of the execution of said mortgage and trust-deed and at the time of said sale, said Abend was and still is the president of said Bank; that said premises have never been redeemed by…

<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. John P. Altgeld, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Edward P. Vail, 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. A. N. Waterman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. N. J. Pillsbuby, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Frank Baker, 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. George Driggs, Judge, presiding.</p>

0. H. Horton, Judge, presiding.' This is a hill filed on August 7, 1888, in the Circuit Court of Cook County by the Calumet River Railway Company, one of the appellants herein, against the appellee, Brown and his wife, and the appellant, George R. Davis, the latter being the County Treasurer of Cook County, and also against one Richard C. Dale of Philadelphia, Penn., and four persons, composing the firm of Drexel & Co. of said city of Philadelphia.

Writ of Error to the Circuit Court of Stephenson county; the Hon. James H. Cartwright, Judge, presiding.

<p>1. City ordinances, etc.—publication—in the English language only —the statutes and constitution considered. The act of 1863, amendatory of the charter of the city of Chicago, leaving it to the discretion of the common council whether or not the .ordinances, etc., should be published in some newspaper printed in the German language, was, by necessary implication, repealed by the act of 1867, also amendatory of the city charter, which required such publication in a German newspaper.</p> <p>2. The peremptory requirement in the act of 1867 that publications should be made in a newspaper published in German having the largest daily circulation in the city, was repealed by the general Incorporation law of 1872.</p> <p>3. Clauses 94 and 96 of the general Incorporation law of 1872, speciflying the powers of the city council, are' to be read in the light of section 18 of the schedule of the constitution of 1870, which provides that all laws, etc., shall be published in no other than the English language.</p> <p>4. The matters required by the general City and Village Incorporation act to be published, are of such kind and character that they can not, in view of the constitutional prohibition, be published by a city organized thereunder, at the expense of the tax-payer, in any other than the English language.</p> <p>5. The word “published,” in section 18 of the constitution, which prohibits the publication of laws, etc., in any other than the English language, is used in its ordinary and usual acceptation, and is broad enough to, and does, include publications in newspapers, as well as-those in book or pamphlet form.</p> <p>6. Under the constitutional prohibition (sec. 18 of schedule), a city council has no power to provide, by ordinance or otherwise, for the publication of its ordinances or other proceedings, at the expense of its tax-payers, in any other than the English language, and if it attempts such publication it may be enjoined at the suit of any tax-payer.</p> <p>7. Municipal powers—how derived—limitations. The rule in respect to municipal power is, that unless the power claimed is conferred in express words, or by necessary implication, it does not exist.</p> <p>8. A city council can legislate only because it is authorized to do so by the State, and the ordinances which it passes are local laws, and in one sense are laws of the State. Such ordinances are also legislative proceedings, and the acts of the officers of a city, performed by them in pursuance of their duties, are official acts.</p> <p>9. Costs—on bill to enjoin improper use of public funds. Where, in a suit against a city and a newspaper company, the city is enjoined, at the suit of a tax-payer, from making payment out of public funds to the newspaper company in violation of law, it is improper to require the publishing company to pay all the costs. The costs should be taxed against both defendants,—the city as well as the company.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.</p>

Stipp, Judge, presiding. This was a suit in chancery, brought in the Circuit Court of LaSalle county, by Chase Fowler, assignee of Alonzo S. Black, an insolvent, to obtain a construction of a certain deed executed by Samuel Black and Clarinda Black, his wife, to Alonzo-S. Black, purporting to convey to the grantee an estate in certain lands therein described, and also to remove a cloud from, the title to said land.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.

William Brown, Judge, presiding. Mary L. Davis died April 8, 1889, leaving a will, dated July 25, 1887, and duly probated May 2, 1889. By the will a farm of two hundred acres, in Stephenson county, was devised to Permelia E. Reed, sister of the testatrix, for life, with the remainder to her four children, and also certain chattel property.

<p>Writ of Error to the Circuit Court of LaSalle county; the Hon. Dorrance Dibell, Judge, presiding.</p>

William Brown, Judge, presiding. The original bill in this case was filed April 17, 1879, and was brought by George H. Litch against William B. Litch, Edward S. Clinch, George W. Platt, Nancy Wilbur and others, :for the partition of the south-east quarter of section 21, township 41, north, of range 2, east of the 3d principal meridian, in the county of Ogle.

<p>1. Public parades and processions—ordinance restricting them— whether reasonable and proper. An ordinance of a city which provides that “no parades or processions shall be allowed upon the streets” until a permit therefor shall be obtained from the police department, under a certain prescribed penalty, and requires permits to.specify the route of such parades and processions to be followed upon the streets, is unreasonable, and void.</p> <p>2. Parades and processions upon the streets of a city are not necessarily so productive of danger and disorder as to render them per se the creators of public disturbances, nor are they necessarily nuisances. There is no authority in a city to suppress such demonstrations of all kinds, and under all circumstances.</p> <p>3. Citizens have the constitutional right to “pursue their own happiness,” and on suitable occasions and for lawful purposes, and in a peaceable manner, they may gather together in street parades and processions, if they so desire, provided they do not disturb or threaten the public peace, or substantially interfere with the rights of others.</p> <p>4. Municipal cokpobation—delegation of powers. A city council can not transfer its legislative powers, and the public trust imposed upon it, to a mere executive officer.</p>

<p>1. Eminent domain—measure of damages—as to land not taken. In a proceeding to condemn a strip of land over lots for an alley, the measure of damages to the lots and buildings thereon is the difference in value before and after the" alley is opened, and in determining that question it is proper to take into consideration any special benefits the property not taken will receive by the contemplated improvement.</p> <p>2. Same—burden of proof—as to damages to part not taken. On a condemnation proceeding, the burden of proof is on the land owner to show the damages to the parts of the property not taken.</p> <p>3. Same—new trial—on the evidence—when there has been a personal view. In determining whether or not the verdict of a jury in a condemnation proceeding should be sustained, great weight will be given to the fact that the jury have examined the premises before making their verdict.</p>

M. F. Tuley, Judge, presiding. John Buckingham died testate on August 21, 1881, leaving a widow, Kate M. Buckingham, and three sons, John, Harry and Clifford, and two daughters, Alice B. Morrison, wife of Daniel W. Morrison, and Eva Buckingham. Alice B. Morrison has two infant children, William Morrison and Eva Morrison.

<p>Writ of Error to the Circuit Court of Knox county; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ogle county; the Hon. James H. Cartwright, Judge, presiding.</p>

<p>Writ of Eror to the Circuit Court of Logan county; the Hon. George W. Herdman, Judge, presiding.</p>

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

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

heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding. On the 9th day of June,-1887, appellant passed an ordinance providing for the laying of water-pipes in certain of its streets, to be paid for by special assessment on property benefited, made in accordance with sections 18 to 51, inclusive, of article 9, of the act concerning cities and villages.

<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. Isaac Gr. Wilson, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Clark county; the Hon. E. P. Vail, 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. R. W. Clifford, Judge, presiding.</p>

<p>,1. Special taxation—/or paving a street—of the ordinance—whether sufficiently certain. In a proceeding for the confirmation of the assessment roll of a special tax upon contiguous property for the paving of a street, where the proof shows that the street ordered to be paved by .special taxation is sixty-six feet wide, including the sidewalks of fifteen feet on each side, an ordinance requiring the street to be paved thirty-six feet wide will not be invalid for uncertainty as to the part of the street to which it applies. The thirty-six feet will include all of the street lying between the sidewalks.</p> <p>2. Same—what is contiguous property—so as to be subject to special taxation for street improvements. "Where a street is required to be improved between the sidewalks on either side, land or lots extending, up to the sidewalk will be subject to special taxation to defray the expenses of the improvement, as property contiguous to such street, the .sidewalks, for this purpose, being a part of the street, though not ordered to be improved.</p> <p>3. Use of streets—for railroad purposes—powers of municipality— reserved power as to control over streets. The city of Quincy, under its charter and without any other legislative act, has no power to give consent, or make any contract or adopt any ordinance conferring upon a railroad company the use of its streets, if such consent, contract or ordinance would be to relinquish its own control over such street, or to abandon its duty to keep the same in repair.</p> <p>4. A city does not lose or surrender its power to pave or otherwise improve one of its "streets, by allowing a railway company, by tacit’ consent or by ordinance, to lay down one or more tracks, and to use such tracks for a series of years, in running cars, etc., over the same.</p> <p>5. The power and duty of a city to keep all its streets in a reasonably safe condition for the use of the public are continuing, unless the contrary be indicated by legislative enactment; and the city authorities are made the exclusive judges of the propriety and necessity of exercising such power.</p> <p>6. The right given to a railway company by a city council to lay ¡down and use tracks in one of its streets, is subject to the right of the general public to also use such street. The privilege thus conferred is not exclusive, but must be exercised in common with the general' public. The city may still improve and control such street, and adopt all needful rules and regulations for its management and use, and it can not alien or otherwise dispose of the same.</p> <p>7. The fact that a railway company has for several years been using a part of a public street for railroad purposes, under the permission or grant of the city council, will not deprive the latter of its control over such street or relieve it of its duty to the public; and such city council may require such street to be paved whenever it may be deemed proper, notwithstanding such improvement may temporarily interfere with the .business of the railroad company.</p>

C. B. Smith, Judged presiding. The following statement of facts, taken from the opinion of the Appellate Court, will he sufficient to present the single point arising on this record: “Appellee, a resident of Chicago, made a lease, in writing, to Matthias Klien, of a quarter-section of land in Douglas county, for one year, from March 1, 1886, at a cash rent of $480, payable on or before the first day of January next following, and providing, among other things, that the crops…

<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. Egbert Jamieson, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.

M. F. Tuley, Judge, presiding. This is a bill in chancery, for the partition of certain real estate of which one Bridget Cribben died seized. It appears from the bill that she died testate, in Cook county, July 24, 1861, owning the premises sought to be partitioned, and leaving appellant, her husband, and appellees, Winifred and Peter J. Cribben, only children, surviving her.

<p>Final judgment—in Appellate Court—on error. In case the Appellate Court reverses a judgment of the trial court by default, and remands the cause, with leave to the defendants to plead, the judgment' of the Appellate Court is not such a final judgment as can be reviewed by this court on error.</p> <p>Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Contested election—matters in defense. In a proceeding to contest an election, the defendant may interpose', by answer, any matters which show the contestant is not equitably entitled to the relief sought by his petition.</p> <p>2. Same—resignation of incumbent—and another appointed—rights and remedies of contestant. A township officer whose election was about to be contested, resigned the office, and his successor was appointed and had qualified before suit brought to contest: Held, that as the defendant, who was the person who had resigned, was not claiming the office, the proceeding to contest was improperly brought against him.</p> <p>3. Where one who has been declared elected to an office, after qualifying, resigns, and his successor is appointed before any proceeding is brought to contest his election, the remedy of the other party who desires to contest the election is by quo warranto against the incumbent in office holding by appointment.</p> <p>4. Where a person against whom a quo warranto is filed claims the office by appointment, to fill a vacancy, he must show there was a vacancy at the time of his appointment. If the person resigning the office was not legally elected and qualified as such, his resignation would not authorize the appointment of his successor.</p> <p>5. On quo warranto by a candidate claiming to have been elected to an office by a majority of the legal votes cast, against one appointed to fill a supposed vacancy by the resignation of the candidate receiving a certificate of election, the validity of the election of the latter will be directly involved, and if it appears that the relator received the most legal votes, the court may order a judgment of ouster against the incumbent, and place the relator in office.</p> <p>6. Same—practice—withdrawing exceptions to answer, and leave to reply—discretionary. In a proceeding in the county court to contest an election, the contestant excepted to the answer, which was overruled, and judgment of dismissal entered. After an appeal had been perfected, the contestant at the same term asked leave to withdraw his exceptions and reply to the answer, which the court refused: Held, that the motion was addressed to the sound discretion of the court, and that the refusal of the motion was, under the circumstances, no abuse of discretion.</p> <p>7. Amending the becoed—during the term. The county court has power, at any time during the term in which it enters judgment, to change the same in form or substance; but after a final judgment has been rendered and an appeal has been taken, the party appealing can !not, as a matter of right, claim a change in the judgment or record, but An application for that purpose is addressed to the discretion of the court.</p>

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

Wbit of Eeeob to the Circuit Court of Cook county; the Hon. Lobin C. Collins, Judge, presiding. Plaintiff in error filed his bill in chancery in the circuit court of Cook county on January 6, 1888, claiming to own in fee lots 2, 25, 26 and 27, in block 2, of Yerby’s subdivision .of the north half of the north half of the north-west quarter of section 15, town 38, range 14, east of the third principal meridian, in Cook county.

T. M. Shaw, Judge, presiding. This is an action by appellee, against appellant, seeking to charge it, as a common carrier, with the loss by fire of four freight cars. The facts are, briefly, that appellant is a railroad company, owning a line of road from Pekin to Peoria, with large terminal facilities at the latter city, with various tracks leading from its own and other railroads, to industries in and about the city.

<p>1. Criminal law—murder—malice defined. Upon the trial of one charged with murder, it was held, express malice is that deliberate intention unlawfully to take the life of a fellow creature which is manifested by external circumstances capable of proof. It is implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned arid malignant heart.</p> <p>2. The fact that shortly previous to the- killing, the deceased and defendant were good friends, is not, under many circumstances, inconsistent- with the existence of malice in the mind of the accused. Hatred or ill-will toward the person killed need not exist in the mind of the slayer for any considerable length of time, in order to constitute malice aforethought.</p> <p>3. Sam—homicide—matters in mitigation—burden of proof. "Where the killing of a human being is proved', the burden of proving circumstances in mitigation is upon the accused, unless the proof on the part of the prosecution sufficiently manifests- that the crime only amounts to manslaughter.</p> <p>4. Same—self-defense—an instruction construed?—as, whether holding danger must be actual or only apparent. An instruction on the trial of a person under an indictment-for murder, that justifiable homicide is the killing of a human being in necessary self-defense, or under circumstances sufficient to excite the fears of a reasonable person, and induce him, as a reasonable person, to believe that in order to save his own life or prevent him from receiving great bodily harm it was necessary to take the life of the person killed, is not subject to the objection that it leaves the jury to infer that self-defense can only be established by proof of actual danger.</p> <p>5. Same—witnesses—names not on indictment. There is no requirement of the law of this State that the names of the witnesses for the prosecution shall appear on the back of the indictment, except those who testify before the grand jury. The defendant is entitled to reasonable notice of the witnesses who will appear against him, and in cases of felony, to a list of such witnesses, at the time of his arraignment. But the court, in the exercise of a sound discretion, may allow other witnesses to be called by the State.</p> <p>6. Same—witness present and hearing testimony of other witnesses. It is no valid objection to a witness called by the People in a criminal case, that he was in the court room and heard the testimony of other witnesses, when his presence was not contrary to the order of the court, and even if he remained in court contrary to such an order, that would not disqualify him as a witness.</p> <p>7. Same—evidence—limiting cross-examination. On the trial of one for murder, the court may reasonably limit the attorneys for the defense in their cross-examination of certain witnesses for the People.</p>

<p>Appeal from the County Court of Adams county; the Hon. B. F. Berrian, Judge, presiding.</p>