Volume 155 — Illinois Reports

Benjamin R. Burroughs, Judge, presiding. This was a bill in chancery, brought by the Toledo, St. Louis and Kansas City Railroad Company, against the Chicago, Peoria and St. Louis Railway Company and others, to restrain the defendants from changing the channel of a natural water-course, to the damage of the complainant’s railroad track and right of way.

<p>Appeal from the County Court of Marion county; the Hon. Charles F. Patterson, Judge, presiding.</p>

Benjamin R. Burroughs, Judge, presiding. At Pinckneyville, Illinois, the appellee was in the employ of appellant as a car repairer, and on January 28, 1892, was employed in repairing a car on defendant’s track known as the repair track. The repair track was parallel with a track known as No. 4,—the switch track.

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.</p>

Silas Z. Landes, Judge, presiding. The appellees are the owners and in possession of lot 329, situated on the north side of Sixth street, in the city of Mt. Carmel, Illinois, near the center, in width, of which lot is located their dwelling house, in which they have resided for about thirty years. On each side of the front of their house, in the street, are two large maple trees, about forty feet high and two feet in diameter.

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

<p>Appeal from the Circuit Court of Iroquois county; the Hon. C. E. Starr, Judge, presiding.</p>

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

<p>1. Mortgages—delivery not proved by a declaration of indebtedness. The delivery of a mortgage, proved to have been signed and acknowledged, is not established by proof of statements made by the mortgagor that he had bought the land of the mortgagee and had a long time to pay for it, in which statements no reference was made to a mortgage.</p> <p>2. Pleading—vendor's lien cannot be established under bill to foreclose mortgage. A vendor’s lien for purchase money cannot be established and foreclosed in an action in equity wherein the bill seeks to establish and foreclose a mortgage alleged to have been made for such purchase money.</p> <p>, 3. Witnesses—competency of am heir in chancery. One who, as an heir-at-law, has an equal interest in each of two estates, is not disqualified, by interest, as a witness in a litigation between the two.</p>

<p>1. Criminal law—court should render judgment upon conviction or plea of guilty. It is the duty of a court, upon the trial of a criminal case, upon conviction or plea of guilty, to pronounce judgment at the term unless the case is continued for further adjudication, and the defendant required, by recognizance or by being held in custody, to further answer the charge.</p> <p>2. Same—jurisdiction lost by indefinite suspension of sentence. Sentence indefinitely suspended, upon plea of guilty, cannot be lawfully imposed by the court more than three years afterwards, during which time the defendant has been permitted to go at liberty without recognizance.</p>

Frank Scales, Judge, presiding. This is an appeal from a judgment of the county court of Cook county, rendered on the application of the county collector, against the lands of Charles W. Boynton, appellant, for the amount of a special assessment ordered by the city of Chicago for the improvement of West Adams street, in said city.

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

Jefferson Orr, Judge, presiding. At the October term, 1891, of the circuit court of Knox county, appellant recovered a judgment against Leander B. Reynolds for the sum of §6149.44, with costs of suit, and sued out an execution, which was placed in the hands of the sheriff, who levied the same on the south-west quarter of section 13, in Galesburg township, Knox county, Illinois, on the 12th day of December, 1891.

<p>Negligence—contributory—when freedom from is not proved. Freedom from contributory negligence by a plaintiff is not established, in an action for personal injuries received by stepping into a large hole in the floor of a barge while unloading it, where it appears such hole was clearly apparent and that the plaintiff had been working near it some hours, although he testified he did not know the hole was there.</p>

Joseph P. Robarts, Judge, presiding. This case, with one of the same appellant against Fannie Massey, administratrix, was submitted to this court at the May term, 1894. The titles of both cases were placed at the head of the same statement, etc., and both cases were referred to in the same brief.

<p>1. Evidence—burden of proof to show good faith in dealing with ward. The burden of proof rests upon the wife of a guardian, to whom the ward, within a few days after attaining her majority but before the termination of the guardianship, conveyed real estate for an inadequate compensation, to. show good faith, absence of influence by the guardian and knowledge of and free consent to the transaction by the ward, especially where the grantee stood in loco parentis to the ward.</p> <p>2. Guardian and ward—when ward need not refund consideration. The repayment by a ward of money received for an invalid conveyance of land which her guardian induced her to make to his wife, will not be imposed as a condition of canceling the conveyance, where the guardian owes the ward a large sum, on which the amount can be credited.</p> <p>3. Same—right of grantee of ward to cost of improvements. A grantee of real property, chargeable with notice of the infirmity of her title by reason of the improper influence of a guardian in procuring the execution of the deed, is not entitled, upon its cancellation, to reimbursement for the cost of permanent improvements made upon the property, but the court may, in the exercise of its equity powers, protect the indebtedness incurred for improvements upon the property, upon the theory that it has been benefited and that the ward will receive an advantage thereby.</p> <p>4. Same—ward not chargeable with improvements made without authority. The estate of a ward cannot be incumbered or charged with the cost of improvements made upon the estate during his minority, and without authority of the probate court, where he elects to repudiate all liability therefor.</p> <p>5. Tenants in common—when a tenant in common must account for rents. A tenant in common who occupies premises to the exclusion of his co-tenants, must account to them for their share of the rental value of the premises.</p>

<p>Parties—foreclosure of lien for drainage assessment. A bill to foreclose the lien of a special assessment made by a drainage district should be prosecuted in the name of the People of the State of Illinois, for the use of the drainage district, and not in the name of the drainage district. Gauen v. Moredock and Ivy Landing Drainage District No. 1, 131 Ill. 446, followed.</p>

<p>1. Constitutional law—right to labor and employ labor is a prop erty right. The right to labor or employ labor, and make contracts in respect thereto, upon such terms as may he agreed upon, is hotlia liberty and a property right, and is included in the guaranty of section 2, article 2, of the constitution, that no person shall be deprived of life, liberty or property without due process of law.</p> <p>2. Same—right to contract cannot be arbitrarily interfered with. While' the right to contract may be subject to limitations growing out of the duties which the individual owes to society, the power of the legislature to limit such right must rest upon some reasonable basis, and cannot be arbitrarily exercised.</p> <p>3. Same—statute prohibiting women to work more than eight hours, invalid. The act of 1893, prohibiting the employment of females in any factory or workshop for more than eight hours a day, is unconstitutional, as being partial and discriminating in its character, whether applying only to manufacturers of wearing apparel or to manufacturers generally.</p> <p>4. Same—such a statute violates the fundamental rights of the citizen. Such a statute is also unconstitutional as an arbitrary restriction upon the fundamental right of the citizen to control his or her own time and faculties, and a substitution of the legislative judgment for that of the employer and employee in a matter about which they are competent to agree with each other.</p> <p>5. Same—imposing unreasonable burden upon citizen. The legislature, in imposing an unreasonable burden upon any one citizen or class of citizens, transcends the authority entrusted to it by the constitution, although it imposes the same burden upon all other citizens.</p> <p>6. Same—limits of the police power of the legislature. Statutes must not conflict with the constitution, and where their ostensible object is to secure the public comfort, welfare or safety they must appear to be adapted to that end, and cannot invade the rights of persons and property under the guise of a police regulation.</p> <p>7. Same—appropriateness of police measure is a judicial question. It is the province of the courts to determine whether a statute purporting to be an exercise of the police power of the State, hut taking away the property of a citizen or interfering with his personal liberty, is an appropriate measure for the promotion of the comfort, safety and welfare of society.</p> <p>8. Same—act of Jume 17,1893, not valid as a police measure. Said act of June 17,1893, cannot be sustained as a police regulation on the ground that it is designed to protect women, as sex will not alone justify the exercise of the police power for the purpose of limiting the right of a woman to make contracts.</p> <p>9. Statutes—prohibition of employment operates on both parties. A statute providing that no female shall be employed in any factory or workshop more than eight hours in any one day or forty-eight hours in any one week, prohibits both the employer and the employee from contracting with each other with reference to the hours of labor.</p> <p>10. Same—matters enumerated in title control general words. A statute entitled “An act to regulate the manufacture of clothing, wearing apparel and other articles,” etc., and providing in its body that no female shall he employed in any factory or workshop more than eight hours a day, will embrace only employment in the manufacture of articles of the same kind as those expressly enumerated.</p> <p>11. Same—containing two subjects, both expressed, void. A statute containing two distinct subjects, both of which are expressed in the title, is wholly void, under section 13, article 4, of the constitution, which declares that no act shall embrace more than one subject, and that shall be expressed in the title; but if any subject he embraced which is not expressed in the title, the act is void only as to so much thereof as is not so expressed.</p> <p>12. Same—-factory inspectors are officers of the government. Factory inspectors provided for in the act of June 17,1893, are officers of the government, within the provision of the constitution, which declares that bills making appropriations for the salaries of such officers shall contain no provisions on any other subject.</p> <p>13. Same—act to regulate factories may appropriate for salaries. A statute regulating factories and providing for the appointment of factory inspectors is not invalidated by the inclusion within it of an appropriation for the salaries of such inspectors, under section 16, article 4, of the constitution, as such appropriation is merely subordinate to the main purpose of regulating factories.</p> <p>14. Same—words of title of statute construed. The title, “An act to regulate the manufacture of clothing, wearing apparel and other articles in this State, and to provide for the appointment of State inspectors to enforce the same, and to make an appropriation therefor,” does not express two subjects, one of which is an appropriation for salaries, because the words “appropriation therefor,” do not necessarily imply that the appropriation is for salaries, but may be for the payment of expenses.</p> <p>15. Same—appropriation for salaries in act of Jwne 17,1898, invalid. The appropriation in the act of June 17, 1893, for the salaries of factory inspectors, is a subject not expressed in the title, and is void, under section 13, article 4, of the constitution, declaring that if a subject shall be embraced in an act which is not expressed in' the title, the act shall be void as to so much thereof as is not expressed.</p>

Theodore Brentano, Judge, presiding. On the first day of September, 1890, a written agreement between appellants and appellee was entered into, under the terms of which appellee agreed to sell to appellants certain land, and convey the same to them or their assigns by a good and sufficient warranty deed conveying good title to the same, for the price and consideration of $17,000, a part of which was to be paid cash in hand and a part thereof to be in deferred payments.

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.

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

Writ of Error to the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.

<p>1. Appeals and ekbobs—dismissal of necessary parties after a demurrer is sustained. The ruling of the trial court sustaining a demurrer to a hill must he sustained by the Appellate Court, in any event, where, subsequently to the ruling, the bill has been voluntarily dismissed by the complainant as to necessary parties, whose omission would have been a ground of demurrer.</p> <p>2. Pabties—when a county is a necessary defendant. A county is a necessary party to a bill in equity to have declared null and void the action of its board of commissioners in fixing the amount to be paid by the county for dieting prisoners at its jail.</p>

<p>1. Notice—publication “for two successive weeks” before term—what is. Publication once in each of two successive weeks complies with an order that notice of a divorce action be given by publishing a copy “for two successive weeks before the term of court to which the same is made returnable,” and it is not essential that the full period of two weeks elapse before the first publication and the commencement of the term.</p> <p>2. Domicil—residence not lost by absence in naval service. The residence of one’s origin is not lost, for the purpose of a petition for divorce, by reason of special duties out of the State, in the naval service, during a portion of the necessary time, even though during part of the time the petitioner kept house with his wife in another State.</p> <p>3. Decrees—of court of another State—impeaching for fraud. A decree of divorce granted in another State will not be held void on the ground that the court was deceived as to the existence of jurisdictional facts, where the evidence by which the fraud is attempted to be shown is conflicting and unsatisfactory.</p>

Richard S. Tuthill, Judge, presiding. Appellee brought its action of assumpsit against appellants to recover for milk sold and… Held: “The defendant O. O. Ford submits to the court, and asks the court to hold as a proposition of law, upon the testimony shown in this case : The plaintiff, at the time of the sale and delivery to the said defendant of the goods and merchandise, viz., a certain quantity of milk by the plaintiff sold to the defendant, was a corporation…

<p>Appeal from the County Court of Kane county; the Hon. D. B. Sherwood, Judge, presiding.</p>

<p>1. Trial—subsequent exclusion of evidence wrongly admitted. The admission of incompetent evidence may be cured by its subsequent exclusion from the jury.</p> <p>2. Same—court need not give instruction more than once. Requested instructions fully covered by instructions already given are properly refused.</p> <p>3. Appeals and errors—variance must be pointed out at trial. The objection, in an action for the death of a minor, that the declaration alleged as next of kin his father, mother, two brothers and five sisters, and that there was proof only of father and mother, must be made in the trial court, to be available on appeal.</p> <p>4. Same—presumption that jury followed the evidence. It will be presumed, on appeal from a judgment for the death of a minor, that the jury did not consider any loss to any next of kin not proved to be in existence.</p> <p>5. Same—question of damages cannot he reviewed. The question whether the damages awarded were excessive cannot be reviewed by the Supreme Court.</p>

This is an original proceeding for mandamus, to compel S. P. McConnell, one of the judges of the circuit court of Cook county, to hear and determine upon its merits a motion for a new trial, Judge Driggs, before whom the cause was tried, having died after the trial and before disposition of the motion. This is the second application, the writ upon the former proceeding having been denied. People ex rel. v. McConnell, 146 Ill. 532.

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

John D. Crab-tree, Judge, presiding. This is an action for personal injuries, received by appellee through the alleged negligence of appellant. The case was before the Appellate Court for the Second District. The opinion of that court, when the case was first heard, is reported in 42 Ill. App. 178, and the judgment, which was for §5000, was reversed and the cause remanded.

<p>Appeal from the County Court of Will county; the Hon. Benjamin Olin, Judge, presiding.</p>

W. G. Ewing, Judge, presiding. This is a bill for divorce, filed by appellee, against appellant, July 28, 1893.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. S. P. McConnell, Judge, presiding.</p>

<p>1. Public improvements—the estimate of cost must he made under the ordinance. An assessment for a local improvement is invalid where the estimate of the cost does not appear to have been made under the ordinance for such improvement, but under some former ordinance.</p> <p>2. Same—when writ of error will reach defects. Insufficiency of the proceedings upon a special assessment for a public improvement to support a judgment against land may be taken advantage of on writ of error, where such insufficiency appears upon the face of the record.</p>

Elbridge Hanecy, Judge, presiding. This was an action brought by the Dueber Watch Case Manufacturing Company, on the first day of August, 1889, in the circuit court of Cook county, by attachment, against Max Young, to recover $2545.79 for goods sold and. delivered.

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

S. P. McConnell, Judge, presiding. This was a proceeding in the circuit court of Cook county, upon the verified petition of R. S. Britton, appellee, praying the issuance of a writ of certiorari, as at common law, to bring before said court, 'for the purpose of determining the legality thereof, certain proceedings under division 8 of the Criminal Code, had before E. T. Glennon, a justice of the peace of the town of South Chicago.

<p>Appeal from the County Court of Cook county; the Hon. Prank Scales, 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. S. P. McConnell, Judge, presiding.</p>

<p>1. Public improvements—question whether an improvement is “local” may he reviewed. While the decision of municipal authorities as to what mode of taxation shall be adopted to pay for a local improvement is a matter of discretion which cannot be reviewed by the courts, the determination as to whether an improvement is or is not local, within the powers conferred by the constitution and statutes, may be reviewed. Louisville and Nashville Railroad Co. v. East St. Louis, 134 Ill. 656, explained; Bloomington v. Chicago and Alton Railroad Co. id. 451, followed.</p> <p>2. Same—verdict is not conclusive that improvement is “local.” The verdict of a jury that property is specially benefited by an improvement is not conclusive that the improvement is a “local” one, which may be paid for by special assessment, where the question of the power of the municipal corporation to make such improvement by special assessment was, by consent, reserved for decision, without prejudice, until after determination of the issues submitted to the jury.</p> <p>3. Same—water-works for fire purposes are not a local improvement. The construction of a water-works plant for fire purposes and the use of the inhabitants of a village, other than pipes and such portion of the system as are local in their character and nature and of special benefit to particular property, is not a local improvement which can be paid for by special assessment,—especially in view of the statute expressly empowering villages to levy and collect a general tax for the construction of water-works. People v. Sherman, 83 Ill. 165, distinguished.</p> <p>4. Trial—power of court to dismiss petition for special assessment after verdict. Where the question whether an improvement is local in its character and can be made by special assessment, is, by consent, reserved until after verdict, the court may, upon determining those questions in the negative, refuse to allow a motion for judgment on the verdict, and dismiss the petition without in terms setting the verdict aside, such action being, in effect, a vacation of the verdict.</p>

<p>Taxes—objection to tax must specify particular cause. An objecti°n to a school tax must, under chapter 120, section 191, of the Revised Statutes, specify, in writing, the particular cause of objection.</p> <p>2. Schools—tax for school pu/rposes cannot exceed two per cent. An amount extended as a tax for school purposes in excess of two per cent must be abated, under the statute providing that no more than two per cent for educational purposes, on the valuation of the last assessment, can be legally levied, although the certificate of the directors may require more than such per cent.</p> <p>3. Same—erroneous certificate by directors does not invalidate school tax. A certificate of school directors to the township treasurer for the purpose of the extension of a school tax, that $2 on each $100 for teaching, and $1.50 on each 55100 for building and repairs, on the taxable property of the district, is required for the year, though improper, as not giving the amount of revenue required, states, in effect, how much money must be raised, and will not invalidate the tax to the amount of the two per cent allowed by law.</p> <p>4. Same—certificate of directors does not govern county clerk. While the directors’ certificate is the basis of a school tax, and essential to its validity, the amount fixed, if it exceeds the statutory limits, does not necessarily control the county clerk in extending the tax.</p>

Writ op Error to the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.

<p>1. Public improvement—¡iudgment confirming special assessment cannot be attacked collaterally. A judgment confirming an assessment for a public improvement, made upon an affidavit of the commissioners that the notice required by law was sent by mail to the owners, cannot be collaterally impeached, on an application for judgment upon a delinquent assessment, by showing that, in point of fact, no notice was sent by mail to the owner.</p> <p>2. Same—abbreviation of name of owner in special assessment. The abbreviated name “Chicago W. Div. R. R. Co.,” in an assessment for a public improvement, sufficiently designates the “Chicago West Division Railway Company.”</p> <p>3. 8awe—affidavit of mailing need not contain copy of notice. An affidavit of the commissioners of mailing a notice to property owners of an assessment for a public improvement need not contain a true copy of the notice mailed.</p> <p>4. Same—xohat will sufficiently show location of stx'eet. An ordinance for a public improvement, showing upon its face that it was enacted by the city council of a certain city, sufficiently shows that the street to be improved is within the limits of the city passing the ordinance.</p> <p>5. Appeals and errors—exception to judgment is not part of record. An exception to a judgment is not part of the record on appeal, when not contained in the bill of exceptions.</p>

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

<p>1. Public improvements—when two or more judgments may be entered for the same assessment. Two or more judgments in relation to the same assessment for a public improvement may be entered, where objections are filed to only part of the real estate assessed, under the statute giving the court power to continue an application for confirmation as to any part of the premises, and providing that where appeals are taken the city shall proceed to collect the residue of assessments not affected.</p> <p>2. Same—jury cannot change assessment where not objected to. An assessment upon lots as to which no objections are filed cannot be changed by the verdict of a jury impaneled in a proceeding for a public improvement, but such attempted change will not affect the verdict as to the issues properly before the jury.</p> <p>3. Same—court may re-cast assessment after default. It is not error for the court to' exercise its right to re-cast an assessment as to all or a part of real estate assessed, by a reference to commissioners for that purpose, although a default has been entered as to one lot and no objection made as to another, as the order amounts to setting aside the default.</p> <p>4. Same—court may allow separate trials to separate objectors. It is within the discretion of the court to allow a separate trial to separate objectors to an assessment for a public improvement, as the proceedings and judgment as to the lots assessed are several, although the right to demand a separate trial does not exist.</p>

<p>1. Evidence—as to value of services in absence of an agreement. In assumpsit for services rendered, evidence of the value of such services is admissible, where there is nothing to show that there was any agreement to pay therefor a particular amount or at a particular rate.</p> <p>2. Same—competency of witnesses to give opinions as to value of services. •Witnesses who testify, the one that she had been a housekeeper for four years and knew the value of a housekeeper’s services, and th'e other that she has been eleven years in the employment business and acquainted with the wages of housekeepers during that time, are competent to state their opinions as to the value of services rendered as a housekeeper.</p> <p>3. Same—presumption that services by member of family were gratuitous—how overcome. The presumption that services rendered by one admitted into the family as a relative were gratuitous, may be overcome by proof, either of an express contract, or of a contract established by such facts and circumstances as show that both parties contemplated or intended pecuniary.recompense other than that naturally arising out of the family relation.</p> <p>4. Same—express contract to pay for services proved by circumstantial evidence. An express contract to pay for services rendered by a member of a family may be proved, not only by direct evidence of an actual agreement and the express words used by the parties, but also by circumstantial evidence, and an implied contract may be proved by circumstances showing that the parties intended to contract, and the general course of dealing between them.</p> <p>5. Instructions—refusal no error if substance is already given. Refusal of a requested instruction is not ground for reversal where its substance is sufficiently embodied in those given.</p>

Lorin C. Collins, Judge, presiding. The bill in this case seeks to enjoin the Western Union Telegraph .Company from using the premises known as the “Phenix Building,” in the city of Chicago, as a telegraph office until the termination of complainant’s lease of a portion of the building, April 30,1898. The material facts are undisputed.

Thomas M. Shaw, Judge, presiding. In this quo luarranto proceeding the circuit court of Peoria county overruled a demurrer to the information, and rendered final judgment of ouster and for costs against Edward H. Durkee, the defendant. An appeal to the Appellate Court for the Second District resulted in a judgment of affirmance. This further appeal was then taken.

Writ op Error to the Superior Court of Cook county; the Hon. W. G. Ewing, Judge, presiding. This is a bill by defendant in error to remove a cloud from his title.

Samuel P. McConnell, Judge, presiding. This case originated and was tried in the circuit court of Cook county.

<p>1. Public imfbovements—county cowt may appoint special assessment commissioners at a probate term. Under the act of June 3,1893, the county court, in a special assessment proceeding, may appoint commissioners at a probate term, although the final hearing to confirm the assessment is at a law term.</p> <p>2. Same—expense cannot be incurred before ordinance is passed. The first step to be taken in making a local improvement to be paid for by special assessment or special taxation, is the passage of an ordinance specifying the nature, character, locality and description of the improvement and the mode in which its cost shall be collected, and no work can be done or expense incurred which can become a charge upon the property of the land owner before such ordinance is passed. Carlyle v. County of Clinton, 140 Ill. 512, and Fast St. Louis v. Albrecht, 150 id. 506, distinguished.</p> <p>3. Same—illegality of amendment does not affect original ordinance. The illegality of an amendment to a valid ordinance for a public improvement, in respect to the mode of assessment and the setting aside of an assessment made thereunder, will not affect the validity of the original ordinance, so as to prevent the levy and collection under it of a special tax to pay the cost of the improvement in the manner provided therein.</p> <p>4. Same—definiteness of time of payment of installments required by ordinance. An ordinance for a public improvement is not rendered so uncertain and indefinite as to the time deferred installments of the assessment are to be paid, as to be void, by providing that the first installment of twenty per cent shall be paid upon the confirmation of the assessment and twenty per cent of the total each year thereafter.</p> <p>5. Same—no right to jury trial in special taxation. No right exists to have the question of benefits passed-upon by a jury, where the proceeding is special taxation of contiguous property, as the imposition of the tax by the corporate authorities is itself a determination that the benefits will be as great as the burden of the improvement, and that such benefits will be so limited or confined to contiguous property that no serious injustice will be done by imposing the whole expense upon it.</p> <p>6. Same—credit may be given for previous void assessment. A property owner specially taxed for a public improvement cannot complain that another owner who had paid a previous void assessment was held not subject to any additional tax, and therefore paid a less rate than was imposed upon the former, as the only party affected is the city, where such owner’s tax is not increased or diminished.</p> <p>7. Same—decision of city covm.cil in special taxation is final. A property owner cannot go behind the action of a city council imposing a special tax for a public improvement, and inquire what benefits, if any, the property owners received on account of the improvement.</p>

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

<p>1. Schools—petition to form a new district—what is. A petition to organize a school district, including all the lands of two old districts and parts of the lands of yet two others, is properly treated as a petition to organize a new district, and not as one to consolidate districts, or to detach territory from one district and add it to an adjacent district.</p> <p>2. Same—petition of two-thirds of voters gives jurisdiction. It is sufficient to give the school trustees jurisdiction to act on such a petition, if it is signed by two-thirds of the legal voters residing in the territory proposed to be organized into such new district, without regard to their particular location within that territory or their relation as residents to the former districts. (Magruder, J., dissenting.)</p>

Dorrance Dibell, Judge, presiding. Bluff street, in the city of Joliet, runs north and south along the base of a hill. Broadway is the next street west, and is on the top of the hill. Hickory street is the next street west of Broadway, and these streets are parallel with each other. Exchange street runs west from Bluff street, and intersects Broadway and Hickory.

Oliver H. Horton, Judge, presiding. The subject matter of this case brings before this court for review a decree of the circuit court of Cook county, which was, on appeal, affirmed by the Appellate Court for the First District.

Thomas M. Shaw, Judge, presiding. This was a bill by appellant, as a judgment creditor of Robert L. Rhea, against appellees, to set aside certain alleged fraudulent conveyances, in aid of an execution upon its judgment.

<p>Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. John Crabtree, Judge, presiding.</p>

<p>1. Insolvency—assignee may move to quash execution against assignor. An assignee for the benefit of creditors may move to quash an execution issued upon a judgment confessed in vacation, against his assignor, and to set aside the judgment, although the general rule is that no one but a party can so move.</p> <p>2. Evidence—that execution was issued before judgment was entered— contradicting record. Upon a motion to quash an execution upon a judgment confessed in vacation and to set aside the judgment, evidence is admissible that the execution was issued and in the hands of the sheriff before the judgment was actually written up, as it does not contradict the record; but further evidence that the judgment was written up two days later than its date and the date of the issuance of the execution, is inadmissible.</p> <p>3. Execution—caomot issue before formal entry of judgment. An execution upon a judgment entered in vacation, which is issued before the formal entry of the judgment in the record, is void, although it has been noted in the judgment- and execution dockets, in the fee book and in the index of the court record.</p>

Kirk Hawes, Judge, presiding. The Northwestern Shoe Company is a corporation organized under the laws of this State, its business being the manufacture and sale of boots and shoes in the city of Belvidere, Boone county.

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

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

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

Ferdinand BookwALTER, Judge, presiding. The following statement, taken from the opinion of the Appellate Court in this case, sufficiently presents the facts and issues tried: “This was assumpsit, by appellants,-against appellee, to recover the price of a certain apparatus for the manufacture of water gas, furnished by the former to the latter under a contract in writing. The appellee pleaded the general issue and four special pleas.

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the.,Circuit Court of Douglas county; the Hon. Edward P. Vail, Judge, presiding.

<p>Appeal from the County Court of Peoria county; the Hon. Samuel D. Wead, Judge, presiding.</p>

<p>Appeal from the County Court of Shelby county; the Hon. Truman Ames, Judge, presiding.</p>

Oscar P. Bonney, Judge, presiding. This was an action of assumpsit by the city of Quincy, against Lorenzo and W. B. Bull, partners, for money had and received by them, for the use of the city. The account filed asked to charge defendants with repayment to the city for over-payment by it on account of putting in thirty-six new hydrants, and of exchanging thirteen old hydrants for a like number of new ones.

<p>Appeal from the Circuit Court of Hancock county; the Hon. Charles J. Scofield, Judge, presiding.</p>

<p>1. Descent—common law rule that citizen cannot inherit through alien, not repugnant to our institutions. The common law rule that one citizen cannot inherit from another where kinship must be traced through a non-resident alien, cannot be rejected as repugnant to our institutions, under a statutory adoption of the.common law, so far as applicable.* </p> <p>2. Same—collateral “next of kin” da not take immediately. A statutory provision that an estate shall descend in equal parts to next of kin does not make the descent to collateral kindred immediate, so as to avoid the effect of alienage of ancestors through whom kinship is traced.</p> <p>3. Common law—repeal of statute abrogating common law—effect. The repeal of a statute which abrogated a common law rule revives that rule.</p>

<p>1. Evidence—harden of proof as to disputed ownership of street. The burden is upon a city to show that land which has been for many years in the open, notorious and undisputed possession of an abutting owner is really a part of a street.</p> <p>2. Same—evidence of acquiescence to overcome recent surrvey. The maintenance of a fence between a lot and the street for many years, and occupying and improving the lot in accordance therewith, with the city’s acquiescence in the boundary line so established by maintaining a sidewalk in accordance therewith, must be given great weight in determining the location of the line, and may properly outweigh a recent re-survey, made on the theory that errors were committed in the original survey.</p> <p>3. Boundaries—actual location of, hy parties, will prevail. The actual location of the boundary between an abutting lot and the street, whether it was in accordance with an error of survey or not, must prevail after lots have been sold and held for many years in accordance therewith.</p> <p>4. Same—/ence may he a controlling monument in determining. A fence which has stood for many years on the line of a street as it was established when originally surveyed, is a fixed monument, which will control the distance between that and the other end of the lot.* </p>

A. S. Wilderman, Judge, presiding. This is an action upon three notes, amounting in the aggregate to $8881.53, all dated “St. Louis, Mo., Oct. 1, 1890,” signed by appellee, payable to the order of D. P. Grier Grain Company at “St. Louis, Mo.,” in 2, 4 and 6 months after date respectively, with interest at seven per cent per annum, and indorsed by the payee therein. Besides the counts upon the notes, the declaration contains the common counts.

<p>1. Fellow-servants—;findings of trial and Appellate Courts conclusive. The finding of a jury, under an issue submitted, that two servants of the same master are not fellow-servants, is, after affirmance by the Appellate Court, conclusive, unless the evidence, with all its reasonable intendments, wholly fails to establish the fact.</p> <p>2. Same—Morando, case, 93 Ill. 303, followed,. Instructions giving the definition of fellow-servants in the language used in Chicago and Northwestern Railway Co. v. Moronda, 93 Ill. 302, are correct. Rolling Mill Co. v. Johnson, 114 Ill. 57, explained, as to the expression “same line of employment.”</p> <p>3. Same—section hand and fence gang on railroad. A member of a section force on a railroad cannot, as matter of law, be declared by the court to be a fellow-servant with members of a fence gang 'working temporarily within the section, where the two forces did not work together or perform the same duties, but were only casually thrown together in going to and returning from their daily labor.</p> <p>4. Trial—what will support jury’s finding as to fellow-servants. On such a state of facts it is not error for the trial court to refuse to withdraw the question of fellow-servants from the jury by an instruction to find for the defendant.</p>

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

<p>Appeal from the Circuit Court of Champaign county; the Hon. Francis M. Wright, Judge, presiding.</p>

George W. Brown, Judge, presiding. This was a special assessment proceeding, in the county court of Cook county, for the construction of a system of sewers in territory lately annexed to Chicago. Objections were filed by appellants to the confirmation, which were overruled, and a trial by jury was had to determine whether or not the property of the objectors was assessed more or less than the benefits, or more or less than its share of the amount assessed.