Volume 159 — Illinois Reports

Writ op Error to the Circuit Court of Hamilton county; the Hon. C. C. Boggs, Judge, presiding. John Campbell, the plaintiff in error, and Nancy Cook, the prosecuting witness, were jointly indicted at the February term, 1894, of the Hamilton circuit court, for the murder of the newly born babe of the said Nancy. Campbell alone was tried.

<p>Writ of Error to the Appellate Court for the Second Districtheard in that court on writ of error to the Circuit Court of Warren county; the Hon. Arthur A. Smith,. Judge, presiding.</p>

Writ of Error to the Circuit Court of Effingham county; the Hon. Silas Z. Landes, Judge, presiding. An action of ejectment was brought at the October term, 1893, of the Effingham circuit court, by defendant in error, against plaintiffs in error, to recover possession of the south-west quarter of the south-east quarter of section 19, township 7, north, range 7, east of the third principal meridian.

<p>Appeal from the Circuit Court of Macoupin county; the Hon. Egbert B. Shirley, Judge, presiding.</p>

<p>1. Appeals and errors—amount involved in appeal to Appellate Court controls jurisdiction. An amount in excess of 11000, involved on an appeal to the Appellate Court, will sustain an appeal to the Supreme Court, notwithstanding a remittitur in the Appellate Court reducing the judgment below that amount.</p> <p>2. Carriers—liable for failure to furnish suitable refrigerator cars. Negligence in failing to provide a safe and suitable refrigerator car in which to transport hams renders the carrier liable to the owner thereof, although the car was inspected by a packing company from whom he bought the hams, if the inspection was made by that company as agent of the carrier and not of the consignee.</p> <p>3. Same—effect of provision limiting carrier’s liability. A clause in a bill of lading limiting liability “for decay of perishable articles, or injury by heat or frost,” does not relieve the carrier from liability for its negligence in furnishing a defective refrigerator car for the transportation of hams.</p> <p>4. Same—shipper must assent to clause limiting carrier’s liability. Provisions in a bill of lading restricting a carrier’s liability do not bind the shipper unless he accepted the bill of lading and understood and assented to such provisions.*</p> <p>*A note on the right to limit amount of liability of a carrier in cases of negligence is found with Ballou v. Earle, (R. I.) 14 L. R. A. 433.</p>

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

<p>1. Vendor and purchaser—right of forfeiture may be waived by-conduct. The right to declare a forfeiture of a contract for real property because of non-compliance with its terms in making prompt payment, where time is of the essence of the contract, may be waived by conduct of the vendor in dealing with the vendee.</p> <p>2. Same—right of forfeiture once waived cannot be insisted upon without specific notice. A definite and specific notice of an intention to insist upon a forfeiture of a contract for real property is necessary before the forfeiture can be declared, when the right to declare it has been waived or temporarily suspended by electing not to enforce it.</p> <p>3. Contract—effect of refusal of tender on ground of forfeiture. The-refusal to accept a tender of performance of a contract, based solely upon a claim of forfeiture, makes it immaterial whether such, tender strictly conformed to the contract.</p> <p>4. Appeals and errors—point that remedy is at law will not be first heard on appeal. The existence of a remedy at law cannot be set up, on appeal, to defeat an injunction, when it was not presented by way of demurrer or answer to the bill.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William G. Ewing, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Randolph county; the Hon. George W. Wall, Judge, presiding.</p>

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

<p>1. Homestead—does not pass by deed from husband to wife. A deed by a husband to his wife, in which she does not join, conveying lands, which embrace the homestead occupied by the family, is a nullity to the extent in value of the $1000 homestead, where possession of such homestead remains with the grantor.</p> <p>2. Same—title descends to heirs notioithstanding unsuccessful attempt to-convey. Notwithstanding such conveyance, title in fee to the extent of the $1000 homestead remains in the grantor, and on his death descends to his heirs, subject only to the homestead and dower rights of the widow.</p> <p>3. Same—attempt by widow to convey homestead—effect. An attempted conveyance of such homestead by the widow of such grantor, after his death, is a nullity, she having no title to convey; and, for the same reason, a mortgage given by her thereon creates no lien.</p> <p>4. Same—homestead and dower cannot be conveyed before assignment. A widow’s homestead and dower rights cannot be conveyed by her until they have been assigned.</p> <p>5. Same—present value of lands is taken for homestead purposes. In a proceeding by the children and heirs of a deceased grantor to set off a homestead attempted to be conveyed by him by a deed which, as to the homestead, was a nullity, it is proper for the commissioners to fix the quantity of land constituting the homestead by the present value thereof, instead of the value it had when the father died.</p> <p>6. Appeals and errors—objection to report of commissioners must be made in trial court. Objection by those entitled to a homestead, that the commissioners did not set off a sufficient quantity of land, will not be considered, on appeal, where no exception was taken to the commissioners’ report in the trial court.</p>

Robert B. Shirley, Judge, presiding. The material facts of this case, as stated by the Appellate Court, are as follows: “This is a suit brought before a justice of the peace by appellee, against appellant, to recover the value of a horse which was struck and killed on defendant’s track upon a bridge, by the engine of a moving train operated by the servants of defendant.

<p>Appeal from the Circuit Court of Richland county; the Hon. Silas Z. Landes, Judge, presiding.</p>

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

<p>Writ op Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

William E. Nelson, Judge, presiding. This was a proceeding in the county court of Macon county to contest the election of appellant to the office of president of the board of trustees of the village of Warrensburg, in the county of Macon. Appellee, Albert, who was the then incumbent of said office, and appellant, Beall, were rival candidates at the village election held on the 17th of April, 1894.

B. R Burroughs, Judge, presiding. The original bill in this case was filed by appellant against Susan White, Joseph I. White, and certain tenants occupying the premises hereinafter mentioned, to foreclose a mortgage, dated August 23,1889, executed by said Susan White to appellant to secure two notes of .same date, each for $4425.00, upon certain premises in Salem, Marion county, described as lot 1 in block 1, square 4, on the corner of Main and Broadway streets, fronting…

<p>Appeal from the County Court of Sangamon county ; the Hon. Charles P. Kane, Judge, presiding.</p>

<p>1. Municipal corporations—ordinances which unjustly discriminate are void. A city ordinance which unjustly discriminates between persons coming within the same class, and imposes burdens on some from which others are, by its terms, exempt, is void.</p> <p>2. Same—ordinance for licensing liquor dealers void if not uniform. A city ordinance providing a fee for the licensing of wholesale liquor dealers, which, by its terms, does not apply to persons having a retail liquor license under another ordinance of the city, is unjust, unreasonable and void.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Alonzo S. Wilder-man, Judge, presiding.</p>

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

<p>Writ of Error to the County Court of Cook county; the Hon. Frank Scales, Judge, presiding.</p>

<p>1. Insurance—proof of loss—when necessary. To entitle a party-insured to recover for a loss by fire, proof of the loss as required by the policy, both as to substance and time, is necessary, or a legal excuse must be shown.</p> <p>2. Same—effect of stipulation in policy that conditions shall not he waived. A clause in a policy of insurance that no officer, agent or other representative of the company shall have power to waive any provision or condition in the policy, may itself be waived by the company, through its agent.</p> <p>3. Same—agreement that proofs of loss shall not he waived—effect. If the parties agree, by their policy, that there shall be no waiver of proof of loss, they may subsequently change that agreement.</p> <p>4. Same—proof of waiver of condition. It is not necessary, in an action on an insurance policy, to prove an express agreement to waive a condition in the policy, but it may be inferred from the acts and conduct of the insurer inconsistent with an intention to insist upon the strict performance of the condition.</p> <p>5. SAME-rwaréer, in part, of proofs of loss. Where a policy requires a sworn statement, not merely as to the extent of the loss, but also as to the origin and circumstances of the fire, etc., if the company sends its agent to ascertain one fact, viz., the extent of the loss, and he does so, reducing the same to writing, this alone will not waive the sworn statement as to other matters.</p> <p>6. Waiver —when waiver is a question of law. While a question of waiver is usually one of fact and for the jury, yet if there is no conflict in the evidence on that subject it becomes a matter of law, to be determined by the court.</p> <p>7. Estoppel—to insist on performance of condition. Waiver of the condition of a policy by an insurance company outside of a special agreement may be inferred from such a course of conduct on the part of the company as is calculated to lead the assured to believe that the company did not require its performance.</p>

<p>The questions involved in this case are the same as those in Orr v. Hanover Fire Ins. Co. 158 Ill. 149, and the reasoning in that case is applicable here.</p>

<p>Appeal from the County Court of Pike county; the Hon. Edward Doocey, Judge, presiding.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.</p>

Jefferson Orr, Judge, presiding. Appellants filed a bill to set aside a deed made by their father in his life, of date February 10, 1894, conveying to two of appellees 680 acres of land in Pulton… Held: and they (the creditors) insisted that Jacob Brown and Wilcoxen make individual assignments or “turn all their property over for the benefit of their creditors.” Thomas Brown was acting for his ■ father, who was not well and unable to leave his farm.

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

Writ of Error to the Appellate Court for the Third District;&emdash;heard in that court on appeal from the Circuit Court of Champaign county; the Hon. Ferdinand Bookwalter, Judge, presiding.

<p>Appeal from the County Court of Cook county; the Hon. Richard Yates, 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 Montgomery county; the Hon. Jacob Fouke, Judge, presiding. This is a bill filed by defendant in error, the widow of Samnel R. Thomas, deceased, who died testate, against the executors of the will of said testator, with the object and for the purpose hereinafter mentioned.

<p>Appeal from the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.</p>

<p>1. Appeals and errors—appeal in mandamus lies to Appellate Gourt. An appeal from the judgment of the circuit court granting a writ of mandamus to compel a board of supervisors to pay for a bridge, lies to the Appellate Court, and not to the Supreme Court.</p> <p>2. Mandamus—is an action at law. Under the Illinois statute a petition for mandamus is an action at law, and governed by the same rules of pleading that are applicable to other actions at law.</p>

George W. Herdman, Judge, presiding. On the 15th day of May, 1884, appellant’s wife, Julia W. Fry, made her last will and testament, in which she gave, devised and bequeathed unto her husband all her estate, both real and personal, of every description.

Writ of Error to the Circuit Court of Moultrie county; the Hon. Howard P. Vail, Judge, presiding. This is a bill filed on July 2,1891, by plaintiffs in error, the grandchildren and only heirs-at-law of Ira A. A. W. Camfield, against the defendants in error, William G-. Cam-field and John Millizen, to redeem certain lands from a sale on foreclosure of a mortgage.

<p>In all its substantial features this case is similar to Wadlow v. Oity of Chicago, (ante, p. 176,) and the judgment herein is affirmed for-the reasons stated in that case.</p>

<p>Appeal from the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.</p>

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

<p>Writ of Error to the County Court of Cook county; the Hon. O. N. Carter, Judge, presiding.</p>

<p>1. License—ordinance which discriminates between persons is void. An ordinance providing that persons who “temporarily reside in” a municipality must obtain a license before they can sell goods in a certain manner, is invalid, by reason of its discrimination against non-residents.</p> <p>2. Same—when an ordinance against itinerasit merchants is valid— inter-State commerce. An ordinance of a city of Illinois for licensing itinerant merchants is not invalid, as a regulation of inter-State commerce, as applied to one who purchases for re-sale bankrupt stocks in whatever State he can obtain them, when it makes no discrimination between merchants whose goods are imported and those whose goods are not imported, and does not impose any burden on sales in original packages brought into the State.</p> <p>3. Same—what is an “itinerant merchant." An ordinance requiring itinerant merchants to pay a license fee is not limited to peddlers, but applies to a merchant who takes his stock of goods from city to city, doing business for a few weeks only in each place.</p> <p>4. Same—license of ten dollars per day is burdensome, and void. A license fee of ten dollars for each day’s business carried on by an itinerant merchant, without any discrimination on account of the extent of business or the length of time it may be carried on, is invalid, because unnecessarily burdensome, and in general restraint of trade and prohibitory of the business.</p> <p>5. Costs—city not liable for, in suit to enforce ordinance. A city is not liable for costs in a suit to enforce an ordinance.</p>

<p>Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>1. Change op venue—“convenience” of county is discretionary—review. The question what is a “convenient county,” within the meaning of the statute, (Rev. Stat. 1874, p. 1093, sec. 2,) to which to send a cause on change of venue taken for prejudice of the judge, is to be determined by the presiding judge in the exercise of a judicial discretion, an abuse of which discretion is re viewable.</p> <p>2. Same—cross may be sent to a county out of the circuit. On change of venue for prejudice of the trial judge, a cause may be sent to a court of competent jurisdiction in a convenient county, though in another judicial circuit.</p> <p>3. Continuance—absence of witnesses and of one attorney—when not ground for. Application for continuance based on absence of witnesses and of one attorney is properly denied, where the testimony of such witnesses would not.have been material, and it is not shown the counsel conducting the cause needed the assistance of his absent associate, or that the client was prejudiced by the attorney’s absence.</p> <p>4. Instructions—what will cure omission in plaintiff’s instruction. An instruction to find for plaintiff if the material allegations of the declaration were proved, without stating what were such material allegations, is, if defective, cured by one for defendant which fully sets forth such allegations.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding. Anthony Kern died November 22, 1890, and letters of administration were issued to defendant in error on the 28th.

<p>Appeal from the County Court of Cook county; the Hon. O. 1ST. Carter, Judge, presiding.</p>

<p>Appeal from, the Circuit Court of Cass county; the Hon. George W. Herdman, Judge, presiding.</p>

George W. Herdman, Judge, presiding. The original bill in this cause was filed on July 19, 1894, by Anna L. Hartwell, widow of Cyrus Hartwell, for dower in and partition of the lands described therein, alleging that the said Cyrus Hartwell died on June 4,1894, seized in fee simple of the lands therein described, leaving no child or children or descendants of child or children, but leaving complainant, Anna L. Hartwell, his widow, and the defendants, his sisters and nephews…

<p>1. Trial—instructions to.jury must be in writing. Oral instructions as to the penalty to be fixed in a criminal case according to the degree of which the defendants may be found guilty, violate sections 52-54 of the Practice act, (Rev. Stat. 1874, p. 781,) forbidding the giving of instructions, or qualifying, modifying or explaining them, otherwise than in writing.</p> <p>2. Same—statute as to mode of instructing jury is mandatory. The requirement of the statute that all instructions must be in writing is mandatory, and cannot be dispensed with without the consent of the parties, in any case.</p>

George W. Herdman, Judge, presiding. In 1886 and prior thereto Barzillar Crabtree owned a farm in Greene county, Illinois, on which he… Held: and, subject to the dower of the widow, all of the lands, including the land conveyed by that deed to appellants, be partitioned, etc., and in case such partition can not be made without manifest prejudice, etc., all of said lands be sold and the proceeds divided among all the heirs of the said Barzillar Crabtree, according to their…

Dorrance Dibell, Judge, presiding. On December 10, 1892, the Will County National Bank and Joseph Stephen filed their bill in the circuit court of Will county, alleging, among other things, that the complainant, Stephen, had recovered a judgment against the Joliet Enterprise Company, a corporation of this State engaged in manufacturing barbed wire at Joliet; that execution had been issued and returned unsatisfied, and that said corporation was insolvent, and praying for the…

<p>1. Railroads —permit from city to lay additional tracks—validity of ordinance. An ordinance requiring a permit for laying additional tracks by a railroad company at a highway crossing, is not invalid, as to a highway crossing within the city, merely bec.ause the railroad was built at that place before the highway was laid out, when the place was outside of the municipality.</p> <p>2. Constitutional law—what is not a deprivation of due process of law. A railroad company is not deprived of its property without due process of law by reasonable police regulations requiring a permit before additional tracks can be laid at a highway crossing.</p> <p>3. Contracts —between State and railroad company—impairment of obligation of. The obligation of the contract of a railroad company with the State is not impaired by reasonable restraint and regulation of its right to lay additional tracks across a highway.</p> <p>4. Action—when mandamus, and not injunction, lies. Where city authorities, without legal excuse, refuse a permit to a railroad company to lay tracks across a street, mandamus, and not injunction, is the remedy.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.

Richard W. Clifford, Judge, presiding. The following statement of the case is taken from the opinion of the Appellate Court: “This is an appeal from a judgment recovered in an action of trespass on the case, brought by appellee, a minor, by her next friend, against the appellant.

<p>1. Waters—pollution of stream by drainage of cemeteries—injunction. The pollution of the waters of a stream used for domestic purposes, watering cattle and harvesting ice, by a sewer draining the wet portions of two cemeteries, will he enjoined.</p> <p>2. Same—fact of former pollution no defense. It is no excuse for the threatened pollution of the waters of a stream by drainage from cemeteries, that such waters may, to some extent, have been rendered unwholesome when flooded by washings from manured lands or by the connection of other drains.</p> <p>3. Nuisances—pollution of stream is a nuisance. The rendering of the waters of a stream unfit for drinking and domestic purposes, for watering cattle' and harvesting ice, by drainage from cemeteries, constitutes a nuisance.</p> <p>4. Same—pollution of stream cannot be authorised by contract. Neither a town nor cemetery association has any right, by contract, to authorize the pollution of a stream.</p> <p>5. Action—cross-bill by town—remedy at law. A cross-bill filed by a town in a suit to enjoin the pollution of a stream by construction of a sewer under a contract between cemetery companies and the town commissioners of highways, seeking to set aside the contract as made without power in the commissioners, is properly dismissed, as the liability of the town thereunder can be determined when such liability is asserted or denied in some proceeding.</p>

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

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

<p>Appeal from the County Court of Jefferson county; the Hon. William T. Pace, Judge, presiding.</p>

<p>1. Contracts—when agreement of legatees fixes meaning of terms used in will. A contract between the residuary legatees under a will, that one of them, under a bequest of all the testator’s railroad stock, should take a certain railroad bond, entitles him to such bond, whatever the term “railroad stock” in the will may mean.</p> <p>2. Release—construction of terms of—previous contract controls. A release by one of the residuary legatees under a will to the other of all his interest as heir or legatee under the will, except the railroad stock belonging 1%) deceased specifically bequeathed to him, will not include a bond which the parties have previously contracted should pass to him under such bequest, as such bond is not a part of the estate, to be controlled by the will or administered.</p>

<p>Mortgages—-foreclosure of mortgage pledged as collateral—rights of judgment creditors to surplus. The holder of a note and mortgage as collateral security, who, upon foreclosure, purchases the premises for a sum in excess of that due upon his debt,, subject to a prior mortgage, must account to judgment creditors of the mortgagor, under a bill brought by them for that purpose, for the excess, notwithstanding he has applied it on such prior mortgage.</p>

<p>1. Appeals and errors—final judgment in Appellate Court—presumption as to grounds of. It will be presumed, on appeal from the Appellate to the Supreme Court, .where no finding of fact is made by the Appellate Court differing from that of the trial court, that the action of the Appellate Court in rendering final judgment was based upon an assignment of error upon which it might properly refuse to remand, rather than upon one requiring remandment.</p> <p>2. Same—;final judgment of Appellate Court for want of evidence—when reversed on appeal. A judgment of the Appellate Court reversing the judgment of the trial court and finally disposing of the cause, upon the assignment of error that a peremptory instruction for defendant was refused, must be reversed, on appeal, unless the plaintiff wholly failed to offer any competent evidence which tended to prove his right of recovery.</p> <p>3. Action —for surplus of note pledged as collateral—when it lies. One entitled to the surplus of a note pledged as collateral for another note of less amount, is not bound to offer to pay the latter or demand a return of the former before bringing suit for such surplus, where the pledgee has received payment of the collateral note by taking another note in lieu thereof.</p> <p>4. Payment—when payment of collateral note pays principal note. A principal note is paid, as against a surety thereon, when the holder thereof receives payment of a larger note pledged as collateral security therefor, even though such payment be made by means of a third note taken by such holder in lieu of such collateral note.</p> <p>5. Pledge—effect of payment of pledged note by another note—rights of the parties. A pledgee of a note as collateral security cannot receive another note in payment of the note so pledged, and subsequently, without the consent of the pledgor or his assignee, return the note received and take back the original note pledged, so as to re-instate the liability of the pledgor or deprive his assignee of the right to the surplus.</p>

<p>1. Eminent domain&emdash;right of owner to damage to land not taken by condemnation. A land owner is not deprived of the right to compensation for land not taken because he has platted it, and it is divided from that taken by a line designated on the plat.</p> <p>2. Pleading&emdash;damage to adjacent lots recoverable by cross-petition, in condemnation. Damages may be claimed by cross-petition for injury to adjoining or adjacent lots or tracts, suffered through the exercise of the power of eminent domain.</p> <p>3. Appeals and errors&emdash;when finding of damages will stand, on appeal. A verdict fixing damages in condemnation will not be disturbed, on appeal, as not supported by the evidence, where there is a conflict of testimony and the jury exercised their own judgment thereon, unless such verdict appears to be the result of passion, prejudice or undue influence.</p> <p>4. Same&emdash;improper evidence not affecting the result will not reverse. A judgment will not be reversed because of the admission or exclusion of evidence which could not have affected the result.</p>

<p>Evidence—in prosecution for rape—cmitrolling application of improper testimony. The admission, on the trial of a father for rape upon his daughter, of evidence that he also committed a rape upon another daughter, is reversible error, although the court attempts to confine its application to the question why the latter daughter left home and to the contradiction of defendant’s testimony.</p>

<p>Writ op Error to the Circuit Court of Tazewell county; the Hon. N. W. Green, Judge, presiding.</p>

E. F. Dunne, Judge, presiding. This is an action on the case, by appellant, against appellee, for libel.

Charles H. Donnelly, Judge, presiding. This was a proceeding by appellants, in the county court of Cook county, praying that certain transfers in writing, which had theretofore been executed by one Samuel B. Barker, a resident of Cook county, to the Union National Bank of Chicago, and to Mrs. F. M. Perkins in trust for the bank, conveying and transferring certain property and assets in trust, be declared to be a voluntary assignment.

<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. Frank Scales, Judge, presiding.</p>

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

James Goggin, Judge, presiding. This is a suit by appellee, against appellant, on a policy of insurance on the life of her husband, Robert J. Ross, in the sum of $5000, for her benefit. She recovered a judgment in the Superior Court of Cook county for the amount of the policy, interest and costs of suit. On appeal that judgment was affirmed by the Appellate Court, and the company again appeals. The policy was issued February 17,1888.

<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. O. H. Horton, Judge, presiding.</p>

<p>1. Taxes —sufficiency of description of delinquent land to authorise judgment. A description of delinquent lands as “part lots 1 and 2, section 16,” etc., is insufficient to sustain a judgment against the lands for taxes, there being nothing to indicate what parts of the lots were intended.</p> <p>2. Same—lands must be described so they can be found. In a proceeding for judgment against lands for taxes there can be no lien and no judgment unless the lands are described so they can be located.</p> <p>3. Res judicata—when decree of court is a bar to judgment for taxes. A decree for defendant, rendered in a proceeding to foreclose the lien upon lands of a delinquent drainage assessment, under section 253 of the Revenue act, (2 Starr & Curtis, p. 2110,) which finds that the “equities are with defendant” and that complainant “is not entitled to recover the assessment claimed in the bill,” is a bar to a''subsequent application for judgment against such lands for the assessment in the county court.</p> <p>4. Same—decree in chancery is a bar at law. A final decree in chancery is available as an estoppel, whether the second action involving the same question be at law or in equity.</p> <p>5. Same—appeal does not invalidate adjudication. An appeal from a decree merely suspends its execution, and does not affect its validity as a former adjudication.</p>

<p>1. Appeals and errors—when presumed, on appeal, that Appellate Gov/rt reversed on facts. It must be presumed, on appeal to the Supreme Gouirt, that the trial court correctly applied the law to the facts of the case, and that the Appellate Court reversed the judgment because it found the facts to be different from those found by the trial court, where no propositions of law were submitted to be held or refused by the latter court.</p> <p>2. Paupers—liability of town of original residence for pauper’s support. A town becoming liable to another town, under the statute, for the support of a pauper, (Laws of 1889, p. 217,) is not discharged from such liability upon the refusal of the pauper to return to the town so liable for the support. (Craig, C. J., dissenting.)</p> <p>3. Same—poor officers have personal custody of paupers. Persons, by becoming paupers, cease to be free agents, and pass, to a certain extent, under the control of the public officers intrusted with the execution of the poor laws.</p> <p>4. Same —power of supporting town to remove pauper. A town liable to another town, under the act of 1889, for the support of a pauper going from its territory into the latter, has the implied power, under said act, to remove such pauper back to its territory, though liability for support does not depend on such power of removal.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard iu that court on appeal from the Circuit Court of Alexander county; the Hon. Oliver A. Harker, Judge, presiding.</p>

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

John Gibbons, Judge, presiding. This was a bill in equity, brought by Melville Clark in the circuit court of Cook county, against John McGee, to enjoin the erection of a certain building and asking for the removal of the building. Upon filing the bill a temporary injunction was granted. The defendant appeared and put in an answer to the original bill and entered a motion to dissolve the injunction.

Thomas G-. Windes, Judge, presiding. Judgment by confession under warrant of attorney was entered in favor of appellee, against appellant, in the circuit court of Cook county, February .6, 1894, for unpaid rent for a theater building in Chicago.

Louis; the Hon. B. H. Canby, Judge, presiding. The opinion of the Appellate Court for the Fourth District, by Green, J., affirming the judgment of the city court of East St. Louis, is as follows: “Appellee, as administrator of the estate of his deceased daughter, brought this suit under the statute, to recover damages for the death of his intestate, caused, as averred in the declaration, by the negligence of appellant’s servants in charge of its passenger train, in operating…

<p>1. Railroads—proof of existence prior to constitution of 1870. Affirmative evidence that a railroad company asserting the right of eminent domain was organized or in operation prior to or within ten days after the constitution of 1870 took effect, is not necessary where prima facie evidence of the then corporate existence is furnished, by showing its charter and user thereunder.</p> <p>2. Same—power of, to compel connections with other roads. Power to compel connection with another railroad in a, city exists in favor of a railroad whose charter provides that it may construct its road across the track of another road when necessary, and also gives jit the rights conferred by statute, which provides (Laws of 1872, p. 631, par. 6,) that every railroad corporation shall have power to cross, intersect, join and unite its railroad with any other, etc.</p> <p>3. Eminent domain —proper procedure to compel connection between railroads. The right to form connection by one railroad with another may be obtained by procedure under the Eminent Domain act of 1872, (Laws of 1872, p. 402,) as a cumulative, if not the only, remedy which applies to such case.</p>

<p>1. Instructions—requirements as to form of instructions. An instruction in the form of separate and distinct sentences, which can be intelligently read only as a whole, may be sufficient, although not in proper form or correctly punctuated, if the jury would not misunderstand or be misled by it.</p> <p>2. Same—summarizing the case—when not error. An instruction summarizing the case, and telling the jury that if they find the facts as stated plaintiff is entitled to recover, is not reversible error when it embraces all the elements essential to a recovery, omitting nothing material.</p> <p>3. Special findings—must relate to ultimate facts. Refusal to submit a special interrogatory asking, “Was the defendant passing over the crossing in the usual way and going directly across the same?” is proper in an action against a railroad company for a personal injury, because it does not relate to any ultimate fact.</p>

Frank Scales, Judge, presiding. This is an appeal from the order or judgment of the county court of Cook county for the sale of a lot of appellant, delinquent for the non-payment of a special assessment levied on said lot for the construction of a cement sidewalk on both sides of Michigan avenue, from Fifty-fifth street to Sixty-third street. Two objections were filed to the rendition of judgment. The first of these it will be unnecessary to mention.

<p>1. Mortgages—sufficiency of master’s notice of sale on foreclosure. A mortgage foreclosure sale is not invalidated by failure of the master to specify in his notice of sale the names of persons brought in as defendants during the progress of the cause, where the decree names only the original parties, and requires the master to specify “the names of the complainants and defendants aforesaid.”</p> <p>2. Same—effect of error in Christian name in master’s notice of sale. The mistake of the master, in publishing notice of foreclosure sale, in giving the Christian name of one of the defendants as “Cornelia” instead of “Cornelius” will not invalidate the sale, where he was only the trustee of a person named, and the general docket number of the case was given, with the date upon which the decree was rendered,—especially where the property sold for all it was worth.</p> <p>3. Same—when master may sell land in a single parcel. The master is authorized to sell mortgaged property as a single tract where it is so described in the mortgage and decree of sale, and there is nothing in the evidence to show that it is susceptible of advantageous division into parcels.</p> <p>4. Same—foreclosure sale—distribution of surplus proceeds. As between mortgagors and a sheriff holding a valid execution against them, the surplus arising on mortgage foreclosure may be paid to the latter in satisfaction of the execution.</p>

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

Oliver H. Horton, Judge, presiding. This is a proceeding brought by Richard P. Perkins, in the circuit court of Cook county, on May 6,1892, against Mary E. Quinn and others, under what is known as the Burnt Records act, to restore the record of petitioner’s title and to establish his title to lot 16, in the city of Chicago.

<p>1. Evidence—what question raised by objection to ordinance. Objection to a city ordinance on the ground that it is “incompetent, immaterial and irrelevant,” does not raise the question of its validity, which can only be done by specific objection.</p> <p>2. Same—relevancy of ordinance for elevation of railway tracks. A city ordinance requiring railway tracks upon streets to be raised is competent in a proceeding to condemn by a railway company, where there is a cross-petition for damage to land not taken, even though the company owns its right of way at the point in question, which is midway between two streets.</p> <p>3. Same—effect of preamble on competency of ordinance. A city ordinance otherwise competent cannot be rejected as evidence because of recitals in the preamble giving reasons for its passage.</p> <p>4. Damages—in condemnation—when verdict will stand. The damages awarded by a jury in condemnation will stand where the jury viewed the premises and the evidence is conflicting.</p>

Alexander MgElroy, Judge, presiding. This is an appeal from a judgment of the county court of Ford county entered on June 2, 1894, upon the application of the county collector, against delinquent lands in that county for the amount of unpaid taxes, etc., due thereon for the year 1893, and ordering sale of same, including certain lots of appellants, as to which objections were filed and overruled.

<p>1. Wills—effect of proof of testator's signature. Proof of the testator’s signature to a will is prima facie evidence of his having understandingly executed the same.</p> <p>2. _ Same—what shows testator's instructions were followed in drafting will. Failure to follow a testator’s instructions in drafting a will is not shown by answering a question as to whether directions were followed, “Yes and no; I drew it as nearly like his directions as it could be drawn under the law,” where it is also proved that the testator’s proposed will violated the law against perpetuities, and that he then requested that a will be drawn as nearly like- that as possible without violating the law.</p> <p>3. Same—following testator’s general instructions—effect of subsequent execution. A will prepared at the request of a testator, even under general directions and afterwards executed in the manner provided by law, should not be set aside on the ground that he did not understand what it contained, except upon clear and satisfactory proof of that fact.</p>

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

Jonas Hutchinson, Judge, presiding. On the 15th day of January, 1873, Howell G-. Pulling took out a policy of life iusurance in the Travelers’ Insurance Company of Hartford, Connecticut, on the ordinary life plan, insuring his life in the sum of §10,000, which, by the terms of the policy, was made payable to his wife, Helen B. M. Pulling.

<p>1. Courts—power of judge to extend time for bill of exceptions. A judge of the Superior Court, while presiding in the Criminal Court of Cook county, cannot make a valid order for an extension of the time for filing a bill of exceptions in a case tried before him in the Superior Court.</p> <p>2. Same—mere memorandum is not an order of court. A mere memorandum signed by a judge, directing the entry of an order to extend the time for filing a bill of exceptions, cannot have the effect of a record of the court, or be operative as an order, so long as it is not made on the docket of the court or filed or deposited with the clerk, or even brought to his knowledge, but is retained in the possession and under the control of a party to the suit or his attorney.</p>

Frank Baker, Judge, presiding. On April 10,1888, appellee made and delivered to one Carl Holz a certificate, in consideration of the payment of an examination fee and all dues and assessments, etc. The certificate states that Holz is a member of Alleghany Lodge No. 346, located in Chicago, and entitled to participate in the beneficiary fund to the amount of $2000, which, at his death, shall be paid to his son, Paul Holz.

Jonas Hutchinson, Judge, presiding. The parties to this action entered into a contract hereinafter set out. Appellee seeks to recover from appellant the contract price for cattle delivered in September and not paid for, which claim is made under the common counts of his declaration.

Merray F. Tuley,, Judge, presiding. At the November term, 1892, of the circuit court of Cook county a bill in chancery was filed by appellee, against appellant, seeking to remove a cloud and quiet title to lots 4 and 5, block 26, and lots 1, 2, 3 and 4, block 27, Ravenswood subdivision of part of the north-east quarter of the south-east quarter of section 18, and part of section 17, in township 40, north, range 14, east of the third principal meridian, in Cook county.