Volume 161 — Illinois Reports

<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>

<p>Appeal from the County Court of Peoria county; the Hon. Robert H. Lovett, Judge, presiding.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Nathaniel C. Sears, Judge, presiding.</p>

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

Elbridge Hanecy, Judge, presiding. Appellee brought suit in the circuit court of Cook county on a certificate of membership issued by appellant, a mutual benefit association, to Herman Martin Froiland, the husband of appellee. The member, Froiland, died from poison which he drank by accident. Intending to drink distilled water, by mistake he drank chloral instead.

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

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

<p>1. Appeals and errors—errors must appear in the abstract. Everything on which error is assigned must appear in the printed abstract of the record.</p> <p>2. Same—questions of law must be preserved in the record. Whether or not a plaintiff below was guilty of such contributory negligence as to preclude recovery will not be passed upon unless that question is in some manner preserved in the record as one of law.</p>

Frank Baker, Judge, presiding. On and prior to December, 1890, one B. H. Kemper was the owner of a stock of saloon goods and fixtures, which he used in carrying on the saloon business in the city of Chicago.

Frank Baker, Judge, presiding. This was an action of assumpsit, brought by Flower, Remy & Gregory, attorneys, against Beveridge & Dewey, bankers, to recover $2400 which they allege they paid to the defendants, while acting as their attorneys in certain replevin suits, and which sum, about three years later, they were required to pay again to the clerk of the United States court under a decree in a certain cause pending in that court.

T. M. Shaw, Judge, presiding. This was a bill brought by the appellants, the widow, children and administratrix of John A. Thomas, deceased, for the assignment of dower and partition of the east half of the south-east quarter of section 31, township 10, north, range 7, east of the fourth principal meridian, which Thomas acquired by purchase; also the north-west quarter of section 8; also fifty-five acres of the south-west quarter of section 5, being that part lying south of…

<p>1. Contempt—of executor for failure to pay as ordered—demand necessary. Commitment of an executor for contempt in failing to pay over money as ordered on approval of his final report, cannot be made without evidence of the demand required by statute (Rev. Stat. 1874, chap. 3, sec. 115,) for the money due under the order.</p> <p>2. Executors and administrators—executor may deduct advancement after report made. An executor ordered, upon final accounting, to pay a distributive share, is entitled to deduct an advancement made by Mm on such share after his report was made out but before it was passed upon.</p> <p>3. Evidence—what executor may show in defense to charge of contempt. Upon proceedings against an executor for contempt in failing to pay over a distributive share which he was directed to pay upon final accounting, evidence that he had paid the distributee’s share of a note upon which such executor was surety, under an agreement with the distributee that it might be deducted from his share, is admissible.</p>

R. S. Tuthill, Judge, presiding. This was a bill filed on May 14, 1892, by the appellee to establish her title to certain land in Cook county under the “Burnt Records act.” She claimed to be the owner of all the premises in question by virtue of an alleged adverse possession thereof for more than twenty years.

<p>1. Action—no concern of defendant who is named as usee in suit. The obligee in an appeal bond has a legal right of action thereon, in case of its breach, for the use of any person for whom he chooses to bring it, and it is no concern of the defendant for whose use the action is instituted.</p> <p>2. Assignment—of judgment carries appeal bond. An assignment of a judgment carries with it a bond given on an appeal therefrom.</p> <p>3. Garnishment—sufficiency of notice to garnishee of assignment of his creditor’s claim. Notice to a garnishee, before his answer but after the proceeding is begun, of an assignment of the claim of his creditor made anterior to the garnishment proceeding, is sufficient to protect the rights of the assignee.</p>

Charles. H. Donnelly, Judge, presiding. This is an appeal from a judgment of the county court of Cook county for the sale of certain lots of appellant, for the first and second installments of a special assessment levied by the town of West Chicago, at the request of the Board of West Chicago Park Commissioners, for the improvement of Douglas boulevard.

<p>1. Taxes—assessment of corporations—what is a manufacturing company. A corporation formed to carry on the business of distilling, re-distilling, and rectifying highwines, alcohol, spirits, etc., and also to engage in feeding and dealing in cattle and other live stock, is not a manufacturing company, to be assessed by the local assessor instead of by the State Board of Equalization.</p> <p>2. Same—amendment of charter of corporation as affecting assessment for taxation. An amendment to the charter of a corporation, asked on May 1, the day on which the ownership of personal property fixes liability for taxation, cannot affect the liability of the company for taxation during that year by changing the character of the corporation, where the amendment is not filed for record, as required by statute to make it operative, until a subsequent day.</p> <p>3. Same—assessment of capital stock—double taxation. Assessment of the capital stock of a corporation does not amount to double taxation because of a tax already paid on tangible property which was represented by capital stock, where it does not appear that the stock assessed is not in excess of the value of the tangible property.</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. Frank Baker, Judge, presiding.</p>

O. N. Carter, Judge, presiding. On December 21, 1893, the city filed its petition for the assessment of the cost of constructing and laying a water supply-pipe on Yates avenue between Seventy-first and Seventy-fifth streets, based upon an ordinance dated November 20, 1893, for a six-inch cast-iron water supply-pipe, of a weight of thirty-seven pounds per lineal foot, eight fire hydrants, two valves and a cross, as described.

<p>1. Appeals and errors—effect of failing to stand by overruled demurrer. The overruling of a demurrer in the form of exceptions to a bill, on account of matters not proper to be included therein, is not ground for reversal, where the defendant answered the bill and agreed as to the issues on which the trial was had.</p> <p>2. Trial—jury may be waived in contest of will. A jury may be waived in a will contest, under the statute giving chancery courts jurisdiction of such contests, (Rev. Stat. 1874, chap. 148, sec. 7,) although the statute says they “shall” be tried by jury, as that word has no greater force than the word “may.”</p> <p>3. Wills—spiritual delusions not connected with will do not render it invalid. The mere delusion of a testator that he is guided by spirits of the dead through mediums does not defeat his competency to make a will, when there is nothing to show that the subject of spiritualism enters his mind in connection with the will.</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 Barton Payne, Judge, presiding.</p>

<p>Appeal from the County Court of Hancock county; the Hon. William C. Norcross, Judge, presiding.</p>

Robert B. Shirley, Judge, presiding. This was a petition filed in the circuit court of Montgomery county, praying for a writ of mandamus to compel the appellants, as the board of trustees of schools of township 9, range 5, in Montgomery county, to assemble, canvass and certify the votes cast at an election held on the 8th of April, 1893, on the question of establishing a high school in the territory mentioned in the petition, that territory being alleged to be a school…

<p>1. Appeals and errors—sufficiency of pleadings on appeal. The insufficiency of an averment of a declaration cannot be first questioned on appeal.</p> <p>2. Evidence—an objection to evidence not made at triad is waived. An objection to evidence is waived by not interposing it upon the trial.</p> <p>3. Same—presumption that ordinances once passed remain in force. Ordinances shown to have been passed prior to a certain day will be presumed to have been still in force upon that day, in the absence of evidence to the contrary.</p> <p>4. Master and servant—what is not, per se, negligence of railroad employee. A railroad policeman is not guilty of negligence, as a matter of law, contributing to his death, by being struck by an engine while standing near the track loading his revolver, with his back to such engine.</p> <p>5. Same—liability of master to servant working in a dangerous place. A master may be liable for injuries to an employee working in a dangerous place although the injury is not willfully inflicted.</p> <p>6. Special findings—questions calling for evidentiary facts properly refused. In an action for the death of a railroad employee struck by an engine, special interrogatories as to whether he knew the place where he was struck was a dangerous place to work, and was loading his revolver when he was struck, are properly refused, as calling for evidentiary, and not ultimate, facts.</p>

<p>Writ of Error to the Circuit Court of Perry county; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

O. N. Carter, Judge, presiding. At the annual election of officers of the village of Evergreen Park, Cook county, Illinois, on the 16th day of April, 1895, two tickets were voted, one headed “Republican” and the other “Citizens.” On the first, C. J. Tyler was the candidate for president of the village board, Samuel Overton, F. D. Webb and-Neis Parsons candidates for trustees, and B. L. Mead candidate for village clerk.

<p>Drainage—assessment of annual benefits—jurisdiction of county court. No authority is conferred by the Drainage act, (Laws of 1819, p. 120,) or the amendments thereto, (Laws of 1881, p. 79; Laws of 1883, p. 77,) upon the county court, without a jury, to make and levy an assessment for annual benefits upon lands of a drainage district for keeping a levee in repair, especially where no notice has been given to land owners.</p>

Francis M. Wright, Judge, presiding. Appellant filed his bill in the circuit court of Coles county, against the city of Charleston and its mayor and treasurer, to enjoin the issue and negotiation of certain refunding bonds. This bill was held bad on demurrer and dismissed, and to reverse that order this appeal is taken. The only question for our decision, therefore, is, does the bill state a case entitling the complainant to the relief prayed.

<p>Appeals and errors—administrator's petition to sell land to pay debts does not involve freehold. The Supreme Court has no jurisdiction of an appeal in a partition suit in which the only question involved is the ruling upon an application of an administrator for leave to sell lands to pay debts, as no freehold is involved.</p>

<p>1. Carriers—a railroad ticket is not a contract. Ordinarily a railroad ticket is not a contract, but merely a means adopted for convenience to enable persons in charge of trains to recognize the holder as entitled to passage.</p> <p>2. Same—liability of railroad company selling ticket beyond its own lines. While the sale of a ticket over successive roads does not, of itself, import a contract to carry the passenger beyond the line of the company selling the ticket, yet such company may bind itself to be responsible for the entire journey.</p> <p>3. Same—evidence of the terms of the contract of carriage may be shown by parol. It is admissible to prove by parol evidence, outside of the mere ticket sold, the terms of the contract in fact entered into between the carrier and the passenger.</p> <p>4. Same—liability on particular facts for injury beyond line of company selling ticket. A railroad company is responsible for an injury to a passenger riding on its excursion train over a terminal line, on a through ticket sold him by such company, when such excursion was advertised, and scheduled by published time-table, to run to the final destination, without notice of the existence of any terminal line or that the company did not assume the entire responsibility, although an engine of the terminal company in fact hauled the train over such terminal line and an agent of the terminal company took up the terminal coupons.</p> <p>5. Same—diligence required of railroad company in furnishing cars. There is no difference between the diligence required of a carrier in furnishing cars and conveyances for the safety of passengers and the care required for their safety in other respects.</p> <p>6. Instructions—as to liability of railroad company for injury on terminal line—when properly refused. An instruction that a railroad company is not liable for injuries to a passenger upon an excursion train because the injury happened upon the track of a terminal association which managed the train from a junction to the terminal station, is properly refused, where the evidence tends to show that the company made itself liable for the whole route.</p> <p>7. Same—as to negligence of passenger riding on platform through tunnel. An instruction, in an action for the death of a passenger, that he would be chargeable, under certain circumstances, with negligence in riding on the platform through a tunnel, is properly modified by requiring that the jury believe that he knew, when he took the train, that it was so crowded that he could not get inside the car.</p> <p>8. Appeals and errors—variance cannot be first urged on appeal. A variance between the proof and declaration will not be considered on appeal, when not raised in the trial court.</p>

<p>Special assessments—insufficient description of improvement in ordinance. An ordinance providing “that thirty-two lamp-posts and two lamp-post connections be and are hereby ordered erected” on a certain avenue, between certain streets, conformably to drawings consisting simply of a plat of the street, showing by marks the location of the posts, is not a sufficient specification of the nature, character, locality and description of the improvement, where it does not state of what material the posts are to be constructed, whether they are for light with oil, gas or electricity, or the nature and character of the connections.</p>

Murray F. Tuley, Judge, presiding. This was a bill in chancery originally exhibited in the circuit court of Cook county by Horace W. Cowles, who is the appellee here, against William McKee, appellant, for a partnership accounting and settlement. The final decree of the circuit court in the cause was appealed from by McKee, and on June 3, 1895, the Appellate Court for the First District affirmed the decree of the circuit court. McKee now prosecutes this further appeal.

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

<p>1. Appeals and errors—when the existence of a remedy at law is not available on appeal. The existence of a remedy at law cannot he set up, on appeal, to defeat an injunction, when not presented by way of demurrer or answer to the bill.</p> <p>2. Dedication—acknowledgment of plat before circuit clerk not sufficient. An acknowledgment to a plat taken by the circuit clerk instead of by a justice of the Supreme or circuit court or a justice of the peace, as required by statute, is insufficient, and prevents the plat from operating as a statutory dedication.</p> <p>3. Same—effect of filing plat insufficiently acknowledged. The making and filing of a plat bearing an insufficient acknowledgment constitutes a mere offer to dedicate a street shown thereon, and its acceptance creates merely a common law dedication, giving the municipality an easement, instead of the fee, in such street.</p> <p>4. Same—effect of delay of twenty-three years in accepting dedication. A village, by allowing a period of twenty-three years to elapse without accepting the offer of dedication made by the filing of a plat insufficiently acknowledged, during which time grantees of the person making the plat have erected fences and occupied the land designated as a street, loses whatever right it might have had to an easement in the land so occupied.</p>

<p>1. Fees and salaries—county board may fix cleric hire and expenses of county clerk. County boards have power to fix in advance clerk hire and other expenses of county clerks. (Cullom v. Dolloff, 94 Ill. 330, and Briscoe v. Clark County, 95 id. 309, distinguished.)</p> <p>2. Same—what is a fixing of cleric hire and expenses. The action of a county board fixing the “salary” of an incoming county clerk at a specified sum, “including deputy clerks and extra clerks,” is such a fixing of compensation and expenses under section 10, article 10, of the constitution, as to prevent a subsequent allowance to such clerk for the hire of help to perform the work of the office.</p>

<p>1. Statutes—object of statute considered in its construction. Language in a statute which is susceptible of more than one construction should receive that construction which will effect the object of the statute rather than defeat it.</p> <p>2. Same—knowledge of principles of statutory construction imputed to legislature. In construing statutes, courts assume that they were enacted by the legislature with a view to the settled maxims and principles of statutory interpretation.</p> <p>3. Constitutional law —fees for increase of capital stock of corporation—act of 1895 constitutional. The requirement of the act of 1895 (Laws of 1895, p. 132,) that corporations “at present organized and doing business, * * * that may hereafter increase their capital stock,” shall pay, in addition to other fees required by law, one dollar for each $1000 of increase, is not unconstitutional, as requiring existing companies to pay fees not required of new companies which increase their stock, as by the statutory rules of construction (Rev. Stat. 1874, chap. 131, sec. 1,) the term “at present organized” includes both present and future corporations.</p>

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

<p>1. Evidence—effect of permuting a leading question. It is not an abuse of the discretion of a trial court to permit a question otherwise proper to be put in a leading form.</p> <p>2. Same—conflicting claims of brokers to commission—competency of evidence. In a suit for services rendered by brokers in a sale of real estate which was actually concluded by another broker, an unqualified question to the purchaser as to whether he would have bought the property through the plaintiffs, is properly excluded.</p> <p>3. Same—claim for broker's services—negotiations of second broker are incompetent. Inquiries as to details of negotiations by a second broker employed to sell property, and who does sell it to a purchaser found by brokers formerly employed, are not competent in a suit by such former brokers for compensation.</p> <p>4. Instructions—omissions in, cured by others of the series. Omissions in instructions which are supplied by other instructions of the series are deemed cured.</p>

<p>Appeal from the Circuit Court of Johnson county; the Hon. Oliver A. Harker, Judge, presiding.</p>

<p>1. Taxes—personal judgment cannot he rendered for a special assessment. A personal judgment cannot be rendered against the owner of the property taxed or assessed, for a special tax or special assessment.</p> <p>2. Same—ordinance need not he put in evidence on application for judgment for special assessment. The People need not put in evidence the ordinance under which a special assessment was imposed, in order to obtain judgment against delinquent lands, since a prima facie case is made by the collector’s report of such lands, with proofs of notice of the application.</p> <p>3. Municipal corporations—inoperative provision does not invalidate ordinance. An ordinance is not invalid because of an inoperative provision that .it shall take effect from its passage, while the statute does not permit it to go into effect until ten days after its publication.</p> <p>4. Evidence—proof made by one party is available to his adversary. The fact that an ordinance was put in evidence by the defendant does not prevent its consideration for any purpose on which it may have a bearing.</p>

Writ of Error to the Circuit Court of Coles county; the Hon. Ferdinand Bookwalter, Judge, presiding. This suit was brought by the commissioners of highways of the town of Mattoon, against, the defendant in error, the Illinois Central Railroad Company. A jury was waived and the cause submitted to the Coles circuit court upon an agreed state of facts. There were rulings of the court upon various propositions of law submitted to it.

Writ of Error to the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. This was a petition in the circuit court of Sangamon county for leave to file an information in the nature of a quo luarranto, to inquire by what right A. J. Barr, C. L. Pleasants, M. P. Rice, M. J. Walsh, F. M. Youngblood and Samuel M. Inglis exercise the powers and perform the duties of trustees of the Eastern Illinois State Normal School.

Thomas F. Tipton, Judge, presiding. The original declaration in this case contained two counts, the first of which alleges that the defendant, in a building occupied by him, was engaged in the drug business, and in connection therewith kept for sale certain refreshments, to-wit, soda water, ice cream soda water, ginger ale, phosphate, cherry phosphate, root beer, etc.; that the plaintiff tendered the price of cherry phosphate and was refused, and was informed that it was on…

Oscar P. Bonney, Judge, presiding. A bill for partition was filed in the circuit court of Adams county by Oliver, Joshua and Jacob Sloniger, brothers of one Joel Sloniger, deceased, alleging that Joel Sloniger died intestate, seized in fee simple of the premises in controversy; that on December 28, 1859, he made a will devising said premises to James K. P. Sloniger, appellant, but that the said will was revoked by a marriage which occurred after the execution of the will,…

<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. M. F. Tuley, Judge, presiding.</p>

<p>Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.</p>

Writ of Error to the Criminal Court of Cook county; the Hon. John Gibbons, Judge, presiding. This was a prosecution begun before a justice of the peace in the city of Chicago, under what is known as the “Cody law,” which prohibits, under penalty, the keeping open of any barber shop on Sunday. An appeal was taken from the judgment of the justice of the peace convicting and fining the defendant.

<p>Writ of Error to the Criminal Court of Cook county; the Hon. O. H. Horton, Judge, presiding.</p>

<p>1. Contracts —for the purchase of real estate—counter-proposition unaccepted. An offer in a letter to purchase land on certain terms, and an answer thereto by the owner slightly but materially varying the terms proposed, which variation of terms was not assented to by the proposed purchaser, do not constitute a contract to convey the land.</p> <p>2. Cloud—when incomplete negotiations are a cloud on title. Incomplete negotiations by letter for the purchase and sale of a tract of land, which are recorded by the proposed purchaser together with his affidavit identifying the land and stating that he has purchased it, constitute a cloud upon the title of the owner, which equity will remove.</p>

<p>1. Appeals and errors—objections waived if not presented in lower court. An objection to the sufficiency of an affidavit for a garnishee summons is waived by a failure to present it to the trial court.</p> <p>2. Garnishment—assignment of claim against garnishee pending suit —effect. After an action in garnishment has been begun for the use of a judgment creditor, the judgment debtor can not assign his claim against the garnishee so as to defeat recovery.</p>

J. C. Eagleton, Judge, presiding. This proceeding was instituted by John Kuykendall, and William M. Mott, in the county court of Clark county, to contest the election of Samuel Page and William D. Rollings as school directors of district No. 7, in township 12, range 11, in said county. The election was held on the 20th day of April, 1895, for the purpose of electing-one director for the full term of three years and one for the term of one year to fill a vacancy.

R. S. Tuthill, Judge, presiding. Appellee is a homestead and loan association, organized under the statute of this State. In January, 1894, the Auditor of Public Accounts caused an examination of its affairs to be made, as provided in section 16 of the amendatory act of 1893.

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

<p>1. Accord and satisfaction—effect of payment of disputed, claim by check reciting it to be in full. A creditor to whom a check is sent, reciting that it is in full payment of a claim the amount of which is in dispute, cannot receive it, without the assent of the debtor, in part payment only, but his receipt thereof and use of the check will constitute a full satisfaction of the claim.</p> <p>2. Same—when an account is not deemed to be liquidated. An account cannot be considered as liquidated, so as to prevent the receipt of a less amount as payment from operating as a satisfaction, where there is a controversy over a set-off and the amount of the balance.</p> <p>3. Evidence—when receipt contained in check cannot be contradicted by parol. The receipt contained in a check which, upon its face, is a payment in full of all demands to date, enclosed in a letter stating that it is in full of account, and followed by a subsequent letter to return it if the creditor does not wish to accept it in full settlement, cannot be contradicted by showing that the amount was received only in part payment.* </p>

<p>1. Publication—judicial sale of real estate—what is a “public newspaper.” The requirement of the statute (Rev. Stat. chap. 77, sec. 14,) that sales of real estate on execution shall be advertised in “a public newspaper,” etc., is satisfied by publication in a law journal having a weekly circulation, among both laymen and lawyers, of 3875, which, in addition to decisions of courts and digests of cases, publishes general news of importance to the public.</p> <p>2. Same—sufficiency of certificate of publication—who may certify for corporation. A certificate of publication in a paper printed by a corporation, made by an agent of such corporation other than the president, with the corporate seal attached, is sufficient, where it is shown by the minutes of the board of directors that such agent was expressly authorized to make certificates of publication.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>1. Practice—in chancery—suits for mechanics’ liens may be consolidated. Suits having different parties and involving different rights, brought to enforce several mechanics’ liens on the same property, may be consolidated, although the general chancery practice does not favor consolidation.</p> <p>2. Evidence—resulting trust may be established by parol. A resulting trust may be established by parol, and for this purpose declarations of one holding the legal title that another person’s money paid for the land are competent.</p> <p>Mechanics’ liens—when equitable owner is estopped to deny trustee’s right. Equitable owners of land, who permit the holder of the legal title to make contracts and actively superintend the construction of a building on the land, are estopped to" deny that such trustee is the “owner,” within the meaning of the Mechanic’s Lien law, as against parties furnishing labor and materials who are ignorant of the trust.</p> <p>4. Same—an equitable owner may contract for improvements. One holding the equitable title to real estate is an “owner,” within the meaning of the act on mechanics’ liens, and a lien may be enforced for labor and materials furnished in pursuance of his contract.</p> <p>5. Same—when trustee is estopped to deny beneficiary’s ownership. A holder of the legal title to property who actively superintends the construction of a building thereon cannot deny ownership, within the meaning of the statute, of the beneficiaries who, with his knowledge, make contracts for work and material.</p> <p>6. Same—sufficiency of statement filed with clerk. Where labor is done and materials are furnished under an entire contract, a statement filed with the clerk that “said labor was performed and said materials furnished between September 18, 1890, and October 31, 1890,” is a sufficient compliance with the statute. (Laws of 1887, p. 219.)</p> <p>7. Same—sufficiency of description of property in claim for lien. A statement filed with the clerk which claims for labor and materials used in “a brick building” upon “lots 10 and 11,” sufficiently complies with the provision of the statute requiring “a correct description of the property,” (Laws of 1887, p. 219, sec. 4,) even as against a purchaser, although the building mentioned covered a small part, of another lot in the same block.</p>

<p>1. Negligence—traveling on bad sidewalk not negligence per se. Going upon a sidewalk known to be out of repair is not in itself negligence.</p> <p>2. Same—what care is required in use of sidewalk known to be bad. One traveling upon a sidewalk known to be out of repair must exercise the care of a reasonably prudent person, and whether or not he has done so is for the jury.</p> <p>3. Evidence—facts bearing upon degree of plaintiff’s care are competent. One suing for injury received from a defective sidewalk may testify that the street lamp was not lighted, although that fact is not charged in the declaration as a substantive ground of negligence, it being a circumstance bearing upon the degree of plaintiff’s care.</p> <p>4. Instructions —what is a proper modification. An instruction which attempts to tell the jury that a plaintiff cannot recover for a present bodily condition not resulting from an injury received on a defective sidewalk, may properly be modified so as not to deprive the jury of the right to give damages for other injuries not connected with such present condition.</p>

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

R. S. Tuthill, Judge, presiding. Appellant, a corporation organized under the laws of the State of Illinois, with its principal office in the city of Chicago, has, since November, 1893, been engaged in the business of manufacturing hotel registers, and soliciting and publishing therein advertisements and business cards in various towns and cities in the United States and Canada.

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

<p>1. Burnt records—what will give jurisdiction under Burnt Records act. Proof that the record, of links in a petitioner’s chain of title was destroyed "by fire, and that a proceeding was necessary to establish the title, will sustain jurisdiction under the Burnt Records act, although other questions as to title are also involved.</p> <p>2. Adverse possession—seven years, with payment of taxes—effect of break of two years. Possession and payment of taxes for seven years is not shown of uninclosed land by proof that such possession was by tenants, and that during two successive years of the seven counted upon no one occupied the land.</p> <p>3. Deeds—tax deed alone does not show title. A tax deed, unsupported by a judgment and precept, is not sufficient to show title.</p> <p>4. Appeals and errors—decree for payment must fix time of payment—interest. A decree which cancels tax deeds upon condition of the payment of a sum found due the holder thereof, and which fails to fix a time for such payment and to provide that such sum shall draw interest from the date of the decree, and which also fails to provide that the bill be dismissed as to such holder in default of payment, is erroneous.</p> <p>5. Same—when supplementary proceedings are not necessary to correct decree. A party is not bound to petition for the correction of a decree by supplementary proceedings in the trial court, where no new facts are to be brought to that court’s attention as the basis of such correction, but may seek redress by appeal.</p>

<p>1. Amendments—upon trial—when not error. Allowance of amendments to a declaration on the trial of an action for negligently causing death, setting up.next of kin and reducing the ad damnum, not followed by any motion for delay or continuance by the defendant, cannot be complained of on appeal.</p> <p>2. Pleading—when issue is waived by going to trial. Going to trial without issue joined on a plea of not guilty, in an action on the case, and treatment of the case by both parties as being at issue, is a waiver of the issue.</p> <p>3. Same—plea of not guilty does not raise question of appointment of administratrix. The question of the appointment of a plaintiff as administratrix is not in issue under a plea of not guilty, so as to require proof of such appointment.</p> <p>4. Appeals and errors—improper proof must be objected to at trial. The propriety of proof of the names of children who are adults, in an action on the case for negligently causing death, does not arise on appeal, where no objection was interposed at the trial.</p> <p>5. Evidence—experts cannot testify to matters of common knowledge. The probable effect of taking out all the stakes from one side of a car loaded with lumber, being a matter of the operation of natural laws within the observation of everybody, is not a matter for expert testimony.</p> <p>6. Trial—expression of opinion by tonal judge. The expression of an opinion by a trial judge that an unresponsive answer is responsive to the question, does not affect the rights of the parties where the question was repeated in another form and a responsive answer given.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.

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. S. P. McConnell, Judge, presiding.

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

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. N. C. Sears, Judge, presiding. The plaintiff in error, who was the plaintiff in the trial in the Superior Court, brought an action upon an insurance policy, to recover for loss by fire for the value of the insured building.

John Barton Payne, Judge, presiding. Prior to the 23d day of April, 1874, John H. Dunham subdivided into city lots the south 661 feet of the southwest quarter of the north-east quarter of section 11, township 38, north, range 14, east, in Cook county. This subdivision was laid out with a street on the south, named Fifty-first street, 33 feet wide, and a street on the west, named Madison avenue, also 33 feet wide.

S. Z. Landes, Judge, presiding. This is a bill filed by appellees in the circuit court of Lawrence county for the partition of certain lands and to remove a cloud from the title. The evidence shows that in July, 1893, one Allen Butler, late of Lawrence county, died intestate, and at the time of his death was seized of certain lands lying in said county and here in controversy.

Murray F. Tuley, Judge presiding. On the 29th of June, 1888, Charles B. Shedd filed his petition under the Burnt Records act, seeking to establish the record title to fractional section 29, in township 37, north, range 15, east of the third principal meridian, in Cook county, Illinois. The United States issued letters patent for this fractional tract of 7.37 acres to Stephen A. Douglas on October 1, 1855.

<p>1. Constitutional law—when constitutional provisions are self-executing. Where it is apparent, after giving full force to the whole of a constitutional provision relating to a particular subject, that it was intended to take immediate effect without ancillary legislation, and the language is free from ambiguity, the court will declare it self-executing, particularly where a contrary construction would thwart the purpose of such provision.</p> <p>2. Same—provision of constitution of Kansas as to liability of stockholders not self-executing. The provision of the Kansas constitution that “dues from corporations shall be secured by individual liability of stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law,” is not self-executing, it appearing from the provision itself that legislation is contemplated as necessary for its enforcement. (Baker, Magruder and Cartwright, JJ., dissenting.)</p> <p>3. Conflict of laws—construction of foreign constitutions and statutes. Where the courts of a State have not construed the constitution and statutes of their State relating to a particular subject, our courts will construe them in the light of the recognized rules and principles of construction applied in this State.</p> <p>4. Same—special remedies against stockholders are local only. A special statutory remedy against stockholders, unknown to the common law, provided by the State of such corporation’s domicil, cannot be enforced beyond the jurisdiction which creates it.</p> <p>5. Same—how far the principle of comity controls. A special remedy provided by legislation in a foreign State will not be enforced in this State upon the principle of comity.</p> <p>6. Same—remedy against stockholder.of an insolvent Kansas banking corporation. An individual creditor of an insolvent Kansas bank cannot maintain g.n action in this State for his debt against an individual stockholder of the bank by virtue of the Kansas constitution and statutes. (Baker, Magruder and Cartwright, JJ. dissenting.)</p> <p>7. Same—courts of corporation’s domicil must first determine relations of parties. Until, by an appropriate proceeding in the Kansas courts, the relations of the creditors, stockholders and corporation to each other have been determined and the proportionate share of the indebtedness to be borne by each solvent stockholder has been ascertained, no remedy can be had against a stockholder in Illinois. (Baker, Magruder and Cartwright, JJ., dissenting.)</p>

<p>Original petition for mandamus.</p>

<p>Appeal from the County Court of Hancock county; the Hon. John D. Miller, 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. Lorin C. Collins, Judge, presiding.</p>

<p>1. Drainage—annual assessment for repair of levee. An annual assessment for keeping the levee in repair may be made by the jury in assessing benefits from a levee. (Laws of 1870, p. 120.)</p> <p>2. Same— court cannot enlarge assessment made by jury for repairs. A county court cannot subsequently enlarge the amount of an annual assessment for repairs made by a jury and confirmed by the court on the organization of a levee district. (Laws of 1879, p. 120.)</p> <p>3. Taxes—sale for illegal drainage assessment is void. A sale of land for a delinquent drainage assessment which had been by the county court raised, without authority of law, to a higher figure than that fixed by the jury originally making the assessment, is void and passes no title.</p> <p>4. Res judicata—does not apply on second trial under statute. On a second trial in ejectment had under the statute upon payment of costs, (Rev. Stat. 1874, p. 447, sec. 35,) the doctrine of res judicata does not apply, though a court of review would affirm a second judgment resulting the same way as the first, if based on the same evidence. (Smyth v. Neff, 123 Ill. 310, distinguished.)</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. Insurance—asphyxiation by gas—clause of accident policy construed. Death from asphyxiation by illuminating gas while the assured was asleep is not within a clause of an accident insurance policy providing that the insurance does not cover “injuries, fatal or otherwise, resulting from poison or anything accidentally or otherwise taken, administered, absorbed or inhaled.”</p> <p>2. Same—definition of word “absorbed” in accident policy. The word “absorbed,” in a clause of an accident insurance policy providing that such policy does not cover injuries from poison or anything accidentally or otherwise absorbed or inhaled, refers only to the process of absorption by sucking up or imbibing through the pores of the body.</p> <p>3. Same—when act excepted by policy must be voluntary. The words “absorbed or inhaled,” in a clause of an accident insurance policy providing that such policy does not cover injuries from anything accidentally or otherwise absorbed or inhaled, imply a voluntary and intelligent act as distinguished from an involuntary and unconscious act.</p> <p>4. Appeals and errors—points not made in briefs in Appellate Court not considered. An objection not raised by the briefs in the Appellate Court cannot be renewed or made for the first time in the Supreme Court.</p>

Richard W. Clifford, Judge, presiding. The appellant company having filed its petition to condemn certain leasehold interests of appellees in certain premises, buildings and improvements used for manufacturing purposes, for its use in constructing its elevated-railway, the court allowed appellees Siegel Brothers $138,330, C. F. Baum $13,184, Rubel Brothers $38,000, the Safeguard Account Company $2100 and the American Printing Company $3500.