Volume 170 — Illinois Reports

<p>1. Indictment—omission in indictment for murder, of averment that the deceased was a “human being” is not fatal. The omission from the charging part of an indictment for murder, of the averment that the deceased was a human being in the peace of the People, is not fatal, as the name applied to the deceased imports a human being.</p> <p>2. Same—effect of omission of word “same” preceding “People of the Slate of Illinois.” Concluding each count of an indictment with the words “against the peace and dignity of the People of the State of Illinois” instead of “against the peace and dignity of the same People,” is not ground for quashing the indictment.</p> <p>3. Same—averment of place of death is not a necessary averment. The averment, in an indictment for murder, of the place where the death occurred is not necessary and need not be proven as laid.</p> <p>4. Same—indictment returned, in open court becomes part of record without filing. An indictment returned by the grand jury in open court, as shown by the record, becomes part of the record at once, though the clerk does not file it, and the court may allow it filed, after verdict, nunc pro tunc as of the date it was returned.</p> <p>5. bsiMiNAL law—court may permit names of witnesses to be endorsed on indictment at trial. The trial court may, in its discretion, permit the names of witnesses to be endorsed upon an indictment at trial, and its action in so doing cannot be assigned for error.</p> <p>6. Same—defendant may waive his right to pass upon jurors in panels of four. A defendant may waive his right to pass upon jurors in panels of four, and the court may thereafter require him to pass upon jurors called singly or by twos or threes.</p> <p>7. Evidence—what is immaterial in trial for murder. Whether a witness for the prosecution in a murder trial had sent persons to secrete themselves in a room near the residence of the defendant to observe the effect upon him of information given him by his wife that a warrant was out for his arrest, is an immaterial and irrelevant circumstance.</p> <p>8. Same—what sufficient to show declarations were made in contemplation of death. Evidence that the deceased, who was a physician, expressed his conviction that the blow he had received would cause a clot to form on his brain and that his death would inevitably occur, and that he directed the disposition of property in contemplation of his death, which occurred some three weeks later, sufficiently shows that he had abandoned all hope of life.</p> <p>9. SAME'—what sufficient to sustain conviction for murder. Evidence that the defendant in a murder trial was seen going into an alley where the deceased was assaulted, shortly before the assault took place, and that he was seen running out of the alley a few minutes later, is sufficient, when considered with the dying declarations of the deceased that he had been struck upon the head with a hard substance by the defendant, to .sustain a conviction.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Kendall county; the Hon. C. W. Upton, Judge, presiding.

William P. Early, Judge, presiding. This is an appeal from a judgment of the county court of Monroe county, confirming an assessment roll made by the three commissioners of the Moredock and Ivy Landing Drainage District No. 1 in said county.

<p>1. Loan associations—members withdrawing from insolvent association not entitled to priority. Members giving notice of withdrawal from an insolvent loan association are not entitled to priority of payment over fellow-members.</p> <p>2. Same—holders of paid-up stock cannot seek advantage by repudiating its validity. Holders of paid-up stock in an insolvent loan association are estopped, by participation in the transaction, to repudiate the validity of their stock,- and seek a preference as creditors of the association to the extent of the money paid therefor.</p> <p>3. Same—holders of paid-up stock not entitled to be charged with dues and preferred as to excess. Holders of paid-up stock in an insolvent loan association are not entitled to be charged with monthly dues upon the stock from the time of its issue, so as to place themselves, as to that amount, upon equal footing with other stockholders, and as to the excess be declared preferred creditors and paid in full.</p>

R. W. Clifford, Judge, presiding. This was an action in the circuit court of Cook county brought by William Taylor, against the Chicago City Railway Company, to recover for a personal injury. At the time of the accident, September 1,1892, appellant was operating a cable street car line on State street, in the south division of the city of Chicago, which line crossed the intersection of State street with Adams street in that city.

<p>Appeal from the County Court of Monroe county; the Hon. William P. Early, Judge, presiding.</p>

Theodore Brent ano, Judge, presiding. Appellant filed his bill in the Superior Court of Cook county to establish title to an undivided two-thirds of lot 123, in Hull’s subdivision to Chicago, alleging the destruction of the original records by the fire of 1871. The bill proceeded upon the theory that one John Phalen was the owner of this lot in 1870, and that he had been absent and not heard from for seven years, and therefore a presumption of his death had arisen.

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

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

<p>1. Deeds—the essence of delivery is the intention of the parties. To make the delivery of a deed valid it must be manifest that the grantor intended the grantee to become possessed of the estate.</p> <p>2. Same—'deliven/ to third person for grantee must be absolute. Delivery of a deed to a third person for the grantee must be absolute to be a good delivery, and if the grantor retains a future control of the deed no estate passes.</p> <p>3. Same—deed intended to operate as a will must be executed with formalities of a will. A deed which is intended by the grantor to operate precisely as a will must be executed and witnessed in accordance with the provisions of the Statute of Wills, in order to be valid.</p> <p>4. Evidence—evidence held insufficient to shoiv delivery of deed to third person for grantee. The delivery of a deed to a third person for the grantee is held by the court, after full consideration of the evidence in this case, not to be sufficiently established.</p>

<p>1. Pleading—ic/ien, added count states a new cause of action—limitations. A new count added to a declaration for personal-injury originally alleged to have been caused by the faulty construction of a scaffold, which charges that the injury was caused by the negligent overloading of the scaffold, states a new cause of action, and, if filed more than two years after the injury, is obnoxious to the plea of the Statute of Limitations.</p> <p>2. Appeals and errors—harmless error will not reverse. Error in sustaining a demurrer to a plea of the Statute of Limitations interposed to a new count added to a declaration in a personal injury case is not ground for reversal, where such count is abandoned at the trial and no evidence given thereunder.</p> <p>3. Master and servant—elements necessary to warrant recovery for injury from defective appliances. To warrant a recovery for injuries received by a servant from defective appliances the servant must show the existence of the defect, that the master knew or should have known of its existence, and that the servant did not know of the defect or have an equal means of knowledge with the master.</p> <p>4. Same—duty to furnish safe appliances is a positive obligation. The master’s duty to his servant to furnish a reasonably safe structure or scaffold on which to work is a positive obligation, and the master is liable for the negligent performance of that duty, whether he undertakes its performance personally or through another servant. And this is true although such other servant might, for other purposes, be a fellow-servant.</p> <p>5. Same—when foreman’s knowledge of defects is chargeable to master. Knowledge by the foreman of a gang of carpenters of the defective condition of a scaffold which he had aided in erecting for the use of brick masons is chargeable to the master.</p> <p>6. Fellow-servants—what necessary to constitute the relation of fellow-servants. To constitute the relation of fellow-servants it is essential that they be actually co-operating, at the time of the injury, in the particular work in hand, or that their usual duties should throw them into habitual association, so that proper caution would likely result.</p>

Jefferson Orr, Judge, presiding. This is a bill for partition filed by appellant on June 20, 1895, and subsequently amended, to which, as originally drawn and as subsequently amended, Alexander Ogle and Hiram Ogle and their wives, and one A. G. Crawford, holding a mortgage upon the premises sought to be partitioned, were made parties defendant.

Writ op Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Vermilion county; the Hon. Ferdinand Bookwalter, Judge, presiding. This was an action on the case by Joseph G. English, plaintiff in error, brought in the Vermilion circuit court, against the city of Danville, defendant in error.

Farlin Q. Ball, Judge, presiding. The action was assumpsit, brought by the appellant, against the appellee, the International Building, Loan and Investment Union, in the Superior Court of Cook county.

M. F. Tuley, Judge, presiding. This was a bill in chancery, filed in the circuit court of Cook county by Elizabeth Clarke and others, as heirs-at-law of Dr. Franklin D. Clarke, deceased, the appellants, against Elbert W. Shirk and others, the appellees, praying for the delivery up and cancellation of a certain lease, re-conveyance of the premises, and other relief.

Theodore Brent ano, Judge, presiding. Ezekiel Morrison, on the second day of December, 1891, executed a lease to A. H. Blackall and E. S. Black-all, composing the firm of Blackall & Son, for the first floor and basement of the premises known as 121 South Clark street, Chicago, at an annual rental of $8500, or $708.33 per month, for a period of five years, from the first day of May, 1892, until the last day of April, 1897.

Nathaniel C. Sears, Judge, presiding. This is an action on the case, brought on April 27, 1892, in the Superior Court of Cook county, by James R. Campbell, the appellee, against the Illinois Central Railroad Company, the appellant, to recover damages for a personal injury suffered by him on May 5, 1891, while in the employ of appellant as a switchman.

<p>1. Executors and administrators—administrator takes no title to realty. An administrator takes no interest in the realty save a naked power to sell the same upon the order of the court, in case the personal estate of the intestate is insufficient to pay his debts.</p> <p>2. Judgments and decrees—;judgment against administrator not a lien upon real estate. A judgment against an administrator, in his representative capacity, upon a claim against the estate, is not a lien upon the land belonging to the estate.</p> <p>3. Same—essentials of a judgment in order to create a lien. A judgment, in order to create a lien, must be final and for a definite amount, and one upon which execution may issue.</p> <p>4. Conveyances—“creditors,” within meaning of section 30 of Conveyance act, must have liens. A “creditor,” within the meaning of section 30 of the Conveyance act, (Rev. Stat. 1874, p. 278,) concerning the taking effect of deeds upon recording, is one who, without actual or constructive notice of a prior conveyance or incumbrance, has reduced his claim to a judgment of the character creating a lien upon the property before the recording of the deed or mortgage.'</p> <p>5. Same—parties whose claims have been allowed against administrator arenot “creditors.” Parties whose claims against an estate have been allowed by the probate court are not such “creditors” having liens, under section 30 of the Conveyance act, as to entitle their claims to priority over a valid deed executed by the deceased owner during his lifetime, but unrecorded at the time the claims were allowed.</p>

E. F. Dunne, Judge, presiding. This is an appeal from the Appellate Court for the First District modifying a judgment of the circuit court of Cook county, in which circuit court the case was heard on appeal from the probate court. The appellant herein, C. L. Smith, filed his claim in the probate court of Cook county against the estate of Everett B. Preston for the sum of §6820.10, and on a trial was allowed §207.91 as a claim of the seventh class.

<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 Crawford county; the Hon. S. Z. Landes, Judge, presiding. Daniel Fuller died intestate on February 26, 1895, leaving no widow, but leaving, as his only heirs-at-law, five children, to-wit: two sons, Nelson R. Fuller and Torrence I. Fuller, and three daughters, Rebecca Chiddix, Emeline Bartmess and Lydia A. Shaw. Prior to his death he owned one hundred acres of laud in Crawford county.

Frank Baker, Judge, presiding. This was an action for personal injuries, brought by John Mann, an employee of the Illinois Steel Company, in the circuit court of Cook county, against the corporation which employed him, to recover for injuries alleged to have been received by him while in the employ of the defendant, in its rolling mills, about November, 1892.

Edmund W. Burke, Judge, presiding. This is a suit in assumpsit .brought by the appellee, Charles H. Payson, against the appellant, William F. Gorrell, in the circuit court of Cook county, to recover the value of certain services rendered by Payson to Gorrell, as an attorney. A trial of the case before a jury in the circuit court resulted in a verdict for plaintiff for the sum of $5316.37.

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

G-. Monohan, Judge, presiding. This is an appeal from a judgment of the county court of Cumberland county against delinquent lands belonging to the appellant, situated in the village of Neoga in that county, upon the application of the treasurer and ex officio collector of the county for judgment against the same on account of the non-payment of the taxes and assessments due thereon for the year 1895.

Elbridg-e Hanecy, Judge, presiding. This is a bill in chancery, filed in the circuit court of Cook county on July 14, 1896, by the appellant, Winnie Bates, for the purpose of setting aside and canceling a deed of certain lots in LaGrange, Cook county, Illinois, executed bn May 10, 1890, by George C. Skidmore, the father of appellant, in his lifetime, to appellee, Julia E. Skidmore, the wife of said George C. Skidmore.

Theodore Brent ano, Judge, presiding. Appellant is a corporation duly organized under the Homestead Loan Association act. In January, 1886, Leon Nubling became a member of the association, subscribing for twenty shares of the stock of said association of the fifteenth series.

<p>1. Special taxation—what objections may be considered on application for judgment of sale. On application for judgment of sale for a delinquent special tax or assessment only such objections may be considered as affect the jurisdiction of the court to render the judgment of confirmation.</p> <p>2. Same—matters of which the confirmation judgment is conclusive. A judgment confirming a special tax is conclusive, in a collateral proceeding to sell the property for delinquent taxes, as to all objections to the proceedings in the county court, and the alleged failure of the court, and commissioners appointed by it, to comply with supposed requirements in making the assessment roll and confirming the assessment.</p> <p>3. Same—objection that ordinance is void is available in a collateral proceeding. An objection that a special taxation ordinance is void as without statutory authority, or not within the power of the city council, is available on application for judgment of sale.</p> <p>4. Same—effect of amendment of 1895 to section 17 of City and Village act. The amendment of 1895 to section 17 of article 9 of the City and Village act (Laws of 1895, p. 100,) does not abridge the city council’s power to enact special taxation ordinances, nor require the introduction therein of any new provisions to give them validity, but merely gives a property owner the right, if dissatisfied with the tax, to have the question of benefits submitted to a jury.</p> <p>5. Same—when special taxation ordinance is not invalid. A special taxation ordinance is not invalid, under the provisions of section 17 of article 9 of the City and Village act, as amended in 1895, because it provides for a special tax upon contiguous property to pay the entire cost of a street improvement, except at street intersections and along a public park, without any provision therein limiting the tax to the benefits received by the property.</p>

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

Thomas F. Tipton, Judge, presiding. This is a bill for partition, filed by appellee against the appellants, seeking partition of a house without asking for the partition of the land, upon which the house stands. Appellee owns the south half of lot 102 in James Allin’s addition to Bloomington, except five feet off the east end thereof and five feet in width off of the south side thereof, the latter having been donated for an alley.

Richard S. Tuthill, Judge, presiding. This was an action instituted in the circuit court of Cook county by Lillie Horton, to recover from the Firemen’s Insurance Company for a loss sustained by her in the destruction by fire of certain household goods on November 25, 1893. The declaration contained two counts, to which the general issue was filed, together with notice by the defendant of thirty-eight special matters which it would offer in defense.

<p>Drainage—commissioners cannot create indebtedness in advance and levy assessment to meet it. Drainage commissioners have no power to create in advance an indebtedness for completing the improvement and then levy an assessment to meet it, even though they advanced the money to complete the work after the original assessment was exhausted. (Winlcelmann v. Moredock and Ivy Landing Drainage District, ante, p. 37, followed.)</p>

Writ op Error to the Circuit Court of Mason county; the Hon. George W. Herdman, Judge, presiding. This was a suit originally commenced before a justice of the peace by George Athey, for and on behalf of the town of Sherman, against Pascal Samuell, under section 74 of the Road and Bridge act, to recover a fine, under the provisions of section 71 of the same act, for maintaining an alleged obstruction in a public highway in said town.

Writ op Error to the Circuit Court of Jackson county; the Hon. Joseph P. Robarts, Judge, presiding. This, is a writ of error prosecuted to review a decree of the Jackson circuit court sustaining a demurrer to a bill in chancery filed by plaintiff in error and other complainants against defendant in error, and dismissing the bill at cost of the complainants.

<p>Writ op Error to the Circuit Court of Cook county; the Hon. Edmund W. Burke, Judge, presiding.</p>

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

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

Writ of Error to the Circuit Court of Vermilion county; the Hon. P. Bookwalter, Judge, presiding. This was a proceeding in chancery for partition and an accounting of rents, etc., brought by plaintiffs in error in the Vermilion circuit court.

<p>1. Pleading—plea puis darrein continuance waives all previous pleas. A plea puis darrein continuance waives all previous pleas and defenses, and confesses everything constituting the cause of action except the matter contested by such plea, and by operation of law all previous pleas are stricken from the record.</p> <p>2. Evidence—when defendant has the burden of proof on plea puis darrein continuance. Where the only issue presented by a plea puis darrein continuance to a declaration on promissory notes is whether certain checks were given and received in full settlement of the notes, the burden of proving such issue is upon the defendant.</p> <p>3. Payment—tohen giving checks does not operate as a payment of notes. Evidence that the defendant to a suit on notes gave certain ante-dated checks to the plaintiff after the beginning of the suit, and that the plaintiff was to hold the notes and the suit was to stand until the checks were paid, does not tend to prove that the plaintiff accepted the checks in full settlement of the notes, but shows merely that they were received as a mode of payment.</p> <p>4. Practice—court should direct a verdict for plaintiff where'evidence does not tend to prove issue made by plea puis darrein continuance. The court should direct a verdict for the plaintiff where the evidence does not tend to prove the payment of the debt sued for, which payment is set up by a plea of puis darrein continuance.</p> <p>5. Same—when case may be placed on short cause calendar after being stricken therefrom. Striking a case from the short cause calendar in order to give the defendant time to pay certain ante-dated checks, given as a mode of paying the notes in suit after the case was put upon the short cause calendar, does not deprive the plaintiff of his right to have the cause again placed thereon upon the defendant’s default in paying the checks.</p> <p>6. Waiver—consenting to trial waives alleged error in denying previous motion to strike from calendar. A defendant consenting to go to trial before a jury of eleven men waives his right to urge as error the denial of his previous motion to strike the cause from the short cause calendar.</p>

Hon. C. G. Neely, Judge, presiding. This is an appeal from a judgment of the Appellate Court in favor of the appellee, affirming a judgment of the circuit court of Cook county also in favor of the appellee, rendered in an action of forcible entry and de-' tainer, commenced before a justice of the peace and tried in the circuit court on appeal from the judgment in the justice court, which was against the appellant. The trial in the circuit court was before a jury.

<p>Writ of Error to the Comity Court of Coles county; the Hon. L. 0. Henley, Judge, presiding.</p>

Abner Smith, Judge, presiding. This is an action of assumpsit, brought by the appellee against the appellants, composing the firm of Chas. Kaestner & Co., as guarantors upon a note for 83000.00, dated Chicago, November 12, 1892, executed by the Coleman & Ames White Lead Company, by George J. Williams, its manager and vice-president, payable three months after date to the order of Chas. Kaestner & Co., with interest at six per cent per annum, at room 218 First National Bank.

James A. Creighton, Judge, presiding. The appellants, Floyd Epling and others, were owners of different lots abutting on a street in the town of Waverly on which the tracks of the St. Louis, Jersey ville and Springfield Railroad Company were constructed. After the track was finished the appellants brought separate actions at law for the injury to said lots, and on June 20, 1882, recovered judgment against the railroad company for various sums.

S. S. Anderson, Judge, presiding. The city council of the city of Charleston having passed an ordinance establishing a drainage district and providing for the construction of a drain therein, as provided in the said ordinance, a petition was filed in the county court of Coles county praying for the assessment of the cost of the improvement, as provided by law, upon the property benefited thereby.

<p>Appeal from the Circuit Court of Jefferson county; the Hon. E. D. Youngblood, Judge, presiding.</p>

<p>„ , „ . 1. Special taxation—operation of amendment of 1895 to section 17 of article 9 of City and Village act. The amendment of 1895 to section 17 of article 9 of the City and Village act (Laws of 1895, p. 100,) merely limits the amount of special taxes against contiguous property to the amount they will be benefited by the improvement, and leaves that question to the determination of the court.</p> <p>2. Same—amendment of 1895 does not abolish all distinction between special taxation and special assessments. The amendment of 1895 to section 17 of article 9 of the City and Village act does not abolish all distinction between special taxation and special assessments, but takes from the city council the power to conclusively determine for itself the question of benefits.</p> <p>3. Same—special taxation ordinance is still prima facie sufficient to support the judgment. A special taxation ordinance, and the assessment roll thereunder, are prima facie sufficient to support a judgment of confirmation entered by default, though no reference to the question of benefits is made in the ordinance.</p> <p>4. Same—objection that property is taxed more thanbenefited should be made at confirmation. An objection that property is specially taxed more than it is benefited must be made at the time of application for judgment of confirmation, and comes too late on application for judgment of sale for the delinquent tax.</p> <p>5. Same—when judgment confirming a special tax will be sustained. Where a special taxation ordinance, and the proceedings thereunder, conform to the law as it stood prior to the amendment of 1895 to section 17 of article 9 of the City and Village act, and judgment has been rendered confirming the tax, the judgment will be conclusive, in a collateral proceeding, that the property was not taxed in excess of the benefits derived from the improvement.</p> <p>6. Same—effect where lax is levied against lots jointly, instead of severally. The fact that a special tax is levied against two lots, owned by the same party, jointly, instead of severally, will not invalidate the tax in a collateral proceeding, as it will be presumed, in the absence of evidence to the contrary, that some good reason existed for listing them together. (Howe v. People, 86 111. 288, and Louisville and Nashville Railroad Go. v. City of Past St. Louis, 134 id. 656, distinguished.)</p>

Writ op Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding.

<p>1. Equity—one seeking to enjoin assessment as excessive must offer to pay what is due. A bill in equity to vacate a judgment confirming a special assessment and enjoin the collection of the assessment because it exceeded the amount named in the notice sent by the commissioners, with which amount the complainant was satisfied and therefore allowed judgment by default, is properly dismissed where complainant makes no offer to pay the amount named.</p> <p>2. Same—one must complain in apt time of defects not apparent of record. A property owner who has notice of a confirmation judgment, fair upon its face, shortly after its entry, will not be permitted to wait until the improvement is completed and then have the judgment vacated in equity and the collection of the assessment enjoined, on the ground that the notice of the assessment sent by the commissioners was for less than the judgment entered, which fact was not apparent of record.</p>

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

<p>1. Judgments and decrees—assignee of judgment tahes only an equitable interest therein. A judgment is not assignable so as to vest a legal title in the assignee, and the assignee takes only an equitable interest therein subject to existing equities between the parties thereto.</p> <p>2. Same—when assignee of judgment will be protected against latent equities of third persons. An assignee of a judgment who has parted with a valuable consideration therefor will be protected against a latent equity of a third person of which he was ignorant, provided bis equity is equal to that of such third person.</p> <p>3. Same—the lien of a judgment is general. The lien of an ordinary judgment is general, and not against any specific portion of the debtor’s property, and is subject to existing equities.</p> <p>4. Mortgages—mortgagee has an equitable interest in land intended to be mortgaged but misdescribed. One who parts with his money upon the security of a particular tract of land which is misdescribed in the mortgage has merely an equitable interest therein.</p> <p>5. Liens—equity of mortgagee in misdescribed land is superior to lien of general judgment. The equity of a mortgagee in a tract of land intended to be mortgaged to him, but which is misdescribed, is superior to the lien of a general judgment against the mortgagor, rendered before the mistake in description had been corrected.</p> <p>6. Same—equity of mortgagee in misdescribed land is not superior to lien of attachment judgment. The equity of a mortgagee in a misdescribed tract of land is not superior to the lien of an attachment judgment against such tract, rendered before the misdescription had been corrected and before the attachment plaintiff had notice of the mortgagee’s equity therein.</p> <p>7. Same—when equity of assignee of judgment will be protected against equity of the mortgagee. The equity acquired by the assignee of an attachment judgment against land will prevail against that of a mortgagee in the same tract, which was to have been conveyed to the latter as security but which was misdescribed, where the assignee purchased the judgment for a valuable consideration, in ignorance of the mortgagee’s rights.</p> <p>8. Same—assignment of attachment judgment to attorney—how far his lien will be protected. The lien acquired in a tract of land by an attorney under an attachment judgment, which was assigned to him as security for services performed and for future services, will be protected against the latent equity of a third person only to the extent of the value of the services rendered before the attorney had notice of such third person’s rights.</p> <p>9. Attachment—appearance of defendant and rendering of general judgment does not release attachment lien. The appearance of the defendant in attachment proceedings and the rendition of a general judgment against him do not operate as an abandonment of the attachment proceedings nor release the attachment lien.</p> <p>10. Appeals and errors—one cannot complain of error which concerns another alone. The defendant in foreclosure proceedings whose rights alone are affected by the decree is the only party who can complain of the alleged error of the court in vacating the decree at a subsequent term, on motion of the complainant, in order to correct a misdescription of the mortgaged premises, instead of proceeding by bill of review.</p>

<p>Original petition for mandamus.</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. Theodore Brentano, Judge, presiding.

<p>1. Taxes—laws exempting property from taxation will be strictly construed. Laws exempting property from taxation will be strictly construed, and all reasonable intendments will be indulged in favor of the State.</p> <p>2. Same—lot adjoining cemetery grounds used as residence for custodian is not exempt from taxation. A separate lot adjoining a cemetery, purchased, held and used, not for burial purposes, but for an office and residence of the custodian of the grounds, and upon which is a well to supply water for use in the grounds, does not come within the constitutional or statutory provisions exempting cemetery grounds from taxation.</p>

Philip Stein, Judge, presiding. This was an action for personal injuries, brought by Martin Dougherty, against the West Chicago Street Railroad Company, resulting from an accident which occurred in October, 1892, at the intersection of Milwaukee and Wabansia avenues, in Chicago. Appellee, about seven o’clock in the morning, was riding to his work in a wagon owned and driven by one James O’Brien.

<p>1. Appeals and errors—motion for verdict must be accompanied by written instruction. Alleged error of the trial court in denying a motion to take the case from the jury and direct a verdict cannot be considered in the Supreme Court, where no written instruction directing a verdict is offered with the motion.</p> <p>2. Trial—peremptory instruction comes too late when offered in the series. One cannot raise the question whether the case should be submitted to the jury upon the facts, by a peremptory instruction offered as one of a series of instructions upon which the case is submitted.</p>

<p>1. Uses—when use is executed by statute andtitle passes to beneficiaries. Where property is devised to executors for the benefit of the testator’s son and his children, the use is executed by the statute, (Rev. Stat. 1874, chap. 30, sec. 3,) and the title passes directly to the beneficial devisees if no powers or duties are conferred or imposed upon the executors, respecting either the property or the beneficiaries, which require them to hold the legal title.</p> <p>2. Wills—clause of vrill construed as creating a life estate with remainder in fee. A devise of property “for the benefit” of the testator’s daughter and son, “for them and their children, should they have any,” creates a life estate in the testator’s children in an undivided half of the property with remainder in fee to any children which might be born to either, and neither creates an estate in co-tenancy between them and their children nor limits the remainder-men to children in being at the testator’s death.</p> <p>3. Remainders—remainder to life tenant’s children vests at birth of first child. A remainder in fee to the life tenant’s children, “should he have any,” vests at the birth of the first child, subject to being diminished by the birth of other children.</p> <p>4. Partition—sale of property having a life estate in undivided half —proper treatment of proceeds. Upon the sale, under a partition decree, of property in which a life estate exists in an undivided half with remainder in fee to the life tenant’s children, one-half the proceeds of the sale must be treated the same as the property would have been if not sold, in order to preserve the rights of the respective parties.</p> <p>5. Same—when appellant must pay costs on appeal from partition decree. The appellants must pay the costs on appeal from a partition decree, where there is no controversy as to the rights of one appellee and no error is assigned questioning the decree as to him, and the other appellees are minor children against whom the contention of the appellants is not sustained, although the decree is reversed owing to a different construction by the Supreme Court from that of the trial court of the will under which the parties claim.</p>

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

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

Writ op 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. M. F. Tuley, Judge, presiding.

<p>1. Evidence—what proof not necessary to support allegation that the injury occurred in a public street. To support an allegation that the place of the plaintiff’s injury was in a public street it is not necessary that a plat or other documentary evidence should be introduced, nor the legal existence of the street shown by proof of dedication or prescription.</p> <p>2. Same—what sufficient to go to jury as tending to prove that injury occurred in a public street. Statements of witnesses that plaintiff’s injury occurred in a public street, naming it, and that hundreds of people passed along there daily, are sufficient to go to the jury as tending to show that the injury occurred in a public street, although it appears from their testimony that there were no sidewalks, and that the entire space for several blocks was occupied by railroad tracks, and that only foot passengers traveled there.</p>

<p>1. Special assessments—construction of connected system of sewers and drains is not a “double improvement.” An assessment ordinance is not invalid, as providing for a double improvement, because it provides for the construction of a connected system of drains and sewers along the various streets of the municipality, instead of being confined in its application to a single street.</p> <p>2. Same—when ordinance is not void for uncertainty. An ordinance providing for a connected system of drains and sewers, which specifies the various streets to be improved, the grade of the sewer in each street, its internal dimensions, materials of which it is to be constructed and the character of the work in detail, and which, in addition, expressly approves the plans, specifications, maps and profiles on file with the clerk is not void for uncertainty.</p> <p>3. Same—when provision of ordinance in conflict with statute will not render the ordinance invalid. A provision in an ordinance for street improvement by which the board of trustees reserve the right to reject “any proposal, at their discretion,” is in conflict with section 50 of article 9 of the City and Village act. (Rev. Stat. 1874, p. 239.) But such provision will he regarded as nugatory and the ordinance valid where it does not appear that the board of trustees ever acted thereunder.</p> <p>4. Same—objection that the oath administered to commissioners was defective must be made at confirmation. An objection that the oath administered to the commissioners appointed to make the assessment was defective must be interposed at the application for confirmation, and comes too late on application for judgment of sale for the delinquent assessment.</p> <p>5. Same—separate ordinance is not necessary to provide for division of assessment into installments. An ordinance providing for the construction of an improvement to be paid for by special assessment may provide for the-division of the assessment into installments. A separate, subsequent ordinance is not required.</p> <p>6. Same—dismissal of petition as to part of property does not release all. The fact that a city voluntarily dismisses a special assessment petition against particular lots, the owners of which appeared and filed objections to the confirmation, does not relieve the remaining lot owners who permitted the judgment to go by default from liability for the assessment.</p> <p>7. Same—when objection comes too late. An objection that by the dismissal of an assessment petition against part of the lots those remaining are assessed more than their proportionate share of the cost of the improvement, comes too late when first made on application for judgment of sale for the delinquent assessment.</p>

<p>1. Carriers—proof of payment of fare not necessary to show relation of carrier and passenger. Proof of payment of fare is not essential to establish the relation of passenger and carrier between the plaintiff and the defendant street railroad company, where the plaintiff entered the car in the usual way, conducted herself as a passenger, and was conveyed as such from where she boarded the car to where she was injured in attempting to alight.</p> <p>2. Same—stopping street car at crossing—duty to parties getting on or off. Servants in charge of a street car which has stopped at or near a street crossing must exercise reasonable care, before again starting the car, to see that passengers getting on or off the car are not in such a position as to be endangered by putting it in motion.</p> <p>3. Same—ordinance for stopping cars at further crossing—duty of servants stopping car at nearer one. The fact that a city ordinance provides that street cars stopping at street intersections shall stop at the further cross-walk, does not relieve those in charge of a car stopping at the nearer cross-walk from using reasonable care to see that persons attempting to get on or off will not be endangered by starting the car.</p> <p>4. Same—stopping car at nearer cross-walk may be regarded as an invitation to alight. Where a street car approaching a street intersection comes to a stop at the nearer cross-walk, passengers who have reached their destination may reasonably regard it as an invitation to alight, and persons desiring to become passengers may, without any necessary imputation of negligence, attempt to enter.</p> <p>5. Negligence—questions of fact which are settled by the Appellate Court’s judgment of affirmance. Whether a street car was suddenly started while the plaintiff was attempting to alight, and whether the plaintiff was exercising ordinary care for her safety, are questions of fact, which are conclusively settled by the judgment of the Appellate Court affirming that of the trial court.</p> <p>6. Same—person not required to use highest degree of care in alighting from street car. An instruction, in an action against a street railroad company for injuries received by the plaintiff in alighting from the car, that the jury should find for the defendant if they believed, from the evidence, that the circumstances called for the exercise of the highest degree of care by the plaintiff, and that by its exercise the injury might have been avoided, is erroneous.</p> <p>7. Same—what is ordinary care depends upon the circumstances of each case. Where circumstances are such that an ordinarily prudent person would exercise a greater degree of care than under less threatening circumstances, such greater degree of care is but ordinary care under the particular circumstances.</p> <p>8. Same—when instruction in action for negligence is properly refused. In an action against a street railroad company for injuries received by plaintiff in alighting, an instruction that the passengers are presumed to know that the proper places to alight are at the further cross-walks, and that servants in charge of the car may assume that passengers, in alighting, will exercise reasonable care with reference to such knowledge, is properly refused.</p>

<p>Mechanics’ liens—aci of 1895 cannot apply to prior contracts. The Mechanic’s Lien act of 1895 gives new remedies to parties furnishing labor or material to sub-contractors, and imposes new duties upon owners, and cannot be allowed to control contracts entered into before its passage without making it obnoxious to the constitutional provision concerning laws impairing the obligation of contracts. (Andrews <& Johnson Co. v. Atwood, 167 111. 249, followed.)</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. James Goggin, 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. Elbridge Hanecy, Judge, presiding.</p>

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

<p>Writ of Error to the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>1. Principal and agent—single act as agent does not raise presumption of appointment. The fact that one has assumed to act as the agent of another in a single transaction does not raise a presumption of appointment as such agent by the principal acted for.</p> <p>2. Same—whether an alleged unauthorized act was ratified is a question of fact. Whether an alleged unauthorized act of one party in signing and acknowledging articles creating a limited partnership as attorney in fact for another party was ratified by the latter, is a question of fact finally settled by the Appellate Court’s judgment of affirmance.</p> <p>3. Novation—all parties to original contract must consent to the new one. It is essential to a novation that all parties to the original contract consent to the substitution of the new one, though such consent may be either express or implied.</p> <p>4. Same—what facts do not, in law, establish consent to novation. Neither notice to a creditor of a partnership that the latter has become incorporated and that the corporation has assumed the firm debts, nor partial payment of the creditor’s claim by the corporation, nor a demand by the creditor on the receiver of the corporation for payment of the claim and acceptance of dividends thereon, establishes the creditor’s consent to the novation as a matter of law, but such facts may all be considered in determining, as a question of fact, whether there was an implied consent.</p>

<p>1. Constitutional law—purpose of section 22 of articles of the constitution, concerning special legislation. By section 22 of article 3 of the constitution, which provides that the General Assembly shall not pass local or special laws incorporating cities, towns or villages or changing or amending the charter of any city, town or village, it was designed that no city, town or village should thereafter become incorporated, or have its charter changed or amended, except by general law.</p> <p>2. Same—legislature cannot pass laws creating or perpetuating dissimilarity of organization in municipalities of same class. It is not admissible, either by the letter or the spirit of the constitution, that dissimilarity in character of organization or powers between municipalities of the same class or grade shall be created or perpetuated by enactments of the legislature.</p> <p>3. Same—classification of municipalities based on existing difference of charters is unconstitutional. An act which attempts to put certain special charter municipalities into a class by themselves, basing such classification, not upon any rule for classifying municipalities or any circumstance affecting them differently from other municipalities in the State, but merely upon a different provision in their charters from those of other municipalities and a preference of the electors for such provision, is unconstitutional.</p> <p>4. Same—act of 1897, authorizing special charter cities to organize under general law and retain provision of charter, is unconstitutional. The act of 1897, (Laws of 1897, p. 99,) which authorizes municipalities existing under special charters containing a special prohibitory license clauste to re-organize under the general law for the incorporation of cities, towns and villages and still retain such special prohibitory clause, is unconstitutional.</p>

<p>1. Pleading—when judgment in action of debt may exceed ad damnum. In an action of debt to recover a statutory penalty the damages may be laid in the declaration as nominal and a judgment be entered for substantial damages.</p> <p>2. Appeals and errors—appeal lies to Supreme Court where the validity of a statute is involved. Under section 8 of the act on courts, as amended in 1887, (Laws of 1887, p. 156,) appeals in cases involving the validity of a statute lie directly to the Supreme Court.</p> <p>3. Same—decision of Appellate Court reviewed only as to errors properly assigned. The Supreme Court can review the decision of the Appellate Court only as to errors there properly assigned and insisted upon and upon which such court had jurisdiction to pass.</p> <p>4. Same—appealing to Appellate Court waives right to assign errors cognizable only by Supreme Court. Appealing to the Appellate Court and submitting the case for its determination upon assigned errors which it may properly consider, is a waiver or abandonment of any assignment of error which can be reviewed only by the Supreme Court on direct appeal.</p> <p>5. Practice—points relied upon for reversal cannot be first raised in reply brief. Points relied upon for reversal must be raised in the appellant’s original brief and argument, to enable opposing counsel to be heard thereon, and cannot be considered when raised for the first time in the reply brief.</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. Thomas G. Windes, Judge, presiding.

<p>1. Bastardy—section 18 of Bastardy act limits complaining witness’ right to compromise. By section 18 of the Bastardy act (Laws of 1889, p. 61,) the right of a complaining witness to release the reputed father of the child from liability is limited to cases where the latter pays not less than $400, in the absence of written consent by the county judge to settle for a less amount.</p> <p>2. Same—release of defendant by justice—how far State controls action. No appeal is provided for in the Bastardy act from a judgment of a justice of the peace discharging a defendant, and, since the amendment of 1889, (Laws of 1889, p. 61,) the cause of action is, to a certain extent, controlled by the State.</p> <p>3. Same—discharge of defendant by justice no bar to further proceedings. The release by a justice of the peace of a defendant charged with bastardy is no bar to another examination before another justice of the peace on the same charge, nor to a trial by the proper court in response to the action of the latter justice in putting the defendant under bonds to appear for trial.</p>

<p>1. Appeals and errors—when objection of variance is not waived by absence of objection from record. An objection of variance between the complainant’s allegations and proof is not waived by the absence of such objection from the record, where the alleged variance arises from proof made by the defendant upon the hearing.</p> <p>2. Same—variance in proof of immaterial allegation is not ground for reversal. Variance in proof of an immaterial allegation of the complainant’s bill is not ground for reversal.</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>

trict;—heard in that court on appeal from the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding. The Consolidated Ice Machine Company, a corporation, made an assignment for the benefit of creditors to Robert Jenkins, on October 14, 1890. The assignee gave notice to creditors to present claims against the insolvent estate in pursuance of the statute, which notice was published in 1892.

<p>1. Evidence—action for negligence—what is admissible as tending to show plaintiffs previous physical condition. While the physical condition of the plaintiff prior to her injury cannot be proved by her declarations made to her acquaintances, yet it is not error to permit a witness who had visited the plaintiff almost daily for several months prior to the injury, to state the fact that she had not heard the plaintiff complain of any sickness.</p> <p>2. Same —proof of plaintiff’s condition after injury—what not erroneous admission of testimony. Where a witness, in an action for negligence, who had visited the plaintiff the day after the injury, is asked how she found the plaintiff at that time, the admission in evidence of her answer that “she was complaining awful bad” is not erroneous, as such a statement cannot be regarded as proof of a declaration by the plaintiff concerning her condition.</p> <p>3. Same—statements of pain, not made to physician, inadmissible if not part of res gestee. Statements of pain and suffering, past or present, when not made to a physician or medical expert to enable him to form an opinion of the injury, with a view to treatment or other legitimate purpose, are inadmissible, unless part of the res gestee.</p> <p>4. Same—when evidence is incompetent, as being a mere declaration of plaintiff concerning her condition. Where a witness who visited the plaintiff the day after her injury is asked where the plaintiff complained of pain, her answer that “she complained of her side and under her spine, in the back and this ankle; she screamed with the ankle awfully,” is incompetent, as being a mere declaration by the plaintiff concerning her condition.</p> <p>5. Same—proof of manner of injury—what competent as part of res gestee. In getting before the jury in a personal injury case how and in what manner the plaintiff was injured, it is competent to show, as part of the res gestee, all that occurred, although in so doing it may appear that other persons than the plaintiff were injured.</p> <p>6. Appeals and errors—when an erroneous admission of evidence will not reverse. The erroneous admission in evidence, in an action for negligence, of the declarations of the plaintiff made to an acquaintance, after the injury, concerning her pain and suffering, will not work reversal where the same evidence had already been given by a physician, to whom the declarations were also made.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. B. R Burroughs, Judge, presiding.</p>

Arthur H. Chetlain, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment in the sum of $2500, entered in the Superior Court of Cook county in an action on the case brought by the appellee against the appellant company.

Writ op Error to the Circuit Court of Massac county; the Hon. A. K. Vickers, Judge, presiding. At the November term, 1896, of the circuit court of Massac county plaintiff in error was convicted of the crime of murder and sentenced to the penitentiary for sixteen years. From this conviction he has sued out this writ of error. It appears from the record that plaintiff in error was marshal of the village of Brooklyn, in Massac county.

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.</p>

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

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

R. W. Clifford, Judge, presiding. On January 24,1894, Jacob J. Kern, as State’s attorney of Cook county, filed in the circuit court of that county a petition, upon the relation of William Mcllhany, for leave to file an information in the nature of quo loarranto against the Chicago Live Stock Exchange. Prom a judgment denying the prayer of and dismissing that petition an appeal was prayed and allowed to this court.

<p>Appeal from the Circuit Court of Mercer county; the Hon. Hiram Bigelow, Judge, presiding.</p>

<p>Creditor’s bill—a creditor’s bill will not lie against a city to reach a debt owing by city to third party. A creditor’s bill will not lie against a municipal corporation to enable the complainant to reach a debt owing by the municipal corporation to a third party.</p>

<p>1. Criminal law—uncorroborated testimony of accomplice should be acted upon with great caution. While the uncorroborated testimony of an accomplice may be sufficient to sustain a conviction, yet it is liable to grave suspicion and should be acted upon with the utmost caution.</p> <p>2. Same—;fact that a co-defendant was promised immunity should be considered in weighing testimony. The fact that a co-defendant in an indictment for murder was given express assurance that she would not be punished if she would testify against her co-defendant is a circumstance to be considered in weighing her testimony.</p> <p>3. Same—effect where immunity is promised by relative in presence of attorney for the State. The fact that a promise of immunity is made to a co-defendant, a woman of weak mind, by her uncle, in the presence of the assistant prosecuting attorney, who neither repudiates nor explains it, does not lessen the force of the promise as tending to affect the credibility of her testimony.</p> <p>4. Same—when conviction for murder on uncorroborated testimony of co-defendant cannot be sustained. A conviction of a person for murder, on the ground that he advised the crime of killing an illegitimate child, though not present, cannot be sustained upon the uncorroborated testimony of his co-defendant, the child’s mother, who committed the crime, where the latter is so insane at the time of the trial as to be incompetent as a witness and her testimony is wholly contradicted by the party convicted.</p> <p>5. Witnesses—one mentally incapable of understanding an oath is not a competent witness. One who is so deficient in understanding as to be incapable of comprehending the nature and obligation of an oath is not a competent witness.</p>

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

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

Farlin Q. Ball, Judge, presiding. This was a bill in chancery by the appellee, a minor, who sued by his next friend, to set aside as null and void a judgment in the sum of $125 entered in his favor near ten years before, against the appellant company, as for the damages sustained by the said minor complainant for the loss of his right leg through the negligence of the appellant company.

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

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

<p>■ Appeals and errors—appeal from county court in voluntan/ assignr ments lies to Appellate Court. An appeal in a case arising out of the filing of objections in the county court to the report of an assignee for creditors lies direct to the Appellate Court, and it cannot be taken to the circuit court by appeal for trial de novo.</p>

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

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

James Shaw, Judge, presiding. This was a bill in chancery filed on March 21, 1897, in the circuit court of Whiteside county, by Joseph S. Martin, against John W. and David L. Martin, Sarah Jane Dillon, and others.

<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. C. G. Neely, Judge, presiding.</p>