Volume 172 — Illinois Reports

R. W. Clifford, Judge, presiding. Appellee instituted an action of assumpsit against appellant, and filed its declaration containing the common counts only. Subsequently, by leave of court, six special counts were filed. Under the first two special counts appellee claims for sinking two wells at Flatonia, Texas, and furnishing certain machinery and appliances to be used therewith.

Jonas Hutchinson, Judge, presiding. This was an action of assumpsit, brought by appellees, a firm known as M. A. Mead & Co., against William I. Watson and James Conlan, a firm, as is claimed, known as W. I. Watson & Co. The action was brought by suing out a writ of attachment, which was levied on certain property. The declaration contained the common counts, to which the defendant Conlan filed a plea traversing the grounds for an attachment set up in the affidavit.

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

C. F1. Wheat, Judge, presiding. On the 7th day of April, 1892, the city council of the city of Chicago passed an ordinance for the construction of a sidewalk seven feet wide, on the south side of Sixtieth street, from Cottage Grove avenue to South Park avenue. By the ordinance three commissioners were appointed to make an estimate of the cost of the improvement.

<p>Special assessments—court cannot, on application for sale, reduce assessment to meet cost of improvement. The court has no power, on application for judgment of sale for a delinquent special assessment, to reduce such assessment to an amount equal to the cost of the part of the improvement already completed and the estimated amount necessary to finish the work. (People v. McWeihy, 165 Ill. 222, and Boynton v. People, 159 id. 553, distinguished.)</p>

<p>°1. Elections—election of a tmon officer can be contested only by an elector of the town. Under section 112 of the Election act (Rev. Stat. 1874, p. 465,) the election of a town officer can be contested only by an elector of the town, and a petition is fatally defective which fails to show that the petitioner is such elector.</p> <p>2. Same—pleading—what not equivalent to averment that petitioner was an elector. Averments in a petition to contest an election of a town officer, that the petitioner was a resident of the town and that he had been nominated for the office of commissioner of highways and his name printed upon the ballot, are not equivalent to an averment that he is an elector of such town.</p>

<p>1. Criminal law—the University of Illinois belongs to the class of corporations specified in section 80 of the Criminal Code. The University of Illinois, while not a municipal corporation, is a public corporation, and its officers are within the provisions of section 80 of the Criminal Code, concerning the punishment of any “State, county, township, city, town, village or other officer” who embezzles ór fraudulently converts public funds, to his own use.</p> <p>2. Same—indictment against treasurer of University of Illinois for embezzlement is properly framed on section 80. An indictm ent against the treasurer of the University of Illinois for fraudulently converting the funds of the university to his own use is properly framed on section 80 of the Criminal Code, as such treasurer is a public officer charged with a public trust in receiving, holding and disbursing public funds and property.</p> <p>3. Same—designating a public corporation as a “municipal corporation” is not substantial error. Designating a corporation as a “municipal corporation” in an indictment against its treasurer for fraudulently converting its funds to his own use, and in the court’s instructions to the jury, is not substantial error, where the corporation is a public corporation, and within the terms of the statute on which the indictment is framed.</p> <p>4. Same—under section 80 if acts done are fraudulent they are done with criminal intent. The word “embezzle” and the words “fraudulently convert to his own use,” used in section 80 of the Criminal Code, mean the same thing, and in both a criminal intent is necessary, but if the acts relied upon as constituting the crime are fraudulently done they are done with criminal intent.</p> <p>5. Same—when exclusion of evidence as to criminal intent is not prejudicial error. Where the treasurer of a public corporation intentionally pledges its endowment bonds to secure a loan to himself, the exclusion of evidence, on his trial for embezzlement under section 80 of the Criminal Code', that owing to a deficit in the general funds, which he claimed the right to use for private purposes by reason of his agreement with the trustees to pay interest thereon, he had pledged the endowment bonds and used the money to pay warrants of the corporation regularly drawn upon him as treasurer, is not prejudicial error.</p> <p>6. Same—evidence of specific intent to pay the debt when due is not material. On the trial,.for embezzlement, of the treasurer of a public corporation who had knowingly and wrongfully pledged bonds of its endowment fund to secure a loan to himself, evidence of the defendant’s specific intention to pay the debt when it came due is not material.</p> <p>*7. Same—when instruction as to the effect of proof of prior goodreputatiiln is erroneous. An instruction on a trial for embezzlement, to the effect that the defendant’s good reputation as proved might of itself raise a reasonable doubt of his guilt, is erroneous, where the proposition is not stated as an abstract rule of law, but as applying to the proof of good reputation in the case on trial, ignoring all other evidence.</p> <p>8. The court holds that while the evidence in this case as to venue might have been more specific, it was sufficient to authorize the jury, in the absence of contrary proof, to find that the venue was proved.</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. Thomas G. Windes, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. W. T. Hodson, Judge, presiding.</p>

<p>1. Taxes—highway commissioners cannot levy tax for maintenance of roads lying within city limits. The jurisdiction of a city over roads and bridges lying within its limits is exclusive, and township highway commissioners have no authority to levy a tax for their maintenance or construction.</p> <p>2. Same—township organization—effect on road tax where city and town are co-exlensioe in territory. Where the territory co-extensive with the limits of a city is organized into a town under the act of 1877, (Laws of 1877, p. 212,) and the office of highway commissioner is discontinued, the city council cannot levy a road tax in addition to the two per cent allowed for corporate purposes, as the highway commissioners could not have levied such a tax.</p> <p>3. Practice—allowance of amendments is within the sound discretion of the court. The allowance of amendments at trial is within the sound discretion of the court, which discretion will not be reviewed on appeal, in the absence of anything indicating its abuse.</p>

<p>Writ op Error to the Circuit Court of Jefferson county; the Hon. E. D. Youngblood, Judge, presiding.</p>

<p>1. Revenue—it is the duty of a county board to hear complaints of alleged over-valuation by assessor. Section 97 of the Revenue act (Rev. Stat. 1874, p. 873,) makes it the imperative duty of a county board to entertain, consider and determine the complaints of parties claiming an over-valuation of their property by the assessor, and the statute makes no provision for the hearing and determination of such complaints by any other tribunal.</p> <p>2. Mandamus—mandamus lies to compel comity board to pass upon complaints of over-valuation. Mandamus lies to compel a county board to hear and determine complaints of parties feeling themselves aggrieved by an over-valuation of their property by the assessor.</p> <p>3. Injunction—jurisdiction of equity to enjoin collection of taxes. A court of equity will not enjoin the collection of a tax unless the tax itself is unauthorized by law, or is levied upon property not subject to taxation, or the property assessed is fraudulently valued at too high a rate.</p> <p>4. Same—tax will not be enjoined because the county board refused to review assessment. One who fails to apply for mandamus upon the county board’s refusal to pass upon his complaint of over-valuation of his property by the assessor, cannot enjoin the collection of the tax on the ground of such refusal, where it is not claimed that the over-valuation was fraudulent.</p>

<p>1. Mortgages—section 2 of Chattel Mortgage act of 1889 construed. Section 2 of the Chattel Mortgage act of 1889 (Laws of 1889, p. 208,) was enacted to protect the husband or wife from the disposition of household goods by one against the wish of the other, and was not to prevent either from purchasing goods for household purposes and mortgaging the same for purchase money.</p> <p>2. Same—mortgage given on purchasing goods for household use need not be jointly made. A husband or wife may purchase goods for household purposes and individually execute a valid mortgage thereon to secure the purchase price, as in such case the lien attaches before the property becomes “household goods,” within the meaning of the statute.</p> <p>3. Damages—measure of damages where mortgaged property is sold under distress warrant. The measure of damages in an action by a mortgagee against a landlord for wrongfully selling his tenant’s mortgaged property for unpaid rent, is the amount of the mortgage lien undischarged, not exceeding the value of the property.</p> <p>4. Instructions—erroneous instruction harmless if jury is not influenced thereby. An erroneous instruction that the measure of damages in an aption by a mortgagee against a landlord for selling the mortgaged property is the full value of the property is harmless, where the verdict and judgment are for an amount within the range of evidence as to the value of the property and less than the amount of the undischarged lien.</p> <p>5. Evidence—mortgage note is the best, but not the only, evidence of the ■debt. A note secured by chattel mortgage is the best, but not the only, evidence of the debt, and where no objection is made to the introduction of the mortgage in evidence, the mortgage, together with the mortgagee’s testimony as to credits, will establish the amount of the debt, in the absence of any contradictory proof.</p> <p>6. Appeals and errors—when alleged error in denying motion to take case from jury will not be considered. Alleged error in denying defendant’s motion to take the case from the jury will not be considered, on appeal, where the motion is not in the form of a written request for a peremptory instruction, or where, after its denial, the defendant introduces his testimony and fails to renew the motion at the close of all the evidence.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. W. T. Hodson, Judge, presiding.</p>

<p>The court, upon consideration of the relator’s petition for mandamus to compel the clerk of the Superior Court of Cook county to write up an alleged judgment by default in her favor, holds that the lower court properly sustained a demurrer thereto.</p>

Orrin N. Carter, Judge, presiding. The Southern Hotel Company, a corporation in Chicago, made an assignment, and Brodie B. Davis was named as assignee. The deed of assignment was duly filed in the county court, and the court assumed jurisdiction over the insolvent estate. On the 24th day of July, 1894, Davis resigned as assignee, and appellant, Wallace C. Clark, was appointed in place of Davis.

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

<p>1. Attorneys at law—relation of attorney and client does not necessarily terminate with obtaining of decree. Obtaining a decree of divorce does not terminate the fiduciary relation between the complainant and her solicitor, where the solicitor continues to attend to the arranging of property matters between the complainant and the defendant; and a deed made during that time by the client to her solicitor is made while the fiduciary relation exists.</p> <p>2. Same—client, on seeking to set aside deed to attorney, is not required to show fraud. A client seeking to set aside a deed made by her to her attorney during the existence of the fiduciary relation is not required to show fraud or imposition,' but the burden is upon the attorney to show fairness, adequacy and equity, and upon his failure to do so a court of equity will regard the transaction as constructively fraudulent.</p>

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of McDonough county; the Hon. Charles J. Scofield, 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. James Goggin, Judge', presiding.</p>

Writ op Error to the Circuit Court of Cook county; the Hon. E. E. Dunne, Judge, presiding. This case was commenced by a bill or information in the name of the People of the State, filed in the circuit court of Cook county on the 9th day of March, 1896, against the General Electric Railway Company, the city of Chicago, George B. Swift, mayor of that city, and William D. Kent, commissioner of public works.

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

<p>1. Special assessments—parol proof of publication of notice may be made. The fact that the statute makes the publisher’s certificate of publishing notice of application for confirmation evidence of such publication does not exclude parol evidence of that fact.</p> <p>2. Same—parol proof of publication is admissible though the objector appears specially. Parol proof of the publication of notice of application for confirmation is admissible though the objector files a special appearance questioning the jurisdiction of the court to entertain the application for want of proper publication.</p> <p>3. Same—laying sewer in boulevard is the province of the city. The construction of a sewer in a boulevard under the control of park •commissioners is for the benefit of adjoining property and not for the improvement of the boulevard, and the power to construct such sewer by special assessment resides in the city and not in the park commissioners. ( West Chicago Park Comrs. v. Baldwin, 162 Ill. 87, followed.)</p>

<p>Writ of Error to the Circuit Court of Henry county; the Hon. W. H. Gest, Judge, presiding.</p>

James Goggin, Judge, presiding. This is an action in case, brought by the appellee against the appellant company to recover damages for a personal injury. The trial in the court below resulted in verdict and judgment for §5000.00 in favor of appellee. The case w'as taken by appeal to the Appellate Court, where an order was entered affirming the judgment of the trial court for the sum of §3000.00, the plaintiff having remitted all over that amount.

<p>1. Appeals and errors—a partition decree settling rights of parlies is final. A partition decree which settles the rights of the parties in the premises, confirms a report of arbitrators upon the question of accounting of rents and profits and appoints commissioners to make partition, is a final, appealable order.</p> <p>2. Same—party to a partition decree should not delay appealing until after decree of distribution. Where a partition decree fixes the rights of the parties, upon the entry of an order confirming the commissioners’ report against partition and directing the sale of the premises, dissatisfied parties should appeal at once, and not wait until after sale and appeal from the decree confirming the sale and ordering distribution.</p> <p>3. Same—appeal may lie to Appellate Court though freehold is involved in decree. Where no objection is made to a decree so far as it settles the rights of the parties in the freehold involved in the litigation, an appeal from another part of the same decree lies to the Appellate Courts</p> <p>4. Same—points not made in original brief cannot be afterwards raised. Under Supreme Court rule 15, adopted November 4,1897, points relied upon for reversal not raised in the brief in chief cannot after-wards be raised either by reply brief, oral or printed argument or petition for rehearing.</p>

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

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

<p>1. Brokers—term “stock broker” defined. A stock broker is one who, for commission, attends to the sale and purchase of stocks or shares, and of government and other securities, in behalf and for the account of clients.</p> <p>2. Same—stock broker may have possession of securities and settle payments therefor. A stock broker may be intrusted with the securities of his client, may take or transfer them without the name of his principal appearing, and may pay or advance the price for purchases or receive payment for sales.</p> <p>3. Same—members of Chicago Stock Exchange are “brokers.” Members of the Chicago Stock Exchange are “brokers,” within the meaning of the ordinance of the city of Chicago requiring a license fee for the privilege of carrying on the business of a broker, and they are liable to punishment for violations of such ordinance.</p> <p>4. Same—words “goods, wares and merchandise,” in license ordinance, include stocks. The words “goods, wares and merchandise,” used in an ordinance which defines a broker to be one engaged, for a commission, in selling “goods, wares and merchandise or produce and grain,” include within their meaning shares of stock in corporations, or other securities or bonds.</p> <p>5. Licenses—right of legislature to authorize city to impose license fee on occupations. Section 1 of article 9 of the constitution of 1870 expressly authorizes the legislature to tax certain occupations, including that of a broker; and this power may lawfully be delegated to cities, towns and villages of the State, for exercise within their respective limits.</p> <p>6. Same—ciiy may impose license fee onbrokers. By virtue of a grant of power from the legislature, cities, towns and villages in the State may impose license fees upon the occupations named in section 1 of article 9 of the constitution, including that of a broker, either for the purpose of revenue or regulation, the only requirement being that the license be uniform as to the class on which it operates.</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. Francis Adams, Judge, presiding.</p>

John Barton Payne, Judge, presiding. This ’ is a bill, filed in the Superior Court of Cook county on December 24, 1895, by the appellant, John M. H. Burgett, against the appellant, Patrick H. Heffron, and the appellees, Henry S. Osborne, Frank S. Osborne, Henry R. Pebbles and Nelson D. Parkhnrst. Subsequently, on motion of Louise N. Osborne, the wife of Frank S. Osborne, she became, by leave of court, a party defendant to the cause.

<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. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Bills op exception—newly elected judge should sign bill of exceptions in case tried by predecessor. It is the duty of a judge to settle and sign a bill of exceptions in a case heard by his predecessor, who refused to sign the same when duly presented because his term of office had expired, as the former, having access to the stenographic report of the evidence and proceedings at trial, and the power to hear witnesses as to what the evidence really was, has all the facilities possessed by the trial judge, except that of personal recollection.</p> <p>2. Same—effect, as to weighing testimony on appeal, where judge did not hear evidence. Where a bill of exceptions is settled and signed by a-judge who did not hear the evidence at the trial, that fact may be made to appear by the judge’s certificate, and the case will be determined on appeal without attaching the usual weight given the fact that the trial judge saw and heard the witnesses.</p>

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

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

Theodore Brentano, Judge, presiding. This is a proceeding by the city of Evanston, against William H. Myers, for violating its ordinance relating to the sale of intoxicating liquors.

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

<p>Mandamus—material allegations of petition must be proved when denied by answer. A petition for mandamus must be dismissed where all material allegations of fact are denied by respondent, and petitioner files no replication and takes no steps toward forming an issue of fact, sustaining his allegations by proof.</p>

Hiram Bigelow, Judge, presiding. This suit was begun in the circuit court of Mercer county, on the chancery side, by appellee, against appellant. The bill shows that on July 24,1892, complainant made a verbal contract with Margaret J. Boden, the owner of certain lands, by which she sold the same to complainant for the sum of §4800, to be paid March 1, 1893, on making the deed of conveyance.

<p>1. Statutes—an act adopting another by reference adopts it as it then existed. An act which adopts the whole or a portion of another act by reference adopts such act or portion of act as it then existed, and does not include subsequent additions or modifications, in the absence of express or strongly implied intent.</p> <p>2. Taxes—act of 1877 has no reference to rate of taxation. The act of 1877, (Laws of 1877, p. 61,) which provides that all municipalities, whether organized under general law or special charters, shall assess arid collect their taxes in the manner provided by article 8 of the City and Village act of 1872, merely requires uniformity in the mode or manner of assessing and collecting taxes, and has no relation to the rate of taxation.</p> <p>3. Same—prior to amendment of 1879 there was no limitation on amount of municipal taxes. Prior to the amendment of article 8 of the City and Village act of 1872 by the act of 1879, (Laws of 1879, p. 66,) the general law contained no limitation as to the amount of taxes which might be levied for municipal purposes.</p> <p>4. Same—two per cent limitation on municipal taxes does not apply to special charters. The limitation of two per cent on the assessed valuation of property for the preceding year, which is imposed upon municipalities as the maximum tax which may be levied for municipal purposes, (Laws of 1879, p. 66,) does not apply to municipalities working under special charters, whether such charters contain any limitation or not.</p>

<p>1. Executors and administrators —if property is accounted for it is immaterial that it is not inventoried. Under section 70 of the Administration act, (Rev. Stat. 1874, p. 116,) which provides that claims not presented within two years after granting of letters shall be barred unless other estate “not inventoried or accounted for” shall be discovered, etc., it is immaterial that the property is not inventoried, provided the executors have accounted for it.</p> <p>2. Same—mistalee in description of inventoried land does not render it “unaccounted for. ” A mistake in description of land by executors in their inventory does not render the property “unaccounted for,” where it appears that deceased owned no other land, that it was inventoried at its proper value, and that the executors, after paying all duly presented claims out of the personal estate, divided the land among the beneficiaries, as directed by the will, and made proper deeds of conveyance therefor with the approval of the court.</p>

<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>

John Gibbons, Judge, presiding. The following is the statement of the case made by the Appellate Court: “William D. Gibson filed a bill in equity in the circuit court of Cook county, making the Gassmann Parlor Frame Company, Catharine Gassmann, William Gassmann, Fred C. Mueller, George Lesprance, Henry Sondheimer and Max Sondheimer defendants, alleging, among other things, that the Gassmann Parlor Frame Company was indebted to the complainant in the sum of §103.66, and was…

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

W. G. Ewing, Judge, presiding. This is an action in assumpsit, brought upon a certain contract, dated August 26, 1889, entered into between C. P. Warren and E. W. Cooke, the latter being the appellee, of Chicago, as parties of the first part, and J. J. Ryan■ & Co., a firm composed of John J. Ryan and John J. Hayes, of Chicago, as parties of the second part.

<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>

Philip Stein, Judge, presiding. This is an action, brought by the appellee against the appellant to recover damages for a personal injury. The injury occurred on January 30,1894. The appellant owned a lumber yard in the city of Chicago. On the day in question, appellant’s foreman took appellee to a pile of lumber in appellant’s yard, and ordered him to ascend to a scaffold upon the side of the pile for the purpose of handing down lumber therefrom.

<p>This case involves the same questions determined in Bass v. South Park Comrs. 171 Ill. 370, and Aláis v. South Park Comrs. id. 424, and the decisions in those cases control this.</p>

<p>1. Equity—equity'has jurisdiction to construe will if trust is created. A will clothing the executor with power to sell real estate and distribute the proceeds in a manner pointed out by the will, different from that provided in the Statute of Descent, creates a trust, and any one included in the distribution may call upon a court of equity to construe the will and enforce the trust.</p> <p>2. Same—equity will not entertain hill to construe will where only legal titles are involved. Equity will not assume jurisdiction for the purpose of construing a will, where only legal titles are involved and no relief other than a declaration of such titles is asked.</p> <p>3. Same—equity may construe will without divesting county court of jurisdiction. Equity may construe a will, and determine the rights of the parties in the distribution of trust funds in the hands of the administrator with the will annexed, without divesting the county court of its jurisdiction over the settlement of the estate.</p> <p>4. Wills—testator is presumed to have intended to dispose of his entire property. Courts will adopt any reasonable construction of a will consistent with its terms, so as to give it effect to dispose of the testator’s entire property, rather than hold that it was his intention to die intestate as to part thereof.</p> <p>5. Same—courts cannot supply testator’s omission to dispose of property. Courts will hold that a portion of the testator’s estate is intestate property where there is nothing from which an intention to dispose of the same can be inferred.</p> <p>6. Same—effect of revocation of devise to one of several tenants in common. Where a testator devises property to several of his children as tenants in common, and subsequently revokes the devise as to one without disposing of the share revoked, such share does not pass to the other devisees, but descends as intestate property.</p>

<p>1. Easements—when an easement does not pass by implication. An easement which is not apparent, of which the grantor has not made use and of which he has no information, does not pass in his deed by implication.</p> <p>2. Same—release by mortgagee does not release easements created, by mortgagor. A release by a mortgagee of part of the mortgaged premises, “with all the appurtenances and privileges thereunto belonging,” does not release an easement of right of way over the remaining portion of the mortgaged tract, which the mortgagor had created against himself, without the knowledge or consent of the mortgagee, on conveying the portion so released.</p>

<p>1. Practice—motion for new trial, in case tried without a jury, is not an exception to judgment. A motion for new trial, in a case tried without a jury, in which no propositions of law were submitted or exception taken to the judgment, and to the denial of which motion no exception was taken, does not operate as an exception to the judgment so as to preserve errors of law for review, notwithstanding the motion is not necessary in such a case.</p> <p>2. Appeals and errors—when alleged error in admitting improper evidence will not be considered. Alleged error in admitting certain improper testimony contained in depositions will not be considered on appeal, where, though the depositions in the transcript show informal objections or exceptions, the record fails to show that the objections were made to the court and its ruling obtained thereon, or that there was any motion to suppress the depositions.</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. Francis Adams, Judge, presiding.</p>

<p>1. Evidence—what not sufficient to overcome notary's acknowledgment. A deed purporting on its face to be from a husband and wife, and regularly acknowledged, cannot be overcome, after the husband’s death, by the wife’s testimony that she never signed or executed the deed, and that her husband was very weak, physically and mentally, about the time the deed was dated, and did not sign it unless at a time when he was out of his mind.</p> <p>2. Adverse possession—adverse possession mustbe made out by clear proof. The rules governing adverse possession are strictly construed, and such possession cannot be made out by inference, but only by clear and positive proof.</p> <p>3. Limitations—possession under executory contract is not adverse to vendor. Possession of land under an executory contract of purchase is not adverse to the vendor so long as the purchase money is not paid, or until, by the terms of the agreement, the vendee is entitled to demand a conveyance of the legal-estate.</p> <p>4. Same—vendee in executory contract cannot dispute the vendor's title until after surrender of possession. One in possession of land under an executory contract of purchase cannot dispute his vendor’s title by setting up a tax deed obtained, after taking possession, by purchasing a certificate of sale for taxes assessed and levied prior thereto, where he remains continuously in possession, without renouncing or changing his claim of right under the contract.</p>

<p>Appeal from the Circuit Court of Stark county; the Hon. Leslie D. Puterbaugh, Judge, presiding.</p>

Writ of Error to the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding. Dennis S. Mullins died testate August 12, 1884, seized of the following described property: Lots 1, 2, 3 and 4, in Martin’s subdivision of the west part of block 12 of Butler, Wright & Webster’s addition to Chicago, in the county of Cook and State of Illinois, which constituted the entire estate of said Dennis S. Mullins.

G. W. Thompson, Judge, presiding. This is a proceeding in chancery, by bill filed in the circuit court of McDonough county by John W. Clark and others, seeking to set aside a deed made by Mary Clark to appellee, James S. Clark, conveying certain property in Macomb, Illinois. The original bill alleged that the grantor was seventy-eight years old, feeble in body and mind, and that she executed the deed because of the fraudulent and undue influence of the grantee.

<p>Appeal from the Circuit Court of Shelby county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Fulton county; the Hon. John A. Gray, Judge, presiding.</p>

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

<p>Appeals and errors —finding of chancellor on conflicting oral testimony not disturbed on appeal. Findings of fact by a chancellor on conflicting oral testimony will not be disturbed on appeal, unless clearly contrary to the weight of evidence.</p>

Writ op Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Macon county; the Hon. Edward P. Vail, Judge, presiding.

<p>1. Pleading—averment in bill to foreclose that a certain lot had been released is conclusive. Where a bill to foreclose a mortgage covering a number of lots avers that certain of them had been released from the lien of the mortgage, a finding by the master that one of the lots so named had not been released, and a decree and sale of the same thereunder, are erroneous.</p> <p>• 2. Same—defendant may appeal where bill avers his interest. An averment in a bill to foreclose a mortgage covering a number of lots, that the defendants have or claim some interest in the premises, is an averment as to the entire premises described in the mortgage, and any defendant so named as having an interest, who has answered or been defaulted, may assign as error the inclusion in the order of sale of a lot averred by the bill to have been released.</p> <p>3. Appeals and errors—when Appellate Court may reverse foreclosure decree as to one lot and affirm as to others. Where, on appeal to the Appellate Court from a foreclosure decree and sale, it appears that a certain lot which the bill averred had been released was included among those sold under the decree, it is proper for that court to reverse the decree as to the sale of such lot, and, no other error appearing, to affirm the decree as to the sale of the others.</p> <p>4. Mortgages—when trust deed covering several lots is not distinct as to each. A provision in a trust deed by which the lots covered thereby may be released upon payment of not less than a specified sum, does not constitute it, in legal effect, a separate mortgage upon each lot, securing separate and distinct sums of money.</p> <p>5. Same—when trust deed does not require apportionment of amount found due on foreclosure. A provision in a trust deed for the release of the various lots covered thereby upon the payment of not less than a specified sum on each lot, in accordance with which many of the lots are so released, does not require that upon foreclosure the amount found due shall be apportioned among the several lots.</p> <p>6. Foreclosure—when foreclosure decree properly charges lots in inverse order of alienation. Where a trust deed provides for the release of the lots covered thereby upon payment of a specified sum, in accordance with which a number of them are so released, upon foreclosure a decree which orders the lots still owned by the mortgagor to be first sold, and the others, not released, in the inverse order of their alienation, is proper.</p> <p>7. Practice—party in court must tales notice of progress of case. In the absence of a rule of court to the contrary, one who is in court by service of process or appearance is bound to take notice of all subsequent action on the part of the court.</p>

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

<p>Writ of Error to the County Court of Coles county; the Hon. S. S. Anderson, Judge, presiding.</p>

H. W. Johnson, Judge, presiding. This is an appeal from a judgment of the county court of Cook county confirming a special assessment upon property of appellants, levied by the city of Evanston for the opening and extension of Dempster street, in said city, from Ridge avenue to Hartrey avenue, for which the property of appellants was assessed §9133.89.

<p>Writ op Error to the Circuit Court of Madison county; the Hon. B. E. Burroughs, Judge, presiding.</p>

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

<p>1. Parties—an executor is a proper party to bill to contest will—when liable for costs. The executor is a proper party to a bill to contest the validity and probate of a will, and in certain contingencies may be liable for the costs adjudged against him in the event the probate is set aside and the will declared null and void.</p> <p>2. Same—courts of equity will looh to the substance to discover interest of parties. Courts of equity will look to the substance to ascertain on which side of the controversy the real interest of a party to the suit lies, and will determine his competency as a witness from his interest in the case, regardless of the pleadings.</p> <p>3. Witnesses—when executor cannot testify in favor of will though called by opposite party. The fact that an executor is joined with the heirs of the testator as a party defendant to a bill to sustain the validity of the will by setting aside the probate of a subsequent revocation, does not render him competent to testify in favor of the will though called by the complainants, as his interest is with the complainants and hostile to his co-defendants.</p> <p>4. Same—executor cannot testify in favor of will and against heirs of testator. An executor who is made a party defendant to a cross-bill filed by heirs of the testator to sustain the validity of a revocation and probate thereof, and to set aside the probate of the original will and declare the will null and void, cannot testify for his co-defendants, in favor of the validity of the will.</p> <p>5. Trial—right to open and close in will contest. Where the complainants seek to sustain the validity of a will and to set aside the probate of a revocation thereof, and the defendants, by cross-bill, seek to establish the revocation and set aside the probate of the original will, each side is affirming the validity of a will, and the trial court may, in its discretion, allow either to open and close.</p> <p>6. Estoppel—when complainants in will contest are not bound by evidence offered. The complainants in a suit to establish the validity of a will and set aside the probate of a subsequent will of revocation, who oiler in evidence the will of revocation and the probate thereof to enable the court to have the same before it, are nqt estopped to deny the validity of such revocation and probate.</p>

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

<p>Appeal from the County Court of LaSalle county; the Hon. H. W. Johnson, Judge, presiding.</p>

Writ op Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding. Plaintiff in error filed his bill in the court below to set aside certain conditions in the last will of his father, Eli C. Ransdell.

<p>1. Wills—testator mojy name successor to his executor. A testator may appoint one person as executor and name another to act as executor in the event of the former’s death, and to discharge such duties as were left unperformed; and upon appointment by the court such successor possesses the powers of an executor, and not merely those of an administrator debonis non.</p> <p>2. Same—will construed as intending appointment of successor to executrix. A clause in a will whereby the testator appoints his wife executrix and names another person to act as executor in case of the wife’s death or disability, with power to “make distribution, according to the provisions of the will,” as soon as possible after the wife’s death, will be construed as intending such person to succeed the wife as executor at her death, particularly where the distribution could not take place until the life estate terminated.</p> <p>3. Executors and administrators—succeeding executor entitled to testator’s assets. A person named by a testator as successor to his executrix is properly commissioned by the court as executor upon the death of his predecessor, if the testator’s estate has not been fully administered, and he is entitled to possession of the assets, including those in the hands of the executrix at her death.</p> <p>4. Same—administrator of deceased executrix not entitled to administer her testator’s estate. The administrator of a deceased executrix is not entitled to possession of the unadministered assets of her testator’s estate, but the same must be administered by the party nominated by the will and commissioned by the court to succeed such executrix upon her death.</p>

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

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Prank Baker, Judge, presiding.</p>

Writ op Error to the Circuit Cpurt of Macon county; the Hon. Edward P. Vail, Judge, presiding. On the 18th day of June, 1860, one William Martin, since deceased, conveyed to one Harvey C. Johns the south-east quarter of section 14, township 16, north of range 2, east of the third principal meridian, in Macon county, Illinois, in trust.

<p>1. Statutes—in construing a statute the presumption is in favor of its constitutionality. In construing a statute the presumption is in favor of its constitutionality, and it will be set aside only in case it clearly infringes the constitution.</p> <p>2. Same—whether law is just or unjust does not control its constitutionality. A statute cannot be held unconstitutional because of unjust differences not prohibited by the constitution and within the legislative discretion; nór can a law be sustained because it is wise and just, if there is an absence of power to enact it.</p> <p>3. Same—application of maxim “expressio unius est exclusio alterius.” Where a law is in the affirmative that a thing shall be done by certain persons or in a certain manner, the affirmative matter, upon the maxim “expressio unius est exclusio alterius,” carries a negative that it shall not be done by other persons or in another manner.</p> <p>4. Constitutional law—rules used in construing statutes are used in construing constitutions. The general principles governing the construction of statutes apply in the construction of constitutions.</p> <p>5. Same—absence of negative words is not conclusive that no limitation is intended. The use of negative words by the constitution -with reference to a legislative power is conclusive of an intent to limit such power, but an absence of such words is not conclusive that no limitation was intended.</p> <p>6. Same—limitation on exercise of power implied from words of regulation. A power given the legislature in general terms, without regulation, may be exercised in any manner chosen by the legislature; but where the constitution fixes the time and mode of exercising a particular power, a limitation against other times and modes is necessarily implied. (Wilkin, J., dissenting.)</p> <p>7. Same—special provision relating to particular• subject controls. A special provision relating to a particular subject controls that subject, although there may be a general provision under which such subject woulctbe included.</p> <p>8. Same—power to apportion State into Senatorial districts—where derived. Section 6 of article 4 of the constitution, providing that “the General Assembly shall apportion the State every ten years,” etc., into Senatorial districts, is creative in its nature, and controls the matter of such apportionment as against the general grant of legislative power. (Wilkin, J., dissenting.)</p> <p>9. Same—the maxim “expressio unius est exclusio alterius” applies to section 6 of article k of constitution. Section 6 of article 4 of the constitution, providing for the apportionment of the State into Senatorial districts, affirmatively fixes the time for exercising the power thereby conferred, and contains an implication that such power shall not be exercised at any other time. .(Wilkin, J., dissenting.)</p> <p>10. Same—legislature can apportion State hut once after each Federal census. Section 6 of article 4 of the constitution creates a continuing power, under which the legislature may apportion the State into Senatorial districts after each Federal census; but that power once exercised is final, and excludes another apportionment until after the succeeding census. (Wilkin, J., dissenting.)</p> <p>11. ' Same—Apportionment act of 1898 is unconstitutional. The Senatorial Apportionment act of 1898 (Laws of 1898, p. 3,) is unconstitutional and void, as the passage of the Apportionment act of 1893, based on the Federal census of 1890, exhausted the power of the legislature to again apportion the State into Senatorial districts until after the Federal census of 1900. (Wilkin, J., dissenting.)</p>

Writ op Error to the Appellate Court for the Third District;—-heard in that court on appeal from the Circuit Court of Macon county; the Hon. Edward P. Vail, Judge, presiding.

<p>1. Appeals and errors—appeal from order distributing proceeds of execution sale—how amount involved is determined. The amount involved in an appeal from an order entered upon the petition of an execution creditor asking a distribution, according to priorities, of a fund in the sheriff’s hands derived from a sale under various executions against the same defendant, is determined by the amount of the fund necessarily disposed of by the order, and not by the amount of the petitioner’s claim.</p> <p>2. Attachment—right of creditor whose diligence secured property, to priority. Under the proviso to section 37 of the Attachment act, (Rev. Stat. 1874, p. 158,) when property is attached while the owner is removing the same, or after its removal, or when secreted or put out of Ms hands to defraud creditors, the creditor whose diligence secured the property is entitled to priority of payment, and the judgment of the Appellate Court as to that question is final.</p> <p>3. Same—effect of proviso to section 87 on right of other creditors to share pro rata. Where two judgments by attachment are recovered at the same term against the same defendant, and the court orders the first attaching creditor to be paid in full under the proviso to section 37 of the Attachment act, the other attaching creditor is not entitled to priority over attachments and executions issued by justices of the peace before Ms attachment was levied, as he is not entitled to share pro rata with the first attaching creditor.</p> <p>4. Same—when distribution of proceeds of sale must be under section 51 of act on judgments, decrees and executions. Where the only attachment which could operate, under section 37 of the Attachment act, to advance the lien of a subsequent attachment over the liens of intervening attachments and executions issued by justices is prevented from so doing by being entitled to priority under the proviso to that section, the distribution of the proceeds of the sale after paying the first attachment in full must be according to section 51 of the act on judgments, etc. (Rev. Stat. 1874, p. 627.)</p>

Jacob Fouke, Judge, presiding. William Bowles, and Susan, his wife, on January 4, 1878, conveyed certain real estate to William Beatty, ' their son-in-law.

<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>

John Barton Payne, Judge, presiding. This is an appeal from a judgment of the Appellate Court, affirming a decree in chancery, entered by the Superior Court of Cook county, which decree is hereinafter set forth.

Theodore Bremtano, Judge, presiding. This was a bill for specific performance, brought by Howard Greer, against Morris Sellers, in the Superior Court of Cook county. The cause proceeded to a hearing on the pleadings and evidence, and the court entered a decree dismissing the bill.

<p>1. Contracts—what consideration is sufficient to support promise to convey right of way. The location of a line of railroad by agreement with the owner of a farm where he desired it and where it would not damage the farm, is a sufficient consideration to support such owner’s promise to convey the right of way.</p> <p>2. Specific performance—when equity will specifically enforce oral contract to convey land. Equity will specifically enforce an oral contract to convey land where the contract is based upon sufficient consideration, its terms are clearly proven and the complainant has fully performed his part thereof.</p> <p>3. S ame—when contract to convey right of way in consideration of locating railroad will be enforced. An oral contract between a land owner and a railroad company, by which the former agreed to convey the right of way if the railroad should be located on the side of his farm instead of running diagonally through it, and a depot be established at a certain place, will be enforced in equity where the company has performed its part of the contract, which is not against the interests of the stockholders or the public.</p>

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

<p>1. Special assessments— defied, in ordinance must go to its-life to be available on application for sale. Unless there is a total failure to include in an ordinance the necessary element of a specification of the nature, character, locality and description of the improvement required by the statute, the mere fact that the specification is defective in some respect is not a defense to an application for judgment of sale.</p> <p>2. Same—purpose of provision in paving ordinance concerning grade stated. The purpose of the provision in a paving ordinance concerning the grade of the street is to show the amount of excavation and filling, so an intelligent estimate can be made of the cost.</p> <p>3. Same—what a sufficient specification of grade in paving ordinance. A provision in an ordinance for paving a street having no established grade, which requires that the center thirty feet of the street be brought to “a uniform grade” and excavated a specified depth at the center and sides, then covered with broken stone to a specified depth and the remainder of the excavated space filled with macadam, is a sufficient specification of the grade.</p> <p>4. Same—what is not such a delegation of power to engineer as vitiates ordinance. A provision in a paving ordinance which authorizes the supervising engineer to set grade stakes, make profiles and see that the work is done according to specifications, does not delegate such discretionary power concerning the character of the improvement as renders the ordinance void.</p>

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

<p>Appeal from the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Dying declarations—written dying declarations do not preclude other oral ones. Where a dying declaration is reduced to writing and signed by the declarant the writing is the best evidence of such declaration; but the fact that a dying declaration has been reduced to writing does not preclude evidence of oral dying declarations made at other times.</p> <p>2. Same—proof not restricted to single dying declaration. In criminal prosecutions the People are not restricted to proof of a single dying declaration, but such declarations, if otherwise admissible, may be proved as made from time to time.</p> <p>3. Criminal law—section 55 of Practice act applies to civil cases only. Section 55 of the Practice act, (Rev. Stat. 1874, p. 781,) which provides that papers read in evidence, other than depositions, may be taken by the jury upon retirement, is applicable to civil cases only.</p> <p>4. Same—procedure in criminal cases is governed by division IS of the Criminal Code. The mode of procedure in criminal prosecutions is governed by division 13 of the Criminal Code, section 8 of which provides that trials for criminal offenses shall be conducted as at common law, except as otherwise provided by the code. '</p> <p>5. Same—what papers may be taken by jury is determined by the court. Following the common law rule, the jury, in criminal cases, may, upon retirement, take such books and papers which have been produced in evidence as the trial judge, in.the exercise of sound discretion, shall direct.</p> <p>6. Same—when permitting jury to take paper is an abuse of court’s discretion. Permitting the jury, upon retirement, to take a written dying declaration against the defendant is an abuse of the trial court’s discretion, where the defendant’s evidence was oral, only, and contradictory of the declaration, which constituted the principal evidence against him, and where the declaration contained passages in brackets which the court has ruled as inadmissible, though the jury were orally directed not to consider them.</p> <p>7. Same—admissibility of statements to impeach dying declaration in prosecution for producing an abortion. A dying declaration against a defendant indicted for furnishing a drug to the deceased to produce an abortion may be impeached by contradictory statements, made by the deceased either before or after the abortion, even though such contradictory statements were not made in extremis.</p> <p>8. Trial—court should use great discretion in propounding questions to witnesses. Though within the power of the trial judge, in criminal cases, to propound pertinent and properly framed questions to a witness, yet the examination of witnesses is the more appropriate function of counsel, and instances are rare and the conditions exceptional which will justify the trial judge in conducting an extended examination of a witness, and a sound discretion will seldom deem such course advisable.</p> <p>9. Same—objections by counsel to questions propounded, by court should specify grounds thereof. The action of the trial court in propounding questions to witnesses will not be reviewed on appeal, nor the record consulted to determine whether such questions were leading or suggestive, w.here the objections by counsel fail to specify the grounds thereof, being merely general in character.</p> <p>10. Instructions—when instructions are prejudicial. Instructions which take from the jury the controverted question whether the accused furnished a certain drug to the deceased which produced an abortion resulting in her death, as charged by her dying declaration, and which invite them to find the accused guilty although they believe some other person committed the crime, provided they believe the accused advised or encouraged it, are prejudicial, where there is no evidence of the latter condition of affairs.</p>

<p>1. Fellow-servants—defendant has burden of proving relation of fellow-seivants. In an action against a railroad company for causing the death of the plaintiff’s intestate through the negligence of one of its servants, the defendant has the burden of proving such servant to be a fellow-servant with the deceased, although the declaration contains a negative allegation.</p> <p>2. Same—master is liable if his own negligence contributes to injury. The fact that the negligence of a fellow-servant contributes to an injury received by a servant while exercising due care, does not relieve the master from liability for the injury if the master’s negligence, or that of another servant not a fellow-servant, also contributed thereto.</p> <p>3. Master and servant—master should use reasonable care to prevent injury to servants. A master should use reasonable care to prevent injury to his servants by accident while properly performing the duties for which they were employed.</p> <p>4. Same—servant does not assume all risks incident to employment. A servant assumes only such risks incident to his employment as usual and ordinary and which remain so incident after the master has taken reasonable care to prevent or remove them, or such extraordinary risks as are so obvious and which expose him to danger so imminent that an ordinarily prudent person, in anticipation of probable injury, would not enter or remain in the employment.</p> <p>5. Railroads—the providing of switch lights is reasonable precaution against injury. Providing a switch light so attached that engineers of all trains approaching the switch in the night time may tell whether it is open or closed, in time to stop or slow up, is such a reasonable precaution as to warrant a jury in finding that the failure of a railroad company to provide such light is negligence.</p> <p>6. Same—effect of fireman’s knowledge that a switch had no light. Where a fireman on a passenger train is killed through the negligence of the crew of another train in leaving open, in the night time, a switch which had no light, the fact that the fireman knew that for over a year the railroad company had not kept a light on the switch does not warrant the overruling of a finding by a jury that the deceased was not negligent in remaining in service.</p>

<p>1. Special taxation—sufficient description of improvement is essential to ordinance. An essential element of a special taxation ordinance is a sufficient description of the improvement, in the absence of which no judgment of confirmation should be rendered.</p> <p>2. Same—when special taxation ordinance is insufficient in description. A special taxation ordinance for grading, curbing, tiling and paving a certain street is insufficient in its description of the improvement where it fails to specify the size of the tile, its composition, inlets, outlets or connections, the number of lines to be laid or the depth for laying.</p> <p>3. Same—commissioners cannot omit estimate for part of improvement insufficiently described. The ordinance for the improvement is the guide and authority of the commissioners appointed to estimate the cost, and they have no discretion to omit from their estimate any part of the improvement provided for because the description of such part is insufficient.</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>

Writ op Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

Appeal, from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

<p>1. Equity—equity will not take jurisdiction to construe will where only legal titles are involved,. Equity cannot assume jurisdiction to construe a will where only legal titles are involved and no relief other than a judicial construction of the will and a declaration of such legal titles is asked.</p> <p>2. Same—instance where equity cannot take jurisdiction to construe will. A devise of the testator’s property, real, personal and mixed, to his children in equal shares, each child to take the fee in one-half his share and a life estate in the other, the life estate to he in improved real estate, does not create such a mixed trust of real and personal property as authorizes a court of equity to take jurisdiction, at the instance of heirs, solely to construe the devise and declare it void as creating a perpetuity.</p>

O. H. Horton, Judge, presiding. This was a bill in equity brought to the November term, 1896, of the circuit court of Cook county, to foreclose a trust deed given July 14, 1892, by Alice Asbury Abbott to Francis B. Sherwood, as trustee, to secure a loan of $20,000. The complainants were George W. Stone, the payee and holder of the secured notes, and Francis B.. Sherwood, the trustee. The principal note given by appellant was as follows: “$20,000.