Volume 177 — Illinois Reports

<p>1. Mortgages—priority does not depend solely upon dates of execution and recording. Priority among mortgagees does not depend solely upon the dates of the execution and recording of the mortgages, but also upon the knowledge which they have of the true state of the title, and of the rights of third parties whose evidence of title has not been recorded.</p> <p>2. Loan associations—secretary of advisory board is the agent of the association. The secretary of a local advisory board of a loan association, whose duties are to solicit stock, make loans, collect dues and interest, do' general work of secretary and treasurer, keep the local accounts, collect dues, fees and premiums from local stockholders, transmit applications for loans, receive the draft for the loan and hold the proceeds subject to orders of the borrower, is the agent of the association with respect to such matters.</p> <p>3. Same—notice to secretary of advisory board of a prior mortgage is notice to the association. Notice to the secretary of a local advisory board, -of an unrecorded mortgage upon property upon which he is negotiating a loan from the association, is notice to the association, notwithstanding the abstract, which does not show the mortgage is examined by the association’s attorney at its home office.</p> <p>4. Same—priority of the association’s mortgage is affected by its agent’s knowledge. A mortgage executed prior to one of a loan association on the same land is entitled to priority, though the association’s mortgage is recorded first, where the delay in recording the former is brought about, without the knowledge of the mortgagee, by collusion between the agent of the association who was negotiating the loan and the party entrusted with the recording.</p> <p>5. Same—secretary’s act in paying out loan does not make him the borrower’s agent. The act of the secretary of a local advisory board in holding the proceeds of the loan and paying out the same to material-men and laborers upon the borrower’s order does not make him the latter’s agent, as such course is necessary to the proper protection of the association.</p> <p>6. Pleading—matters of evidence need not be pleaded. One answering a bill for a mechanic’s lien and filing a cross-bill for foreclosure of his mortgage, alleging the same to be a lien on the land prior to all others, need not allege notice by other lienholders to render proof of the same admissible to sustain his allegations of priority.</p> <p>7. Same—defendant who has answered may file cross-bill of right, after reference. A defendant who has answered may file his cross-bill without leave of the court, although a reference to the master has been made.</p> <p>8. Mechanics’ liens—when contract for deed will support lien upon title acquired. A mechanic’s lien for materials contracted to be furnished to one who has a contract with the owner of land for a warranty deed will attach to the entire title acquired during the progress of the building, in pursuance of the contract for the deed.</p> <p>9. Same—contract with authorized agent is binding upon principal when disclosed. A contract for furnishing material, made with the authorized agent of the owner of the land, is binding upon the latter and will support a mechanic’s lien, though the principal is riot disclosed until the work has been partly performed, at which time such part performance is ratified and the contract afterward completed with full knowledge of the facts.</p> <p>10. Same—what will not invalidate statement of lien. Errors in respect to matters not required to be included in the statement of a mechanic’s lien filed with the circuit clerk will not invalidate the statement or defeat the lien.</p> <p>11. Same—when mortgage cannot operate until mechanic’s lien is satisfied. A mechanic’s lien for material attaches to the land at the making of the contract and to the building as it progresses, and, under section 17 of the Mechanic’s Lien act of 1893, must be satisfied before a subsequent mortgage can operate upon the building or the materials; nor can the mortgage be given priority over the lien, to any extent, in the absence of proof of the value of the land without the improvements, or of other facts authorizing priority.</p> <p>12. Practice—when answer may he referred to though original hill is dismissed. A reference by a defendant in mechanic’s lien proceedings in Ms answers to the several cross-bills, to the answer filed by him to the original bill in which he sets up the facts upon which he bases his claim for a prior mechanic’s lien, will authorize resort to such answer on appeal, for the purpose of supporting his lien, although the original bill is dismissed by the final decree.</p>

John C. Broady, Judge, presiding. Appellant is a fraternal beneficiary society, organized as a corporation under the laws of the State of Illinois, and has a local camp at Quincy known as “Queen of the West Camp No. 51.” On February 7, 1895, Sarah F. Roman, wife of appellee, being then a member of the local camp, made application for a benefit certificate at the office of Dr. F. S. Meacham, who was at that time the duly elected regular medical examiner of appellant.

Dorrance Dibell, Judge, presiding. This case has been before us before, and is reported as Cross v. Weare Commission Co. 153 Ill. 499.

<p>Writ of Error to the Circuit Court of Mercer county; the Hon. Frank D. Ramsey, Judge, presiding.</p>

John C. Broady, Judge, presiding. This was a bill in equity brought by George A. Moffett, Ann B. West and Emily C. Sibert in the circuit court of Adams county, against William R Lockwood, to partition certain real estate situated in Quincy and Chicago. There is no controversy between the parties in regard to the facts.

James Shaw, Judge, presiding. The appellant and the appellee Howard E. Crabtree are brother and sister, being the only children of Matthew and Elizabeth Crabtree. The appellee Ida is the wife of Howard E. Matthew Crabtree died on the 20th day of August, 1889. His wife, Elizabeth, survived him and died October 15,1895.

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

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Charles G. Neely, Judge, presiding. This is an action begun in the circuit court of Cook county on December 10,1895, by plaintiff in error against the defendant in error to recover damages for the death of plaintiff’s intestate, alleged to have occurred through the negligence of the defendant in error, as set up in the declaration.

<p>Appeal from the County Court of Mercer county; the Hon. J. H. Connell, Judge, presiding.</p>

<p>1. Wills—apparent preponderance against verdict does not warrant setting it aside. An apparent preponderance of the evidence in favor of the proponents of a will does not warrant the Supreme Court in setting aside a verdict for the contestants, particularly after two trials with the same result, where there is a material conflict and the evidence on either side is sufficient to support a verdict.</p> <p>2. Evidence—declarations by only beneficiary interested in sustaining will are admissible on contest: In an action to set aside the probate of a will on the ground of mental incapacity and the physical inability of the testatrix to execute a will, a declaration by one of the defendants on the morning the alleged will was executed, that the testatrix was “just alive and that is all,” is admissible, where he is the only beneficiary interested in sustaining the will.</p> <p>3. Same—burden of proof—when shifting and when stationary. The burden of proof, in the sense of producing evidence to meet a prima facie case, passes from party to party as the case progresses, but the burden of establishing the truth of an issue by a preponderance rests upon and remains with the party having the affirmative.</p> <p>4. Same—law relating to burden of proof in will contest. In an action contesting the validity of a will on the ground of mental incapacity and the want of proper execution, the proponents must make a prima facie case as to execution and mental capacity; but the contestants have the burden of overcoming such prima facie case, and the added legal presumption in favor of sanity, by a preponderance of the evidence on the whole case.</p> <p>5. Instructions—referring to will as “the purported will” is not ground for reversal. Using the term “the purported will” in instructions for the contestants is not ground for reversal, as being a statement by the court discrediting the instrument as a will.</p> <p>6. Same—one cannot complain of error he has asked the court to commit. One cannot complain of error in his opponent’s instructions where his own contain the same defects.</p> <p>7. Costs—when costs on setting aside will are properly assessed to defendant. On setting aside a will the court may properly assess the costs against the only defendant interested in sustaining it.</p>

<p>1. Taxes—when city cannot levy tax in excess of two per cent limitation. A city organized under the general law cannot make a tax levy exceeding the two per cent limitation to pay a judgment against the city not rendered on a bonded debt.</p> <p>2. Same—tax to pay judgment must be within the two per cent limitation. Upon making the annual tax levy for corporate purposes, including the payment of a judgment not on a bonded debt, the other expenses must be abated, if necessary, to bring the entire levy within the statutory limitation.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding.</p>

Murray F. Tuley, Judge, presiding. The city council of the city of Chicago, on the 18th day of March, 1897, passed the annual appropriation ordinance or bill for the fiscal year ending December 31, 1897.

<p>1. Dedication—land proposed to be dedicated must be definitely described. To constitute a good dedication the land proposed to be dedicated must be definitely and certainly described.</p> <p>2. Same—intention to dedicate and acceptance by public must be unequivocal. To constitute a good dedication the donor’s intention to devote the land to public use, and the acceptance and appropriation of the same by the public for that purpose, must be unequivocal and satisfactory.</p> <p>3. Same—when deed does not evidence a dedication of a public alley. A deed by one owning a lot shown by the plat to be fifty-five feet wide, which describes the tract conveyed as commencing at the south-east corner of said lot, “thence running north thirty-nine feet to a public alley,” thence west to the western boundary, “south thirty-nine feet” and east to the place of beginning, does not constitute a dedication for a public alley of that part of the lot not specifically conveyed.</p> <p>4. Same—city may lose rights in public alley by abandonment and nonuser. A city may lose its rights in a public alley by permitting the adjoining owner to remain in the undisturbed possession of the same for over twenty years.</p>

Edward P. Vail, Judge, presiding. This was an action of trespass on the case by the appellee, against the appellant company.

Writ of Error to the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding. This is a bill originally filed on February 27, 1896, by the defendant in error, Caroline Weber, against the plaintiff in error, Mary Lauer, to set aside a tax deed and a quit-claim deed based thereon, as clouds upon the title of the defendant in error.

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

Nathaniel C. Sears, Judge, presiding. Appellee, the Allegretti Chocolate Cream Company, is a corporation engaged in the manufacture of chocolate creams and confections in the city of Chicago, the stock of which is owned by Ignazio Allegretti, the father, and Joseph and Nicholas Allegretti, his sons.

C. R. Starr, Judge, presiding. This was a bill in equity filed by appellant June 30, 1890, against appellee Murray, as the owner of the north half of section 22, in township 30, north, range 6, east, in said Livingston county, and also against the commissioners of highways of said township, as having official control and jurisdiction of the highways in said town.ship.

<p>Appeal from the County Court of Cook county; the Hon. R. W. S. Wheatley, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Mason county; the Hon. T. N. Mehan, Judge, presiding.</p>

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

<p>1. Appeals and errors—city may appeal from assessment proceeding instituted under act of 1897. By virtue of section 123 of the act on courts, as amended in 1881, (Laws of 1881-82, p. 66,) and section 89 of the Practice act, a city may appeal from the final judgment of the county court in an assessment proceeding instituted under the Local Improvement act of 1897, (Laws of 1897, p. 101,) although no right of appeal by the city is authorized by the latter act.</p> <p>2. Public improvements—action of improvement board is not conclusive of the sufficiency of the petition. The action of an improvement board on the property owner’s petition for an improvement, required by the act of 1897, is not conclusive of the sufficiency of such petition, but only prima facie evidence that the requirements of the law have been observed, and any willful or substantial departure may be availed of by the owner. (Laws of 1897, sec. 9, p. 105.)</p> <p>3. Same—section 7 of act of 1897 construed. Section 7 of the Local Improvement act of 1897, providing that the improvement board shall have power “to originate a scheme for any local improvement, to be paid for by special assessment or special tax, either with or without a petition,” applies only to cities having a population of 25,000 or more, as in such case no petition signed by a majority of the property owners is essential to the passage of the ordinance.</p> <p>4. Same—section k of the act of 1897 construed. Under section 4 of the Local Improvement act of 1897 an ordinance for a continuous pavement on two streets at right angles to each other must, in cities having less than 25,000 inhabitants, be based on a petition to the improvement board, signed by the owners of a majority of the frontage in every contiguous block on each street, a majority of the frontage on the entire improvement not being sufficient.</p> <p>5. Same—insufficiency of petition as to part of an entire improvement invalidates the ordinance. Where the petition to the improvement board for a continuous pavement on two streets at right angles to each other is not signed by the owners of a majority in every contiguous block on one of such streets it is insufficient, and an ordinance based thereon cannot be sustained even as to the other street, although the petition as to it is properly signed, if there is nothing to show the improvement of each street is separate.</p>

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

John Gibbons, Judge, presiding. On May 31, 1893, the Union National Bank of Chicago recovered a judgment against Samuel B. Barker in the circuit court of Cook county. An execution was issued on the judgment, and on June 3, 1893, the sheriff levied on certain real estate which Barker, two days before the entry of the judgment, had conveyed to his wife, with the intent to hinder, delay and defraud his creditors.

Charles Blanchard, Judge, presiding. This is an action on the case for the recovery of damages for injuries claimed to have been sustained by the appellee in consequence of a fall on a defective sidewalk in the city of Joliet on September 29, 1894. In the trial court, the appellee recovered a verdict for §1500.00, upon which, after overruling a motion for new trial, the court rendered judgment.

S. H. Armstrong, Judge, presiding. This was a petition brought by Elijah M. Eggers in the county court of Fulton county, against I. C. Fox, to contest his election to the office of town clerk of Young Hickory township at the annual town election held April 5, 1898.

<p>Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.</p>

Theodore Brentano, Judge, presiding. This is a proceeding begun on October 17, 1890, by William H. Watson and Amos H. Perkins, stockholders, to wind up and dissolve the LeGrand Roller Skating Rink Company, a corporation, and to collect and distribute its assets, under the provisions of section 25 of the statute in relation to corporations.

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p> <p>Andrew McFarland departed this life, testate, on the 22d day of November, 1891. His will is as follows:</p> <p>“First—It is my will that all my just debts and funeral expenses be fully paid.</p> <p>“Second—It is my will, and I order and direct, that the persons hereinafter named who are to have the control and management of the institution known as ‘Oak Lawn Retreat,’ viz., George C. McFarland, M. E. McFarland and Anna H. McFarland, shall, at the end of the first year of their management, pay to my daughter Mary E. Flack the sum of §500, and at the end of the second and third years of their management of the said institution a like sum of §500, and in no case is any payment to be made by said parties to my said daughter unless the said institution is under the exclusive control and management of the said parties.</p> <p>“Third—To my son George C. McFarland I give my gold-headed cane.</p> <p>“Fourth—To my son T. Fletcher McFarland I give my gold watch.</p> <p>“Fifth—Subject to the payment of the debts, funeral expenses, contingent legacy and bequests above mentioned, and subject also to the charges and conditions hereinafter named, I give, devise and bequeath to my son George C. McFarland, my daughter-in-law, M. E. McFarland, and my granddaughter, Anna H. McFarland, all of my estate, both real and personal, wherever located or situated, to have- and to hold the same so long" as they shall carry on and conduct the business for which the real estate above mentioned is peculiarly and particularly adapted, viz., the care and treatment of the insane. Included in the devise of real estate above mentioned is the property known as ‘Oak Lawn Retreat,’ which I have improved and arranged as a hospital for the care and treatment of the insane, and it is my wish and will that my said son George G. McFarland be the business manager of said institution, and that my daughter-in-law, M. B. McFarland, be the matron of said institution, and that my said granddaughter, Anna H. McFarland, (who, under my direction, has been specially educated in the medical profession with the view of having her assume the position of physician to said institution,) be the physician at said institution. I will and direct that so long as the said institution, viz., Oak Lawn Retreat, shall be operated or managed by the said parties above mentioned, viz., George C. McFarland, M. E. McFarland and Anna H. McFarland, they, the said last named parties, shall give to my son T. Fletcher and to my daughter Harriet N. McFarland each the same care, maintenance and support they now receive at said institution; and they, the said George 0. McFarland, M. E. McFarland and Anna H. McFarland, shall also pay to T. Fletcher McFarland and Harriet N. McFarland each the sum of $100 per annum, payable in quarterly installments. The above named parties who are to control and manage said institution, viz., George C. McFarland, M. E. McFarland and Anna H. McFarland, shall share equally the profits in the business of conducting and managing the said institution.</p> <p>“Sixth—If the said George C. McFarland, M. E. McFarland and Anna H. McFarland refuse to enter upon the management of said institution, or, having entered upon the management of the same, shall at any time deem it unprofitable or inexpedient to continue the management of the same, then in that event, and on their written request, such request being signed by at least two of them, I will and direct my executors hereinafter named to sell all of my said real estate at public or private sale, as they, after "consulting with my legal heirs, shall deem best; and I hereby empower my said executors to make and execute all deeds of conveyance necessary to carry out the provisions of this will. On such sale being made by my said executors, I will and direct that my said executors shall, out of the proceeds of such sale, pay all liens and charges on said real estate, including the costs and expenses of such sale, and make distribution of the remainder of the proceeds of such sale as follows, to-wit: First, divide such remainder into ten equal parts or shares; second, pay such shares or parts to the following named persons in the following proportions, to-wit: To George G. McFarland two shares; to Mrs. M. E. McFarland two shares; to Anna H. McFarland two shares; to T. Fletcher McFarland two shares; to Harriet N. McFarland two shares.</p> <p>“Seventh—In the event that my son T. Fletcher McFarland, or my daughter Harriet N. McFarland, should choose to live or reside elsewhere than at said institution while the said institution is under the management and control of the said parties, viz., George C. McFarland, M. E. McFarland and Anna H. McFarland, then, if the place so chosen by them is within thirty miles of said institution, there shall be paid to each of them so residing away from said institution, in lieu of the care and maintenance mentioned above, an additional sum of §100 per annum, payable in quarterly installments.</p> <p>“Eighth—I hereby nominate, constitute and appoint John A. Bellatti and Robert M. Hockinhull to be the executors of this my will.”</p> <p>The said Andrew McFarland died leaving him surviving" the following as his only children and heirs-at-law: George 0.. McFarland and T. Fletcher McFarland, his only sons, and Mary E. Flack and Harriet N. McFarland his only daughters. The persons mentioned in the second and other clauses of the will as those to be vested with the control and management of Oak Lawn Retreat are the plaintiff in error, George G. McFarland, a son of the testator, M. E. McFarland, (now deceased,) who was the wife of the said plaintiff in error, and Anna H. McFarland, daughter of said plaintiff in error. They accepted the provisions of the will and entered upon the management of the said institution. They paid to Mrs. Mary E. Flack the first and second of the three several sums of money directed to be paid her by the second clause of the will, and she accepted such payments from them. Only one of the persons (John A. Bellatti) nominated as executors of the will qualified, and he made due settlement of the estate in the county court of Morgan county and was discharged from further duties as executor.</p> <p>On the 21st day of March, 1892, the plaintiff in error, by his deed of that date, conveyed and quit-claimed all his interest in the real estate described in the will to M. E. McFarland, his wife. On the 15th day of August, 1893, said M. E. McFarland died, leaving her husband, the plaintiff in error, and two daughters, said Anna H. McFarland and Marie B. Griffith, nee McFarland. The daughters, on the 9th day of September following the death of their mother, conveyed and quit-claimed to the plaintiff in error an undivided one-third part of the said real estate in the will mentioned. The management was then assumed by the plaintiff in error and his said daughters. On the 23d day of November, 1894, the payment last falling due to Mrs. M. E. Flack under the second clause of the will was made by the plaintiff in error and his said two daughters, Anna H. McFarland and Marie B. Griffith, and at the same time Mrs. Flack executed a quit-claim deed, conveying to the said parties so making said payment “all interest of the grantor in the real estate mentioned in the will.”</p> <p>In December, 1894, the plaintiff in error leased his interest in the “Retreat” to Frank Griffith, husband of his daughter Marie, until February 1, 1896. Said Frank Griffith and the defendant in error Anna McFarland on the same day entered into articles of co-partnership for the purpose of carrying on the business of treating the insane at Oak Lawn Retreat during the period of the running of the lease and until January 31, 1896, and the institution was operated by them under the said articles of co-partnership, Mrs. Griffith acting as matron. The plaintiff in error during this time was engaged in other affairs not connected with the “Retreat” and was not present at the institution. Shortly prior to the termination of the lease to Griffith and the articles of co-partnership, misunderstandings arose between the plaintiff in error and his daughters, Anna H. McFarland and Marie B. Griffith, by reason of which they realized they could not carry on the business of the institution together. At the expiration of the lease to Griffith the plaintiff in error returned to the institution and his daughters withdrew therefrom. He has since been in possession and control of the “Retreat.”</p> <p>On the 24th day of April, 1896, the said daughters of the plaintiff in error, Anna and Marie, filed this bill in chancery against the plaintiff in error, T. Fletcher and Harriet McFarland and the Security Savings, Building and Loan Association, the said association being made a party in order that a mortgage given by the testator, in his lifetime, on the real estate mentioned in the will, and which still remained, in the larger part, unsettled, might be adjusted. The allegations and theory of the bill are, that the plaintiff in error and the complainants therein are seized of the title in fee to the real estate in question, subject to charges created thereon by the will for the benefit of the said T. Fletcher and Harriet N. McFarland, and also subject to the indebtedness due to the loan association, and also to a mortgage lien claimed to exist in favor of the complainant Anna H. McFarland, as administratix of the estate of M. E. McFarland, and another lien claimed in favor of the complainants in the bill. Answers were filed to the bill and replications to the answers. The plaintiff in error filed a cross-bill, in which he claimed to be the owner of the mortgage lien set out in the bill as existing" in favor of the estate of M. E. McFarland, and represented that it was not for the best interest of the institution that the said mortgage should be foreclosed, but asking the court to decree that the complainant in the cross-bill was the equitable and true owner of said lien. Answers were filed to the cross-bill and replications to such answers, and the cause was submitted to the court.</p> <p>The decree declares the plaintiff in error, and Anna H. Cromwell, nee McFarland, and Marie B. Griffith, nee McFarland, are the owners in fee of the premises described in the will as tenants in common, each owning" an undivided interest, upon the theory that the plaintiff in error, his deceased wife and Anna H. were each seized, under the operation of the will, of an undivided one-third in the said land subject to the liens hereinbefore mentioned, and subject to equitable charges established by the decree in favor of T. Fletcher and Harriet N. McFarland to secure the provisions of the will in their behalf, respectively, and that the interest of the said M. E. McFarland descended, under the Statute of Descent, to her said daughters, Anna H. Cromwell and Marie B. Griffith, subject to the dower right of the plaintiff in error. The decree, adjusted the amount due on the mortgage to the building association and established it as a first lien against the property, and declared that the administratrix was the legal owner of the other mortgage lien and established the amount thereof as a second lien, and also declared a third lien in favor of Anna H. and Marie B., as claimed in the bill. The cross-bill was dismissed, and the premises in question and the personal property belonging to the institution declared not susceptible of partition and ordered to be sold by the master in chancery, and that the proceeds of such sale should be applied to the discharge of the liens, and the remainder distributed among the parties according to their rights as declared by the decree. The decree also provided that the property should be sold subject to the equitable charge established therein in favor of T. Fletcher and Harriet N. McFarland, respectively. -This is a writ of error brought to reverse the decree.</p>

Writ of Error to the Criminal Court of Cook county; the Hon. William G. Ewing, Judge, presiding. Carmelo Canale, the plaintiff in error, was convicted in the criminal court of Cook county on an indictment charging him with bigamy.

<p>1. Appeals and errors—assignments of error not insisted upon are waived. Assignments of error upon the record which are not argued or presented in the briefs are waived.</p> <p>2. Same—an objection that testimony is not signed must be made below. An objection that the testimony before the master was not signed by the witnesses nor their signatures waived must be made below.</p> <p>3. Same—when want of proof of appointment of a substituted executor cannot be urged. A defendant whose answer fails to deny a previous suggestion on the record of the death of the complainant and the appointment and substitution of his executor, and who makes no objection to the proceeding in the name of the executor, cannot, on appeal, urge a want of proof of such death and appointment.</p> <p>4. Solicitors’ pees—proof of reasonableness of stipulated fee is not required in the first instance. It is not error for the court to allow a stipulated solicitor’s fee in foreclosure without proof of its reasonableness, in the absence of any offer to show the contrary.</p> <p>5. Evidence—note and deed of trust are prima facie evidence of amount due. The amount due on a note secured by trust deed is a matter of computation by the master when the instruments are offered in evidence, and they are prima facie sufficient to authorize the master to find and report the amount.</p>

<p>1. Taxes—clerk may estimate rate sufficient to raise net amount of municipal levy. Under section 1 of article 8 of the City and Village act, (Rev. Stat. 1874, p. 231,) and section 127 of the Revenue act, (id. p. 878,) the county clerk may fix the rate per cent sufficiently large to raise upon the assessed valuation of city property for the preceding year the amount of the municipal levy, together with a sum sufficient to pay the tax collector’s statutory commissions.</p> <p>2. Same—library tax may be levied exclusive of two per cent limitation. Under the second proviso of section 1 of the Library act, as amended in 1895, (Laws of 1895, p. 225,) a city having over ten thousand inhabitants may levy a library tax independently of the limitation of two per cent on the assessed valuation for municipal taxes.</p> <p>3. Judicial notice—courts will take judicial notice of the Federal census. Courts will take judicial notice of the Federal census in determining a question involving the number of inhabitants in cities within their jurisdiction.</p>

E. F. Dunne, Judge, presiding. The bill in this case was filed to restrain the county clerk from extending upon the collector’s books a tax of two mills on the dollar on the taxable property in the park district, controlled by the appellants, amounting to §295,164.00, that sum having been included in an ordinance passed by the South Park Commissioners, providing that §785,246.00, the aggregate of the items specified therein, should be levied upon the property subject thereto.

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

<p>The questions involved in this case are the same as those disposed of in South Park Comrs. v. First Nat. Bank, (ante, p. 234.)</p>

<p>Names—when different names will be presumed to denote same person. In the absence of contrary proof it will he presumed, on appeal from a confirmation judgment, that a commissioner appointed under the name of “Frank Bettie” was the same person who signed the estimate as “Frank W. Beattie,” as the middle initial is no part of the name and the surnames are idem sonans.</p>

<p>Appeal from the County Court of Livingston county; the Hon. C. M. Barickman, Judge, presiding.</p>

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

<p>1. Appeals and errors—Appellate Court’s judgment is final on question of preponderance. In suits at law the responsibility for awarding a new trial because the verdict is against the weight of the evidence ends with the Appellate Court, unless there is an entire absence of evidence upon which the verdict could rest.</p> <p>2. Same—Supreme Court does not consider the fact that plaintiff’s testimony is contradicted. In determining the propriety of a refusal of a peremptory instruction for the defendant the Supreme Court can not consider the fact that the plaintiff’s testimony was contradicted by various witnesses, including some called in his own behalf.</p> <p>3. Variance—objection of variance must be made when question arises at trial. An objection of variance not raised in any manner upon the trial, being mentioned for the first time in the motion for new trial and in the assignment of error on appeal, comes too late.</p> <p>4. Fellow-servants—relation not determined solely by position or power of control. The power of a pit-boss to control the actions of a servant employed to run a cutting machine in a mine is not conclusive that they are not fellow-servants, the question being whether the work in which they were mutually engaged involved the exercise of the former’s authority.</p> <p>5. Same—effect of master’s assumption of duty incident to servant’s employment. The failure of a pit-boss to discharge the duty of looking after the safety of the roof of a room in a coal mine, which he expressly assumed in order that a servant might give his entire attention to running a cutting machine without stopping to test the roof, as usual, is not the negligence of a fellow-servant but the disregard of an obligation of the master.</p>

Dorrance Dibell, Judge, presiding. Mary Beatty lived in her lifetime at Dover, Bureau county, Illinois. She died testate on December 7, 1893, at the age of about seventy-four years. By her will she made Jacob Miller and Darius F. Pay executors, to whom letters testamentary were issued on January 5, 1894, by the county court of Bureau county, where her will was admitted to probate.

<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. John Gibbons, Judge, presiding.</p>

<p>1. Criminal law—when prisoner cannot claim right to discharge for want of prosecution. Delay occasioned by the continuance of a criminal case by the consent of all parties, when called for trial within four months of the day of commitment, must be deemed as happening “on the application of the prisoner,” within the meaning of the statute.</p> <p>2. Same—common law methods cannot be followed if statute has prescribed, others. A court of general jurisdiction cannot resort to its inherent common law powers for the purpose of obtaining a jury for the remainder of the term after a challenge to the array has been sustained and the panel discharged, as the statute has pointed out a method to be pursued in such contingency.</p> <p>3. Same—course to be followed in summoning special venire. Sections 12 and 13 of the act on jurors (Rev. Stat. 1874, p. 632,) do not authorize the court, upon sustaining challenge to the array and discharging the panel, to order a special venire to be served by a special bailiff, in the absence of any objection by the parties to the service of the venire by the sheriff.</p> <p>4. Same—purpose of Jury Commissioners act of 1897. The purpose of the Jury Commissioners act of 1897 (Laws of 1897, p. 243,) is to place upon the list of eligible jurors, electors having the necessary qualifications for the discharge of their duties, and to so control their selection, not only for the regular panel but for the trial of each case, that the selection may not be influenced by interest.</p> <p>5. Same—when course pursued in obtaining jury is ground for reversal. Under section 4 of the Jury Commissioners act of 1897 relating to the method of securing juries, which provides that “if more jurors are needed during the term the court shall so certify, and they shall be drawn and summoned” as previously specified, it is reversible error for the court, in a criminal case, against objection, to order a special venire to be served by a special bailiff.</p> <p>6. Instructions—instructions should not assume disputed facts. An instruction is erroneous which assumes the existence of a controverted question of fact.</p> <p>7. Same—the instructions should not be argumentative or give undue prominence to evidentiary facts. An instruction which is argumentative in form and effect, or which selects particular features of the testimony not conclusive in character but merely evidentiary, and directs the attention of the jury thereto, is" erroneous.</p>

<p>1. Appeals and errors—objection that verdict is unsupported by evidence must arise in trial court The Supreme Court cannot consider an objection that the verdict in a suit at law is not supported by the evidence, where that question is not raised in the trial court.</p> <p>2. Negligence—acts of negligence, unconnected with injury, cannot be shown. In an action by a miner for injuries from a falling roof the plaintiff cannot show that the roof in another part of the mine had fallen on a previous occasion, where such fact had no influence in producing the injury.</p> <p>3. Evidence—when question of master’s notice is not in issue. Evidence that a portion of the roof of the room in which a miner was working had fallen more than a week prior to the injury is not admissible for the purpose of showing notice .to the company of the dangerous condition of the roof, where the company had already sent props and timbers to the room before the injury occurred.</p> <p>4. Mines—what not a violation of act requiring owners to supply miners with props. The fact that timbers sent at the request of a miner, to be used as props, are too long, does not show a willful violation of the statute requiring mine owners to keep timbers on hand to supply the miners, where the height of the mine varies in different parts and the miner fails to specify the length of timbers desired.</p> <p>5. Instructions—when an instruction assumes that roof of mine was unsafe. The assumption in an instruction of the fact that the roof of a mine is unsafe is not sustained as a conceded fact where the evidence shows that the injured miner tested the roof with his pick and with a hammer and sledge, and regarded it as safe.</p> <p>6. Same—instruction holding theory having no basis in evidence is erroneous. An instruction in a personal injury case which authorizes a recovery by the plaintiff regardless of his exercise of due care is erroneous, in the absence of any evidence tending to show that the injury was willful or wanton.</p>

<p>1. Appeals and errors—an error cannot be assigned on Appellate Court’s opinion. Error cannbt be assigned on the Appellate Court’s opinion, nor, in the absence of error in the record, can the Supreme Court reverse a judgment of the Appellate Court upon a consideration of the reasons given in its opinion for entering the judgment.</p> <p>2. Variance—objection of variance mrost be made at trial. If there is a discrepancy between plaintiff's allegations and evidence, the defendant, if he has not objected to the introduction of the evidence, should move to exclude it, in order that he may, by obtaining a ruling from the court, preserve the question for review.</p> <p>3. Practice—motion for new trial does not preserve question of variance for review. The denial of a motion for a new trial, which is grounded in part upon an alleged variance, does not preserve the consideration of such variance as a question of law for review by the Supreme Court, in the absence of an objection to or motion to exclude the objectionable evidence at the trial.</p>

<p>1. Special assessments—on application for sale, court proceeds in a summary manner. "Upon application for judgment of sale for a delinquent special assessment the law requires the court to hear and determine the objections in a summary manner, without pleadings, and to pronounce judgment as the right of the case may be.</p> <p>2. Same—property owner has the right to have city keep account of expenditure on improvement. One whose property is assessed for a local improvement has a right to have the city keep an account showing what moneys have been expended for the improvement within the power conferred upon it by law for making the same.</p> <p>3. Same—after full cost is ascertained court may refuse judgment for more than enough to meet it. The court has power to stay the further collection of an assessment by refusing judgment for more than is necessary to meet the final cost of the improvement and the assessment proceedings, where such cost has been finally determined, so that there is no possibility of a larger amount being required.</p> <p>4. Same—court need not give judgment for entire installment if less is required. Where a portion, only, of an installment of an assessment is required to meet the full cost of the improvement and expenses of the assessment, the court may give judgment for the amount required, notwithstanding the fact that the objections set up that no portion of such installment is needed.</p> <p>5. Same—the city’s account of expenses is only prima fade correct. A property owner may show, as against the city treasurer’s account of expenditures for an improvement, that part of the charges were for work not embraced in the ordinance and not payable out of the assessment fund.</p> <p>6. Same—matters fairly included in general terms of the ordinance are within the description. The description of an improvement in the ordinance therefor being necessarily somewhat general in terms, all details which are fairly implied and necessarily included within the general terms will be regarded as within the description.</p> <p>7. Same—additional catch-basins and extra sewers are not within the description. The construction of extra sewers and the putting in of additional catch-basins not provided for in the improvement ordinance cannot be held to be within the power of the city and chargeable to the assessment fund because they were beneficial and desirable additions to the improvement.</p> <p>8. Same—city may make minor changes necessary to proper construction of the improvement. In constructing an improvement to be paid for by special assessment the city may make such minor changes as are found necessary in the execution of the work, and which are within the general scope of the original improvement and necessary to render it all effective.</p> <p>9. Same—city cannot substitute flush tanks for lamp-holes provided in the ordinance. The cost of flush tanks put in at the dead ends of a sewer by the city in the place of lamp-holes, as provided in the improvement ordinance, is not chargeable to the assessment fund, even though such tanks were regarded as necessary to the perfect working of the sewer system.</p> <p>10. Same—city cannot delegate discretionary power to the engineer. A delegation of discretionary power from the city council to the city engineer with reference to an improvement is unauthorized and void, whether effected by the terms of the improvement ordinance or by subsequent action of a mass meeting of citizens.</p>

<p>1. Fraud—right of husband to prefer wife as a creditor. A debtor in failing circumstances may prefer his wife or his son as a creditor, if there is a bona fide debt and the conveyance is in good faith'; but in such case, as against other creditors, there must be clear proof of a valid subsisting debt, which was to be enforced regardless of the fortune or misfortune of the debtor.</p> <p>2. Same—fact that part of items are barred by limitation may be considered. The facts that part of the items alleged to constitute the consideration for a conveyance of property from a failing debtor to Ms son are barred by the Statute of Limitations, and that no effort was ever made to collect or secure the claim or fix a time for payment, may be considered on the question of good faith.</p>

<p>1. Duress—what not sufficient proof of duress. Testimony that the wife of the grantor in a warranty deed to a third person, which was intended as a trust deed in favor of the wife if she survived the grantor, had threatened to leave her husband if he did not deed the property to her, and that the husband was afraid to do so for fear she would “turn him out of doors,” does not show duress.</p> <p>2. Trusts—what not sufficient proof of resulting trust. Evidence that after making a warranty deed the grantor began suits against third parties to recover possession of part of the property, the grantee acting as his attorney, does not show the deed was intended to create a resulting trust in favor of the grantor or his heirs, as against the evidence of such grantee that he held the property in trust solely for the grantor and his wife, or the survivor.</p> <p>3. Homestead—to release homestead, wife must join in deed. A deed, not signed by the wife, conveying the property upon which she and the grantor reside, passes title to the extent of its value in excess of $1000; but the homestead, unless abandoned or possession given in pursuance of the deed, remains in the grantor, and upon his death descends to his heirs subject to the widow’s right of occupancy.</p> <p>4. Same—homestead presumed to continue until another domicile is acquired. Seven years’ absence by a husband from his homestead, during which time the wife remains in possession, is not an abandonment, in the absence of any proof that he had acquired a home elsewhere, and at the end of such period, it being presumed in law he is dead, the homestead descends as provided in the statute.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of McLean county; the Hon. Alfred Sample, Judge, presiding.

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

A. F. Wingert, Judge, presiding. On the 25th day of March, 1893, Ann B. Hileman died in Carroll county, Illinois, leaving an estate amounting to about $14,000, and also left Ade O. Hileman, Lucy Cowen and Naomi Emerick as her children and sole heirs-at-law. Ade O. Hileman was appointed administrator, and at the July term, 1893, he filed in the Carroll county court his inventory in said estate.

G. W. Patton, Judge, presiding. This was an action brought by Michael M. Morrissey in the circuit court of McLean county, against the Lake Erie and Western Railroad Company, to recover damages for a personal injury suffered by him while in the service of the company as a conductor of a freight train, and while attempting to couple, in the night time, two Empire Line cars at East Lynn, a small village on the line of the road.

<p>1. Guaranty—guarantor released by injurious acts of guarantee. Any act or omission by the person to whom a guaranty is given which is inconsistent with and injurious to the rights of the guarantor releases the latter’s liability to the extent of the injury occasioned.</p> <p>2. Same—one taking guaranteed notes, secured by mortgage, as collateral, must be diligent in their management. One to whom guaranteed notes, together with a chattel mortgage securing them, are assigned as collateral security for a loan from him to the payee must use proper diligence and care in the management of such notes and mortgage, in order that the guarantor may have the benefit of their avails.</p> <p>3. Same—what will discharge obligation of assignee of mortgage to the guarantor of notes secured. A sale of mortgaged chattels, if fairly made, under foreclosure by one to whom the mortgage and notes thereby secured were assigned as collateral for a loan from him to the payee, ¡end the crediting of the proceeds on the debt, discharges the assignee’s obligation to the guarantor oí such notes, whatever may have been the amount realized from the sale.</p> <p>4. Same—private sale of mortgaged chattels without knowledge of guarantor of notes secured is a release. A private sale of mortgaged chattels by the assignee of the mortgage and the notes secured thereby, on terms of credit, thus substituting a third person as the principal debtor and as custodian of the mortgaged chattels, without the knowledge or consent of one who guaranteed the notes in order that the payee might use them as collateral to obtain a loan from the assignee, extinguishes the guarantor’s liability, where the sale price exceeds the amount of the loan.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding. This was a bill in -equity and for an injunction, filed in the circuit court of Cook county December 19, 1893, by Hannah Horner and Fannie Abson, against David Keene, Charles E. Cook, F. H. Bramner, (the agent of Francis B. Keene,) Thomas B. Bryan, Lewis B. Coburn, Julius Jonas and Alexander Officer.

<p>1. Deeds—a deed without delivery is inoperative. Delivery of a deed is an essential part of its execution, as it becomes operative by and takes effect from such delivery.</p> <p>2. Same—deed not passing from the grantor’s control is not delivered. It is indispensable to the delivery of a deed that the grantor shall part with control of it without retaining the right to re-claim it.</p> <p>3. Same—a presumption of delivery in voluntary settlement must have some basis in evidence. The rule that a presumption of delivery, in case of a voluntary settlement, will arise from slight circumstances indicative of an intention that the deed shall become effective in the present, cannot arise where the uncontradicted evidence shows there was no delivery.</p> <p>4. Same—what does not constitute a delivery. The delivery to the grantee, by the grantor, of the key to his safety deposit box, with directions to go and get the grantor’s will in case of his death, does not constitute a delivery of a deed found in the box after the grantor’s death, in an envelope addressed to the grantee, which also contained a paper signed by the 'grantor directing the grantee to record the deed upon opening the envelope.</p> <p>5. Same—a deed, not delivered before grantor’s death is a testamentary devise. An unrecorded deed retained by the grantor, who holds the title to the land described therein and exercises the rights of ownership, which he intends shall be found among his papers after his death and be recorded by the grantee, is a testamentary devise, and invalid unless executed with the formalities of a will.</p>

John Barton Payne, Judge, presiding. These two appeals, which involve the same matter, grew out of a suit in equity originally begun in the superior court of Cook county by Edward Hines, complainant,' against the Union National Bank of Chicago and S. B. Barker, defendants, to enjoin the bank from selling certain stock of the Edward Hines Lumber Company which it held as collateral security.

B. R. Burroughs, Judge, presiding. The appellee, C. M. Forman, who was appointed receiver of the Centralia and Chester Railroad Company by the United States Circuit Court for the Southern District of the State of Illinois, filed a petition in his name, as receiver, in the circuit court of Randolph county, praying for a judgment of condemnation of certain lots in the city of Chester belonging to the appellants, for the purpose of appropriating the same to the uses of the said…

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

<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>

Murray F. Tuley, Judge, presiding. On the 13th day of June, 1871, Maria Louise Taylor, being the owner of certain premises in Chicago, with her husband, Frank C. Taylor, executed.the following deed of trust: “This indenture, made this 13th day of June, in the year of our Lord'one thousand eight hundred and seventy-one, between Maria Louise Taylor and Frank C. Taylor, her husband, of the city of Chicago, in the county of Cook and State of Illinois, party of the first part,…

John Gibbons, Judge, presiding. The original and amended bills in this cause were exhibited by appellant, Charles D. F. Smith, against A. M. Billings, as sole defendant, to establish and enforce a trust in favor of complainant in respect to certain stock which had been held by Billings, appellee’s testator, and sold by him for the sum of §60,960. The testimony of appellant was taken in his own behalf by deposition.

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

<p>1. Drainage—act of 1888 did not repeal any of the powers given cities in City and Village act. The Drainage act of 1885 (Laws of 1885, p. 60,) does not repeal, by implication, any of the powers granted to cities and villages under article 9 of the City and Village act.</p> <p>. 2. Same—city may still construct drainage improvements under City and Village act. A municipality may, under the general powers conferred by article 9 of the City and Village act and its amendments, by ordinance construct sewers in and drain portions of its territory having its limits accurately bounded and defined, without proceeding under the Drainage act of 1885.</p> <p>3. Same—when drainage assessment may be divided into installments. An assessment for a drainage improvement constructed under the authority of article 9 of the City and Village act and its amendments, and not under the Drainage act of 1885, may be divided into installments. (City of Charleston v. Cadle, 166 Ill. 487, and Same v. Johnston, 170 id. 336, distinguished.)</p> <p>4. Same—when ordinance does not grant away city’s police power. An ordinance for an outfall sewer'does not grant away the police power of the municipality by providing that the use and benefit of such sewer shall be available to all property owners obtaining permission to make connection therewith, as the municipality will still have power to regulate the manner of making such connections and to abate any nuisance which might be created.</p> <p>5. Evidence—when other ordinances are competent at confirmation to show good faith. Where an ordinance for an outfall sewer provides for openings on both sides for the purpose of connection with lateral sewers or drains, other ordinances, providing for the construction of lateral branches of the sewerage system, may be introduced at the confirmation to show good faith by the city in carrying out its provisions for lateral connections.</p> <p>6. Improvements—act of 1897 does not apply to pending proceedings. The act of July 1, 1897, concerning local improvements, does not apply to proceedings pending, under article 9 of the City and Village act, at the time the former act took effect; and a proceeding is so pending where the petition was filed and the commissioners appointed June 30, 1897.</p> <p>7. Appeals and errors—objections to evidence not sustained where all the evidence is not preserved. Objections to the admission of ordinances for other improvements at a confirmation proceeding will not be sustained on appeal where'the record does not purport to contain all the evidence and the abstract contains no evidence except the ordinances complained of, although the trial of the case before the jury occupied two weeks.</p>

John Gibbons, Judge, presiding. This was an information in equity, brought in the circuit court of Cook county in the name of the People, by the Attorney General, against Alexander H. Revell, as the owner of a certain tract of land bordering on Lake Michigan.

<p>1. Special assessments—jury merely pass upon benefits, and not upon right to levy assessment. A jury empaneled to determine the question of the benefit to property by reason of an improvement has nothing to do with the question whether the petitioner has established a legal right to a judgment of confirmation.</p> <p>2. Same—when refusal of instruction is proper. An instruction to the jury in a special assessment case that the petitioner was required to prove all material allegations of the petition is properly refused, as the only question for the jury is the matter of benefits, and proof of allegations of the petition in other respects need not be produced. .</p> <p>3. Res judicata—when former judgment is res judicata. A judgment of the Supreme Court reversing a judgment of the county court refusing confirmation of an assessment, which establishes the right of petitioner to the assessment and sustains the sufficiency of the petition and regularity of the proceedings, and directs the county court to proceed to a trial on the question of benefits, is conclusive as to the matters so determined, and re-argument will not be allowed on appeal from the verdict of damages.</p>

<p>1. Burnt records—decree finding title in petitioner is conclusive on the parlies. A decree in a proceeding under the Burnt Records act finding title -to be in the petitioner, as against the defendants, is as conclusive of the rights of the parties as if a bill had been filed to quiet title, and cuts off any defense which they might have made.</p> <p>2. Same—effect of dismissal as to part of the parcels of land involved. The dismissal of a petition under the Burnt Records act as to part of the parcels of land involved does not affiect the force of the decree against parcels to which no adverse claim was made, as, under section 19 of that act, the court may enter a decree pro confesso against parcels of land as to which no demurrer or answer is filed and hear evidence or order a reference as to the others.</p> <p>3. Equity—relief against misdescription not granted as against bona fide purchasers. A grantee is not entitled to relief for misdescription in his deed, as against bona fide purchasers from the grantor without notice, actual or constructive, of the grantee’s rights.</p> <p>4. Notice—record of deed is notice only so far as description is correct. The record of a deed is notice only so far as the premises are correctly described, unless mistake is apparent from the record itself.</p> <p>5. Same—continued possession after decree is presumed to be in subordination to rights of successful party. The continued possession of land by one whose title has been divested by a judicial decree is presumed to be in subordination to the rights of the party in whose favor the decree was rendered, and is not constructive notice of any rights or claims of the possessor adverse to the decree.</p>

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the County Court of Greene county; the Hon. John C. Bowman, Judge, presiding.</p>

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

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

<p>1. Accounting—when equity may take jurisdiction in matters of account. Equity may take jurisdiction in matters of account when the state of accounts between the parties is intricate and complicated, or so involved with the rights of third parties that it would be difficult for a jury to unravel the numerous transactions.</p> <p>2. Same—jurisdiction of equity in accounting not dependent on absence of remedy at law. The jurisdiction of equity in matters of account does not depend upon the absence of any remedy at law, but upon the adequacy and practicability of such remedy and upon the discretion of the court.</p> <p>3. Corporations—when party is entitled to be reimbursed for contributed capital though he has parted with stock. One who assists in forming a corporation the capital of which is contributed in unequal amounts and the stock distributed without reference to the amounts contributed, upon an agreement that the organizers should be reimbursed for the respective amounts contributed, part of the stockholders having contributed nothing, may maintain an action for reimbursement although he has parted with his stock, his right to recover being dependent upon the agreement and not incident to his being a stockholder.</p> <p>4. Same—when method for reimbursing contributor of capital is not a payment. The facts that the manner of reimbursing the contributors of the capital of a corporation is fixed by resolution to be by delivering the bonds of the corporation according to the respective amounts contributed, and that such plan is carried out as to all the contributors but one, whose share is set apart, do not operate as a payment to the latter nor prevent his maintaining an action in equity to determine the amount due him and recover the same, . where the manner of reimbursement is, as to him, annulled by agreement with the corporation, which agreement also relegates him to his legal remedies to settle the differences.</p>

<p>1. Boundaries—mutual mistake of owners in locating division fence may be corrected. The building of a division fence by agreement between adjoining owners, in the mistaken belief that they were placing said fence on the true boundary line between their lands, there being no dispute as to the line or contention for a different line, does not conclude one of the parties from insisting upon the true line when ascertained.</p> <p>2. Same—when words “land line” will be construed as synonymous with “boundary line.” The words “land line,” used in an instruction with reference to the true boundary line, will be construed as synonymous with the words “boundary line,” where the only question involved is whether the boundary line was in dispute when an incorrect line was agreed upon.</p> <p>3. Instructions—when error in instruction is harmless. An instruction in a disputed boundary case, which holds that a parol agreement upon a line must be followed by possession “and the making of improvements,” is not prejudicial where the fact of the making of improvements in the particular case is not disputed.</p>

Writ of Error to the Circuit Court of St. Clair county; the Hon. M. W. Shaefer, Judge, presiding.

Colostin D. Myers, Judge, presiding. This was an action brought by Alexander Kingsley, against the Wabash Eailroad Company, to recover for an injury received from being put off a freight train running on the defendant's road. The declaration contained two counts.

<p>1. Criminal law—allegation of corporate existence does not require proof of legal organization. An allegation, in an indictment of an express company’s agent for embezzlement, that the company is a joint stock association and a corporation under the laws of New York, is prima facie established by proof that it had a known and recognized de facto existence in Illinois as a corporation.</p> <p>2. Same—embezzlement is committed where the conversion or failure to account takes place. The venue of an indictment charging embezzlement, consisting in the failure to account, may be laid in the State and county where the accused was under obligation to account.</p> <p>3. Same—demand need not be proven where accused had absconded. Where the disappearance of an express company’s agent from his place of business makes it impossible for the company to demand settlement of him for the proceeds of the sale of express orders which he had appropriated, the People may prove the conversion otherwise than by demand and refusal.</p> <p>4. Same—embezzlement of proceeds of sale of money orders by express agent—what need not be proved. On the trial of an express agent for embezzling the proceeds of the sale of money orders it is not necessary to prove that the company has paid the orders, if the facts proven establish the liability of the company to honor the orders.</p> <p>5. Same—each criminating fact need not be proven beyond a reasonable doubt. Each criminating fact relied upon need not be proven beyond a reasonable doubt, as it is sufficient if, upon the whole evidence, the jury are satisfied, beyond a reasonable doubt, of the defendant’s guilt.</p> <p>6. Same—when accused may elect to be sentenced under Indeterminate Sentence law. One tried for an offense committed before the adoption of the Indeterminate Sentence law of 1895 may elect to be sentenced under its provisions; but it is not error for the court to give Mm a fixed sentence under the old law if he fails to indicate Ms election before sentence was pronounced.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Henry county; the Hon. Hiram Bigelow, Judge, presiding.

<p>1. Contracts—cm offer to buy land may be revoked before acceptance. A written proposal to buy land, signed and acknowledged and delivered to the agent of the owner of the land, to become operative upon acceptance of the terms by such owner, may be revoked at any time before acceptance.</p> <p>2. Bills and notes—when notes are not delivered so as to pass title. Notes for the purchase price of land delivered to the agent of the owner, together with and as part of a written proposal to buy the land upon the owner’s acceptance of the terms, are not delivered so as to pass title, where the offer is revoked before acceptance.</p>

<p>Appeal from the County Court of DuPage county; the Hon. John H. Batten, Judge, presiding.</p>

<p>1. Patents—one paying royalties is estopped to clawn he was an infringer. One who has paid fees or royalties to the owner of a patent for the use thereof, and who has enjoyed the benefits of the patent, is estopped to set up that he is not a licensee but an infringer, in order to defeat the jurisdiction of the State court of an action for royalties claimed to be due and unpaid.</p> <p>2. Damages—when defendant cannot claim that damages are excessive. Defendant to a suit to recover royalties on articles manufactured by it as licensee of a patent cannot claim, on appeal, that the damages are excessive, where the verdict was based on a computation by a witness from an examination of defendant’s books by consent of both parties and defendant offered no evidence on the subject.</p>

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

<p>This case is controlled by the decision in Farr v. West Chicago Park Comrs. 167 Ill. 355.</p>

<p>1. Ordinances—earlier ordinance inconsistent with a later one is repealed. An earlier ordinance inconsistent with or repugnant to a later one on the same subject and having the same purpose in view is repealed, although the two ordinances appear under different headings in the ordinance book.</p> <p>2. Evidence—admissibility of ordinances on question of damage in condemnation. A “fire ordinance” fixing a penalty for piling lumber within one hundred feet of any wood-working establishment having been introduced on the question of damages by the defendant in a proceeding to condemn a strip of land off of a tract leased by it for a box factory and for storing its lumber, the petitioner may introduce a “building ordinance,” passed a year later, reducing the distance fixed by the fire ordinance to fifty feet.</p> <p>3. Eminent domain—when danger from fire is not an element of damage. Damages for alleged increased danger from fire, occasioned by defendant having to pile its lumber within eighty feet of its box factory owing to the taking of part of its land by condemnation, aré merely speculative, where the use for which the land was taken will not increase the risk of fire and the ordinances of the city recognize fifty feet from the factory as the danger limit.</p> <p>4. Same—contingent and speculative damages cannot be considered. In estimating the compensation for a strip of land condemned by a sanitary district on the bank of a river, being part of a tract occupied by the defendant for a box factory and storage, damages to the defendant’s business which are merely contingent and speculative, such as the increased cost in case it should become necessary to transport a certain quantity of lumber by rail instead of water for a period of five years in the future, cannot be considered.</p>

John Barton Payne, Judge, presiding. John H. Muhlke died testate in 1879, leaving a last will and testament, which is in the words and figures following: “I, John H. Muhlke, of Chicago, State of Illinois, being of sound and disposing mind and memory, do make and publish this my last will and testament: “First—I direct that all my just debts be paid. “Second—All of the property, real and personal, of which I may die seized or possessed, and wherever situated, I give, devise…

<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 Circuit Court of Cook county; the Hon. John C. Garver, 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. H. M. Shepard, Judge, presiding.</p>

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

<p>1. Eminent domain—petitioner is judge of amount of land required. A corporation having the power to condemn must be permitted to judge for itself the amount of land required, subject to the power of the court to restrain any abuse of power in that respect.</p> <p>2. Same—when absence of proof of failure to agree on compensation can not be urged as error. Absence of proof of failure to agree on compensation cannot be urged as error on appeal where the certificate of evidence preserves only the testimony before the jury, particularly where both parties have proceeded upon the theory that they could not agree on compensation, that controversy being the only one before the jury and upon which the evidence is conflicting.</p> <p>3. Same—when admitting evidence of acre value is not error. Admitting evidence of acre value, for agricultural purposes, of land described in the petition by metes and bounds as containing a certain number of acres, in connection with evidence of its value as subdivided town property; is not error, where the subdivision was made after the petition was filed and the jury viewed the premises.</p> <p>4. Same—liability to inundation may be considered on question of damages. Proof that property condemned as acre property but subsequently subdivided into lots and blocks is subject to inundation is admissible in the form of testimony of engineers, and photographs of the property, taken when overflowed, as bearing upon the question of the value of the property and its adaptability to the uses contended for by the parties at the time the petition was filed.</p> <p>5. Same—proof of amount paid by petitioner for adjoining property is not admissible. Proof of the price paid by the petitioner for adjoining property is not admissible upon the question of damages.</p> <p>6. Same—trust deed not competent to go to jury on question of damages. A trust deed given to secure the purchase price of a majority of the lots condemned having been received in evidence by the court upon a hearing to determine the question of title and interest of the various parties before submitting the case to the jury, is not competent to go to the jury on the question of damages.</p> <p>7. Same—when verdict need not specify amounts due lienors. A verdict in condemnation fixing the aggregate value of lots in groups, according to ownership and encumbrances thereon, as directed by the court, need not specify amount to be paid to each lienholder, where, prior to submitting the case, the court entered a preliminary decree finding the ownership and the amounts due the lienors.</p>

<p>1. Taxes—to warrant judgment for taxes the land must be properly described. There can be no valid judgment against land for taxes unless the land is described so that it can be located and found.</p> <p>2. Same—what is not a sufficient description to authorize judgment. A description in a tax collector’s advertisement of delinquent lands as “F. Farrell, pt. It. 24b. pt. N. E. 11, 8, 5, 683.10,” is not sufficient to authorize a judgment.</p>

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