Volume 179 — Illinois Reports

<p>Appeal from the Circuit Court of Livingston county; the Hon. John H. Moffett, Judge, presiding.</p>

Murray F. Tuley, Judge, presiding. This is a proceeding under the Burnt Records act; and the original petition was filed by Henry H. Walker, - the appellant, on May 21, 1896. To this petition the appellees, the Chicago, Madison and Northern Railroad Company, the Chicago, Santa Fe and California Railroad Company, the Atchison, Topeka and Santa Fe Railroad Company, Nelson A. Steele, Margaret A. Steele and Hiram C. Wheeler, all of whom were defendants below, filed demurrers.

<p>This case is controlled by the decision in Rosenberg v. Stern, 177 Ill. 437.</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. Abner Smith, Judge, presiding. This was a bill in equity brought in the circuit court of Cook county on February 10, 1897, by Lander Kirke Whiton and Walter Starr Whiton, against their sister, Louise Whiton.

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. Theodore Brentano, Judge, presiding.

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

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

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

Jonas Hutchinson, Judge, presiding. This was an action brought by Anton Murowski to recover damages for a personal injury received on the 11th day of July, 1893, in the city of Chicago, at a place known as Oakley avenue, immediately north of the gate of the McCormick Reaper Works. Oakley avenue is a paved highway running north and south. It terminates at the south opposite the north gate of the McCormick Reaper Works.

Charles G-. Neeley, Judge, presiding. In the present case the suit below was prosecuted to judgment in the name of Samuel B. Barker for the use of the present appellant, the Union National Bank of Chicago. The appellant, the usee, prosecuted an appeal to the Appellate Court in its own name.

William Hartzell, Judge, presiding. George Leavitt was seized of certain land. He died on January 9, 1898, leaving complainant, who is an only grandson by a deceased son, and defendants, his widow and four daughters, him surviving; February 4, 1897, he called in a notary and executed four deeds, dividing the land among the four daughters.

<p>1. Railroads—duty of railroad employees to trespassers. One stealing a ride on a railroad train is a trespasser and gains no rights, but it is the duty of the company’s servants to avoid inflicting willful or intentional injury upon him.</p> <p>2. Same—when evidence tends to show that brakeman's act was willful. Evidence that a brakeman pulled plaintiff from the brace-rods under a freight car where he was riding, dragged him out while the train was moving, cursed him and threw a stone at him, plaintiff’s foot being run over and crushed during the act, tends to show that the brakeman’s act was willful.</p> <p>3. Same—extent of company’s liability for brakeman’s willful act. A railroad company is liable for the willful act of a brakeman in putting a trespasser off the train where the duty of putting trespassers off is within the scope of his authority.</p> <p>4. Same—when brakeman has authority to put trespassers off. Testimony of a brakeman that his instructions were “to stop and put them off if we find some one beating their way; * * * when you put a man off you do not mean that you jerk him off—put him off; it means * * * we instruct him that he can’t ride, and he gets off,” shows that it is within the scope of his directions and duties to put trespassers off the train.</p> <p>5. Same—when plaintiff’s negligence is not an issue. The negligence of the plaintiff in getting upon the brace-rods under a freight car to steal a ride is not an issue in an action by him to recover for the loss of a foot crushed while he was being dragged from his place by a brakeman when the train was moving.</p> <p>6. Instructions—when omission of element of recovery will not reverse. The giving of an instruction for the plaintiff which, in summing up the essentials of recovery, omits the element whether the act of the servant causing the injury was within the scope of his authority, will not work reversal where the fact of such authority was conclusively shown by uncontradicted evidence.</p>

<p>1. Streets and alleys—acceptance of dedicated street need not be formal. No formal act or ceremony is necessary to the public acceptance of a dedicated street, nor is it necessary that there should be any record of such act to vest the public with the easement.</p> <p>2. Same—acceptance includes entire width if street is open. Where the acceptance of a platted street by the public is not expressly limited and the entire street is open, such acceptance must be taken as including the full width of the street as shown by the plat, although the regular travel is confined to a narrower strip.</p> <p>3. Same—mere adversepossessionby adjoining owner does not bar city’s right. In the absence of any element of equitable estoppel, the mere adverse possession of part of a public street by an adjoining owner, however long continued, does not bar public right.</p> <p>4. Same-^when city is not estopped to assert its rights in public street. That an adjoining owner for many years had fenced in a portion of a public street, along which fence a sidewalk was built by parties other than the municipal authorities, does not estop the city from building a sidewalk on the true line, where no valuable or lasting improvements were made in the enclosed space.</p>

<p>1. Conveyances—instrument construed as a mortgage and not an assignment. A deed by an insolvent debtor to a second party in trust for the benefit of third parties, named creditors of the first party, which empowers the second party to apply the rents on the indebtedness or to sell the property if necessary, but which provides that the conveyance shall be void if the first-party shall pay the indebtedness on demand, is a trust deed or mortgage securing certain creditors, and not a deed of assignment for creditors generally.</p> <p>2. Insolvency—insolvent may in good faith prefer bona fide creditors. An insolvent debtor may in good faith secure certain bona fide creditors by trust deed or mortgage to the exclusion of all others, and may of right employ such terms in the instrument as will most clearly indicate his intention to make such preference.</p> <p>3. Same—our statute does not contemplate constructive or involuntary assignments. Constructive assignments are unknown to our law, nor is an involuntary assignment contemplated by our statute.</p>

<p>1. Trial—court must refuse instruction to find for defendant if evidence tends to sustain declaration. Where there is evidence tending to prove the facts alleged in the declaration it is not error for the trial court to refuse to instruct the jury to find for the defendant.</p> <p>2. Same—it is not the province of the court to weigh the evidence. Unless the evidence in a personal injury case is such that the jury cannot draw a justifiable inference therefrom that plaintiff's intestate was using due care and that defendant was negligent the court cannot direct a verdict for the defendant, even though the evidence tends more strongly to establish the issues in his favor.</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. Murray F. Tuley, Judge, presiding.</p>

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

John Barton Payne, Judge, presiding. This was an action brought by William F. Baur, against the North Chicago Street Railroad Company, to recover damages for personal injuries alleged to have been received by reason of negligence of the railroad company. The declaration contains four counts.

Edward P. Vail, Judge, presiding. This was an action of assumpsit, brought by R. O. Rosen in the circuit court of Macon county to recover a balance claimed to be due for the erection of a certain factory plant in Decatur.

<p>Appeal from the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Fulton county; the Hon. G.W. Thompson, Judge, presiding.</p>

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

<p>1. Equity—when equity may entertain hill to restrain highway commissioners from interfering with owner’s possession. The removal of a fence from the highway by the commissioners and its replacement by the owner several times, resulting in two or more actions at law between the parties, gives equity jurisdiction of a bill by the owner to restrain further interference with her possession.</p> <p>2. Highways—opening highway full length protects public right to full width. The opening of a highway its full length and its use by the public protects the public right to its full width as authorized by law, and repels any presumption of abandonment which might arise from the fact that the fence of an adjoining owner has stood within the line of the highway for over twenty years.</p>

Carroll C. Boggs, Judge, presiding. This is a suit, originally brought by appellant against appellee before a justice of the peace of Pulaski county to recover a reward offered for the apprehension and conviction of a criminal. The justice of the peace rendered a judgment against appellee for $50.00, the amount of the reward offered by him, and costs.

<p>1. Public improvements—petition to board need not specifically describe improvement. A petition by property owners for the construction of “a ten (10) inch pipe sewer” is sufficient in its description, as the estimate of the cost of the improvement is not based upon the petition, but upon the resolution of the board of local improvements describing the proposed improvement.</p> <p>2. Same—petition must be signed by majority in each contiguous block. Under section 4 of the Local Improvement act of 1897, (Laws of 1897, p. 103,) an ordinance for a local improvement in cities of less than 25,000 inhabitants cannot be passed except upon the authority of a petition to the board signed by the owners of a majority of the property in each contiguous block of the improvement. (City of Bloomington v. Reeves, 177 Ill. 161, followed.)</p>

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

<p>Writ of Error to the Circuit Court of Coles county; the Hon. Frank K. Dunn, Judge, presiding.</p>

Theodore Brentano, Judge, presiding. Appellees' filed a bill in chancery against Barbara Malinowski, and obtained a decree enjoining her from placing any building, structure or obstruction upon a certain private alley set forth and described in the bill and decree, and canceling as null and void a deed executed by one P. E. Baird and wife to the said Barbara, purporting to convey to her said private alley.

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

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

Frank K. Dunn, Judge, presiding. Appellee recovered a judgment in the circuit court of Edgar county in the sum of $1500 against the appellant in an action on the case for personal injuries. The judgment was affirmed by the Appellate Court for the Third District on appeal, and the appellant company has prosecuted a further appeal to this court. The declaration contained two counts.

<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. Abner Smith, Judge, presiding.</p>

<p>1. Special assessments—location of sewer outlet is largely discretionary with city. Where a proposed sewer shall have its outlet is to be determined by the city from a consideration of the circumstances, including the conformation of the surface and the location of existing sewers, and its determination will not be disturbed by the courts except to correct a clear abuse of discretion.</p> <p>2. Same—when sewer ordinance does not create a double improvement. That a sewer ordinance provides an outlet at a point where the sewer is bisected by another sewer does not create that part of the sewer in each direction from the outlet a separate and distinct line, so as to constitute a double improvement.</p> <p>3. Same—effect of deviation in laying a sewer. Deviation from the exact line provided in the ordinance for a sewer requires proof by the People, on application for judgment of sale, that the deviation worked no injury to property of objectors, and that the sewer as constructed is as beneficial as if it had been laid in literal compliance with the ordinance. (Church v. People, 174 Ill. 366, followed.)</p> <p>4. The court construes the ordinance in question, and holds that it sufficiently indicates the point at which the size of the sewer provided for shall be decreased.</p>

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

Leslie D. Puterbaugh, Judge, presiding. This was a bill in chancery filed by the Canal Commissioners of Illinois, in their official capacity, in the circuit court of Tazewell county, on May 18, 1898, against the village of East Peoria, a municipal corporation located in Tazewell county, Illinois.

<p>1. Contracts—contract to make will in particular manner must be equitable. Equity will not grant specific performance of a contract to make a will in a particular manner if the contract is unconscionable, inequitable or unjust, or not founded upon fair consideration.</p> <p>2. Same—contract to make particular will must be absolute in its terms. Specific performance of a contract to make a will in a particular manner cannot be enforced where the contract is in the alternative either to make the will or pay a sum of money.</p> <p>3. Same—contract construed as not authorizing specific performance. A contract evidenced by a lease from father to son, whereby the latter gains a desirable leasehold at much less than its value, which provides that the lessor’s will devising the property to the lessee’s children shall not be changed, but which further provides that in case the lessor violates its provisions then all rents paid thereunder shall be refunded, and that neither party “waives any right or claim on the premises” existing at the signing of the lease, is not capable of specific enforcement by the lessee’s children.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. H. V. Freeman, Judge, presiding.</p>

<p>1. Homestead—statute construed as to who is the head of a family. A bachelor occupying a home with his sisters, who are dependent upon him for support, the parents being dead and one of the sisters being a distracted person, is a householder having a family, within the meaning of the Homestead act.</p> <p>2. Same—undivided interest in land accompanied by exclusive possession supports homestead. As against creditors, one having an undivided half interest in land occupied by him as a residence with the other co-tenant, his sister, who accords him the sole possession and control of the property in consideration of her support, may claim the homestead exemption.</p> <p>3. Same—creditors do not acquire lien during erection of householder's home. Where the head of a family purchases a lot and begins the erection of a house which he intends to occupy as a home, the entire property being worth less than $1000, creditors cannot acquire a lien if the owner moves upon the property within a reasonable time and occupies it as a homestead.</p> <p>4. Same—right of debtor to occupy premises as a homestead pending suit. The rights of creditors as to property occupied by the debtor as a homestead after the filing of their bill to cancel a previous satisfaction of their judgment, enjoin the sale of the property and subject it to such judgment, attach from the date of the decree and not from the filing of the bill, where the court does not cancel the satisfaction of such judgment but enters a money decree and directs execution to issue.</p>

George W. Herdman, Judge, presiding. This was an action of ejectment brought by appellant, against appellee, to recover possession of the following lands: The west half of the north-east quarter of section 2, except about 15.59 acres in the plat of Thomas Esten of the village of Lawndale, in township 20; also all that part of the south half of the south-west quarter lying west of the Chicago.and Alton railroad track, in section 86, township 21, north, range 2, west of the…

R. S. Tuthill, Judge, presiding. A judgment was entered in the probate court of Cook county allowing a claim presented by appellant against the appellee, as executor of the estate of Charlotte E. Holmes, and on appeal judgment in the sum of $2408.12, in the same behalf, was rendered in the circuit court of said county. A further appeal to the Appellate Court for the First District resulted in a judgment reversing that of the circuit court and not remanding the cause.

<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. Negligence—negligence may be the proximate though not sole cause of injury. Negligence may be the proximate cause of an injury though not the sole cause or the nearest cause in order of time, where such negligence is so connected with the injury that without it the injury would not have happened, and where ordinary care and sagacity could have foreseen the result.</p> <p>2. Same—whether negligence charged is proximate cause of injury is for the jury. Whether the negligence of servants of an express company in placing a chute crosswise of an express car, contrary to custom, was the proximate cause of the injury to a brakeman, which happened through a collision of such protruding chute with a car on the side-track, is a question for the jury.</p>

<p>1. Ejectment—when plaintiff’s instructions are prejudicial to defendant. Instructions in ejectment which direct that plaintiff may recover if the jury believe her contention as to the location of the boundary line is correct are prejudicial to the defendant, where the latter’s legal defense of adverse possession of the strip in controversy, which the evidence tends to support, is ignored.</p> <p>2. Same—token instructions do not fairly present the. defense of adverse possession. The question of defendant’s twenty years’ adverse possession of a strip of land in controversy in ejectment is not fairly presented to the jury under plaintiff’s instructions allowing evidence of such possession to be considered in determining, “by the acts of the parties, * * * where the true boundary line is,” and whether the boundary line had been fixed by agreement.</p>

<p>1. Quo warranto—remedy is not a matter of absolute right. The remedy by information in the nature of quo warranto is a matter calling for the sound judicial discretion of the court, and should be denied to parties whose conduct has been such that its allowance would result in a wrong.</p> <p>2. Same—court may consider motives and position of relator. In the exercise of its sound discretion in the matter of granting or denying the remedy by information in the nature of quo warranto, the court may consider the position and motives of the relator and the necessity or policy of granting the remedy.</p> <p>3. Same—remedy should be denied.after unreasonable delay and acquiescence by relators. The remedy of information in the nature of quo warranto to test the legality of the organization of a drainage district should be denied where the relators have delayed three years with full knowledge of all matters pertaining to such organization, have attended-all meetings of the commissioners, acquiesced in the making of the improvement and received its benefits.</p>

<p>These cases are controlled by the decision in People ex rel. v. Martin, 178 Ill. 611.</p>

D. L. Jones, Judge, presiding. The county court of Lake county confirmed special assessments levied by the city of Waukegan for the purpose of defraying the expense of paving a part of Water street, in that city, and appellant, who was the owner of certain of the property against which the said assessments were confirmed, has brought the proceeding to this court by appeal.

<p>Motion by amici curiœ to dismiss appeal.</p>

<p>1. Ordinances—ordinance restricting award of contracts for city printing to union shops is illegal. An ordinance requiring all contracts for city printing to be awarded to union shops only, or to such as are able to show the union label, is illegal, as tending to create monopoly and impose an additional burden on tax-payers, who are entitled, under paragraph 94 of section 1 of article 5 of the City and Village act, (Rev. Stat. 1874, p. 223,) to have such contracts let to the lowest bidder.</p> <p>2. Injunction—fact that tax-payer bid on contract does not affect his right to injunction. A tax-payer may enjoin the city from expending public funds to carry out a contract let in violation of law, and the fact that he was a bidder on the contract does not affect his right.</p> <p>3. Same—when equity will enjoin city from carrying out printing contract. Equity will enjoin a city from carrying out a contract for city printing at the suit of a tax-payer who was the lowest bidder on the contract, and whose bid was rejected solely because he did not employ members of a certain labor organization and could not show the union label, as required by an ordinance making such qualifications essential.</p> <p>4. Same—acts of defendant after equity acquires jurisdiction are subject to power of court. Where equity has acquired jurisdiction of a bill to enjoin the performance of an illegal contract, but no injunction pendente lite is issued, the defendant is not in contempt for carrying out the contract, but he takes the risk of being compelled to restore the conditions existing when the court acquired jurisdiction.</p>

Thomas F. Tipton, Judge, presiding. This is a bill, filed on October 13, 1894, by the appellant, A. Miner Wellman, executor of the will of Asher W. Miner, deceased, of Allegany county, New York, against the appellees, the widow and children of Simon G. Miner, deceased, for the purpose of foreclosing three mortgages, executed by Simon G. Miner in his lifetime to Asher W. Miner.

<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. Robert B. Shirley, Judge, presiding.</p>

<p>The questions here raised are discussed and decided in the case of Gray v. Town of Cicero, 177 Ill. 459.</p>

<p>Benefit societies—when by-law is enacted by supreme lodge. Adoption by the supreme lodge, by a viva voce vote, of a committee report approving a suicide by-law passed by a subordinate board of control without authority, is an enactment of such law by the supreme lodge, although its constitution provides another method for enacting by-laws, and binds members whose contracts require compliance with all,laws “now in force” or “hereafter enacted by the supreme lodge.” (See head-note 4, ante, p. 341.)</p>

<p>I. Indictment—indictment for attempt to commit a burglary—when sufficient. An indictment for an attempt to commit burglary, which states the offense in the language and terms of paragraph 273 of the Criminal Code, (Rev. Stat. 1874, p. 303,) and describes the overt act to be that accused “did then and there attempt to push back the lock on the door of the said dwelling house,” is sufficiently plain in its description of the offense.</p> <p>2. Instructions—not error to give instructions defining an offense in language of statute. On a trial for attempt to commit burglary it is not error to give instructions for the People defining the offense of burglary as stated in section 36 of the Criminal Code and defining an attempt to commit an offense in the language of paragraph 273 of such code.</p> <p>3. Evidence—when conviction of attempt at burglary will be sustained. A conviction of attempt to commit burglary will not be set aside as unwarranted by the circumstances proven, consisting of suspicious conduct and false statements of the accused when arrested, coupled with the finding of a case-knife in his possession with a piece broken off, and of a piece fitting the break wedged between the stop and door jamb of the house attempted to be burglarized.</p>

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

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

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

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

Colostin D. Myers, Judge, presiding. This is a bill, filed on December 2, 1896, by Robert H. Craig, appellee, against Frances A. Craig, James E. Craig and F. E. Henderson, the appellant, seeking to redeem a life estate in eighty acres of land in McLean county. The present appellant, F. E. Henderson, one of the defendants below, filed an answer to which the complainant filed a replication. Default was entered against the defendants, Frances A. Craig and James E. Craig.

E. W. Hilscher, Judge, presiding. This is a proceeding, brought by the Sanitary District of Chicago, the appellant, against the appellees, William J. Adam, Robert M. Adam and Janette A. Royer, under the power of eminent domain to acquire title to certain property in the city of Joliet by virtue of the power vested in said sanitary district for the construction of its main channel. The original petition was filed in the circuit court of Will county on July 8, 1897.

Orrin N. Carter, Judge, presiding. At the election held on November 8, 1898, the appellant, the appellees and others were nominees on the official ballot for the offices of judges of the superior court of Cook county. Six of said superior court judges were to be chosen. Certificates of election were issued to each of the six appellees.

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

<p>Contracts—construction of contract for excavating and building a water tunnel. A contract for a water tunnel, which specifies the terms to be for “tunnel in rock eight feet internal diameter, $17.75 per lineal foot; rock excavation over and above cost of lineal foot of tunnel or shaft, $10 per cubic yard,” contemplates such additional payment where the excavation is in an all-rock portion of the tunnel, notwithstanding the specifications provide for additional payment per cubic yard for rock excavation, where the tunnel is partly in earth and partly in rock, over the cost per lineal foot of tunnel in earth.</p>

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

<p>1. Benefit societies—society seeking to cancel certificate must prove allegations of hill. A benefit society seeking to cancel a certificate of membership during the member’s last illness must prove a substantial violation of the terms of the contract as alleged in its bill.</p> <p>2. Same—when charge of giving untrue answers is not sustained. An allegation that the defendant to a bill to cancel his certificate of membership in a benefit society gave untrue answers to questions in his application is not sustained, where the defendant testifies that the answers written by the society’s examining physician did not correspond with those given by the defendant and that they were not read over to him, which testimony is not denied by the examiner when called by complainant.</p> <p>3. The court reviews the evidence in this case, and holds that the chancellor was warranted in dismissing complainant’s bill to cancel defendant’s certificate of membership, on the ground that the evidence did not support the allegations of the bill.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Elbridge Hanecy, 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. Theodore Brentano, 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. Murray F. Tuley, Judge, presiding. This was a bill to foreclose two trust deeds given by Frank C. Vierling and Margaret Vierling, his wife, to the Mechanics’ and Traders’ Savings, Loan and Building Association of Chicago.

Clair county; the Hon. M. W. Schaefer, Judge, presiding. This is an appeal from a judgment in ejectment, rendered by the circuit court of St. Clair county in favor of appellee, against appellant. The premises claimed by plaintiff are described in his declaration as a strip of land on the north side of lot 12, section 3, township 2, north, range 8, west, 32.34 chains long, forty-four feet wide at the east end and seven feet wide at the west end.

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

<p>1. Mechanics’ liens—when wife is estopped to deny lien on her lots under husband’s contracts. A wife who, with knowledge that her husband has contracted in his own name for the erection of a building upon her lots, assists in procuring the work to be done under such contracts without disclosing her title to the contractors,, is estopped to assert such title to defeat their mechanics’ liens, although it appears of record.</p> <p>2. Same—effect of failure of contract to describe lots. The failure of a contract to particularly describe the lots upon which a building is to be erected will not defeat a mechanic’s lien, where the lots are correctly described in the notice or claim for lien and in the uncontradicted allegations of the pleadings, which are sustained by the evidence, and where all parties interested understood what lots were meant, the materials being furnished and the building erected upon that understanding.</p> <p>3. Same—when flat buildings will be regarded as one structure. Flats erected on adjacent lots of the same owner will be held to be one building, although the division wall rises above the roof and there are separate entrances, where they are erected as one structure and under one contract and at the same time, there being a door through the basement wall through which steam pipes pass heating the building with one furnace, and a porch with an unbroken roof which extends entirely across the rear.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. This is an action of trespass, brought oh April 13,1896, by the plaintiff in error, Vaclav Hermauek, against the defendants in error, Zigmund Guthmann, Edward F. Carpenter, Edwin Sherman and John K. Prindiville. The suit appears to have been dismissed or dropped as to Prindiville.

<p>1. Champerty—law of champerty is in force in Illinois. The law of champerty is in force in Illinois, although its common law force has been somewhat qualified by the decisions of our courts. (Thompson v. Reynolds, 73 Ill. 11, followed.)</p> <p>2. Same—agreement Try attorney to hear costs of suit is champertous. A contract by which an attorney agrees to prosecute a suit on a contingent fee and bear the expense and costs of litigation is champertous, and cannot be enforced in law or equity.</p> <p>3. Contracts—illegality of part of consideration for entire contract vitiates the contract. An agreement by an attorney to prosecute a suit on a contingent fee is void, where part of the consideration for his undertaking is that another attorney shall render his services and bear the expense and costs of litigation.</p> <p>4. Same—contract merely for contingent fee is not illegal. An attorney may make an agreement to prosecute a suit on a contingent fee of a legitimate character, and in such case the contract, if not against conscience or unreasonable, may be. enforced in equity.</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. Philip Stein, Judge, presiding.</p>

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

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

<p>1. Pleading—when declaration for negligence states a cause of action. A declaration against a railroad company by a brakeman injured in coupling cars states a cause of action which alleges a breach by the defendant of its duty to keep the brake of the car in repair, which defect was known to the defendant but not to the plaintiff, by reason of which the plaintiff, being unable to check the speed of the car, was injured, though using ordinary care for his safety.</p> <p>2. Same—ordinary care may be alleged in general terms. In alleging negligence the declaration must aver in what respect defendant was negligent, but it is sufficient to allege in general terms that plaintiff was using due care.</p> <p>3. Same—limitations—when additional counts are not barred. Additional counts filed more than two years after the injury, which allege the same transaction, same injury and same negligence as the original counts, with the additional allegation of a promise by defendant to obviate the danger and plaintiff’s reliance thereon. are not barred by the statute where no recovery is sought for a breach of the promise, the purpose of the averment being only to show plaintiff’s exercise of ordinary care.</p> <p>4. Appeals and errors—when refusal to instruct jury to disregard counts will not reverse. Refusal to instruct the jury to disregard each count is not ground for reversal though some counts may be insufficient, if the other counts are good and applicable to the evidence.</p>

Original petition for mandamus. An original petition was filed in this court by the People, on the relation of Scott Bibb, for a writ of mandamus against the mayor and members of the common council (naming them) of the city of Alton, to compel them to admit the children of the relator, viz., Minnie Bibb and Ambrose Bibb, to the Washington school, or the most convenient of the public schools of said city to which they have the right to be admitted, without excluding them, or…

<p>1. Criminal law—-jury must be accurately instructed where evidence is close. Where the evidence in a criminal case is close it is highly essential that the jury be accurately and fully instructed as to the law of the case.</p> <p>2. Same—assault with, intent to commit rape—instructions. Where the evidence at the trial of one charged with assault with intent to commit rape tends strongly to show that what was done by the accused was not against the will of the prosecutrix, the accused is entitled to an instruction advising the jury that they might consider whether the “manner and conduct” of the prosecutrix encouraged the accused to make approaches or advances looking toward sexual intercourse.</p> <p>3. Same—when voluntary instruction by court is ground for reversal. An instruction given by the court of its own motion, in a trial for assault with intent to commit rape, is ground for reversal which clearly indicates it was the opinion of the court that it had been proven the prosecutrix made some resistance, which was a matter of serious and vital dispute.</p>