Volume 180 — Illinois Reports

G. W. Patton, Judge, presiding. This was a bill in chancery filed October 14, 1898, in the circuit court of Ford county, by Thomas Entwistle, James Entwistle and the children of John Entwistle, deceased, to set aside the will of James Entwistle, deceased. Thomas Entwistle and James Entwistle are sons, and the children of John Entwistle, the other complainants, are children of a deceased son of the testator.

<p>' 1. Riparian eights—title of riparian owner extends to thread of the stream. The title of an owner of land hounded by a navigable river extends to the middle thread of the stream, subject to the right of navigation resting in the public.</p> <p>2. Same—riparian owner entitled to compensation for taking submerged portion of land. A bridge company authorized by the State to build a bridge across a navigable stream has no power to erect and maintain piers or other structures upon submerged land of a riparian owner lying between low-water mark and the middle thread of the stream without making compensation.</p> <p>3. Same—lessee of riparian owner takes to thread of stream unless there is provision to the contrary. The lessee of lots fronting on a navigable stream takes to the middle thread of the stream, unless there is something in the instrument showing a different intention.</p> <p>4. Construction—court cannot indulge in conjecture where instrument is unambiguous. Where a lease of lots fronting on a navigable stream is unambiguous in its description of the premises, and contains nothing from which an intention to exclude a portion of the premises may be inferred, the court cannot indulge in conjecture or resort to parol evidence, but the language of the instrument itself must control its construction.</p> <p>5. Leases—assignee of lease cannot question lessor’s title before surrender of possession. A city having purchased the property of a bridge company, including its rights under a lease of certain lots of a riparian owner, and entered into possession, is estopped to question the title of such owner or set up a prior right in itself before the execution of the lease, without having first surrendered possession.</p> <p>6. Same—an offer to surrender part of leased premises is not sufficient. An offer by the assignee of leased property to surrender a portion of the premises at the expiration of the lease is not sufficient, and the lessor may treat such assignee as a tenant holding over and bring an action for rent.</p>

John Barton Payne, Judge, presiding. The action below was trespass, brought by the appellant, ag'ainst the appellees.

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

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

<p>1. Fraud—taking outside security for deficiency before consenting to pro rata, arrangement is not fraud. A creditor who refuses to enter into an arrangement, previously agreed to by all other creditors, to accept certain real estate of the debtor as full payment of all their demands until he has obtained a bond from the debtor, with outside security, for any deficiency on his claim, is not guilty of such fraud" as bars his enforcement of the trust in equity, although the other creditors were ignorant of his bond.</p> <p>2. Insolvency—when creditor is entitled to a decree establishing trust and to accounting from trustee. Where all creditors but one agree to the formation of a land association as the best method of disposing of the debtor’s real estate, conveyed in trust for their benefit by unanimous consent, and the trustee ignores the original trust and accounts to the executive committee of the land association for receipts and disbursements and makes dividends under the articles of the association, the creditor so refusing to join is entitled to have the original trust established in equity, as agreed to by all, and to an accounting from the trustee.</p>

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

<p>1. Wills—verdict of jury in will contest not lightly disturbed. A verdict in a will contest, adverse to the contestant, will not be disturbed on appeal, where there is a clear conflict in the evidence, and the facts and circumstances, by fair and reasonable intendment, will authorize the verdict returned notwithstanding it may appear to be against the weight of the evidence.</p> <p>2. Same—referring to instrument in instructions as the “will" is not reversible error. That the proponent’s instructions in a will contest refer to the instrument as the will of the deceased instead of the “alleged” will is not ground for reversal.</p> <p>3. Same—wisdom or justice of will is not a question for the jury. That there has been an unequal division of the testator’s property or that some of the testator’s relatives have been cut off is a mere circumstance which the jury may consider with the other evidence in passing upon the question of the testator’s sanity.</p> <p>4. Same—burden of proof in will contest. Where a will is contested for mental incapacity the proponents have the burden, in the first instance, of proving the testator’s sanity, but having made a prima facie case the contestants are required to establish their claim of insanity by a preponderance of the evidence.</p> <p>5. Partition—bill to contest will and bill for partition should not be combined. The matter of partitioning lands is not a proper matter to be incorporated in a bill in chancery brought under section 7 of the act on wills, to contest validity of a will for mental incapacity.</p> <p>6. Appeals and errors—when objection that court erred in not retaining bill for purpose of partition cannot be urged. An objection that the court, in entering judgment on the verdict sustaining the will, erred in not retaining the bill for the purpose of partition, as therein prayed, cannot be urged on appeal, in the absence of anything to show that complainant, by motion or otherwise, requested the court to retain the bill.</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. Henry V. Freeman, Judge, presiding.</p>

H. M. Shepard, Judge, presiding. The Appellate Court for the First District affirmed, with certain modifications hereinafter referred to, a decree entered in the superior court of Cook county adjusting the accounts between the respective parties hereto, as partners. The appellant by this appeal questions the correctness of the decree of the superior court as affirmed by the Appellate Court.

<p>Fiduciary relations—one cannot use position of trust to appropriate the subject matter thereof to himself. A member of a standing committee appointed by citizens to represent their interests in an enterprise, cannot be allowed to take advantage of his fiduciary relation and by secret arrangement procure the subject matter of the enterprise for himself, to the detriment of those whose interests it was his duty to protect.</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.

Henry B. Willis, Judge, presiding. * On a motion entered by the appellee, the circuit court of Kane county rendered a decree that a temporary injunction granted on a bill filed by the appellant be dissolved and that the bill be dismissed. This is an appeal to bring the decree in review in this court.

Appeal, from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding. This is an action in assumpsit, brought on October 31, 1896, by the appellee against the appellant to recover certain moneys, claimed to have been deposited by the appellee in a box in the safety deposit vaults of appellant.

H. W. Johnson, Judge, presiding. This is a proceeding by special taxation for the improvement by curbing and macadamizing of Marion street, and certain parts óf Putnam, Second and Peoria streets in the city of Peru in LaSalle county.

John Barton Payne, Judge, presiding. The action below was in case, by appellee, to recover for personal injuries.

<p>1. Elections—result not disturbed on re-count if ballots have not been properly preserved. The result of a canvass made by judges of election in accordance with 'the law will not be disturbed on re-count, where the ballots have not been properly preserved and guarded from interference.</p> <p>2. Same—when ballots are not properly preserved by county clerk. Ballots returned to the county clerk in» canvas bags, which were tied and sealed but left by him for some ten days in the back room of his office, partly on the floor and partly on boxes near two outside windows, through which they might have been reached by parties outside, and to which room the public had access, are not so preserved as to be the best evidence of the result of the election, although the bags were afterwards placed in a cupboard, the door of which was not locked, at which time the seals appeared unbroken.</p>

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

<p>1. Deeds—deed made subject to mortgage creates no personal liability. A deed merely made subject to a mortgage specified therein does not render the grantee personally liable for the mortgage debt, as to create such liability there must be something in the nature of a contractual obligation amounting to an agreement by the grantee to pay off the encumbrance.</p> <p>2. Judgments and decrees—;foreclosure decree must be in rem, in absence of personal liability. On foreclosure of a mortgage, where there is no one before the court who is personally liable on the mortgage debt, the decree must be in rem, and the proper form is to find the amount due to the mortgagee and order the premises sold unless the amount is paid within the time fixed by the decree.</p> <p>3. Same—when foreclosure decree is not personal. A foreclosure decree finding an indebtedness due from the defendant to complainant when in fact there is no indebtedness due from the defendant, he not being personally liable on the debt, but which also provides that the premises be sold in default of payment and that no decree for deficiency shall be taken, is not a personal decree.</p> <p>4. Usury—defense of usury is personal to the mortgagor and those in privity with him. The defense of usury is personal to the mortgagor and those in privity with him, but his grantee may make the defense, in the absence of any agreement or understanding that he is to pay the encumbrance, with usury.</p> <p>5. Same—when grantee cannot raise defense of usury. Where the usury has become part of the consideration for the agreement between the mortgagor and his grantee, such fact is an affirmance of the debt by the mortgagor, and the grantee having contracted with a view to paying the encumbrance, cannot raise the defense.</p> <p>6. Same—that deed is made subject to usurious mortgage does not work estoppel. The mere fact that a deed is in express terms made subject to an usurious mortgage does not estop the grantee from raising the defense of usury on foreclosure.'</p>

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

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

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

<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. Ratification—after restoration of grantor to sanity—how shown. Ratification of a deed after restoration of sanity must be the intelligent act of the grantor, who, with full knowledge of the conveyance, clearly evinces an intention to abide and be bound by it.</p> <p>2. Same—what does not show ratification after restoration of sanity. That the grantees in deeds made during the insanity of the grantor, their father, remained in possession and improved the property during the grantor’s lucid intervals without objection by him, does not show ratification, where the deeds were originally voluntary and no consideration was paid during such lucid intervals, and there is no evidence that the grantor knew he had made the deeds or that the grantees were claiming as.owners.</p>

O. A. Harker, Judge, presiding. Appellant is the wife of appellee. This litigation originated by the husband filing a bill against the wife to compel the conveyance to him of certain real estate.

<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. Edmund W. Burke, Judge, presiding.</p>

Writ op Error to the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding. This is a proceeding in the Marion circuit court to remove a cloud from title and for partition. It appears from the bill that William Robb died December 28, 1871, intestate, owning ten acres of land in Marion county in fee simple, worth less than $1000, and occupied by himself and family as a homestead.

George W. Thompson, Judge, presiding. This is a bill in chancery, filed by the appellant railway company against the appellees, commissioners of highways of Persifer township, Knox county, to restrain them from opening an alleged highway across the grounds of appellant at Dahinda in Persifer township. The appellees filed a general demurrer to the bill. The court below sustained the demurrer, and dismissed the bill.

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

Edward P. Vail, Judge, presiding. This was an action brought by Edward J. Gogerty, against the Decatur Cereal Mill Company, to recover damages for the loss of an arm while in the service of the defendant, in moving a car in its grain elevator by means of an iron drum and rope provided for that purpose.

<p>1. Public improvements—power of municipal authorities to determine character of improvement. Municipal authorities, in providing for macadamizing a street, may determine whether the removal of an old culvert in such street and the construction of a new one shall be regarded as a local improvement, and whether it is practicable to utilize the old material in the new structure.</p> <p>2. Same—construction of ordinance for building culvert. An ordinance providing for the construction of a culvert of sewer brick, with a block of masonry af each end, is properly construed as meaning masonry composed of sewer brick, and not of other material.</p> <p>3. Same—when ordinance sufficiently specifies width of improvement of intersecting streets. An ordinance providing that a certain street be improved by macadamizing the central twenty-seven feet thereof and the central twenty-seven feet of intersecting streets to the outer line of such street, is not indefinite in its specification of the width of the improvement on intersecting streets.</p> <p>4. Same—when failure to specify hind of stone for cross-walks is not fatal. The failure of an ordinance for stone cross-walks to specify the kind of stone is not fatal to confirmation, where it is proved by uncontradicted evidence that among inhabitants and contractors and builders of the municipality the word “stone” has a well understood and established meaning, and that it means “limestone.”</p> <p>5. Same—when dimensions of stones are not made uncertain by use of words “not less than.” An ordinance for the construction of an improvement by special assessment, which provides that the crosswalks necessary to the improvement shall be built of stone of “not less than” designated dimensions, is sufficient, with respect to its specification of such dimensions, to permit an intelligent estimate of the cost. (Mansfield v. People, 164 Ill. 611, distinguished.)</p> <p>6. Same—improvement ordinance need not recite ordinance establishing grade. An ordinance for macadamizing a street need not recite the ordinance establishing the grade of such street nor state that such ordinance is on file in the office of the clerk, it being sufficient, so far as the form of the improvement ordinance is concerned, if it refers to an existing ordinance establishing such grade.</p> <p>7. Special assessments—effect where estimate includes cost of work not within ordinance. Where the cost of certain work which is not within the description of the ordinance does not relate to the improvement proper, but merely to the matter of repairing a small portion of an intersecting street, the court may reject the cost of such work and reduce the assessment accordingly, without holding the entire ordinance invalid. •</p> <p>8. Same—what not grounds for ref using confirmation. That portions of the improvement already constructed and accepted do not conform to the ordinance and that the assessment spread against the property of a certain railroad company has been abandoned are not grounds for refusing confirmation, the remedy in such case being mandamus to compel the proper performance of the work and the collection of the assessment claimed to be abandoned.</p>

Truman E. Ames, Judge, presiding. This was a bill in equity broug'ht by Agenton B. Lehnard in the circuit court of Fayette county, against Samuel F. Lehnard, Johanna Specht, and others, for partition of certain land and for other relief set out in the bill.

<p>Mechanics’ liens—section 84 of act of 1895 does not affect prior vested rights. The liens created by section 24 of the Mechanic’s Lien law of 1895, (Laws of 1895, p. 235,) in favor of persons furnishing labor or material on a public improvement, cannot be enforced against the holders, for value, of orders by the contractor payable out of the fund due him, which were executed and delivered and presented to and accepted by the officer charged with the duty of paying out the fund, before the passage of the act.</p>

Frank D. Ramsay, Judge, presiding. This is a bill, filed by the appellant against the appellee for the purpose of setting aside a quit-claim deed, executed by the appellant to the appellee on or about September 6, 1897. The original bill was filed on February 2, 1898, and the amended bill on May 31, 1898. By the quit-claim deed in question appellant conveyed to appellee his interest in a farm of one hundred and sixty acres of land in Henry county, Illinois.

Writ of Error to the Circuit Court of Vermilion county; the Hon. P. Bookwalter, Judge, presiding. This is a writ of error sued out to reverse the judgment entered in the circuit court of Vermilion county against the plaintiff in error city, in favor of the defendant in error company, in an action of assumpsit.

<p>1. Appearances—appearance by attorney is presumptive evidence of authority to act. An appearance by attorney, shown by the record on which judgment is entered, is regarded as presumptive evidence of the authority of the.attorney to act.</p> <p>2. Same—general appearance stands in lieu of service of process. A general appearance stands in lien of service of process, and the party so appearing is no more entitled to withdraw from the case than one who has been regularly served with process.</p> <p>3. Same—effect of attorney’s withdrawal from case after entering ap>pearaiice. The withdrawal of an attorney from the case after entering the defendant’s general appearance by authority and filing a demurrer does not withdraw the demurrer or affect the court’s jurisdiction over the defendant.</p> <p>4., Evidence—suit on foreign judgment—what competent on question of attorney's authority to appear. In a suit on a foreign judgment rendered after the withdrawal of the attorney who had entered defendant’s appearance, affidavits filed in the original suit, and made a part of the record, in support of a motion to set aside the default on the ground of inadvertence and excusable neglect, may be considered by the court in determining the question of the attorney’s authority to enter the appearance.</p>

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

<p>Appeals and errors—when appeal must be taken to the Appellate Court. An appeal from a judgment of ouster, rendered in a proceeding in the name of the People to contest the title of the respondent to the office of commissioner of highways, must be taken to the Appellate Court. (People v. Holtz, 92 Ill. 426, and McGrath v. People, 100 id. 464, followed.)</p>

Joseph P. Robarts, Judge, presiding. This is a bill for partition. The original bill was filed in 1892 by the daughter and grandchildren of one Edward Baker, deceased, against Mary E. Baker, his widow, and the appellant, Henry Lewis, lessee and grantee of said widow, and one John McGhee, tenant under Lewis.

<p>1. Pleading—allegation admitted by answer need not be proved. An admission by the answer of an allegation in the bill is conclusive and proof of such allegation is unnecessary, whether the answer is sworn to or not.</p> <p>2. Foreclosure—when failure to prove an averment is not a substantial variance. An averment in a bill to foreclose a mortgage, that a portion of the debt was twice extended, need not be proved, where the bill alleges that the whole amount due is a certain sum, which allegation is expressly admitted by the answer.</p> <p>- 3. Same—court may allow items provided for in the mortgage. The court may, on foreclosure, include amounts expended by the mortgagee for taxes, insurance and extension of abstract of title, where such items are authorized by the mortgage and the payments are shown by the evidence.</p>

<p>1. Gifts—when transfer of note constitutes a completed gift. A completed gift inter vivos is established by evidence that the owner of a note assigned the same to his son and delivered it to the latter’s agent without reserving any control thereover, and that the agent thereafter held the note for the son, collecting and paying over the interest thereon to the latter during the donor’s lifetime.</p> <p>2. Bills and notes—when agreement to cancel notes on payment of less sum is inoperative. A written agreement, not executed with the formalities of a will, made between grantor and grantee and delivered in escrow with notes evidencing the consideration recited in a deed executed the same day, by which agreement the note's are to be canceled upon the grantee’s payment, after the grantor’s death, of certain legacies mentioned in the latter’s will of less amount than the face value of the notes, is inoperative, when not carried out before the grantor’s death, as being an attempted testamentary disposition of the notes. (Phillips, X, dissenting.)</p>

<p>1. Street railways—street railway company must use high degree of care toward passengers. It is the duty of a street railway company to use the highest degree of care and caution consistent with the practical operation of the road to secure safety to its passengers.</p> <p>2. Same—what does not necessarily relieve company from liability. A street railway company is not necessarily and as a matter of law relieved from liability for an injury to a passenger occasioned by the flying back of an iron brake-lever in the gripman’s aisle where the passenger was obliged to stand owing to the crowded condition of the car, by the fact that the gripman requested the passenger to leave his position without informing him of the peril.</p>

John Barton Payne, Judge, presiding. This is a bill, filed on March 24,1897, by the appellee, Agnes S. Patterson, against the appellant, Joseph C. Skeen, to enforce the specific performance of a contract, dated February 15,1897, for the exchange of lots, wherein it was provided, that the appellant agreed to “grant, bargain and sell” to appellee “by warranty deed” a certain lot 22 in Oak Park in Cook county, “and also a trust deed on” a certain lot 21 in Oak Park “for the sum…

M. W. Schaefer, Judge, presiding. This is a bill, filed by the appellees, Mary Montague and Ella Cody, against the appellants to set aside the will of Annie Squire, deceased. Answers were filed to the bill by the executors, Kaenders and McNulty, who were also devisees under the will, and by Adelaide F. Beattie, another devisee under the will. The will sought to be set aside bore date September 19, 1896.

<p>1. Appeals and errors—presumptions are in favor of decree in absence of complete record. Where the findings of a foreclosure decree fully sustain the averments of the bill, and it is apparent that evidence was heard and preserved in the record which is not contained in the transcript, it will be presumed, on appeal, that the omitted evidence was sufficient to sustain the decree.</p> <p>2. Variance—objection that deposilioix was not signed must be made below. An objection that a deposition was not signed nor the signature of the witness waived cannot be first raised on appeal.</p> <p>3. Evidence—when proof of execution of notes is hot necessary on foreclosure. Proof of the execution of notes is not necessary on foreclosure, in the absence of a sworn answer denying their execution.</p>

<p>Appeal from the Appellate Court for the Third District;—heard in that court oh appeal from the County Court of Macon county; the Hon. William L. Hammer, Judge, presiding.</p>

R. H. Lovett, Judge, presiding. This is a proceeding, commenced in the county court of Cook county by the appellee, the village of Western Springs, by the filing of its petition therein on June 24,… Held: that said objection was valid, and ordered that, by reason thereof, the assessment be annulled and set aside, and the application to confirm it be denied.

William Hartzell, Judge, presiding. This is a bill in equity by appellees, against appellants and others, to set aside certain conveyances of real estate in Madison county to Manning Mayfield and Marcia Mayfield, and to have the lands partitioned among the complainants and others, as devisees under the will of Thomas T. Turner, deceased.

Orrin N. Carter, Judge, presiding. This is an application, made at the July term, 1898, of the county court of Cook county for judgment and order of sale by the county collector of that county ag'ainst lands delinquent for the non-payment of taxes and special assessments.

<p>Pleading—plaintiff need not allege every detail of the injury to permit proof thereof . An allegation that plaintiff “was greatly and permanently injured upon her foot, ankle, body and head, the bones of her ankle and foot were broken, the ligaments, tendons and flesh crushed, and * * * was otherwise bruised upon her body,” is sufficient to permit proof that a tumor developed from one of the bruises, necessitating the amputation of a breast in its removal.</p>

<p>Appeals and errors—when Supreme Court must affirm. The Supreme Court must affirm where only errors of fact are assigned but no question of fact is presented in the record, owing to the bill of exceptions having been stricken from the files because not certified to by any judge.</p>

Writ of Error to the Circuit Court of Piatt county; the Hon. W. G. Cochrane, Judge, presiding.

Henry V. Freeman, Judge, presiding. This is a bill, filed on November 23, 1896, by Emery A. Storrs by his mother and next friend, Allien F. Storrs, and the Chicag'o Title and Trust Company, as administrator de bonis non of the estate of George M. Storrs, deceased, who are the appellants herein, against St. Luke’s Hospital, defendant below and appellee here, to set aside the will of Caroline T. Storrs, and the probate thereof in the probate court of Cook county.

<p>1. Remainders—when remainder vests in those in esse, subject to being re-opened. A devise of a life estate with remainder to the life tenants’ children vests the remainder in such children as are in being at the testator’s death, subject to its being opened to let in such children as may be born during the continuance of the life estate.</p> <p>2. Ejectment—when remainder-men may bring ejectment. A life tenant having conveyed her estate to children having a vested remainder in the property, the life estate becomes, merged in the fee, and such children may bring ejectment before the death of the former life tenant, as against parties who claim the premises in fee and not by virtue of color of title to the life estate.</p> <p>3. Limitations—operation of sections 6 and 7 of the statute is not,to transfer title. The operation of sections 6 and 7 of the Limitation act is not to transfer the title of the former owner to the person claiming under the statute, but to bar or extinguish the former owner’s right of recovery. (Jacobs v. Rice, 33 Ill. 369, criticised.)</p> <p>4. Judgments and decrees—jurisdiction is presumed where judgment is relied upon collaterally. Where a judgment or decree of a court of general jurisdiction is relied upon collaterally, jurisdiction must be presumed although it is not alleged and does not affirmatively appear of record, and such presumption is only overcome when the record itself shows want of jurisdiction.</p> <p>5. Same—when loss of petition for guardian’s sale does not invalidate the decree. The loss of the petition for a guardian’s sale does not invalidate the decree, when relied upon in a collateral proceeding some twenty-five years after its rendition, where the decree in evidence shows the presentation of the petition; notice of the application and personal notice to the ward; the filing of an answer by guardian ad litem, which is approved by the court; that a hearing was had upon evidence introduced, and that the court found the petition and its statements to be true.</p> <p>6. Judicial sales—endorsement of approval on report of sale is sufficient. The court’s endorsement of approval upon a guardian’s report of sale is a substantial compliance with the statute, although the better practice is for the court to enter its order upon its records.</p>

<p>1. Master and servant—right of servant to recover for injury from falling door. A servant injured by the falling of an iron door, which he was attempting to open in the discharge of his duties, is entitled to recover where the door hangings had been in a dangerous condition for several days, and the servant was using due care, was ignorant of the defect and had not been warned against it.</p> <p>2. Pleading—when counts state same cause of action. A new count which charges the same injury to plaintiff while performing the same duty and the same negligence by defendant and caution by plaintiff as charged in the original count, except that it alleges that plaintiff was acting by special direction of the foreman, does not state a new cause of action, as the cause of action is the same whether a duty is performed under general or special directions.</p>

<p>1. Appeals and errors—when Supreme Court is concluded by Appellate Court's finding of negligence. The Supreme Court is concluded by the Appellate Court’s acceptance of the finding of the jury of the existence of negligence charged in certain counts of the declaration, unless it is able to say there is no evidence tending to prove the allegations in that regard.</p> <p>2. Same—verdict not set aside for defective count if other counts are sufficient. A verdict will not be set aside because -of a defective count in the declaration if there are one or more counts which are sufficient to sustain it.</p> <p>3. Same—when appellant cannot complain of instruction. An appellant railroad company cannot complain of an instruction authorizing the jury to find it guilty of negligence if they believed a certain state of facts, where it obtained an instruction that if the jury believed the converse of such facts to be true then it had discharged its whole duty to the plaintiff and should be found not guilty.</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>1. Possession—possession of surface does not carry possession of minerals if titles are severed. Where the title to the surface has been severed from'the title to coal and minerals in place and never re-united with it, neither estate is susceptible of possession by mere occupancy of the other estate.</p> <p>2. Limitations—section 4- of the Limitation act requires possession. One taking possession of the surface of land and residing thereon for seven years, as provided in section 4 of the Limitation act, acquires no title to coal and minerals in place, the title to which has been previously severed from the title to the surface, even though the deed under which such possession is held makes no reservation of such coal and minerals.</p> <p>3. Deeds—fact of interlineation or erasure raises no presumption of law. The mere fact of an interlineation or erasure appearing in a deed does not, of itself, raise any presumption of law either for or against the validity of the deed, but the question when, by whom and with what intent such changes were made is one of fact to be submitted to the jury.</p> <p>4. Same—party offering altered instrument should explain alterations. An alteration of a deed should be explained by the party claiming the benefit of the instrument, and if it is suspicious in appearance and satisfactory explanation is not made, the proper conclusion is one of fact against the validity of the instrument.</p> <p>5. Same—effect of erasure of consideration for bargain and sale deed. A deed made in 1863, in the ordinary form of bargain and sale then in use, which required a valuable consideration to support it, is not sufficient foundation for a claim of title where three distinct considerations have been inserted in the deed, all of which were erased, leaving it wholly without expressed consideration and no consideration is proved by other evidence.</p>

<p>1. Undue influence—undue influence must deprive grantor of free agency. Undue influence, such as will justify setting aside a deed, must have been of such a nature as to deprive the grantor of his free agency and to render his act more the will of another than his own.</p> <p>2. Equity—verdict of jury in chancery case is ordinarily merely advisory. The verdict of a jury in a chancery case, where the issue is not required by statute to be submitted to a jury, is merely advisory, and it is discretionary with the chancellor to accept or reject the verdict, as he believes justice requires.</p> <p>3. Appeals and errors—chancellor’s error must be palpable to authorize reversal on facts. A decree dismissing a bill to set aside deeds on the ground of mental incapacity and undue influence, rendered on conflicting oral testimony, will not be reversed on the facts unless clearly against the evidence, even though the chancellor set aside the verdict of the jury upon the issue of mental capacity.</p>

Writ of Error to the County Court of Iroquois county; the Hon. Frank Harvey, Judge, presiding. On May 1, 1897, plaintiffs in error, Hiram S. and Fidelia S. Bailey, made an assignment for the benefit of their creditors to defendant in error Harry H. Kerr. The property assigned consisted of personal property appraised at $1692 and a farm of 360 acres of land in Iroquois county. The land was encumbered by mortgages amounting on March 1, 1899, to the sum of $21,601.93.

John C. Broady, Judge, presiding. A copy of the will and of the certificates appended thereto, which is referred to in the opinion in this case, is as follows: “I, Richard Smith, of the city of Raleigh, county of Wake and State of North Carolina, being of sound mind and memory, do make and ordain this to be my last will and testament, as follows, viz., to-wit: “Item, First—It is my will and desire that the whole of my estate, both real and personal, be divided between my…

<p>Trusts—what facts do not show resulting trust. A resulting trust in favor of the husband is not established by evidence that property was purchased with the earnings of both husband and wife without showing what portion was furnished by either, and that title was taken in the wife’s name with the husband’s knowledge and consent, and not through fraud, accident or mistake.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. M. W. Schaefer, Judge, presiding.</p>

<p>1. Practice—Appellate Court’s construction of contract not binding on Supreme Court. The Appellate Court’s construction of a written contract, as to its legal effect, is not binding upon the Supreme Court as a finding of fact, as such question is one of law.</p> <p>2. Contracts—when contract does not amount to personal guaranty of notes. An agreement between a third party and the grantors of lots sold to a minor, by which the former guarantees that the minor will ratify the purchase so as to make himself personally liable on the notes, and which further provides that in the event the minor “shall repudiate or refuse to pay said notes” the third party will pay the same, has no binding force after the minor has ratified the purchase on coming of age and become liable on the notes.</p>

<p>1. Tax deeds—tax deed issued without requisite affidavit is unauthorized. A tax deed issued without the making of the affidavit as to service of notice required by section 217 of the Revenue act (Rev. Stat. 1874, p. 894,) is unauthorized.</p> <p>2. Same—when tax deed'does not show title in ejectment. A tax deed offered by plaintiff in ejectment does not show title where there is no proof of personal notice to the occupant of the premises, as required by section 216 of the Revenue act, or to the person in whose name the land was taxed, or the owner or parties interested therein.</p> <p>3. Judgments and decrees—effect where record fails to show that non-resident plaintiff gave a bond for costs. A judgment rendered in favor of a non-resident plaintiff is not void because the record fails to show that the plaintiff gave a bond for costs.</p> <p>4. Judicial sales—effect of failure to offer land in separate tracts. The failure to offer land, capable of division, in separate tracts, is an irregularity which may furnish the owner sufficient ground to have the sale set aside upon seasonable application, but such sale is valid until set aside in a direct proceeding.</p> <p>5. Attachment—when judgment, though erroneous, is not void—evidence. A judgnjent in an attachment proceeding, where there is no personal service or appearance, for a greater sum than is named in the affidavit as due, with interest, damages and costs, is erroneous but not void, and is admissible in a collateral proceeding in ejectment to sustain a deed issued on a certificate of purchase at a sale under special execution based on such judgment.</p>

<p>1. Instructions—ordinary care is implied in words “without negligence or fault." An instruction which requires the jury to find, from the evidence, that the plaintiff was “without negligence or fault” before she is entitled to a verdict sufficiently presents the requirement of ordinary care.</p> <p>2. Same—when instruction as to disregarding testimony is not misleading. An instruction authorizing the jury to disregard the entire testimony of a witness only when it is palpable that he has deliberately and intentionally testified falsely as to some material matter and is not corroborated by other evidence, will not be held to mean that false testimony must be regarded if corroborated by other evidence of the same kind.</p> <p>3. Same—when instruction does not authorize disregard of defendant’s evidence. An instruction for plaintiff that a preponderance of the evidence does not necessarily mean the greater number of witnesses, but that such evidence as satisfies and produces conviction in the minds of the jury will constitute a preponderance, does not authorize the jury to disregard defendant’s evidence, where other instructions fully ^announce the rule that plaintiff must establish her case by a preponderance of all the evidence.</p> <p>4. Damages—amount of damages not capable of exact measurement is for the jury. Where damages are shown to exist by the evidence in a personal injury case but are of such a character as to be incapable of exact measurement, the question of their amount is for the determination of the jury from a consideration of the facts proved, in connection with their knowledge, observation and experience in the affairs of life.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. M. W. Schaefer, Judge, presiding.</p>

<p>1. Pleading—verified plea of non est factum in covenant puts in issue the due execution of the instrument. Where a city can only execute a lease in a particular form, its verified plea of non est factum in an action of covenant on a lease puts in issue whether the lease was executed in such legal form, but the want of power to make the lease, or any defense which would render it void or voidable, must be specially pleaded.</p> <p>2. Evidence—when lease is properly admitted as against verified plea of non est factum. A lease by a city for a water office is properly admitted in an action of covenant thereon, as against a verified plea of non est factum, where the lease is executed in proper form by the proper officers and is under the corporate seal, and the evidence .shows that the city took possession, of the property and occupied it as a water office and paid the rent therefor for several years.</p> <p>3. Same—when stipulation of counsel must be regarded as evidence of its recitals. A stipulation by the attorney for the city, in an action of covenant on a lease for a water office, that there was an appropriation for the rent sufficient to cover the entire period up to the time of suit, must be regarded as evidence of such appropriation, as against the city’s objection, on appeal, that no proof of an appropriation was made.</p> <p>4. Same—certificate of comptroller as to city’s indebtedness is not evidence. The certificate of the comptroller as to the amount of the city’s indebtedness, being merely a statement of his conclusions as to such indebtedness from an inspection of the records in his office, is not admissible to establish the city’s defense to an action on a lease that it was indebted beyond the constitutional limit when the lease was executed. . ■</p> <p>5. Covenant—when rebate for water rent is recoverable in covenant. Where a city, in leasing a building for a water office, agrees to rebate the water rent for the building as part of the rent, the amount of rebate to which the lessor is entitled under the lease, and which the city has refused to allow, is recoverable, with the unpaid rent, in an action of covenant.</p> <p>6. Judgments and decrees—execution should not be awarded against city. Judgment may be entered against a city in an action of covenant, but execution should not be awarded.</p>

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

<p>Injunction—when sale of delinquent lands cannot be enjoined. A bill to enjoin a sale of delinquent lands by the collector on the ground of fraudulent acts of the city with reference to spreading the assessment cannot be maintained where the transactions complained of occurred before the judgment of sale and were matters of public record in the assessment proceeding, to which the complainants were parties and of which they could by ordinary diligence have then informed themselves. (Callister v. Kochersperger, 168 Ill. 334, and Heinroth v. Kochersperger, 173 id. 205, followed.)</p>

<p>1. Railroads—standing on lower step of car is not negligence per se. Standing on the lower step of a passenger' coach while the train is in motion is not, under all circumstances, negligence per se and as a matter of law.</p> <p>2. Same—whether passenger was negligent is ordinarily for the jury. Whether a passenger riding on the lower step of a platform was guilty of contributory negligence in permitting his body to project beyond the side of the train and thus to strike a car on a side-track is a question for the jury, under evidence that the platform was crowded and the train running at a low rate of speed.</p> <p>3. Same—extent to which company’s regulations are binding. A reasonable regulation of a railroad company is binding upon a passenger so far as its conditions permit obedience, when the latter has notice thereof or the circumstances are such as impute notice.</p>

<p>1. Mechanics’ liens—provisions of section It of act of 1887 are imperative. The provision of section 4 of the Mechanic’s Lien act of 1887, (Laws of 1887, p. 219,) that the claim for lien filed with the circuit clerk shall truly set forth “the times when such material was furnished or labor performed,” is material and imperative.</p> <p>2. Same—when misstatement of times of furnishing materials invalidates claim for lien. A mechanic’s lien does not arise under section 4 of the act of 1887 where the statement or claim for lien represents the times of furnishing the material to be a year earlier than it was in fact furnished.</p> <p>3. Same—amendment of MU cannot cure error in statement of lien. Under the Mechanic’s Lien law of 1874 and its amendments of 1887 the filing of a true statement or claim for lien is made a condition precedent to bringing suit, and errors in such statement or claim cannot be cured by amendment of the bill filed to enforce the lien.</p> <p>4. Same—lien arises only by reason of compliance with statute. The lien claimed under the Mechanic’s Lien law of 1874 must exist, if at all, by reason of compliance with the statute, and the knowledge of the other parties as to the actual facts has no bearing on the inquiry whether or not there has been such compliance.</p>

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

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.

■ Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding. This is a petition to establish title under the Burnt Records act, filed on December 31, 1895, by the appellee, Emma J. Glos, against the appellant, Alexander Clark, Esther J. Clark, Jacob Glos, J. A. Shellberg and others, and all whom it may concern.

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

<p>1. Judgments and degrees—alimony decree draws interest. A decree for temporary alimony in a separate maintenance case is a money decree, and draws interest under section 3 of the Interest act. (Rev. Stat. 1874, p. 614.)</p> <p>2. Contempt—right of court to entertain petition for attachment for failure to pay temporary alimony. A petition for an attachment for contempt, based on defendant’s default in the payment of temporary alimony in separate maintenance, may be entertained while an appeal from the decree involving permanent alimony is pending.</p>

<p>Appeals and errors—Supreme Court'will not lightly disturb chancellor’s findings of fact from oral testimony. A decree sustaining a petition for dower and finding that petitioner was lawfully married to the deceased, and that there was no fraudulent impersonation of the deceased when the marriage ceremony took place, will not be reversed by the Supreme Court on the facts, where the evidence, though conflicting, tends to support the findings of the chancellor, who saw and heard the witnesses.</p>

John Barton Payne, Judge, presiding. The original bill in this case was filed by the appellee against the appellant, and Kittie A. Knapp, and George A. Rose on November 2, 1896; but afterwards, on June 20, 1898, a third amended bill was filed against the same defendants, to which the defendants filed a joint and several answer. Replication was filed to the answer. The cause was decided upon the issues made by the third amended bill, and the answer thereto.

John H. Moffatt, Judge, presiding. This was assumpsit by the appellant receiver, against the appellee.

Robert B. Shirley, Judge, presiding. This was a bill in equity by appellees, against appellant and others, for the partition of the estate of George M. Sims, who died testate November 4, 1897, but providing in his will for the division of his personal property only. • An answer was filed by appellant, William Walls, a grandson of George M. Sims, denying the right of the ' complainants to a partition of a certain eighty-acre tract described in the bill, and claiming title…

<p>Appeal from the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

John A. Gray, Judge, presiding. On November 16,1897, John F. Bordner filed a bill for partition against Alfred Bordner and others, heirs of one Jonathan Bordner, deceased, who died intestate on September 19, 1873. Jonathan Bordner, at the time of his decease, was seized of one hundred and sixty acres of land in a certain section 25, and twenty acres in a certain section 26, in Fulton county, Illinois. It was this land, which the bill was filed to partition.

<p>1. Contracts—general rule as to relief against contract to compound a crime. Where parties have entered into a contract to compromise a criminal offense or to prevent the prosecution of one charged with crime, a court of equity will ordinarily refuse aid to either party.</p> <p>2. Same—exception as to relief exists where the parties are not in pari delicto. Although a contract is illegal, so that both parties are to some extent involved in the illegality but are not in pari delicto, equity may, in furtherance of justice, aid the one comparatively the more innocent, even though the case involves moral turpitude.</p> <p>3. Same—when party cannot ask relief against an illegal contract. A woman of mature years and average intelligence, who by her own persistent efforts brings about a settlement with the former employers of her fiancé who had embezzled a large sum of money from them, with full knowledge that she had no legal right to compromise the offense and against the advice of her own attorney, is not in a position to ask relief in equity against the contract.</p>