Volume 181 — Illinois Reports

<p>1. Pleading—when objection to declaration is waived by pleading over. An objection that the declaration of a servant injured by reason of the defective condition of the place where he was working, failed to allege that he relied upon the master’s promise to repair and that a reasonable time had elapsed after such promise, is cured, after verdict, by pleading over-.</p> <p>2. Negligence—when question of contributory negligence is for jury. The question whether the acts of the plaintiff contributed to his injury, so as to bar recovery, is for the determination of the jury, where the minds of fair men would differ in their conclusions.</p> <p>3. Instructions—when omission from instruction of element of recovery is not ground for reversal. That an instruction for plaintiff, in a suit to recover for an injury received while working after a promise to repair defects, fails, in summing up the essentials of recovery, to negative the idea that the danger was so imminent that ordinarily prudent men would not incur it, is not ground for reversal, where the other instructions fully define due care and require the plaintiff to be in the exercise thereof.</p> <p>■ 4. Same—when instruction on contributory negligence is properly refused. An instruction that plaintiff could not recover if he “did any careless or negligent act which materially contributed to his injury, ” is properly refused, as he might, under such circumstances, be entitled to recover if his acts or omissions were not the proximate cause of the injury.</p> <p>5. Mines—statute concerning props has not superseded common law obligations of master to servant. The statute requiring mine owners to keep a supply of props and timbers on hand, “so that the workmen may at all times be able to properly secure said workings for their own safety,” does not supersede the common law obligation of the mine owner with respect to the roof of the mine, so as to relieve him from further responsibility after complying with the statute.</p> <p>Consolidated Coal Co.y. JBoJcamp, 75 Ill. App. 605, affirmed.</p>

<p>1. Appeals and errors—in considering depositions chancellor has no advantage over court of review. The opportunities and facilities of the Supreme Court for coming to a correct conclusion as to the weight and valué of depositions are not inferior to those possessed by the chancellor, where the latter did not see any of the deponents or hear them testify.</p> <p>2. Fiduciary relations—when suspicion attaching to transactions may be removed. Notwithstanding the law views with distrust transactions between parties occupying a fiduciary relation, such a transaction will be held to be valid if it appears that it was entered into with full knowledge of its nature and effect and was the result of deliberate, voluntary and intelligent desire on the part of the party acting, without the exercise of any infiuence engendered by the existing relation.</p> <p>3. Statute op Frauds—trust may be manifested by writing not intended for that purpose. It is not necessary, in order that a writing shall be deemed sufficient to manifest a trust, that it shall have been framed for the express purpose of acknowledging the same, it being sufficient if the recognition is incidentally made, provided the object and nature of the trust sufficiently appear.</p> <p>4. Same—when trust is sufficiently manifested in writing. A deposition signed and sworn to by a grantee, and voluntarily produced and filed by him in his own behalf in a proceeding to set aside his deed, may be resorted to in all its parts, even though it is partly incompetent to be received in evidence, in order to establish a trust in the property covered by the deed which is manifested and declared by him in such deposition.</p> <p>5. The court reviews the evidence in this case at length, and holds it insufficient to authorize the setting aside of the deed involved on the ground of improper infiuence by the grantee.</p>

<p>1. Practice—alleged errors cannot be first urged in reply brief. Under rule 15 of the Supreme Court it is not permissible to urge in the reply brief an alleged error or ground for reversal not con- ' tained in the brief in chief.</p> <p>2. Same—mixed questions of law and fact are settled in Appellate Court. On appeal from a judgment of the Appellate Court affirming the lower court’s judgment in a suit at law, mixed questions of law and fact are not subject to review by the Supreme Court.</p> <p>Cherny v. Cross, 80 Ill. App. 640, affirmed.</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>

<p>1. Wills—instrument not operative as a will unless executed with statutory formality. An instrument in writing cannot pass title to property as a will unless signed and witnessed as required by section 2 of the act on wills.</p> <p>2. Deeds—when instrument constitutes valid conveyance. Under section 9 of the Conveyance act (Rev. Stat. 1874, p. 274,) an instrument in writing which designates a grantor and grantee, recites consideration, contains the usual granting words, and is sealed, signed and acknowledged as required by law, is a valid conveyance.</p> <p>3. Same—when trust deed is not defeated by reservations. A trust deed is not defeated because of reservations permitting the grantor to use and control, improve and lease, the property during his lifetime, enjoy the rents and profits, devise, sell or convey the property and dispose of the proceeds in the manner specified in the trust provisions, and also to revoke the deed and the trusts and powers created thereby, where such reservations are incorporated in the deed to express the grantor’s intention as to the trust upon which the conveyance was made.</p> <p>4. Same—when deed is not void as testamentary. A trust deed containing granting words in'presentí, purporting to convey the premises to the grantees at the time the deed was executed, is not rendered testamentary because of reservations, trusts and conditions respecting the use of the property during the grantor’s life.</p> <p>5. Same—when deed, is well delivered. A trust deed delivered to a third party as agent for the grantees is well delivered, and passes title though not recorded until after the grantor’s death, where the grantor parted with all control over the instrument and permitted it to remain undisturbed in the third party’s possession; and this is true though the deed contained a clause permitting the grantor to revoke the instrument.</p> <p>6. The court construes the instrument in question in this case and holds it is not testamentary. (Magruder, J., dissents, holding the opposite view.)</p>

C. W. Upton, Judge, presiding. The original bill in this cause was filed before April 14, 1896. ' On the latter date an amended bill was filed by the appellant banking company for the enforcement of a lien, decreed to it by a decree in a certain partition suit hereinafter mentioned, against certain lands of the appellee, Jennie E. Morse. The appellees filed an answer to the amended bill, and replication was filed to the answer.

<p>1. Statutes—retrospective operation is not favored in construing statutes. If it is doubtful as to whether a statute was intended by the legislature to have prospective or retrospective operation, courts will construe it as being prospective only.</p> <p>2. Same—the true office of a proviso i§ to qualify, and not to enlarge, the enacting clause. The legitimate office of a proviso is to limit, restrain or qualify the enacting clause or except something from its operation, and not to enlarge the enacting clause by conferring substantial rights not therein granted.</p> <p>3. Attorneys at law—act of 1899, for admission to the bar, construed. The provision of the act of 1899, on attorneys, (Laws of 1899, p. 81,) which specifies that applicants for admission to the bar shall be granted licenses who have complied with the rules of the Supreme Court in force at the time they began the study of law, notwithstanding subsequent changes, has prospective operation only, and is of no force as regards the change in Supreme Court rules made November 4,1897.</p> <p>4. Same—law regulating admission to bar must be general. The right to.practice law is a privilege, and any law which attempts to prescribe the conditions under which a license to practice law shall be granted must be general in its operation, and any classification adopted must have a reasonable basis and not be purely arbitrary.-</p> <p>5. SAME-^prouiso to section 1 of act of 1899, on attorneys, is special legislation. The proviso to section 1 of the act of 1899, on attorneys, which entitles the holder of a diploma of a law school having a two years’ course, which shows that the holder began the study of law prior to November 4,1897, to a license to practice law, is unconstitutional, being special legislation, based upon an arbitrary and unreasonable classification. (Phillips and Boggs, JJ., dissenting.)</p> <p>6. Same—power to prescribe qualifications of attorneys is judicial. An attorney is an officer of the court, and the power to prescribe the qualifications which will entitle an applicant for admission to the bar to a license is judicial, and not legislative. (Phillips and Boggs, JJ., dissenting.)</p> <p>7. Same—right of legislature to regulate admission to the bar. Under its general police power the legislature may prescribe reasonable conditions which will exclude from the right to practice law those persons through whom injurious consequences are likely to result to the inhabitants of the State.</p> <p>8. Same—proviso to section 1 of act of 1899, on attorneys, is unconstitutional. The proviso to' section 1 of the act of 1899, on attorneys, which relates to the admission to the bar of holders of diplomas in law schools having a two years’ course, etc., is in violation of article 3 of the constitution, concerning the division of governmental powers. (Phillips and Boggs, JJ., dissenting.)</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. Joseph E. Gary, Judge, presiding.</p>

<p>1. Instructions—instruction should not call attention to credibility of specified witness. An instruction which authorizes the jury to consider the interest of a specified witness in the result of the suit in determining his credibility is properly refused where other interested witnesses testified.</p> <p>2. Same—when an instruction on credibility of witness may be refused. The refusal of an instruction that the interest of a witness might be considered in determining what credit, “if any,” should be given to his testimony, cannot be complained of when he was not impeached or shown to be unworthy of credit.</p> <p>3. Same—when assumption of fact in instruction will not reverse. That an instruction Tn an action for personal injuries assumed that a city had notice of a defect in a walk cannot be complained of when the defendant’s instructions properly gave the law to the jury on that point.</p> <p>4. Negligence—what not necessary to constitute negligent act the proximate cause of injury. It is not necessary that the particular injury and the particular manner in which it occurred might reasonably have been expected to follow from the negligent act "complained of, to make such act the proximate cause of the injury.</p> <p>City of Dixon v. Scott, 81 Ill. App. 368, affirmed.</p>

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

<p>Wills—testator may sign after witnesses, if part of the same transaction. Á will is not invalid because the signatures of the attesting witnesses were attached before that of the testator, who signed the instrument directly afterward in their presence and as part of the same transaction.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</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. Elbribge Hanecy, Judge, presiding.</p>

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

<p>1. Cloud on title—what proof essential to maintain bill to remove cloud. To maintain a bill to remove a cloud from the title to real estate, the owner must show either that he is in possession or that the property is vacant and unoccupied.</p> <p>2. Evidence—mere deed without proof of possession does not prove title. Proof of possession under claim of ownership is prima facie evidence of such ownership in the claimant so in possession, but a mere deed from a third person, without further proof as to possession or title, does not prove title.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of Marion county; the Hon. Truman E. Ames, Judge, presiding.</p>

<p>1. Trial—right of court to permit amendment of declaration on motion in arrest—parties. The court may properly, upon the hearing of a motion in arrest of judgment, permit the plaintiff to amend his declaration so as to include as defendants parties whose names had been omitted by mistake from a prior amended declaration but who appeared and defended the action.</p> <p>2. Evidence—proof that grantee's grantors were in possession raises a presumption of title in him. Evidence that a grantee’s predecessors in title were, when they conveyed the property, in possession under a claim of ownership, and that the grantee took possession under the conveyance to him, raises a presumption of title in him.</p> <p>3. Ejectment—trespasser cannot set up outstanding title in stranger. A mere trespasser cannot, in an ejectment suit brought against him, set up an outstanding title in a third person.</p> <p>4. Same—facts under which ejectment may be maintained. One who derives title from an occupant of land claiming ownership and takes possession of the property, which he leases to a tenant, may maintain ejectment against trespassers who entered upon the premises as vacant and abandoned.</p>

' Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Pike county; the Hon. T. H. Mehan, 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. Murray F. Tuley, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Morgan county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Judicial sales—when service of notice of judgment against decedent is insufficient to authorize execution sale. An execution sale of the lands of a decedent, made upon written notice to the heirs under section 39 of the act on judgments, as amended in 1875, (Laws of 1875, p. 86,) is invalid, where the notice to one of the resident heirs was not personally served or sent by mail, but was delivered to a member of her family.</p> <p>2. Evidence—plaintiff in ejectment relying on an execution sale must prove compliance- with statute. A plaintiff in ejectment claiming under an execution sale of the land qf a decedent ma|e upon notice to the heirs under section 39 of the act on judgments, has the burden of showing that the notice was given as required by statute.</p>

T. M. Shaw, Judge, presiding. Gray, the appellant, purchased real estate in Peoria of one VanMarter, for which he gave his five promissory notes, of $4000 each, secured by mortgage on said real estate. Callender, the appellee, who was a banker and real estate agent, was VanMarter’s agent in the transaction, and held the notes and mortgage, and collected from Gray and credited on the notes the interest for the first year.

<p>1. Pleading—when plea in quo wamnto is cured by verdict. In quo warranto against drainage commissioners to test their right to exercise jurisdiction over the relators’ lands and assess the taxes complained of, a plea setting up a resolution of the board, reciting that the relators had connected their ditches with those of the district and had thus voluntarily applied, under the statute, to be included in it, although defective for failure to specifically show title in the district aside from its own findings and conclusions, is cured by verdict for defendants upon an issue joined on a replication denying that the connection was made.</p> <p>2. Drainage—owner of dominant heritage cannot connect with drainage ditch without conforming to the statute. The right of the owner of a dominant heritage to collect into ditches the waters naturally flowing from his lands over a servient heritage, does not entitle him to discharge them into the artificial ditches of a drainage district located thereon without subjecting himself to the conditions of section 42 of the Farm Drainage act, (Laws of 1885, p. 91,) providing that such connection shall be deemed a voluntary application to be included in the district and that the lands drained shall be subject to taxation.</p> <p>3. Same—one connecting with drainage ditch is estopped to deny benefits. One who voluntarily connects his ditches with the drains dug by the commissioners of a drainage district and drains his lands through them, thereby subjecting his premises to taxation under the provisions of section 42 of the Farm Drainage act, cannot be heard to say that his lands are not benefited.</p>

John A. Gray, Judge, presiding. In 1883 Levi S. Botkin, owning in fee the east half of the north-east quarter of section 2, township 7, north, and the west half of the south-east quarter of section 35, township 8, north, all in range 1, east of the fourth principal meridian, in Fulton county, died leaving his last will, which will, after giving his wife, Frances M. Bot-kin, a life- estate in all of his property, subject, however, to the payment of his debts, contained, so…

Abner Smith, Judge, presiding. This is a suit for an injunction, filed July 13, 1898, by complainant, a tax-payer and owner of real estate in,the village of Western Springs, Cook county, Illinois, 'to restrain said village from carrying out the provisions of a certain ordinance passed by it on May 24, 1898, for the construction of a cement sidewalk in front of certain blocks situated in said village, upon the ground that the ordinance was unreasonable and oppressive, and…

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

<p>1. Pleading—a general demurrer to a bill which has equity is properly overruled. A general demurrer which fails to point out any defects in the bill is properly overruled if there is equity in the bill.</p> <p>2. Same—it is not sufficient to charge fraud generally. It is not sufficient to charge fraud generally in reference to a transaction assailed on that ground, but the complaining party must plead and prove the specific acts or facts relied on as establishing the fraud.</p> <p>3. Same—when allegation of fraud in bill to remove cloud is sufficient to warrant relief. An allegation in a bill to set aside a tax deed, that the affidavit for the deed was “defective and fraudulent,” is sufficient, after the overruling of a general demurrer and the entry of a decree pro confesso, to warrant the setting aside of the deed, where it is found that the affidavit fraudulently stated that the premises were vacant and unoccupied.</p> <p>4. Cloud on title—when a tax diced will be removed as a cloud. A tax deed will be set aside as a cloud on the title when the affidavit on which it was issued fraudulently and falsely stated that the premises were vacant and unoccupied, thereby obviating the necessity of giving notice to the occupant.</p>

<p>1. Gaming—right of third party, under section 133 of Criminal Code, to sue for treble sum lost, extends to gambling in grain. The right conferred upon any one, by section 132 of the Criminal Code, (Rev. Stat. 1874, p. 372,) to sue for and recover treble the value of money lost by betting in case the loser does not, within six months, sue for the sum lost, applies to money lost by gambling in grain options, in violation of section 130 of such code.</p> <p>2. Same—section 133 of Criminal Code construed as to who is a “winner.” A broker or commission man who receives money or property to be used in the payment of losses incurred in transactions in grain which are gambling contracts under section 130 of the Criminal Code, is a “winner,” within the meaning of section 132, and subject to the penalty imposed thereby.</p> <p>3. Same—severity of penalty for gambling furnishes no reason against enforcing the law. The severity of the penalty imposed by a statute against gambling, which"authorizes a recovery by any person of treble the amount lost, furnishes no reason against its enforcement, where the language authorizing such recovery is clear.</p> <p>Cartwright, C. J., dissenting.</p> <p>Kruse v. Kennett, 69 Ill. App. 566, reversed.</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>

<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 S. Baume, Judge, presiding.</p>

Hiram Bigelow, Judge, presiding. On July 2, 1897, Anthony W. Bastían and others filed their bill in the circuit court of Whiteside county, in behalf of themselves as well as all others likewise situated, alleging they were members of the Modern Woodmen of America and residents of this State, in good standing.

Theodore Brentano, Judge, presiding. This action was begun by appellee, against appellants, the directors of the Dubuque Building Company, an Illinois corporation, now insolvent, to recover for merchandise sold to the corporation.

<p>Writ of Error to the County Court of Cook county; the Hon. C. M. Barickman, Judge, presiding.</p>

<p>Appeal from the County Court of Knox county; the Hon. Philip S. Post, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.</p> <p>On the 12th day of August, 1868, the defendants in error, who are husband and wife, as parties of the first part and grantors, and one Eliza A. Lawrence, as party of the second part and grantee, executed a certain trust deed and acknowledged the same in compliance with the statute then in force with reference to the valid execution of instruments for the conveyance of real estate. By said deed said defendants in error conveyed certain lands in Logan county to the said Eliza A. Lawrence as trustee, to “hold the legal estate or title in the said premises to the sole and separate use and benefit of Frances Lawrence, wife of the said John T. Lawrence, for and during the natural life of the said Frances Lawrence, with full and absolute right to the said Frances Lawrence, during her lifetime, to enjoy the use, rents, issues and profits thereof, and upon her decease to hold the same to the sole and separate use and benefit of the said John T. Lawrence for and during his natural life, with full power to the said John T. Lawrence, during his lifetime, to enjoy the rents, issues and profits thereof provided he shall survive his said wife, but if he shall not survive his said wife, then, in trust, upon the. decease of the said Frances Lawrence to re-convey said premises, by a good and -sufficient conveyance, to the legal heirs of him, the said John T. Lawrence.” The deed also contained the following provision: “And it is further provided, that in case of the decease of the said party of the second part, or her legal incapacity, before the full execution, discharge and performance of all and singular the trusts in and by this deed created and declared, then the trust herein created shall be executed, discharged or performed by the court of chancery having jurisdiction within and for the county of Logan, and upon the happening of either of the contingencies last aforesaid the estate granted and conveyed in and by this deed shall vest in -such court, subject to all and singular the trusts and confidences in this deed created and declared, and said court shall exercise the same powers and perform .all and singular the trusts that may remain unexecuted, and perform with the same legal effect, as the said party of the second part might or could were he capable of performing the same, in such manner as said court may order and decree.”</p> <p>On the 15th day of August, 1896, the defendants in error exhibited their bill in chancery in the circuit court of Logan county praying for a decree declaring the said deed to be null and void and canceling the same and expunging it from the record. The bill alleged the said 'Eliza A. Lawrence had departed this life; that the complainants were in the possession of the said premises when the said deed was executed and have ever since remained in possession thereof; that the defendants to the bill (plaintiffs in error) are the children of the said defendants in error. The further allegations of the bill are as follows: “Orators further represent that said trust deed is void because, first, the same was made without consideration for the execution thereof; second, because the said deed contained no provision by which the same might be canceled at the election of the grantors; third, that at the time said deed was executed they did not know that said deed did not contain a provision whereby the said deed might be canceled; fourth, that neither of orators comprehended the legal effect of said deed at the time of the execution thereof.”</p> <p>The adult defendants suffered default. The minors answered by their guardian ad litem, submitting their rights to the consideration of the court and demanding strict proof of the bill. The cause was heard on the bill, answers, proof taken before the master and proofs heard in open court, and decree entered granting the relief prayed in the bill. The defendants to the bill have prosecuted this writ of error to reverse the decree.</p>

T. N. Mehan, Judge, presiding. The appellants, claiming to hold in trust the title to the lands described in the lease set out below, filed their bill in the Cass circuit court to construe the will of John Zuschke and to set aside said lease. John Zuschke died testate in Arenzville, then in Morgan and now in Cass county, in 1848.

<p>Homestead—minor children living with divorced wife are entitled to homestead. An estate of homestead should be set offi jointly to the widow and minor children of the deceased head of the family although some of the children were born to the deceased by a. divorced wife, with whom they have resided since the divorce decree, which forfeited her rights in the property but not the children’s.</p>

<p>1. Appeals and errors—objection to sufficiency of foundation for deed records must be made below. An objection that no sufficient foundation was laid for the introduction of deed records because the custodian was not called to identify them cannot be urged in the Supreme Court when not specifically raised below.</p> <p>2. Evidence—Auditor’s certificate is evidence that swamp lands were ceded to county. The Auditor’s certificate that specified lands within a county were ceded to it as swamp lands is made evidence of the fact by the act of 1854.</p> <p>3. Same—it is presumed that a circuit court of a foreign State is a court of record—admission of deeds. It will be presumed, in support of a certificate made by the clerk of the circuit court of another State attesting that a deed was executed in conformity with the laws of such State, that the circuit court is a court of record, and such deed may be read in evidence under the second subdivision of section 20 of the act on conveyances, (Rev. Stat. 1874, p. 276,) providing therefor when a certificate of conformity made by any clerk of a court of record of a foreign State is attached.</p> <p>4. Same—acknowledgment of foreign deed may be shown to be in proper form by introduction of statute book. That a deed executed in another State was acknowledged in conformity with its laws, so as to render it admissible in evidence, may be shown by the introduction of the statute books of such State purporting to be printed under its authority.* </p>

Robert B. Shirley, Judge, presiding. The plaintiffs, the People of the State of Illinois, brought suit against the defendant coal company to recover on account of inspection fees of the… Held: to the effect there could* be no recovery under either count of the declaration, which were refused and exception taken. A motion in arrest of judgment was entered, which was denied, and a finding and judgment had in favor ¡of the plaintiffs for $326, to which the defendant excepted.

Theodore Brent ano, Judge, presiding. On September 1, 1896, the First National Bank of Helena, Montana, drew its check upon the Fort Dearborn National Bank of Chicago for §10,000, in favor of appellant. At the time this check was given the Fort Dear-born National Bank had in its possession, on deposit to the credit of the First National Bank of Helena, §20,528.67.

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

<p>Municipal corporations—an annexation proceeding begun during pendency of village organization is void.* A proceeding for the annexation of territory to a contiguous city under paragraph 195 of the City and Village act (Rev. Stat. 1874, p. 244,) is illegal and void when instituted after the filing of a petition for an election to organize the territory into a village under sections 1 and 6 of article 11 of said act, (Rev. Stat. 1874, p. 242,) and while the latter proceeding is still pending and undetermined.</p>

<p>1. Evidence—that crossing is in populous part of city is competent in suit for injury. Evidence that the crossing at which the plaintiff’s intestate was killed is in a thickly settled and populous part of the city and constantly traveled over by large numbers of people is ad- • missible in support of an allegation that the train which killed the intestate was running at an unreasonable rate of speed.</p> <p>2. Same—testimony that train was going “fast” is competent. Evidence that the train which ran down the plaintiff’s intestate “was going fast” is not incompetent, although the witness is unable to state the speed in miles per hour.</p> <p>3. Same—what competent in a suit for damages for death at crossing. Evidence as to the height of a trolley wire at the place where a person was struck and killed by a train which is alleged to have been running at unsafe speed is admissible in an action to recover damages for his death, where there is evidence that he was thrown as high as the trolley wire by the train.</p> <p>4. Same—witness crossing track shortly ahead, of deceased may tell 'of condition of gates. One who passed over a crossing just before the arrival of trains, by one of which plaintiff’s intestate was killed, may testify whether the gates were up or down at the time, as tending, to some extent, to show whether they were up or not when the intestate went upon the crossing.</p> <p>5. Same—stenographic notes at inquest not competent to contradict witness’ testimony. Stenographic notes of the testimony taken by one present at a coroner’s inquest are inadmissible to contradict a witness on the trial of an action brought to recover damages for the death of the deceased, siuc.e the deposition of such witness,required by section 18 of chapter 31 of the Revised Statutes of 1874 to be preserved by the coroner, is the best evidence.</p> <p>6. Same—coroner presumed to have reduced witness’ testimony to writing. Compliance by a coroner with section 18 of chapter 31 of the Revised Statutes, requiring the testimony of witnesses to be written out and signed, will be presumed on appeal, in the absence of evidence to the contrary.</p> <p>7. Witnesses—when jury cannot disregard testimony of witness on ground of its falsity. The jury are not authorized to disregard the entire testimony of a witness whom they believe to have testified falsely upon some matter, in the absence of a corrupt motive on his part, and when the erroneous testimony is due to forgetfulness or an honest mistake.</p> <p>8. Appeals and errors—when improper impeachment¿>f testimony will reverse. The admission of incompetent evidence to contradict a witness who testified that the gates at a railroad crossing were up when the train which killed the plaintiff’s intestate passed is prejudicial, where the verdict is for defendant.</p> <p>Overtoom v.C. & E. I. B. B. Co. 80 Ill. App. 515, reversed.</p>

<p>Writ of Error to the Circuit Court of McDonough county; the Hon. Geo. W. Thompson, 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. W. Clifford, Judge, presiding.</p>

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

<p>1. Trial—variance is not a ground for instructing jury to disregard counts. Variance or insufficiency of proof is not a proper basis of a motion for an instruction to the jury to disregard counts of the declaration under section 50 of the Practice act, (Rev. Stat. 1874, p. 781,) providing therefor when the counts are faulty.</p> <p>2. Same—when count is not so faulty as to permit of jxiry’s disregar& ing it. In an -action for personal injuries a count in the declaration, which is sufficient to sustain a verdict when rendered, is not so faulty as to authorize its withdrawal from the jury by au instruction given, under section 50 of the Practice act, although it fails to allege that the plaintiff was using due care for her safety at the precise time she was injured.</p> <p>3. Same—when motion to exclude evidence for variance is properly overruled. A motion to pxclude the evidence in an action for personal injuries because of alleged variance is properly overruled, where each of the counts of the declaration contained different allegations of negligence, some of which allegations the evidence sustained although it varied from others.</p> <p>4. Same—peremptory instruction must be refused if there is sufficient evidence to go to the jury and sustain a verdict. A requested instruction to find the defendant not guilty in an action for personal injuries is properly refused when there is sufficient evidence to go to the jury under the issues and to sustain the verdict when rendered.</p> <p>Franklin Printing Go.y. Behrens, 80 Ill.App. 313, affirmed.</p>

<p>1. Wills—inconsistent clauses—when last will not prevail. The rule that of two inconsistent clauses in a will the last prevails is applicable only where the real intention of the testator cannot be discovered, and when the two provisions are so totally inconsistent that it is impossible for both to coincide with the general intention of the testator.</p> <p>2. Same—when restriction on power of alienation is void for repugnancy. In a will by one clause of which an estate in land is vested in a devisee for life with power to convey the fee without qualification or limitation, a subsequent clause restricting the power of alienation is repugnant to the estate vested, and absolutely void.</p>

<p>Evidence—when the fact of marriage is not proved in suit for divorce. In a suit for divorce the fact of marriage is not shown where there is no proof that a license was issued, the officiating minister is not produced as a witness nor any attempt made to account for his absence, and when the letters, business transactions, frequent declarations and various writings signed by complainant subsequent to the date of the alleged marriage are inconsistent with it.</p> <p>Knorst v. Knorst, 80 Ill. App. 344, affirmed.</p>

John Gibbons, Judge, presiding. The Colby Testing Machine Company, a corporation, the owner of a patent apparatus for testing lungs, registering weight of persons, etc., sold a license to use and sell its patent in the State of Missouri to appellants and several other gentlemen, by contract dated December 27, 1888, for $15,000,—$5000 of which was to be paid in cash, $5000 in six months and $5000 in twelve months.

<p>1. Bills of exception—bill is completethough objects shownthe jury are not contained therein. A bill of exceptions contains all the evidence if it includes that which was presented at the trial, although objects, persons or scenes of which the jury may have had a view are not contained in it.</p> <p>2. Appeals and errors—record of Appellate Court cannot be contradicted by resort to its opinion. A recital in the record that the Appellate Court considered and determined all the assignments of error and found no error in the record cannot be qvercome by expressions in the opinion of the court.</p> <p>Beaverns v. Lischinski, 82 Ill. App. 298, affirmed.</p>

Writ of Error to the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding. On the 18th day of June, 1890, John Wieczorek was the owner of certain premises in Chicago, and he and his wife and Jacob Zalewski and wife executed a deed purporting to convey the premises to Frank Adamski. The instrument, although in form a deed, was claimed by the grantors to be in fact a mortgage given to secure the payment of a certain sum of money.

<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 Brent ano, Judge, presiding.</p>

Writ of Error to the Circuit Court of Douglas county; the Hon. Edward P. Vail, Judge, presiding-.

P. A. Pearce, Judge, presiding. This is an action of ejectment, originally brought on April 11,1896, by the appellant against the appellee and John M. Gibson and Charles M. Morris for the recovery of 160 acres of land, described as the north-west quarter of section 3, township 7, in Hamilton county. On September 29, 1896, a plea of the general issue was filed.

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

<p>Writ of Error to the Circuit Court of Madison county; the Hon. William Hartzell, Judge, presiding.</p>

<p>1. Evidence—;former similar mils are admissible on contest on question of sanity. Former wills, made when the testator’s sanity was not questioned, which dispose of the testator’s property in substantially the same way as the contested will, are competent evidence on the question of testamentary capacity; and proof of the testator’s sanity when executing such former wills is also competent.</p> <p>2. Instructions—instniclion as to the weight of testimony is erroneous. An instruction which impliedly suggests to the jury that some other witness had a better opportunity of observing the deceased than the subscribing witnesses to a will, and that his testimony is entitled to greater weight, invades the province of the jury.</p> <p>3. WillS—partial unsoundness of mind does not necessarily destroy , testamentary capacity. Feebleness or partial unsoundness of mind does not deprive a person of testamentary capacity, if he knows and understands what disposition he desires to make of his property and upon whom he will bestow his bounty.</p> <p>4. Same—instmctions on question of insanity should be based on the evidence. An instruction that if the will offered for probate was made under the influence of partial insanity it is invalid is misleading, in the absence of any evidence upon which to found it.</p> <p>5. Same—instruction in mill contest held to be erroneous. On a will contest an instruction that a testator may have upon some subjects, and even generally, mind, memory and sense to know and comprehend ordinary transactions, and yet be of unsound mind upon the subject of thosecwho would naturally be the objects of his bounty and of what would be a reasonable and proper disposition of his property as to them, is erroneous.</p>

<p>Writ op Error to the Circuit Court of Champaign county; the Hon. Francis M. Wrig.ht, Judge, presiding.</p>

John Barton Payne, Judge, presiding. This is an appeal from a judgment in favor of appellee, rendered in an action of assumpsit by appellee against appellant. The declaration, filed October 31, 1894, contains two special counts and the common counts.

<p>Writ of Error to the County Court of Cook county; the Hon. Colostin D. Myers, Judge, presiding.</p>

F. M. Shoukwiler, Judge, presiding. This is a petition, filed in the county court by the appellant, the village of Hammond, on July 19,1898, for the levying of a special assessment to pay for the construction of a drain in the village, which had been provided for by an ordinance, adopted by the president and board of trustees for the village on July 12, 1898.

Writ of Error to the Circuit Court of St.Clair county; the Hon. M. W. Schaefer, Judge, presiding. Joseph and Lizzie Geppert .delivered their mortgage deed of trust conveying certain property in St. Clair county, securing an indebtedness of $2000, which was recorded June 30, 1894. September 28, 1896, B. Goedde obtained a judgment against Geppert and his wife in the circuit court of St. Clair county for the sum of $400.22, on which, execution issued October 12, 1896.

<p>1. Adverse possession—title to accretions may be acquired by possession of adjoining land. Accretions to land held under the twenty years’ limitation law, or by claim and color of title and payment of taxes, go with the land to which they are attached.</p> <p>2. Saws—possession of part of tract includes all land described in color of title. Possession of part of a tract of land under color of title to the whole tract is possession of the whole tract described in the deed under which title is claimed.</p> <p>3. Accretions—bar connecting with island is an accretion to latter. A bar which so forms in a river as to connect with an island is an accretion to it, although thé land connecting them is sometimes submerged.</p> <p>4. Riparian rights—title of riparian owner extends to the middle of main channel. The title of a proprietor on a river extends to the thread of the main channel, and his boundary changes with the variation of the center of the river’s main channel.</p> <p>5. Boundaries—boundary between States bordering on river is at the center of permanent channel. The boundary between States separated by a river is the center thread of the permanent stream, and not of that part which flows during high water and is dry at other times.</p> <p>6. Same—riparian boundaries follow gradual changes in main channel of a stream. Boundaries formed between proprietors or States by the center thread of a river conform to gradual and insensible changes in the channel of the stream, but where a considerable tract, which can still be identified, is by the violence of the stream joined to another tract, the property of the soil continues vested in its former owner.</p> <p>7. Same—local boundary between Illinois and Missouri is west of Willow Bar Island. The local boundary line between the States of Illinois and Missouri, as well as the boundaries of Illinois proprietors, is the present center thread of the stream between Willow Bar Island and the Missouri bank.</p> <p>8. Evidence—declarations of grantor disclaiming accretion are inadmissible against grantee. Declarations made by former owners of land disclaiming ownership of an accretion to it are not admissible to prejudice the title of their grantee.</p>

E. F. Dunne, Judge, presiding. This is an appeal from a judgment of the Appellate Court, reversing an order or decree of the circuit court, discharging a receiver appointed in a foreclosure proceeding, and directing such receiver to turn over the rents and profits in his hands to the owner of the equity of redemption.

• Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Franklin county; the Hon. E. D. Youngblood, Judge, presiding.

H. M. Shepard, Judge, presiding. This is a proceeding to foreclose a mortgage, executed by William C. Miller and wife, and James Borroughs and wife, to the appellee to secure a loan of $2500.00, as evidenced by a bond in the penal sum of $5000.00 executed by them. Subsequently, Miller and wife and Borroughs and wife conveyed the premises to the appellant, Thornton, subject to the mortgage.

<p>1. Municipal corporations—when mayor pro tern cannot appoint city marshal. A city council having power to elect one of its number mayor pro tem during a temporary absence or disability of the mayor, is not authorized to do so, and thus confer upon him the mayor’s power-to appoint a city marshal, merely because of the mayor’s inability to attend a meeting of the city council on account of illness, although in the city and not disabled from acting as mayor generally.</p> <p>2. Quo warranto—whatnot material in quo warranto. In quo warranto to determine the title of the respondent to a municipal office it is immaterial whether any other person has title to the office or not.</p> <p>People ex rel. v. Blair, 82 Ill. App. 570, affirmed.</p>

C. W. Upton, Judge, presiding. The original bill in this case was filed June 17, 1892, by the appellee against the appellant, Gabriel K. Wright alone.

Writ of Error to the Circuit Court of Perry county; the Hon. M. W. Schaefer, Judge, presiding. At the May term, 1898, of the Perry county circuit court the grand jury returned into open court an indictment against plaintiff in error containing two counts.

county; the Hon. A. K. Vickers, Judge, presiding. Plaintiff received the injury sued for in this case on May 13, 1897, at which time he was in the employ of the defendant, a coal mining corporation, as a blacksmith, and while descending the air or escapement shaft by means of a ladder, fell from the last platform to the bottom, a distance of about eleven feet.

<p>1. Statutes—terms used in a statute without explanation are given their common law meaning. Terms contained, in a statute without explanation as to the sense in which they are employed should be construed in accordance with their common law significance.</p> <p>2. Aliens—one cannot claim estate of a bastard if kinship is traced through alien blood. One who claims the estate of an illegitimate intestate under clause 5 of section 2 of the Statute of Descent, (Rev. Stat. 1874, p. 418,) as next of kin to the mother of such intestate, is not entitled to take, when compelled to trace kinship through alien blood.* </p> <p>3. Same—Alien act of 1887 applies to estates of illegitimates. The provisions of act of 1887, (Laws of 1887, p. 5,) in respect to the right of aliens to take and hold real estate, are applicable to the estates of illegitimates as well as legitimates.</p> <p>4. Same—Alien act of 1897 does not affect prior vested rights by way of escheat. The right to trace heirship to the property of an intestate through alien ancestors, conferred by section 1 of the Alien act of 1897, (Laws of 1897, p. 5,) is not applicable to property the title to which had passed by escheat to the State prior to that act.</p> <p>5. Escheats—act of 1874 supersedes all previous enactments on es-cheats and applies to illegitimate intestates. All previous enactments in .relation to escheats were superseded by the act of 1874, (Rev. Stat. 1874, p. 479,) under section 1 of which the property of illegitimates, dying without heirs capable of holding the same, escheats to the county and not to the State, as is specified in clause 6 of section 2 of the act on descent.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. James Goggin, Judge, presiding'.</p>

Writ op Error to the Circuit Court of Monroe county; the Hon. William Hartzell, Judge, presiding.

<p>Appeal from the Circuit Court of Gallatin county; the Hon. P. A. Pearce, Judge, presiding.</p>

Theodore Brentano, Judge, presiding. The original bill in this case was filed by the appellant, Johan Joseph Reuter, on October 21,1897; and, a demurrer thereto having been sustained, an amended bill was filed on December 20, 1897, by the appellant against John Stuckart, Susan Foreman, Frank Stuckart, Joseph Stuckart and Henry Stuckart, praying for a setting off and assignment to the complainant in the bill of dower and homestead in the premises therein named, and for a…

<p>1. ' Criminal law—when cross-examination is not error as tending to establish reputation of accused after the crime. On a trial for murder, when witnesses introduced by the defendant to testify to his general reputation for peaceableness are asked, on cross-examination, whether they knew anything about his reputation for five or six years before the trial, their answer that they did not is not prejudicial, as tending to establish a reputation after the homicide, which occurred four years before the trial.</p> <p>2. Same—when cross-examination of accused as to his past life is not error. The court may permit an accused person, after testifying in his own behalf, to be cross-examined as to matters already in evidence respecting his previous association with a disreputable woman. i</p> <p>3. Same—when exclusion of testimony of witness at coroner's inquest is proper. The testimony of a witness given at the coroner’s inquest is properly excluded, when offered by the defense at a murder trial, where no foundation was laid therefor and the witness was allowed to answer whether he testified to a certain thing at the inquest, which answer is not contradicted by the People, who did not introduce any of the testimony given before the coroner.</p> <p>4. Same—instructions for People in a murder trial may be framed on theory that the hilling was murder. Instructions for the People, consisting mainly of statements in the language of the statute and correct as propositions of law, are properly given in a murder trial though framed on the theory that the killing .was murder, where the evidence tends to establish such theory, and the jury are fully informed, in other instructions, upon the question of manslaughter.</p> <p>5. Same—instruction that accused must “satisfactorily” rebut People’s case is ground for reversal. An instruction that when the killing is proved the burden of proof is cast upon the defendant to “satisfactorily” establish his defense, imposes a higher degree of proof than is required by law and is prejudicial error.</p>

W. H. Gest, Judge, presiding. This was an action on the case brought by appellee, against appellant, to recover damages for personal injuries sustained by him while in the employ of appellant as a boiler-maker.

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Ford county; the Hon. John H. Moffett, Judge, presiding. This is a writ of error, sued out from this court to review a judgment of the Appellate Court, affirming an order of the circuit court, discharging a receiver, who had been appointed in a foreclosure proceeding.

H. M. Trimble, Judge, presiding. ; This was an action of replevin, brought by appellee, against appellant, to recover the possession of 4955 bushels of corn and 211 bushels of oats which had been stored by appellee in the elevators of Robert T. Harrington, at Marseilles, Illinois, and which had been levied upon and seized by appellant, as sheriff, under an execution against Harrington.

<p>1. Appeals and errors—defense of Statute of Frauds cannot be first raised on appeal. The Statute of Frauds cannot be relied on in the Supreme Court when not pleaded or urged upon the hearing.</p> <p>2. Specific performance—io7ien specific performance of verbal contract to convey loill be decreed. Specific performance will be decreed of a verbal agreement by a father to convey land to a child if the latter will live upon and improve it, where, in reliance upon the promise, the child takes possession, pays the taxes and makes lasting and valuable improvements on the property.</p> <p>3. Evidence—when evidence of previous gift of land by mortgagor is competent on foreclosure. Testimony of a daughter that her father gave her certain land and a deed of it, which she returned to him on the representation that otherwise the property might be taken for the debts of her husband, is competent, as against the father, in a proceeding to foreclose a mortgage subsequently given by him on the land.</p> <p>4. Deeds—title passes on deliveiy of deed though the deed is returned to grantor for an outside purpose. Title passes upon delivery of a deed by a father to a daughter, although the latter returned it upon the representation that otherwise the land could be taken for the debts of her husband.</p> <p>5. Mortgages—when mortgage is subject to title of occupant of premises. A mortgage executed by a father upon land previously given by him to his daughter, and upon which she resided, is subject to her title, where the mortgagee knew of her occupancy under claim of title, and the father, at the time of the gift, was not indebted.</p>

<p>Information for disbarment.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Charles Blanchard, Judg'e, presiding.</p>

Francis Adams, Judge, presiding. This is a proceeding by attachment, commenced on August 28, 1891, by Pickands, Brown & Co. against the Wilkin Manufacturing Company. The attachment writ, which was issued August 28, 1891, was made returnable September 21, 1891. The affidavit alleged that the appellee, the Wilkin Manufacturing Company, was indebted to the plaintiffs, Pickands, Brown & Co., in the sum of $1035.32 for goods' sold and delivered. .

Writ of Error to the Superior Court of Cook county; the Hon. Farlin Q. Báll, Judge, presiding. ' This is a bill for an injunction, filed by the plaintiff in error against the defendants in error, the city of Chicago and the Chicago, Burlington and Quincy Railroad Company, to enjoin the latter from erecting on Twenty-second street and Lawndale avenue in Chicago, where the right of way of said railroad company crosses and intersects said streets, any alleged obstructions,…

<p>1. Witnesses—when maker of note is competent in behalf of sureties after payee's death: In a proceeding in chancery by sureties upon a promissory note to enjoin the prosecution of an action against them.by the payee’s administrator, the maker is a competent witness to show, in behalf of the sureties, an extension of time to him by the payee, and the bill may be filed for the purpose of procuring such testimony.</p> <p>2. Evidence—creditor has burden of proving surety's full knowledge of creditor's acts. The burden of proving that a surety had full knowledge of the acts of the creditor relied upon as sufficient to release the surety from liability rests upon the creditor.</p> <p>3. Sureties— agreement to extend time need not be based on a money consideration, to release surety. An agreement by a creditor, made without assent of the surety, to extend the time of payment will effect his discharge if based on mutual promises, although there is no actual money consideration.</p> <p>4. Same—payment of interest in advance will support promise to extend time—effect as evidence. Payment of legal interest on a debt in advanee is a sufficient consideration to support an agreement for the extension of the time of payment, and is of itself sufficient prima facie evidence of such an agreement to discharge the surety.* </p> <p>5. Same—payment of interest due, upon a promise to extend time, does not release surety. The mere payment of principal or interest actually due will not support an agreement by a creditor, made without the surety’s consent, to extend the time of payment, so as to work the discharge of the surety, but there must be a mutual intention to pay and receive a consideration therefor extending the time of payment beyond maturity to a specified date.</p> <p>6. Same—promise to extend time indefinitely without consideration does not release surety. A promise of indulgence made by the payee to the principal debtor without consideration and for no definite time will not work a discharge of the surety.</p> <p>7. Same—when surety is not released by extension of time. An extension of the time of payment made without consideration, for an indefinite period, is not mutually binding on the parties, and will not release a surety on the ground that it is a valuable right to have money placed on interest, and a valuable right, by discharge of the obligation, to avoid payment of interest.</p> <p>Landon v. English, 75 Ill. App. 483, reversed.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.</p>

Joseph P. Rob-arts, Judge, presiding. Appellant brought suit to recover from appellee the amount of a promissory note assigned to appellant by the payees.

Writ op Error to the Superior Court of Cook county; the Hon. W. G-. Ewing, Judge, presiding. This is a bill, filed on May 27, 1892, by Ida E. Mack, plaintiff in error, against Alexander.McIntosh and Francis O. Matthiessen, defendants in error, and one Charles P. Packer, for the specific performance of a contract for the sale of real estate, situated in Chicago. Default was entered against Packer for want of an answer.