Volume 183 — Illinois Reports

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

Robert B. Shirley, Judge, presiding. The controversy in this case grows out of a bill filed by Ella Meek to construe the will of her mother, Mary Brace, who died leaving the complainant as her only child, and Alva B., Charles and Wilbur Meek, complainant’s children and decedent’s grandchildren, who at the time of decedent’s death were, respectively, twelve, seven and four years of age.

<p>1. Wills — husband of residuary legatee is not a competent subscribing witness. The husband of the person named as residuary legatee in the will is not a competent subscribing witness to prove the execution of the will.</p> <p>2. Same — when admission of will to probate is erroneous. The admission of a will to probate is erroneous when one of the two witnesses on whose testimony the court acted was incompetent.</p> <p>3. Same — when probate court has jurisdiction to probate a will. The filing by the proper person of an instrument purporting to be the last will of a deceased person, which is in due form and attested by two witnesses and which shows no defects on its face, authorizes the court to take jurisdiction in the matter of probate.</p> <p>4. Same — jurisdiction of equity to set aside probate is statutory. The jurisdiction of a court of equity to set aside a will and its probate is conferred by section 7 of the act on wills, which statute, though not strictly a statute of limitation, is one of repose, and any one desiring to invoke the jurisdiction thereby conferred must do so in the manner and within the time provided therein.</p> <p>5. Judgments and decrees — intendment-s are in favor of judgment of probate court within its jurisdiction. As liberal intendments will be indulged in favor of the judgment of the probate court, within the scope of its jurisdiction, as are indulged in favor of judgments of courts of general jurisdiction.</p> <p>6. Same — when judgment admitting will to probate cannot be attacked. A petition in the probate court to set aside the probate of a will cannot be sustained, although the probate was erroneous in that one of the witnesses to the execution of the will was incompetent, where the petitioners, though under no disability recognized by the statute, delayed action until some seven and one-half years after the will was probated.</p> <p>7. Same — limits of power of probate court to correct its judgments. The power of a probate court, sitting as a court of law, to correct its judgments after term at which they are rendered is confined to matters of form.</p>

<p>1. Public improvements — manner of paving intersection of streets rests with city council. Where intersecting streets are to be paved with different material only one of the streets can be given a continuous pavement, and it is for the council to determine which kind of pavement shall be used at the street intersection.</p> <p>2. Same — council may repeal part of ordinance affecting street intersec'tion. Where no steps have been taken under an ordinance for paving a street, the city council may, by a later ordinance for paving an intersecting street with different kind of pavement, repeal so much of the earlier ordinance as applies to the area covered by the street intersection, without otherwise affecting its validity.</p> <p>3. Appeals and errors — what will be presumed on appeal from a judgment of sale. It will be presumed, on appeal from a judgment of sale for an unpaid special assessment for paving a street, that the commissioners did not include in their estimate the cost'of paving a street intersection concerning which the ordinance had been repealed, or, if they did, that the court, in confirming the assessment, reviewed their action and reduced the estimate.</p>

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

Charles G-. Neeley, Judge, presiding. Mark H. Maher died intestate on February 1, 1896, leaving an estate, real and personal, in Cook county, which was of the value of about $100,000. - On the sixth day of February, 1896, Alzuma L. Maher filed a petition in the probate court of Cook county, alleging she was the lawful widow of the deceased, and was married to him on or about the 25th day of June, 1892, and that they lived together as husband and wife until 1895.

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

George W. Brown, Judge, presiding. The appellee company presented in the probate court of Cook county a claim against the estate of Charlotte E. Holmes, deceased, of which the appellant, William A. Holmes, is the executor.

W. T. Hodson, Judge, presiding. This is an appeal from a judgment of the county court entered on June 3, 1899, confirming a special assessment levied by the city of Chicago to pay the cost of an improvement for paving West Lake street from the east curb line of Ashland avenue to the east curb line of Western avenue with vitrified brick.

Leslie D. PuterbaugHj Judge, presiding. This was a bill in chancery filed by appellant for a decree declaring a certain deed and a certain mortgage executed by appellee George W. Bennett to appellee Fred Bennett to be fraudulent and void as against the rights of the complainant, whom the bill alleged to be a judgment or decree creditor of the said George W. Bennett.

<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. Richard S. Tut-hill, Judge, presiding.</p>

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

Theodore Brentano, Judge, presiding. On November 23, 1897, a bill was filed by one Emrick alleging insolvency of the appellee building and loan association and seeking its dissolution. Thereunder a receiver was appointed, and subsequently, and on March 3, 1898, the People, upon the relation of the State Auditor, filed a similar bill. These cases were consolidated, the former receiver removed, and the present receivers were appointed and have since been liquidating the union.

<p>1. Municipal corporations — right of city to regulate sale of meats and provisions. .Under clause 50 of section 1, article 5, of the City and Village act, a city may regulate the sale “of meats, poultry, fish, butter, cheese, lard, vegetables and all other provisions,” with the object of preserving or promoting the public health.</p> <p>2. Same — when ordinance attempting to regulate sale of meats and provisions is void. An ordinance making it unlawful for any person, firm or corporation engaged in selling “dry goods, clothing, jewelry and drugs * * * to have exposed for sale or sell to any person, firm or corporation any meats, fish, butter, cheese, lard, vegetables or any other provisions,” is not a regulation but a purely arbitrary prohibition, and is void as an interference with property rights guaranteed by the State and Federal constitutions.</p> <p>3. Same — ordinances passed under police power must have some beneficial operation toward the public. In order to sustain an ordinance regulating the business of a citizen, which is claimed to have been passed by virtue of police power, it is necessary that the ordinance tends in some degree to prevent offenses or preserve or promote the public health, morals, safety or welfare.</p> <p>4. Same — it is immaterial whether an unwarranted denial of property rights is in an ordinance or statute. An attempt to deny a property right to a particular class in a community where all other memtiers of the community are left to enjoy it is an unwarrantable interference with constitutional rights, whether such denial is contained in a statute or in an ordinance passed under a statute.</p> <p>5. Same — power of city to regulate liquor business authorizes any legislation beneficial to public. The power of a city to license, regulate or prohibit the sale of intoxicating liquor under clause 46, section 1, article 5, of the City and Village act, authorizes any police regulation having for its object the prevention of intemperance, pauperism and crime and the diminishing of the injurious consequences to the public resulting from the business.</p> <p>6. Same — when ordinance regulating sale of liquor is arbitrary and void. An ordinance forbidding any person, firm or corporation to expose for sale or sell any intoxicating, malt or fermented liquor in any place of business where dry goods, clothing, jewelry or hardware are sold is unreasonable and void as to one who has complied with the license regulations, and who sells liquor in sealed packages only and not for consumption on the premises, since such restriction is arbitrary and does not tend to protect public welfare.</p>

John Barton Payne, Judge, presiding. This was an action brought in the superior court of Cook county by Godfrey A. Tallerman, against the National Electric Construction Company, a corporation, the University Club, a corporation, and William D. Boyce, to recover for injuries received by Tallerman on the 20th day of November, 1894, while engaged in his regular duties in the abstract office of Handy & Co., at 94 Washington street, Chicago, by pieces of glass falling from the…

<p>1. Contracts — effect of agreement to pay “all notes” secured by trust deed. One who contracts, as a consideration for a deed conveying certain lots to his wife, to pay “all notes” secured by a trust deed on the lots is liable for the entire debt evidenced by such notes, although the trust deed covers other lots not included in the conveyance, and his liability in such case is not limited to so much of the debt as is equitably chargeable to the lands purchased.</p> <p>2. Mortgages — extent to which foreclosure decree should award execution. A decree foreclosing a trust deed covering lots conveyed in consideration of an agreement by the husband of the grantee to pay all notes secured by the trust deed, should award execution against the husband for so much, only, of the mortgage debt as remained unsatisfied after the sale of the lots so conveyed.</p> <p>3. Same — when decree is right in ordering conveyed property to be first sold. A decree foreclosing a trust deed covering lots, part of which had been conveyed, is correct in ordering the latter to be first sold, where the only consideration for the conveyance was an agreement by grantee’s husband to pay the notes secured by the trust deed. .</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. Edmund W. Burke, Judge, presiding.</p>

<p>Appeals and errors — when only question presented on appeal is one of fact. The only question presented on appeal from a judgment in an action of debt is one of fact, upon which the Appellate Court’s judgment is final, where no question of law was raised by the pleadings, no objection was made to witnesses or evidence, and the only propositions of law submitted were appellant’s, which were held.</p>

<p>Appeals and errors — when freehold is not involved on appeal in chancery. A bill against the receiver of a loan association for an accounting and to compel him to convey property to the complainant upon payment of the amount found due, which alleges that the secretary of the association, who conveyed the property to it, was holding the title in his name merely as security until the loan on the property could be reduced, When he was to convey it to complainant, is not a bill for specific performance but a bill to have a deed declared a mortgage and for redemption, and no freehold is involved to authorize an appeal directly to the Supreme Court.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. Plaintiffs in error were tried in the criminal court of Cook county at the July term, 1899, upon an indictment for false imprisonment under section 95 of the Criminal Code. Each defendant pleaded not guilty, and executed in writing a formal waiver of jury trial. The court tried the issue, and found the defendants guilty.

Meredith Walker, Judge, presiding. Canton Union School District, in Fulton county, embraces ten. full sections of land and two half sections, sections 30 and 31, township 7, north, range 4, being two of the full sections so included. All of the land in the district was properly assessed for taxation.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Edmund W. Burke, 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. Edmund W. Burke, Judge, presiding. At the January term, 1897, of the circuit court of Cook county, a decree of divorce was entered on the petition of the appellee, against the appellant.

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

Farlin Q. Ball, Judge, presiding. This is a bill, filed on September 8,1897, by the appellee to foreclose a trust deed dated September 1,1892, and. executed by Sadie M. Wallace and Charles L. Wallace to one Paul O. Stensland, as trustee, for the purpose of securing a note for $4500.00, executed by the said Sadie M. Wallace and Charles L. Wallace, due in five years after date, and also certain interest notes given for the interest accruing thereon.

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

Joseph E. Gary, Judge, presiding. The judgment of the superior court of Cook county entered in favor of the appellees, against the appellants, in an action of assumpsit, was affirmed by the Branch Appellate Court for the First District, and this is an appeal from such judgment of affirmance.

<p>Taxes — Improvement act of 1897 does not affect county court’s jurisdiction to hear applications for sale. The changes made in article 9 of the City and Village act by the act of 1897, relating to local improvements, do not affect the jurisdiction of the county court, under the constitution and the Revenue act, to hear and determine an application for judgment of sale for a delinquent special assessment.</p>

Writ op Error to the Appellate Court for the First District; — heard in that court on appeal from the County Court of Cook county; the Hon. C. H. Bishop, Judge, presiding. This is a petition, filed by the plaintiffs in error on February 5, 1895, in a voluntary assignment proceeding in the county court of Cook county.

<p>1. Pleading — demurrer to answer to petition for mandamus may be carried back. Under section 4 of the act on mandamus (Rev. Stat. 1874, p. 691,) a demurrer to the answer to a petition for mandamus is properly carried back, and sustained to the petition, if the latter shows no sufficient grounds for the writ,</p> <p>2. Bills op exception — determination of what shall go in bill is a judicial act. The determination of what shall go in a bill of exceptions in order that it may truly and fairly present the facts and rulings of the trial is a judicial act.</p> <p>3. Same — what is not proper to be incorporated in a bill of exceptions. Statements of counsel for and against a motion, supported by affidavits, to set aside an order of dismissal, and remarks by the court in denying the motion, need not be incorporated in the bill of exceptions, as the correctness of the ruling depends upon the motion and the evidence in support thereof, and not upon the court’s reasons for its judgment.</p> <p>4. Mandamus — mandamus will not lie to compel the court to decide a particular way. Mandamus will not lie to compel a judge to sign a particular bill of exceptions which he has judicially determined contains matter not proper to be incorporated therein.</p>

<p>1. Elections — ballot not officially endorsed by judge of election cannot be counted. Under section 26 of the Election law of 1891 (Laws of 1891, p. 117,) a ballot not bearing the official endorsement of any judge of election cannot be counted.</p> <p>2. Same — voter must follow the law in marking his ballot. It is the duty of every voter in marking his ballot to ascertain and follow the provisions of the statute.</p> <p>3. Same — when ballot must be rejected. A ballot so prepared by a voter as to contain distinguishing marks which, if permitted to be passed, would enable it to be identified cannot be counted.</p>

<p>Appeal from the County Court of Winnebago county; the Hon. Rufus C. Bailey, Judge, presiding.</p>

<p>1. Wills — a gift of land to be converted into money is treated as a bequest of personal property. A gift of real estate to be converted into money under the terms of the will, for distribution among legatees, must be treated as a bequest of money and not a devise of land.</p> <p>2. Same — lapsed legacies fall into a general residuary bequest. Lapsed gifts of personal property will pass under a general residuary bequest instead of descending as intestate property, in the absence of a contrary intention on the part of the testator.</p> <p>3. Same — when bequest of residue of particular fund will carry lapsed legacies. The presumption of law being against intestacy, a gift of the “rest, residue and remainder” of a particular fund to be derived from the sale of certain real estate will carry lapsed legacies which were to be paid out of such fund, particularly where the lapse took place during the life of the testator, who did not change the will.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brent ano, Judge, presiding.</p>

<p>1. Evidence — idhat not proper cross-examination of witness as to good reputation. A witness who has testified in a criminal case that the general reputation of the accused as to being a peaceable and law-abiding man is good, cannot be asked, on cross-examination, whether he has heard rumors of the accused having been connected with former criminal acts. (Cartwright, C. J., dissenting.)</p> <p>2. Same — accused has the right to have evidence confined to charge in indictment. One on trial for a serious offense has the right to have the evidence confined to the charge in the indictment, and the admission of evidence having a tendency to excite the passion or prejudice of the jury, and which has no legitimate bearing upon the crime charged, cannot be said to be harmless error.</p>

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

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

<p>Deeds — when limitation in habendum clause is not repugnant to estate granted. A limitation in the habendum clause which restricts the estate to one for life without power of alienation is not repugnant to the granting clause, which merély describes the property but does not attempt to define the nature of the estate granted, although it uses the words “convey and warrant.” (Riggin v. Dove, 72 Ill. 553, followed.)</p>

G-. W. Patton, Judge, presiding. This was a bill in equity brought by Homer J. Clark, against Charles R. Truitt, to enforce the specific performance of a contract.

Richard S. Farrand, Judge, presiding. The appellant company filed objections to the rendition of judgment against its property for taxes levied for school purposes for the year 1898 in district No. 1 in the town of Dixon,-in Lee county, the ground of the objection being, there was no valid certificate of the board of education delivered to the township treasurer or returned to the county clerk authorizing the levy of such school tax.

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

<p>Taxes — a city warrant is taxable as a chose in action. A city warrant representing a promise by the city, in the nature of an order on its treasurer, to pay a debt incurred by the city by reason of the advancement of money to it by the holder, is a chose in action and liable to taxation.</p>

<p>1. Mortgages — insurance money paid by mortgagee may be allowed on foreclosure if authorized by mortgage. An amount paid by the mort' gagee to obtain insurance may be allowed on foreclosure, where the mortgage requires the mortgagor to keep up the insurance and provides that money advanced by the mortgagee for insurance shall be paid out of the proceeds of the sale of the property.</p> <p>2. Same — mortgagor's grantee not entitled to notice to take out insurance. One purchasing premises subject to a mortgage is bound to keep up the insurance in accordance with the terms of the mortgage without special notice to do so.</p> <p>3. Same — stipulated attorney’s fee may be allowed if not shown to be unreasonable. A stipulated solicitor’s fee may be allowed on foreclosure where it does not appear that the amount was inserted as a cover for usury or that it is 'unreasonable or excessive.</p>

H. V. Freema.n, Judge, presiding. September 29, 1897, the Manhattan Life Insurance Company, appellee, filed a bill of interpleader… Held: and still holds, an assignment of the proceeds of said policies executed by Anna M. Murdoch, as required by complainant’s rules, and has instituted two suits on said policies in the circuit court of Cook county, one in the name of said Morrill, and the other in the name of Anna M. Murdoch for his use, which suits are pending and have…

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

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

<p>Appeal from the decision of the Board of Review of Fulton county.</p>

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

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

Theodore Brentano, Judge, presiding. This was a bill in chancery brought by William E. Benson and Frank A. Benson, the sons and only heirs-at-law of Francis H. Benson, deceased, against Clancey J. Dempster and others, the only heirs-at-law of John Dempster, deceased, and Killian V. R. Lansingh, as administrator de bonis non of the estate of said John Dempster, and also as executor of and trustee under the will of Orrea W. Dempster Lansingh, a deceased heir of said John…

<p>Taxes — when amendment of certificate of school tax levy cannot be per-milted. A certificate of levy for school purposes made by the president pro tern of the board of education th e next day after a meeting of the board at which the levy was voted but no certificate of levy was made or authorized, cannot be amended, upon application for judgment of sale, by permitting the other members of the board to sign it, even though they testify that they would have signed it had they supposed it necessary. (Chicago and Northwestern Railroad Co. v. People, ante, p. 247, distinguished.)</p>

<p>Writ of Error to the Circuit Court of Kankakee county; the Hon. John Small, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. R W. Hilscher, Judge, presiding.</p>

<p>The questions here raised have been determined adversely to appellants in the former cases of West Chicago Park Comrs. v. Sweet, 167 Ill. 326, and Sweet v. West Chicago Park Comrs. 177 id. 492..</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles Gr. Neeley, Judge, presiding.</p>

<p>1. Insurance — section 4 of Insurance act of1869 construed. Section 4 of the Insurance act of 1869, (Rev. Stat. 1874, p. 591,) authorizing • the Auditor of Public Accounts (now superintendent of insurance) to refuse a license to a company if he deems the name too similar to one already in use, applies to domestic corporations only, and does not empower the superintendent to refuse a license to a foreign company merely because its name is similar to that of an existing domestic insurance company.</p> <p>2. Mandamus — when mandamus lies to compel the superintendent of insurance to issue license. Mandamus lies to compel the superintendent of insurance to issue a license to a foreign insurance corporation when'the only ground for refusal is the similarity of its name to that of an existing domestic insurance corporation.</p>

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

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

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

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

Writ of Error to the Branch Appellate Court for the First District; — heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding. The express company instituted an action against the insurance company to recover under an insurance policy issued by the latter company. The declaration set forth the policy in liceo verba.

<p>Appeal from the Circuit Court of Crawford county; the Hon. E. D. Youngblood, Judge, presiding.</p>

<p>1. Schools — the adoption of the general City and Village act does not abrogate consistent provisions of special charter relating to schools. The adoption of the general law for the incorporation of cities and villages does not abrogate provisions of special charters not inconsistent with provisions of the general law relating to the support and management of public schools.</p> <p>2. Same — extent of change, in special charters effected by general School law. Under section 7 of the general School law, as amended in 1891, (Laws of 1891, p. 197,) the only change effected in the public school provisions of special charters of cities and villages is to make the limit of taxation for educational and building purposes the same as under the general School law.</p> <p>3. Constitutional law — provisions of School law changing special charters are not unconstitutional. The provisions of the general School law which affect the method of constituting the board of education and change the limit of taxation for school purposes prescribed, in special charters are not in violation of section 22 of article 4 of the constitution, prohibiting the passage of special laws changing the charter of any city or village.</p> <p>• 4. Taxes — when tax for building purposes need not be authorized by vote of people. A city working under special charter provisions concerning public schools may levy a tax for building purposes without a vote of the people authorizing the erection of the school building, if the special provisions contain no such requirement.</p> <p>5. Evidence — when the adoption of labor system, for road taxes is not proved. The adoption of the “labor system” for paying road taxes is not shown by the record of a town meeting at which such system was voted for, where there is no statement in the record nor proof offered at the trial that the requisite petition by the voters to submit the question of adopting the system was filed. -</p> <p>6. Same — that witness had worked out road tax does not show adoption of labor system. Testimony that the witness had worked out a road tax for his father, who owned a farm in a certain town, does not show that such town had adopted the labor system.</p> <p>7. Same — presumption that public officers did their duty does not establish jurisdictional facts. The presumption that public officers having in charge the submission of the question of working out road taxes, performed their duties, is not sufficient to establish the jurisdictional facts that the proper election petition was filed and proper notice of election posted and published as provided by statute.</p>

<p>1. Taxes — one claiming exemption must bring property within the law. One claiming property to be exempt from taxation must clearly bring his property within the provisions of the law, since all doubts are resolved against the exemption.</p> <p>2. Same — when premises are not exempt as public school property. A petition to a board of review asking to hold exempt from taxation property described as a play ground used “for the school in the rear of the premises,” does not bring the property within section 2 of the Revenue law, (Rev. Stat. 1874, p. 857,) exempting from taxation “all public school houses,” etc.</p> <p>3. Same — when premises are not exempt as property of an institution of learning. Property described as used for a play ground by a “school” cannot be held exempt from taxation as the property of an “institution of learning,” in the absence of any showing that a higher education is given in such school than in public schools.</p> <p>4. Same — when petition does not show that property is the property of a school. A petition to a board of review which alleges that the petitioner, a catholic bishop, holds the title to premises used as a play ground for a school, without alleging it is held in trust, does not show that the property is the property of the school.</p> <p>5. Same — when play ground not exempt as property of a public charity. Property described in a petition to a board of review merely as a play ground for a school cannot be regarded as the property of an institution of purely public charity, within the meaning of section 2 of the Revenue law.</p>

<p>Appeal from the Circuit Court of Lawrence county; the Hon. E. E. Newlin, Judge, presiding.</p>

Writ of Error to the Circuit Court of Moultrie county; the Hon. Edward P. Vail, Judge, presiding. This is a proceeding in chancery by Margaret Lynn, in the Moultrie circuit court, to set aside a sheriff’s sale of ten acres of land claimed by her as a homestead, to restrain the sheriff from making a deed to the holder of the certificate of purchase under the sale, and to prevent the holder of the certificate, George A. Sentel, from assigning it.

Orrin N. Carter, Judge, presiding. This is an application by the county treasurer and ex officio county collector of Cook county to the county court in that county for judgment of sale against the property of the appellants, which was returned as delinquent by reason of the non-payment of a special assessment levied and assessed by the Wést Chicago Park Commissioners to pay the cost of the improvement of Douglas boulevard from the southerly line of Garfield park to the west…

<p>Appeal from' the County Court of McLean county; the Hon. Holland A. Russell, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.</p>

<p>1. Pleading — averments of answer not denied are admitted. Averments of the answer to a petition for mandamus not denied by replication are admitted.</p> <p>2. Officers — a de jure office is essential to the existence of a defactoofficer. Though an act providing for filling a legally existing office may be void, yet one occupying such office under color of title will be a defacto officer; but if the act which creates the office itself is void there can be no defacto officer with respect thereto, as there is in that case no office to be filled.</p> <p>3. Statutes — when a statute is not subject to constitutional promsicm concerning amendatory acts. If a statute can properly be held to be a complete act of the legislature on the subject with which it deals, it will be deemed good and not subject to the operation of section 13 of article 4 of the constitution, providing that no act shall be amended by reference to its title only, notwithstanding it may repeal by implication, or modify, the provisions of prior laws.</p> <p>4. Same — how character of act must be determined. The character of an act, with reference to its being amendatory or complete, must be determined, not by the title alone nor what the act purports to be, but by an examination and comparison of its provisions with prior laws which are left in force.</p> <p>5. Constitutional law — Bevenue act of1898 is substantially a complete law. The .Revenue act of 1898 provides for a new system of assessing property upon a new basis,' with new modes of procedure and methods of review, and, being substantially complete upon the subject dealt with, is not in violation of the constitutional provision forbidding the passage of amendatory acts without inserting the sections amended at length in the new act.</p> <p>6. Same — classification for purpose of assessing property must not be arbitrary. A classification of municipalities for the purpose of assessing property cannot be adopted arbitrarily upon a ground which has no foundation in difference of situation or circumstances of the municipalities placed in different classes, but there must be some reasonable relation between the situation of the municipalities classified and the objects to be attained.</p> <p>7. Same — part of section j-9 of Bevenue act of 1898 is unconstitutional. The provision of section 49 of Revenue act of 1898, (Laws of 1898, p. 52,) which attempts to limit the power of every municipality in counties of 125,000 inhabitants or over to incur indebtedness in excess of two and one-half per cent of the assessed valuation, and to limit the rate of taxation in every municipality or taxing district in such counties to five per cent, is unconstitutional and void, being special legislation based upon an arbitrary classification, which deprives such municipalities of rights enjoyed by other municipalities in the same situation in other counties.</p> <p>8. Taxes — same rule for extending taxes applies to all counties of the State. The invalidity of that portion of section 49 of the Revenue act of 1898 which attempts to restrict the power of incurring indebtedness and to limit the rate of taxation in certain municipalities does not affect the other portion of the section providing the rule for extending taxes, which remains applicable to all counties.</p> <p>9. Same — the office of hoard of county assessors is legally created. The Revenue act of 1898, as a whole, is not rendered invalid by striking out the provision herein held void, and the office of the board of county assessors is, therefore, lawfully created.</p>

<p>Writ op Error to the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding.</p>

E. F. Dunne, Judge, presiding. Amy Hunter, the appellee, filed a bill to foreclose a deed of trust on certain property in Chicago.

<p>Appeal from the County Court of Coles county; the Hon. John P. Harrah, Judge, presiding.</p>

<p>Appeals and errors — writ of error must be brought within five years. Under section 85 of the Practice act a writ of error cannot be brought after five years from the rendition of the judgment.</p>

<p>1. Elections — ballot should not be rejected because the election officers have put distinguishing mark thereon. A ballot properly prepared by" a legal voter should not be rejected because some one of the election officers, without participation of the voter, made an endorsement on the ballot which might serve as a distinguishing mark.</p> <p>2. Same — one who has merely declared his intention is not a legal voter. One who has filed his declaration of intention to become a citizen of the United States but has not received a certificate of naturalization is not entitled to vote.</p> <p>3. Same — purpose of provision that election officers shall not make eivdorsements on ballots. The provision of the Election law that election officers shall not make an endorsement on a ballot other than is specified by statute is to protect legal voters in secrecy of ballot.</p> <p>4. Same — illegal voters cannot claim protection of provision concerning endorsement. The enforcement of the provision of the Election law that election officers shall not endorse ballots cannot be demanded solely to the end that a ballot unlawfully cast shall not be marked so as to distinguish it from lawful ballots.</p> <p>5. Same — ballots cast by illegal voters may be identified. It is competent, on contest, to show that ballots cast by illegal voters were endorsed by the election officers with the words “objected to” before being deposited, and .such ballots must be rejected as marked, where no other ballots bear such an endorsement.</p> <p>6. Same — provision requiring voter to swear he is unable to mark ballot is mandatory. The provision of section 24 of the Election law of 1891 (Laws of 1891, p. 117,) requiting a voter to make oath that he is physically unable to mark his ballot before he may be assisted by the election officers is mandatory, and cannot be dispensed with though the voter is blind or nearly blind.</p> <p>7. Same — election officers cannot testify how ballot was marked though voter did not swear to disability. Election officers who, under color of the statute, assist a legal voter to prepare his ballot cannot testify how such ballot was marked, although the voter was assisted on his unsworn statement that he was physically unable to mark ballot.</p>

<p>1. Deeds — facts which show that a deed is well delivered. A deed left by the grantor with a third person, with instructions to hand it to the grantee who would call for it, is well delivered and passes title although the grantor, several days later, upon learning that the grantee had not called, took the deed and handed it to the grantee.</p> <p>2. Same — when acceptance of deed will relate bach to time of delivery to third person. Acceptance of a deed by a grantee will relate back to the time of its delivery to a third person for him, although he was not then aware of its execution, where the conveyance was the result of a previously arranged plan for disposing of the grantor’s property, to which the grantee had assented.</p> <p>3. Dower — when deed is not in fraud of dower. A deed executed the day before the grantor’s second marriage will not be held to be in fraud of the second wife’s inchoate right to dower, where it appears the latter was apprised of the grantor’s action, and that 'afterward, with full knowledge of the deed, she accepted a life estate in other property, not shown to be unequal to what her dower would have been in the entire estate.</p>

Writ op 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. S. C. Stough, Judge, presiding.

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

<p>1. Wills — ichen word “heirs” will be given the meaning of “children." The word “heirs” in a devise to the testator’s “wife and child or children, or their heirs,” will be given the meaning of “children,” where the testator was a business man who wrote his own will.</p> <p>2. Same — will construed as to the nature of the contingency provided for. A devise to the testator’s wife and child or children, or their heirs who might be living at his death, but in case the testator, his wife or child or children should die without such child or children having heirs the property to go to others, contemplates the contingency of the wife and child or children dying before the testator without issue to the child or children, and upon the death of the testator leaving a wife and child surviving the latter take an absolute estate.</p>

Theodore Brent ano, Judge, presiding. This is an appeal from a judgment of the Appellate Court, affirming an order or decree of the superior court of Cook county entered in behalf of the appellee, Martin, which denied to the appellant any compensation, or attorney’s fees, as receiver, in a certain cause, wherein one Patrick J. Sexton filed a bill against A. H. Blackall & Son, a corporation, and A. H., E. S., and L. M. Blackall, and also against the appellee, Nicholas Martin.

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

<p>.Railroads — effect of negligence of street car employees in contributing to collision at crossing. The negligence of servants in charge of a street car in permitting the car to break through the gates at a railroad crossing and run upon the track, where it was struck by an engine, does not relieve the railroad company from liability where the collision would have been avoided had the engine not been running at unlawful speed.</p>

E. E. Newlin, Judge, presiding. This is an appeal from a decree entered in the circuit court upon the final hearing of the issues made upon the bill filed by “the Hudnalls,” as they are spoken of in the record, and upon the cross-bill of Mary E. T. Taylor, the widow of Jeremiah Taylor, deceased.

Murray F. Tuley, Judge, presiding. The original bill in this case was filed on April 27, 1895, by the appellant ag'ainst the appellee, alleging that appellee had acted as the agent of appellant in the purchase of certain lands in Indiana, and praying that appellee should be required to account for certain moneys paid to him by appellant to be applied toward such purchase, but which are alleged to have been appropriated by the appellee to his own use.

<p>1. Amendments — it is the policy of the statute to permit amendments to save substantial rights. It is the policy of the statute permitting amendments that neither party shall be deprived of a substantial right through defects or omissions in pleadings if he is diligent in applying to the court for leave to amend.</p> <p>2. Same — when court should permit withdrawal of plea puis darrein continuance. In an action by a minor for negligence, where a demurrer has been sustained to a plea puis darrein continuance setting up a release, the court should allow defendant’s motion, made at the earliest possible moment, for leave to withdraw the plea puis and file or re-file the general issue.</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. Farlin Q. Ball, Judge, presiding.</p>

Writ op Error to the Branch Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard W. Clippord, Judge, presiding.

Joseph P. Robarts, Judge, presiding. Appellant commenced an action of ejectment to recover lots 6, 9, 10 and 11, in block 40, in the city of Cairo. Appellee filed a plea of the general issue, and on trial the finding and judgment were entered for the defendant, and the plaintiff prosecutes this appeal.

<p>Appeal from the Appellate Court for the Fourth District; — heard in that court ou appeal from the Circuit Court of Clinton county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>' Special assessments — sufficiency of improvement petition cannot be attacked on application for sale. A property owner served with notice of the application to confirm a special assessment, who suffers default, cannot, on an application for judgment of sale, attack the sufficiency of the improvement petition, where the confirmation proceeding, as to the jurisdiction of the court, is prima facie regular.</p>

<p>1. Special, assessments — ordinance should contain data showing height of curb. Confirmation of a paving assessment is unauthorized where the ordinance contains nothing from which the depth of the gutter or corresponding height of the curb can be ascertained. (Holden v. City of Chicago, 172 Ill. 263, followed.)</p> <p>2. Same — if improvement cannot be described it cannot be made by special assessment. If the depth of gutter or height of curb cannot be described but must depend upon the exigencies of construction, then the improvement is not one which the law authorizes to he constructed by special assessment.</p> <p>3. Record — copy of ordinance attached to petition is part of pleadings. A copy of an ordinance attached to a petition for confirmation in lieu of reciting the ordinance in the petition, as required by law, is part of the pleadings, and hence need not be incorporated in the bill of exceptions in order to be in the record on appeal. (City of Chicago v. South Park Comrs. 169 Ill. 387, and Meissner v. People, id. 530, distinguished.)</p>

Elbridge Hanecy, Judge, presiding. This is a bill, filed originally by Edwin Lee Brown as owner of lots 1, 2 and 3 in block 1 in Jennings’ subdivision of part of Jennings & Moffett’s subdivision of the ’south 60 acres of the east half of the south-west quarter of section 10, township 38, north, range 14, east of the third principal meridian, in Cook county, Illinois, to remove as clouds from his title certain tax deeds, and deeds based upon such tax deeds, held by the…

John Gibbons, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming- a decree rendered on a creditor’s bill filed by appellees January 7, 1898, against the Singer & Talcott Stone Company and others, as defendants, to reach the assets of the Sing'er & Talcott Stone Company in the possession of the defendants, as stockholders.

Farlin Q. Ball, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming an order of the superior court of Cook county, wherein appellant was adjudged guilty of contempt and a fine of $250 was imposed.

Frank Baker, Judge, presiding. On the seventh of June, 1893, one Warren Ewen, Jr., made and delivered to the appellant his promissory note, due “on demand six months after date, for §1250, to the order of Albert G. Wilbor, Jr., “at my office, Chicago, Illinois. This note was a renewal of a like note made November 15, 1892, both being guaranteed by the appellee, on which contract,of guaranty this suit was brought.

C. W. Thompson, Judge, presiding. This is an action for debt brought, by the appellant, the city of Monmouth, against the appellees, Popel and G-iller, to recover from the latter a penalty for the alleged violation of an ordinance of the said city, entitled, “An ordinance relating to the sale, gift or delivery of intoxicating, malt, vinous, mixed or fermented liquor.” The declaration contains three counts; the first count charges, that the appellees within the said city sold…