Volume 184 — Illinois Reports

Truman E. Ames, Judg'e, presiding. This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a judgment of the circuit court of Marion county. The facts in the case, as shown by the record of the trial court, are substantially as follows: Appellee, Emma Griffin, in July, 1897, was living two and a quarter miles north-east of Patoka, a station on defendant’s railroad. On the 22d of July she started to Patoka about seven o’clock in the morning.

<p>Appeal from the County Court of Lake county; the Hon. D. L. Jones, Judge, presiding.</p>

Theodore Brentano, Judge, presiding. When this case was before the Appellate Court for the First District the following statement of the case was made and opinion rendered by Mr. Presiding Justice Windes: “Appellant, on October 4, 1895, filed his bill in the superior court of Cook county to foreclose two trust deeds made by appellees Karl G. Ludwig and wife, one dated October 1, 1894, to Otto C. Butz, trustee, and William J. Haerther, successor in trust, to secure the note…

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

District;—heard in that court on appeal from the Circuit Court of Effingham county; the Hon. William M. Farmer, Judge, presiding.

<p>Laches—when delay by purchaser of stock bars suit to compel new corporation to exchange stock. A delay of nearly seven years by the purchaser of stock after learning that it has previously been canceled upon the dissolution of the old corporation and the organization of a new one, in which the seller had refused to take stock, will bar his remedy to compel the new corporation to issue new stock in exchange for the old, where, in the meantime, the seller, who was a director in the old corporation, has died and his testimony as to the transaction is thereby lost.</p>

<p>1. Trial—when court must refuse to take case from jury. It is the duty of the trial court to refuse defendant’s request to take the case from the jury, if the evidence, with all the inferences to be properly drawn therefrom, fairly tends to prove plaintiff’s cause of action as set out in the declaration.</p> <p>2. Appeals and errors—in passing upon action on peremptory instruction Supreme Gourt does not weigh evidence. In passing upon the propriety of defendant’s instruction to take the case from the jury the Supreme Court does not consider the weight of evidence, since defendant’s request admits the truth of plaintiff’s evidence and all inferences to be properly drawn therefrom.</p> <p>3. Carriers—carrier should furnish stock shipper with cars free from disease germs. It is the duty of a carrier to furnish a cattle shipper with cars which are not infected with any contagious cattle disease, and its failure to discharge such duty renders it liable for damages resulting therefrom to the shipper.</p> <p>4. Evidence—what will warrant jury in finding carrier liable for loss on cattle by Texas fever. A jury is warranted in finding that Texas fever was communicated to plaintiff’s cattle from infected cars under evidence that defendant’s line extended from Chicago to New Orleans; that the cars had been recently used to carry other cattle; that there had been no Texas fever for over twenty-five years in the places where the cattle were raised and shipped to; and'that, though the cattle were kept in a pasture by themselves after unloading, Texas fever soon broke out among them.</p>

Farlin Q. .Ball, Judge, presiding. The decree appealed from awarded partition of certain premises between the parties hereto. The title to the property vested in appellee Peirce by deed dated May 2, 1889.

<p>1. Replevin—judgment of recovery should precede order for writ of retorno habendo. Under section 22 of the Replevin act, upon dismissal of the suit by the plaintiff, the court, before ordering a writ of retorno habendo, should enter formal judgment that defendant recover from the plaintiff the property taken under the writ.</p> <p>2. Appeals and errors—error in replevin .judgment may be cured on appeal by filing an amended record. Error in ordering a writ of retorno habendo without giving judgment that defendant recover the property from the plaintiff, is cured on appeal by the filing of an amended record showing that such judgment was in fact entered but was omitted by the clerk from the former record.</p>

<p>1. Voluntary assignments—-foreign voluntary assignment not good as against domestic attaching creditors. Courts of Illinois will not enforce a foreign voluntary assignment as against domestic attaching creditors, since the enforcement of such assignment is a matter of comity, only.</p> <p>2. Attachment—local bank credits of foreign assignor are subject to attachment by local creditors. Local bank deposit of foreign insolvent is subject to attachment by domestic creditors before the assignee has reduced it to possession, though part of the deposit consists of money sent to the bank by the insolvent the day before making the assignment and not received by the bank until after the assignment was made.</p>

<p>Equity—power of equity to decree sale of trust property. In order to prevent trust property from being lost to the life tenant and remainder-man, equity has power, upon a proper showing, to decree the sale of the property and distribution of the proceeds, particularly where all persons having a vested interest join in asking it.</p>

<p>1. Laches—when oioner is not chargeable with laches in removing cloud on title. The legal owner of land in possession thereof is not chargeable with laches in not seeking to remove a cloud on her title which was created after she obtained title and took possession, and of which she had no knowledge until she sold the property, when she at once took steps to remove it.</p> <p>2. Cloud on title—void sheriff’s deed may be removed as a cloud. A bill in equity will lie to remove as a cloud on title a void sheriff’s deed, where such deed is upon record and purports on its face to he a valid conveyance.</p>

W. G. Cochrane, Judge, presiding. This is an action of assumpsit, brought by the appellee, Stephen K. Morley, against the appellants, William Metzger and Richard Snell. The plea of non-assumpsit and certain special pleas were filed. Some of the special pleas were demurred to, and the demurrers thereto were sustained; but the demurrer to the fourth special plea was overruled.

Writ of Error to the Circuit Court of McDonough county; the Hon. John A. Gray, Judge; presiding.

<p>1. Lunatics—notice of inquest in lunacy must be given to the alleged, lunatic. Under section 4 of the act of 1893, concerning lunatics, (Laws of 1893, p. 141,) no inquest in lunacy can be had until the person alleged to be insane has been notified as the court directs.</p> <p>2. Appeals and errors—when validity of statute is not involved on writ of error. The failure of the court to give notice of an inquest in lunacy or to have a hearing does not raise the question of the validity of the act on lunatics, so as to give the Supreme Court jurisdiction of a writ of error, since the statute provides for such notice and hearing.</p>

T. N. Mehan, Judge, presiding. Appellees, as heirs of Mary C. Long, wife of Thomas S. Long, filed their bill seeking partition of certain lands, averring the appellant Fred H. Farrand to be the owner of an undivided one-half of the premises and the title to the remaining half to be in the complainants in various proportions, set out in detail.

Anthony R. Mock, Judge, presiding. This is an appeal from a judgment of the Appellate Court, reversing, without remandment, an order of the county court' entered in a proceeding under the Insolvent act, requiring the appellees to surrender property to the appellant as assignee of one Alexander White, an insolvent.

<p>1. Interpleader—when bill of interpleader does not lie. A bill of interpleader by a master in chancery does not lie to determine to whom a portion of the proceeds of a partition sale shall be paid, where the parties claiming the fund consist of the party entitled thereto under the decree and his assigns, each and all of whom had offered to receipt for the money if paid to any one of them, there being no dispute between them as to who should receive it.</p> <p>2. Same—sufficiency of bill need not be tested by demurrer. Defendants to a bill of interpleader need not demur, but may answer and rely upon the evidence being insufficient to sustain a decree.</p> <p>3. Masters in chancery—master is protected in executing court’s decree. A master is protected in paying money in strict conformity to a decree of court where the court has jurisdiction of the subject matter and of the parties, and the party entitled to payment under the decree, though having locomotor ataxia, is not insane.</p> <p>4. Same—master should execute decree loilhemt evasion. After a court of general jurisdiction has rendered a decree requiring the master to pay money to one of the parties it is the master’s duty to make prompt payment, and not to search for excuses which will enable him to hold possession of the money.</p>

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

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

<p>Appeal from the Circuit Court of Coles county; the Hon. Frank K. Dunn, Judge, presiding.</p>

<p>1. Garnishment—debt due one partner not subject to garnishment by firm creditors. A debt owing to one partner is not subject to garnishment by creditors of the partners; nor can the owner of a joint judgment reach, by garnishment, a debt owing to one of the joint judgment debtors.</p> <p>2. Same—effect where the point relied upon was not urged in former appeals. The fact that a ground for affirmance or reversal was not referred to by the Appellate or trial court as a reason for their judgments in former decisions of the case, does not preclude the Supreme Court, on subsequent appeal, from basing its judgment on such ground.</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 Brent ano, Judge, presiding.</p>

<p>1. Loan associations—completed withdrawal cancels membership. One whose withdrawal of stock is completed by the surrender of the stock and the receipt of a check for the withdrawal value ceases to be a member, and neither the association nor its receiver has power to re-adjust the settlement and re-instate the member.</p> <p>2. Same—when withdrawing member is entitled to payment of check— insolvency. The delivery, by a loan association to a withdrawing member, of a check for withdrawal value upon a sufficient fund in the bank, operates to transfer title to the sum named to the payee, who may enforce payment in a court of equity though the funds were withdrawn before presentment by the custodian, who turned them over to the receivers, who alone defend the suit.</p> <p>3. Masters in chancery—court should determine master's compensation for examining questions. The clerk may tax specific fees allowed to the master by statute for taking testimony, but he has no power to determine the master’s compensation for examining questions and reporting conclusions, that being the province of the court in the exercise of judicial discretion.</p>

<p>1. Special assessments—what does not render a paving ordinance unreasonable. That the retaining walls of approaches to a viaduct on the street to be paved are too weak to bear the strain of the ten-ton roller with which the pavement must be rolled does not render the ordinance unreasonable or invalid, since the city may strengthen such walls or build new ones.</p> <p>2. Same—what a sufficient establishment of grade by reference to datum. A paving ordinance sufficiently establishes the grade which fixes it for the entire length of the improvement at certain heights, to be measured from a specified, fixed datum adopted for city levels.</p> <p>3. Same—what need not be proved to sustain establishment of grade by reference to datum. Where an ordinance for paving a Chicago street requires the street to be graded to certain heights above the plane of the low-water mark in Lake Michigan 'in 18 47, it i's not necessary that such mark be established by ordinance; nor need it be proved that the lake was there in 1847, or that there was a time that year when the water was low.</p> <p>4. Same—estimate should not include work not contemplated. It is a valid objection to confirmation that the estimate includes cost of paving certain portions of cross-streets excepted by the improvement ordinance, since the assessment as spread is based upon the estimate; and it is a substantial right that the lien of the assessment shall not be greater than necessary, even though competition among contractors will fix the price for the work notwithstanding the estimate may be excessive.</p>

<p>1. Appeals and errors—Appellate Court’s finding that agency existed is binding. In a jury trial the question of the existence of the relation of agency must be left to the jury under appropriate instructions, and the Appellate Court’s finding on that subject is binding upon the Supreme Court.</p> <p>2. Bills and notes—note is negotiable though mortgage permits it to be declared due before maturity. The negotiability of a note secured by mortgage is not affected by the provision of the mortgage that the note may be declared due before the day fixed for payment, upon the happening of some contingency.</p> <p>3. Same—amount of note is not uncertain because mortgage secures advances. That a mortgage provides for the allowance’of attorney’s fees and costs and advances for insurance and taxes, in case of foreclosure, does not render the amount of the note uncertain, so as to affect its negotiability.</p> <p>4. Same—bona fide purchaser without notice is entitled to protection. One purchasing a negotiable note before maturity, for value and without notice of payments or defenses, is entitled to protection.</p>

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

<p>Judgments and decrees—life of executor's order to sell real estate is not limited to seven years. An order upon an executor to sell real estate to pay testator’s debts is not a judgment at law nor a money decree but is a decree in rent, and the executor may sell under such order more than seven years after its entry.</p>

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

<p>Appeal from, the County Court of Stephenson county; the Hon. W. N. Cronkrite, Judge, presiding.</p>

<p>Appeal from the County Court of LaSalle county; the Hon. H. W. Johnson, Judge, presiding.</p>

<p>1. Mechanics’ liens—sections 29 and 45 of act of 1874 are to be read together. Sections 29 and 45 of the Mechanic’s Lien act, (Rev. Stat. 1874, pp. 886, 889,) relating to sub-contractors’ liens, are to be read and construed together.</p> <p>2. Same—upon abandonment by contractor, sub-contractor is not confined to section 45. Upon abandonment of work by the contractor, the sub-contractor’s remedy, under the act of 1874, is prescribed by section 45, if there was no fraud in letting the contract; but where the contract price was fixed unreasonably low for the purpose of defrauding sub-contractors, the sub-contractor may also proceed under section 29.</p> <p>3. Same—sub-contractors’ rights under act of 1874. Under section 45 of the act of 1874 sub-contractors are entitled to liens where the contractor abandons the work, such liens being, however, limited to the contract price, less payments rightfully made by the owner; but under section 29, where the contract price has been fixed unreasonably low by the contractor and owner for the purpose of defrauding creditors, then a fair price for the work, when ascertained, is to be treated as the contract price.</p> <p>4. Same—when building is properly decreed to be sold as a whole. A building erected upon one lot and the adjoining ten feet of another lot, but under the same roof, is properly decreed to be sold as a whole, to satisfy the mechanic’s lien.</p> <p>5. Same—effect of failure to serve notice of lien. Where notice of a mechanic’s lien is not served upon the wife, who is joint owner of the land with her husband, her interest in the premises is not chargeable with the lien under the act of 1874.</p> <p>6. Estoppel—when owner is estopped to claim that certain things were included in sub-contract. Where a sub-contractor’s bid is based wholly upon detail drawings furnished him, the owner is estopped to claim that the sub-contract embraced parts of the work not shown on the drawings.</p> <p>7. Evidence—corroborated testimony of witness who has sworn falsely may be regarded. Corroborated testimony of a witness may be regarded even though he may have sworn falsely to other material matters in the case.</p> <p>8. Same—-failure to produce expected and available evidence raises a presumption against the party. Failure of the owner of a building to produce expected evidence in the form of architects’ certificates paid by him and relied upon by the other parties to show facts against his interest, raises a presumption against him, where his failure to preserve them is contrary to his custom and their absence is not satisfactorily accounted for.</p> <p>9. Parties—objection for want of parties cannot be first raised on appeal. An objection for want of proper parties, not made before the master or the trial court, cannot be raised on appeal.</p> <p>10. Appeals and errors—when master’s finding will be presumed warranted by the evidence. The master’s allowance of a claim for mechanic’s lien for materials found by him to have been furnished and not paid for will be presumed to be warranted by the evidence, where none of the testimony as to the claim is abstracted.</p>

Frank- D. Ramsay, Judge, presiding. This is an action originally brought before a justice of the peace in the name of the town of Sterling, appellee, against the appellant, James H. Woodburn, to recover the statutory penalties for several obstructions to a highway in that town. The appellant denied the existence of the highway.

<p>1. Trial—it is proper to confine cross-examination to matters called out in chief. Plaintiff in an action for damages to good name and reputation, who has not given any evidence of her character upon her examination in chief, cannot be cross-examined for the purpose of proving her bad character, although evidence of such fact, if properly offered, would be admissible in mitigation of damages.</p> <p>2. Same—when remarles by court in excluding witness’ answer are not ground for reversal. It is the right of the trial court to see that the answers given by witnesses are responsive to the questions asked and to prevent the bringing in of irrelevant matters, and the fact that in excluding an unresponsive answer the court styles it “stuff” and “trash” does not necessarily require a reversal of the judgment.</p> <p>3. Evidence—when testimony of witness may be disregarded. Where the general reputation of a witness for truth and veracity is bad in the neighborhood where he resides, or he has knowingly sworn falsely to a material matter, the jury may disregard his uncorroborated testimony.</p> <p>4. Appeals and errors—when application for new trial will be presumed to have been abandoned. An application for new trial upon the ground of newly discovered evidence will be presumed, on appeal, to have been abandoned, where the ruling upon that branch of the case is not questioned in appellant’s brief and argument.</p>

<p>Appeal from the Board of Review of'Morgan county.</p>

<p>1. Undue influence—what does not show undue influence in execution of release. Undue influence in obtaining a release of a mortgage to secure the payment by the mortgagor of a certain annuity to his mother, is not shown by evidence that the son represented to the mother that he desired to sell the land and that she executed the release to enable him to do so.</p> <p>2. Mortgages—voluntary release to enable mortgagor to sell until clear title is valid. A release by a mortgagee under no circumstances of fraud or undue influence, but solely to enable the mortgagor to sell the land with a clear title, may be as valid and binding and be treated the same way as a release given upon payment of the debt.</p> <p>3. Laches—when laches will bar relief under bill to revive a mortgage. A delay of fourteen years in filing a bill against the mortgagor’s heirs to revive a mortgage which complainant had voluntarily released will bar relief, where complainant, during such period, had apparently relied upon the mortgagor’s personal written undertaking to pay the amount secured and part of the heirs have conveyed their interests to an innocent purchaser.</p>

<p>1. Estoppel—lohat is necessary to raise estoppel from proofs of death. In order that an estoppel to claim mortuary benefits may be based on statements in the proofs of death, it is essential that the statements were made with the intention that the insurer act thereon, and that the insurer did act thereon to its injury.</p> <p>2. Benefit societies—proofs of death form, a legal basis for an action on the, benefit certificate. Proofs of death, if in compliance with the requirements of the society, form a legal basis for an action on the benefit certificate, even though the proofs contain matter damaging to the case of the beneficiary.</p> <p>3. Same—beneficiary not estopped to deny the physician’s statement in proofs of death. A beneficiary is not estopped to deny the truth of the physician’s affidavit as to cause of death, required by the rules of the society to be filed with the proofs of death.</p> <p>4. Evidence—when performance of conditions of certificate of membership need not be proved. It is not incumbent upon a beneficiary to próve compliance by the insured with all conditions of the certificate of membership and the fundamental laws of the society, where such performance is not put in issue by special plea.</p> <p>5. Same—physician’s affidavit as to cause of death is admissible. The physician’s affidavit as to the cause of the insured’s death is admissible in evidence with other papers constituting proofs of death.</p> <p>6. Appeals and errors—when error in refusing to admit physician’s affidavit is harmless. Error in refusing to admit in evidence an affidavit of a physician concerning the cause of the insured’s death, and constituting part of the proofs of death, is harmless, where the physician is permitted to testify fully upon the matter covered by the affidavit.</p> <p>1. Same—rulings of trial court accepted as correct unless contrary is shown by the record. The rulings of the trial court must be accepted as correct by a court of review unless the contrary is made to appear by the record of the case.</p> <p>8. Same—cause of death is a question of fact in an action on certificate. Whether the insured had indulged in the use of intoxicating liquor so as to permanently impair his health or produce delirium tremens is a question of fact, upon which the judgments of the trial and Appellate Courts are conclusive.</p>

<p>Appeal from the County Court of McHenry county; the Hon. O. H. Gilmore, Judge, presiding.</p>

James Shaw, Judge, presiding. This is an action of forcible entry and detainer, brought by the appellee against the appellants, before a justice of the peace, complaining that appellants unlawfully withheld possession of a certain piece of land, described in the complaint as a part of section 30, township 24 north, range 4, east of the fourth principal meridian.

Clair county; the Hon. M. W. Schaefer, Judge, presiding. This is a suit in assumpsit brought by the appellees against the appellant company. The declaration alleges that, on March 31, 1897, the defendant was indebted to the plaintiffs in the sum of $2500.00 for a certain leasehold estate, before that time owned by the plaintiffs, and then and there bargained, sold and transferred by plaintiffs to defendant at its request.

<p>1. Equity—when a cross-bill in foreclosure is properly dismissed. A cross-bill in a foreclosure proceeding, filed by holder of the equity of redemption, is properly dismissed for want of equity where it seeks to litigate with one of the complainants, a judgment creditor, matters relating only to the legal right of redemption.</p> <p>2. Trusts—purpose of law requiring deposit of securities by a foreign trust company is protection. The law requiring foreign trust companies to deposit securities with the Auditor is designed to protect persons interested in the proper execution of trusts, and not to furnish ground for fraudulent conduct in giving security and then repudiating it.</p> <p>3. Same—effect of failure of foreign trust company to deposit securities. Failure of a foreign trust company to deposit securities with the Auditor docs not invalidate a decree foreclosing a trust deed executed to it as trustee, to secure the payment of bonds, where the only duties performed by the company were certifying the bonds outside the State and joining with the bondholders in filing the foreclosure bill.</p> <p>4. Same —filing a bill to foreclose trust deed is not the exercise of active power. A bill by a foreign trustee to foreclose the trust deed is but a prayer to the court to divest complainant of title by decree and sale, and even though the trustee is not qualified to exercise active powers the court need not remove him or appoint a new trustee before decreeing foreclosure.</p>

John Barton Payne, Judge,- presiding. Francis C. Sherman departed this life in the year 1870, seized of the title to lots 7 and 8, in block 34, in the original town of Chicago, on which was situate a hotel known as the Sherman House.

<p>1. Taxation—amount due under contract to sell land is taxable as a credit. The amount remaining unpaid under an agreement to convey land by warranty deed upon the payment of a specified sum of money, is taxable as a “credit” under clause 2 of section 1 and clause 1 of section 6 of the Revenue act of 1872, where the vendee is in possession of the land and has agreed to pay the taxes, although the vendor holds the title to the land in his name and the amount due is not evidenced by a promissory note. (Carter and Craig, JJ., dissenting.)</p> <p>2. Same—Revenue act of 1812 determines what property is subject to taxation. Section 17 of the Revenue act of 1898, concerning the preparation of the schedule of taxable property, does not operate to exclude credits from taxation, since the act of 1898 does not purport to specify what property shall be assessed, but expressly leaves that matter to be governed by the general act of 1872.</p> <p>3. Same—effect of insolvency of payor of claim or demand. The insolvency or part insolvency of the payor of an unsecured claim or demand affects only the assessable value of the credit, and not its liability to assessment.</p>

<p>1. Appeals and errors—instructions need not be considered where verdict is treated as advisory. Instructions need not be considered on appeal, in a chancery case, where it appears from the record that the chancellor accepted the finding of the jury as advisory only, and rendered a decree upon a consideration of the evidence produced by the respective parties.</p> <p>2. Same—chancellor’s findings from oral testimony not lightly disturbed. The chancellor’s findings of fact, based upon the testimony of witnesses whom he saw and heard testify, will be accepted by the Supreme Court unless palpably erroneous.</p> <p>3. Subrogation—when a decree properly provides for subrogation. A decree setting aside a deed for want of mental capacity, and declaring the title to be in complainants subject to a mortgage given by the grantee upon the land in controversy and other tracts owned by him, may properly provide that in default of payment of the mortgage debt the complainants may pay the same and be subrogated to the rights and liens of the mortgagees.</p> <p>4. Lis pendens—creditors attaching pendente lite acquire no interest superior to that of the debtor. Creditors of a grantee who issue and levy attachments pending proceedings to set aside the deed to the grantee acquire no interest superior to that of the grantee, as against the successful complainants.</p>

<p>1. Dower—dower may be assigned by parol agreement. The right to dower being created by law, and not by the mere ascertainment and assignment thereof, the portion of the premises to be assigned to the dowress may be determined by parol agreement.</p> <p>2. Homestead—homestead estate may be assigned by parol. Homestead may be assigned by parol agreement, since the assignment does not create the right to the estate but merely determines the limits or boundaries thereof.</p> <p>3. Same—homestead may embrace the entire tract of land. Since the estate of homestead is measured by the value of the land such estate may embrace an entire tract of land, though it may be made up of different adjoining subdivisions.</p> <p>4. Statute op Frauds—assignment of dower and homestead creates no interest in land. Where all parties are competent to contract, dower and homestead may be assigned by parol and without proceedings in court; and the parol assignment of an entire farm for dower and homestead creates no interest in land, but merely establishes the limits of the estate created by law.</p> <p>5. Same—Statute of Frauds does not apply to executed contracts. The Statute of Frauds may be invoked to avoid executory contracts, but not contracts which have been carried into execution.</p>

William M. Farmer, Judge, presiding. The statement of the facts in this case, as made by the Appellate Court, is as follows: “This is an action of trespass, brought by appellee, against appellant, for unlawfully, negligently and willfully running its engine, with cars attached, against a car in which appellee was loading hogs, whereby he, in the exercise of ordinary care, was thrown from the car to the ground and severely injured. “The immediate facts are, that appellee was…

Abner Smith, Judge, presiding. This is a bill, filed on April 10,1899, by John C. O’Connell for himself and by Susan O’Connell, Mary Elizabeth O’Connell, and John Charles O’Connell as trustees under the will of John C. O’Connell, deceased, against Chicago Terminal Transfer Railroad Company, Lyons and Chicago Railroad Company, Chicago Crushed Stone Company, Dolese Bros. Company, John Dolese, Jr., Henry Dolese, Peter Dolese, William Dolese, Edward Doud, and village of Summit,…

<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>

John A. Gray, Judge, presiding. This is an action of ejectment, brought by the appellant against the appellees to obtain possession of five acres of land in Fulton county.

<p>1. Indictment—indictment for incest need not charge that the act was felonious. An indictment charging the accused with the crime of incest in the language of the statute is sufficient, though it fails to allege the act was felonious or knowingly committed, since the crime of incest was not a f.elony at common law and is indictable only by virtue of the statute.</p> <p>2. Criminal laiv—permitting unendorsed witnesses to testify in criminal case is discretionary. Witnesses whose names are not endorsed on the indictment may be permitted to testify, and the action of the court in so doing cannot be assigned for error.</p> <p>3. Trial—accused cannot assign error on the court’s refusal to inform^ prosecuting witness of privileges. Defendant in a criminal case cannot assign error on the court’s refusal to inform the prosecuting witness that she need not answer the questions propounded to her if such answers would criminate her.</p> <p>4. Same—what not an abuse of court’s discretion in allowing further evidence. The admission, after the case had been closed and the argument for the People made, of further evidence in the form of testimony of the prosecutrix that the accused, who was on trial for incest, had committed the offense with her on several occasions other than the one first testified to, is not an abuse of the court’s discretion, where the accused was permitted to be re-called and denied the testimony.</p> <p>5. Evidence—what competent in trial for incest. On a trial for the crime of incest it is competent for a daughter of the accused to testify as to her mother’s given name, that her father and mother always treated each other as though they were married, and as to the age of her father and the prosecutrix.</p> <p>6. Record—when record sufficiently shows that the accused was present when verdict was returned. The record sufficiently shows that accused was present when the verdict was returned, where it shows that accused entered his plea, that the trial was entered into and concluded the next day and that accused was present each day.</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. Elbridge Hanecy, Judge, presiding.</p>

<p>1. Corporations—what will not support allegations of plea of ultra vires. Allegations in a plea of ultra vires that defendant, a corporation, had executed the guaranty sued upon to accommodate the maker of the note and secure his own debt are not sustained by evidence that the guaranty was given to secure a note for purchase money on lots conveyed to an employee of the corporation, who took title in his name to accommodate the corporation, to which he afterwards transferred the property.</p> <p>2. Same—what will not authorize finding that corporation’s purchase of real estate was ultra vires. A finding that a corporation having power to purchase necessary real estate had exceeded its powers in purchasing five lots and guaranteeing the purchase money, is not authorized by evidence that the corporation’s attorney, when negotiating for the lots, said that but two of the lots were needed, which the owner refused to sell apart from the others.</p> <p>3. Same—when an act not authorized by board of directors is ratified. A guaranty of a note for a deferred payment on lots purchased by a corporation, executed in the name of the corporation by its president, may be enforced though not authorized by the board of directors, when ratified by the subsequent acts of the corporation in paying interest, requesting extension of time and retaining title to the property, although offering to re-convey part of it subject to a general mortgage on the corporate property.</p>

John C. Carver, Judge, presiding._ This is a condemnation proceeding, brought by the appellant to condemn a strip of land through a farm of the appellees, located about twenty-five miles south of Chicago and near Glenwood on the line of the Chicago and Eastern Illinois railroad. The strip, sought to be condemned, contains four acres of ground, and the farm of appellees, through which the strip ran, consisted of one hundred and sixty acres.

Farlin Q. Ball, Judge, presiding. The amended declaration in this case, omitting the caption, is in the words and figures as follows: “The said plaintiff, Thomas Edwin Allaire, an infant of tender age, by Ada A. Allaire, his next friend, and Philetus Smith, his attorney, by leave of the court first had, for amended declaration, complains of the said defendants, both bodies politic and corporate, and doing business at the city of Chicago, in said county, under and by virtue…

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

• Writ op Error to the Circuit Court of Lawrence county; the Hon. E. E. Newlin, Judge, presiding. This is a bill for partition and to confirm a parol partition of land, filed by the defendants in error against the plaintiffs in error. The bill also asks for the removal, as a cloud upon the title of the complainants therein, of a certain deed made by some of the heirs of Joseph Riley, deceased, to the plaintiff in error, Jacob W. Cassell.

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

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

<p>Evidence—when conviction of violation of Pharmacy act cannot be sustained. .A conviction for selling medicine in violation of section 2 of the Pharmacy act of 1895 cannot be sustained where the evidence fails to show that the accused was a member of the firm operating the store where the medicine was sold or was in any way connected with the offense.</p>

<p>Special assessments—estimate cannot be increased after public meeting. The engineer’s estimate of a proposed local improvement, which has been made a part of the resolution of the board of local improvements, cannot be increased by the board, on submitting the proposed ordinance and recommendation to the council, after the public meeting has been held pursuant to notice, at which the resolution of the board was approved; and an ordinance based on such increased estimate is invalid.</p>

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

<p>1. Bills and notes—when bank cannot rely for title on presumption arising from possession. When a note has been put into circulation fraudulently, the presumption in favor of the holder’s title is overcome, and it devolves upon a bank taking the note as collateral security to show that it took it in good faith, for value, before maturity and in the usual course of business. (Y. M. C. A. Gymnasium Co. v. Rockford Nat. Bank, 179 Ill. 599, distinguished.)</p> <p>2. Same—ichen an agreement does not operate as an extension of time. An agreement made before maturity of a note, which purports to extend time of payment, does not operate as an extension where the agreement is signed only by the maker of the note and is for a longer period than one year.</p>

John Barton Payne, Judge, presiding. This was an action brought by the John Crosse Clothing Company in the superior court of Cook county, to the February term, 1898, against appellant, Joseph A. Marshall, and one J. A. Whipple, to recover nine installments of rent, of $75 each, from May, 1897, to January, 1898, inclusive, under a written lease made in May, 1895.

Richard S. Tuthill, Judge, presiding. This is a petition, filed on March 20, 1899, by the appellee company for the purpose of condemning land belonging to the appellant, situated near Lakeside, a station on the Northwestern railroad in the village of Glencoe in Cook county about sixteen miles north from Chicago, and near the shore of Lake Michigan.

<p>Record—copy of ordinance attached to confirmation petition is part of the record. The statute requiring an assessment petition to recite the ordinance is complied with by attaching a copy of the ordinance to the petition and making it a part thereof, in which case it becomes a part of the record proper and is reviewable by the Supreme Court. (Lundberg v. City of Chicago, 183 Ill. 572, followed.)</p>

<p>1. Corporations—unused charter powers are important in determining nature of corporation. That a corporation has power, under its charter, to purchase, lease or erect telegraph and telephone lines is important in determining the nature of the corporation, even though such power has not yet been used.</p> <p>2. Same—the business of a telegraph company is impressed with public interest. The business of a telegraph or telephone company is impressed with a public interest to such an extent that no discrimination in the conduct of its business can be made against particular persons or corporations.</p> <p>3. Same—effect where private property is devoted to public use. The owner of property which is devoted to a use in which the public is interested, in effect grants to the public an interest in such use, and must to that extent submit to be controlled by the public for the common good, so long as such use is maintained.</p> <p>4. Same—Associated Press must furnish news for publication to all alike. The private corporation known as the Associated Press, by gathering news for the sole purpose of selling the same for publication, has devoted its property to a public use, and can make no discrimination against persons or corporations who wish to purchase, for purposes of publication, news and information which it was created to furnish.</p> <p>5. Same—obligation of corporation to serve public does not rest-upon its contracts. The obligation of a corporation charged with a public interest does not arise from nor rest upon contracts made by it in conducting its business, but grows out of the fact that the corporation is discharging a public duty, or a private duty which has been so conducted that the public has become interested therein.</p> <p>6. Monopoly—restrictions by Associated Press upon right of members to obtain other news are void. The restrictions attempted to be imposed by the Associated Press, through its contracts and by-laws, upon the right of members to purchase news from other agencies which such corporation may declare to be antagonistic, are null and void, as tending to create monopoly and restrict competition.</p> <p>7. Injunction—Associated Press may be enjoined from refusing to furnish its news reports. The Associated Press may be enjoined from refusing to furnish news reports to a member who has contracted therefor and who will suffer irreparable injury if deprived thereof, where the only ground for refusal is based upon the complainant’s violation of illegal provisions in his contract, and the by-laws of the corporation restricting him from purchasing news reports from antagonistic agencies.</p>

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

<p>1. Eminent domain—when admission of plat of contemplated improvement is not error. A plat representing a contemplated subdivision of land into blocks and lots is properly admitted in evidence upon the condemnation of a right of way, if its dffect is expressly limited to illustrating an adaptable use of the property, and not for the purpose of enhancing the owner’s damages by showing an actual platting of the land as indicated therein.</p> <p>2. Same—difficulty of access to part of tract cut off by right of way is an element of damage. That a portion of the tract of land intersected by a right of way will be to a large extent rendered inaccessible by reason of the construction and operation of the railroad is a proper element of damage.</p> <p>3. Same—whether way by user over private property exists is a collateral issue. Where the evidence shows that the only egress from or ingress to a portion of a tract intersected by the right of way is over private property, the petitioner is not entitled to submit to the jury the question whether there is not a way by user over such 'private property by reason of public travel thereover for twenty years. (Cartwright, O. J., and Boggs, J., dissenting.)</p> <p>4. Same—possible depreciation in rental value is not necessarily speculative damage. Possible depreciation in rental value of houses standing upon a tract of land intersected by a right of way, which will be occasioned by the operation of the railroad, is not necessarily an imaginary or speculative damage.</p>

<p>1. Contracts—a contract must be rescinded in toto or not at dll. A party cannot be permitted to affirm a contract of sale in part and rescind it as to the residue.</p> <p>2. Same—when right of rescission is waived. The right to rescind a contract for the exchange of properties upon the ground of the failure of one party to perform Ms agreement to cure certain defects in his title shown by Ms abstract, is waived where the other party, after entering upon the property and with full knowledge that the defects had not been cured, grants a perpetual right of way therein, thus putting it out of Ms power to return the property in the condition he found it.</p>

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

<p>1. Master and servant—exception to rule respecting exemption from, liability for acts of independent contractor. A street railway company engaged in relaying its rails by virtue of its charter and a special permit for that purpose from the city, is liable for injuries to its employees resulting from failure to guard against the consequences of piling paving stones in the street close to its tracks, even though the work is being done by an independent contractor.</p> <p>2. Same—master is required to furnish reasonably safe place for servant to work. The law requires a master to provide a reasonably safe place for the servant to work, and, failing to do so, he is answerable for resulting injuries unless the dangers are such as are reasonably incident to the servant’s employment, or of which the servant has equal knowledge or means of knowledge with the master, or where the danger is imminent.</p> <p>3. Appeals and errors—whether particular danger is an assumed risk is a question of fact. Whether or not a street car conductor assumed the risk occasioned by the piling of paving stones close to the track is a question settled in the Appellate Court.</p> <p>4. Same—when question of effect of servant’s knowledge of danger is one of fact. Whether a street car conductor had or should have had such knowledge of obstructions in the street at the place of his injury as charged him with contributory negligence is a question of fact, if there is any evidence tending to show the exercise of due care by him, and his conduct is not such as would be considered by all reasonable men as a careless disregard for his safety.</p> <p>5. Same—question of proximate cause is one of fact. Where there is evidence tending to show that the particular negligence charged was the proximate cause of the injury the question is one of fact, upon which the Appellate Court’s judgment is final.</p>

Information for disbarment. This is a proceeding to disbar the respondent, Moses Salomon, for misconduct in his office as an attorney at law of the State of Illinois.

<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. Joseph E. Gary, Judge, presiding.</p>

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

Farlin Q. Ball, Judge, presiding. This was a bill in equity brought by the appellants, against Lydia A. Griffin, the appellee, for the purpose of vacating the title to certain property in Chicago held by her under deed from her late husband, James F. Griffin. In the bill and amended bill the complainants allege, in substance, the following facts: James F. Griffin died childless on April 28, 1899. His widow, the defendant, survived him.

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Writ op Error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.</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. H. M. Trimble, Judge, presiding.</p>

<p>p Leases—when time for giving notice to renew lease is material. The time within which notice by the lessee to renew his lease must be given is material, where the option is purely a privilege given to the lessee without any corresponding right or privilege on the part of the lessor.</p> <p>2. Equity—if time is of the essence of contract equity must so regard it. If the parties to a contract intend that the time for exercising an option shall be of the essence of the contract, equity cannot relieve against the mere negligence of one party in failing to exercise the option within the stipulated time.</p> <p>3. Same—equity must regard time as material if right and justice require it. Equity must regard the time of performance expressed in a contract as material if right and justice demand it in the individual case, even though particular words declaring time to be of the essence of the contract are not used.</p>

<p>1. Elections—contestant has the right to have the ballots opened and errors of the,judges corrected.. Under section 27 of the Ballot law the party contesting an election has the right to have ballots opened and the errors of the judges in counting and rejecting ballots corrected by the body trying the contest.</p> <p>2. Same—when returns are not conclusive though the ballots are under suspicion. Returns from particular precincts are discredited by evidence showing that the election was loosely conducted in such precincts and that the counting of the ballots was in some respects unsatisfactory, and in such case the returns are not conclusive, even though the ballots may be objects of suspicion by reason of want of proper preservation.</p> <p>3. Same—effect where the evidence discredits both ballots and returns. Where the evidence tends to discredit both the ballots and the returns of an election, the question what was the true result of the election must be determined by a consideration of both, and of all the attending circumstances.</p> <p>4. Ballots—effect where crosses are made at the head of more than one ticket. Where two, only, of the five tickets printed upon a ballot have a candidate for a certain office, a ballot marked with crosses in the circle at the head of each of such two tickets cannot be counted for either candidate; but where the crosses marked are in the circle at the head of one of the tickets having a candidate for. such office and one or more which have not, the ballot may be counted for such candidate.</p> <p>5. Same—effect where other names on the ticket are erased. Where a cross is marked in the circle at the head of a ticket, but the name of some candidate, or the printed matter at the bottom, is erased, or the name of one of two candidates for the General Assembly is erased and his share of the vote given to the other, th.e ballot may be counted for the candidates whose names are not erased.</p> <p>6. Same—effect of marking square opposite name of candidate on other ticket. A ballot marked with a cross in the circle at the head of one ticket but with a square opposite the name of a candidate on another ticket should be counted for the candidate so marked.</p> <p>7. Same—effect of failure of ballot to show initials of judge. Ballots not having the initials of the judges of election endorsed thereon cannot be counted, in absence of evidence tending to show fraud or mistake upon the part of the judges, since the presumption is that the judges of election discharged their duty.</p> <p>8. Same—ballot having name of voter on back cannot be counted. The name of the voter upon the back of a ballot is a distinguishing mark and the ballot cannot be counted.</p> <p>9. Same—ballots bearing identification marks cannot be counted. A ballot on which the name of a certain person for an office not to be filled at the election is written bears a distinguishing mark and cannot be counted; so, also, with a ballot having a row of dots carefully made around the inside of circle in which cross is marked.</p>

James A. Creighton, Judge, presiding. On March 9, 1874, Adelaide Elder sold and conveyed to Elvira W. Spaulding, for $10,000, block 2 of H. L. Stewart’s subdivision in Chicago, and received as part payment three promissory notes, for $2666.66 each, drawing eight per cent annual interest, executed by Richard M. Poucher and payable to the order of Edward F. Sweet, trustee.

Clair county; the Hon. B. R Burroughs, Judge, presiding. This is an action of ejectment, brought December 30, 1890, by the appellee, Mary Soucy, against the appellant, Sarah Woods, and her husband, Lewis Woods, for the recovery of lots 1 and 2 of a subdivision of lot 3 of the Cahokia commons in St. Clair county. Lewis Woods pleaded disclaiming possession, and the suit was dismissed as to him. The appellant, Sarah Woods, pleaded the general issue.

Writ op Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the County Court of St. Clair county; the Hon. Frank Perrin, Judge, presiding.

<p>1. Wills—wife of legatee not a competent subscribing witness. The wife of a legatee is not a competent witness to prove the execution of a will, notwithstanding the will, if established, would be against her husband’s interest as heir-at-law.</p> <p>2. Same—'“attesting witnesses” must be “subscribing witnesses.” Section 2 of the act on wills, requiring a will to be attested by two or more credible witnesses, contemplates that the attesting witnesses be competent, subscribing witnesses.</p> <p>3. Same—one not a subscribing witness cannot testify to the execution of will. On appeal to the circuit court from an order denying probate because of the incompetency of one of the subscribing witnesses, a third party who was present at the execution and attestation of the will but who is not a subscribing witness cannot testify as to such facts.</p> <p>4. Same—probate should be refused where only one competent witness signs. Probate of a will is properly denied where one of the two subscribing witnesses required by the statute was incompetent to act as such a witness.</p>

<p>1. Practice—one joint defendant may appeal and use name of other. Under section 70 of the Practice act one joint defendant may appeal from a decree which is a unit against both and use the name of the other defendant, and the case will be determined the same as if both had joined.</p> <p>2. Same—effect of reversal for improper division of taxes and costs between defendants. Where only one joint defendant appeals from a decree setting aside a tax deed, the reversal of the decree upon the ground ¡that part of the taxes and costs deposited for one defendant should have been decreed to the other authorizes the complainant to withdraw such portion and re-deposit for the benefit of the appellant, without thereby subjecting his bill to dismissal on motion of the other defendant, where the amount remaining to the latter’s credit covers his taxes and costs.</p>

Marcus Kavanagh, Judge, presiding. The Hon. John Barton Payne presided at the original hearing of this cause in the superior court of Cook county, and the temporary injunction was by him dissolved and the bill dismissed for want of equity. Such original decree dismissing the bill was, on appeal, reversed by the Branch Appellate Court, with directions, (79 Ill.

<p>Appeal from the Circuit Court of Fulton county; the Hon. G. W. Thompson, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. John C. Broady, Judge, presiding.</p>

<p>1. Municipal corporations—section 1 of act relating to disconnecting territory, construed. Section 1 of the act of 1879, relating to disconnecting territory from cities and villages, (Laws of 1879, p. 77,) which provides that the council or board of trustees “may,” by ordinance, disconnect the territory described in the petition does not vest such council or board with discretion to refuse to pass an ordinance, if the petition is legally sufficient. (CARTER, J., and Cartwright, C. J., dissenting.)</p> <p>2. Same—mandamus lies to compel action under petition to disconnect territory. Upon the filing of a petition to disconnect territory from a city or village, under the act of 1879, the only questions for the council or board of trustees to determine are whether the territory is located and the petition signed as required by the statute, and mandamus will lie to compel an investigation of such facts, and the passage of an ordinance if they are found to exist. (Carter, J., and Cartwright, C. J., dissenting.)</p>

<p>1. Receivers—receiver represents not only corporation but creditors. A receiver appointed to wind up the affairs of a corporation represents not only the corporation but its creditors, and in the latter capacity he is invested with powers and may do acts that could not be done by a mere representative of the corporation.</p> <p>2. Same—when the receiver may open judgment against a corporation. A receiver appointed, under the statute, to wind up the affairs, of a corporation, may, at the same term at which a judgment against the corporation, obtained by collusion, was entered, have such judgment opened and be allowed to defend, where the effect of such judgment is to diminish the estate in his hands or which may properly come to him and prevent the proper disposition of the estate to those equitably entitled thereto.</p>