Volume 185 — Illinois Reports

<p>1. Eminent domain—section 6 of the Eminent Domain act construed. Section 6 of the Eminent Domain act, (Rev. Stat. 1874, p. 476,) providing for the calling of a jury of freeholders to assess damages in condemnation, applies only where the petition is heard in vacation, and not at a regular term.</p> <p>2. Same—juror in condemnation case heard in term time need not be a freeholder. Where a condemnation petition is filed in term time, with a summons returnable on the first day of the succeeding term, and no order is entered fixing a day for hearing, the case may be tried at the succeeding term by a jury from the regular panel, who need not be freeholders.</p> <p>3. Same—increased cost of insurance is an element of damage. The increase in the cost of insuring buildings upon property not actually taken for right of way by reason of construction and operation of the railroad may be shown by expert witnesses in condemnation.</p> <p>4. Same—increased danger from fire which lessens value of property may be shown. Increased danger from fire by reason of the operation of the railroad, which lessens the salable value of the property, or the value of the use to which the property is put or to which it is adapted, is an element of damage in condemnation.</p>

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

<p>1. Constitutional law—prohibition against special laws in enumerated cases is absolute. Under the last clause of section 22 of article 4 of the constitution, providing that “in all other cases where a general law can be made applicable no special law shall be passed,” the legislature may determine whether the specified condition exists, but as to the enumerated subjects in the preceding clauses the prohibition against special legislation is absolute.</p> <p>2. Same—section 49 of Revenue act of 1898 is a special law upon a prohibited subject. The provision of section 49 of the Revenue act of 1898, which attempts to limit the aggregate amount of tax levies which may be certified to the county clerk by municipalities in counties containing 125,000 or more inhabitants to five per centum, is in violation of that clause of section 22 of article 4 of the constitution which absolutely prohibits the passage of any special law “incorporating cities, towns or villages or changing or amending the charter of any town, city or village.”</p> <p>3. Same—whether law upon particular subject is against constitutional prohibition is for the court. The question whether a particular law upon a subject enumerated in section 22 of article 4 of the constitution is within the prohibition against the passage of special laws upon such subject is for the court, and not for the legislature.</p> <p>4. Same—Cook county cannot be singled out for special law upon enumerated subjects. Within the subjects enumerated in section 22 of article 4 of the constitution Cook county cannot be singled out for legislation upon the ground that its circumstances and conditions are different from other counties, nor can the city of Chicago be made the subject of special legislation upon such subjects.</p> <p>5. Same—legislature is not the final interpreter of constitutional limitation on legislation. The General Assembly, upon which an absolute" limitation on particular subjects of legislation is imposed, is not the final judge of such limitation, but when the question arises in a judicial proceeding the court must compare the particular act with the fundamental law, and if found to be in conflict the limitation must be enforced.</p> <p>6. Same—section 49 of the Revenue act affects special charter of town of Cicero. The restriction limiting the rate of taxation, contained in section 49 of the Revenue act of 1898, is not only an attempted amendment- of the general Incorporation act as to cities in Cook county, but also of the special charter of the town of Cicero, which is within the terms and the necessary operation of such law.</p> <p>7. Same—reasons for enacting law do not aid its invalidity. The reasons which may have operated upon the minds of legislators when enacting a law furnish no ground for upholding such law if it is in violation of a constitutional provision.</p> <p>8. Taxes—taxes for educational and for building purposes should be levied separately. Items for educational purposes which are improperly included in the levy for building purposes cannot be held valid, even though the tax levied for educational purposes does not equal the amount authorized by law, since the funds for the two purposes cannot be commingled and taxes levied for one purpose cannot be applied to the other.</p> <p>9. Same—effect where court rejects proper building items in awarding mandamus. Where, in mandamus proceedings to compel the extension of taxes, the levy for building purposes includes items for educational purposes but furnishes no means of showing what portion of the levy is legal, the relator cannot compel the extension of any portion of such tax, and hence cannot complain that, in order to award the writ, the court, in ascertaining the amount legally assessed for building purposes by inspecting the records of the board of education, excluded certain items which might properly have been allowed for building purposes.</p>

<p>1. Voluntary assignment—when proceeding may he lawfully discontinued. A voluntary assignment may be discontinued where the requirements of the statute have been followed without fraud, so that all creditors not consenting to such discontinuance may have precisely the same rights against the insolvent and his estate which they had at the time of the assignment.</p> <p>2. Same—when plan of discontinuance is not fraudulent. A discontinuance of assignment proceedings brought about by a promise to pay consenting creditors fifty per cent of their claims is not fraudulent, where the property is not pledged or encumbered to pay consenting or favored creditors, but is returned to assignor, except that administered, subject to the same rights possessed by creditors at the time of the assignment.</p>

<p>1. Corporations—corporation can only exercise express or implied potcers. A corporation can do only those acts which are within the scope of its charter, and if an act is not originally within the express or necessarily implied powers of the corporation it is void, and no subsequent act can make it valid by way of estoppel.</p> <p>2. Same—brewing company has no express or implied power to become surety on bonds of third parties. A corporation organized to manufacture and sell beer, ale and porter and carry on a general brewing business, has no implied or express power to become surety on an appeal bond in a forcible detainer suit between third parties, where it is not shown that such act was reasonably necessary to accomplish the end for which the corporation was formed.</p> <p>3. Appeals and errors—to make Appellate Court’s judgment conclusive of facts there must be evidence tending to prove them. Whether there is any evidence tending to establish that the execution of an appeal bond by a corporation was reasonably necessary to accomplish its corporate purpose is open to review in the Supreme Court as a question of law, under the trial court’s refusal to instruct for the defendant in a suit on the bond, even though the Appellate Court has affirmed.</p>

Abner Smith, Judge, presiding. In a bill and supplemental or amended bill filed by appellee January 14, 1898, it is alleged that appellee, on January 5, 1898, recovered a judgment against Adolph Gaul for the sum of $1440.51, which was for drugs sold by complainant to Gaul; that at said date it sued out execution on the said judgment and delivered the same to the sheriff, who made a demand on Gaul, notifying him to file a schedule, and returned the execution January 12, 1898,…

1 Writ of Error to the Circuit Court of Effingham county; the Hon. Samuel L. Dwight, Judge, presiding. This is an action of ejectment, begun on August 6, 1895, by defendants in error, Robert Scully and Rachel Lilly, against plaintiffs in error, Henry B. Kepley and James Phifer, to recover the possession of lots 9 and 10, in block 2, in the western addition to the town, now city, of Effingham, in Effingham county.

<p>1. Practice—section 33 of Practice act construed. The affidavit required by section 33 of the Practice act (Rev. Stat. 1874, p. 779,) in order to put the plaintiff upon proof of the execution of a written instrument must be made by the defendant charged with the execution of the instrument, and cannot be made by his agent.</p> <p>2. Same—proviso to section 33 does not sanction affidavit by stranger to record. The proviso to section 33 of the Practice act, permitting a denial of the execution of a written instrument on information or belief, where the party making the denial is not the one charged with the execution of the instrument, does not authorize an affidavit of denial by a stranger to the record.</p> <p>3. Banks—when bank is not an innocent purchaser of note. A bank does not become an innocent purchaser of a negotiable note, so as to entitle it to protection against infirmities of the paper, by merely discounting the same for a person not indebted to it and crediting him with the proceeds by way of deposit, as such deposit, so long as it is not withdrawn, is subject to equities of prior parties.</p> <p>4. Evidence—what makes a prima facie case in a suit on note. The introduction in evidence, by the plaintiff, of the notes sued upon, endorsed in blank by the payee, is prima facie evidence that the plaintiff has acquired them in good faith, for value, in the usual course of business, before maturity and without notice of defenses; and such proof cannot be overcome by showing merely that the original transaction between the plaintiff and the payee did not, of itself, amount to a purchase of the notes.</p> <p>5. Same—what must be shown to cut off rights of bank as an innocent purchaser. Defendants to a suit on a note, brought by an endorsee bank, in order to sustain their claim that the bank is not entitled to protection as an innocent purchaser, must show, not only that the bank merely credited the proceeds of the discounted note by way of deposit in favor of the payee and that the payee was not then indebted to the bank, but must also prove that the amount due upon such deposit, if any, had not been drawn out at the time of the trial, there being no claim of an earlier notice to the bank of such defense. (Magruder, J., dissenting.)</p>

Writ of Error to the Circuit Court of Cook county; the Hon. Charles G. Neeley, Judge, presiding.

<p>1. Public improvements—in cities of over $5,000, board need not follow improvement petition. In cities of over 25,000 inhabitants the board of local improvements may recommend an ordinance calling for a brick pavement though the property owners’ petition is for a cedar-block pavement, since, under section 7 of the Improvement act of 1897, the board may originate or determine the character of an. improvement whether a petition therefor is presented or not.</p> <p>2. Same—when description of termini of improvement is not uncertain. An ordinance for a pavement on a certain street from the “south line of the street railway right of way on West Harrison street to the north line of the street railway right of way on West Twelfth street” is not uncertain in its description of the termini, where the street car tracks are laid in such streets, and the ordinances under which they were laid, and which were introduced in evidence by the objectors, specify the width of the strip which the street railway company shall keep in repair.</p>

<p>Carriers—carrier should use highest degree of care toward passengers. An instruction that it is the duty of a street railroad company to use the highest degree of care, consistent with the practical operation of the road, for the safety of passengers, is proper, and will' not be held as misleading the jury into believing that passengers are not required to usé ordinary care, where other instructions correctly present that question in plain terms.</p>

Writ of Error to the Circuit Court of Fulton county; the Hon. John A. Gray, Judge, presiding. This was a bill in chancery filed by the defendants in error, as the widow and devisees of Inmon Blackaby, deceased, against John Blackaby, plaintiff in error, for the partition of certain premises and for an accounting of the rents, issues and profits therefrom.

<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. H. VanSellar, Judge, presiding.</p>

<p>1. Deeds—delivery is a question of intent. The mere placing of a deed in the hands of the grantee does not establish a valid delivery thereof, irrespective of the intent of the parties.</p> <p>2. The court reviews the evidence in this case, and sustains the finding of the chancellor that the proof failed to establish a delivery of the deed in question to complainant or the payment by him of consideration for the conveyance.</p>

Original petition for mandamus. This is a petition filed in this court, praying that a writ of mandamus issue, commanding the respondent, Williamson, county clerk of the county of Knox, in this State, to receive and file in his official capacity, as such clerk, a certain certificate of the nomination of the relator, Dickerson, as a candidate for the office of clerk of the circuit court of said county of Knox, to be voted for at the general election to be held in said county…

Axel Chytraus, Judge, presiding. The State’s attorney of Cook county filed in the superior'court an information in the nature of a quo… Held: at the time of the filing of this information, and executes, without any warrant or right whatsoever, the office of justice of the peace for the town of Lake View, in Cook county; that he has usurped, and still usurps, the rights and duties of said office, to the prejudice of the People, etc.; that on June 13,1891, said Kaufman was…

Philip Stein, Judge, presiding. This is an action, commenced on March 21, 1895, by the appellants, doing business in New York, against the appellees, composing the firm of Schepflin, Schultz & Co., doing business in New Jersey, to recover the sum of $3464.73. The suit was begun in the superior court of Cook county by a writ of attachment, alleging, as the ground of attachment, the non-residence of appellees; and Henry W. King & Co. were served as garnishees.

Writ of Error to the Criminal Court of Cook county; the Hon. Jonas Hutchinson, Judge, presiding. The plaintiff in error was prosecuted and convicted for violation of an act of the legislature of Illinois, entitled “An act to prohibit the use of the national flag or emblem for any commercial purposes or as an advertising medium,” approved April 22, 1899, in force July 1, 1899. (Laws of Ill. 1899, p. 234). The following is a copy of the act in question: “Sec. 1.

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

<p>1. Special assessments—new assessment ordinance for completed improvement need not give detailed description. An ordinance passed under section 20 of the Park act of 1895, (Laws of 1895, p. 289,) authorizing a new assessment to be levied on property benefited by an improvement already completed under an assessment ordinance which has been held invalid, need only describe the locality of the improvement so as to identify it with the completed improvement.</p> <p>2. Same—effect wliere estimate mis-states date of ordinance. Where the preamble to the commissioners’ estimate of cost mis-states the date of the ordinance, but the date is correctly averred in the assessment petition, truth of such averment is admitted by default; nor can an objection based on such mis-statement b.e first raised on appeal.</p> <p>3. Same—reversal of an order dismissing petition leaves prior judgment by default in force. The reversal of an order of the county court dismissing an assessment petition leaves in full force judgments of confirmation entered by default previous to the order of dismissal, and no nunc pro tunc order re-confirming such default is necessary.</p>

<p>Writ of Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochrane, Judge, presiding.</p>

Farlin Q. Ball, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming an order allowing temporary alimony and suit money to appellee, pending a suit for separate maintenance by her against appellant, her husband. The original bill was filed October 24, 1898, and an amended bill November 17, 1898.

Owen P. Thompson, Judge, presiding. This is a petition for a mechanic’s lien, filed by the appellee, John I. Rinaker, Jr., an architect, against the appellant, Clarkson W. Freeman, to enforce a mechanic’s lien for the services of appellee as such architect upon a lot owned by the appellant, situated in the city of Springfield, and upon which the appellant proposed to build a hotel. Appellee prepared plans for a hotel building to be constructed upon the said property.

John Barton Payne, Judge, presiding. This is a bill of interpleader, filed on October 7, 1897, by the High Court o.f the Independent Order of- Foresters of the State of Illinois, one of the appellees herein, for the purpose of determining the rightful claimant to an insurance fund of $1000.00, due from said order upon the death of one William G. Turner.

<p>1. Appeals and errors —Appellate Court may assess damages for prosecuting appeal for delay. Under section 23 of the act on costs, when read in connection with section 10 of the Appellate Court act, the Appellate Court may assess damages against a party who has prosecuted an appeal or writ of error merely for delay.</p> <p>2. Same—Supreme Court will not disturb, unabused exercise of Appellate Court’s discretion. The Supreme Court will not review the exercise of the Appellate Court’s discretionary power in assessing damages for prosecuting an appeal for delay, in the absence of any showing that such power has been abused.</p>

John Gibbons, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment of the circuit court of Cook county, wherein the circuit court, upon the petition of Milo H. Wagar, the appellee, for a writ of certiorari as at common law, entered a judgment that “the record and proceedings brought before it in the case of the People of the State of Illinois against No. 265 Fifth Avenue, Chicago, Cook county, Illinois, before Randall H. White, a…

<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. E. F. Dunne, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Greene county; the Hon. Owen P. Thompson, Judge, presiding.</p>

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

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Lake county; the Hon. C. H. Donnelly, Judge, presiding. This is an action of assumpsit brought by defendant in error against plaintiff in error.

Writ of 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. E. F. Dunne, Judge, presiding. In the summer of 1888 the firm of H. E. Mallory & Bro., composed at the time of Lucy Ann Mallory and DeWitt C. Mallory, became indebted to the Drovers’ National Bank of Chicago.

<p>1. Jurisdiction—when findings of court as to jurisdictional facts are conclusive against collateral attack. The findings of a court of general jurisdiction as to jurisdictional facts necessary to constitute service by publication are conclusive against collateral attack, unless such findings are irreconcilable with facts otherwise disclosed by the record.</p> <p>2. Same—it is presumed evidence was heard to support the findings of jurisdictional facts. In aid of findings of jurisdictional facts and of any apparent conflict in the record it will be presumed, in a collateral proceeding, that evidence was heard in the court below to support such findings, in cases where it would be competent to receive such evidence.</p> <p>3. Same—effect of failure of foreign notary’s certificate to show authority to administer oaths. A decree canceling a mortgage as a cloud on title is not open to collateral attack because the certificate of the foreign notary to the affidavit of defendant’s non-residence fails to state that he had authority to administer oaths, where the court found and recited in the decree that it appeared from the affidavit that defendant was a non-resident.</p> <p>4. Same—when evidence on which court acted in holding affidavit good need not he preserved. It is not.necessary, upon collateral attack, that the evidence upon which the court acted in judicially determining that a certain instrument in writing was an affidavit within the legal meaning of that word, should be preserved in the record by bill of exceptions.</p> <p>5. Same—error in exercising jurisdiction is not basis for collateral attack. Where a court has jurisdiction of a particular class of cases it has power to determine whether the case disclosed by the bill entitles the complainant to relief of that character; and that the , court falls into error in exercising its jurisdiction cannot be urged in a collateral proceeding to impeach the decree.</p> <p>6. Same—effect of failure of hill to remove cloud to allege possession or vacancy. That a bill to cancel a mortgage as a cloud on title fails to allege that the complainant is in possession or that the property is vacant and unoccupied is not ground for impeaching the decree in a collateral proceeding.</p>

O. H. Gilmore, Judge, presiding. This is an appeal from a judgment of confirmation-of a special assessment entered by the county court of Cook county, in favor of the city of Chicago and against lots 1, 2, 3, 4, 5, 10 and 11 and the east half of lot 12, in the subdivision-of block 55, except the south-east quarter, in school section addition to Chicago, the property of Hugh McFarlane; and lot 4, (except street,) and that part of lot 3 lying west of Canal street, in block 35,…

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

Theodore Brentano, Judge, presiding. This was a proceeding in the superior court of Cook county to foreclose a trust deed in the nature of a mortgage. The original bill was filed by the appellee Belle E. Alexander, the holder of the notes secured by the trust deed sought to be foreclosed, against the appellant, who is the grantee of the premises, and others.

<p>Appeal from the County Court of Cass county; the Hon. J. F. Robinson, Judge, presiding.</p>

R. W. Clifford, Judge, presiding. This was a proceeding instituted in the circuit court of Cook county by Gustav Adolph Koeffler to obtain a construction of the will of Gustav A. Koeffler, deceased, the father of the petitioner. The will was written by the 'testator himself, and was as follows: “My Last Will. “I, the undersigned, am an American citizen.

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

<p>Appeals and errors—when appeal should he taken to the Appellate Court. An appeal from a decree in a creditor’s bill proceeding should be taken to the Appellate Court, where the only questions involved are the subordination of complainant’s lien on the tracts of land covered by the fraudulent deeds to the homestead and dower rights of the grantor’s wife, the postponement of such lien, the finding of the existence of a resulting trust in favor of the grant- or’s wife, and the dismissal of complainant’s bill as to certain tracts of land not covered by the fraudulent deeds.</p>

The appellant company, on the 9th day of June, 1899, filed its complaint with the supervisor of assessments of Hancock county, Illinois, in which it alleged, in substance, certain property owned by it, consisting of that portion of the Keokuk and Hamilton bridge over the Mississippi river which is situated in Illinois, of the length, as it asserted, of 707 feet, and a road or dyke leading to said bridge, had been fraudulently over-valued for assessment for the year 1899 by…

<p>1. Special assessments—when the location of sewer out-fall is sufficiently shown. An ordinance providing for the construction of a sewer westward from its out-fall “at the north branch of the Chicago river” will be taken as referring to the natural bed of such stream, and not to an imaginary one where there is no channel or water, created by an ordinance fixing the “north branch” at a point some four hundred feet east of its actual location.</p> <p>2. Same—insufficiency of sewer outlet does not invalidate ordinance. If a sewer ordinance on its face provides an outlet, objections to the sufficiency or nature of such outlet do not affect the validity of the ordinance or the right to levy the assessment.</p> <p>3. Same—if dimensions of wall are given, size of each stone need not he stated. If an ordinance specifies the length, height and top and bottom thickness of a rough-stone facing for strengthening a sewer out-fall, it is not necessary that the size of each stone and its kind and quality should be given.</p> <p>4. Same—when ordinance need not specify height of man-holes. Where an ordinance gives the dimensions and grade of a sewer throughout its entire length the height of the man-holes is determined by the difference in elevation between the sewer and the surface of the ground, and hence need not be specified.</p> <p>5. Same—unsubdivided land cannot be assessed in character of lots. A city cannot dictate to a land owner how he shall subdivide his land, nor can unsubdivided land be assessed in the character of lots.</p> <p>6. Same—whenhouse connection provision of sewer ordinance is unreasonable. A sewer ordinance providing for house connections every twenty feet on both sides of the sewer is unreasonable in that respect, where the territory drained is unsubdivided land or is held in large tracts used mostly as hay land, and the whole territory is practically vacant, there being neither houses nor streets in most of the district.</p> <p>7. Same—when non-abutting owners cannot be assessed for a sewer. Property not abutting upon a sewer cannot be assessed for its cost unless there is a provision for draining the district in which it is located into the sewer, or the owner of the property is assured that he will have the benefits of the sewer.</p> <p>8. Same— county court's, apportionment of public and private cost is conclusive. Section 47 of the Improvement act of 1897, (Laws of 1897, p. 119,) providing that the determination of the county court as to the correctness of the distribution of the cost of an improvement between private owners and the public shall not be subject to review on appeal or error, is not unconstitutional, since right of appeal from the conclusion of the county court on such question is within the legislative control.</p>

<p>1. Mandamus—courts exercise judicial discretion in awarding or denying the writ. In awarding or denying writs of mandamus courts exercise judicial discretion, and are governed by what seems necessary and proper to be done in the particular instance for the attainment of justice.</p> <p>2. Same—mandamus will lie to compel county hoard to discharge duties enjoined by statute. While the writ of mandamus cannot be invoked to control a county board in any matter in which its judgment and discretion are involved, it may be availed of to compel the discharge of duties specifically enjoined by statute.</p> <p>3. County boards—power of county hoard to re-divide election district under order of court. If a county board fails to act, at its July or August meeting, in the matter of re-dividing election districts, as provided in the act of 1899, amending section 30 of the Election acts of 1872 and 1895, (Laws of 1899, p. 209,) such board may take proper action, under authority of an order of court, at some other meeting, irrespective of its authority to apt of its own motion at such time.</p> <p>4. Same—county hoard must he governed by statute as to the number of voters in election district. The act of 1899 (Laws of 1899, p. 209,) has fixed upon the number of votes cast at the preceding November election as the basis for re-dividing the election districts, and the county board cannot substitute its own judgment as to the number of votes likely to be cast at future elections.</p> <p>5. Constitutional law—the proviso concerning polling places at soldiers' and sailors' homes is constitutional. The proviso to the act of 1899, (Laws of 1899, p. 210,) requiring county boards in counties where any State soldiers’ and sailors’ home is located to establish polling places, easy of access, on the grounds and within the enclosure where such home is located, is not in violation of section 22 of article 4 of the constitution, concerning special legislation.</p> <p>6. Elections—act of 1899, concerning polling places in soldiers' and sailors' homes, construed. The general language of the act of 1899, (Laws of 1899, p. 210,) requiring polling places to be situated on a highway or public street, is qualified by and must give way to the second proviso to such act, which requires voting places for legal voters in soldiers’ and sailors’ homes to be established in convenient places upon the grounds and within the enclosures of such homes.</p> <p>7. Same—right of persons not inmates to vote at polling places in soldiers' homes. If, in re-dividing the election districts and providing polling places at soldiers’ and sailors’ homes, an election district shall contain more territory than is covered by any such home, the legal voters of such territory may resort to the voting place provided, without hindrance from those in charge of such home.</p>

<p>Appeal from the Circuit Court of Henderson county; the Hon. John A. Gray, Judge, presiding.</p>

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

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

T. M. Shaw, Judge, presiding. Winslow Evans, and Covey & Covey, for appellant: If a party has no title at the time he dedicates the property, he and his grantees are still estopped from denying the fact of dedication. Napa v. Holland, 87 Cal. 84. The acknowledgment and. recording of a plat has all the force and effect of a grant. It operates by way of estoppel, and concludes the former owner, and all claiming through or under him, from asserting title.

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

<p>Special assessments—insufficiency of improvement petition cannot he shown on application for sale. Extrinsic evidence to show that an improvement petition prima facie sufficient did not have the requisite number of signers cannot be first received on application for judgment of sale. (Pipher v. People, 183 Ill. 436, and Leitch v. People, id. 569, followed.)</p>

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

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

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

Writ op Error to 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. This was a creditor’s bill filed by the Merchants’ National Bank of Peoria on April 22, 1892, in the circuit court of Peoria county, asking for discovery and relief against George W. Lyon, Aaron Lyon, (now deceased,) Weston Arnold and Theodore Miller.

Orrin N. Carter, Judge, presiding. This is an appeal from a judgment of the county court, rendered on October 12,1899, confirming a special assessment levied for the purpose of curbing, grading, and paving Clybourn avenue from the north curb line of Division street to the north line of North avenue in the city of Chicago.

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

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

<p>Appeal from the Circuit Court of Fulton county; the Hon. John J. Glenn, Judge, presiding.</p>

John M. McNabb, Judge, presiding. This is a proceeding instituted in the county court for the trial of the right of property in certain personal property and chattels under the “act providing for the trial of right of property,” etc., approved April 9, 1875, in force July 1, 1875. (Hurd’s Stat. 1897, p. 1614). The appellees, William F. Thomas and Mattie A. Thomas, obtained a judgment against David Sellers and Isabel Sellers.

George W. Brown, Judge, presiding. Appellee recovered a judgment in the circuit court, against appellants, for $2000, which judgment was affirmed by the Appellate Court, and appellants now present the record to this court. . The action was case.

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

<p>1. Equity— right of equity to enforce execution sale where homestead was not set off. If the purchaser of property resorts to equity to set aside an execution sale and sheriff’s deed upon the ground that the property was exempt as a homestead, the court, if the property is divisible, may confirm sale as to so much as exceeds $1000 value.</p> <p>2. Homestead—homestead extends to entire tract though householder’s interest in different parts is not the same. The estate of homestead to the extent of $1000 extends to the whole tract of land enclosed and occupied as a residence, even though the householder owns the fee to one part of the land and has an interest in the other part under a contract of sale.</p> <p>3. Same—how value of a homestead is determined where householder’s interests are not the same. Where a householder in possession of an enclosed tract of land owns one part in fee, subject to encumbrances, and has an interest in the other part under a contract of purchase, his homestead estate in the former part is the difference between its value and the encumbrances, and in the latter is the difference between its value and the amount due on the contract of purchase.</p> <p>4. Same—judgment debtor may convey homestead free from lien of the judgment. If the homestead estate of a judgment debtor is not worth more than $1000 he has the right to convey the same, and the purchaser takes free from the lien of the judgment.</p> <p>5. Same—burden of proof where the execution lien is asserted against homestead. Where an estate of homestead has not been set off or its value tendered when the property was sold on execution, one asserting the lien of the execution against a grantee of the-judgment debtor has the burden of proving that the estate conveyed was worth more than $1000.</p> <p>6. Same—purchaser's rights where execution sale is confirmed as to part of property. Where a second mortgagee, who has purchased the property, seeks to set aside an execution sale under a judgment against the mortgagor, which sale was void at law because the homestead was not set off, but the court confirms the sale ás to part of the property exceeding the value of $1000 and sets the same off to the defendant, the complainant is entitled to the amount of his own mortgage upon such part and the amount advanced by him to raise the first mortgage, and to the value of improvements placed by him upon such part in ignorance of the sale.</p>

<p>1. Mines—whether top of shaft is at surface of ground or above is a question for the jury. Whether the top of the shaft of a particular miue is at the surface of the ground or has been established at a point above the surface by the erection of structures and by the manner in which the mine is operated is a question for the jury, under the evidence.</p> <p>2. Same—intentional omission of statutory duty by mine owner is willful. A mine owner is charged with knowledge of the provisions of the law concerning the safety of miners, and his' intentional omission of a statutory duty, such as by substituting some plan of his own, is a “willful” omission, within the meaning of that word as employed-in the act on mines.</p> <p>3. Negligence—in action for omission of statutory duty contributory negligence cannot be invoiced. In an action for the death of a miner, alleged to have resulted from defendant’s willful omission to furnish a sufficient light at the top of the shaft, as required by law, the contributory negligence of the deceased cannot be invoked.</p> <p>4. Evidence—when evidence of intention to comply with the statute is inadmissible. In an action against a mine owner for willful omission of a statutory duty, evidence of the defendant’s intention to comply with the statute is inadmissible where the charge of the declaration does not involve evil or wrongful intent but only conscious acts of omission, and not mere inadvertence.</p> <p>5. Same—when motion to exclude the evidence is properly denied. In an action for damages for the death of a miner, alleged to have resulted from defendant’s willful failure to provide a sufficient light at the top of the shaft, a motion to exclude the evidence and direct a verdict for defendant is properly denied, where it appears that the deceased attempted, according to custom, to step from the cage at the surface of the ground; that though it was night time there was no light, the lantern bearer being absent, and that, the cage having passed above the surface of the ground, the deceased failed to gain a footing and fell down the shaft.</p>

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

<p>1. Bailments—when delivery of warehouse receipt by pledgee does not affect his right to proceeds of sale. The delivery of a warehouse receipt by the pledgee to the pledgor, to enable the latter to carry out a contract of sale as the pledgee’s agent, does not affect his right to the proceeds of the sale as between the parties or as against the purchaser, where the latter was notified of the pledgee’s, rights before making payment.</p> <p>2. Evidence—when fact of agency may be proved by conversations. If the rights of the purchaser of goods are not injuriously affected by want of notice that the seller was acting as agent for another party who is suing for the purchase money, the fact of such agency may be shown by conversations between the principal and agent not in .the presence of the purchaser.</p> <p>3. Instructions—when omission of element of time of giving notice is harmless. Where the purchaser of goods admits having received notice of plaintiff’s ownership before making .payment to a third party, the fact that an instruction authorizing a recovery if notice was given fails to require the receipt of such notice before payment is not ground for reversal.</p> <p>4. Payment—purchaser’s contract to make payment to certain party does not excuse his disregard of notice. That the purchaser of a quantity of malt had contracted with the seller to make payment to a third party, does not authorize him to make full payment to such party after receiving notice that the purchase price of part of the malt should be paid to another party, who, as pledgee, had authorized the sale under an agreement to receive the proceeds.</p>

<p>1. Judicial sales—when execution sale may he set aside. A defendant not served with summons may maintain a bill in equity to impeach the sheriff's return, cancel the judgment and set aside the execution sale, where the purchaser at the sale was the plaintiff’s agent, who paid nothing on his purchase but conveyed to the plaintiff’s attorney of record, who in turn conveyed to the plaintiff, in whom the title remains, unaffected by the rights of third parties.</p> <p>2. Jurisdiction—suing out writ of error does not acknowledge trial court’s jurisdiction of person. The suing out of a writ of error to reverse a judgment for errors apparent on the face of the record is not a recognition of the trial court’s jurisdiction of the plaintiff in error, nor does the affirmance of such judgment bar a bill in equity to impeach the judgment for matters dehors the record brought into review by the writ of error.</p>

Original petition for mandamus. This is a petition for mandamus to require the city of Pontiac to make a new assessment to'pay the balance due petitioner, a contractor, for the construction of a local improvement under an ordinance of the city which had been held invalid by this court after the improvement had been constructed.

T. M. Shaw, Judge, presiding. On October 17, 1895, Gans Bros. & Rosenthal sued out of the county court of Peoria county a writ of attachment against Isaac D. Hurwitz, and placed it in the hands of appellant, Charles E. Johnston, the sheriff of Peoria county, who levied upon and took possession of a quantity of tobacco in the possession of appellee herein, who claimed to own it.

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

E. W. Burke, Judge, presiding. This was a bill of interpleader filed by the Morgan Storage and Warehouse Company, against appellant, appellee and others, to determine the ownership of certain property in the hands of the warehouse company which is claimed by appellee, as the assignee of the North Dakota Milling Company, a Dakota corporation, and by appellant, a New Jersey corporation, as creditors of said milling company, by virtue of a writ of attachment which it caused to…

Frank K. Dunn, Judge, presiding. This is a bill, filed by Margaret Barrett and seventy other persons, appellees herein, averring that they are residents of Coles county and tax-payers thereof; that the personal property owned by each of them was assessed by the town assessor in the town of Mattoon in said county in the years 1894, 1895, 1896, 1897, and 1898, and taxes were extended against each of them upon the property so assessed against them; that each of them paid the…

E. F. Dunne, Judge, presiding. This was a bill in chancery filed by appellee, Charles W. Davis, for a decree foreclosing a certain trust deed executed by appellants, Anna and Frederick Schnadt, to Aaron B. Mead, as trustee, to secure a certain principal note in the sum of $2500, and interest coupon notes attached, signed by said mortgagors and payable to one John L. Healy, the notes, as the bill alleged, having been assigned to the complainant.

<p>1. Fiduciary relations—one occupying fiduciary relation must act with utmost fairness. A step-mother stands in a fiduciary relation to her step-children, and, as executrix of their father’s will, is bound to deal with them and their interests with the utmost fairness, and is incapacitated from dealing with them to her own advantage.</p> <p>2. Same—burden of proof in transaction between parties in fiduciary relation. Where a step-mother who is executrix of her husband’s will purchases the interests of her step-children in the real estate, and in part settlement, by agreement, deducts from the purchase price the amount of certain notes held by her against the testator, the burden of proof is upon her to show that she paid full value for the interests of such step-children and that the estate was indebted to her on account of such notes.</p>

Colostin D. Myers, Judge, presiding. Appellant filed his bill in the circuit court of McLean county for an accounting of rents and to compel the specific performance of a contract to convey to him two lots in Normal, Illinois. In February, 1897, he purchased the lots from Charles G. Schneider, one of the appellees herein, and received from him a bond for a deed.

Murray F. Tuley, Judge, presiding. On and prior to April 3, 1897, Charles W. Spalding was president, principal stockholder and manager of the Globe Savings Bank, doing business in the city of Chicago. He was at the same time treasurer of the University of Illinois. On that day the bank closed its doors and Spalding left the State.

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

<p>1. Fraud—continued possession of grantor may be considered on question of good faith. Though one in possession of premises may, by delivering a deed thereto, estop himself from relying upon his continued possession as notice to subsequent purchasers that he claims title, yet such possession is a circumstance to be considered in connection with other facts on the question of notice and good faith.</p> <p>2. Same—only bona fide purchasers are protected against prior fraud. Where a deed to land has been obtained by fraud, it is only a bona fide purchaser without notice who is protected against such fraud.</p> <p>3. Estoppel—when acceptance of an alleged lease by defrauded party does not work estoppel. That one who has been fraudulently induced to make a deed to his property, but who refuses to deliver possession to the party claiming to be a bona fide purchaser, accepts an alleged lease from the latter does not work estoppel, where the alleged lease is but an agreement for a sort of joint occupancy of the premises by the parties until their controversy is settled.</p>

<p>1. Mortgages—release of mortgage by mortgagee after his assignment thereof is recorded is of no effect. After the first mortgagee has assigned the mortgage and the assignment has been recorded, his subsequent release of the mortgage is of no effect as against the assignee.</p> <p>2. Same—when second mortgage does not release first mortgage. Where mortgaged premises are conveyed to the wife of the mortgagee and the wife gives a mortgage, in which the husband joins, which recites that they “mortgage and warrant” the premises, the latter mortgage does not, in the absence of express words, operate to release the first mortgage.</p> <p>3. Covenants—husband releasing dower not liable upon covenants in wife’s deed. A husband who joins with his wife in the conveyance of her real estate for the purpose of releasing his dower is not liable upon the covenants contained in the deed.</p>

<p>1. Negligence—ordinary care under the circumstances is all the law requires. One who knows of the rough and uneven condition of a street must use corresponding care in driving over it; hut ordinary care under all the circumstances, and not the highest degree of diligence, is all that the law requires.</p> <p>2. Same—question of negligence is for jury if minds of reasonable men would differ. Whether one who knew the uneven condition of a street was negligent in attempting to drive over it at night, seated on top of a hook-case loaded in a spring wagon with some books and -firewood, is a question of fact for the jury, to he determined from all the facts and circumstances proved.</p>

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

<p>1. Trial—token improper conduct by appellee’s attorney will not reverse. Improper conduct in the trial court by the attorney for appellee is not ground for reversal where the appellant’s attorney was equally responsible for the disorderly manner in which the trial was conducted.</p> <p>2. Evidence—what evidence justifies refusal to direct a verdict for defendant. In an action based upon the negligence of the defendants’ coachman in permitting the defendants’ horses to escape from the barn, testimony that the coachman left the horses untied while' he went into an adjoining room to hang up the harness justifies an inference of negligence, and authorizes the refusal of an instruction to find for the defendants though such testimony is contradicted by the coachman.</p> <p>3. Same—what evidence competent in rebuttal. Where defendants’ coachman has testified that he tied the horses after unharnessing them, evidence that the halters used upon the horses were of a different kind than those described by the coachman is admissible in rebuttal, as tending to contradict the witness upon a material matter and as affecting his memory or truthfulness as to what occurred at the time.</p> <p>4. Same—admission of improper evidence without objection does not authorize its rebuttal. The admission of improper or immaterial evidence on behalf of one party without objection by the other will not justify a resort by the other to improper or immaterial evidence to rebut it.</p> <p>5. Same—court may admit evidence in chief after defendant has rested. In an action based upon the negligence of defendants’ coachman in leaving horses untied, in consequence of which they escaped from the barn, evidence that they had escaped on previous occasions when left untied by him would be competent as part of plaintiff’s evidence in chief, and hence may be admitted at the close of defendants’ evidence, even though the circumstances would not authorize its admission in the character of rebuttal evidence.</p>

<p>1. Indictment—effect of omitting words “thereby" and “then and there.” Under section 6 of division 11 of the Criminal Code, concerning the sufficiency of indictments, the omission of the word “thereby” from the allegation “with intent then and there to produce a miscarriage,” and of the words “then and there” from the allegation “did thereby unlawfully * * * produce a miscarriage,” is not a fatal defect.</p> <p>2. Evidence—what sufficient to authorise putting of hypothetical question. The court may permit a hypothetical question to be put to an expert witness if there is evidence tending to prove each of the facts stated in the question upon which the opinion of the witness is asked, since to require the court to determine in advance whether the question embraced all the facts would be an invasion of the province of the jury.</p> <p>3. Same—when statements by injured person are not competent. Declarations of an injured person as to when and by whom she was injured (if neither dying declarations nor a part of the res gestae) are not competent to prove the innocence of one charged with inflicting the injury, since, if competent to prove innocence, they would be competent to prove guilt.</p> <p>4. Abortion—one charged with murder in producing abortion may be convicted of manslaughter. Under section 3 of division 1 of the Criminal Code, declaring that if the death of the “mother” results from an abortion the person producing it shall be guilty of murder, one charged with murder in producing an abortion upon “a woman pregnant with child” may be convicted of manslaughter, since the • greater crime includes the lesser, and the word “mother” as so used means a woman pregnant with child.</p> <p>5. The court reviews the evidence and declines to disturb the verdict finding the plaintiff in error guilty of manslaughter.</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>

George A. Trude, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment of the superior court of Cook county in an action brought by the appellee, against the Chicago Edison Company, to recover for the death of Thomas Moren, which occurred while the deceased was in the service of appellant as a laborer, removing brick from under a certain boiler belonging to appellant.

<p>Appeals and errors—conditional deficiency decree is not a final, ' appealable order. The effect of a conditional deficiency decree entered in advance of a foreclosure sale is merely to establish that complainant will be entitled to a personal, money decree when the amount of the deficiency is ascertained, and hence such a decree is not a final one, from which an appeal may be taken.</p>

Appeal fro'm the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Francis Adams, Judge, presiding.

Orrin N. Carter, Judge, presiding. The abstract of the record shows the .following proceedings in this case: On May 31,1898, the firm of S. Levy & Co., composed of S. Levy and I. Berkenfield, executed and delivered to A. L. Stone, as assignee, a voluntary assignment for the benefit of creditors. On June 1 following, the bond of the assignee was duly approved.

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

E. W. Hilscher, Judge, presiding. This is a bill for partition and assignment of dower, filed on January 24, 1899, by Charles B. Sill, one of the appellees herein, against the appellee, Edmund Sill, and the appellant, Helen Irene Sill, and the appellant, Mary E. Sill individually and as guardian of Helen Irene Sill.

<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. Richard S. Tuthill, Judge, presiding.</p>

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

<p>Insanity—when deed of insane person should, not be set aside without restoring consideration. A deed by one for whom a conservator is subsequently appointed should not be set aside without requiring restoration of the money paid by the grantee and the return of property or its equivalent, which he conveyed to a third party at the instance of the grantor in part consideration for his deed, where the grantee had no knowledge or notice of the grantor’s infirmity or of any undue influence by the party to whom the grantee made his conveyance.</p>

<p>1. Criminal law—Indeterminate Sentence act construed. One convicted of any crime, except murder and treason, whose punishment has been fixed by the jury at imprisonment in the penitentiary, is within the operation of the Indeterminate Sentence act of 1895, (Laws of 1895, p. 158,) notwithstanding the statute provides for an alternative'punishment for such crime by imposing a fine,</p> <p>2. Same—judgment of conviction need not set forth manner of applying parole law. It is not necessary to the validity of a judgment of conviction that the mode and manner of applying the provisions of the Indeterminate Sentence act with reference to the parole and discharge of the defendant shall be set forth therein, and anything contained in a judgment concerning the discharge of the defendant from the penitentiary is surplusage.</p>

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

<p>1. Minors—court should see that interests of minors are properly represented. It is the duty of the court to protect the rights of minor defendants, not only by a proper guardian or guardian ad litem not having an adverse interest, but alsb by counsel distinct from those representing adverse and hostile interests.</p> <p>2. Same—when it is error to proceed without guardian ad litem. It is error to proceed without a guardian ad litem and distinct counsel for minor defendants, where the guardian and his solicitor, who act also for the minors, succeed in establishing not only the guardian’s hostile claim for dower but also his claim for advances, for which he is allowed a lien, as well as a personal judgment against his wards with an order for execution against them.</p> <p>3. Attorneys at law—attorney should not administer oaths to his clients. It is not proper practice for an attorney to administer oaths to his client in a suit in which he is employed, but such verification is not a nullity, and the objection to it may be waived if the opposite party does not take advantage thereof.</p>

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