Volume 187 — Illinois Reports

B. F. Dunne, Judge, presiding. This is a bill, filed by the appellant company, a corporation organized under the laws of the State of Maine, with its principal office at Portland in that State, against the town collector of the town of Lake, and the county collector of the county of Cook, to enjoin the collection of a tax against the personal property of the appellant in that town, upon the ground that the valuation of the property, as fixed by the board of assessors, was…

<p>Writ of Error to the Circuit Court of Washington county; the Hon. M. W. Schaefer, Judge, presiding.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. Richard Yates, 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>

Clair county; the Hon. Silas Cook, Judge, presiding. This is an action of assumpsit brought by appellant to recover damages for breach of an alleged contract to furnish coal. The trial below was before a jury and resulted in a verdict and judgment for appellee. This judgment has been affirmed by the Appellate Court, and the present appeal is prosecuted from such judgment of affirmance.

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

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

John H. Batten, Judge, presiding. Arthur C. Ducat died January 29, 1896, in DuPage county, Illinois, testate, and his will was admitted to probate February 4, 1896. By the first clause of the will he directed the payment of his debts and funeral expenses, together with the costs and expenses of administration of the trusts therein expressed.

<p>Ordinances—when ordinance is repealed in toto by later one. An ordinance for paving a certain street for seven designated blocks by a special tax upon private property, upon a uniform basis of frontage, must be regarded as repealed in toto by a later ordinance providing for paving the same street for six of such blocks upon a different plan, and further providing that the entire cost should be borne by a railroad company, which accepted the terms of the ordinance and complied therewith.</p>

Theodore Brentano, Judge, presiding. This is a creditor’s bill filed by Alice M. Graham, administratrix of the estate of James E. Graham, deceased, against Charles H. ReQua and Newton A. Partridge, executors of the last will and testament of Annie Elizabeth Nichols, deceased, and John F. Nichols, to subject an annuity given to John F. Nichols by the will of his wife, Annie Elizabeth Nichols, to the payment of a judgment against John F. Nichols.

<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. G-est, Judge, presiding.</p>

<p>1. Taxes—water tax must be included within the two per cent limit. A city organized under the general law has no authority to exceed the two per cent limit upon municipal taxes in order to raise funds for water supply.</p> <p>2. Same—decree enjoining collection of excess affects all'levies alilce. A decree declaring invalid and enjoining the collection of municipal taxes exceeding the two per cent limit affects all levies alike, where it is not claimed that any particular one is illegal.</p>

Writ of Error to the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. The original bill in this case was filed on July 20,1899, and the amended bill was filed on January 8, 1900.

<p>Appeal from the Superior Court, of Cook county; the Hon. A. H. Chetlain, Judge, presiding.</p>

John H. Moffett, Judge, presiding. This is a bill in chancery filed in the circuit court of Woodford county by the appellant, Charles Blackmore, against the appellees, Lincoln Blackmore and Jessie Blackmore, his wife, alleging that his father, John Black-more, departed this life on the 16th day of June, 1884; that he left him surviving, as his widow, Elizabeth Black-more, and as his heirs, ten children; that at the time of his death and at the time of making his will John…

<p>1. Practice—trial court can only obey specific directions given on remanding a cause. Upon the remandment of a cause by a court of review with specific directions to do some act, the court below has no power to do anything but carry out such specific directions.</p> <p>2. Same—matters settled informer hearing are res judicata in carrying out specific directions. In determining whether the lower court has carried out the specific directions given by the court of review upon remandment, all questions which were presented and discussed in the former hearing of the case are res judicata.</p>

<p>This case is controlled by the decision in Kuester v. City of Chicago, (ante, p. 21.)</p>

William M. Farmer, Judge, presiding. , This suit was begun in the circuit court of Christian county by the People, etc., for the use of appellees, the widow and children of John Alexander, deceased, against appellant, as surety on the dram-shop bond of one Charles L. Wanack. The declaration sets forth the bond sued upon, which was executed on September 21,1896, conditioned according to the provisions of section 5 of the Dram-shop act, in the usual form of such bond.

Original petition for mandamus. This is an original petition, filed in this court at the June term, 1900, by the People upon, the relation of the Ocean Accident and Guarantee Corporation, Limited, a foreign corporation, organized and existing under an act of parliament of the kingdom of Great Britain and Ireland, asking for a writ of mandamus, commanding the defendant, the State Insurance Superintendent, to grant and issue to the petitioner a license to transact in the State…

<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. John Small, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. E. P. Dunne, Judge, presiding.</p>

W. G. Cochran, Judge, presiding. On January 11, 1895, appellant, an Indiana corporation, made a consignment of wagons and other property to the Leavitt & Oglevee Company, an Illinois corporation, the consignee agreeing to sell the same and to remit the proceeds thereof, when sold, to appellant. A part were sold and remitted for.

William M. Farmer, Judge, presiding. This is a bill in equity filed by Benjamin R. Dorman and Alonzo H. Ranes, against Martin L. Dorman, Eva Dorman, Galen Dorman, R. I. Smith and C. B. Klinefelter, for the partition of an eighty-acre tract of land located in Christian county.

<p>1. Tax deeds—tax deed alone is not evidence of title. One desiring to avail himself of the effect of a tax deed as evidence of title, and not color of title, merely, should introduce in evidence the notice on which such deed was founded.</p> <p>2. Same—clerk’s certificate should be made on day advertised for sale. Under section 194 of the Revenue act, as amended in 1879, the county clerk’s certificate to the delinquent tax list should he made on the day advertised for sale, and if made on the day that the judgment was rendered the sale is void for want of proper process.</p>

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

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Christian county; the Hon. William M. Farmer, o Judge, presiding.</p>

Writ of Error to the Circuit Court of Gallatin county; the Hon. Carroll C. Boggs, Judge, presiding. This is a proceeding by bill in chancery, filed by plaintiffs in error in the circuit court of Gallatin county, at the September term, 1892, to partition certain real estate, and to remove as clouds upon their title the deeds of defendants in error acquired by virtue of an administrator’s sale of lands belonging to the estate of Joshua Bradley, deceased.

<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. M. A. Kavanagh, Judge, presiding.</p>

Writ of Error to the Circuit Court of Washington county; the Hon. M. W. Schaefer, Judge, presiding. Upton M. Young, Alexander Young, and William ' . H. Bennett, for plaintiffs in error. Charles T. Moore, and James A. Watts, for defendants in error.

<p>This case is controlled by the decision in Jacobs v. City of Chicago, 178 Ill. 560, which follows Holden v. City of Chicago, 172 id. 263.</p>

<p>1. Pleading—when cross-bill is not necessary to granting of affirmative relief. If a junior encumbrancer is made a party to a suit to foreclose the superior encumbrance, a cross-bill is not necessary to entitle him to prove his claim and have satisfaction thereof out of any surplus above the superior encumbrance.</p> <p>2. Appeals and errors—Appellate Court may assess damages for prosecuting appeal for delay. The Appellate Court may assess damages where an appeal appears to have been prosecuted for delay, and the Supreme Court will not review the exercise of such power unless there has been an abuse of discretion.</p>

<p>1. Partition—a parol partition does nót vest legal title in severalty. A parol partition of land does not vest the legal title in the parties in severalty, but to have that effect the partition must be accompanied by the execution of deeds.</p> <p>2. Same—time within which deed should be made under partition decree. The time within which a deed may be executed under a partition decree, declaring title to be held in trust and directing a conveyance, is the same as is provided by statute for the execution of a deed pursuant to a certificate of sale, and hence a deed made more than twenty years after the decree, and without any new order of court, is unauthorized.</p> <p>3. Same—power of court to carry partition decree into effect. A decree entered to confirm a parol partition, which declares the legal title to be held in trust and directs a conveyance thereof, may, in the absence of intervening rights of third parties, be carried into effect by the court at any time by decreeing the title to be in the party entitled to the conveyance.</p>

<p>1. Benefit societies—section 9 of act of 1893 construed., Section 9 of the act of 1893, on fraternal societies, (Laws of 1893, p. 130,) providing that “the money * * * to be paid * * * by any society * * * shall not be liable to attachment * * * or other process, * * * and shall not be seized, taken, appropriated or applied * * * to pay any debt or liability of a certificate holder or of any beneficiary,” etc., is designed only to protect the societies from legal process by creditors of their members or beneficiaries.</p> <p>2. Garnishment—money paid over by benefit society to beneficiary’s agent is liable to garnishrhent. Money belonging to a beneficiary, collected by his agent on a benefit certificate issued by a society organized under the act of 1893, is liable to garnishment in the hands of such agent by a creditor of the beneficiary,, since section 9 of the act of 1893 does not apply to money which had been paid over by the society.</p>

R. W. Clifford, Judge, presiding. Appellant was petitioner in the circuit court of Cook county to enforce a lien against city lots in Chicago, owned by appellee J. Russell Jones, for lumber furnished to construct certain improvements thereon. Appellee Jones, and Elizabeth, his wife, together with T. C. Kane and David Meyer, were made defendants to the petition.

Writ of Error to the Criminal Court of Cook county; the Hon. Prank Baker, Judge, presiding. At the March term, 1897, of the criminal court of Cook county, an indictment for larceny was returned by the grand jury of said county against plaintiff in error, said indictment being docketed as case Ho. 46,575. Plaintiff in error entered a plea of not guilty, and a trial was had thereon by a jury at the May term, 1897, of said court, the Hon. John Barton Payne, judge, presiding.

<p>1. Instructions—when instruction is not to be regarded as misleading. An instruction is not to be regarded as misleading where the matters which it touches upon are fully and properly stated in another instruction of the series. '</p> <p>2. Same—instructions should be based upon facts shown by the evidence. Instructions are properly refused when applicable to facts which there is no evidence in the record tending to prove.</p>

<p>1. Banks—collecting bank is the agent of the payee, and not of the forwarding bank. If the bank which receives a check upon another bank for collection, according to the general banking custom, uses due care and diligence in forwarding the check and in selecting the collecting bank, then the collectirfg bank is the agent of the payee, and the receiving bank is not liable to the payee for the negligence or default of such agent.</p> <p>2. Same—when receiving bank is not, as a matter of law, negligent in selecting collecting bank. The receiving bank is not, as a matter of law, negligent in committing the collection of a check upon the only bank in a town to its correspondent, because it knew, or had reason to know, that the correspondent bank would send the check to the bank upon which it was drawn, for payment.</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 County Court of Cook county; the Hon. C. P. Wheat, Judge, presiding.</p>

<p>1. Public improvements—when an ordinance must be regarded as originating with board. If the council in a city of over 50,000 inhabitants has failed for a year to act upon an ordinance submitted by the improvement board in accordance with a property'owners’ petition, the action of the board in passing a resolution changing the scheme of the improvement and recommending a new ordinance, after public hearing pursuant to notice, is an abandonment of the first scheme; and the later ordinance must-be regarded as originating with the improvement board, although it acted on the suggestion of a member of the council in making the change.</p> <p>2. Special assessments—when ordinance is not void for assessing whole cost to private property. A paving ordinance providing that the whole cost shall be paid by special assessment, “in accordance with” the Improvement act of 1897, is not void on the ground that there was no previous ascertainment of benefits, since, under the .act of 1897, the property owner may object to the commissioners’ apportionment of public and private cost and have the same reviewed by the trial court, notwithstanding the ordinance.</p>

John C. Gar ver, Judge, presiding. This is an action in assumpsit, brought on August 8, 1898, by appellee, as executrix of the will of William G. Metzger, deceased, against appellant to recover a debt of $10,000.00 and interest, which had become due from appellant to the deceased in the lifetime of the latter. The declaration consisted of the common counts. The pleas were non-assumpsit and set-off, but the latter plea, after replication had been filed thereto, was withdrawn.

Writ op Error to the Criminal Court of Cook county; the Hon. Prank Baker, Judge, presiding.' “This is an indictment against the plaintiff in error, Prank Steiner, and one Louisa Karus, otherwise called i Louisa Schrader, charging them with the murder of Joseph Karus by stabbing with a knife on July 11,1899. The defendants pleaded not guilty.

Writ of Error to the Circuit Court of Wabash county; the Hon. E. D. Youngblood, Judge, presiding. This is an indictment, found by the grand jury of White county against the plaintiff in error, Daniel P. Gott, for the murder of his wife, Margaret Gott, on the 8th day of June, 1899, in White county. The plaintiff in error was arraigned in open court, and pleaded not guilty 'to the indictment.

<p>This case is controlled by the decision in Kuester v. City of Chicago, (ante, p. 21.)</p>

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

John Gibbons, Judge, presiding. This was a bill in chancery for a decree foreclosing a real estate mortgage executed by the appellants to the appellee union. The appellee union was incorporated May 14, 1890, under the act in force July 1, 1879, and acts amendatory thereof, (Hurd’s Stat. 1899, p. 450,) authorizing the incorporation of mutual building, loan and homestead associations.

<p>Practice—time when peremptory instruction should be presented. In order that the refusal of a peremptory instruction to find for the defendant maybe preserved for review, on appeal, the instruction should be presented at the close of the plaintiff’s evidence or at the close of all the evidence, and not as one of the series submitting the case to the jury.</p>

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

John D. Purvis, Judge, presiding. This is an appeal from a judgment of the county court of Moultrie county, rendered against the property of the appellant-company at the June term, 1899, upon the application of the county treasurer or collector for judgment against lands reported delinquent for the taxes of 1898. Seven objections were filed by the appellant to the rendition of judgment against its property.

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

<p>1. Probate—interest on claim and judgment is of the same class as the claim. Interest accruing before the allowance of a claim against an estate and the statutory interest accruing after the claim is allowed are a mere incident of the claim itself, and the claimant is entitled to preferential payment in full before claims of a lower class are paid.</p> <p>2. Bonds—when sureties on executor’s bond are released as to accrued interest. Sureties on a deceased executor’s bond are released as to accrued interest upon a judgment against the executor’s estate, where there were sufficient funds to pay the judgment and interest but not enough to pay the claims of the next class in full, and the claimant, without notice to the sureties, expressly waived preferential payment of such interest and accepted the amount of the judgment alone, consenting that the balance of the estate be distributed on claims of the next class.</p>

<p>1. Wills—effect where devisee dies before testator. Under section 11 of the act on descent, (Rev. Stat. 1874, p. 419,) whenever a devisee, being a child or grandchild of the testator, dies without issue, before the testator, and the will makes no provision for such contingency, the estate so devised is to be treated as intestate property.</p> <p>2. Same—devise construed as creating a determinable fee. A devise to the testator’s children of property to be used for a home for the unmarried ones, conditioned that neither should encumber the property or sell it except to a brother or sister, and with a limitation over, as to the shares of the unmarried children, to the survivor of them in case the others died unmarried, creates a determinable fee, and upon the death of one unmarried child before the death of the testator his interest passes as intestate property, in the absence of a contrary provision of the will.</p> <p>3. Same—word “unmarried,” in its usual sense, means never having been married. The word “unmarried,” in its usual sense, means never having been married, although the circumstances may show that said term, as used in a bequest of real estate as a home for the testator’s “unmarried children,” means not having a husband or wife living at the time of death.</p>

<p>1. Mechanics’ liens—when sub-contraet will be regarded as completed. A sub-contract for the construction of railroad masonry is not completed, as respects the running of the time for serving notice of lien, until the work is done, even though the railroad company, by arrangement, finishes the latter part of the work, where the sub-contractor, under such agreement, is still required to furnish and prepare the stone for laying and is held responsible for the quantity and cutting of the same, the only work assumed by the company being the laying thereof.</p> <p>2. Estoppel—when a railroad company is estopped to repudiate oral agreement. A railroad company which has received the benefit of an oral agreément, made between its engineer, as its representative, and a sub-contractor on masonry work, which fixes the additional price to be allowed the latter for cutting stone which the engineer directed should be substituted for that called for in the contract, is estopped to repudiate such agreement after the subcontractor has fully acted thereon.</p> <p>3. Waiver—provision in contract requiring wi'ilten consent to change may be waived. A provision in a written contract for railroad masonry .that no stone other than that’specified in the contract should be used without the written consent of the company’s engineer, must be deemed waived where the engineer not only consented orally but directed the substitution of other stone, which was accepted and used by the company.</p> <p>4. Contracts—-when provision for settling disputes does not apply. A provision in a -written contract for railroad masonry that the decision of the company’s engineer shall be conclusive of all disputes relative to the contract does not apply as to extra work and materials different from those specified in the written contract.</p>

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

<p>Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>1. Master and servant—master’s promise to repair applies to cases of defective original construction. The rule permitting a servant to work for a reasonable time after the master’s promise to remedy defects complained of, applies where the defect is in the original construction as well as where it is due to a falling out of repair.</p> <p>2. Same—right of servant to recover though he was working in an unsafe place. The rule which bars a servant from recovering for an injury received while working in a place known by him to be unsafe is based upon the fact of contributory negligence, and hence unless it can be said that he knew the extent of the danger he may maintain an action.</p> <p>3. Same—rule as to servant’s assuming risk of working in an unsafe place. If the danger of working in a particular place is obvious, knowledge of that fact is attributable to the servant; but if the risk is no greater than that under which a prudent person would continue his employment under like circumstances, then the question whether such risk is assumed is properly left to the jury under all the evidence.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. W. H. Gest, Judge, presiding.</p>

George W. Brown, Judge, presiding. This is a bill in chancery by Frank O. Hawley, one of the heirs of Paul G. Hawley, deceased, against Christine J. Hawley, the widow, and Charles J. Hawley and others, the other heirs, seeking to establish title in complainant to a farm of two hundred and sixteen acres, known as the “Morgan farm,” and also a tract of about eight acres, known as the “Judson homestead,” in Kendall county, under and by virtue of two alleged lost and unrecorded…

Murray F. Tuley, Judge, presiding. This is a bill in equity filed by the appellants on the 11th day of April, 1898, in the circuit court of Cook county, against the appellee, praying that an agreement between the appellants and appellee, bearing date July 26,1897, be rescinded and canceled, and that appellee be decreed to account to appellants for all of the stocks and bonds of the Suburban Railroad Company received by him under and in pursuance of said agreement, together…

<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. Elbridge Hanecy, Judge, presiding.</p>

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

<p>1. Appeals and errors—that one of subscribing witnesses acted as proponents’ counsel is not ground for reversal. That one of the subscribing witnesses to a will acted as one of the solicitors for the proponents on contest is not of itself ground for reversing a decree sustaining the will, although such practice is not to be approved.</p> <p>2. Evidence—what will not sustain charge of fraud in execution of will. A charge that the pencil draft of a will was changed after leaving the testator’s hands is not sustained, where the evidence shows that before signing the will the testator carefully compared it with his pencil draft, checked each item and expressed himself as satisfied with the will as prepared.</p>

<p>This case is controlled by the decision in Wallen v. Moore, (ante, p. 190.)</p>

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

<p>1. Specific performance—when alleged uncertainty of contract is removed. Alleged uncertainties in a contract for the exchange of properties will be regarded as removed, on appeal, in the absence of a certificate of evidence, where the matters complained of are sufficiently set out in the bill, and the court, after hearing evidence, has found in its decree that the allegations are true.</p> <p>2. Practice—when reference to the master to state accoumt is unnecessary. Where the ascertainment of the amount due under a contract for the exchange of properties is a simple matter it is not necessary to refer the cause to the master to state the account. •</p> <p>3. Judgments and decrees—when direction by decree as to payment of money is not ground for reversal. That a decree for specific performance orders the defendant to pay the amount found due from him, together with the costs, to one of complainants’ solicitors, who in turn is directed to pay the costs to the proper officers, pay the solicitors’ fees and turn the balance over to complainants, is not ground for reversal at the instance of the defendant.</p>

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

<p>1. Res judicata—unreversed confirmation judgment is a bar to a subsequent one for similar improvement. A judgment confirming a special assessment for an improvement is, while it remains in full force, a bar to another judgment sought to be recovered, confirming another assessment for a similar improvement of the same street.</p> <p>2. Special assessments—erroneous confirmation judgment not void is not open to collateral attach. The failure of an ordinance to describe the flat stones upon which curbing is to be set renders a confirmation judgment based thereon erroneous, but not void or subject to collateral attack.</p> <p>3. Same—/acts acquired by jury’s view of premises are not evidence. The jury, in a proceeding to confirm a special assessment, may consider the facts acquired from a view of the premises, taken by permission of the court, to better enable them to understand and apply the evidence; but such view, or the facts ascertained from it, are not evidence for their consideration.</p>

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

<p>This case is controlled by the decision in Kuester v. City of Chicago, (ante, p. 21.)</p>

<p>1. Mortgages—mortgage is not barred if debt is alive. A mortgage is but an incident of the debt, and is barred only when the debt is barred; nor has the law in this respect been changed by the Limitation act of 1872.</p> <p>2. Same—tolien the Statute of Limitations cannot be interposed in foreclosure. If the debt secured by a recorded trust deed has been kept alive by a purchaser of the property who assumed, and for a sufficient consideration agreed to pay, the debt, a grantee of such purchaser takes subject to the deed of trust, and cannot plead the limitation to defeat foreclosure while the debt remains alive.</p>

<p>1. Special assessments—right of city to provide for whole cost of improvement by special assessment. A city has power to provide for the whole cost of a local improvement by special assessment, even though it is not shown that steps were taken prior to the passage of the ordinance to ascertain whether there was property benefited to that extent, since the distribution of public and private cost is reviewable by the court upon application for confirmation.</p> <p>2. Same—court’s action on distribution of cost of improvement is not reviewable. Under section 47 of the Improvement act of 1897 the action of the county court in the matter of the distribution of the public and private cost of a local improvement being constructed by special assessment is not open to review upon appeal or error.</p> <p>3. Same—that city requires guaranty for maintenance and repair of pavement does not vitiate assessment. That the city, in its contracts for vitrified brick pavements, requires the contractor to give a written guaranty for maintenance and repair, does not vitiate a special assessment for the improvement on account of increased contract price occasioned by such guaranty.</p>

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

<p>Appeal from the Comity Court of Cook county; the Hon. R. H- Lovett, Judge, presiding.</p>

.Appeal from the Circuit Court of DuPage county; the Hon. Charles A. Bishop, Judge, presiding.

<p>This case is controlled by the decision in Wallen v. Moore, (ante, p. 190.)</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. Jonas Hutchinson, Judge, presiding.

<p>1. Appeals and errors—when right to have refusal of peremptory instruction reviewed is not waived. If an instruction to find for the defendant is asked and refused at the close of the plaintiff’s evidence and again at the close of all the evidence, the defendant does not, by submitting the case to the jury under general instructions, waive the right to assign the action of the court in refusing such instruction as error on appeal.</p> <p>2. Negligence—doctrine of comparative negligence does not prevail in Illinois. One who seeks to recover damages for another’s negligence has the burden of proving not only the negligence of the defendant as charged in the declaration, but also that his own negligence or misconduct, has not concurred with that of the defendant in producing the injury. •</p> <p>3. Same—right of person to risk his life to save another’s—rule and exception. The law will not impute contributory negligence to one who places himself in peril to save the life of another, unless his action, in the judgment of all prudent persons, would be deemed rash; but an exception to this rule exists where the party acting is affirmatively responsible for the perilous position of fhe one whom he attempted to rescue.</p> <p>4. Same—whether party acted rashly is ordinarily for jury. Whether one who was injured while attempting to save another’s life acted rashly or with reasonable prudence is a question for the jury, under all the facts and circumstances in evidence, if reasonable minds would differ on that point.</p> <p>5. Same—the duty of parents in cities to guard children against street dangers. Parents in cities must guard their children against known dangers to them when upon the street unattended, but the standard of such care is not capable of being defined by law and must depend upon the circumstances of each case, since it is not negligence per se to permit children to be upon the streets of a city.</p> <p>6. Same—right of mother to attempt to rescue child from danger. A mother whose child has momentarily escaped from her care when upon the street may reasonably presume that if the child is exposed to danger others will not negligently injure it, and upon seeing it suddenly so exposed has the right to make all reasonable efforts to rescue it.</p>

<p>Executors and administrators—when executor is not liable in his representative capacity for breach of contract. An executor authorized by the will to sell real estate has no implied power to bind the estate by warranty deed, but only to convey whatever title the testator had, and hence no action can be maintained against him in his representative capacity for breach of an executory contract to make a warranty deed.</p>

M. W. Thompson, Judge, presiding. This is a suit, begun originally before a justice of the peace on March 25,1897, by the appellees, Dwight Haven, trustee under the last will of Samuel Rush Haven, deceased, and Jane S. Haven against the appellant, John Mackin, to recover the amount due at that date under a lease and party-wall agreement, executed on August 1, 1872, between said Samuel R. Haven, as party of the first part, and Thomas Mackin, now deceased, (father of the…

Jonas Hutchinson, Judge, presiding. This is a proceeding, stated by counsel to be under section 53, as amended in 1891, of article 9 of the City and Village act of 1872.

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

<p>1. Railroads—what is not contributory negligence by section foreman. A section foreman, who, upon the approach of a freight train, steps aside to a distance ordinarily safe, is not, as a matter of law, guilty of negligence contributing to an injury from a loose car door, which was swinging out from the train and which he did not see in time to avoid such injury.</p> <p>2. Same—right of section foreman to assume that car doors are fastened. If a section foreman, in the line of his employment, is in the exercise of reasonable care for his safety, he may assume that the railroad company will use reasonable care to see that the car doors on its trains are in a reasonably safe condition, and the jury may consider such fact when determining whether the section foreman was in the exercise of due care.</p>

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. George W. Brown, Judge, presiding. The circuit court of Cook county sustained a demurrer to a declaration filed herein by plaintiff in error August 7, 1896.

<p>This case is controlled by the decision in Burton Stock Car Co. v. Traeger, (ante, p. 9.)</p>

<p>Appeal from the Superior Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of DeKalb county; the Hon. Charles D. Bishop, Judge, presiding.</p>

<p>Attachment—what must be shown to entitle plaintiff to question good faith of transfer set up by interplea. The good faith of a transfer of stock alleged by interplea in attachment to have been for a valuable consideration and with notice to the attachment plaintiff, cannot be attacked by the latter until he has established the relation of debtor and creditor between himself and the attachment defendant.</p>

Truman E. Ames, Judge, presiding. The appellant, W. Scott Marshall, administrator of the estate of Edward B. Goodner, deceased, filed on January 5,1897, in the county court of Marion county his final report as administrator in compliance with an order of the probate court, made on a citation issued at the instance of the appellee, Marietta E. Coleman.

John Gibbons, Judge, presiding. This is an action of debt, brought by the People of the State of Illinois against Theo. Noel, the appellant, to recover a penalty for the violation of section 2 of the Pharmacy act. On September 1, 1899, a judgment was rendered before a justice of the peace in Cook county on the verdict of a jury against the appellant, and in favor of the appellees, for twenty dollars and costs.

Elbridge Hanecy, Judge, presiding. Appellants filed their bill in the circuit court of Cook county for the partition of certain lands in that county, claiming to be the heirs-at-law of Adeline B. Gellatly and tenants in common with appellees, except Roy Gellatly and his guardian. ’ They base their claim of title to the premises in question Upon a certain deed made in February, 1853, by their grandfather, Justin Butterfield, to Adeline Butterfield, his daughter.

<p>Writ of Error to the Circuit Court of McHenry county; the Hon. Charles E. Fuller, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First Dis-' trict;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Tax certificates—effect of section 811 of Bevenue act, concerning purchaser’s suffering re-sale of property. Section 211 of the Revenue act, providing that if the purchaser at a tax sale suffers the property to be again sold for taxes before the expiration of the last day of the second annual sale thereafter he shall not be entitled to a deed until the expiration of a like term from the date of the second sale, operates to extend the life of his certificate during the added period.</p> <p>2. Same—xohen priority of tax sale cex-tificates as liens is not lost. The priority of tax sale certificates as liens upon property covered by a trust deed is not lost by their unauthorized delivery to the trustee, without consideration, by the party who was holding them in trust for the purchasers under a written agreement providing that the holder should deliver them to the trustee, or any one named by him, upon the payment of the amount paid therefor, with interest.</p>

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

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

John Babton Payne, Judge, presiding. The appellee brought its suit in assumpsit in the superior court of Cook county against the appellant and others, as partners, under the firm name of C. S. Young & Co., to recover $3000 and interest thereon, claiming that amount as the balance due of the contract price for the manufacture of a miniature building in glass, and its erection in the Iowa State building at the World’s Columbian Exposition, in 1893.

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

<p>1. Ante-nuptial contracts—when ante-nuptial contract will be upheld. An ante-nuptial contract giving the wife a comfortable home, free from taxes and cost of repairs, and an annual income of $200 for life, in lieu of her rights in the husband’s property, worth about $25,000, will not be set aside as unfair, where the husband was a widower, eighty-one years old, with six living children, and the wife a widow fifty-one years old, who had supported herself and family prior to the marriage, and where she knew substantially the amount of the husband’s property, and executed the contract with full knowledge of its effect upon her legal rights and to better her condition in life.</p> <p>2. WITNESSES'—when wife is not competent witness in her own behalf. In an action by a widow to set aside an ante-nuptial contract and for assignment of dower and homestead, the complainant is not a competent witness to testify in her own behalf as to what was said or took place at the time the contract was signed, where the opposite parties are defending as heirs of her deceased husband.</p>