Volume 188 — Illinois Reports

<p>1. Benefit societies — a by-law prohibiting members from keeping saloon not unreasonable. A by-law of a benefit society which provides for the forfeiture of all beneficial rights of a member who engages in the business of keeping a saloon is not unreasonable.</p> <p>2. Same — when member is not.justified in remaining in saloon business because not formally suspended. That a member who had engaged in the saloon business was not formally notified and suspended, in accordance with a by-law in force when he became a member, does not justify his remaining in the business after the passage of a hy-law providing that members engaging in the saloon business should stand suspended from the date of engaging therein, where, at the time he joined the-society, the member agreed to obey all by-laws in force and those thereafter duly enacted.</p> <p>3. Waiver — whether waiver or estoppel has arisen is a mixed question of law and fact. The ultimate inquiry whether a waiver or an estoppel has arisen involves consideration both of the legal definitions and the proofs, and hence is a mixed question of law and fact, upon which the judgment of the Appellate Court is final in cases at law.</p>

E. P. Dunne, Judge, presiding. Appellants filed their bill in the circuit court of Cook county to enjoin the collection of the taxes extended upon the increased valuation of their property, made by the board of review of that county.

Writ of Error to the Branch Appellate Court for the First District; — heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.

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

<p>This case is controlled by the decision in Earl d~ Wilsom v. Rayrnoncl, (ants, p. 15.)</p>

<p>1. Appeals and errors — -failure to comply' with rules concerning briefs and abstracts is ground for affirmance. Failure of the appellant to comply with rules 15 and 27 of the Supreme Court, concerning the preparation of briefs and abstracts and forbidding the use of Appellate Court briefs and arguments except when it is important to determine what questions were raised in the Appellate Court, is ground for affirmance.</p> <p>2. Replevin — one partner cannot replevy co-partner’s interest. One partner cannot maintain replevin against an officer who has levied on his co-partner’s interest in partnership property.</p> <p>3. Evidence — creditors of vendor may call upon him to prove that sale was fraudulent. Creditors of a vendor in a bill of sale have the right to call him as a witness, and prove, if they can, that the sale was merely colorable, to delay creditors.</p> <p>4. Levy — what does not render levy on partner’s interest invalid. If the sheriff levies upon the interest of one partner in the firm property and seizes the entire firm assets, it is no objection to the levy that it enumerates the articles levied upon, since it cannot be said that the sheriff thereby segregated such articles as the property of such partner.</p>

<p>' Practice — right of city to new trial on reversal of confirmation judgment. Where a confirmation judgment is annulled, on appeal, and the cause is remanded for further proceedings without specific directions, the city is entitled to another trial before final judgment can be entered, since what is said in the opinion of the court in regard to the weight of evidence applies only to the facts disclosed, by the record reviewed, and only the legal principles announced are binding upon the inferior court.</p>

E. W. Clifford, Judge, presiding. This is a bill, filed on February 8, 1899, by Francis B. Peabody as guardian of Edouard Renaud Comte Tyszkiewicz, and Elizabeth Marie Comtesse Tyszkiewicz, and as trustee, and James L. Houghteling, as successor in trust, both of Chicago, in the county of Cook and State of Illinois, against James W. Beach, Anna M. Beach, his wife, Henry B. Mason as sole surviving trustee under the last will of Roswell B. Mason, deceased, and Henry G. Miller,…

Writ of Error to the Circuit Court of Cook county; the Hon. C. G. Neeley, Judge, presiding. Plaintiffs in error prosecute this writ of error to reverse the judgment of the circuit court of Cook county sustaining demurrers to a bill filed by them to revive an original bill in that court.

<p>1- Mechanics’ liens — what essential to statement of claim for lien on account. When it is sought to enforce a mechanic’s lien for the total price of different items of labor and material furnished at different times on account, the statement required by section 4 of the Mechanic’s Lien law of 1887 to be filed with the clerk must contain, in detail, each item of labor or material, showing the kind and amount of work done and material furnished, together with the amount and date of each charge.</p> <p>2. Same — statement must show that each item of account may be secured by lien. In order that a mechanic’s lien may be enforced upon an account, it-must affirmatively appear from the face of the statement or claim for lien filed with the clerk that each item of the account is of the character for which the statute grants a lien, and that in point of time a lien may be claimed thereon.</p> <p>3. Same — statutory conditions precedent to right to lien must he complied with. One seeking to enforce a mechanic’s lien must aver in his petition and prove on the hearing that he has complied with the statutory conditions precedent to his right to enforce such lien.</p>

Writ op Error to the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.- This is an application by the collector of Cook county for judgment and order of sale against certain lots of plaintiff in error, returned as delinquent under warrant 23,873 for the collection of a special assessment for a connected system of sewers in West Sixteenth street from Central Park avenue to Lawndale avenue and other streets.

<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. Abner Smith, Judge, presiding.</p>

<p>1. Special assessments — assessment is a charge against the land and not the owner. A special assessment is a charge upon the land and not against the owner, and the payment of the assessment, even though by mistake, discharges both the land and the owner from liability therefor; — and this is true whether payment is by the owner or one having no interest in the land.</p> <p>2. Same — a special assessment cannot be revived by refunding amount paid. If a special assessment is voluntarily paid, and payment is accepted by the collector, the assessment cannot be revived, so as to subject the land to sale, by the action of the municipal authorities in refunding the amount paid and declaring the collector’s endorsement showing payment to be canceled and void, even though the payment was made by mistake, by one having no interest.</p> <p>3. Same — collector lias no power to determine the question of ownership. Payment of a special assessment having been accepted, the collector has no power to hear evidence and decide whether the payment was deliberately made or was made by mistake, since neither he nor the municipal authorities have power to determine questions of ownership in land or the rights of parties therein.</p>

<p>1. Contracts — when agreement relating to release of dower passes no legal title. An unsealed, agreement by the owners of the fee to pay to the dowress one-quarter of the net proceeds of certain property in consideration of her relinquishing her dower right in the same passes no legal title to the dowress or her heirs.</p> <p>2. Same — parol evidence admissible to explain sense in which terms were used. If it is not certain from the face of a contract in what sense terms were used by the parties, parol evidence is admissible to enable the court to determine in what sense such terms were understood by them.</p> <p>3. Partition — when contract does not furnish sufficient basis for partition. Heirs of a dowress cannot base their right to a partition of property upon an agreement by the owners of the fee to pay to the dowress “one-quarter of the net proceeds” of the property in consideration of her relinquishing her dower rights therein, where it is shown by the evidence that the object of the agreement, as understood by the parties thereto, was to secure one-quarter of the rent of the property to the dowress for life.</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. John Gibbons, Judge, presiding.</p>

<p>1. Mechanics’ liens —contractor cannot file single lien for improvements on non-adjoining lots. A contractor cannot file a single claim for lien for the whole amount due him for labor and materials furnished in the erection of houses on lots which are not adjoining or adjacent to one another.</p> <p>2. Same — right of the court to apportion lien relates to improvements on adjacent lots. Sections 1 and 17 of the Mechanic’s Lien law of 1895, when construed together, authorize the apportionment of the lien and costs under an entire contract covering different buildings only when such buildings are erected upon adjoining lots.</p>

<p>1. Taxes — time when complaint was made is immaterial if board of review acts thereon. If the board of review acts upon a tax-payer’s complaint regarding his assessment, which complaint was made while the board was acting, the tax-payer cannot insist that the hearing was not a legal one because the complaint was not made within the time appointed by statute.</p> <p>2. Same — when equity cannot entertain bill to enjoin tax. In the absence of allegations of fraud, equity cannot entertain a bill to enjoin the collection of taxes upon the grounds that the valuation is too high and not made in accordance with the statute, or that the statute itself is unconstitutional, where the taxes are authorized by law, the property is not exempt from taxation and there are no consequences to complainants which maybe classed as irreparable, since a court of law is competent to determine such questions.</p>

<p>Appeal from the Appellate Court for the Second District; — heard in 'that court on appeal from the Circuit Court of Winnebago county; the Hon, Johjst C, Carver, Judge, presiding.</p>

Axel Chytraus, Judge, presiding. Appellee, Dora Wagner, recovered a judgment of $250 in a suit in assumpsit, in the superior court of Cook county, against appellant, the Globe Mutual Life Insurance Association of Chicago, on a policy of insurance issued to her on the life of her son, Richard Wagner.

<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>

<p>This case is controlled by the decisions in Earl & Wilson v. Raymond, (ante, p. 15,) and Kimbark v. Raymond, (ante, p. 66.)</p>

<p>Original petition for habeas corpus.</p>

Colostin D. Myers, Judge, presiding. The appellee commissioners granted, preliminarily, the prayer of a petition asking for the location of a new road over the lands of one A. A. Stewart, and caused a jury to be empaneled before a justice of the peace under the provisions of section 41 of chapter 121, entitled “Roads and Bridges,” (Hurd’s Stat. 1899, p. 1476,) to assess the damages to which Stewart would be entitled.

Writ of Error to 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.

Prank Harry, Judge, presiding. This is an appeal from a judgment of the county court of Iroquois county against a parcel of land belonging to the appellant, Gilbert Vennum, for a special tax levied for the purpose of building a sidewalk opposite said parcel of land by the village of Milford in said county.

James S. Baume, Judge, presiding. The German Insurance Company of Freeport, Illinois, on March 19, 1896, recovered a judgment against Frederic Bartlett in the circuit court of Stephenson county for $5773.88, and the Farmers’ and Merchants’ Bank, of the same place, on March 24,1896, recovered a judgment against Frederic and Frederic R Bartlett, in the same court, for $4020.24.

Writ of Error to the County Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. This is a criminal action, based upon an information filed in the county court of Vermilion county by the State’s attorney of that county charging the plaintiff in error, Charles Gillespie, with violating section 32 of chapter 48, entitled “Employment.” (Hurd’s Stat. 1899).

R. W. Clifford, Judge, presiding. The bill of complaint in this case was filed in the circuit court of Cook county by appellees Fairbank and Hummer, as trustees under the will of James Kerr Fisher, the deceased husband of Annie Kerr Fisher and the father of Hehra Kerr Fisher, who appear in this court as separate appellants.

Original petition for mandamus. This is an original petition for mandamus, filed in this court on October 5, 1900, by the People through the Attorney General upon the relation of William P. Herndon and Fred W. Long, citizens and residents of Sangamon county, praying- that the writ may be issued directed to Charles E. Opel, county clerk of Sangamon county, commanding him forthwith to issue an order appointing a day for the election of a clerk of the probate court of Sangamon…

Orrin N. Carter, Judge, presiding. This is an appeal from a judgment of sale of certain lots, located in Cook county, for the non-payment of a special assessment, levied by the city of Chicago for curbing, grading and paving South Ashland avenue from the street railway right of way on West Twelfth street to the street railway right of way on Twenty-second street.

A. H. Chetlain, Judge, presiding. This is an action of assumpsit, begun on February 19, 1898, upon a fire insurance policy issued by appellant to the appellee, Max Schallman. The policy is the standard form, and insures the property of appellee against loss by fire to the amount of §1000.00 from October 6, 1897, to October 6, 1898. The property insured was a stock of merchandise in the building known as 124 Franklin street in Chicago.

Writ of 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.

the Branch Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. C. G, Neeley, Judge, presiding.

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

<p>This case is controlled by the decision in Noel v. People, 187 Ill. 587.</p>

<p>Fraud — a party desiring to rescind for fraud must act promptly. A party who desires to rescind a transaction for fraud must, upon discovery of the facts, announce his purpose and adhere to it, and cannot be permitted to stand passive and speculate as to whether he will rescind the transaction or waive the fraud, as the events of the future may determine it to be most profitable for him.</p>

<p>1. Religious corporations — special act of 1853, relating to Protestant Episcopal Church, is in force. The special act of February 21, 1861, in so far as it attempts, by section 5, to repeal the special act of 1853, authorizing persons holding title in trust for the Protestant Episcopal Church in Illinois to convey the same, is void, as in violation of section 23 of article 3 of the constitution of 1848, which provides that private laws shall not embrace more than one subject, which shall be expressed in the title.</p> <p>2. Same — trustees of the Protestant Episcopal Church for Chicago diocese may act under laws of 181/.9 and 1861. The trustees of the Protestant Episcopal Church electee^ and chosen by the diocese of Chicago are authorized to accept and make conveyances for the uses and purposes mentioned in the private acts of 1849 and 1861, and the bishop of the diocese of Chicago, as the successor of the bishop of the diocese of Illinois, may take, hold or convey property for the uses and purposes expressed in the private act of 1853.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. This is a writ of error prosecuted out of this court for the purpose of reviewing a judgment of conviction, entered by the criminal court of Cook county against plaintiff in error for embezzling certain funds of Plattdeutsche Glide Fritz Reuter No. 4, an unincorporated benevolent association of which the plaintiff in error was a member.

<p>Bills and notes — plea of total failure of consideration requires proof of that fact. A plea of total failure of consideration for the notes sued upon requires the defendants to establish that the consideration has wholly failed, and proof of partial failure of consideration is not sufficient.</p>

This is a motion by Charles L. Bonney, Lyman M. Paine and Emil A. Basener for leave to file a petition for mandamus against James A. Rose, Secretary of State of the State of Illinois, requiring him to issue a certificate of incorporation to the Citizens’ Street Railway Association under the statute providing for the organization of corporations “not for pecuniary profit,” which petition is as follows: “Supreme Court of Illinois. — October Term, A. D. 1900. “The People of the…

<p>Appeals and errors — when freehold is not involved in proceeding by executrix to sell real estate. A freehold is not involved, on appeal in a proceeding by an executrix to sell real estate to pay claims allowed against the estate, where the only effect of the decree is to subject the lands of either the petitioner or the defendants, as devisees, to sale for the payment of such claims, since payment thereof would relieve the lands of either of the contending parties from all effects of the decree.</p>

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

<p>1. Res judicata — when question of title to property is res judicata. If it has been adjudged in divorce proceedings instituted by the bus-band that the wife is the owner of the residence property, subject to the husband’s homestead and dower rights, her title cannot be attacked by the husband upon her filing bill to set off his homestead.</p> <p>2. Parties — children are not necessary parties to bill to set off homestead. Children residing with their father, who has a homestead estate in the residence property owned by his divorced wife, are not necessary parties to bill by her to have such homestead set off.</p> <p>3. Homestead — if homestead cannot be set off, party must accept its value. Upon bill by the owner of the fee to have an existing homestead estate in the property set off, or for payment of its value if the property is worth more than $1000 and cannot be so divided as to set off the homestead, the complainant is entitled to possession upon payment of $1000 to the party having the homestead estate.</p>

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

Writ of Error to the 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.

Writ of Error to the Branch Appellate Court for the First District; — heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Edmund W. Burice, Judge, presiding.

<p>Taxes — refusal or failure of board to hear complaint is not ground for enjoining tax. The neglect, failure or refusal of the board of review to afford a tax-payer an opportunity to make and urge his objections to his assessment, is not, of itself, ground for enjoining the collection of the tax, since the tax-payer has a remedy at law.</p>

<p>1. Pleading — u¡hen declaration alleges that deceased left next of kin. A declaration in an action for causing, the death of plaintiff’s intestate which states that as the father and next of kin of deceased the plaintiff has suffered great injury, etc., and that therefore he brings his suit, alleges, although in an imperfect manner, that the deceased left next of kin and that the suit was brought for the benefit of the same.</p> <p>2. Limitations — statute does not apply to matters of mere pleading. The Statute of Limitations, requiring a suit for personal injury to be brought within two years, does not apply to matters of mere pleading, and should not be given that effect indirectly by holding that an imperfect statement of a cause of action is no statement of it at all.</p>

<p>1. Drainage — general rules of damages in condemnation cases apply to drainage cases. The same rules for ascertaining damages which govern proceedings for the condemnation of private property for public use apply to cases arising under the drainage statutes.</p> <p>2. Same — benefits cannot be set off against compensation for land actually taken. In drainage cases damages to land not taken may be paid for by benefits, but no benefits can be set off against compensation for land actually taken, since the constitution requires that the compensation to the owner of private property taken for public use must be paid in money, alone.</p> <p>3. Same — land actually taken for a ditch must be paid for in money. Corporations organized for drainage purposes cannot take private property for the construction of a ditch without compensating the owner in money. (Payson v. People, 175 Ill. 267, followed.)</p>

<p>Appeals and errors — when error in admitting evidence will not reverse. In a personal injury case it is error to permit the plaintiff to state what he had formerly earned at a trade which he had abandoned some five years before the injury occurred; but such error will not reverse if it is apparent from the record that it was not prejudicial to the defendant.</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 Third District; — heard in that court on appeal from the Circuit Court of Montgomery county; the Hon. William M. Parmer, Judg'e, presiding.</p>

<p>No question being involved in this case which authorizes an appeal to the Supreme Court, the appeal is dismissed.</p>

E. F. Dunne, Judge, presiding. This is a bill, filed °on May 7, 1896, by the appellee, ClaLra E. Ward, against the appellant, Frank R. Chandler, and one Peyton R. Chandler, deceased, composing the firm of Chandler & Co., doing a business of money lending in Chicago.

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

<p>1. Constitutional law — section 9 of article 9 of constitution construed. Section 9 of article 9 of the constitution, providing that the General Assembly may vest the corporate authorities of cities, towns or villages with power to make local improvements by special assessment or special taxation or otherwise, is a limitation upon the power of the legislature to confer such power upon any bodies other than corporate authorities.</p> <p>2. Same — who are “corporate authorities.” “Corporate authorities” upon whom power to make local improvements by special assessment or special taxation may be conferred, under the constitution, are the authorities of the municipality who are either elected directly by the people to be taxed or appointed in some mode to which they have given their assent.</p> <p>3. Same — Local Improvement act of 1897 is not unconstitutional. The Local Improvement act of 1897 is not in violation of section 9 of article 9 of the constitution in providing for a board of local improvements and committing to it certain preliminary work relative to the making of local improvements, since a duly adopted ordinance lies at the foundation of an improvement proceeding and the board is not vested with the power to adopt an ordinance. (Magruder, J., dissenting.)</p> <p>4. Same — section Sk of Improvement act of 1897 does not render the act unconstitutional. Section 34 of the Local Improvement act of 1897, making it the duty of the corporate authorities to pass an ordinance for an improvement recommended by the board if such improvement has been petitioned for by the owners of a greater part of the property in one or more contiguous blocks abutting upon the street to be improved, does not render the act unconstitutional, since the corporate authorities may refuse to pass the ordinance recommended by the board, although it must pass an ordinance for the improvement, not because the board has recommended the improvement, but because property owners have petitioned for it.</p> <p>5. Same — legislature did not intend to vest power to make local improvements in the board. It was not the purpose of the legislature, by the act of 1897, to vest improvement boards with power to make local improvements by special assessment or taxation, but rather to create a municipal agency to ascertain and determine preliminary questions, which, when so determined, operate as restrictions upon the power of the corporate authorities over property of citizens.</p> <p>6. Same — when instruction as to power of improvement hoard is not ground for reversal. An instruction that the jury “are not to consider any question of the necessity for nor the propriety of” the improvement, is not ground for reversal because it unduly magnifies the power of the improvement board by stating that it is the “sole and only judge of the necessity for and of the mode, manner and extent of the improvement referred to in the petition and the ordinance in this case,” since the jury can only pass upon the question of benefits.</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. Elbridge Hanecy, 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. Elbridge Haneoy, Judge, presiding.</p>

<p>1. Marriage — assumption of marriage status is essential to common law marriage. Parties capable of contracting marriage may enter into a present contract to accept each other as husband and wife; but it is essential to the validity of such a marriage that the parties assume the marriage status.</p> <p>2. Same — cohabitation as husband and wife means dwelling together. The cohabitation of a man and woman as husband and wife means dwelling together, and not a habit of visiting each other, however frequent.</p> <p>3. Same — meretricious relation is presumed to continue as such. If the relation between parties to an alleged common law marriage was immoral and meretricious in its inception, and so continued for a considerable period, it will be presumed to continue to be of such a character unless there is proof of change to a lawful relation.</p> <p>4. Evidence — acts and declarations during time of alleged marriage are part of res gestos. The acts, declarations and conduct of the parties during the time a marriage relation is claimed to exist are competent as part of the res gestee, as showing how the parties regarded each other.</p>

Original petition for mandamus. This is a petition filed by Lewis Dutton in this court praying a writ of mandamus may be ordered to issue out of this court commanding I. D. Webster, Abel Dunham and John R. Bicker, as members of the board of review of the county of Pike, to forthwith direct the clerk of the said board of review to make out and transmit to the Auditor of Public Accounts of the State of Illinois a statement of all the facts in a case heard by the said board,…

<p>1. Special assessments — when finding in confirmation judgment as to posting notices is not conclusive. In a direct proceeding to review a confirmation judgment a recital in the judgment that the requirements of the law as to posting notices have been complied with cannot prevail over affirmative proof in the record to the contrary.</p> <p>2. Same — when affidavit of posting notices shows non-compliance with . law. An affidavit of posting notices shows non-compliance with the law requiring a notice to be posted in each of four different public places, where, fr.o'm the written part thereof, it appears that three of the notices were affixed to “the tree ÍT. E. corner of Oakenwald and Forty-fourth place.”</p> <p>3. Same — when description of bedding for curbing is sufficient. An ordinance providing that each' curb-stone shall he “firmly bedded” upon flat limestone blocks, to he one foot in length, eight inches in width and six inches in thickness, need not specify the number of such limestone blocks, since the description must be construed as requiring the base of each curb-stone, along the full length thereof, to be bedded upon the limestone blocks described.</p>

<p>Appeal from the Appellate Court for the Second District; — heard in that court on writ of error to the Circuit Court of Kane county; the Hon. Henry B. Willis, Judge, presiding.</p>

D. L. Jones, Judge, presiding. This is an appeal from a judgment of the county court of Lake county for the sale of certain lots of appellants for the third installment of a special assessment, levied by the city of Lake Forest for a connecting system of sewers in Forest park, Lake avenue, Wisconsin avenue and adjacent streets in the city of Lake Forest.

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

<p>1. Drainage — what is not essential to validity of petition for combined drainage. It is not necessary to the validity of a petition for combined drainage under section 11 of the act of 1885, (Laws of 1885, p. 80,) that it should contain the description of the different tracts of land severally belonging to the petitioners, or that in stating the names of owners of lands in the district the description of the land owned by each should be given.</p> <p>2. Same — statute provides the mode of determining whether petition is properly signed. Whether petitioners are the owners of the major portion of the land in the proposed district, and constitute one-third or more of all persons owning land therein, are prerequisites to be determined prima facie by the drainage commissioners at their meeting held under section 13 of the act of 1885, (Laws of 1885, p. 81,) and conclusively determined by them at the subsequent meeting held under section 15 of the act.</p> <p>3. Same — effect of amendment creating office of clerk of drainage board. The Drainage act of 1897, (Laws of 1897, p. 207,) which provides that the drainage commissioners shall select one of their number to act as clerk of the board in the place of the town clerk, who was created clerk of the drainage board by section 2 of the act of 1885, does not affect the power and duty of the town clerk to give notice of the filing of a petition for combined drainage, as is provided in section 12 of the act of 1885. •</p>

<p>1. Special assessments — proper course where cost exceeds assessment. If an improvement ordinance is valid but the estimate of cost proves too low, the city may provide for a supplemental assessment under section 59 of the Improvement act of 1897, in which case the first judgments stand as a prima facie adjudication on the question of benefits, and as a final adjudication if upon the former hearing it was specially found, in terms, that the property objected for would be benefited no more than the amount assessed against it.</p> <p>2. Same — section 56 of Improvement act of 1897 construed. The true construction of section 56 of the Improvement act of 1897 is, that confirmation judgments are final unless reversed, or unless vacated or modified by mutual consent, or vacated by the city of its own motion upon determining to abandon the improvement.</p> <p>3. Same — city cannot vacate judgments and repeal ordinance and immediately re-enact it. Section 56 of the Improvement act of 1897 does not authorize a city, upon discovering that the cost of an improvement under a valid ordinance cannot be met by the amount assessed as special benefits, to vacate the judgments of confirmation, repeal the ordinance, re-enact it and proceed to litigate anew the question of benefits with a view to increase the amount.</p> <p>4. Same — when orders vacating confirmation judgments are void. Orders obtained by a city of its own motion, vacating confirmation judgments after repealing the ordinance, are void where the city does not intend to abandon the improvement, but, on the contrary, immediately re-enacts the ordinance with a view to obtain confirmation judgments for increased amounts, and such former judgments are effective as adjudications of benefits from improvement.</p>

<p>1. Public improvements — objectors have the burden of overcoming prima facie sufficient petition. If the city has made a prima facie case by introducing in evidence a property owner’s petition apparently sufficient, the recommendation of the improvement board and the ordinance, the burden is upon the objectors to show that the petition is not sufficient.</p> <p>2. Same — authority of agent to sign am, improvement petition need not affirmatively appear. The authority of the general manager of a railroad to sign an improvement petition need not accompany the petition nor appear upon the face of it, since it will be presumed, under section 9 of the Improvement act of 1897, in the absence of proof to the contrary.</p>

Writ of Error to the Appellate Court for the Second District; — heard in that court on appeal from the Circuit Court of Lee county; the Hon. James Shaw, Judge, presiding.

<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 Gibbons, Judge, presiding.</p>

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

Jonas Hutchinson, Judge, presiding. This is an action of trespass on the case, brought on June 17,1895, in the superior court of Cook county by the appellee, a minor, suing by his next friend, against the appellant to recover damages for personal injuries., A plea of not guilty was filed. A trial was had before the court and a jury, which resulted in a verdict of guilty against the defendant, and assessing damages in favor of the plaintiff.

<p>paid for by assessment is for the county court. A city has power to pass an ordinance for the construction, by special assessment, of sidewalks as an entirety, including sidewalk intersections; and while the property owner may submit to the county court the question whether the city should not pay for such intersections, the Supreme Court cannot review the county court’s decision thereof. 1. Special assessments — whether sidewalk intersections should be</p> <p>2. Same — one cannot object that ordinance oppresses other parties who do not complain. If the evidence shows that the sidewalk in front of the objector’s property is in bad condition and that a new walk is needed, he cannot complain that the ordinance is oppressive as to other property owners who have good walks.</p> <p>3. Same — when description of stone for a sidewalk is sufficient. The thickness of stone for a sidewalk is sufficiently specified by an ordinance providing that no stone shall be less than four and one-half feet wide and ten inches in thickness.</p> <p>4. Same — what does not render sidewalk ordinance void. An ordinance for a fourteen-foot stone sidewalk from the lot line to the curb is not rendered void because of the fact that, owing to the objector’s building being a few inches over the line, the space between the building and the curb is but thirteen feet.</p> <p>5. Same — effect on sidewalk ordinance of proof of area in front of the building. An ordinance providing for a sidewalk of such width as would cover an area in front of the objector’s building, used for stairways and to furnish light to the basement, is not invalid, where there is no proof that the objector has a right to occupy such area as against the city.</p>

Elbridge Hanecy, Judge, presiding. This is an appeal by Jacob Glos, defendant below, from a decree rendered against him on a bill in chancery in the circuit court of Cook county, by Emory B. Perkins, to remove as clouds five several tax deeds to lot 34 of block 47, Washington Heights subdivision, in the village of Morgan Park, Cook county, Illinois.

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

<p>Writ op Error to the Circuit Court of Rock Island county; the Hon. W. H. Gest, Judge, presiding.</p>

Murray F. Tuley, Judge, presiding. This is an action of trespass on the case, brought on February 8,1896, by Appollonia Landgraf, as administratrix of the estate of Kittie Landgraf, deceased, against Abraham Kuh, Adolph Nathan and Siegfried M. Fischer, to recover damages for the death of said Kittie Landgraf, alleged to have resulted from the failure of the appellees, defendants below, to provide a certain building owned by them and situated in the city of Chicago, where the…

<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>

<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. A. H. Chetlain, Judge, presiding.</p>

R. W. Clifford, Judge, presiding. ' This is an action of assumpsit brought, on August 21, 1895, by the appellee, the Meriden Britannia Company, against appellant, Eugene P. Palmer, and óne C. Marion Hotchkin upon or under a certain lease dated April 1, 1884. The action is based upon that clause of the lease herein set forth, which provides for the payment of $5000.00 at the end of the term. The original declaration consisted of two counts.

<p>Appeal from the Circuit Court of Kankakee county; the Hon. John Small, Judge, presiding.</p>

Murray F. Tuley, Judge, presiding. The appellees, and Arthur J. Howe and Gustavus A. Bodenschatz, on and for some three years prior to November 4, 1895, as partners, conducted a banking business in the city of Chicago under the name and style of “The Haymarket Produce Bank.” On said date appellees sold and conveyed their interest in the business to said Howe and Bodenschatz, who continued the business without change in the name thereof, and assumed to answer all the…

<p>1. Parks — section 1 of the Park act of 1895 construed. Section 1 of the Park act of 1895, (Laws of 1895, p. 272,) which provides that no park district shall include territory “already included in a park district or in a township whose corporate authorities are authorized by law to levy special taxes or special assessments to maintain a public park,” means townships whose corporate authorities were, prior to the act of 1895, authorized by law to improve parks by special taxation or assessment.</p> <p>2. Same — act of 1895 does not limit townships to one park district. The Park act of 1895, providing that park districts shall not include territory already included in a park district or in a township whose corporate authorities are authorized by law to levy special taxes or special assessments to maintain a public park, does not prohibit the organization of more than one park district in one township if' no part of the proposed districts embraces territory included in a district already organized.</p>

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

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

<p>1. Appeals and errors — when objection that the grand jury was improperly drawn comes too late. Alleged irregularity in drawing the grand jury is not an available objection after the accused has pleaded to the indictment and been convicted, where there was no motion to quash the indictment and the record fails to show that any evidence was offered as to the manner in which the grand jury was drawn.</p> <p>2. Evidence — probative force of dying declaration is for the jury. If a dying declaration was properly taken and made in anticipation of death, its probability and probative force are for the jury.</p> <p>3. Same — when statement is properly admitted as a dying, declaration. A statement is properly admitted as a dying declaration where, at the time it was made and signed, the declarant had not only been informed by physicians that she could not possibly live, but also realized that such was the case and so informed others.</p> <p>4. Instructions — when use of display type is not ground for reversal. The use of display type in instructions, although not a commendable practice, is not ground for reversal if the instructions in which such type is used are ordinary and general ones on questions not involving specific facts.</p> <p>5. Judgments and decrees — when objection to judgment is technical. An objection that a judgment of conviction uses the words “Cook county” instead of the corporate name “County of Cook” is merely technical, and does not affect the judgment where the indictment was presented by the grand jurors of the county of Cook and the accused was tried by the criminal court of- Cook county.</p> <p>6. Same — duration of imprisonment need not be fixed by judgment. A judgment of conviction need not specify the duration of imprisonment where the accused is convicted under the Indeterminate Sentence act, of a crime which does not require that the jury shall fix the term of sentence.</p> <p>7. The court reviews the evidence in this case, and holds it to be sufficient to sustain the conviction of the plaintiff in error of the crime of manslaughter in causing death by an abortion.</p>

R. S. Tuthill, Judge, presiding. November 1, 1895, appellant, as party of the first part, and Andrew Z. Olson, of the second part, entered into an agreement, the parts of which material to be considered in this case are as follows: “Whereas, said party of the first part is engaged in business in the line of clothing, men’s hats, caps, furnishing goods, etc., in the city of Chicago, and said A. Z. Olson is now employed by said first party as salesman and general assistant;…

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

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

<p>1. Taxes — what constitutes a collateral attack upon confirmation judgment. Resisting an application for a judgment of sale upon the ground that the county court was without jurisdiction to confirm the assessment constitutes a collateral attack upon the confirmation judgment.</p> <p>2. Same — recital as to due notice in confirmation judgment cannot be questioned collaterally. A recital in a confirmation judgment that “due notice, as required by law, has been given” of the application, return and time for final bearing, cannot be inquired into upon application for judgment of sale; nor, in such case, does an insufficient certificate of the publisher, contained in the record, overcome the court’s finding.</p>

<p>1. Railroads — right of railroad company to changeplan of construe-ti°n and operation. The right of a railroad company to the use of *ts ri&ht of way “for all uses and purposes connected with the construction, repair, maintenance and complete operation of said railroad” is not exhausted by the building of surface tracks, but is a continuing right, which enables it to change its methods of con-o o ? » struction and operation to meet the demands of a growing business and the changes wrought by the developments of society.</p> <p>2. Same — damage flowing from an increased use of right of way is damnum absque injuria. Damage by way of increased noise, smoke, cinders, etc., due to track elevation and consequent changes in operating the railroad, is damnum absque injuria as to the owner of an adjoining lot purchased after the recording of the deed granting the railroad company a right of way for all purposes connected with the complete operation of the railroad.</p> <p>3. Same — right of railroad company to free use of right of way. A railroad company, when invested with the fee of the right of way, is, except in the discharge of its duties as common carrier, the owner of and entitled to the exclusive use and control of such right of way, relieved from any rights therein of adjoining owners to the same extent as a private person would be.</p> <p>4. Same — abutting owner not entitled to easement of light and air in right of way. A railroad right of way is not a public highway in the ■ sense that an adjoining lot owner may have an easement of light, air and view therein, and hence no damages are recoverable for an injury to light, air and view resulting from the elevation of the company’s tracks.</p>

<p>1. Costs — right of an infant plaintiff to prosecute as a poor person. Upon motion to dismiss a suit for personal injuries to an infant upon the ground that no bond for costs had been filed, the court may allow a cross-motion for leave to prosecute as a poor person, upon satisfactory proof that both the infant and his next friend are insolvent. (Chicago and Iowa Railroad Co. v. Lane, 130 Ill. 116, followed; Illinois Central Railroad Co. v. Latimer, 128 id. 163, explained.)</p> <p>2. Fellow-servant — what does not render mine manager a fellow-servant of miner. An assistant mine manager who temporarily takes charge of and runs a machine for undercutting coal, for the purpose of ascertaining its defect so he may repair it, as part of his duties as assistant manager, does not, as matter of law, thereby become the fellow-servant of the shoveler who follows the machine.</p> <p>3. Master and servant — when employer’s rule making danger from falling coal a usual risk does not apply. A rule adopted and posted by a mining company that the danger of injury from falling coal is one of the usual risks of the service and employees must govern themselves accordingly, does not apply to a case where a miner is injured by a fall of coal occasioned by the negligence of one acting in his capacity as vice-principal.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Philip Stein, Judge, presiding. ,v</p>

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

<p>1. Appeals and errors — when decision of questions on first appeal is conclusive. The decision of certain questions adversely to the appellant on first appeal is conclusive of such questions on second appeal, where no additional evidence was heard at the second trial.</p> <p>2. Limitations — second payment of taxes is unavailing. Seven successive years’ payment of taxes by the defendant in ejectment is not sustained by evidence that the plaintiff and the defendant each paid the taxes on the property for nineteen years, during which period, with the exception of three times, the plaintiff paid them first, thus satisfying and discharging them and rendering the defendant’s subsequent payment unavailing.</p> <p>3. Boundaries — verdict on conflicting evidence and under correct in~ structions should stand. In ejectment the question whether a boundary line was established where the defendant built a new fence is one of fact for the jury, and their verdict should not be disturbed on appeal, where they were fairly instructed as to the law and the evidence is conflicting and irreconcilable.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. Frank Baker, Judge, presiding. At the May term, 1900, of the criminal court of Cook county, Michael J. Synon, the plaintiff in error, was convicted of the murder of his wife and sentenced to suffer the penalty of death. At a former term of this court a supersedeas was granted, and the case is now before the court for review on writ of error.

<p>1. Criminal law — intent to rob must be clearly proved. One indicted for assault with intent to rob can only be convicted of the offense charged, by proof the assault was made with the specific intent.</p> <p>2. Same — when charge of intent to rob is'refuted. The charge of assault with intent to rob is refuted where it is shown that nothing of value was taken from the person of the party assaulted, and there is an entire absence of proof of any attempt to rob.</p> <p>3. Evidence — a conversation showing willingness to commit another crime is inadmissible. A conversation between the accused and the witness tending to show a willingness on the part of the accused to commit another offense entirely distinct from the one for which he was indicted is inadmissible.</p> <p>4. Instructions — when an instruction in criminal case is erroneous. An instruction for the People, in the trial of defendants jointly indicted for assault with intent to rob, is erroneous which authorizes the jury to find the defendants guilty if either of them, by the advice and encouragement of the other, committed the assault in the “manner and form” as charged in the indictment, since the manner and form of the assault cannot be said to include the intent with which it is charged to have been made.</p>