Volume 189 — Illinois Reports

Farlin Q. Ball, Judge, presiding. The following is the statement of facts in this case made by the Appellate Court: “The amended bill alleges that complainants are creditors of John Fitzgerald, deceased, to the extent of about $70,000.00; that the said Fitzgerald died in Lincoln, Nebraska, on the 30th day of December, 1894, intestate, and that letters of administration were granted to Mary Fitzgerald, his widow, defendant herein, as administratrix, in the county court of…

<p>1. Negligence—when breach of ordinance constitutes a prima facie case of negligence. In an action by an employee for injuries received from falling down an open elevator shaft, proof of the defendant’s violation of a city ordinance requiring all persons controlling passenger or freight elevators in buildings to employ some person to take charge of and operate the same, constitutes a prima facie case of negligence, if such violation caused or contributed to the injury. 2. The court reviews the evidence in this case, and holds that the trial court properly refused to exclude the evidence and peremptorily instruct the jury to return a verdict for defendant.</p>

Alexander McElroy, Judge, presiding. This is a petition or statement in writing, filed by the appellant, George Collier, on May 19, 1900, and amended at a subsequent date, in the county court of Ford county, for the purpose of contesting the election of the appellee, Fred Anlicker, who was declared elected to the office of school director of school district No. 3, in township No. 25, range No. 7, in the county of Ford.

<p>1. Municipal corporations—liability of city for damage to abutting property. The removal of the lateral support of an abutting lot when excavating for street improvement renders the city liable for damages, if there be any; but if the market value of the lot is not decreased when the whole effect of the improvement is considered, there can be no damage and no recovery.</p> <p>2. Damages—there is a distinction between taking and damaging property. The present constitution makes a distinction between the taking and the damaging of property, and, if not actually taken for public use, the whole consequence of the improvement must be considered in order to determine whether the property is damaged.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. S. L. Dwight, Judge, presiding.</p>

<p>1. Limitations—effect of intervening estate by curtesy. When an estate by curtesy exists, the Statute of Limitations does not run against the wife or her descendants while such estate continues, since the husband is the party entitled to sue for possession.</p> <p>2. Same—effect where estate by curtesy' becomes barred. The completion of the bar of the statute against an estate by the curtesy does not start the statute to running against the remainder in fee vested in the heirs of the wife, since, though the estate by curtesy is barred, it is not merged in the fee, and the fee owners have no right to enter or sue for possession during the husband’s lifetime.</p> <p>3. Evidence—what sufficient to show disseizin of co-tenants. The execution of a deed by one alleged co-tenant with full covenants of title, and the subsequent re-purchase Of the land by him under a deed containing like covenants, together with the record of the deeds and his subsequent possession and acts indicating an ppen claim of exclusive ownership, are sufficient to show a disseizin of his alleged co-tenants.</p> <p>4. Color op title—bad faith must be established by proof. Bad faith must be established by proof before the effect of a deed as color of title can be defeated upon that ground.</p>

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

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

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

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

<p>1. Evidence—admissibility of photographs of scene of accident. Photographs of the scene of an accident, taken soon after the injury, are admissible at the trial, where the condition of the place has not changed between the time of the accident and the time of photographing, and there is nothing in the photographs themselves, or in the evidence, tending to discredit them as accurate representations of the scene at the time the injury occurred.</p> <p>2. Railroads—when evidence that track was ballasted in customary manner is not admissible. In an action for death, if there is no complaint as to the general manner in which the side-track where the accident occurred was ballasted it is proper to refuse to admit evidence that it was ballasted in the usual and customary way.</p> <p>3. Same—what essential to recovery for failure to provide safe place to work. To authorize a recovery against a railroad company for failing to provide an employee with a safe place to work, it must be shown that the defect complained of existed, that the defendant had notice thereof or might have had by the exercise of ordinary care, and that the employee did not know of the defect and had not an equal means of knowledge with the master.</p> <p>4. Same—rule prohibiting servant’s recovery for lenown defect is based on doctrine of assumed risk. The rule prohibiting a recovery by a servant for a defect known to him which the master had not promised to remedy does not rest upon the ground of contributory negligence upon the part of the servant, but upon the doctrine of assumed risk.</p>

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

Writ of Error to the; Circuit Court of Coles county; the Hon. Frank K. Dunn, Judge, presiding.

<p>Taxes—in absence of fraud, question of valuation of property for taxation is not for courts. The ascertainment of the valuation of property for taxation by the person or persons appointed or elected as provided by the act of the legislature is not, in the absence of fraud, subject to the supervision o’f the courts.</p>

<p>Appeal from the County Court of Christian county; the Hon. Rupus M. Potts, Judge, presiding.</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. Richard S. Tuthill, Judge, presiding.</p>

Charles H. Donnelly, Judge, presiding. This is an action of assumpsit, begun on August 4, 1898, by appellees, Ben.

<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. Charles A. Barnes, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Macon county; the Hon'. Edward P. Vail, Judge, presiding.

<p>1. Street railways—/aci that street ear has, generally, a superior right of way does not lessen care required of gripman. The fact that a street car company has generally a superior right of way along its line at places other than street crossings does not lessen the amount of care required of servants in charge of cars with respect to the safety of persons rightfully upon the public street.</p> <p>2. Same—right of persons to use street car track for travel. Although street cars have a superior right of way to general travel on streets at places other than crossings to the extent that those traveling by other means must give the right of way to moving cars, still the general public may use and travel upon the entire street, including the car tracks in such street, and are in no sense to be treated as trespassers for so doing.</p>

Charles H. Donnelly, Judge, presiding. One Charles Netcher, the owner of the premises known as No. 81 East Madison street, city of Chicago, on which is situate a four-story stone-front building, by his written lease granted the store floor and basement thereof to the appellee, Thompson, from the first day of May, 1898, until the 30th day of April, 1899, for the annual rental of §3250.

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. A. H. Chetlain, Judge, presiding.

<p>1. Appeals and errors—Supreme Court cannot review foreclosure proceedings involving less than $1000. If the amount involved in foreclosure proceedings is less than $1000 the Supreme Court cannot review the decision of the Appellate Court, in the absence of a certificate of importance.</p> <p>2. Same—when amount involved is determined by the judgment. In actions ex contractu where the judgment is in favor of the plaintiff, and he does not complain thereof and no counter-claim has been set up by the defendant by way of set-off, the amount of the judgment is conclusive of the amount involved.</p> <p>3. Same—right of appeal cannot be secured by merely alleging that more than $1000 is due. A complainant in foreclosure cannot secure a right of appeal to the Supreme Court by merely alleging more than is actually due or claimed to be due on the mortgage; nor does such allegation give the defendant such right of appeal.</p>

<p>Writ op Error to the Circuit Court of Randolph county; the Hon. William Hartzell, Judge, presiding.</p>

<p>Appeal from the County Court of Kane county; the Hon. M. O. Southworth, Judge, presiding.</p>

<p>1. Conveyances—in equity, vendee in bond for deed is regarded as the owner of the land. In equity, upon the execution of a bond for deed and notes for the purchase money, the vendee is regarded as the owner of the land and the vendor the owner of the purchase money, the transaction being considered as in the nature of a mortgage, and treated as though a conveyance had been made to the vendee and a re-conveyance taken back which is capable of assignment.</p> <p>2. Same—effect of assignment of notes by vendor inbond for deed. The assignment by a vendor in a bond for deed of the purchase money notes carries with them the lien upon the land to secure their payment, and the assignor thereupon ceases to have any interest in the notes and only holds the legal title in trust to secure the purchase money, upon payment of which it is his duty to convey the legal title to the vendee.</p> <p>3. Deeds—when deeds do not pass after-acquired title. Deeds containing no covenants of warranty, and which expressly limit the estate conveyed to the interest the grantors inherited from their father, do not pass title subsequently inherited by the grantors from their grandfather, who was living when the deeds were made.</p> <p>4. Vendors’ liens—lien for purchase money on bond for deed is not a vendor's lien. A vendor’s lien is one arising by implication of law and not by contract, and hence the lien of a vendor under a bond for deed is not a “vendor’s lien” but a lien created by express contract, and may be assigned and enforced in equity by the assignee.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. John H. Moffett, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Payette county; the Hon. S. L. Dwight, Judge, presiding.</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. S. C. Stough, Judge, presiding.

<p>1. Appeals and errors—when amount involved in replevin appeal exceeds $1000. The amount involved in an appeal in replevin exceeds $1000 where the affidavit for the writ of replevin states that the value of the property is $3000 and there is no evidence in the record that the value is less.</p> <p>2. Replevin—a plea of non cepit does not authorize a judgment for retorna habendo. In replevin, a plea of non cepit only puts in issue the taking of the property, and does not authorize a judgment for a retorno habendo.</p> <p>3. Same—verdict of not guilty—to what issues responsive. A verdict of not guilty is responsive to those issues, only, under which the plaintiff is admitted to be the owner of the property, and hence it is erroneous to award a writ of retorno habendo thereon.</p> <p>4. Same—when a judgment for retorno habendo may be rendered. A judgment for a return of the property can only be rendered where it appears from the issues tried and verdict returned that the plaintiff is not the owner of the property.</p>

S. L. Dwight, Judge, presiding. On November 4, 1893, Joseph Stickel, of Montgomery county, this State, died testate, leaving the appellants, ■ Alexander W. Stickel, John A. Stickel, Fletcher A. Stickel and Nancy A. E. Seymour, and the appellee'Ella C. Crane, an only child by his last wife, his only children, and his widow, Sarah Stickel, surviving him.

<p>Writ of Error to the Circuit Court of Madison county; the Hon. William Hartzell, Judge, presiding.</p>

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

<p>1. Taxes—board need not produce evidence on which it acts in increasing an assessment. On the hearing of the question whether the assessment of a tax-payer’s property should be increased, it is not necessary to the validity of the board’s action in increasing the assessment that it produce evidence on which such action is based.</p> <p>2. Same—that an assessment record does not show increase on different items is not ground for enjoining tax. While the assessment record should show the increased valuation of the different kinds of prop- • erty as made by the board of review, and not merely the increased valuation of one-fifth of the total, yet the omission of such showing is not ground for enjoining the collection of the tax. (Earl & Wilson v. Raymond, 188 Ill. 15, followed.)</p>

<p>1. Taxes—taxable situs of credits is generally at domicile of creditor. Credits owned by a non-resident have their taxable situs at his domicile, and not in this State, although an exception to this rule may exist where they are kept within the limits of this State and employed permanently in business by the owner or by his agent residing in this State, and having physical control of the documents evidencing such credits. (Board of Supervisors v. Davenport, 40 Ill. 197, distinguished.)</p> <p>2. Same—what not ground for separating situs of credits from domicile of owner. That the owner of credits who resides in another State has an agent in Illinois to receive applications for loans and to transact other business, and that the owner comes to Illinois once a month, but only temporarily, to transact business with reference'to such credits, does not constitute him a “resident” of Illinois, and, in the absence of proof that the documents evidencing such credits are actually in Illinois, there is no ground for separating the taxable situs from the domicile.of the creditor.</p>

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

<p>1. Contracts—contract for furnishing brick to public contractor construed. A provision in a contract to furnish brick required by a contractor on a public improvement, whereby the contractor agrees to pay for the brick within sixty days after bonds for the payment of the public contract have been delivered to him by the city, does not make his liability for the price of the brick áepend upon his receiving “valid, merchantable bonds” from the city, but, on the contrary, he is absolutely liable therefor, and any loss due to the city’s failure to make payment must fall on him, and not upon the parties furnishing the brick under the contract.</p> <p>2. Evidence—admissibility of parol evidence to show that contract is a partnership obligation. In an action on a written instrument signed by one person, parol evidence is competent to show that the contract is that of a partnership, and that the firm entered into the contract in the name and style of the individual who signed.</p> <p>3. Same—admissibility of declarations to show the fact of partnership. In an action by a third person against others as co-partners, where the existence of the partnership is denied, declarations of either alleged partner tending to show the fact of the partnership and that the contract in suit is a partnership obligation are admissible against the declarant, but not admissible against the other alleged partner unless made in his presence or assented to by him.</p> <p>4. Same—when declarations of alleged partners are admissible though not made in each other’s presence. If the existence of a partnership relation has been prima facie established, acts and declarations of the alleged co-partners, though not done or made in each other’s presence, are admissible in aid of the prima facie case.</p> <p>5. Triar—permitting leading questions is discretionary with the court. Permitting leading questions is a matter within the sound discretion of the court, although a manifest and injurious abuse of such discretion may be corrected by an appellate tribunal.</p> <p>6. Partnership—parties not in fact partners may be liable as such to third persons. Since parties may so conduct themselves as to become liable to third persons as partners though they are not partners in fact, it is not essential in an action against them by a third person, that an instruction defining partnership should be as comprehensive and accurate as when the issue is between the alleged co-partners themselves.</p>

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

James A. Creighton, Judge, presiding. Appellee, John J. Dorsey, as administrator of the estate of William H. Shrigley, deceased, sued appellant, the St. Louis, Peoria and Northern Railway Company, in an action on the case to recover damages for causing the death of his intestate.

<p>Appeal from the City Court of the city of Alton; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>Appeal from the County Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.</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 Gibbons, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Kankakee county; the Hon. Robert W. Hilscher, Judge, presiding.</p>

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

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

<p>1. Color op title—deed relied upon as color must contain certain description. It is essential to a deed relied upon as color of title, that the premises be described with the same degree of certainty as is required in deeds relied upon as absolute conveyances.</p> <p>2. Same—when deed is insufficient as color of title. A deed is insufficient as color of title where it refers to another deed for the correct description and the latter is not introduced in evidence.</p> <p>3. Plats—when plat is properly admitted in evidence. A completed plat, certified by the surveyor, acknowledged by the owners of the land and recorded in compliance with the statute, is admissible in evidence in ejectment, notwithstanding the surveyor testifies he did not make the survey but does not deny making the certificate.</p> <p>4. Same—plat is admissible to aid in identifying lot which deed purports to convey. Plaintiff in ejectment having a conveyance for property described as a lot, and which is numbered as a lot and its position marked on a plat, is entitled to introduce the plat in evidence, in connection with his deed, for the purpose of identifying the lot which the deed purported to convey to him.</p> <p>■5. Same—surveyor not competent to impeach his own certificate. A surveyor is not competent to impeach his own certificate to the plat.</p> <p>6. Trial—defendant in ejectment entitled to have jury instructed as to burden of proof. In an ejectment case involving questions of fact, which the law requires the plaintiff to prove hy producing the greater weight of evidence, the defendant is entitled to have the jury instructed as to such rule of evidence.</p> <p>7. Same—court should not invade province of jury. Where there is a controversy as to whether the strip of land in controversy is an accretion to one tract of land or more than one, it is error for the court to assume, in its instructions, that the strip is an accretion to a particular tract.</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. Theodore Brentano, Judge, presiding.

Richard S. Tuthill, Judge, presiding. This is an action begun in the circuit court of Cook county by Michael T. Haley, administrator of George M. Haley, deceased, against the Prudential Insurance Company, to recover upon a policy of life insurance.

<p>1. Murder—what evidence will sustain conviction. Conviction for murder is sustained by proof that the accused was the aggressor in the affray, into which he entered armed with a deadly weapon; that he fired the fatal shot intentionally, never at any time in good faith declining further combat; that he did not fire the shot under the influence of real fear of great personal injury, and that although he fired in the beat of passion, he did so without provocation sufficient to excite ungovernable anger.</p> <p>2. Appeals and errors—harmless admission of incompetent testimony will not reverse. If competent proof clearly justifies the verdict in a criminal case, the fact that incompetent testimony was admitted is not necessarily ground for reversal, if it appears such testimony could not reasonably have affected the result.</p>

F. Book Walter, Judge, presiding. This cause originated in the county court of Vermilion county upon petition of appellants for a citation :against the appellee to show cause why he -should not proceed to sell certain real estate of which his testator died seized, for the purpose of paying claims theretofore probated and allowed in said court against the estate.

<p>Writ op Error to the County Court of Cook county; the Hon. Orrin 1ST. Carter, Judge, presiding.</p>

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

<p>Appeal from the County Court of Logan county; the Hon. James A. McComas, Judge, presiding.</p>

<p>1. Contracts—contract for personal services may be assigned by consent. A contract’ for personal services requiring skill and experience may be assigned with the consent of the party for whom the service is to be performed.</p> <p>2. Evidence—when lease is properly admitted in evidence. Although a lessee has assigned the lease for the balance of the term, yet he may sue the lessor for damages for breach of covenants while he held the lease, and the lease may be put in evidence in such'action.</p> <p>3. Statute of Frauds—statute cannot be invoked to 'avoid executed contracts. The Statute of Frauds, requiring leases and assignments thereof for a term exceeding one year to be in writing, cannot be invoked to avoid an assignment which has been carried into full and complete execution.</p> <p>4. Damages—when profits may be proven as the measure of damages. In an action for breach of contract, profits may be proven as the measure of damages when susceptible of being proven with reasonable certainty, where such profits'were known by both contracting parties to be the object and inducement of the contract.</p> <p>5. Same—what proper in determining damages for breach of covenant to stop trains at hotel. In an action by a lessee of a railroad hotel for breach of the lessor’s covenant to stop its trains at the hotel for meals, it is proper to permit plaintiff's witnesses, if properly qualified, to express opinions as to the rental value of the hotel with and without trains stopping in compliance with the terms of the lease, and the value of the leasehold interest with and without such compliance. ' ,</p>

Writ of Error to the Circuit Court of Cook county; the Hon. Abner Smith, Judge, presiding.

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

<p>Contracts—when rule that an agreement to ship from specified place at certain time is a warranty does not apply. An agreement to ship at a certain time from a specified place is generally a warranty that the shipment will be made at such time; but this rule cannot be applied to an executory contract for the sale of five cars of eggs to be delivered in Chicago, without any agreement as to time of delivery further than that the cars be shipped from points in the States named, on c.ertain days of the following week.</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. Marcus Kavanagh, Judge, presiding. "</p>

Edward P. Vail, Judge, presiding. On the 20th day of July, 1900, the appellee recovered a judgment against the appellants for the sum of $2500 in the circuit court of Cook county. Appellants prayed an appeal to the Appellate Court for the First District, which was allowed upon the appellants filing an appeal bond in the sum of $4000, to be approved by the clerk of the circuit court, and a bill of exceptions within sixty days.

Writ op Error to the Appellate Court- for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.

<p>Taxes—burden of proving appropriation ordinance invalid is upon objector. The burden of proving an appropriation ordinance invalid because it purports to be for the fiscal year subsequent to the one in which it was passed is upon the objector, and if he fails to introduce such ordinance in evidence, relying upon proof as to its substance, and the levy ordinance, which was in- evidence, recites that the appropriation was made for the “current” fiscal year, the objection is not sustained by the proof.</p>

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

<p>1. Evidence—mere method of book-keeping does not overcome written contract. The weight and eSect of written contracts between the parties cannot be overcome by a mere method of book-keeping.</p> <p>2. Actions and defenses—when aparty may properly file bill for sale of equity in property. The grantee in a deed absolute in form but in fact a mortgage may file a bill for the sale of his equity in the property, notwithstanding the agreements between the parties provide that he may himself make sale and account for the proceeds.</p>

<p>1. Actions and defenses—suit begun by attorney without authority should be dismissed. If an attorney commence a suit in the name of another without authority, it is the duty of the court to dismiss the same on motion of the defendant.</p> <p>2. Same—possession of certified copy of foreign judgment is not evidence of ownership. The possession of a certified copy of a foreign judgment is no evidence of ownership, and an attorney suing on such judgment should be required to show his authority whenever the showing made in support of the motion to dismiss satisfies the court that there is a reasonable probability that the suit is being prosecuted without authority of the judgment creditor or beneficial owner of the judgment.</p> <p>3. Same—what sufficient to require dismissal of case in absence of proof of authority to sue. A written statement by the nominal plaintiff, though not sworn to, that the suit was prosecuted without his authority, which statement is supported by the admission of the attorney for plaintiff that he does not claim to represent the nominal plaintiff but the owner of the judgment on which the suit is brought, is sufficient to require a dismissal of the case, unless such showing is overcome by proof that the judgment had been assigned and that the attorney was authorized to represent the assignee.</p> <p>á. Same—defendant has an interest in knowing that a suit on foreign judgment is being prosecuted by the owner. Upon a showing that a suit on a foreign judgment is being prosecuted without the knowledge or authority of the plaintiff in whose name the suit is brought, the suit should be dismissed, unless the attorney for the plaintiff discloses to the court who his client is and that he has a beneficial interest in the suit.</p> <p>5. Same—when motion to dismiss is made in time. A defendant has the right to presume that the suit was authoritatively commenced until he is advised to the contrary, and hence his motion to dismiss, immediately after discovering such want of authority, is in time.</p> <p>6. Same—what not a ratification of authority to bring suit. The fact that after an order of dismissal is entered by the court, for want of authority on the part of the attorney to bring suit, the plaintiff signs an appeal bond, does not amount to a ratification of authority to bring the suit. .</p>

Edward P. Vail, Judge, presiding. This is an appeal from the circuit court of Cook county to reverse a judgment in favor of appellees, against appellant, in an action of ejectment, involving certain lands in Copk county. . In 1874 John S. Ferguson, of New Brunswick, was the owner of the land in controversy, having purchased it in 1868.

<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>

E. W. S. Wheatley, Judge, presiding. This is an appeal from a judgment, rendered by the county court of Cook county on October 24,1900, upon the application of the county treasurer and ex officio county collector of that county for judgment for the general taxes of 1899 against lands of the appellant. Appellant, upon the trial below, filed objections to the entry of judgment against its property.

Farlin Q. Ball, Judge, presiding. This case has been before this court before, and the decision upon the former hearing is reported as Pease v. Ditto, 185 Ill. 317.

Murray F. Tuley, Judge, presiding. The appellees filed a bill in chancery in the circuit court of Cook county against the appellant and other defendants, to foreclose a mortgage upon certain real estate located in said county.

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

Clair county; the Hon. William Hartzell, Judge, presiding. This case comes from the circuit court of St. Clair county by appeal. Cora Belle Abbott and George B. Abbott were formerly wife and husband. On September 12, 1899, she filed her bill in said circuit court for a divorce, and later a petition for alimony pending the suit, in which petition she alleged that the husband owned real and personal property of the value of $40,000 and that he had an annual income of $5000.

John A. Gray, Judge, presiding. This is a bill for partition, filed on April 12, 1899, by the appellant against thé appellees, brothers and sisters of the appellant, and children of Gebrge C. Williams, deceased, and the executors of the will of said George C. Williams, deceased, praying for the partition of seventy-eight acres of land in Fulton county, alleged to be the residuary estate of said George C. Williams, deceased, who was a widower at the time of his death.

<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>

the Hon. Colostin D. Myers, Judge, presiding. The original bill in this case was filed on March 24, 1899, and the amended bill was filed on May 27,1899. The bill, as originally filed by the appellant, James Shields, and as subsequently amended by him, seeks to set aside a deed of certain lands, made by him to his wife in her lifetime, as a cloud upon his title to such lands. The defendants to the bill are the heirs of the deceased wife of the appellant.

W. T. Church, Judge, presiding. This is an appeal from a judgment, entered by the county court of Mercer county upon application of the county collector for judgment and order of sale of lands for delinquent taxes.

<p>1. Negligence—what must be shown in an action for negligence. In order to maintain an action for injury by reason of negligence, there must be shown to exist some obligation or duty towards the plaintiff which the defendant has left undischarged or unfulfilled.</p> <p>2. Railroads—railroad company owes no duty to trespassers. In the operation of its trains a railroad company owes no duty to a trespasser upon its right of way or tracks, except that it will not wantonly or willfully injure him.</p> <p>3. Same—what does not show a willful disregard of duly. The fact that signals required by statutes or ordinances are not given, even " though those operating trains may have knowledge that persons have been in the habit of crossing its tracks or walking upon them at places other than public places or public crossings, does not establish wanton or willful disregard of duty by a railroad company toward such persons. / •</p>

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

<p>Appeal from the County Court of Mercer county; the Hon. W. T. Church, Judge, presiding.</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>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. O. P. Thompson, Judge, presiding.</p>

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

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Marion county; the Hon. William M. Farmer, Judge, presiding.

<p>1. Taxes—right of guardian to object to tax against ward’s property. The removal of a guardian and ward from the State, while it may be ground for the discharge of the guardian by the county court does not affect the validity of an objection by her, as guardian, against the taxing of the ward’s property which has no taxable situs in this State. ,</p> <p>2. The other questions involved are controlled by the decision in Maxwell v. People, {ante, p. 546.)</p>

<p>1. Elections-—whether ballots were properly preserved depends on the facts of each case. The statute being silent as to the place and particular manner in which election ballots shall be kept after they have been properly returned to the designated officer, the question whether they have been properly preserved is necessarily one of fact, to be determined-from all the circumstances in each case.</p> <p>2. Same—when ballots are properly admitted in evidence. Ballots are properly admitted in evidence on contest where they were properly returned to the village clerk, who put the envelope containing them in a wooden ballot-box, which he locked up (retaining the custody of the key) and placed in the back room of his printing office, which he considered a safe place; and if there is an entire absence of testimony that the ballots, box or lock was tampered with, the fact that the lock is a common one and that other persons had access to the room does not render the ballots inadmissible.</p>

Writ op Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding.

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

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

<p>Appeals and errors—Appellate Court must remand for new trial if reversal is for error of law.. A reversal by the Appellate Court for error in an instruction is a reversal for error of law, which may be corrected upon another trial, and hence the A ppellate Court should remand the case for new trial, and has no power to remand the cause with directions to the trial court to enter final judgment for the plaintiff for a specified amount.</p>