Volume 190 — Illinois Reports

<p>1. Negligence—what does not constitute actionable negligence. The mere fact that a railroad night watchman of mature years and of ordinary intelligence and experience is directed by his superior to go on extra duty, with other men, to arrest trespassers in the yards, does not, of itself, constitute actionable negligence.</p> <p>2. Same—what evidence tends to establish negligence by a railroad company. Evidence that gravel dumped between tracks in heaps, from one to two feet high, had been left unattended to by the company for several days at a point where employees were required to board moving trains, tends to establish negligence in that respect.</p> <p>3. Sam:e—when the danger from gravel piles cannot be said to be an assumed risk. The danger from heaps of gravel beside a track can not be said, as a matter of law, to be so open and obvious as to be an ordinary risk assumed by a railroad watchman out on extra duty to arrest trespassersi.'and directed by his superior to climb upon a moving train to arrest a man, where the attention of the watchman was fixed upon the man to prevent his escape, and where, being liable to be called in any direction without warning, he could not be expected to observe the condition of the tracks at all points.</p>

<p>Appeals and errors—when judgment of Appellate Court is not appealable. A judgment of the Appellate Court is not a final, appeal-able judgment which reverses a decree holding that appellee, as receiver, was not liable for certain ground rent, and which remands the cause to the trial court for such other and further proceedings as to law and justice shall appertain.</p>

<p>Appeals and errors—Ml to set aside a foreclosure sale and cancel certificate does not involve a freehold. A freehold is not involved in a proceeding wherein the defendants in foreclosure seek to have the sale set aside and the certificate of purchase issued by the master declared void, since the certificate does not convey title, and if the sale were set aside and the certificate declared void the only effect would be a re-sale of the property.</p>

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

<p>This case is controlled by the decision in Kuester v. City of Chicago, 187 Ill. 21.</p>

<p>1. Constitutional law—right to keep lodging house is a property right. The right to entertain lodgers in a lodging house, and to fix, by contract with them, the price to be paid for such accommodation and the number who shall occupy the same room at the same time for sleeping, is a liberty and a property right.</p> <p>2. Same—“due process of law” means a general law. “Due process of law,” as used in section 2 of article 2 of the constitution, providing that no person shall be deprived of liberty or property without due process of law, means a general public law, legally enacted, binding upon all members of the community under all circumstances, and not private laws affecting only the rights of private individuals or classes.</p> <p>3. Same—what is not within the term “due process of law.” An enactment which deprives one class of persons of the right to acquire and enjoy property, or to contract with relation thereto, in the same manner as others under like conditions and circumstances are permitted to acquire and enjoy property, is not comprehended by the constitutional term “due process of law,” and is prohibited by the provisions of section 22 of article 4 of the constitution, concerning special legislation.</p> <p>4. Same—when an act is in contravention of constitutional guaranties. An act which arbitrarily discriminates against one class in the transaction of a business of a lawful nature and leaves unaffected by the act other persons or classes engaged in acquiring property in a manner not distinguishable from that employed by those discriminated against, is in contravention of the constitutional guaranties respecting liberty and property.</p> <p>5. Same—section 16 of State Board of Health act, concerning lodging houses, is unconstitutional. Section 16 of the act on the State Board of Health, (Laws of 1899, p. 355,) providing that no more than six persons'shall sleep in the same room of any lodging house at the same time, is unconstitutional, being a discrimination against lodging houses, in favor of hotels, inns or boarding houses.</p> <p>6. Same—section 16 of State Board of Health act cannot be upheld as a police measure. Section 16 of the State Board of Health act, prohibiting more than six persons from sleeping in the same room of any lodging house, cannot be upheld as a proper exercise of police power by the legislature, designed as a sanitary measure.</p> <p>7. Same—when law will not be sustained as a health measure. Rights of property will not be permitted to be invaded under the guise of a police regulation for the preservation of health when such is clearly not the object and purpose of the regulation.</p> <p>8. Lodging houses—a lodging house keeper is not a hotel keeper. A lodging house keeper is not, in a legal sense, an inn keeper, a hotel keeper or a boarding house keeper, and hence section 16 of the State Board of Health act is directed only against lodging house keepers, while inn keepers, hotel keepers and boarding house keepers are not within the purview of its prohibition.</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>

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. S. L. Dwight, Judge, presiding.

Writ of Error to the Circuit Court of Morgan county; the Hon. James A. Creighton, Judge, presiding.

<p>Appeal from the Circuit Court of Stephenson county; the Hon. James Shaw, Judge, presiding.</p>

<p>1. Appeals and errors—failure of appellee to file brief is ground for reversal. Failure of the appellee to file a brief in the Supreme Court is of itself ground for reversal.</p> <p>2. Evidence—when admission of abstract of title is error. On the hearing before the examiner, in an application for initial registration of title, it is error to permit the petitioner, over specific objection, to introduce in evidence an abstract of title showing the record of conveyances which were indispensable links in petitioner’s chain of title, without requiring any preliminary proof which might render the abstract admissible as secondary evidence.</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. M. Kavanagh, Judge, presiding.</p>

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Frank Baker, 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. C. G. Neeley, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Jackson county; the Hon. Joseph P. Eobarts, Judge, presiding.</p>

<p>1. Payment—equity will credit payment so as to give creditor the best security. Equity requires the debtor to pay all his obligations, and the court will credit a payment so as to give the creditor the best security for the debt remaining unpaid.</p> <p>2. Same—when proceeds of a foreclosure sale should be last applied to interest on decree. If a defendant in foreclosure appeals and gives a bond for the payment, in case of affirmance, of such interest as might accrue and remain otherwise unpaid upon the decree from the date thereof, it is proper, upon affirmance, to apply the proceeds of the sale to satisfy fees, costs and principal before satisfying the interest on the decree, since the deficiency, if any, will thereby embrace the interest which is secured by the appeal bond.</p> <p>3. Same—right of debtor to direct application of payment applies only to voluntary payments. The right of a debtor to direct the application of a payment applies only to voluntary payments, and not to those made under compulsory process of law.</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. Murray F. Tuley, Judge, presiding.</p>

<p>1. Municipal corporations—when doctrine of estoppel is applied to municipal corporation. A municipal corporation is never estopped to deny its right to make a contract, but the doctrine of estoppel is applied to it when acting in its private as distinguished from its governmental capacity, if the act is within its charter powers.</p> <p>2. Counties—board of supervisors may appoint an agent to transact business affairs. The board of supervisors is entrusted with the business affairs of the county, and in the transaction of such business may appoint an agent.</p> <p>3. Same—when county is estopped to repudiate purchase of supplies by county cleric. In an action for the price of blank books and supplies ordered by the county clerk the county is estopped to deny the clerk’s authority to order the articles, where, by a course of dealing with the plaintiff for a number of years, it has recognized the county clerk as its agent by adopting and ratifying all his purchases and paying for the supplies as purchased.</p>

<p>Appeal from the Appellate Court for the Third District, from an order entered by that court expunging an order for costs from its judgment after the judgment had been affirmed by the Supreme Court.</p>

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

Charles Blanchard, Judge, presiding. This is an action on the case, brought by appellee against appellant to recover damages for injuries sustained by him in consequence of the caving in of the banks of a sewer, in which he was working for appellant under the direction of its street superintendent. The sewer caved in and seriously injured appellee. Two years later be brought this suit.

<p>1. Benefit societies—one suing on certificate need not prove member’s compliance with rules. In an action on a benefit certificate it is not incumbent upon the plaintiff, in the first instance, to prove the truth of the statements in the application for membership or the member’s compliance with the rules of the society, since falsity of statements or non-compliance with rules is matter of defense.</p> <p>2. Same—plaintiff need not show that the secretary, to whom notice was given, was legally elected. The plaintiff in an action on a benefit certificate, who has proven the giving of notice of death to the person acting as secretary of the society and in possession of the office and performing its duties, need not prove the legal election of such person as secretary by the record of his election.</p>

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

<p>Writ of Error to the Superior Court of Cook county; the Hon. A. H. Chetlain, 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. M. Kavanagh, Judge, presiding.

A. H. Chetlain, Judge, presiding. This is a proceeding, begun on May 25, 1899, by Sophia Gehrke by the filing of an original petition, alleging that she was entitled to dower in the lands of her deceased husband, Conrad Gehrke; that said dower had never been assigned or set off to her; that she had never received any compensation or equivalent therefor, and praying for a decree that she recover dower in the premises described in the petition—some eight or nine distinct…

Writ of Error to the Appellate Court for the Second District;-—heard in that court on writ of error to the Circuit Court of Kankakee county; the Hon. John Small, Judge, presiding.

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, 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. John Gibbons; Judge, presiding.</p>

John Small, Judge, presiding. Appellees James Curtis, and Celia, his wife, on September 1, 1899, in consideration of the sum of $125, conveyed lot 7, in block 5, railroad addition to the village of M'ilford, in Iroquois county, to the appellee Wilbur J. Prose, who is a son of the appellant. Said sum of $125, the consideration for the deed, was paid by appellant out of her own moneys. The deed was not placed of record.

Writ of Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. The original bill in this case was filed on December 5, 1898, and the amended bill on May 10, 1899, by Mary Goff and David Golf, her husband.

<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. Colostin D. Myers, Judge, presiding.</p>

John H. Moffett, Judge, presiding. This is a bill, filed on March 22, 1900, by the appellee against the appellant for the specific performance of a written contract for the sale of eighty acres of land in Ford county by the appellant to the appellee. Answer was filed to the bill by the appellant, and the cause was referred to a special master to take evidence and report his conclusions. Objections were filed to the report before the master and by him overruled.

Richard S. Tuthill, Judge, presiding. This is a bill for the partition of certain premises in the city of Chicago, filed by William Preston Harrison on July 26, 1900, against Caroline D. Owsley and Heaton Owsley, her husband; Carter H. Harrison and Edith Ogden Harrison, his wife; Sophonisba G. Eastman and BarrettEastman, her husband; Lina Harrison Owsley, Sophie Preston Owsley, Carter H. Harrison III, and Edith Ogden Harrison II.

Murray F. Tuley, Judge, presiding. The following, made by the Appellate Court, is a correct statement of this case: “Appellant filed his bill in the circuit court of Cook county against appellees, for an accounting of the co-partnership business of F. G. Logan & Co., a firm composed of appellant’s testator and appellees, and also of the co-partnership business of the firm of F. G. Logan, which latter firm was composed of the appellees, and asking that the appellees pay the…

Robert W. Hilscher, Judge, presiding. The appellant association is a corporation duly organized under the general statute of the State entitled “An act to enable associations of persons to become a body corporate to raise funds to be loaned only among the members of such association.” (Starr & Cur.

<p>1. Evidence—fires by locomotives—admissibility of “stack sheets” as documents. In an action against a railroad company for the burning of straw, “stack sheets,” showing the quantity of straw in each stack, arc admissible as original documents though prepared Aom scale tickets on which the weight of each load of straw was entered when it was received, where it appears the scale tickets were not preserved, and the persons who weighed the straw and made the scale tickets and stack sheets testify that the weights were correctly taken, correctly set down on the scale tickets and correctly transcribed to the stack sheets in each instance.</p> <p>2. Appeals and errors—when ruling on peremptory instruction is not preserved for review. The denial of a peremptory instruction' to, find for the defendant is not preserved for review as a question of law in the Supreme Court, where the motion is made at the close of the plaintiff’s evidence in chief and not renewed at the close of all the evidence, although after its denial the defendant introduced evidence in contradiction of that introduced by the plaintiff.</p> <p>3. Same—mere general assertion that ruling on instruction is wrong is not sufficient. The presumption obtains that the trial court ruled correctly on instructions, and in order to overcome such presumption an appellant or plaintiff in error must affirmatively disclose that error intervened.</p> <p>4. Same—errors not presented to notice of Appellate Gourt are ivaived. Only the judgment of the Appellate Court is presented to the Supreme Court for review on appeal, and hence it cannot be held that the Appellate Court erred upon a point not raised for decision.</p>

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

Appeal, from the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Whiteside county; the Hon. John C. Carver, Judge, presiding.

<p>1. Negligence—when question of contributory negligence is for the jury. The question of contributory negligence on the part of the plaintiff, who had waited at a public street crossing for an eastbound freight train to pass on the north track and then stepped across to the south track where he was struck by a train coming west, is for the jury, under evidence that the night was dark and that plaintiff did not see the headlight, if it was lit; that the train west was running with steam shut off and at a high and prohibited rate of speed over the most public traveled street of the village; that plaintiff’s view was obscured by smoke and dust from the other train, and that if the bell was rung plaintiff did not hear it owing to the noise made by the other train. *</p> <p>. 2. Evidence—what not improper cross-examination. If the defendant in a personal injury case calls a witness who testifies that he had never known a case where a person had been knocked forty feet by an engine and lived, it is proper, on cross-examination, for plaintiff’s counsel to ask him if he did not know a certain person, who lived in the vicinity, who had been knocked fifty feet by an engine and was still living.</p> <p>3. Witnesses—what witnesses competent to testify as to plaintiff’s age. The plaintiff in a personal injury case is a competent witness to testify as to his own age when he signed a release of damages; so, also, is a relative who had known the plaintiff since he was six years old, and had been informed by the plaintiff’s father, who had since died, on what day plaintiff was born; so, also, a woman who had known the plaintiff since he was an infant may testify as to the year in which he was born.</p> <p>4. Expert testimony—when opinions of experts are not to be received. Opinions of witnesses are not ordinarily to be received in evidence because they may have had some experience or greater opportunities for observation than others, unless such opinions relate to matters of skill and science.</p> <p>5. Same—when defendant cannot complain of plaintiff’s expert testi- ■ mony. Although the question whether a man can be knocked forty feet by an engine and live is not a proper subject for expert testimony, yet the defendant cannot complain of the opinions of medical experts called by the plaintiff to rebut the opinions of railroad men upon the subject, who were called by the defendant as experts.</p>

John Gibbons, Judge, presiding. One Charles H. Briggs became the owner of the Alabama Hotel property, in Chicago, subject to a deed of trust in the nature of a mortgage given by a former owner to secure an indebtedness of $16,000 to Edward Hotchkiss, and interest. Briggs and Michael J. Dunne exchanged properties, and Dunne thereby became vested with the title to the hotel.

<p>1. Railroads—when agreement to locate depots at certain places is valid. An agreement whereby a right of way is granted to a railroad company upon the express condition that it erect and maintain depots at certain placesWithout any restriction as to location of other depotsl^and upon the express understanding that the company will construct, operate and maintain a railroad and comply with all conditions and provisions of the contract, is valid and binding upon the company and its assigns, and, the conditions being regarded as conditions subsequent, a breach thereof renders the easement granted liable to forfeiture.</p> <p>2. Same—agreement to maintain and operate railroad is a continuing one. Where an easement of right of way is granted upon the express condition that the company construct, operate and maintain a railroad, the obligation is a continuing one, which is not satisfied by the maintenance and operation of a railroad for a period of years, after which the running of trains is abandoned.</p> <p>3. Pleading—demand for performance of condition subsequent is not necessary. It is not necessary, before filing a bill to recover an estate for breach of a condition subsequent, that the complainant make a demand for the performance of such a condition, as the grantor may treat the estate as reverting to him upon the breach and sue for the recovery of possession.</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. A. N. Waterman, Judge, presiding.

<p>1. Municipal corporations—rule as to right of recovery for injury to means of ingress and egress. The right of recovery for injury to property by cutting off access to the street from the construction of a public improvement is limited to cases where it appears there has been some direct physical disturbance to a right, public or private, which the plaintiff enjoyed in connection with his property and which gave it additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally.</p> <p>2. Same—property owner has no right that city shall not increase facilities for travel. The owner of property abutting upon the street has no right that traffic shall go past in a particular manner or that the city shall not increase the facilities for through travel.</p> <p>3. Same—when testimony on question of damages is improper. In an action by the owner of property abutting upon a street for damages arising from the construction of a viaduct, testimony upon the question of depreciation in market value of the property should be stricken out, on motion, when shown by cross-examination to be based largely upon the theory that the construction of the viaduct, which facilitated through travel, had rendered the property less valuable for business purposes by causing a diversion of custom from that part of the street on the part of persons who had formerly passed to and from work, and persons who had formerly been required to transfer and wait for cars at that point.</p> <p>4. Same—defective exercise of unquestioned power is no protection to city. If a city has power to pass an ordinance for the construction of a public improvement, the fact that such power is defectively exercised under an order of the city, and not under an ordinance, is no protection to the city in an' action for damages to abutting property, resulting from such construction.</p> <p>5. Instructions—evidence not proper for any purpose cannot be controlled by instruction. If evidence is competent for one purpose and not for another its application may be controlled by an explanation to the jury at the time it is admitted, or, in some cases, by an instruction; but if it is not proper for any purpose it is error to submit it to the jury.</p> <p>6. SAME^-when modification of instruction is erroneous. In an action for damages to abutting property from the construction of a viaduct, a modification of the defendant’s correct instruction on the question of diversion of traffic is improper which may he readily understood to hold that it is proper to consider diversion of traffic as affecting the market value if the suit is for damages to abutting property, though not if the suit is for loss of profits in business.</p> <p>7. Evidence—evidence as to effect of improvement upon other lots not connected with properly in suit is immaterial. In an action for damages to abutting property from construction of a viaduct, it is proper for the court to refuse to allow inquiries as to the effect of the improvement upon other lots in the same block but separated from the property in suit by an alley and fronting on another street.</p> <p>8. Trial—when defendant does not adopt plaintiff’s theory of the law so as to preclude complaint. Where plaintiff’s witnesses do not state the elements of damage upon which they base their estimates of depreciation in market value, the defendant may cross-examine them for the purpose of showing the basis to be unsound and illegal and of having the testimony stricken out; and he does not adopt such basis as the correct theory of the case by so doing, nor by introducing evidence to contradict their statements after the court has refused to rule the testimony out.</p> <p>9. Same—when remark by judge in presence of jury is error. After the judge has admitted a photograph in evidence showing the situation of the property in dispute, it is error for him to say, in the presence of the jury, that “it is for the jury to say how much stock they take in testimony of that kind.”</p>

<p>1. Electric companies—care commensurate with danger must he used in delivering electricity to houses. In undertaking, for hire, to deliver electricity into houses for use, the company must use such a degree of care and caution as is commensurate with the danger, which danger is enhanced by the consumer’s lack of knowledge as to the safety of the appliances employed to deliver it.</p> <p>2. Pleading—rule as to pleading in action for negligent operation of complicated machinery. Too great strictness in pleading ought not to be required in stating a cause of action arising out of the negligence of persons in operating complicated machinery or appliances, with the structure and operation of which the plaintiff can have but a limited knowledge.</p> <p>3. Same—declaration may he good after verdict though open to demurrer. That a declaration in an action for negligence may have been argumentative or too general in its allegations to stand the test of demurrer will not be ground for reversal of judgment, when the question is not raised by demurrer, but only after verdict.</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. Joseph E. Gary, 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. Jesse Holdom, Judge, presiding.</p>

<p>1. Schools—county superintendent's decision as to proposed change of district is final. On appeal to the county superintendent ftom the action of the boards of trustees of certain townships rejecting petitions for the formation of a new school district, it is his duty to investigate and determine whether the proposed change will be for the best interests of the districts affected, and his decision is final, in the absence of fraud or a flagrant abuse of his discretion.</p> <p>2. Injunction—equity will not ordinarily control the exercise of discretionary power by public officer. If public officers are invested with discretionary power, a court of equity will not interfere to control or review the exercise of such power, unless fraud, corruption, 11 oppression or gross injustice is plainly shown.</p> <p>3. Same—what does not render change of school district oppressive. A proposed change in a school district is not rendered unjust, unreasonable and oppressive by the fact that to carry out such change the district will have to be taxed to the statutory limit.</p> <p>4. Taxes—tax to pay proportionate share of school building is a tax for building purposes. A tax to enable a school district to pay its proportionate share of a school building is a tax for building and not for educational purposes.</p>

<p>1. Moetgages—a defendant in foreclosure has burden of oven'coming complainant’s prima facie case. In foreclosure by an administrator, the introduction of the notes, and mortgage, the same being in his possession and assigned to his intestate, makes a prima facie case for foreclosure, and the burden is upon the defendant to prove the defenses set up in his answer.</p> <p>2. Evidence—party calling for documentary evidence from adversary cannot accept favorable parts and reject others. A party who calls upon-his adversary for the production of documentary evidence cannot, when it -is produced, claim the benefit of such portion thereof as may be to his advantage and at the same time reject that tending against him and also deprive his opponent of the right to its use.</p>

<p>1. Special taxation—sufficiency of petition cannot he attacked on application for sale. If the county court acquires jurisdiction of a special tax proceeding and notice is given as required by statute, a property owner cannot attack the sufficiency of the improvement petition, with respect to signatures, upon the collateral application .for judgment of sale. (Leitch v. People, 183 Ill. 569, followed.)</p> <p>2. Same—when county court acquires jurisdiction of a special tax proceeding. Upon the filing of a petition for the levy of a special paving tax and giving of notice as required by law the county court acquires jurisdiction to decide whether the improvement petition is properly signed, and its determination cannot be assailed on application for judgment of sale.</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>

E. F.. Dunne, Judge, presiding. The facts in this case are thus stated by the Appellate Court: “To the amended bill of complaint filed in this case by appellant, demurrers by the several appellees were sustained and said amended bill was dismissed for want of equity.

<p>Appeals and errors—when appeal should he taken to the Appellate Court. An appeal from a decree- granting an injunction against the tearing down of a wall, upon a bill filed by the legal holder of a note secured by trust deed on the premises, should be taken to the Appellate Court, where the only controverted question is the location of the true boundary line between the mortgaged premises and the adjoining lot.</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. S. C. Stqegh, Judge, presiding.</p>

Philip Stein, Judge, presiding. This is an appeal from a decree of the superior court of Cook county dismissing the bill of complaint for want of equity, filed by appellants on January 18,1901, praying for an injunction against appellees Fuller, as collector of the town of South Chicago, and Raymond, county treasurer of Cook county, restraining the collection of a tax levied upon personal property which is claimed to be exempt from taxation.

R. W. Clifford, Judge, presiding. The original bill in this case was filed on July 25, 1899, and the amended bill on October 19,1899.

<p>1. Ejectment—what makes aprima facie case in ejectment. Plaintiff in ejectment makes a prima facie case by introducing her deed in evidence and proving title in her grantor and possession by him.</p> <p>2. Appeals and errors—when defendant in error cannot complain of rulings on evidence. On writ of error by the plaintiff in ejectment to reverse a judgment for the defendant, the latter cannot, in the absence of an assignment of cross-errors, complain that the court improperly admitted evidence for the plaintiff.</p> <p>3. Evidence—effect of previous adulterous relations upon subsequent transactions between the parties. The fact of previous adulterous relations between parties does not justify the conclusion, as one of. law, that all their subsequent transactions were tainted with such illegal conduct.</p> <p>4. The court reviews the evidence in this case, and holds it insufficient to establish the defense that plaintiff’s deed, relied upon for title in ejectment, was based upon the consideration of adulterous cohabitation.</p>

<p>1. Appeals and errors—error in chancellors finding of fact must be palpable to authorise reversal. Error must be clear and palpable to authorize the reversal of a finding of fact by the chancellor, where the testimony is heard in open court and is conflicting.</p> <p>2. Equity—when equity will set aside deed and re-invest grantor with title. A court of equity will grant relief by setting aside a deed and re-investing the grantor with title, where the conveyance was upon consideration that the grantees should support and maintain the grantor during her lifetime, but the grantees, after receiving the deed, refuse to furnish such support and maintenance.</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. Axel Chytraus, Judge, presiding.</p>

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. John Gibbons, Judge, presiding.

<p>1. Eminent domain—when value of land donated cannot be set off against assessment for opening street. Section 17 of the Local Improvement act of 1897, providing that where part of the land to be laid out into a street has heen donated by any person the value thereof may .be set ofi against the benefits assessed against his property, does not apply to land previously donated for a part of the street several blocks from the portion of the street sought to be opened.</p> <p>2. Same—what does not preclude assessment for opening street. The fact that a property owner would have no right to recover damages from the city for the vacating of a street after it has been opened does not preclude the assessing of benefits against his property for opening such street.</p> <p>3. Sáme—provision of section S6 of Improvement act of1897 considered. The provision of section 26 of the Local Improvement act of 1897 that “no final judgment shall be entered as to any of the property embraced in said roll until all the issues in the case have been disposed of,” relates to the final determination of the condemnation and assessment, after all the issues between the different parties shall be settled under the other provisions of the act.</p>

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

Edward P. Vail, Judge, presiding. This is an action on the case, begun at the October term, A. D. 1899, of the circuit court of Macon county, by the appellee, as administrator of the estate of Frederick C. Hendrian, deceased, against the appellant railway company to recover damages for the death of plaintiff’s intestate. The trial in the circuit court resulted in a judgment in favor of appellee for the sum of $1500.00.

<p>Writ op Error to the Circuit Court of Williamson county; the Hon. A. K. Vickers, Judge, presiding.</p>

O. P. Thompson, Judge, presiding. Jeremiah Ring, Sr., died March 17, 1894, leaving him surviving Ann Ring, his wife, three sons, Jeremiah, Jr., James and William, and two daughters, Bridget Lawless and Ellen Woodall. A writing purporting to be the last will and testament of said deceased was presented to the county court of Scott county and admitted to probate.

Robert B. Shirley, Judge, presiding. This is. an action of trespass on the case, begun on May 11,1899, in the circuit court of Macoupin county by the appellee, as widow of John Rademacher, deceased, against the appellant to recover damages for the death of her husband, caused by the falling* of slate from the roof of a coal mine entry in appellant’s mine, while the deceased was working therein.

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

<p>Writ of Error to the County Court of Morgan county; the Hon. D. F. King, Judge, presiding.</p>

<p>1. Pleading—decree pro confesso does not conclude defendant as to legal conclusions. While a decree pro confesso concludes the defendant as to all matters of fact properly alleged in the bill, yet he can not be held to have confessed all matters of law so alleged.</p> <p>2. Appeals and errors—right of defendant to question decree pro confesso on error. If a bill for partition, which sets forth and relies upon a will as a basis of the suit, fails, upon its face, to support the decree, the defaulted defendant may question that decree upon writ of error.</p> <p>3. Wills—heir cannot he disinherited as to intestate property. Although a testator clearly manifests an intention to exclude a prospective heir from all interest in his estate" other than such as is given him, yet he cannot disinherit him as to his other property unless he devise the same to some one else.</p>

Writ of 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. Farlin Q. Ball, Judge, presiding.

E. F. Dunne, Judge, presiding. The following statement of the case is taken from the opinion of the Appellate Court: “Appellee was a switchman employed by appellant, and at the time of the injury was at work making up a train of freight cars in appellant’s yards at Blue Island, near Chicago.

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of McHenry county; the Hon. Charles E. Fuller, Judge, presiding.</p>

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

<p>1. Evidence—witness may be ashed how plaintiff appeared with reference to pain and suffering. In an action for personal injury it is proper to permit a witness to be asked the question how the plaintiff appeared with reference to pain and suffering.</p> <p>2. Same—witness may state natural manifestations of pain exhibited. In an action for personal injury the person who nursed the plaintiff after the injury may testify whether the plaintiff appeared to be suffering pain, and may state such natural manifestations of pain as plaintiff exhibited in connection with the injury, whether by groans, expression of the features or in other ways.</p>

<p>1. Fellow-servants—when question of fellow-servants is for the jury. Whether or not the operator of a machine and his helper were fellow-servants at the time of the helper’s injury is properly left to the jury as a question of fact, under evidence tending to show that the operator had authority to direct the movements of the helper, that he stopped the machine and ordered the helper to put in his hand and remove an obstruction, and without waiting for the latter to withdraw his hand started the machine, and thereby occasioned the injury.</p> <p>2. Same—when superior is not, as a matter of law, the fellow-servant of his subordinate. If the perilous position assumed by a servant is the result of a command from his superior in exercising his authority as vice-principal, the mere fact that the act which occasioned the servant’s injury was performed by such superior as a part of the regular duties for which he was employed by the master does not, as a matter of law, create the relation of fellow-servants between the parties at the moment of injury.</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. Edmund W. Burke, Judge, presiding.

<p>1. Merger—whether encumbrance is merged in fee is a question of intention. Whether or not the acquiring of a note and trust deed by the owner of the fee of the encumbered property operates in equity as a merger, depends upon the intention of the parties and the surrounding circumstances, and any act by the owner of the fee showing that he regards the encumbrance as still subsisting is strong evidence that there is no merger.</p> <p>2. Same—when note and trust deed are not merged in the fee. If one who had owned and afterwards sold a note and trust deed becomes the owner of the property encumbered by such deed, and the note and trust deed are subsequently returned to him in exchange for other securities, after which he endorses an extension of time on the note and trust deed and delivers them to another person for a valuable consideration, they will be treated as still in force against him, and not as extinguished.</p> <p>3. Receivers—receiver appointed at suit of partner has only the firm’s rights. A receiver appointed not for creditors but upon bill by one partner against another for a settlement of partnership affairs, has only the rights which belong to the firm.</p>

Robert B. Shirley, Judge, presiding. This is a bill, filed on November 1, 1899, by the appellant, Lucy A. Wilson, against the appellee, Edward F. Ford and others (two of the defendants below being minors), for the partition of eighty acres of land in Greene county, Illinois. The adult defendants below were either defaulted, or consented to the entrance of a decree of partition. A guardian ad litem was appointed for the two minor defendants, and he filed an answer for them.

<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>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Jersey county; the Hon. O. P. Thompson, Judge, presiding.