Volume 192 — Illinois Reports

Louis; the Hon. B. R. Burroughs, Judge, presiding. This is an action on the case, brought in the summer of 1897 by the appellee against the appellant company to recover damages for a personal injury. The first trial of the cause resulted in a judgment in favor of the appellee for $11,000.00. An appeal was taken from this judgment to the Appellate Court. The Appellate Court reversed the judgment and remanded the cause.

<p>1. Evidence—admissibility of evidence where allegation of negligence is specific. Under an allegation that the defendant negligently and carelessly propelled, with great force, its engine against certain cars where the plaintiff was working with the knowledge of the defendant, evidence of failure to ring a bell or sound the whistle is competent, although the place of injury was not a place where it was the statutory duty of the defendant to whistle or ring.</p> <p>2. Same—sufficiency of proof that engine was propelled with great force. An allegation that defendant’s engine was propelled with great force is sufficiently sustained by evidence that the force was enough to suddenly move the car upon which the plaintiff was in the act of climbing, and cause his injury.</p>

Clair county; the Hon. M. W. Schaefer, Judge, presiding. In their decision of this case the Appellate Court makes the following statement of facts: “This was an action in case, brought by appellee against appellant in the circuit court of St. Clair county to recover for personal injury sustained by appellee while engaged as a miner in the service of appellant in its coal mine. Trial by jury.

<p>Appeal from the County Court of McLean county; the Hon. R. A. Russell, Judge, presiding.</p>

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

<p>Elections—ballots are best evidence if properly preserved. Ballots are the best evidence of the result of an election if they have been preserved in the manner and by the officers prescribed in the statute, and have not been so exposed to the reach of unauthorized persons as to raise a probability of their having been tampered with.</p> <p>2. Same—whether ballots were properly preserved is a question of fact. Whether ballots have been properly preserved is a question of fact, to be determined from all the circumstances proven.</p> <p>3. Ballots—ballot bearing one initial of judge of an election is valid. While the statute requiring the official endorsement of the initials of a judge of the election is mandatory, yet the endorsement of one initial is.a sufficient compliance therewith.</p> <p>4. Same—ballot bearing full name of judge may be counted. A ballot properly prepared by a legal voter may be counted although the judge of election, without the knowledge or participation of the voter, has endorsed his full name thereon instead of his initials.</p> <p>5. Same—effect where circles at the head of two tickets contain crosses. Ballots containing crosses in the circles at the head of two tickets and also a cross in the square before the name of one or the other of the nominees for the contested office are properly counted for the nominee before whose name a cross is marked.</p> <p>6. Same—a ballot is bad where other tickets are erased by lines draum through them. A ballot marked with a cross in the circle at the head of one ticket should not be counted where the other tickets are erased by drawing lines through them.</p> <p>7. Same—whether ballot bears distinguishing marks is largely a ques- . tion of fact. Whether a ballot bears distinguishing marks is largely a question of fact, and the action of the trial court in counting ballots alleged to be so marked cannot be overruled, on appeal, where such ballots are not certified to the appellate tribunal for inspection.</p> <p>8. Same—when ballots contained in “defective” envelope may be counted. On contest, ballots found in an envelope containing “defective and objected to” ballots may be counted, where the judges of election in the precincts where they were cast testify that they were cast by legal voters and gave their reasons for not counting them, none of which were valid, and where the ballots themselves are official, bear the initials of the proper judge, are properly marked and were enclosed in sealed envelopes so marked as to disclose their contents.</p> <p>9. Same—when appellant cannot complain of error in counting ballots. Ballots not bearing any initials of the judge of election are improperly counted on contest, but the appellant cannot complain where the record does not disclose for whom they were counted nor that appellant made any objection thereto.</p> <p>10. Same—ballots numbered by judges by misunderstanding may be counted. Ballots numbered by the judges of election by reason of a misunderstanding, on their part, of the law and without knowledge of the voters, are properly counted if otherwise valid.</p>

<p>1. Municipal corporations—territory is not disconnected from a milage until ordinance is passed. Disconnection of territory from a village under the act of 1879 (Laws of 1879, p. 77,) is not consummated by the filing of the petition containing the statutory requirements, but the passage of the ordinance is also essential.</p> <p>2. Same—legislature had the power to make the act of 1901 apply to pending proceedings to disconnect territory. The legislature had full power to repeal the act of 1879 for the disconnection of territory from cities and villages, as was done by the act of 1901, (Laws of 1901, p. 96,) and to make the act of 1901 applicable to proceedings pending under the act of 1879.</p> <p>3. Sam:e—laws governing municipal corporations are not in the nature of private grants. The legislature may, by general law, fix the boundaries of municipal corporations and extend or restrict them, as may be deemed best for the public good; but such laws are not in the nature of private grants, in which parties may acquire a vested right to have them remain unchanged.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. A. N. Waterman, Judge, presiding.</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. Axel Chytraus, Judge, presiding.

<p>Writ op Error to the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding.</p>

Dorrance Dibell, Judge, presiding. The original bill in this cause was filed on May 5, 1897, by the appellants, Henry Carpenter and Daniel B. Carpenter, to redeem forty acres of land described as the north-east quarter of the south-east quarter of section 36, town 34, north, range 12, east of the third principal meridian, Will county, Illinois, from a certain master’s deed thereto, held by appellee, Charles Plagge, upon the theory that said deed was held by appellee as a…

<p>"Writ op 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 C. Garver, Judge, presiding.</p>

<p>Special assessments—objectors must overcome the prima facie proof furnished by the board’s recommendation. Under section 9 of the Local Improvement act of 1897 the recommendation of an improvement by the board is prima facie evidence that the engineer's estimate of cost was made upon the date it bears, and objectors claiming otherwise have the burden of proof.</p>

Carl E. Epler, Judge, presiding. This is an appeal from a judgment of the county court of Cook county, affirming the appraisement of the county judge of Cook county, fixing the cash value of the estates, annuities and life estates, growing out of the estate of Silas B. Cobb, deceased, and the inheritance taxes to which they are liable.

<p>1. Evidence—what sufficient to go to jury on question of the master’s knowledge of danger. Proof that the master knew hot “cinder-taps” had exploded by contact with water while on iron plates cooling off, is sufficient to justify the court in submitting to the jury, as a question of fact, whether by the exercise of ordinary care the master should not have known that hot “cinder-taps” were likely to explode by contact with snow and water on the dumping ground.</p> <p>2. Instructions—when instruction containing abstract rule of law may be given. An instruction correctly defining relation of fellow-servants as an abstract rule of law is properly given where the defendant has procured an instruction to be given to the effect, hypothetically, that under the facts proven the plaintiff and the man whose act caused the injury were fellow-servants.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>Bills of review—due diligence must appear to sustain bill of review for newly discovered matter. It must be presumed that parties seeking partition will make, or cause to be made, an examination of title to the land in order that the court may render a proper decree; and it is not sufficient to show, in support of their bill of review to correct the decree for newly discovered matter, that they were ignorant of certain conditions of the title which could have been discovered by an inspection of the public records.</p>

Writ of Error to the 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. Plaintiff in'error is a corporation organized in Illinois in 1884, under “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>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. R. W. Hilscher, Judge, presiding.</p>

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

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

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.

Writ op Error to the Circuit Court of Edgar county; the Hon. Frank K. Dunn, Judge, presiding. The plaintiff in error, Newton E. Knight, was convicted of the murder of his brother, Silas H. Knight, commonly known as “Hutch” Knight, at the November term, 1900, of the circuit court of Edgar county, and sentenced to imprisonment in the penitentiary for the term of fourteen years.

Writ op Error to the Circuit Court of Kankakee county; the Hon. John Small, Judge, presiding. This is an indictment for an assault with intent to commit murder against plaintiff in error, filed in the circuit court of Kankakee county on October 2, 1900. The cause was continued to the January term, 1901, upon the motion of plaintiff in error. The cause came on for trial at the January term, 1901.

<p>1. Appeals and errors—what should be embraced in the Appellate Court’s recital of fact. In an action for breach of a written contract the question what the contract required the parties to do is one of law; but what the parties did or omitted to do are questions of fact, which the Appellate Court should recite in its judgment on reversing as a result of its finding the facts different from the trial court and entering judgment without remanding the cause.</p> <p>2. Same—what statements in Appellate Court’s judgment are not recitals of fact. Statements in the judgment of the Appellate Court that the plaintiff in an action for breach of contract was not in default and that the defendants were in default, are not such findings of the ultimate facts as are required to be recited by section 88 of the Practice act.</p>

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

<p>Appeal from the Circuit Court of St. Clair county; the Hon. M. W. Schaefer, 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. E. F. Dunne, Judge, presiding.</p>

<p>1. Taxes—courts have no power to revise assessments for errors of judgment. Courts have no power to revise assessments made by the board of assessors and approved or revised by the board of review, upon the ground that those bodies fell into an error of judgment in estimating the value of the property.</p> <p>2. Same—party must bring mandamus to preserve his right to a hearing of his complaint of over-valuation. On application for judgment of sale the county court cannot entertain an objection that the property was assessed too high, even though it is stipulated that the board of review had promised to act upon the tax-payer’s complaint of over-valuation, and that his first notice to the contrary was that the board had delivered the books to the county clerk, since, under the proviso to section 38 of the Revenue act of 1898, (Laws of 1898, p. 49,) the tax-payer could have brought mandamus to compel the board to act upon his complaint, even though the books were turned over. (Cartwright and Hand, JJ., dissenting.)</p> <p>3. Mandamus—virtual refusal to perform duty is sufficient basis for mandamus. Any evasion of a positive duty by an officer or a legal tribunal, amounting to a virtual refusal to perform such duty, is all that is needed to maintain a writ of mandamus.</p> <p>4. Same—mandamus will lie to compel tribunal to re-convene and perform an omitted duty. An inferior tribunal which has omitted, and by evasion refused, to perform an official duty while convened, cannot, by adjourning its meeting sine die, place itself beyond the power of the courts to compel by mandamus the performance of a duty enjoined by law.</p>

<p>, „ , , . ., 1. Street railways—power house erected m pursuance of law is a permanent structure. A power house erected by a street railway company in pursuance of lawful authority, for the uses of its road, is a permanent structure.</p> <p>2. Pleading-—when a declaration authorizes recovery for permanent injury to property. A declaration alleging injury to the value of a dwelling house and the market value of the premises, in connection with averments of the establishment and operation of a power house as a permanent structure, is sufficient to authorize a recovery for permanent injury, and hence an additional count charging permanent injury in terms does not state a new cause of action.</p> <p>3. Damages—when compensation must be made under the constitution. Under the present constitution compensation is required in all cases of damage to property, where, but for legislative authority to do the act, an action would lie at common law.</p> <p>4. Same—liability of street railway company for erection of power house. The construction and operation of a power house by a street railway company upon its own property, if done in a reasonably skillful manner, do not constitute a nuisance which may be abated; but the company is liable to the owner of adjoining property in an action on the case for damages resulting from the establishment and operation of the power house, without any charge of negligence.</p> <p>5. Same—rule as to damage from the erection of permanent structure. If a suit is not for negligent or improper construction or operation, but is for damages accruing from the erection of a structure of a permanent character, all damages, in law, accrue when the cause of injury is created, and the recovery must be for the whole damage, of which depreciation in market value is the measure.</p> <p>6. Appeals and errors—party cannot take advantage of error committed at his instance. If a party induces the court to propound an improper special interrogatory to the jury, he cannot take advantage of the error by claiming that the answer showed that the jury included improper elements of damage in making up their verdict.</p> <p>7. Same—party cannot complain of the modification of questions which should have been refused. A party cannot complain of the court’s modification of Ms special interrogatories, which related to questions which were not in issue and which should have been refused.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.

<p>1. Deeds—construction of deed to grantees “and their bodily heirs.” A deed to the grantor’s daughter and her husband, “to them and their bodily heirs forever,” passes,under section 6 of the Conveyance act, a life estate to the grantees, with remainder in fee to their bodily heirs according to the common law, and cuts off children of the daughter by other husbands.</p> <p>2. Same—equity will not ordinarily reform, a mistake of law. The use of the words “their bodily heirs” in a deed to the grantor’s daughter and her husband, “to them and their bodily heirs,” under the impression that all children of the daughter, though by other husbands, would take, is a mistake of law and cannot be corrected in equity, where the grantor knew that the word “their” was used before he signed the deed but insisted that he knew the legal effect thereof and that it expressed his meaning.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of White county; the Hon. P. A. Pearce, Judge, presiding.</p>

<p>1. Homestead —statute must be followed to transfer title to homestead estate. The manner in which homestead estates may be transferred is within the control of the legislature, and the statute prescribing the mode of transfer must be complied with.</p> <p>2. Same—when deeds of homestead are invalid. Deeds in which the printed clauses releasing homestead, both in the body of the deed and the acknowledgment, are erased and the words “reserving the life use of said land” inserted, have no effect on the homestead or title to the premises, where the latter are of less than $1000 value ■and are occupied by the grantor as a homestead.</p> <p>3. Same—when possession does not give effeet to deed. In order that a deed having no release of homestead may become operative, under the statute, by abandonment or surrender of possession, such possession must be abandoned or given in pursuance of the deed, and hence where the deed reserves a life estate to the grantor, who remains upon the premises, living with the grantee, the latter’s possession is not such as will aid the conveyance of homestead.</p>

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

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

Writ op Error to the Circuit Court of DuPage county; the Hon. Charles A. Bishop, Judge, presiding. Plaintiff in error was indicted and convicted of the crime of forgery at the October term, 1900, of the circuit court of DuPage county. The evidence was sufficient to establish these facts: That Cross, the plaintiff in error, was in December, 1899, in the employ of a medical concern located in Chicago, called the “Dr. Green Medical Dispensary,” of which.

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

<p>1. Pleading—one cannot plead and demur at same time. By replying to plea after the overruling of demurrer the right to question the sufficiency of the plea is waived.</p> <p>2. Same—;form of pleading in quo warranto. Under the statute the course of pleading in quo warranto is the same as in other actions.</p> <p>3. Same—respondent in quo warranto must prove title. Ordinarily, in quo warranto the burden of proof is on the respondent to prove his title as pleaded, or so much of it as is traversed.</p> <p>4. Same—when replications to special pleas are demurrable. Where the pleas of the respondent in quo warranto set up the respondent’s charter as a corporation by way of inducement, and conclude with a denial, under the absque hoc, of the usurpation charged in the information, replications thereto are demurrable which traverse the allegations of the inducement instead of the denial.</p> <p>5. Same—effect of filing quo warranto information against corporation in corporate name. The effect of filing an information in the nature of quo warranto against a corporation by its corporate name, to compel the corporation to disclose by what authority it exercises corporate privileges, is to admit the existence of the corporation.</p> <p>6. Corporations —license to use streets becomes a contract after acceptance. The right of a telephone company to use the streets and alleys of a city under an ordinance is not a franchise but a license, which, however, becomes a contract, revocable only for cause, after the corporation has accepted the privileges and entered upon the use of the streets.</p>

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

<p>1. Streets and alleys—what does not support a claim of adverse possession of a public street. Want of power on the part of a city to lease a portion of a public street cannot be set up by the lessee as a basis for his claim of adverse possession of the portion of the street covered by the lease.</p> <p>2. Same—what sufficient proof of acceptance of plaited street by a city. In a proceeding under the Burnt Records act to confirm title to the petitioner’s lots and also to an adjoining piece of ground embraced within the limits of a platted street, sufficient proof of the city’s acceptance of the latter as a public street is made by evidence that the petitioner’s occupancy of the ground had always been under leases from the city, in which the ground was recognized as a public street and the right to terminate the leases at any time was reserved; that the city had several times ordered the obstruction removed but had yielded to the petitioner’s importunities and allowed him to remain in occupancy, and that no taxes or assessments were ever levied against the property after the owner platted it as a street and offered it to the city.</p> <p>3. Same—sale of lots with reference to platted street raises an estoppel. Although a plat of an addition to a city has not been properly acknowledged, yet if the owner of the land so platted makes sales of lots abutting upon a platted street and with reference to the plat, he and those claiming under him are estopped to deny the existence of the street so shown upon the plat.</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. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Appeals and errors—when judgment of Appellate Court is conclusive. If the record contains evidence tending to sustain the verdict in a suit at law, or the findings of the court, if the case is tried without a jury, the Appellate Court’s judgm'ent of affirmance settles all controverted questions of fact and cannot be disturbed by the Supreme Court except for errors of law.</p> <p>• 2. Mines—contributory negligence no defense to a willful violation of statute. Negligence of a miner which contributed to his injury is no defense to an action against the mine owner for willful failure to provide props and Cap-pieces, as required by section 16 of the act relating to miners, as amended in 1887.</p> <p>3. Same—miner is the judge of length of timbers to be furnished him. The miner is the one to determine the length and dimensions of the props and cap-pieces he deems necessary, and if he "orders props of a certain length the mine owner does not comply with the statute by sending props which have to be spliced or sawed.</p>

John C. Garver, Judge, presiding. This is a suit on the common counts, brought to this court on appeal from the Appellate Court, to recover the remainder on a contract for extras furnished, and interest. The general issue was filed, with a plea of set-off because of damage done the appellant by delay and the expenses by her outlayed because thereof, and for removal of debris and material.

<p>Special assessments—who must sign improvement petition in cities of 10,000 or under. Under section 4 of the Local Improvement act of 1897, as amended in 1899, (Laws of 1899, p. 95,) in cities, towns or villages having a population of 10,000 or under, petitions to the board of local improvements must be signed by the owners of one-half of the property abutting upon the line of the proposed improvement and by a majority of the resident' property owners affected by the improvement.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Henderson county; the Hon. John J. Glenn, Judge, presiding. The plaintiff in error brought assumpsit against the defendant in error in the circuit court of Henderson county to recover on five bonds, of $1000 each, issued by the city of Oquawka in 1871, together with unpaid interest.

<p>1. Appeals and errors—error can only be assigned on some ruling or failure to rule. Counsel desiring the action of the trial court upon his objections reviewed must insist upon a ruling and except thereto, or to the refusal or failure of the court to make a ruling.</p> <p>2. Notice—notice to city authorities of defective conditions produced by them is unnecessary. The question whether the city authorities are charged with notice of the condition of a street arises only in cases where they have not produced such condition themselves.</p> <p>3. Evidence—witness may state natural expressions of suffering. A physician who attended the plaintiff in a personal injury case, and who helped to pick him up at the time of the accident, may testify that he cried out at that time and described the pain he suffered.</p> <p>4. Same—testimony concerning habits is not admissible if there is direct testimony. In an action against a city for personal injury, if there is direct testimony as to the rate of speed at which the plaintiff was driving when he ran into the ditch, evidence that he was ordinarily a rapid driver is inadmissible.</p> <p>5. Municipal corporations—city need use only reasonable care to Tceep streets reasmiably safe. A city is not required to do more than exercise reasonable care to keep the streets in a reasonably safe condition for travel.</p> <p>6. Damages—when instruction concerning damages is not erroneous. If only compensatory, and not exemplary, damages are recoverable, it is not error to instruct the jury that if they find for the plaintiff they should assess his damages at such amount as the evidence showed would compensate him for his injuries.</p>

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

<p>1. Corporations—liability of assignor of stock for unpaid balance to pay debts of corporation. The mere assignment by á stockholder of part of his shares of stock before the institution of a suit by the receiver of the corporation to collect the unpaid balance on the stock to pay corporate debts, does hot relieve the assignor from liability for the unpaid balance upon the shares so assigned.</p> <p>2. Interest—party mthholding payment of decree is liable for legal interest. Withholding payment of the amount fixed by a decree after the time specified therein for payment renders the parties primarily liable under the decree liable also for legal interest.</p>

, Writ of Error to 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. This is a writ of error to the Appellate Court to reverse a judgment of that court affirming a judgment of the superior court, recovered by defendant in error against plaintiffs in error.

<p>Appeals and errors—Appellate Court should not dismiss appeal, of its own motion, for an irregularity in bond. If an appeal bond xnisrecites the judgment and leave is given by the Appellate Court to file a new bond, and the latter is presented by the appellants in good faith and ordered filed by the Appellate Court, to be given effect nunc pro tunc, it is error for the Appellate Court, upon discovering an alleged irregularity in the new bond when considering the errors assigned after the submission of the case, to dismiss the appeal of its own motion.</p>

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

<p>1. Sanitary districts—«Tien ordinance sufficiently specifies purposes for which proceeds from bonds are to be used. Under section 9 of the Sanitary Drainage act, providing that districts “may borrow money for corporate purposes and may issue bonds therefor,” an ordinance adopted by the Sanitary District of Chicago which provides for an issue of bonds the proceeds of which shall be used for “corporate purposes” is sufficiently definite in that respect.</p> <p>2. Same—Sanitary ^District of Chicago may deepen and widen Chicago river. The Sanitary District of Chicago has power, with the consent of the Federal government and upon payment of such damages as it may cause, to widen and deepen the Chicago river so that the same shall have sufficient capacity to supply the drainage canal with enough water to enable the district to comply with the statute regulating the flow of water without violating the restrictions contained in the permit issued by the Secretary of War to turn the water into the canal. •</p> <p>3. Same—sanitary district may build new bridges across the Chicago river. If the necessary changes to be made in the Chicago river by the sanitary district will render any existing bridge or bridges unfit for use, the district has power to re-place such bridges with new ones of proper construction.</p> <p>4. Same—eleventh issue of bonds is within the debt limit. The eleventh issue of bonds by the Sanitary District of Chicago in the amount of 82,750,000 is within the amount which the district is authorized by law to raise, both as regards the percentage of indebtedness and the $15,000,000 limit imposed by sections 9, 10 and 12 of the Sanitary Drainage act of 1889.</p> <p>5. Same—equalized assessment for preceding year is proper basis for estimating legal limit of indebtedness. Whether or not the amount of the bond issue of the sanitary district of the date of October 22, 1900, is within the legal limit imposed by statute upon the right of the sanitary district to incur indebtedness, is to be ascertained by computation, based upon the equalized assessed valuation of the property within the district for the year 1899.</p> <p>6. Parties—purchaser of bonds is necessary pdrty to bill to cancel the sale and avoid the bonds. The purchaser of bonds issued by a corporation is a necessary party to a bill to have the bonds declared invalid and the sale thereof fraudulent and.collusive.</p>

Writ of Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. In 1869 the Danville, Urbana, Bloomington and Pekin Railway Company condemned a right of way one hundred feet wide through Munsell’s farm of three hundred and sixty-four acres in McLean county and paid to Mm §150, the amount allowed as compensation.

<p>Writ op Error to the County Court of Cook county; the Hon. Russell P. Goodwin, Judge, presiding.</p>

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding.

<p>1. Appeals and errors—certificate of importance must be procured and appeal allowed within time fixed by law. If a case is not appeal-able without a certificate of importance by the Appellate Court, the obtaining of such certificate is a condition precedent to the right to an appeal; and the certificate must be procured and the appeal allowed not more than twenty days after entry of judgment.</p> <p>2. Same—provision for certificate of importance does not extend time for taking appeal. -The provision for a certificate of importance does not extend the time for taking an appeal, but it must be procured within the time allowed by statute for taking an appeal.</p> <p>3. Judgments and decrees—nunc pro tunc order cannot supply an omission to make an order. A nunc pro tunc order cannot be made to cure the failure to make an order, but only to supply some omission in the record of an order already made.</p>

Writ oe Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Charles G. Neely, Judge, presiding. This suit was brought up on writ of error from this court to the Appellate Court, which affirmed a judgment in the lower court in favor of Barth, the defendant in error, against Barker, the plaintiff in error, in an action of as-' sumpsit for use of the Union National Bank of Chicago.

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

Leslie D. Puterbaugh, Judge, presiding. This is a bill in chancery filed by Finley McLennan, Christina Buchanan, Mary A. Matheson, Rebecca McLean and Margaret Finlayson, the son and daughters of Barbara McLennan, deceased, against John McLennan, the only child of Duncan McLennan, deceased, (a son of said Barbara McLennan, who died intestate in the year 1880,) in the circuit court of Stark county, for the partition of 34.43 acres of land situated in said county, and described…

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

<p>Appeal from the County Court of Cook county; the Hon. William T. Hodson, Judge, presiding.</p>

Writ op Error to the Circuit Court of Pulaski county; the Hon. A. K. Vickers, Judge, presiding. This is an indictment, returned at the October term, A. D. 1900, of the circuit court of Pulaski county by a grand jury, chosen, selected and sworn in and for that county, against the plaintiff in error, George Durden, for the murder of one Marshall Hileman on the 26th day of June, A. D. 1900. The case was tried at the January term, 1901, of said court.

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

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

<p>Writ op Error to the Circuit Court of Greene county; the Hon. Robert B. Shirley, Judge, presiding.</p>

Appeal, from the Circuit Court of Whiteside county; the Hon. W. H. Gest, Judge, presiding.

<p>1. 'WiLUS—punctuation of will may be disregarded. In construing a will the punctuation is not to be regarded, if any change in that respect will render the meaning of the instrument more obvious and unquestionable.</p> <p>2. Same—will construed as to who are beneficiaries thereunder. Under a will giving all the property of the testatrix to her legal heirs, to be divided equally, etc., and “in case of their death I bequeath the same to their legal and lawful heirs, except in the case of my son Alonzo Hilton Davis’ heir, he is to have no lot or part of my estate; * * * and my beloved son, James M. Davis, in person or by his heirs have no part or lot in my estate,” neither the grandson nor the son, James M. Davis, takes as legatee or devisee.</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 C. Garver, Judge, presiding.</p>

<p>1. Practice—effect of general remandment as to introducing additional evidence. If a decree is reversed and-the cause is remanded generally, the lower court is concluded by the legal points decided, but may allow amendments to the bill and hear additional evidence.</p> <p>2. Contracts—rule as to equity refusing aid to either party to a contract to compromise criminal offense. If the object of a contract was to prevent or stifle prosecution for a criminal offense, equity will refuse its aid to both parties, with the exception that it may sometimes lend its aid where the parties are not in pari delicio.</p> <p>3. Same—xvhat must appear to justify equity in lendixxg its aid'to less guilty party to an illegal contract. To justify a court of equity in lending its aid to the less guilty party to a contract to compromise a criminal offense, it must appear that the complainant did not enter into the contract voluntarily, but that she was deceived or defrauded, or forced to make the contract through fear that the perpetrator of the offense would otherwise be convicted.</p> <p>4. Same—when conveyances to secure money borrowed to settle defalcation xmll be enforced. Conveyances made by an unmarried woman of mature years and ordinary intelligence, as security for money borrowed by her to settle with her affianced husband’s employers for his defalcation, will be enforced in equity on cross-bill, where the evidence not Only fails to establish the allegations of her bill that the conveyances were made under duress, for the purpose of stifling prosecution, but shows that she voluntarily entered into the transaction against the advice of her friends and attorneys and even her grantees, and after being repeatedly told by her affianced husband’s employers that they could not and would not settle the criminal part of the affiair.</p>

<p>1-. Confession of judgment—a joint warrant of attorney does not authorize confession against one. A joint warrant of attorney does not authorize confession of judgment against the surviving maker of a note, even though the note is, in terms, joint and several.</p> <p>2. Same—when a judgment by confession is properly vacated. If a joint and several note is not due at the time judgment is confessed thereon under a warrant of attorney which is joint, only, the judgment must be vacated, on motion, where it is shown that one of the joint makers was dead before judgment was confessed. ,</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. Axel Chytraus, Judge, presiding.</p>

<p>1. Appeals and errors—Supreme Court does not consider weight of evidence in reviewing action on peremptory instruction. In reviewing the action of the trial court in refusing to instruct the jury to find for the defendant the Supreme Court does not weigh the evidence, but only determines whether the evidence, together with all inferences properly drawn therefrord, fairly tends to prove the plaintiff’s cause of action.</p> <p>2. Same—when refusal to direct a verdict for the defendant is justified. A refusal to direct a verdict for the defendant in an action against a railroad company for damage to the plaintiff’s land from overflow of water in a ditch constructed by the company on its right of way, is justified under evidence that the plaintiff did not consent to the construction of the ditch, and that his acts in connecting his own ditches therewith and in assisting in deepening the ditch were only such as he deemed necessary to mitigate the damage to his property, where the parties have proceeded upon the theory that it was a question of fact whether the act of 1889, respecting ditches constructed by mutual consent, applied to the ditch in controversy.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. E. B. Gower, 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 First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.</p>

<p>Special assessments—all members of improvement board need not be present when resolutions are passed. Section 9 of the Local Improvement act of 1897, providing, the recommendation by the board of local improvements to the city council shall be signed by at least a majority of the board, does not warrant the inference that all other proceedings by the board, except the signing of the recommendation, must be unanimous, or at least that all members must be present and participate in the action taken, nor is there anything in the act requiring such unanimous action.</p>

<p>Accounting—when complainant is entitled to an accounting. Complainant in a bill to restrain the defendant, his mother, from interfering with his possession of land upon the ground of an alleged contract by which she had agreed to give the same to him, is entitled to an accounting, where the bill prays for partition and an accounting if the alleged contract is not proven, and the decree sustains the defendant’s contention that no contract existed but that she and the complainant were tenants in common of the land, subject to her dower, except fifteen acres belonging to the complainant, and where the defendant has received all the rents from the premises.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. F. Bookwalter, Judge, presiding.</p>

Jesse Holdom, Judge, presiding. The appellant sued appellees in the superior court of Cook county in case, to recover damages for unlawfully causing the death of her intestate. The declaration is very voluminous, consisting of ten counts, to each of which the defendants interposed a general and special demurrer. The circuit court sustained the demurrer and gave judgment for the defendants. This appeal is from that judgment.

R. S. Tuthill, Judge, presiding. This was a bill in chancery exhibited in the circuit court of Cook county, but which was held obnoxious to a demurrer and dismissed. The Branch Appellate Court for the First District affirmed the decree dismissing the bill, and a further appeal has brought the record into this court. The only question arising is whether it was correctly ruled the bill was obnoxious to demurrer.

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

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

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. M. Kavanagh, Judge, presiding.</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, S. C. Stough, Judge, presiding. This is an action on the case, brought by the plaintiff in error against the defendant in error to recover, damages for personal injuries, sustained by the plaintiff in error, while working for the defendant in error in the latter’s packing house.