Volume 193 — Illinois Reports

Philip Stein, Judge, presiding. In its decision of this case the Appellate Court has made the following statement: “This is an appeal from a judgment for $7500 rendered in favor of appellee, and against appellant, in an action of case for personal injuries alleged to have been occasioned by appellant’s negligence. * * * “The evidence is, that October 1,1897, about six o’clock in the evening, the appellee was driving north on Clark street, in the north-bound track-of…

Charles G. Neely, Judge, presiding. The appellee, Frank T. W. Palmer, filed his bill in the court below to set aside the last will, and probate thereof, of his mother, Anna M. Benedict, deceased.

Charles A. Bishop, Judge, presiding. This is an action of assumpsit, begun on September 8, 1896, by the appellants, Victoria Coverdale and William Wasserman, daughter and son, and only children, of one William Wasserman, deceased, against the appellee, the Royal Arcanum. The suit is upon a benefit certificate for the payment of $3000.00, issued on June 8, 1894, by the appellee to said William Wasserman, naming his two children, the appellants herein, as beneficiaries therein.

<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 consolidated appeal from and writ of error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>' 1. Constitutional law—right of legislature to tax occupations for revenue purposes. Section 1 of article 9 of the constitution, which authorizes the legislature to tax certain occupations for the purpose of raising revenue, does not impliedly prohibit the taxing, for revenue, of any other occupations than those enumerated. (Danta v. City of Chicago, 172 Ill. 204, criticised.)</p> <p>2. Same—right of the legislature to license occupations under its police power. In the exercise of its police power the legislature may provide that any occupation which is a proper subject "of such power shall not be followed except under a license issued by public authority, upon the payment of a license fee and the execution of a bond conditioned in accordance with the purposes of the act.</p> <p>3. Same—what occupations may be regulated is a judicial question. What occupations may be taxed by the legislature, under its police power, by an act requiring a license is a judicial question.</p> <p>4. Same—occupation of private employment agency is subject to police regulation. Conducting a private employment agency for hire is an occupation for which the legislature may require a license fee in order to promote the public welfare.</p> <p>5. Same—section 10 of Free Employment Agency act is not unconstitutional. Section 10 of the Free Employment Agency act, (Laws of 1899, p. 271,) which requires persons running private employment agencies for hire, in certain cities, to pay a license fee of $200 and give a bond for $1000, is not unconstitutional.</p> <p>6. Same—legislature may determine amount of license fee in regulating occupation. The amount determined upon by the legislature to be paid for a license imposed for regulation is conclusive, unless it is manifest that the real purpose is to raise revenue under the guise of police regulation or to prohibit the exercise by a citizen of a lawful calling by means of oppressive license fees.</p>

Charles G. Neely, Judge, presiding. In deciding this case the Appellate Court made the following statement of facts: “January 10,1899, Thomas C. Stephens, appellee, filed a bill against appellant, William Whalen, and appellee Charles Lay and Albert W. Barnum, for an accounting and dissolution of partnership between Stephens, Lay and Whalen.

W. G. Cochran, Judge, presiding. This is a bill in equity by appellant, against appellee, to enjoin an action of ejectment, to correct an alleged mistake in a deed and to confirm title to certain church property in the town of Hammond, Piatt county, in the complainant, and for general relief. On answer by the defendant, and replication, the case was heard upon testimony produced in open court, and a decree rendered denying the relief prayed and dismissing the bill.

<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>Appeal from the County Court of Grundy county; the Hon. A. B. Jordan, Judge, presiding.-</p>

<p>1. Practice—objections to right of party to intervene must be made in trial court. Objections to the right of a party to intervene must be made in the trial court or they will be regarded as waived.</p> <p>2. Same—chancery rules govern proceedings to contest an election. A proceeding to contest an election is in the nature of a chancery suit, and the rules of chancery practice apply.</p> <p>3. Same—court giving leave to file intervening petition canvnot dismiss it of its own motion. If the court, after entering a final decree in an election contest, grants leave, with the consent of all parties, for an intervening petition to be filed, the intervener acquires a standing in court as a party, and it is the duty of the court to either vacate the decree or open it and hold it in abeyance, and require the defendants to the intervening petition to plead, answer or demur, and upon the issues thus made to judicially dispose of the case.</p>

<p>1. Master and servant—when master is not liable for negligence of helper. If the master is guilty of no negligence in the employment and retention of a helper for a wood sawyer in his employ, and is otherwise without fault, he is not liable for an injury to the sawyer resulting from the negligence of the helper in handling the timber, if the relation of fellow-servants existed between them.</p> <p>2. Fellow-servants—what necessary to constitute relation of fellow-servants. Under the rule in Illinois it is not sufficient to constitute two persons fellow-servants that they are working for the same master, but they must he brought into such personal relation, either by directly co-operating in the same work at the time of the injury or by their usual duties, that they may exercise an influence upon each other promotive of their mutual safety.</p> <p>3. Same—when a “fellow-servant” instruction should not be refused as misleading. An instruction that in order to constitute servants of the same master fellow-servants “it is essential that they shall be, at the time of the injury, directly co-operating with each other in the particular line of business, or that their duties shall bring them into habitual association so that they may exercise an influence upon each other promotive of proper caution,” should not be refused as being likely to mislead the jury to believe that such “co-operation” need not be of a character to promote proper caution, where the evidence shows that the servants in the case were a wood sawyer and his helper, who stood on opposite sides of a table, facing each other, holding the respective ends of the sticks.</p> <p>4. Same—when instruction is properly refused. An instruction directing a verdict for the defendant if the jury found that plaintiff and his helper were fellow-servants is properly refused, where there are other grounds of recovery alleged in the declaration which there is evidence tending to prove.</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 Boone county; the Hon. C. E. Fuller, Judge, presiding.

<p>Appeal from the Circuit Court of DeKalb county; the Hon. George W. Brown, Judge, presiding.</p>

<p>1. Appeals and errors—the Appellate Court has jurisdiction to determine whether statute has been repealed. The Appellate Court has jurisdiction of an appeal from a judgment in replevin allowing the defendant an agister’s lien upon the stock replevied, where the only attack upon the validity of the statute under which the lien was allowed is that the sections authorizing the lien have been repealed.</p> <p>2. Statutes—repeal of first section of act does not operate to strike out the enacting clause. The enacting clause of a statute is no more a part of the first section than of the others, and hence the repeal, without a saving clause, of part of the sections of an act, including the first section, does not leave the remaining sections without an enacting clause, so as to render them invalid.</p>

<p>Appeal from the County Court of Macoupin county; the Hon. Amos Oller, Judge, presiding.</p>

<p>1. Special taxation—special tax for constructing sidewalk at established grade invalid if grade is not fixed by any ordinance. If an ordinance requires an improvement which is to be paid for by special taxation to conform to an established grade, the tax will not be legal if there is no ordinance establishing such grade.</p> <p>2. Same—property is not delinquent until city clerk reports íhe uncollected warrants. Under the Sidewalk act of 1875 property specially taxed for a sidewalk is not delinquent until the collector has returned the warrants to the city clerk and the latter has made a report, in writing, of the uncollected tax to the general officer of the county authorized by law to apply for judgment; nor can a copy of the warrants and list issued by the city clerk to the city collector be substituted for the clerk’s report.</p> <p>3. Same—section 191 of Bevenue act does not permit essential steps in tax levy to be first taken on application for sale. Section 191 of the Revenue act, providing for amendments, corrections and supplying of omissions on application for judgment of sale, does not authorize essential steps in the levy of a tax to be first taken on. application for judgment of sale.</p> <p>4. Same—certified bill of costs cannot be made before sidewalk is completed. If the entire cost of a sidewalk is to be apportioned upon the lots according to frontage, a certified bill of costs, required to be filed by the city engineer in case the city constructed the walk, cannot be made before the sidewalk is completed.</p>

<p>Appeals and errors—when Supreme Court has no jurisdiction of appeal. The Supreme Court has no jurisdiction of a direct appeal from a decree enjoining the collection of two judgments for rent, upon the ground that the premises were knowingly rented and used for a gambling house, in violation of law.</p>

H. Van Sellar, Judge, presiding. 1 In the year 1885 John Kerr, Jr., was appointed by the county court of Pike county guardian of his son, William H. Kerr, who had received a legacy from his grandfather. In 1895, William; having arrived at the age of fourteen, petitioned the county court to appoint James P. Brawley as his guardian. On the third day of June, 1895, Brawley was appointed, and qualified as such guardian.

<p>h Negligence—passenger on street car injured by collision with railroad train is not chargeable with contributory negligence. A passenger • lawfully upon a street car is not chargeable with contributory negligence in the event of an injury caused by a collision with a railroad train at a grade crossing.</p> <p>2. Same—effect of combined negligence of a railway and a street car company. In case 'of a grade-crossing accident, where a railroad train running at a prohibited speed collides with a street car which has run through the crossing gates, a verdict in favor of an injured street car passenger against the railroad company will stand, on appeal, if the evidence justifies the jury in finding the injury resulted from the combined negligence of the servants of the two companies.</p> <p>3. Same—running train through city at prohibited, speed is negligence. Under the statute against running trains through the incorporated limits of a city, town or village at a greater speed than is permitted by ordinance, it is not error to instruct the jury that the running of a train through a city in excess of the speed authorized by ordinance is negligence as a matter of law.</p> <p>4.. Instructions—when omission of words “from the evidence” is not error. The omission of the words “from the evidence” after the words “if you believe” is not error, where, in other parts of the same instruction or in other instructions, it clearly appears that the jury were informed that their belief must be founded upon the preponderance of the evidence.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court, on appeal from the Circuit Court of Whiteside county; the Hon. W. H. G-est, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. R. S. Tuthill, Judge, presiding.</p>

W. T. Hodson, Judge, presiding. This is a proceeding instituted by the appellant, the town of Cicero, for the levying of a supplemental assessment to provide means for completing the payments for the improvement of Washington boulevard, from Robinson avenue to Harlem avenue. The petition was filed in the county court of Cook county on May 22, 1900.

<p>■ 1. Appeals and errors—error cannot be assigned on ruling to which no exception is preserved. Error cannot be assigned upon a ruling of the court during the progress of a trial unless exception is taken at the time and properly preserved in the bill of exceptions.</p> <p>2. Drainage—provisions of Levee act authorizing assessment of benefits by commissioners not unconstitutional. The provisions of sections 16 and 37 of the Levee act which authorize the assessment of benefits by the drainage commissioners when the court so orders, are not in violation of the constitutional guaranty of the right of trial by jury. (Briggs v. Union Drainage District, 140 Ill. 53, followed.)</p> <p>3. Same—court may direct that assessment be made by a jury or by the commissioners. Under section 16 of the Levee act the court may, in the first instance, order the assessment of benefits to be made by a jury or by the commissioners, but whichever body is ordered to make the assessment must hear and determine the objections to the assessment.</p> <p>4. Same—commissioners are required to take but one oath. Section 6 of the Levee act requires drainage commissioners to take an oath before entering upon their duties, and where this oath has been administered it is not necessary that they be sworn again before hearing objections to the assessment.</p> <p>5. Same—when owner cannot insist that land is not benefited at all by drainage annexation. A land owner having due notice of the hearing of a petition to annex her land to a drainage district, which petition alleges that her' land will be benefited a certain amount, who suffers default on the hearing of the petition, cannot after-wards insist, upon the hearing of objections to the assessment, that no assessment whatever shall he made against her land.</p> <p>6. Same—when prima facie case made hy assessment roll is not overcome. The introduction, on the hearing of objections to a drainage assessment, of any contradictory evidence does not necessarily overcome the prima facie case made by the assessment roll nor require evidence to be given to rebut the objector’s evidence.</p>

<p>1. Criminal law—just conviction not to be reversed because of use of large type in instruction. A judgment of conviction manifestly just under the evidence should not be reversed because an instruction announcing a correct rule of law is printed in type of a larger size than that ordinarily used in printed instructions.</p> <p>2. Same—court may group instructions on particular subjects. In a criminal case it is proper for the court to arrange the instructions on each particular subject, whether given at the request of the People or the accused, and read them together to the jury.</p> <p>3. Same—receipt of interest on embezzled money does not bar criminal prosecution. The receipt by a bailor from the bailee of a sum of money as interest on the amount embezzled from her by the bailee does not bar criminal prosecution of the bailee by the People.</p> <p>4. Same—common law rule that note was not the subject of larceny has been abrogated. The common law rule that a promissory note is not the subject of larceny has been abrogated in Illinois by sections 167 and 170 of the Criminal Code, which make it an indictable offense to feloniously take a “note” or for a bailee to feloniously'convert to his own. use a “note” entrusted to his keeping.</p> <p>5. Same—certainty to a common intent is sufficient in describing stolen note. No greater particularity is required in an indictment for the larceny of a note than to state that the thing stolen was a note and aver value and ownership.</p> <p>6. Same—when description of stolen note is sufficient. The description, in an indictment, of a note alleged to have been embezzled by the accused as bailee, is sufficient which reads: “One unpaid promissory note, the same then and there being an instrument of writing for $1000, then and there of the value of $1000, to one Louisa Stammler, then and there the owner thereof,” etc.</p> <p>7. Same—motion in arrest must be based on matters affecting the merits. A motion in arrest of judgment in a criminal case cannot be sustained for any matter not affecting the real merits of the offense charged in the indictment.</p>

E. P. Dunne, Judge, presiding. This is an appeal from the circuit court of Cook county dismissing a bill brought by appellant primarily against Philip Knopf, one of the appellees, who was county clerk of Cook county, to restrain him from extending a tax purporting to have been levied by the board of education of a high school district comprising parts of Cicero and Proviso townships, in that county. Separate answers were filed by Knopf and the board of education.

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

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

<p>Taxes—imported goods in warehouse of importer not subject to general State tax. Under clause 2 of section 10 of article 1 of the United States constitution, imported goods still owned by the original importer, and in the original, unbroken packages in which they were imported, are not subject to general State tax, although the United States duties on them have been paid and they are no longer in bonded warehouses but in the warehouses of the importer. (Siegfried v. Raymond, 190 Ill. 424, distinguished.)</p>

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

<p>1. Instructions—when instruction relating to elements of damage is not erroneous. An instruction relating to the elements of damage is not rendered erroneous by a statement contained therein that the jury might consider the plaintiff’s “suffering in mind and body, if any, resulting from such physical injuries, and such future suffering and loss of health, if any, as the jury may believe, from the evidence before them in this case, she has sustained or will sustain by reason of such injuries.”</p> <p>2. Same—instruction properly refused which attempts to eliminate an issue of fact in the case. An instruction withdrawing a particular element of damage from the consideration of the jury is properly refused where such element is laid in the declaration and an issue of fact raised thereon by the evidence.</p> <p>3. Same—omitting to give instruction is not reversible error if its substance is embodied in others given. Omitting, through oversight, to give a correct instruction is not reversible error if its substance is embodied in others given.</p> <p>4. Same—giving of abstract instruction is within the sound discretion of the court. The giving or refusal of an instruction containing the abstract rule of law that the jury may disregard the uncorroborated testimony of a witness who they believe has knowingly sworn falsely to a material fact rests in the sound discretion of the court, and its refusal will not work reversal where the jury are otherwise fairly instructed as to their authority and the method of testing the evidence.</p>

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

<p>1. Divorce—section 10 of Divorce act considered. Section 10 of the Divorce act, which provides that no divorce shall be decreed if it appears to the satisfaction of the court that the injury complained of was done by collusion of the parties or with the consent of the complainant, or that both parties have been guilty of adultery, merely makes imperative what was formerly a matter of discretion with the chancellor.</p> <p>2. Same—adultery is a good recriminatory defense to charges of cruelty. A charge of adultery by the wife may be set up by the husband as a recriminatory defense in his answer to her bill for a divorce on the ground of extreme and repeated cruelty, and if such charge is proven it is a complete bar to complainant’s right to a decree.</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. Abner Smith, Judge, presiding.

<p>Writ op Error to the Circuit Court of DeKalb county; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>1. Instructions—instruction should not leave jury to determine legal propositions. It is reversible error for the court to give instructions which require the jury to find and determine legal propositions.</p> <p>2. Same—when an instruction leaves jury to determine question of law. An instruction is erroneous in leaving the jury to determine a question of law which authorizes them to find for the respondents in mandamus proceedings if they believe that children of lawful school age were assigned to different schools by the proper authorities, “and that they had a legal right to make such assignment, without discrimination as to color.”</p> <p>3. Schools—city has no right to establish separate schools for colored children. A city has no right to establish separate schools for colored children and exclude such children from the schools established for white children, even though the schools established for colored children furnish educational facilities equal or superior to those of the schools established for white children.</p> <p>4. Same—what amounts, in law, to discrimination on account of color. Exclusion, without reason, of colored children from the schools to which their standing and residence would entitle them to admission if they were white children, amounts, in law, to discrimination against them on account of color.</p>

<p>1. Special assessments—limits of rule that objection to manner of constructing improvement cannot be made on application for sale. The rule that objections to the manner in which an improvement is completed are not available on application for judgment of sale does not extend to cases where the improvement authorized is changed for another or the city has accepted a different improvement from the one assessed for, but is confined to cases of imperfect construction of the authorized improvement.</p> <p>2. Same—that a dirt roadway was constructed in place of macadam may be shown on an application for sale. If the improvement author? ized by a special assessment ordinance is for a thoroughly graded, curbed, guttered and macadamized roadway, it is competent to show in defense of an application for judgment of sale that the 'completed improvement was no more than a dirt roadway, imperfectly curbed, graded and guttered.</p>

<p>1. Practice—what not ground for refusal of trial judge to sign bill of exceptions. Refusal of the presiding judge in a criminal case to sign the bill of exceptions is not justified by the facts that the bill is not verified or sworn to by any person or approved by the State’s attorney, nor that he did not know personally or remember whether the matters set forth in the bill were correct or not.</p> <p>2. Same—duty of trial judge to sign and seal bill of exceptions. When the bill of exceptions is presented to the judge it is his duty to examine it and point out where the inaccuracies are and what corrections shall be made, and when the bill, in his judgment, truly sets forth the proceedings and the evidence, it is his duty to sign and seal the same.</p>

<p>Special assessments—absence of bill of exceptions does not justify presumption that uncertainty of ordinance was removed by proof. The absence of a bill of exceptions does not justify the sustaining of an ordinance invalid for failure to describe “flat stones,” upon the ground that it must be presumed, in such case, that proof was heard to remove the uncertainty and that it was taken into consideration upon confirmation.</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>

Writ of Error to the City Court of Aurora; the Hon. Russell P. Goodwin, 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. Farlin Q. Ball, 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. Jesse Holdom, Judge, presiding.</p>

<p>1. Taxes—certificate of board of auditors is the foundation of a town tax to pay claims. Under sections 4, 5 and 7 of article 13 of the Township Organization act, (Rev. Stat. 1874, p. 1081,) the duty of passing upon claims and demands against the town is imposed upon the board of auditors, and their certificate is the foundation for the levy of a tax to pay such claims and demands.</p> <p>2. Same—power of electors at town meeting to direct tax levy is derived from the statute. The electors at the town meeting derive their only power to levy taxes from the provisions of the statute, and any tax levied by them for a purpose not authorized is void.</p> <p>3. Same—electors cannot levy a tax to pay the judgments against town. The electors at an annual town meeting have no power to exercise the functions of the board of auditors by authorizing the levy of a tax to pay outstanding judgments against the town.</p>

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

<p>Appeals and errors—denial of a motion to discharge for want of prosecution is not a final order. The denial of a motion by the defendant to be discharged, under the statute, for want of prosecution, is not a final order which may be reviewed, by itself, on writ of error.</p>

Clair county; the Hon. M. W. Schaefer, Judge, presiding. On the 23d day of December, A. D. 1869, Michael J. Gannon made his last will and testament. He died on March 15, 1870. On the 30th day of March, 1870, his will was duly proven and admitted of record in the county court of St. Clair county, Illinois. The testator left a widow and nine children.

<p>1. Negligence—when instruction in negligence case is properly ref used. In an action against a street railway company by a passenger injured as the result of a collision with a wagon, it is not error to refuse an instruction that, as the driver of the wagon knew the defendant’s train was traveling in the same direction he was driving, it was immaterial whether the bell was sounded or not, since the duty of the defendant to the plaintiff, as a passenger, cannot be measured by the relative rights of the company and such driver.</p> <p>2. New trial—what not ground for new trial. The fact that one of the jurors in a personal injury case may have had a suspicion that another juror had been tampered with by the defendant company or some one in its interest is not ground for new trial, where it is not shown that the juror communicated his suspicion to any other juror or that it in any way affected the verdict, nor that there was any ground upon which such suspicion could be based.</p>

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

<p>Appeal from the Branch 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>1. Criminal law—proof of misconduct-not connected with the charge is inadmissible. Proof of misconduct of the accused not connected with the charge upon which he is being tried is ordinarily inadmissible, since such evidence is likely to prejudice the jury «and cause them to lose sight of the issues which they have sworn to try.</p> <p>2. Same—what prejudicial error-in trial for assault with intent to commit rape. It is prejudicial error to permit the People, in making their proof of an assault with intent to commit rape, to prove that the accused had been drinking beer on the day of the alleged assault, and had treated a boy, sixteen years old, to beer.</p> <p>3. Same—force is not essential to crime of assault with intent to rape a female under fourteen. Since, under the statute, carnal knowledge of a female under fourteen years of age, with or without her consent, is rape, the use of force is not an essential element of the crime of assault to commit rape on one under fourteen.</p> <p>4. Same—when instruction as to duty of jurors to consult with each other is properly refused. While it is the duty of jurors to consult with each other with a view to reaching the truth and agreeing upon a just verdict, yet it is proper to refuse an instruction telling the jury that in such consultation no juror should yield his deliberate, conscientious convictions at the instance of his fellow-jurors, nor surrender his honest convictions fof the sake of unanimity or to avert a disagreement.</p> <p>5. Same—accused not offering evidence of good reputation is not entitled to instruction on the subject. If the accused does not attempt to put his good reputation in issue by the introduction of evidence on .the subject, he is not entitled to an instruction telling the jury that the law presumes that he has a good character and reputation until the contrary is proven, and that they cannot consider the omission to prove the same as a circumstance against him, but must presume his reputation to be good without any proof on the subject, and take the same into consideration in making up their verdict.</p>

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

H. M. Trimble, Judge, presiding. This is an appeal from the circuit court of Bureau county from- an order entered by that court denying leave to the appellants to file an information in quo warranto against appellees touching the exercise of authority over certain lands comprising a part of the Mineral Marsh special drainage district, in Bureau and Henry counties.

Writ of Error to the Circuit Court of Morgan county; the Hon. O. P. Thompson, Judge, presiding.

<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. R. W. Clifford, Judge, presiding.</p>

<p>1. Settlement op estates—probate court exercises equitable powers in passing upon claims. In passing upon and classifying claims against an estate the prohate court exercises equitable powers, and may look beyond forms to the substance of claims.</p> <p>2. Same—what does not affect classification of claim for wages. That the decedent and his household servant kept an account showing the amount of wages due her, does not change the character of her claim from that of a claim for wages to an account stated, as respects classification.</p> <p>3. Same—when claim for wages is not changed in character to general indebtedness. That the account kept between the decedent and his household servant for wages shows, on its face, that there were items for cash loaned to or left with the decedent by the servant, does not change the character of the claim to that of general indebtedness, where it also appears from the account that the servant had drawn more cash than she had left with the decedent.</p> <p>4. Same—classification is fixed by the law in force at decedent’s death. The fact that part of the wages due a servant was earned before the law classifying claims for wages went into force does not affect her right to have the entire claim allowed as of the class fixed by such law.</p>

Henry W. Johnson, Judge, presiding. This is an appeal from the county court of LaSalle county in a condemnation proceeding forTthe right of way of the appellee. The appellant is the owner of the south-west quarter of section 24, township 31, north, range 2, east of the third principal meridian, and is also the owner of the remainder, after the expiration of the life estate of his mother, Mary Conness, of the undivided half of the north-west quarter of the same section.

M. Kavanagh, Judge, presiding. This is an action of ejectment, brought by the appellant, Henry P. Kransz, trustee, as plaintiff, against the appellees, Nikolaus Uedelhofen and Katharina Uedelhofen, as defendants, in which the declaration was filed on January 26, 1900.

John C. Garver, Judge, presiding. This is a bill for an accounting, filed in the circuit court of Winnebago county by the appellant against the appellee, and a demurrer having been sustained thereto, and a decree entered dismissing the same for want of equity, which has been affirmed by the Appellate Court for the Second District, a further appeal has been prosecuted to this court.

Jesse ' Holdom, Judge, presiding. This was assumpsit on a promissory note for $1000, made by appellant June 3,1893, payable to appellee in ninety days, with interest at six per cent per annum.

the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of DeKalb county; the Hon. George W. Brown, Judge, presiding.

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

<p>1. Taxes—burden of showing tax to be invalid is upon the objector. On application for judgment of sale against real estate for a delinquent personal property tax for the preceding year, the burden of disproving the collector’s prima facie case by showing that the objector was not a resident within the jurisdiction of the assessor and had no personal property there subject to taxation at the time such tax was assessed is upon the objector.</p> <p>2. Same—when assessor’s return is not void for failure to designate personal property assessed. An assessor’s return of personal property in a gross sum is not void because the property assessed is not specifically designated, where it does not appear from the record that the assessor was able to ascertain the exact nature of the property, since, if unable to do so, he is authorized, under section 24 of the Revenue act, to list such property according to his best judgment and information.</p> <p>3. Same—when personal property tax may he extended against real estate. Under section 255 of the Revenue act a delinquent personal property tax is properly extended against real estate, where the collector’s return shows that no personal property could be found out of which such personal property tax could be made.</p>

<p>1. Tax deeds—when tax deed is void. A tax deed issued in pursuance of notice by publication, based upon affidavits stating that no person was in possession or occupancy of the property and that affiant was unable to find any of the owners or parties interested in the property after making diligent search and inquiry “in Cook county,” is void, since the statute does not confine within county lines the diligent inquiry required to be made.</p> <p>2. Evidence—when copy of affidavit is properly admitted in evidence. In a proceeding to set aside a tax deed a copy of the affidavit for notice by publication is properly admitted, whether sufficiently certified by the county clerk or not, where the deputy clerk producing the same testifies that he has examined the records and the copy offered in evidence and compared the same, and that such copy is a true one.</p> <p>3. Same-^ív/mí sufficient proof of allegation of ownership■ of property. Complainant’s allegation of the ownership of property, in a bill to set aside a tax deed, is sufficiently established by proof that for more than twenty years prior to the sale of the property for taxes, and prior to the filing of her bill, she had been in the open, adverse and exclusive possession of the property, claiming to own the same.</p>

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. F. Bookwa'lter, Judge, presiding.</p>

<p>Appeal from the County Court of Boone county; the Hon. W. C. DeWolf, Jr., Judge, presiding.</p>

<p>This case is controlled by the decision in People ex rel. v. City of Chicago and Schlesinger & Mayer, (ante, p. 507.)</p>

Original petition for mandamus. This is an original petition, filed in this court by John Dickinson against the Board of Trade of the City of Chicago for a writ of mandamus to compel that body to annul upon its corporate records an order made by its board of directors, expelling him from his membership in the board of trade, and to restore him to all his rights and privileges as a member thereof.

<p>This case is controlled by the decision in People ex rel. v. City of , Chicago and Sehlesinger & Mayer, {ante, p. 507.)</p>

<p>1. Taxes—statutory provisions for protection of tax-payer are mandatory. Provisions of the statute designed for the protection of the tax-payer are mandatory, and a disregard of them will render the tax illegal.</p> <p>2. Same—when substantial justice of tax is affected. The substantial justice of a tax is affected if it is one which the authorities attempting to impose it have no power or right to impose.</p> <p>3. Same—statute concerning curing of irregularities in tax proceedings considered. Section 191 of the Revenue act, (Rev. Stat. 1874, p. 890,) providing that no informality in tax proceedings, not affecting the substantial justice of the tax, shall vitiate the tax, is not to be construed as curing every defect in attempts to tax, merely because the party taxed will pay no more, in proportion to his property, than other people who voluntarily pay the same tax.</p> <p>4. Same—when road and bridge tax is illegal. The law requires the meeting of highway commissioners for the levy of road and bridge taxes to be held on the Tuesday next preceding the meeting of the county board, at the same time and place as the meeting of the board of town auditors, and hence a road and bridge tax levied by the highway commissioners at the office of one of such commissioners nearly a month before the time so fixed by statute is illegal, and is open to objection on application for judgment of sale.</p>

<p>1. Special taxation—sidewalk ordinance must fix grade for walk. An ordinance for a sidewalk, to be paid for by special taxation under the Sidewalk act of 1875, must fix the grade of the walk by express terms or by reference, so that a property owner may know definitely at what grade to lay the walk in case he avails himself of his right to construct the walk in front of his own property.</p> <p>2. Same—when general ordinance does not fix grade for sidewalks. A general ordinance establishing the height of curb-stones on paved or macadamized streets does not establish the grade of a sidewalk.</p> <p>3. Same—when provisions of Sidewalk act are not complied with. The provisions of sections 3 and 4 of the Sidewalk act of 1875, respecting the bill of costs, delinquent report, etc., are not complied with where the city engineer, made out estimates of the cost of constructing the walk in front of each parcel of land, which he gave to the city clerk, who made a list of said estimates and turned them over to the city collector, who held them for some time, when he returned part of them to the city clerk with a verbal statement that he could not collect them, whereupon the city clerk filed with the county treasurer a certified copy of the ordinance, with a memorandum stating certain described property was delinquent.</p> <p>4. Same—sidewalk tax is invalid unless statute is complied with. The provisions of the Sidewalk act of 1875 are for the protection of the property owner, and no special tax thereunder can be sustained without a substantial compliance with such provisions.</p> <p>5. Same—clerk's delinquent report cannot be filed for the first time at the hearing. The city clerk’s written report of unpaid special tax warrants cannot be filed for the'first time at the hearing under the guise of an amended report, where there has been nothing previously filed which could be considered as a report, even by the most liberal construction of the statute requiring it.</p> <p>6. Same—objector may show non-compliance with statute on application for sale for delinquent sidewalk tax. The application for judgment of sale for a delinquent special tax levied under the Sidewalk act of 1875 is the first opportunity a property owner has to present objections, and he may then show the court had no jurisdiction to render judgment by reason of the failure of the city officials to comply with the provisions of the statute.</p>

<p>Sidewalks—Sidewalk act of 1875 does not authorize cost of curbing street to be included. Under the Sidewalk act of 1875 the power of the city is limited to the .exaction of special taxes to pay the cost of constructing sidewalks, and does not authorize the inclusion of the cost of curbing the street by making the curb-stones the outer edge of the sidewalk.</p>

<p>1. Robbery—felonious intent may be inferred from proof of a violent taking. When the fact of violence and the taking of property has been proved the felonious intent may be inferred.</p> <p>2. Same—what sufficient proof of ownership of stolen property. Evidence that the prosecuting witness was carrying a pair of shoes under his arm when assaulted by the accused, and that he stated to the police officer, after the assault, that he had lost his shoes, is sufficient evidence of the ownership of the property, where the indictment alleges it was the property of the prosecuting witness.</p>

<p>This case is controlled by the decisions in People ex rel. v. Chicago Theological Seminary, 174 Ill. 177, and Chicago Theological Seminary v. People ex rel. 189 id. 439.</p>

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

<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 DeKalb county; the Hon. M. O. Southworth, Judge, presiding.</p>

<p>Writ of Error to the City Court of Mattoon, Coles county; the Hon. J. F. Hughes, Judge, presiding.</p>

<p>1. Executors and administrators—power of executor to sell real estate—when implied. A power to sell real estate will be implied where it is necessary to enable the executor to carry out the testator’s intention.</p> <p>2. Same—the mere direction to divide properly does not necessarily give power to sell. A direction to distribute or divide property consisting, wholly or in part, of real estate, is not alone sufficient to show an intention of the testator that the executor should sell the land, since if a division can be effected by actual partition a power of sale will not be implied.</p> <p>3. SXme—when mil may be executed without a sale by the executor. A will providing that “my land and all of the personal property left” after the widow’s death “be equally divided between all my children, less the following sums which have been paid to the ones named,” does not necessarily require a sale by the executor to carry out its terms, since a court of equity has power, upon making partition of the land, to arrange and adjust the advancements so as to carry out the provisions of the will.</p> <p>" 4. Solicitors’ pees—when apportionment of complainant’s solicitor’s fee is not improper. The apportionment of complainant’s solicitor’s fee in partition is properly made where the bill sets out the interests of the parties correctly, the only contention in the case being that the executor alone bad power to sell tbe property,</p>

Truman E. Ames, Judge, presiding. The Appellate Court, in their opinion deciding this case, make the following statement of facts, to-wit: “Appellee filed her bill in chancery in the circuit court of Jasper county against appellant to require him to account to her as administratrix of the estate of Martin Haug, deceased, for a claimed co-partnership interest of deceased in a mercantile business, carried on and conducted for several years by appellant and deceased as…