Volume 194 — Illinois Reports

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

<p>1. Taxes — party objecting to tax has burden of showing its invalidity. One objecting to the enforcement of a tax has the burden of showing its invalidity, since the presumption is that the tax is just and that all officers who have had any official connection with it have properly discharged their duties.</p> <p>2. Same — right of land, owners to join in objection to drainage assessment. Land owners may join in objecting to an application for judgment of sale for a drainage assessment where objections as to each are identical and there is nothing to show that any confusion will arise by their so doing.</p>

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

<p>1. Taxes — “mining right” subject to taxation. Under sections 6 and 7 of the Mines act, if the “mining right” has been severed from the surface the two estates should he assessed separately for taxation.</p> <p>2. Same — when assessment indicates a severance of mining right from surface. The assessment of land, hy its governmental description, in the name of one person as owner and of a “mining right” in the same tract in the name of another person as owner, is susceptible of no other construction than that a severance of the surface and minerals has been effected.</p> <p>3. Same — what does not acquit party of obligation to pay taxes. The introduction in evidence of the tax collector’s hooks showing the payment of taxes on land hy the owner thereof does not avail to acquit the owner of the “mining right” in the same land of his obligation to pay taxes on such “mining right.”</p> <p>4. Same — certainty required in description of lands in delinquent list. The description of lands in a delinquent list is sufficiently certain if a competent surveyor could readily locate the land therefrom.</p>

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

<p>1. Pleading — failure to deny alleged corporate existence is an admission thereof. In the absence of a formal denial by the defendant the corporate existence of the applicant for initial registration of land title, as alleged in the application, is admitted and need not be proved.</p> <p>2. Registration op titles — objections should be raised by exceptions to examiner’s report. In applications for initial registration of title the relation of the examiner to the court is that of a master in chancery in other chancery proceedings, and if no objection is made to the sufficiency of the applicant’s evidence by exception to the examiner’s report such objection is waived.</p> <p>3. Tax deeds — term “penalties” construed as used in section 221/. of the Devenue act. The term “penalties,” as used in the proviso to section 224 of the Revenue act, requiring holders of canceled tax deeds to be re-paid all taxes, legal costs and “penalties provided by law,” does not mean the per cent on the purchase money required by law to be paid to effect redemption, but such proviso merely entitles such holder to the amount paid at the tax sale, subsequent taxes paid, and legal interest from dates of payments.</p> <p>4. Same — right to re-imbursement does not depend upon whether, complainant held title at time of sale. So far as the authority to impose the condition of re-imbursement in a judgment canceling or setting aside a tax deed is concerned, it is immaterial whether the action is brought by the owner who held title at the time of the tax sale or by a subsequent owner.</p> <p>5. Same — holder of tax deed entitled to re-imbursement when title is registered. An application for initial registration of title, where there are outstanding tax deeds on the property, is, in effect, a proceeding for -the cancellation of such deeds, and the holder thereof is entitled to re-imbursement, under the statute, as a condition to the relief prayed in the application.</p>

<p>1. Homestead — homestead cannot be sold to pay debts until estate terminates. A homestead not exceeding $1000 in value cannot be sold by the administrator to pay debts until the estate in favor of the widow and children is extinguished, and claimants must wait until the estate is ended before applying for a sale of the property.</p> <p>2. Color of title — deed relied upon as color must describe premises with certainty. A deed relied upon as color of title must describe the premises with the same certainty as in an absolute conveyance.</p> <p>3. Same — when a deed relied on as color is void for uncertainty. A deed relied upon as color of title is void for uncertainty where it describes the premises as “a part of the west half of the northeast quarter of section 17, town 3, north, range 9, east, in Richland county, Illinois, containing one acre, more or less.”</p> <p>4. Limitations — widow cannot acquire valid title to homestead by buying at her own tax sale. It is the duty of the widow, as a life tenant, to pay the taxes on the homestead property, and she cannot acquire a valid title to the property by suffering the same to be sold for taxes and becoming the purchaser, directly or indirectly.</p> <p>5. Same — purchase of property by widow at her own tax sale is evidence of bad faith. The fact that the widow allows the homestead property to be sold for taxes and afterwards acquires the tax title based upon such sale is evidence of bad faith on her part.</p>

<p>1. Widow’s award — when burden is on executors to show fairness of release. Sons of the testator who are executors and residuary legatees under the will, occupy such a fiduciary relation to their stepmother, the widow, as to cast upon them the burden of showing that a release of the widow’s award, contained in her written acceptance of the provisions of the will, was executed by the widow fully understanding the effect thereof and intending thereby to release her award.</p> <p>2. Same — when fairness of release of widow’s award is not established. A release of the widow’s award, contained in her written acceptance of the terms of the will, procured by the executors, (her stepsons, and residuary legatees under the will,) is not shown to be binding where it appears the widow was old, sick, unfamiliar with the language in which the release was written, was approached immediately after her husband’s funeral and given no opportunity to seek legal advice, and where, although there is evidence that the release was explained to her, there is none that she was informed of the value of the award or the estate, or that she had a year to elect to take under the will or under the law,</p>

<p>1. Taxes — town meeting not authorized to levy tax “for town purposes.” The third subdivision of clause 3 of section 3, article 4, of the Township Organization act, authorizing electors at a town meeting to raise money by taxation .“for any other purpose required by law,” is not authority for sustaining a tax levied by a vote of the town meeting “for town purposes,” there being nothing to show the nature of such purposes.</p> <p>2. Same — what necessary to sustain tax voted at town meeting. In order to make valid the adoption by a town meeting of a motion to raise money by taxation under the third subdivision of clause 3 of section 3, article 4, of the Township Organization act, it must appear that the purpose for which the tax was levied was one required or authorized by law to be carried into execution by the town.</p> <p>3. Same — town meeting not authorized to direct tax levy to pay judgments against town. In towns under township organization the basis for a tax levy to pay judgments against the town is the action of the board of town auditors as certified to the town clerk and the certification thereof by the town clerk to the county clerk, and a tax levy for such purpose cannot legally be authorized by vote of the annual town meeting. (People ex rel. r. Chicago and Alton Railroad Co. 193 Ill. 364, followed.)</p>

P. A. Pearce, Judge, presiding. This is a bill, filed in the circuit court of Lawrence county on March 29, 1899, by the appellant, Charles L. Thompson, a minor, suing by his next friend, against appellees, Alice J. Bennett and others, heirs of Eliza Ellen Helm, deceased, for the purpose of setting aside the will of Eliza Ellen Helm, mainly upon the ground that she executed her will through undue influence exercised over her by her husband, Squire B. Helm.

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

<p>1. Appeals and eeeoes — effect where Appellate Court affirms without making a finding of fact. A judgment of affirmance by the Appellate Court which makes no finding of facts implies a finding of facts the same as the trial court, and is conclusive of all controverted questions of fact.</p> <p>2. Same — motion for new trial is essential to right to have exceptions to rulings on evidence reviewed. It is essential to the right of a party to have exceptions to rulings on the admissibility of evidence reviewed on appeal, that there be a motion for new trial, a refusal to grant the same and an exception to such ruling.</p> <p>3. Same — motion for new trial should be preserved by bill of exceptions. A motion for new trial becomes part of the record when incorporated in the bill of exceptions, but not when it appears only in the transcript of the proceedings and files as certified to by the clerk.</p> <p>4. Same — bill of exceptions should preserve instructions and exceptions. In order to obtain a review of the action of the court in granting, refusing or modifying instructions, it is necessary that the instructions should be set forth in the bill of exceptions and the exceptions thereto noted in the bill.</p> <p>5. Same — when instructions are not preserved in a bill of exceptions. Copies of instructions found in the record immediately following the bill of exceptions, over the certificate of the clerk to the effect that they were copies of the instructions given or refused by the court, cannot be considered, where there is nothing in the bill serving to identify them with the instructions referred to therein.</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>

Elbridge Hanecy, Judge, presiding. The appellee filed his bill in equity in the circuit court of Cook county to set aside a certain judgment which had been obtained against him on his guaranty for the payment of rent on a lease by appellant to one Hogan, and which had been affirmed by the Appellate Court, and to set aside and cancel a certain certificate of sale of appellee’s land, which had been sold under a fieri facias execution issued on said judgment and purchased by…

<p>This case is controlled by the decision in Katz v. Illinois Central Railroad Co. 188 Ill. 578.</p>

<p>1. Negligence — when question of negligence in an action for personal injury is properly left to the jury. The question of negligence by the defendant railroad company is properly left to the jury under evidence that the plaintiff was a passenger on a street car; that the defendant’s freight train was crossing the street car tracks as the car approached; that the car stopped some twenty feet from the crossing gates, which were down; that as the freight train cleared the crossing the gates were raised and the street car started to cross the tracks, but before it could get over, the freight train, without warning, backed up, collided with the car and injured the plaintiff.</p> <p>2. Pleading — to recover general damages injuries need not be described with particularity. If general damages, only, are claimed, it is not necessary that the injuries received by the plaintiff, for which such damages are claimed, should be described with particularity in the declaration.</p> <p>3. Same — when omission from instruction will not reverse. The omission of the words “and under the instructions of the court” from the hypothesis, “If, under the evidence in this case, they [the jury] find the defendant guilty as charged in the declaration,” etc., contained in the plaintiff’s only instruction, is not reversible error where the defect has no influence upon the question of the amount of damages recoverable, and there is no serious question as to the negligence of the plaintiff being the proximate cause of the injury and none whatever that the plaintiff was exercising due care at the time he was injured.</p>

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

<p>1. Instructions — instructions are to be considered as one charge. While one instruction may omit some needed qualification and appear to be misleading when considered alone, it may not be misleading or improper when considered with the other instructions, and it is sufficient if the instructions, taken as a whole, present the law to the jury with substantial correctness.</p> <p>. 2. Same — all the instructions given should be contained in the abstract. If the errors complained of in instructions are of such a nature that they may be cured by other instructions, then all of the instructions given to the jury must be set out in full in the abstract of the record.</p> <p>3. Eminent domain — admissibility of stipulation as to the manner of constructing railway. A stipulation signed by the attorneys for a railroad company in condemnation proceedings, concerning the manner of constructing the railway, is not admissible in evidence where no authority on the part of the attorneys to make the stipulation is shown; but the error in its admission is cured where the stipulation is made a part of the judgment, and the rights of the petitioner under the judgment are made subject to the performance of the conditions stated in the stipulation.</p> <p>4. Same — court has no jurisdiction over separate tract of land in another county. Where there is a single tract of land of one owner lying partly in two counties a condemnation petition may be filed in either county, but the court has no jurisdiction over a distinct tract of land lying wholly in another county.</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. R. W. Clifford, Judge, presiding.</p>

<p>Appeal from the Comity Court of Iroquois county; the Hon. Prank Harry, Judge, presiding.</p>

<p>1. Deeds — quit-claim deed does not pass an after-acquired interest. A quit-claim deed passes any estate which, the grantor has at the time of its execution, but it cannot affect, by way of release, a future contingent interest limited to the surviving members of a class upon the event of the death of one of them without living issue, where there are no terms used in the deed which can be construed as referring to future interests.</p> <p>2. Same — what necessary to create assignment of future interests. To create an assignment of future interests there must be on the face of the instrument, or collected from its provisions by necessary implication, language of a present transfer directly applying to future as well as existing interests, or else language importing a present contract to sell or assign future interests.</p> <p>3. Plats — effect of making of a plat on partition of property between tenants in common. A plat made in accordance with quit-claim deeds executed by tenants in common to make partition of the land under the terms of their ancestor’s will, upon which plat are marked the names of the parties on the respective tracts quit-claimed to them, does not amount to a general warranty deed between such parties which will convey a contingent interest, which afterwards ripens into a fee title upon the happening of a specified contingency. (Lavalle v. Strobel, 89 Ill. 370, distinguished.)</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>

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

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

Writ op Error to the Branch Appellate Court for the First District; — heard in that court on appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. This is a case commenced in the superior court of Cook county by plaintiff in error to recover from defendant in error damages for the killing of James McDonough. The declaration contained three counts.

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

<p>This case is controlled by the decision in Ptacek r. People, ante, p. 125.)</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. This action was assumpsit by the defendants in error against the plaintiff in error. The declaration consisted only of the common counts. The only one relied upon was that for money had and received, and the only plea was the general issue.

Axel Chytraus, Judge, presiding. This is an appeal from the Appellate Court for the First District affirming a judgment of the superior court of Cook county for §1097.92, recovered by the appellee ag-ainst the appellant. The declaration was in assumpsit; contained two special counts and the common money counts. Plea of general issue.

Writ oe Error to the Branch Appellate Court for the First District; — heard iu that court on writ of error to the Superior Court of Cook county; the Hon. Nathaniel C. Sears, Judge, presiding.

Prank K. Dunn, Judge, presiding. The appellant, Charles L. English, as the trustee in a deed of trust executed August 8, Í895, by Henry Brand on his electric light plant in the city of Danville, brought his bill in the circuit court of Vermilion county to foreclose the deed of trust as a mortgage, and, for alleged fraud, to have two certain deeds of conveyance of said plant, one made by Brand to appellee Prank Lindley on August 9, and the other by Lindley to the Danville…

<p>1. Names — when the me of descriptive terms will be enjoined. That generic terms or mere descriptive words are the common property of the public and not ordinarily susceptible of appropriation by an individual, does not prevent the issuing of an injunction to restrain the use of such terms or words at the suit of one who has already adopted them, where the evidence shows a fraudulent design and that the public will be misled.</p> <p>2. Same — use of name “International Committee of Young Women's Christian Associations” may be enjoined. The use of the name “International Committee of Young Women’s Christian Associations” will be enjoined at the suit of the Young Women’s Christian Association, it appearing that such name was advisedly adopted by the defendant for the purpose of misleading the general public, and persons from whom it hoped to receive support by way of donations, into believing that it stood as the committee and representative of the Young Women’s Christian Association.</p>

<p>1. Mortgages — a party assigning coupon may stipulate that it be a junior lien to principal note. The owner of a note secured by mortgage may, upon assigning an interest coupon thereof, stipulate that such coupon be subject to the lien of the mortgage for the principal note and coupons subsequently becoming due.</p> <p>2. Same — when second foreclosure may be had without redemption. If the assignee of an interest coupon agrees that the lien thereof shall be subject to the mortgage lien securing the principal note and also to all interest coupons subsequently becoming due, an assignee of an interest coupon subsequently becoming due.may have foreclosure without redeeming from the foreclosure had on the former interest coupon.</p> <p>3. Same — assignee of mortgage takes subject to defenses. The assignee of a note secured by mortgage becomes invested with an equitable right to the benefit of the lien of the mortgage; but such right is subject to all the infirmities to which it was liable while the note remained the property of the assignor.</p> <p>4. Pleading — second mortgagee may participate in proceeds of sale without filing a cross-bill. It is not essential to the right of a second mortgagee to participate in the surplus of the proceeds of the foreclosure sale under the senior lien, that such relief be asked by cross-bill, since it is sufficient if claimed by the answer.</p> <p>5. Judgments and decrees — decree should protect right of second mortgagee to participate in surplus. If the master’s report in foreclosure recites, in detail, findings relative to the execution of a note and second mortgage, and finds the amount due the second mortgagee and declares a lien in her favor, the decree, which approves and confirms the report “in all respects,” should declare the facts so found in the master’s report, in order to protect the right of the second mortgagee to participate in the surplus, if any.</p> <p>6. Costs — apportionment of costs on partial reversal is discretionary. The apportionment of costs in case of partial reversal is within the discretion of the court.</p>

<p>Special assessments — right of city to show that “flat stones” have a well defined local meaning. If an ordinance has been held defective in not describing the stones on which the curb is to be bedded otherwise than as “flat stones,” petitioner has a right, on second trial, to prove, if it can, that the term “flat stones” has such a well understood local meaning as not to be indefinite or uncertain.</p>

<p>1. Burnt records — a party desiring to verify copies of letter-press copies of abstracts should make application. Under the statute, sworn copies of letter-press copies of abstracts of title are admissible in evidence in a burnt records proceeding provided the opposite party is given a reasonable opportunity to verify them; but no notice is required by statute, and if such opposite party has not had the opportunity he should ask for time to make the verification.</p> <p>2. Same — affidavit properly filed as a foundation for certified copies of deeds need not be formally offered in evidence. If a proper and sufficient affidavit laying the foundation for the introduction of certified copies of deeds in a burnt records proceeding has been filed it is not necessary to formally offer it in evidence on the hearing before the master, but it is sufficient, when objection is made, to call attention to the affidavit or exhibit it before the master.</p> <p>3. Presumptions — files presumed to be before the master when issues are tried. Where the issues have been referred to the master in chancery it is presumed that the files of the case were before him while the hearing was in progress.</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. Farlin Q. Ball, Judge, presiding.</p>

<p>1. Appeals and errors — party must join co-defendants in writ of error. One who is a party to the record or is shown by the record to be prejudiced by a judgment or decree may sue out a writ of error, and is permitted to use the names of all of his co-defendants without their consent; but he cannot prosecute his writ without joining co-defendants who are identified in interest with him, and obtain the judgment of a court of review so far as the judgment or decree below affects him.</p> <p>2. Same — writ of error must agree with the record. In order to bring up a decree in favor of the complainant for review by writ of error all defendants in the original suit who are living must join in the writ, so that the whole case may be disposed of and that the record may agree with the record below.</p>

Writ of Error to the Appellate Court for the First District; — heard in that court on writ of error to the Superior Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding. This 'is a writ of error to the Appellate Court for the First District to review the judgment of that court affirming a decree of foreclosure and sale of the superior court of Cook county.

<p>1. Schools — petition to form new district — how tobe signed. Clause 3 of section 48 of article 3 of the School law, providing for a petition to he signed by two-thirds of all the legal voters within certain territory containing not less than ten families, asking that said territory be made into a new district, relates to the organization of a new district out of territory belonging to two or more districts.</p> <p>2. Same — section 51 of article 3 of School law construed. Boards of trustees of two or more townships affected, acting concurrently, may, under section 51 of article 3 of the School law, when duly petitioned, make changes in districts lying adjacent to each other but in separate townships, or in single districts formed of parts of two or more of such townships, the same as may be done by the trustees in the case of districts lying wholly in one township.</p> <p>3. Same — word “adjacent” construed as used in section 51 of article 3 of School law. The term “adjacent to each other,” used in section 51 of article 3 of the School law, authorizing the boards of trustees of the townships in which the district or districts affected lie to organize a new school district out of territory belonging to two or more districts “adjacent to each other,” means that the districts the territory of which is taken shall be so united or joined together as to form a compact district.</p> <p>4. Same — new district may be formed out of whole territory of two or more districts. Clause 2 of section 47 of article 3 of the School law, authorizing the trustees “to organize a new district out of territory belonging to two or more districts,” does not limit the new district to parts, only, of territory belonging to two or more districts, hut such new district may include the whole territory of two or more districts. (People v. Allen, 155 Ill. 402, adhered to.)</p> <p>5. Same — when board of education may be elected for new school district. When a new district is formed which has a population of not less than one thousand nor more than one hundred thousand, the election must be for a board of education instead of for three directors.</p> <p>6. Same — election of board of education need not be on third Saturday in April. Section 2 of article 6 of the School law does not require the election of the president and members of the board of education to be held on the third Saturday in April, nor is any census of the district, general or special, required, since such provisions apply only when additional members 'of the board of education are to be elected.</p> <p>7. Same — section 9 of article 6 does not apply to elections in new districts. Section 9 of article 6 of the School law does not apply to the election of a board of education in a newly formed district, but only where a change is made from a board of directors to a board of education.</p>

<p>Appeal from tke County Court of McLean county; tbe Hon. Rolland A. Russell, Judge, presiding.</p>

<p>1. Trial — when rulings of court are not necessarily inconsistent. A ruling admitting in evidence a chancery decree set up in a notice of special defense filed with the general issue is not necessarily inconsistent with a previous ruling sustaining a demurrer to a special plea setting up the same decree, where there is nothing in the record to show upon what ground the demurrer was sustained.</p> <p>2. Evidence — when decree in chancery suit is properly admitted. In an action by a depositor against a bank for refusing payment of plaintiff’s checks, thereby destroying the credit of the plaintiff as a trader, it is competent to admit in evidence a decree in a chancery proceeding against the bank and the plaintiff as defendants, whereby the ownership of the fund on deposit at the time the checks were drawn was determined to be in third parties, who were consignors of stock shipped to the plaintiff and sold by him.</p> <p>3. Actions and defenses — elements necessary to sustain an action against bank for slandering a depositor's credit by refusing to pay checks. To sustain a suit by a depositor against a bank, in the nature of an action for slandering the credit of the plaintiff as a trader by refusing to pay his checks, it must be shown that at the time the checks were presented the plaintiff had on deposit sufficient funds belonging to him, unencumbered, out of which the checks should have been paid, and that the bank, by mistake or other inexcusable conduct, refused to honor and pay the same.</p> <p>4. Banks — a banker having notice that deposit is a trust fund may refuse to honor checks. Ordinarily it is the duty of a banker to pay money on deposit with him to the party in whose name it is deposited; but if he has notice of the fact that the fund belongs to another, he may refuse to honor the checks of the depositor and be compelled to pay it to the real owner.</p> <p>5. Res judicata — when decree operates as an estoppel in subsequent suit at law. If a bank refuses to honor a depositor’s checks and attempts to apply the deposit on a note held by it against the depositor, but in a chancery proceeding by third parties against the bank and the depositor it is determined by the decree that the fund was a trust fund belonging to the complainants, that the bank had notice of such fact and that the complainants were entitled to the fund, the decree is a-defense to a subsequent suit by the depositor against the bank for slandering his credit as a trader by refusing to honor the checks.</p>

R. S. Tuthill, Judge, presiding. This is a bill for foreclosure, filed on April 18,1898, by the United States Mortgage and Trust Company, formerly United States Mortgage Company, a corporation organized under the laws of the State of New York, and having its principal office of business in the city of New York, and authorized by its charter to invest or loan money and take real estate security therefor, against William Richardson, Mary A. C. Richardson and others.

R S. Tuthill, Judge, presiding. This is an appeal from a decree of the circuit court of Cook county, entered on the 6th day of July, 1900, denying partition of the property described in the bill, and directing a sale thereof, and a division of the proceeds in the manner and proportion therein mentioned, but with a provision that, in view of a stipulation between the parties to the effect that the best time for the sale of the land had not yet arrived, the sale should not be…

Jefferson Orr, Judge, presiding. This is an appeal from a judgment by the Appellate Court on May 29,1900, rendered in a certain cause in that court wherein the present appellee, Charles J. Off, was plaintiff in error, and the appellant, William Trapp, administrator of the estate of Mariah Trapp, deceased, was defendant in error, by the terms of which judgment, after reciting that said Trapp, administrator, had filed certain pleas of releases of errors by said Off, and that…

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

<p>Appeal from the County Court of Morgan county; the Hon. David F. King, Judge, presiding.</p>

<p>1. Criminal law — parole laws are not intended to fix punishment for crimes. The parole laws are not intended to fix the punishment for crime, but to direct the manner of the imposing of sentence by the court.</p> <p>2. Same — punishment is synonymous with penalty. In connection with crimes of the highest grade punishment is synonymous with penalty, such punishment being fixed by the law defining the crime, whereas the sentence is the final determination of the court.</p> <p>3. Same — Habitual Criminal act of 1883 has not been repealed. The Habitual Criminal act of 1883 has not been repealed by the enactment of the various parole acts of 1895, 1897 and 1899, but remains in force, and persons convicted thereunder may, since the enactment of the Parole law of 1899, receive the benefit of such law and be required to serve not less than one year nor more than the term fixed by the Habitual Criminal act.</p> <p>4. Same — proof of averment of former conviction may be given in chief. Where an indictment contains an averment of former conviction, as is authorized by the Habitual Criminal act of 18S3, the proof of such averment is a part of the case in chief for the People.</p> <p>5. Same — considerable latitude must be allowed, the court in a criminal case. Considerable latitude must be allowed the trial judge during the progress of a criminal case, that he may ask questions of witnesses or call upon counsel for statements of what has preceded, thus enabling him to give proper rulings.</p> <p>6. Same — trial judge should avoid expressions of opinion before the jury. In the conduct of a criminal case the trial judge should use great care to avoid expressions of opinion before the jury which might give the impression that he was more favorably inclined to one side than the other or that he placed greater credence upon the testimony of certain witnesses than of others; but unless his duty in that respect has been manifestly disregarded, a court of review will not hold his conduct to be reversible error.</p> <p>7. Same — when improper remark will not reverse. If the evidence on the question of alibi is conflicting, it is improper for the court to remark, after the testimony of one of the defendant’s witnesses, that “somebody is lying about this;” but such remark will not be ground for reversal, if, upon the whole record, the court of review entertains no doubt as to the defendant’s guilt.</p> <p>8. Same — test of a witness’ qualification is not age, but understanding. That a boy six years old was allowed to testify in a criminal case is not error if his preliminary examination shows that he understood the nature arid meaning of an oath, but it is for the jury to say what weight shall be given to his testimony.</p> <p>9. Same — that some instructions are printed in large type is not ground, for reversal. It is not ground for reversal that some of the instructions for the People were uniformly printed in unusually large type.</p> <p>10. Same — a verdict need not fix or name the place of imprisonment. A verdict finding the accused guilty of robbery, as charged in the indictment, and that he had been previously convicted of burglary and served a term in the penitentiary, is not defective because it fails to fix or name the place where he should be imprisoned.</p>

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

<p>Appeal from the Circuit Court of Washington county; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Statute oe Frauds — written manifestation of trust may appear in the correspondence of the parties. It is not necessary that the writing manifesting or proving a trust shall have been framed for the purpose of acknowledging the trust nor that it shall be in any particular form, but may appear from the correspondence of the parties.</p>

<p>Writ op Error to the Circuit Court of Clinton county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District; — heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

<p>Writ op Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.'</p>

<p>Appeal from the County Court of McDonough county; the Hon. W. J. Franklin, Judge, presiding.</p>

Charles G. Neely, Judge, presiding. This is an appeal from the Appellate Court for the First District affirming a judgment of the circuit court of Cook county. In the Appellate Court Mr. Justice Adams, in delivering the opinion, made a statement of the case.

<p>1. Wills — one taking under will cannot set up title which will defeat the will in part. If the wife elects to take under her husband’s will, thereby receiving a greater share of his estate than she would have taken under the law, neither she nor her executors can set up title which would defeat the will in part, even though the title to the property disposed of by such part was in the wife at the time of the execution of the will and at the testator’s death.</p> <p>2. Same — when widow must be held to confirm all provisions of will. If the widow enjoys the income from her husband’s entire estate for many years by virtue of the provision made for her in his will, she must be held to have accepted all the provisions of the will, and thereby confirmed that part thereof which gave the fee to property owned separately by her to other parties.</p>

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

<p>1. Wills — courts favor a construction which gives estate of inheritance to first taker. It is the disposition of the courts tó adopt such a construction of a will as will give an estate of inheritance to the first donee.</p> <p>2. Same — language of will construed as passing afee simple title. A will devising to the two daughters of the testatrix “and their children * * - all my real and personal estate,” passes a title in fee simple under our statute, which vests in the two daughters, and if no children are born to them the will is inoperative as to “their children.” (Schaefer v. Schaefer, 141 Ill. 337, distinguished.)</p>

<p>1. Propositions of law — propositions of law should be based upon the evidence. A proposition of law is properly refused where there is a want of evidence on which to base it.</p> <p>2. Sheriffs — right of sheriff to recover the full value of goods taken from his possession. Where property levied upon by a sheriff is taken from his possession by a stranger, .the sheriff is entitled to recover both the value of his special property and that of the general owner, in order that he may be ready to answer for the proceeds of the property to those lawfully entitled thereto.</p> <p>3. Same — effect where defendant settles with one of the parties beneficially interested. One who seizes and converts to his own use property in the possession of the sheriff under a levy, is liable to the sheriff for the full value of the property; and if he settles with one of the parties beneficially interested for a part, only, of the amount for which he is liable, he is entitled to credit to that amount, but judgment should be given against him for the balance of the value of the property, for the use of the others beneficially interested.</p>

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

Philip Stein, .Judge, presiding. Appellant filed an intervening petition against appellees in the foreclosure suit of Augusta Lehmann against Bertha Wolff and others, in which petition he claimed title to and right to possession of the mortgaged premises as against appellees. The decree found that he had no title to or right in the premises, and dismissed his petition for want of equity and granted relief to some of appellees. Prom that decree this appeal is taken.

<p>1. Wills — /aci that will corresponds to testator’s declarations is a favorable circumstance. That the provisions of a will correspond with the proved declarations of the testator as to his intentions is a circumstance tending to contradict the theory of fraud or substitution.</p> <p>2. Same — what does not tend to establish testator’s ignorance of contents of will. Testimony that the testator could not read English writing nor write except to sign his name, has no tendency to establish either his inability to make a will or his ignorance of the contents of the will which he executed.</p> <p>3. Same — effect if appointment of executor is invalid. Where the appointment of the executor is separate from all the other provisions of the will, the holding of such appointment to be invalid because of substitution of names would not aSect the will as an entirety or destroy it as a will.</p>

W. G. Cochran, Judge, presiding. On the 7th of March, 1901, the appellant filed his bill in chancery in the circuit court of the county of DeWitt, in and by which said bill it is alleged that in 1867 one Bushrod W. Monson, the father of appellant, by way of gift conveyed to appellant, by warranty deed, certain lands described in said bill, situated in said county of DeWitt, and containing about two hundred and forty acres; that at the time of said conveyance to him, as…

<p>1. Mandamus — essential features of answer to petition for mandamus. A proceeding for mandamus is a suit at law, and if the respondent answers he must deny the facts alleged in the petition, on which the claim is founded, or confess and avoid by setting up other facts showing that he is under no obligation to perform the act.</p> <p>2. Same — facts not denied by respondent’s answer are admitted. All facts properly set forth in a petition for mandamus which are not denied by the respondent in express terms are admitted to be true as in other pleadings at law.</p> <p>3. Same — thepetitioner should reply to answer as in other cases at law. The petitioner should reply to the respondent’s answer as in other cases at law, and it is irregular and contrary to the statute and the established practice for him to file the ordinary replication to an answer in chancery.</p> <p>4. Appeals and errors — jurisdiction is determined by questions invoiced in the appeal. The fact that a freehold may have been involved in the trial court does not justify a direct appeal to the Supreme Court if the questions involved under the assignments of error have no relation to a freehold.</p> <p>5. Same — when freehold is not involved on appeal. A freehold is not involved on appeal from a judgment awarding a writ of mandamus to compel a city to pass an ordinance to disconnect territory, where the only question in controversy was whether part of the premises had been platted into lots and blocks.</p> <p>6. Same — exception is not preserved in the record by recital of the clerk. An exception can only be made a part of the record by being inserted in the bill of exceptions, and it is not sufficient that the record written by the clerk recites that an exception was taken.</p>

<p>1. Railroads — effect of adoption of rule by railroad company. The adoption by a railroad company of a rule requiring flagmen and torpedoes to be placed a certain distance away from the point where a rail has been taken from the track is an admission by the company that ordinary care required such course of conduct.</p> <p>2. Same — engineer has a right to rely upon obedience by others of company’s rutes. An engineer has a right to rely upon the observance by a track gang of the company’s rule relative to the placing of flagmen and torpedoes where a rail has been removed from the track, whether he had received a bulletin to look out for the track gang at a certain place or not.</p> <p>3. Same — company liable for track gang’s failure to notify an engineer that a rail is out. It is the duty of a railroad company to furnish an engineer a reasonably safe track upon which to run his engine, and neither that duty nor the duty of notifying the engineer that a rail had been removed can be delegated to other servants of the company, so as to absolve the company from liability for a failure to give such notification in time.</p>

<p>Appeal from the Circuit Court of Lawrence county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>Appeal from tlie Circuit Court of Will county; tlie Hon. Dorrance Dibell, Judge, presiding.</p>

Elbridge Hánecy, Judge, presiding. This is an action of ejectment, begun on April 2, 1900, by the appellant against the appellees, William S. Gooding, Charles T. Barnes, Marion A. Barnes, Eliza J. Evans and others, to recover possession of two lots in Chicago, which, together with the buildings thereon, are known as 1646 and 1648 West Congress street.

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

<p>1. Special assessments — when existence of union labor ordinance does not invalidate assessment. The existence of a general ordinance requiring bidders on public work to employ union labor, only, is not ground for refusing judgment of sale, where it is not shown that the improvement ordinance, the bid or the contract contained a union labor clause, or that the union labor ordinance was applied or enforced in any manner in the contract or in the proceeding.</p> <p>2. Same — Supreme Court will not presume that void general ordinance was enforced. If an assessment ordinance is complete in itself and contains no reference to a void general ordinance requiring bidders on public work to employ union labor, only, it will be presumed, in the absence of proof to the contrary, that the municipal authorities treated the general ordinance as vpid and did not apply it to the particular proceeding.</p>

E. P. Vail, Judge, presiding. This is a bill, filed by appellant against the appellees, charging that the appellees have violated a written contract with the appellant in relation to a building line upon their respective lots, which adjoin each other; and praying that a certain addition, alleged to be in process of erection contrary to the terms of the contract, may be removed. The bill was demurred to, and the court below sustained the demurrer, and dismissed the bill.

Charles A. Bishop, Judge, presiding. This was a bill filed by appellant, Abram Ashelford, ag-ainst appellee, Robert Willis, on the 17th day of September, 1900, in the DeKalb county circuit court, praying for an injunction against appellee to restrain him from removing certain fences of appellant, and from breaking and entering or in any way interfering with the possession of appellant over, across and upon the north-east quarter of section 25, township 41, north, range 3,…

<p>Writ op Error to the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.</p>

<p>1. Special assessments — ordinance must specify nature, character and description of improvement. While the city council may decline to adopt the draft of the ordinance prepared by the improvement board, yet any ordinance adopted by it must prescribe the “nature, character, locality and description” of the improvement.</p> <p>2. Same — establishment of street grade cannot be delegated to city engineer. The establishment of a street grade is a legislative function which must be exercised by the council, and such power cannot be delegated to the city engineer or other official.</p> <p>3. Same — when provision for street crossings is invalid. A paving and curbing ordinance is invalid which provides that “raised crossings, constructed in conformity with the plans of the same adopted by the board of local improvements, will be laid at all street intersections, and at such other places as the board may deem necessary.”</p> <p>4. Same — when paving ordinance is uncertain. An ordinance for paving and curbing “the public square” leaves uncertain the question whether it was intended to pave the streets surrounding the square, or the area embraced within the square, particularly where there is a provision that “a line of curbing shall he set along each side of the public square.”</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>This is a petition for mandamus, filed by appellee on September 14, 1899, against the appellant, as commissioner of public works of the city of Chicago, to compel him to issue and deliver to the relator a permit in writing, authorizing the relator to lay down and construct a switch track in accordance with the terms and provisions of an ordinance, passed by the city of Chicago on February 3,1896. Appellant filed a general demurrer to the petition, which was overruled. Thereupon, on October 21, 1899, the defendant below, appellant here, filed an answer to the petition. To this answer a demurrer was filed by the relator or petitioner. The demurrer was sustained, and leave was given to appellant to amend his answer. On November 14,1899, appellant, commissioner of public works, filed his amended answer. Petitioner filed a general and special demurrer to certain paragraphs of the amended answer. On February 7, 1900, the court sustained the general and special demurrer to certain portions of appellant’s amended answer. On February 26,1900, appellant made a motion in writing for leave to file an amendment to his amended answer, and presented a draft of the amendment, which he so desired to make. The court, however, refused to allow appellant to.file the amendment so presented, and overruled his written motion for leave to do so. Thereupon, the court entered an order, directing the issuance of a writ of man-damns upon the face of the pleadings and in accordance with the prayer of the petition. From this order appellant prayed an appeal to the Appellate Court. The Appellate Court affirmed the judgment of the circuit court, ordering the writ of mandamus to issue. The present appeal is prosecuted from such judgment of affirmance.</p> <p>The petition for mandamus alleges, that the relator is the owner in fee simple and in possession of two lots in Chicago, having a north frontage of 170.8 feet on Way-man street; that said lots are improved with a six-story and basement brick warehouse, occupied and used by relator’s lessees for the receipt, storage and sale of merchandise brought into Chicago over various railroads, and, when sold, shipped from time to time from said building over various railroads; that on February 3,1896, the city council of Chicago passed the following ordinance, to-wit:</p> <p>“An ordinance granting to M. D. Coffeen permission and authority to construct and operate a private switch. “Be it ordained by the city council of the city of Chicago:</p> <p>“Section 1. That permission and authority is hereby granted to M. D. Coffeen, or his assigns, to construct, maintain and operate a private single railroad switch for a period of ten years, from and connecting with the tracks of the Pittsburg, Cincinnati, Chicago and St. Louis Railroad Company at a point east of Jefferson street near its intersection with the Milwaukee avenue viaduct, thence on a gradual curve in a south-westerly direction across Jefferson and Wayman streets, and west on and along the south side of Wayman street to Desplaines street: Provided, hoioever, that said M. D. Coffeen shall, before laying any part of said track, enter into bond with the said city of Chicago in the penal sum of five thousand (15000.00) dollars, to be approved by the mayor, to hold and save the city of Chicago harmless from all damages caused by the passage of this ordinance: Provided further, that the privileges hereby granted shall be subject, in all respects, to all ordinances now in force or which may be hereafter passed concerning railroads, and said M. D. Coffeen and his assigns shall keep so much of Wayman street as shall be occupied by said switch in such condition and repair as may be directed by the department of public works: And provided further, that said switch shall be constructed and maintained under the direction and supervision of the department of public works.</p> <p>“Sec. 2. This ordinance shall be subject to amendment or repeal at any time for failure to comply with any order of the department of public works concerning proper .construction and maintenance of said switch, and upon the expiration of this ordinance said M. D. Coffeen or his assigns shall remove said switch after notice from the department of public works, and in case of failure or refusal to comply with said notice, then the city of Chicago may remove the same at the expense of M. D. Coffeen or his assigns.</p> <p>“Sec. 3. This ordinance shall be in force from and after its passage and acceptance by M. D. Coffeen.”</p> <p>The petition further alleges, that this ordinance was approved by the mayor on February 7,1896, and accepted by the relator, and a bond executed, as required by the ordinance, and approved by the mayor on February 13, 1896; that, under the general ordinances of Chicago, it was relator’s duty to obtain a permit from the commissioner of public works before entering upon the work of laying said switch track; that petitioner made his application in writing on February 12, 1896, and on February 15, 1896, the commissioner of public works issued to petitioner a permit in writing, authorizing him to proceed with the construction of said switch track in accordance with the provisions of said ordinance, it being provided that the work should be completed within thirty days, otherwise the permit to be null and void; that the petitioner by the Pittsburg, Cincinnati, Chicago and St. Louis Railroad Company, a corporation, which had agreed to do the work for petitioner, commenced to lay said track, but, before the same had been completed, said railroad company, induced by the Chicago, Milwaukee and St. Paul.Railway Company, tore up a portion of the track so constructed, and refused to lay the same, or to proceed further with its construction; that, on February 25,1896, after the railroad company had torn up the track, and before petitioner had time to re-commence the work, the Chicago, Milwaukee and St. Paul Railway Company filed a bill in the United States Circuit Court, asking that petitioner be perpetually enjoined from constructing said switch track; that afterwards, on April 4, 1896, a decree was entered by said court so enjoining petitioner, which decree of injunction remained in force until November 10, 1898, when the same, in accordance with the mandate of the United States Circuit Court of Appeals, was dissolved and vacated, and on January 9, 1899, said bill was dismissed; that on February 4, 1899, petitioner made application in writing to said commissioner for a permit to construct a switch track in accordance with said ordinance, said ordinance being still in force and effect, the permit formerly issued having become void for the lapse of time; that the said application was approved by the deputy commissiouer of public works and the assistant corporation counsel of the city, but the commissioner of public works refused to issue such permit; that petitioner is therefore unable, without violating the general ordinances of the city respecting permits, to proceed with the laying down and constructing of said switch track.</p> <p>The amended answer of the appellant admits the passage of the ordinance in question on February 3, 1896, and the making of the application for a permit, and the granting of the permit, and that, by the terms thereof, the laying of the syútch track was to be completed within thirty days of the date of the permit, otherwise the permit was to become null and void. But the answer avers, that the work of laying said switch track, for which said permit was issued, was not completed within a period of thirty days, nor was it at any time afterwards completed, and that said permit, so given by the commissioner, became null and void. The amended answer also admits, that petitioner applied for another permit to lay said switch track on February 4, 1899, and avers that, before such application was passed upon, the ordinance of February 3, 1896, was repealed by the passage by the city council of the city of Chicago on May 29, 1899, of the following repealing ordinance, to-wit:</p> <p>“An ordinance repealing an ordinance granting M. D. Coffeen permission and authority to construct and operate a private switch.</p> <p>“Whereas, on the third day of February, 1896, this council passed an ordinance entitled ‘An ordinance granting to M. D. Coffeen permission and authority to construct and operate a private switch,’ said switch track to be laid from and connecting with the tracks of the Pittsburg, Ciucinnati, Chicago and St. Louis Railroad Company at a point east of Jefferson street near its intersection with Milwaukee avenue viaduct, thence on a gradual curve in a south-westerly direction across Jefferson and Wayman streets, and west on and along the south side of Wayman street to Desplaines street; and whereas, it was represented to the city council by plats that said Wayman street was about sixty (60) feet wide; and whereas, as said Wayman street was not bA. that time, nor is it at the present time, more than forty (40) feet in width; and whereas, said street was at the time of the passage of said ordinance, and for many years prior thereto, and is at the present time, continually crowded with teams going to and from the railroad freight houses and yards in that vicinity, and said switch track, if laid and operated, would materially reduce the width of said street and almost destroy its use to the general public; now, therefore;</p> <p>“Be it ordained by the city council of the city of Chicago:</p> <p>“Section 1. That the ordinance passed by this council on February 3, 1896, entitled ‘An ordinance granting to M. D. Coffeen permission and authority to construct and operate a private switch,’ as shown upon pp. 1844 and 1845 of the official proceedings of this council for the years 1895 and 1896, be and it is hereby repealed.</p> <p>“Sec. 2. This ordinance shall take effect from and after its passage and approval.”</p> <p>The amended answer then proceeds to aver that, by reason of the passage of the repealing ordinance, appellant, as commissioner of public works, had no authority to issue a permit to petitioner, authorizing him to lay down a private switch track, and denies that, at any time since May 29, 1899, it was or is appellant’s duty to issue a permit, as requested by the petitioner or relator. The amended answer further sets up, that the passage of the ordinance of February 3, 1896, was secured by relator by misrepresentation and fraud, in that petitioner represented that its construction would not injuriously affect for public use the streets, along and upon which it was proposed to lay said switch track, and further represented to the council, that Wayman street was sixty feet in width, and that no great amount of traffic was conducted upon any of the streets upon -which it was proposed to lay such switch track; that Wayman street was not sixty feet in width, but only forty feet in width, and that Jefferson and Wayman streets were continually crowded with teams going to and from the railroad freight houses and yards in that vicinity; that the said switch track, if constructed along Jefferson and Wayman streets, would have practically destroyed the use of the streets for public use between the points where it was to be constructed and would have blocked all traffic on said streets; that the city council was misled into passing said ordinance by such representations; that it was learned afterwards by the city council, that the exercise by relator of the privileges granted by the ordinance of February 3, 1896, would almost entirely exclude the public from the portions of Jefferson and "Way-man streets above mentioned, and would render the same dangerous and unfit for public traffic; that, by reason of such facts being made known to the council, it repealed said ordinance; that a general public protest was made to the council against the granting of the permit in question to relator by about two thousand persons, firms and corporations engaged in the teaming business; that said switch track, if laid as requested, would deprive the interests, engaged in the teaming business, of the use of said streets for teaming purposes; that, in the belief of the council, the granting of said permit under said ordinance would create a nuisance and an illegal incumbrance on said streets, “and that such ordinance granting such privilege to said M. D. Coffeen to lay a switch track along said Jefferson street and "Wayman street, in manner and form as aforesaid, was illegal for the reason that the city council did not have the authority to grant any person, firm or corporation, for private use, any part of any public street or streets so as to exclude the public from the use thereof;” that for these reasons the council passed the repealing ordinance above named; that petitioner has at no time since February 3, 1896, completed, or had in operation, said switch track, and that his failure so to do prior to the passage of said repealing ordinance was not occasioned through any fault of appellant.</p> <p>The amendment, which the appellant asked leave by motion in writing to make to his amended answer, and a draft of which amendment was submitted to the court with his motion, was an amendment, setting up that the ordinance of. February 3,1896, vested no authority in the petitioner to construct and operate said switch track, and vested no right in him to have a permit issued to him by this defendant permitting the construction of such switch track, for the reason that the ordinance of February 3, 1896, was illegal and void, and that the city council had no power to pass the same, because said ordinance was not passed in accordance with the provisions of the 90th clause of section 1 of article 5 of chapter 24 of the Revised Statutes of Illinois, and because no petition of the owners of the land, representing any part of the frontage of either of said streets named in said ordinance of February 3,1896, and along and upon which the switch track was to be laid and operated, was presented to the city council; and that, without such petition, signed by the owners of the land, representing more than one-half of the frontage of each mile and of each fraction of a mile along the streets or parts of streets, upon which the switch track was to be laid and operated in accordance with said ordinance, no authority or power whatsoever was in the city council to pass said ordinance. The amendment avers that, prior to the passage by the council of said ordinance of February 3, 1896, or at any time since, no petition of the owners of any land, fronting on any part of either Jefferson or Wayman streets, along which said switch track was to be laid and operated, was presented to the city council.</p>

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

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

John C. Garter, Judg'e, presiding. This is an action of debt by the People, for the use of the State Board of Health, against Joseph P. Gordon, to recover a penalty for practicing medicine without a license, contrary to the provisions of the act of 1899, entitled “An act to regulate the practice of medicine in the State of Illinois, and to repeal an act therein named.” (Hurd’s Stat. 1899, p. 1143.) The suit was originally begun before a justice of the peace in Winnebago…

<p>Special assessments — effect where engineer's estimate bears date of passage of ordinance. The fact that the estimate of the engineer, which accompanies the-recommendation of the board of improvements, bears the date upon which the ordinance was passed, does not, of itself, show that the estimate was not made ten days before the passage of the ordinance, in view of section 10 of the Improvement act of 1897, providing that the recommendation of the board shall be prima facie presumed to be based upon a full compliance with the requirements of the statute.</p>

<p>Appeal from tlie Appellate Court for the Fourth District; — heard in that court on appeal from the Circuit Court of Jackson county; the Hon. O. A. Harker, 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. Charles A. Bishop, Judge, presiding.</p>

<p>1.. Limitations — possession protected by the Limitation act is adverse possession. The possession contemplated by the Statute of Limitations and protected by it is adverse possession which must be hostile and under a claim of right, and not in recognition of the title of the real owner.</p> <p>2. Same — possession by grantee of mortgagor is subordinate to a mortgagee’s title. Possession by the grantee of a mortgagor is in subordination to the title of the mortgagee to the same extent as that of his grantor, and it cannot cease to be of that character until there is an open assertion of a distinct title with the knowledge of the mortgagee.</p> <p>3. Same — payment of taxes by mortgagor’s grantee establishes no right under Limitation act. It is the duty of a mortgagor in possession to pay the taxes, and neither he "nor his grantee can acquire any rights under the Statute of Limitations by discharging that duty.</p> <p>4. Mortgages — effect where mortgagor’s grantee is not a party to foreclosure. If a subsequent purchaser from a mortgagor is not made a party to the foreclosure his right to redeem will be unaffected by the decree, but the legal title to the premises is sold at the sale and passes by the master’s deed.</p>

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

<p>1. Affidavits — interested party may malee affidavit for introducing records of deeds in suit against conservator. Section 2 of the Evidence act, prohibiting parties from testifying in their behalf when any adverse party sues or defends as conservator, does not prevent such parties from making an affidavit, under section 36 of the Conveyance act, to lay the foundation for the introduction of records of conveyances, since such affidavit is allowed by the Conveyance act merely to dispense with the production of the original, instruments and to make the record competent evidence.</p> <p>2. Same — when affidavit for introducing records of deeds is defective. A single affidavit intended to lay the foundation for the introduction of the records of several deeds is defective which states that all of the original deeds have not been intentionally destroyed or disposed of for the purpose of introducing a copy, since such statement would not be untrue if some of the deeds had been so destroyed or disposed of.</p> <p>3. Conservators — a conservator not liable to suit respecting ward’s real estate. Where, as in Illinois, a conservator has merely the care and management of his insane ward’s real estate, without title thereto, an action affecting the title to such real estate should be brought against the ward, and the judgment must be against him, and not against the conservator.</p> <p>4. Same — form of judgment where defendant becomes insane during ejectment suit. If the defendant to ejectment becomes insane during the pendency of the suit, and the name of his conservator is added, with that of the defendant, in the title of the suit, a judgment on a verdict against the insane defendant should be against him alone, and it is improper to award judgment and writ of possession against both the insane defendant and his conservator, and to enter judgment for costs against the conservator alone, to be paid out of assets in his hands as conservator.</p>

<p>Appeal from the decision of the Board of Review of St. Clair county.</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. Abner Smith, Judge, presiding.

<p>1. Judicial notice — Supreme Court will take judicial notice of public act without supplemental plea. If a public act, relating to the subject matter of a suit, is passed while an appeal is pending, the Supreme Court will take judicial notice of such act without a formal supplemental plea.</p> <p>2. Actions and defenses — effect where statute giving special remedy is repealed. If a statute giving a special remedy is repealed without a saving clause as to pending suits, all suits must stop where the repeal finds them, and in case of appeals the appellate tribunal must dispose of the case under the law in force when their decision is made.</p> <p>3. Same —pending suits based upon a statute cannot proceed after its repeal. The repeal of a statute giving a special remedy obliterates it completely, and it must he considered as a law that never existed, except as to those suits which were commenced, prosecuted and concluded before the repeal.</p> <p>4. Practice — Supreme Court must reverse if statute giving right of action A court of last resort must reverse a judgment. which was correct when rendered, if it appears that, pending the appeal, a statute which was necessary to support the judgment has been withdrawn by absolute repeal without a saving clause as to pending suits.</p> <p>5. Disconnection op territory — legislature had power to repeal act for disconnecting territory, without a saving clause. The legislature had full power to repeal the act of 1879 for disconnecting territory from cities and villages, and to make the repealing act applicable to all pending proceedings instituted under the act of 1879. (People v. Binns, 192 Ill. 68, followed.)</p> <p>6. Same — awarding of mandamus to compel disconnection of territory does not fix rights of parties. The awarding of a writ of mandamus to compel a village to pass an ordinance to disconnect territory does not fix the right of the petitioner to have the writ enforced independently of the act of 1879; and the repeal of the act of 1879, pending an appeal from the judgment, takes away the right of the petitioner to have the writ enforced, and the respondents may raise the question of such repeal whenever an attempt is made to' enforce the writ.</p>

<p>Real property — purchaser, after tax foreclosure, takes title as it then stands. If land is sold under a valid decree foreclosing a lien for drainage taxes and assessments, a subsequent purchaser from the owners of an undivided interest in the land takes the title as it then stands, and cannot maintain a bill for partition regardless of the decree of foreclosure and sale, which is set up as a defense.</p>

<p>Debtor and creditor — creditor may overcome presumption that all items of indebtedness were included in general settlement. A creditor asserting that a particular item of indebtedness was not included in a general settlement between the parties may overcome the presumption that it was included by proving it was not due at the time of the settlement.</p>

<p>Writ op Error to the Circuit Court of Edwards county; the Hon. P. A. Pearce, Judge, presiding.</p>