Volume 195 — Illinois Reports

S. C. Stough, Judge, presiding. This is an action in case, commenced in the superior court of Cook county on August 20, 1898, by the appellee against the appellant railroad company and the Union Stock Yards and Transit Company to recover damages for a personal injury to the appellee. Both defendants filed pleas of the general issue.

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

<p>1. Evidence—when objection to evidence is too general. An objection to the introduction of the note in foreclosure proceedings “for the reason that it is incompetent, irrelevant and immaterial and does not tend to prove any issue in this cause, and according to the laws of the United States and the State of Illinois is not competent as evidence in any legal proceeding,” is too general to raise the point that the note was not stamped when it was assigned, as required by the act of Congress.</p> <p>2. Same—note is competent in evidence though not properly stamped. The provision of the act of Congress of June 13, 1898, that instruments not stamped as provided in the act shall not be admitted or used in evidence in any court, applies only to Federal courts and not to State courts, since Congress has no power to say what shall be competent or incompetent evidence in the State courts.</p>

<p>1. Practice—effect where the Appellate Court finds the ultimate facts. If the Appellate Court, in reversing a judgment at law without remanding, finds the ultimate facts controlling the issues and recites them in its judgment, such finding is conclusive upon the Supreme Court, and the action of the Appellate Court can only be reviewed to the extent of applying the law to the facts so found in order to determine whether the judgment is proper.</p> <p>2. Same—Appellate Court need find only the ultimate facts. Under section 87 of the Practice act the Appellate Court is not required to recite in its judgment the evidentiary facts which it considered in reaching its finding of the ultimate facts.</p> <p>3. Same—when Appellate Court's recital of facts is sufficient. A finding of facts by the Appellate Court in its judgment reversing a judgment in favor of the plaintiff in a personal injury case, is sufficient which states “that appellee was injured in the prosecution of the work upon which he was employed, by a danger of which he was aware, incident to the nature of his employment, and constituting an ordinary and obvious peril of such occupation, which he assumed in accepting the employment, and that such injury was not caused by any negligence of appellant.”</p>

In re appeal from order of Board of Review of Kane county. This case is presented to this court by the Auditor of Public Accounts, who certifies, in writing and under the seal of his office, that the statement'of facts, attached to his certificate, is a statement of facts, certified to bis office by the clerk of the board of review of Kane county, pursuant to the provisions of section 35 of “An act for the assessment of property and providing means therefor, and to repeal a…

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

<p>1. Instructions—instruction is not improper because it refers to the declaration for allegations of negligence. An instruction is not improper which authorizes a verdict for the plaintiff if they believe, from the evidence, that the defendant was guilty of negligence “as alleged in the declaration or some count thereof,” since such reference merely empowers the jury to determine whether the proof sustains the issues made by the pleadings.</p> <p>2. Same—it is sufficient if the burden of proof appears from the instructions, considered as a whole. Although the burden is upon the plaintiff, in an action for negligence; to prove the material allegations by a preponderance of the evidence, yet he is not required to so announce in his instructions, it being sufficient if the rule is clearly set forth in the instructions, considered as a whole.</p> <p>2. Same—effect where an instruction refers to amount sued for. An instruction for the plaintiff in an action at law is not erroneous because it refers to the amount sued for or limits the right of recovery to the amount claimed in the declaration, unless there is something in the instruction which tends to lead the jury to believe that they ought to allow the full amount so claimed.</p>

M. Kavanagh, Judge, presiding. Appellee sued appellant in the superior court of Cook couuty to recover damages for an injury to his person, alleged to have been caused through the negligence of the defendant city. The amended declaration, upon which the trial was had, consisted of two counts.

<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. Arthur H. Chetlain, Judge, presiding.</p>

C. G. Neely, Judge, presiding. This was a bill filed by appellees, as executors and trustees under the last will and testament of Jane A. Myrick, deceased, for the construction of the will and codicil, and for instructions as to the distribution of the balance of the estate in their hands.

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

<p>1. Loan associations—when loan is tainted, with usury. Where the only statutory provision respecting loans by a building and loan association, in force at the time a loan is made, requires that it shall be by competitive bidding, the making of the loan at an arbitrary premium renders the transaction usurious, if the total amount paid for using the money exceeds the legal interest.</p> <p>2. The questions involved in this case have been discussed and determined in Borrowers’ and, Investors’ Building Ass. v. Eklund, 190 Ill. 257, the decision of which case is controlling here.</p>

John Gibbons, Judge, presiding. This is an action in assumpsit, brought on May 27, 1896, by the appellee against the appellant bank. The declaration contains only the common counts for money loaned and advanced, money paid, laid out and expended, money had and received for the use, of plaintiff, money due for interest, and money due on account stated.

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

<p>Appeals and errors—record must show that validity of statute was questioned in trial'court. A case cannot be brought to the Supreme Court on appeal or by writ of error upon the ground that the validity of a statute is involved, unless the record shows that the question was in some way presented to the trial court for decision.</p>

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

<p>1. Special assessments—effect of unqualified dismissal of petition. An unqualified dismissal of an assessment proceeding at the instance of the petitioner, upon the hearing of the application to confirm the assessment, abrogates the entire proceeding under the ordinance, and the city cannot pass a new and different ordinance and have the assessment thereunder confirmed without taking the necessary preliminary steps required by statute, concerning the estimate of cost and public hearing.</p> <p>2. Same—preliminary action of board under sections 7 and 8 of Improvement act is jurisdictional. The preliminary action of the board of local improvements, under sections 7 and 8 of the Improvement act of 1897, fixing a time for a public hearing, accompanied by the required estimate of cost, is essential to the jurisdiction of the court to proceed to confirm the assessment.</p>

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

<p>1. Arbitration—recovery on award for payment of money may be had on common counts. If an award is merely for the payment of money, assumpsit will lie, and the count on an account stated is sufficient; nor, under our practice, does the fact the submission to arbitration was by deed, instead of by parol, change the rule.</p> <p>2. Same—effect where award provides for exchange of releases. The fact that an award for the payment of money contains a separate provision for an exchange of releases does not affect the right to sue thereon under the common counts.</p> <p>3. Same—general agent must have special authority to bind principal by arbitration. A general agent cannot bind his principal to a submission to arbitration in the absence of special authority.</p> <p>4. Same—agent submitting to arbitration without authority is personally bound. If one signs a submission to arbitration as agent without disclosing the name of his principal, the principal being unknown to the other party, such agent is personally bound by the submission.</p> <p>5. Same—award must stand unless impeached by the evidence. While it is the rule that parties to an arbitration are entitled to notice of the hearing and to be present at the same, yet it is not necessary that the award itself shall show such notice or presence, and the award must stand unless impeached by the evidence.</p>

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

<p>1. Appeals and errors—when instruction to find for the defendant is properly refused. An instruction to find a verdict for the defendant is properly refused if there is competent evidence in the record fairly tending to prove plaintiff’s case as made in his declaration.</p> <p>2. Same—when shooting is not “suicide,” within meaning of insurance policy. If at the time the insured shot himself he was insane and his reasoning faculties were so impaired that he was unable to understand the moral character, general nature, consequence and effect of the act, or if he was impelled thereto by an insane impulse which he did not have power to resist, then his act is not suicide, within the meaning of the terms of a policy providing that “this policy is void in case of death by suicide.”</p>

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

<p>1. Corporations—minority stockholder entitled to relief against misappropriation of corporate funds. .If members of one family holding the majority of the stock in a corporation vote away the corporate profits for salaries to themselves, a minority stockholder may come into equity for relief,</p> <p>2. Same—causes which will authorize a court of equity to decree dissolution. The causes which will authorize a court of equity to decree dissolution of a corporation under section 25 of the Chancery act, are the doing or committing of some act which subjects the corporation to a forfeiture of its charter.</p> <p>3. Same—provisions of Incorporation act are part of charter. If a corporation is organized under the general Incorporation act, provisions of the statute enter into and become a part of its charter.</p> <p>4. Same—corporations are not allowed to hold real estate for investment. Under section 5 of the general Incorporation act a corporation organized under the general law is forbidden to hold real estate except such as is necessary for corporate purposes.</p> <p>5. Same—when Supreme Court may entertain appeal from decree dismissing bill against corporation. If the allegations of a bill against a corporation are such that the result of the litigation may be a decree of dissolution, the Supreme Court will entertain an appeal from a decree dismissing the bill on demurrer.</p>

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

<p>1. Evidence—when objections are properly sustained to questions bn direct examination. In an action against a railroad company for personal injuries, where defendant’s witness has stated that she heard the whistle and went to her door and saw the train moving and the plaintiff lying beside the track, it is proper to sustain the plaintiff’s objections to the defendant’s questions whether it was an usual or unusual thing for a train to pass along the track, and whether she had seen an engine pass there before.</p> <p>2. Appeals and errors—when Supreme Cowt cannot consider the evidence. The Supreme Court cannot enter into a consideration of the evidence to determine what it proves or tends to prove, where the Appellate Court has affirmed the judgment in favor of the plaintiff, and where no instruction to find for the defendant was asked at the close of the plaintiff’s evidence or of all the evidence.</p> <p>3. Instruction—when an instruction as to ringing bell or sounding whistle is not misleading. An instruction requiring those in charge of an engine, on approaching a public crossing, “either to ring a bell or sound a whistle, sounding until said crossing was reached,” is not calculated to mislead the jury into believing that defendant’s duty would not be performed by ringing the bell continuously until the crossing was reached.</p> <p>4. Railroads—effect where a train is started upon private property. The fact that a train is started upon private property does not relieve those in charge from complying with the law and ordinances regulating the movement of trains within city limits as soon as the train passes beyond the limits of such private property.</p> <p>5. Same—what is required of one approaching a railroad track depends upon the circumstances of each case. Courts are not at liberty to say, in their instructions, that one approaching a railroad track must, as a matter of law, conduct himself in a particular manner and observe a certain line of conduct in order to avoid the imputation of contributory negligence.</p> <p>6. Evidiwoe—preponderance does not mean both more and better evidence. The plaintiff is required to make his case by a preponderance of the evidence, and this preponderance may arise from his having more or better evidence than the defendant, but he is not required to have both more and better evidence.</p> <p>7. Law and fact—what is reasonable care is a question of fact. It is for the jury to determine, as a question of fact, what the plaintiff was required to do, under the circumstances, in order to sustain the averment of his declaration that he was exercising due care, and what omissions, if any, constituted failure to use such care.</p>

<p>1. Jurisdiction—-when Supreme Court has jurisdiction of appeal. The Supreme Court has jurisdiction, on direct appeal, where the question for decision is whether the criminal court of Cook county has exclusive jurisdiction of appeals from judgments of justices of the peace in criminal or quasi criminal cases, since the decision of such question involves a construction of sections 26 and 29 of article 6 of the constitution.</p> <p>2. Same—criminal court has exclusive jurisdiction of appeals from justice courts in criminal and quasi criminal cases. Under section 26 of article 6 of the constitution, which creates the criminal court of Cook county, all appeals from judgments of justices of the peace in criminal and quasi criminal cases must go to the criminal court.</p> <p>3. Same—circuit court of Cook county does not have concurrent appellate jurisdiction with the criminal court. The fact that the original jurisdiction of the circuit and criminal courts of Cook county in criminal and quasi criminal cases is concurrent under section 29 of article 6 of the constitution, does not make their appellate jurisdiction in such cases concurrent, since appeals are only statutory.</p> <p>4. Constitutional law—special provision controls general provision. Where there is a general and a special provision of the constitution relating to a subject the special provision will control.</p> <p>5. Practice—question not passed upon by court of review has no controlling force. A question, though involved in the case, if not raised in the argument or passed upon by the court of review, has no controlling force when the same question is again directly raised in that court for decision.</p>

Axel Chytraus, Judge, presiding. This was an action on the case, brought by appellee against the appellant and the Chicago and Eastern Illinois Railroad Company, to recover damages for an injury which she received by being struck by a passenger train of the latter company, a lessee of appellant, while such train was running upon appellant’s road. The amended declaration contained five counts.

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.

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

<p>Appeal from the County Court of Kane county; the Hon. M. 0. Southworth, Judge, presiding.</p>

Orrin N. Carter, Judge, presiding. The present proceeding is an appeal from a judgment of sale, entered in the county court .against the property of appellants by reason of the alleged non-payment of a special assessment for improving Ridgeway avenue from Chicago avenue to Division street. The ordinance for the improvement was passed on June 12,1899. The petition for the improvement was filed by the city of Chicago in the county court on June 12, 1899.

<p>1. Special assessments—when objections come too late. Objections to a sewer assessment come too late on application for judgment of sale when they are based upon matters which arose before confirmation, and are not claimed to have affected the jurisdiction of the court to render judgment of confirmation.</p> <p>2. Same—what is not a subdivision of land for purpose of assessment. The fact that a sewer ordinance provides for putting in “house connection slants every twenty feet on each side of the sewer” does not amount to a subdivision of the abutting property into twenty-foot lots, where the assessment is made against the property according to its legal description. (People ex rel. v. Cook, 180 Ill. 341, distinguished.)</p> <p>3. Same—when provision for house connection slants does not vitiate ordinance. A provision in a sewer ordinance for “house connection slants,” which are merely protected openings in the sewer, “every twenty feet on each side of the sewer,” does not vitiate the ordinance, in the absence of any proof that such provision is unreasonable or oppressive. (Bickerdike v. City of Chicago, 185 Ill. 281, distinguished.)</p>

<p>1. Color op title—color of title, wider section 6 of Limitation act, must be 'a paper title. The color of title-required by section 6 of the Limitation act must be a paper title purporting, on its face, to convey title, and cannot exist, in whole or in part, in parol.</p> <p>2. Same—condemnation judgment not color of title. A condemnation judgment authorizing a railway company, upon payment of the damages awarded, “to enter upon” the land “and use the same as and for the uses and purposes of its railroad as provided by law,” is not, though followed by payment of damages and entry upon the land, color of title within section 6 of the Limitation act.</p> <p>3. What effect a condemnation judgment, followed by an order of possession made after payment of the compensation and damages awarded, would have as respects the color of title contemplated by section 6 of the Limitation act is not determined, the question not being involved in this case.</p>

<p>Parties—non resident alien may sue for damages under the mining statute. The fact that the mother of a miner, killed by reason of an alleged violation of the act relating to mines and miners, is a non-resident alien, does not disqualify her from maintaining an action against the mine owner under section 33 of that act.</p>

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Coles county; the Hon. Frank K. Dunn, Judge, presiding.

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

<p>1. Special assessments—ordinances for different sections of same improvement must be treated as one ordinance. If one continuous improvement, originated by the board, is divided into several sections of the same character, the improvement is a single improvement and the ordinance passed for each section must be treated as one ordinance; and hence, if the aggregate estimate of cost exceeds $100,000, the ordinances must be referred to a committee, and be published in full in the proceedings of the council for at least one week before any action thereon. (Laws of 1897, p. 105, sec. 11.)</p> <p>2. Same—absence of improper motives does not justify violation of section 11 of act of 1S97. On application to confirm an assessment, if it is objected that the improvement is a continuous, single improvement to cost over $100,000, and that the ordinances for each section should have been published under section 11 of the Improvement act, it is error for the court to call a member of the improvement board as a witness to show that the board had no improper motive in dividing the improvement into sections costing less than $100,000 each but aggregating more than that sum.</p> <p>3. Same—cost of levying assessment must be paid out of general fund. Section 94 of the Improvement act of 1897 provides that the cost of making and levying the assessment shall be paid by the city out of its general fund, and it is error to include such cost on confirmation, upon the mere statement of counsel that it would be deducted from the judgment.</p> <p>4. Evidence—when cross-examination of witnesses is unduly limited. If the city, in a confirmation proceeding, introduces witnesses who give opinions to show that the property was benefited to the amount of the assessment, and it is proven or admitted that such witnesses are employed by the city to examine property in special assessment cases and give their opinions, it is improper to refuse to allow cross-examination as to the amount which the witnesses received for their services, their interest in the suit and their means of knowledge and information.</p>

R. S. Tuthill, Judge, presiding. This is an appeal by John M. Mueller, Jr., from a judgment of the Appellate Court for the 'First District affirming a decree of the circuit court of Cook county dismissing his. cross-bill for want of equity and overruling exceptions filed by him to the master’s report.

Philip Stein, Judge, presiding. This is a bill, filed in the superior court of Cook county on June 1, 1899, by the appellant, Gideon C. Bach, against the appellees, the Hastings Express Company and city of Chicago, alleging, in substance, that a strip of land 25 feet wide lies north of certain property owned by appellant, Bach; that a viaduct had been erected upon said strip in pursuance of the contract hereinafter mentioned, but had been removed in the spring of 1898 by the…

<p>Appeal from the County Court of Whiteside county; the Hon. H. C. Ward, Judge, presiding.</p>

<p>Appeal from the Circuit Court of JoDaviess county; the Hon. James S. Baume, Judge, presiding.</p>

<p>1. Dower—a deed need not show affirmatively that dower is released. Under our statute it is not necessary that there should be any showing in the body of the deed or in the acknowledgment that dower is released or relinquished.</p> <p>2. Same—when dower is released by trust deed. If the widow joins with the heir and owner of the fee in executing a trust deed, such deed operates as a release of her dower although it does not state what interest either of the grantors had in the premises or that dower was released.</p>

Writ op 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. In March, 1888, the Chicago and South Side Rapid Transit Railroad Company was organized under the laws of Illinois for the purpose of constructing and operating an elevated railroad on the south side, in the city of Chicago.

Philip Stein, Judge, presiding. This is a bill, filed by the appellant on October 21, 1897, and amended on May 16, 1901, against the appellees, the city of Chicago and the South Park Commissioners, to remove certain alleged clouds upon the title to a strip of land thirty feet wide on the east side of Michigan avenue, running from the south line of Park row to the north line of Twelfth street, and to enjoin the city and park commissioners from asserting any right, title, or…

<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. Abner Smith, Judge, presiding.</p>

<p>Appeal from 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. Abner Smith, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding.</p> <p>In a proceeding for divorce, brought by the appellee against the appellant, a decree of divorce was granted her on the bill taken as confessed on June 9, 1899, the charges in the bill against the appellant being habitual drunkenness and extreme and repeated cruelty; and in the same decree appellee was awarded alimony. The portion of the decree, awarding alimony, was as follows, to-wit: “That complainant, Catherine Welty, shall have the sole care, custody and education of their children, Robert, Matthew and Leslie Welty; that the defendant, Robert A. Welty, shall pay to the said Catherine Welty §25.00 on the first day of each month for a period of eight months, commencing June 1, A. D. 1899, and continue until the sum of §200.00 is paid, said sum to be in lieu of and in full for alimony and in full of all other claims of any kind or nature,” etc.</p> <p>On June 13, 1900, the following' order was entered in said proceeding, to-wit: “Upon the return of the rule issued in this case to show cause why the defendant, Robert A. Welty, should not be attached for contempt of court for failure to pay arrears of alimony, heretofore due under the decree entered in this case, and the court, having jurisdiction in said cause and having heard and read the affidavits on behalf of the complainant, and of the defendant, * * * doth find that there is now due and unpaid from the defendant to the complainant the sum of §200.00 for arrears of alimony under and by virtue of the decree heretofore entered in this cause, which arrears have accrued since the first day of'June, 1899, no part of which has been paid. The court further finds, that no sufficient cause has been shown by the said defendant, Robert A. Welty, why the same should not be paid, or that he has been unable to pay the same. On the contrary, the court finds that said defendant is and has been earning §65.00 per month, and received the same, and that said defendant is able, and has projaerty wherewith to pay arrears of alimony due; that he willfully fails and refuses to obey the order and decree of this court in paying alimony, and the court doth find and adjudge the said Robert A. Welty to be guilty of contempt of this court, and doth order that said Robert A. Welty be committed to the common jail of Cook county, Illinois, there to remain charged with said contempt of this court, until he pays the said sum of §200.00 to the complainant, or pays the same into this court for the said complainant, Catherine Welty, or until released by due process of law, but not to exceed the period of six months, and that a mittimus for that purpose issue forthwith, directed to the sheriff of Cook county, Illinois.”</p> <p>An appeal was prosecuted from the order so entered on June 13, 1900, to the Appellate Court, where the order was affirmed; and the present appeal is prosecuted from such judgment of affirmance.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Edmund W. Burke, Judge, presiding.

<p>1. Cemeteries—a town may condemn land for addition to cemetery. In section 5 of the act concerning cemeteries, providing that “any city, village or township” may establish and maintain cemeteries, and may acquire lands therefor by condemnation or otherwise, the word “township” is used in the sense of the word “town,” and hence a town may condemn land for an addition to its cemetery.</p> <p>2. Sams—petition to condemn land need not aver that the petitioner is organised under township organization. A petition by a town to condemn land for an addition to its cemetery need not aver that the county has adopted township organization and that the petitioner was organized under that act, since the Supreme Court will take judicial notice of such facts.</p> <p>3. Same—when petition sufficiently shows that cemetery is for public use.</p> <p>A petition, filed in strict accordance with the statute, by a town for the purpose of condemning land for an addition to its cemetery, sufficiently shows that the cemetery is for the use of the public which avers that the petitioner has acquired and holds its cemetery for the use of its inhabitants, and that the additional ground is needed to provide suitable burying ground for families and individuals resident in the town.</p> <p>4. Eminent domain—when condemnation verdict will stand, on appeal. A condemnation verdict will not be set aside where the evidence is conflicting, even though it may be against the weight of evidence, unless it is apparent that the jury have been actuated by passion or prejudice.</p> <p>5. Same—what property would sell for under extraordinary circumstances is not the measure Of damages. In estimating damages in condemnation the jury should not consider the price for which the property would sell under extraordinary circumstances, but only its fair cash value if sold in the market, under ordinary circumstances, for cash, and not on time, and assuming that the owner is willing to sell and the purchaser willing to buy.</p> <p>6. Same—jury not bound to suppose that present use of property will be changed. While it is proper for witnesses, in making their estimate of damages in condemnation, to consider any use to which they believe, from the evidence, the property may be profitably appropriated, yet the jury are not bound to base their verdict upon the supposition that the property will be appropriated to a use other than that to which it is already devoted.</p> <p>7. Same—just compensation defined. Just compensation means the payment of such sum of money as will make the defendant whole, so that on receipt by him of the compensation and damages he will not be poorer because his property is taken or damaged.</p> <p>8. Verdict—affidavits as to statements of jurors not receivable to impeach verdict. Affidavits as to statements of jurors made after the trial will not be received to impeach the verdict.</p>

<p>Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. *</p>

<p>1.. Husband and wipe—under act of 1874 husband and wife may contract with each other. Under the statute of 1874 a husband and wife may contract with each other, except in so far as the statute provides otherwise.</p> <p>2. Same—effect of post-nuptial contract to release dower—election. If a post-nuptial contract gives the wife certain land in lieu of present and future dower, she may elect, under section 9 of the Dower act, upon the death of her husband, to accept the settlement or demand dower, but she cannot retain the land and have dower also, even though the land in which she seeks dower was all acquired after the post-nuptial contract was made.</p>

<p>1. Contracts—effect of single acceptance of two distinct propositions. Where two distinct propositions, one to buy and the other to sell specified real estate, are written on one side of a single sheet of paper and separately signed by the proposer, the writing by the person to whom the propositions are made, on the back of such sheet, of the words, “I hereby accept the within if title proves satisfactory,” is an acceptance of both propositions, all the words thereof applying to each proposition, and the transaction will constitute two separate and independent contracts.</p> <p>2. Same—offer to sell real estate with acceptance conditioned on title. A proposition to purchase certain lots at a price named, containing a stipulation for merchantable title abstract, etc., which is accepted by writing the words, “I hereby accept the within if title proves satisfactory,” makes a conditional contract only, and if such title as the vendor can give is refused by the proposed purchaser, the vendor may withdraw from the trade and terminate the contract.</p> <p>3. Same—when demand of deed will be construed in light of previous negotiations. A demand of deed in terms unconditional, made by the proposed purchaser of lots contracted to be sold on the condition that title should “prove satisfactory,” will not be construed as an unconditional offer to accept such title as the vendor could then give, where throughout long previous negotiations, oral and by letter, the purchaser had uniformly' rejected the title of the vendor, and demanded that it be perfected or that the vendor pay damages for breach of the contract.</p>

<p>Limitations—when a suit for damages from construction of addirailroad track is not barred. Where a railroad company, anthorized by ordinance to lay two tracks in a street, constructs one track which does little or no damage to abutting property, but sul,sefiuen'tly lays another track nearer the lot which damages it materially, the lot owner may maintain an action for damages from the construction and operation of the second track, notwithstanding the Statute of Limitations would bar an action as to damage from the first track.</p> <p>2. Damages—right of abutting owner to compensation for injury to property from operation of steam railroad. If the property of an abutting owner is damaged by the construction and operation of a steam railroad, his right to compensation under the constitution is not limited to cases of illegal trespass, but may extend to acts which are legal.</p> <p>3. Same—noise and dirt from passing trains as elements of damage. Noise, smoke and cinders resulting from the movement of trains, although necessary incidents to the proper operation of a steam railroad, are elements of damage which may be considered in an action for injury to abutting property, in so far as they tend to lessen its market value.</p> <p>4. Instructions—when objection that instructions are too general is obviated. An objection that the plaintiff’s instructions on the question of damages are too general is obviated where the defendant’s instructions expressly confine the jury to the damage complained of in the declaration.</p> <p>5. Same—error in instruction must be misleading to reverse. Error in an instruction is not ground for reversal if it is apparent, in view of the other instructions, that it could not have misled the jury.</p> <p>6. Evidence—general objection at trial does not permit of specific objection on appeal. Parties cannot be allowed to make a general objection to the admission of evidence at the trial and then insist upon a specific objection on appeal which was not urged at all at the trial and which might have been obviated by other proof.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. N. E. Worthington, 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. A. H. Chetlain, Judge, presiding.</p> <p>This is an appeal from a judgment of the Appellate Court for the First District reversing a decree of the superior court of Cook county.</p> <p>The same parties were before this court in Link Belt Machinery Co. v. Hughes, 174 Ill. 155, where a full statement of the case is given up to' the time of that appeal. It was there found that appellee was entitled-to the sum' of §3774.38 for rent due under his lease to the Standard Eggette Coal Company, to be paid by the receiver of said company. The receiver had but $2138 in his hands, which amount he paid the appellee, leaving a balance due of $1636.38. On showing made to the superior court that he had disposed of all of the property of the eggette company and distributed the funds in his hands according to the order of the court, the receiver was discharged. Appellee then filed his petition in the same suit, charging appellant with having fraudulently and collusively procured the appointment of said receiver of the eggette company for its own purposes and emolument and to hinder and delay other creditors, and charging that the appellant’s creditor’s bill was notjfiled for the purpose of collecting its judgment, but because the appellant, being then the owner of some $6000 or $7000 of the capital stock of the eggette company, desired to experiment with a patented process of manufacturing artificial coal, believing “there were millions in it,” and to that end invoked the aid of the superior court with the hope of conducting the speculation on appellee’s premises, and virtually at his expense, without risk to its own treasury. Other allegations of the petition are, that there was no necessity for a receivership in order to collect appellant’s judgment, as there was ample personal property of the eggette -company to satisfy appellant’s execution; that appellant’s treasurer was also treasurer of the eggette company and was fully acquainted with its assets; - that the issuing of the execution on appellant’s judgment against the eggette company, return of same unsatisfied, filing of creditor’s bill and appointment of receiver were all done on the same day and by attorneys having offices and rooms together, and all by the procurement of appellant, with the connivance and assent of the eggette company; that the filing by appellant of its creditor’s bill and the carrying on of the proceeding's in court were a mere sham and pretense, a cover for a speculation by appellant and an abuse of the process and machinery of a court of equity; that the receiver was appointed at the request of appellant and upon the faith of averments in its bill which were untrue; that appellant, by reason of the premises, became liable to appellee for the rental of the property occupied by the eggette company for the whole time the same was occupied by the receiver. Appellee asked for an order in the case directing appellant to pay him the balance due on his rent, with interest. Appellant in its answer denied all charges of fraud and collusion, of speculation and abuse of process, but admitted that its treasurer was also treasurer of the eggette company and knew of its assets. On a hearing appellee’s petition was dismissed for want of equity, from which decree appellee appealed to the Appellate Court for the First District, which court, upon a rehearing, reversed the decree and remanded the cause, with directions to the trial court to enter a decree for appellee for- §1636.38, with interest. From this judgment of the Appellate Court appellant has appealed to this court.</p> <p>The evidence shows that before the bill of appellant was filed the sheriff made no attempt to levy on any property of the defendant in the execution, but only made demand on its treasurer, who said that he had no assets to which he could readily turn to satisfy the judgment, and that the sheriff then immediately made his return of nulla bona; that the bill was filed to head off attachment proceedings that were threatened by other creditors; that appellee, in December previous to the filing of the creditor’s bill, had levied a distress warrant upon some of the machinery of the eggette company for back rent, and that some time thereafter the creditors of the egg'ette company made an arrangement by which they were paid the amount of their claims in stock of the company; that appellant had the largest claim, amounting to over $8000, and that stock was issued to its treasurer, as trustee, for such claim; that after the receiver was appointed appellant loaned him $1558.13 to carry on the business of the eggette company as such receiver, which amount has not been re-paid.</p> <p>In appellant’s creditor’s bill it was alleged that the eggette company had reached a point where it could successfully and profitably manufacture artificial coal; that if its plant could be continued in operation its assets would become of great value, and that they could only be preserved and made valuable by continuing the business by or under the order of court, through a receiver; that the best interests of appellant and the eggette company and its creditors required that the business should be promptly re-opened under the order of court and its good will and business preserved, and that the plant and machinery should be turned over to a receiver, for use in further conducting said business. On this bill the receiver was appointed, and it was ordered that he continue the business of manufacturing artificial coal as then carried on by the defendant eggette company; that he employ suitable persons to conduct such business; that he purchase necessary materials and supplies and pay for them out of the funds coming into his hands; that he pay rent and other charges to conserve and preserve the property of the eggette company pending further orders of the court.</p>

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

<p>1. Contracts—when agreement is not a contract until reduced to writing. If the parties make the reduction of an agreement to writing and the signing thereof by them a condition precedent to its completion, the agreement will not be a contract until such condition is performed.</p> <p>2. Same—conditional acceptance of bid for school house does not create an immediate indebtedness. The acceptance by a school board of a bid for a school house does not, of itself, create an immediate indebtedness, where it is shown that the bid was accepted upon the understanding that a contract “acceptable to the board” should be signed at a future date, and that the contract, which was subsequently signed, was broader in its scope than was contemplated by the terms of the bid.</p> <p>3. Taxes—when objection to tax for “building purposes” should be sustained. If it is conceded that a contract for school house is largely in excess of the five per cent of the taxable value of the property in the district, and that the purpose of a tax levy for “building purposes” was to pay the debt so incurred, an objection to such tax should be sustained on application for judgment of sale, whether the levy of the tax was made before or after the contract was executed by the parties.</p> <p>4. Same—tax to pay principal and interest on bonds is independent of taxes for “building” or “educational” purposes. The provision of section 12 of article 9 of the constitution, which requires municipal officers incurring any indebtedness to provide for a direct annual tax sufficient to pay the interest and principal in twenty years, is self-executing, and the tax so provided for does not fall within the items of expenses for “educational” or “building” purposes mentioned in section 202 of the School law, even though levied to pay interest and principal on school house bonds.</p> <p>5. Same—when tax for principal and interest on bonds is improperly disallowed. If a tax levied for interest and principal on bonds has been paid, and no objection to such tax was made on application for judgment of sale involving other taxes which were objected to, it is error for the court to disallow such tax.</p>

<p>"Witnesses—a personal privilege of a witness cannot be claimed by his principal. In an action against an insurance company to recover a penalty for violation of a statute, if the agent of the company is required, over the company’s objection, to give answers tending to criminate himself, which he does without claiming his privilege, the company is not entitled to assign error thereon on appeal.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Coles county; the Hon. Prank K. Dunn, Judge, presiding.

Farlin Q. Ball, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a decree of the superior court of Cook county, requiring appellants, as trustees under the will of James J. Gore, deceased, to pay appellee $4500 for a personal injury which she received while in the employ of a receiver of certain property of said Gore, which injury was caused by the negligence of said receiver.

<p>1. Bonds—if bond refers to contract, both instruments must be taken together. If a bond is attached to a contract and refers thereto to indicate the liability assumed, the contract becomes a part of the guaranty, and both instruments are to be taken together in order to ascertain the agreement of the parties.</p> <p>2. Same—surety not liable for previous defaults unless contract is retrospective in terms. A surety on a bond given to secure the faithful performance of a contract is not liable for defaults of his principal previous to the transaction wherein the bond and contract were executed, unless the contract is retrospective in terms.</p>

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

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

<p>1. Bonds—at common law want of consideration could not be pleaded in suit on bond. At common law want of consideration could not be pleaded in bar of an action on a bond, the rule being, that the seal imported a consideration for the execution of the instrument, and the presumption in favor of consideration was held conclusive.</p> <p>2. Same—statute does not authorize defense of want of consideration except as to negotiable bonds. Section 9 of the act on negotiable instruments, providing that want of consideration may be set up in defense to a suit on a “note, bond, bill or other instrument in writing for the payment of money or property or for the performance of covenants and conditions,” applies to negotiable bonds conditioned for the payment of money to the obligee absolutely, but not to a non-negotiable bond in which the obligation to pay is conditioned upon the performance of something by the obligee.</p> <p>3. Practice—right of Supreme Court to reverse although Appellate Court recites facts. If the Appellate Court reverses a judgment for the plaintiff in a suit at law without remanding and makes a recital of facts in its judgment, the facts so found must be accepted by the Supreme Court as true; but the Appellate Court’s judgment may be reversed, if, upon a correct application of the rules of law, the facts so found do not preclude the plaintiff’s right of recovery.</p>

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

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

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

<p>1. Trial—propositions of law should be submitted before judgment. Under section 41 of the Practice act, permitting parties to submit propositions of law where issues both of law and fact are tried by the court, such propositions of law must be submitted to the court upon the trial and before final judgment is rendered.</p> <p>2. Same—duty of court to receive and rule upon propositions of law. If counsel submit propositions of law after argument and after the court has made some preliminary remarks but before any intimation has been made as to what the decision will be, it is the duty of the court to receive and rule upon them, even though there is • a rule of court requiring them to be submitted before argument, if it is explained by counsel that he has misapprehended the rule.</p>

<p>1. Criminal law—acquittal by tribunal wanting in jurisdiction does not raise defense of former jeopardy. The acquittal of a person accused of crime, by a tribunal which is wanting in jurisdiction and authority to adjudicate and render final judgment in the premises, does not bar further prosecution of the accused, nor does jeopardy attach at any stage in such a proceeding.</p> <p>2. Same—a jury is an essential part of the tribunal which may try cases bi-ought by indictment. In all criminal cases which can only be prosecuted upon indictment, a jury is an essential part of the tribunal which may lawfully try the case and render judgment.</p> <p>3. Same—prosecution must be by indictment if crime may be punished by penitentiary sentence. No person can be held in this State to answer for a criminal offense which may be punished by imprisonment in the penitentiary except upon indictment by a grand jury.</p> <p>4. Same—limit of right to waive jury in misdemeanor. The misdemeanors in which a trial by jurj' may be waived are such, only, as may be prosecuted otherwise than by indictment, and not an offense which may be punished by fine and imprisonment in penitentiary.</p> <p>5. Same—ivhen a party has not been in former jeopardy. The fact that one indicted for an offense which may be punished by fine and imprisonment in the penitentiarjf waives a trial by jury, and that the trial proceeds before the judge until the time for the People to introduce rebuttal evidence, when it is continued without the consent of the accused, does not bar the further prosecution of the case at a subsequent term before a jury, since former jeopardy cannot be predicated upon the attempted trial without a jury.</p> <p>6. The court reviews the evidence in this case at length, and sustains the conviction of the plaintiff in error of the crime of receiving a deposit at a time when he knew that the bank of which he was president was insolvent.</p>

<p>1. Trial—when inquiry by court must be presumed to relate to time of bringing suit. If, on the trial of an action in ejectment brought under section 7 of the Ejectment act, concerning vacant property, the court inquires, “Is the lot involved in this cause vacant?” to which answer is made that it is “admitted by counsel for both parties to be vacant,” it must be presumed that both the court and counsel understood the inquiry to relate to the time of bringing suit, and not the time of trial.</p> <p>2. Ejectment—what not an mailable defense to ejectment. In ejectment against one holding tax deeds on vacant property, the defendant cannot set up an outstanding right to the possession of the lot in a receiver appointed in a proceeding to foreclose a mortgage executed by the plaintiff's grantor, without in any way connecting himself with the mortgage or receivership.</p> <p>3. Same—re-imbursement under tax deeds not necessary to right to judgment in ejectment. In an action of ejectment against the holder of tax deeds on vacant property, it is not necessary that the judgment in favor of the plaintiff be conditioned upon the re-payment of taxes to the holder of such deeds. (Riverside Oo. v. Townshend, 120 Ill. 9, followed.)</p>

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

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

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

R. W. Hilscher, Judge, presiding. This was an action of assumpsit brought by appellant against appellee in the circuit court of LaSalle county.

<p>Original petition for habeas corpus.</p>

Frank D. Ramsay, Judge, presiding. This is a bill of interpleader, filed on May 12, 1900, in the circuit court of Mercer county by the highway commissioners of Mercer township in that county, alleging that a road had been laid out along the north side of the land of one William K. Fulton, described as the west half of section 8 in township 14 north, range 4 west, in said county; that the damages had been assessed by a jury at §1042.50; that on December 31,1898, said land was…

Writ of Error to the Superior Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding.

<p>1. Evidence—section 13 of Evidence act applies to foreign as well as domestic judgments. Section 13 of the Evidence act, providing that records of courts may be proved by a copy thereof, certified under the hand of the clerk of the court having the custody thereof, and the seal of the court, applies to foreign judgments as well as domestic, notwithstanding the act of Congress which provides a method of authenticating the judgments of sister States.</p> <p>2. Disbarment—when judgment of disbarment is not res judicata. A judgment of disbarment by a court in a foreign State is not res judicata in a proceeding for disbarment in Illinois based on such judgment, to the extent that it cannot be proved by the respondent that such judgment was re-opened by the court in the foreign State and vacated after a hearing of the charges.'</p> <p>3. Same—when relators are not entitled to notice of proceeding to re-open judgment. Parties upon whose relation a disbarment proceeding is instituted in Illinois, based upon a foreign judgment of disbarment, are not entitled to notice of a proceeding to have the foreign judgment re-opened and the issues re-heard where they are not parties to such judgment.</p> <p>4. Same—when record of judgment is admissible though judgment is not pleaded. Where the only evidence to establish the truth of a disbarment proceeding in Illinois consists of a judgment of a court in a foreign State, the respondent may give in evidence a certified copy of the record of the proceedings in such foreign court opening such judgment and setting it aside and restoring the respondent to good standing, though the latter judgment was not pleaded.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Charles G. Neely, Judge, presiding.</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. Charles G-. Neely, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Éock Island county; the Hon. W. H. Gest, Judge, presiding.</p>