Volume 196 — Illinois Reports

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

E. F. Dunne, Judge, presiding. This is a creditors’ bill, filed on February 11,1892, setting up the recovery in the circuit court of Cook county of a judgment on October 2,1891, for $2254.90 by the appellees, Edward H. Vanlngen and David T. Leahy, as partners under the firm name of Vanlngen & Co. in the city and State of New York against the appellant, Columbus B. Hauk, impleaded with Robley D. Bruce and Henry D. Hauk, the issuance of execution on said judgment, and the…

<p>Writ op Error to the Circuit Court of Stark county; the Hon. L. D. Puterbaugh, Judge, presiding.</p>

<p>1. Municipal corporations—a city is hit the representative of the State in discharge of certain duties. Although a city is regarded as a corporation created for its own benefit, still, in the exercise of many of its powers, it is but the representative of the State.</p> <p>2. Mobs and riots—the duty of city to suppress riots is of a public character. The duty imposed upon cities to suppress and prevent riots, mobs and disorderly assemblages is public or governmental in character, and in the discharge thereof a city acts as a public agency of the State.</p> <p>3. Same—a city has no power to call out militia to suppress riots and mobs. The legislature has conferred upon cities various powers to aid in discharging the duty of maintaining public tranquility and suppressing disorder, which are sufficient under ordinary circumstances, but the power to call out the military forces of the State is not conferred upon them.</p> <p>4. Same—primary duty of suppressing riots and mobs rests upon the State. Primarily, the duty of protecting the lives and property of citizens from unlawful violence of mobs and rioters vested in the State, and this duty has not been divested nor in any degree impaired by the delegation of the various powers to municipalities.</p> <p>5. Same—city not liable for expense of militia called in to suppress riot. When a riot assumes such proportions that it becomes necessary to have the Governor call out the militia the general State government is the actor, and the burden of expense which its acts incur is not to be borne by the city.</p> <p>6. Same—duty of State to suppress riot does not depend upon notification by mayor. The duty of the State to interfere to suppress mobs and riots does not necessarily depend upon the decision of the mayor of the city or notification by him that a state of lawlessness exists which is beyond the power of the civil authorities to control.</p> <p>7. Same—a city is not liable for rent of camp ground nor for damage thereto by militia. Where the State sends the militia to a city to aid in suppressing a riot, the city is not liable for the rent of the property taken as a camp ground, nor for the damage done thereto, even though the property was occupied at the mayor’s direction.</p>

<p>Appeal from the Circuit Court of White county; the Hon. P. A. Pearce, Judge, presiding.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. Charles G. Neely, Judge, presiding. This was a bill for partition in the circuit court of Cook county, filed by plaintiff in error Mary C. Chilvers, widow of Robert Chilvers, deceased, alleging that she is the owner of the undivided half of the real estate described in the bill.

<p>Writ of Error to the Circuit Court of McHenry county; the Hon. C. H. Donnelly, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon, Colostin D. Myers, Judge, presiding.</p>

Writ op Error to the Appellate Court for the First District;—heard iu that court on appeal from the Superior Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding. The Chicago Title and Trust Company filed in the superior court of Cook county its bill to foreclose a trust deed to Theodore H. Schintz, trustee, dated November 1, 1893, executed by Johann Gebhardt Gmeiner and wife.

E. W. Hilscher, Judge, presiding. This is a petition, filed on May 16, 1901, in the circuit court of Iroquois county by appellee to contest the election of appellant to the office of president of the board of trustees of the village of Martinton. At the June term, 1901, a hearing was had upon the issues made by the petition, answer and replication. The original ballots, poll-books and tally-sheets were produced, and the ballots were re-counted by the court.

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

<p>Appeal from the Circuit Court of White county; the Hon. P. A. Pearce, Judge, presiding.</p> <p>This was a bill in chancery, filed by'the appellee in the circuit court of White county, to set aside a certain division and transfers of the property of Joseph Spencer, deceased, made about two months before his death, on the grounds of his alleged mental incapacity, and undue influence by some of the beneficiaries.</p> <p>Joseph Spencer died intestate about October 14,1900, at about the age of eighty-four years. He had been afflicted, as alleged in the bill, both bodily and mentally, for the six months preceding his death. He left him surviving his widow, Nancy Spencer, and eight children, viz., Edward, Prank V., George W. and Joseph J. Spencer, his sons, and Mary A. Hanks, Sarah Hodgson, Martha Hill and Alma Goodman, his daughters, aud two grandchildren, descendants of two pre-deceased children, viz., Chauncey Spencer and the complainant, Rosa B. Spruell. The widow, children and grandchildren were all made parties to the bill. Several years before the division in question Joseph Spencer had made advancements to all of his children above named, and to his grand-son, Chauncey Spencer, but none to his grand-daughter, Rosa B. Spruell, the complainant. On August 8, 1900, a justice of the peace was called to the house of Joseph Spencer, and together with seven of the children, Martha Hill not being present, they proceeded to divide up about $14,000 worth of notes and mortgages belonging to Joseph Spencer, among those present. Seven deeds of assignment were prepared by the justice of the peace and presented to Mr. Spencer for his signature that evening, but on account of his inability to get up at that time the signing was delayed till the next morning, at his request. They were not read to him, nor was he told what particular note and mortgag'e had been assigned to any particular child. He was told that the seven had got about $2000 apiece, and to this division he expressed assent. In this division no notice was taken of Martha Hill, Chauncey Spencer nor Rosa B. Spruell. It was subsequently discovered that all the property had not been divided and that the division was not properly made, and so a banker was called in about a week later to make another division. At this time Martha Hill appeared and was present and insisted on getting her share of the property. The figuring and dividing was done in a room adjoining the one in which Mr. Spencer was, because he said that it worried him to have it done in his presence. In this division the prior advancements and interest items were considered, but no account was taken of any claims of the grandchildren, and it does not appear that they had any notice of the proposed division. Ample provision had been made for and to the satisfaction of Nancy Spencer, the wife of Joseph Spencer. The circuit court found that, including advancements, the eight children had received amounts varying from §8261.83 to $9169.40; that Chauncey Spencer had received $6250 and Eosa B. Spruell nothing.</p> <p>About the time of this division, August 13, 1900, three of the sons, Edward, Prank and George, received, as they testified, $4000 from their father to invest in a farm for Eosa B. Spruell, and with this money they bought from Adam Johnson the east half of the south-east quarter of section 33, township 2, south, range 9, east, and the north half of the north-east quarter of section 4, and the north half of the south-west quarter of the north-east quarter of section 4, township 3, south, range 9, east of the third principal meridian, lying in Wayne county, Illinois, containing about one hundred and eighty acres, and took a statutory warranty deed therefor from Johnson to “Eosa B. Spruell and the heirs of her body,”, which deed contained the following- clauses, after the description of the property: “If, however, any of the heirs of the body of the said Eosa B. Spruell shall die without issue, then and in that case the title to his portion of said land shall vest in his surviving brothers and sisters, and in case all of the heirs of the body of the said Eosa B. Spruell shall die without issue, then and in that case the title to said land shall vest in the heirs of Joseph Spencer, grandfather of said Eosa B. Spruell. The purchase money of the above described land is paid by Joseph Spencer, and this conveyance shall be considered, and is, in full of the grantee’s portion of the estate of Joseph Spencer.” They had the deed recorded, but complainant below refused to accept it, saying that the land was not worth what was paid for it.</p> <p>It appears from the evidence that Joseph Spencer had had a paralytic stroke on April 7, 1900, from which time his health and mental capacity were impaired. He could not talk well after that, but gradually recovered somewhat, and could transact ordinary business with assistance. About August 2,—shortly before making the division,—he had a second stroke, which confined him to his bed permanent!;''. The testimony as to his mental capacity for the whole of this time and up to his death was very conflicting.</p> <p>The court submitted to a jury the two issues of fact whether Joseph Spencer was of sufficient mental capacity to make a division of his property at the time it was done, and whether any undue influence was used upon him by any of the beneficiaries against the interests of the complainant. The jury found the, first issue in the negative and the second in the affirmative, thus finding not only that he was mentally incompetent, but also that he was unduly influenced. The three sons who purchased the Wayne county land for Mrs. Spruell then (after motion for a new trial was overruled) filed their stipulation, whereby they agreed to take that land and pay the $4000 into the estate for distribution as the court should direct, provided the court could and would vest them with a clear title to the land, free from any claims or interests of Rosa B. Spruell, her husband, the heirs of her body, or the grantor, Adam Johnson. Such stipulation was not to be binding in case of a reversal of the decree. Appellee thereupon amended her bill accordingly, and made her husband, and Adam Johnson, the grantor, parties. The new parties came in and issues were made on the amended bill.</p> <p>In the final decree the court found that, including the $4000 paid for the Wayne county land and the advancements and distributions, but excluding the amount received by the widow, the value of the estate was $78,-205.11, and that the appellee, Rosa B. Spruell, was entitled to receive one-tenth of that amount, or $7820.51, and that Chauncey Spencer was entitled to $1570.51 in addition to what he had already received. The court then decreed that each of the heirs who had received more than the one-tenth of said total amount should pay the overplus into court, and the clerk was ordered to pay the two grandchildren out of such money the amounts found due them, the widow having elected to accept the amount received by her in full of her dower, widow’s award and share in the estate. It was further ordered that Edward, Frank and George Spencer pay into court the sum of $4000, and that the title in fee simple absolute to the Wayne county lands vest in them, and that all interests of the grantor and of the appellee and her husband be vested in them, and that a copy of the decree be filed in the proper recorder’s office and operate as a deed of conveyance. From this decree the four sons and Alma Goodman and Mary A. Hanks have appealed to this court.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William Hartzell, Judge, presiding.</p>

<p>1. Evidence—when statements are not inadmissible as tending to contradict written assignment. In an action by a principal to recover from the estate of her agent the value of shares of stock appropriated by him, the fact that the certificates bear assignments to the agent, duly signed by the principal, does not preclude evidence of admissions made by him tending to prove that the stock was the principal’s property which he had appropriated to his own use without her consent, where there is no evidence that he paid anything for the stock or that it was a gift to him.</p> <p>2. Same—what proper evidence on question of value of shares of stock. In an action by a principal to recover the value of shares of stock appropriated by her agent, if the stock has no ascertainable market value it is proper to admit evidence as to the value of the property of the corporation above its indebtedness, as tending to fix the value of the stock.</p>

<p>Writ op Error to 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 County Court of Cook county.; the Hon. William T. Hodson, Judge, presiding.</p>

<p>Wills—temporary coma not inconsistent with testamentai-y capacity at other times. That the testator was at times during his last illness in a comatose condition is not inconsistent with possession of testamentary capacity by him at other times than such intervals.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. Been B. Gower, 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>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Bureau county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Appeals and errors—clerk has no power to approve bond unless by order of court. Under section 69 of the Practice act the clerk of the court may, “by order of the court made at the time of praying the appeal and entered of record,” approve the security on the appeal bond, but he is powerless to do so where the order granting the appeal confers no authority for such purpose.</p> <p>2. Same—when a defective appeal cannot be cured by filing new bond. If the only appeal bond filed within the time allowed is approved by the clerk without authority, the appeal is not perfected in time, and the defect cannot be cured by filing a new bond.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the County Court of Mercer county; the Hon. Lucian Adams, Judge, presiding.</p>

<p>1. Burglary—when burglar’s tools may be put in evidence on trial for burglary. Burglar’s tools found upon the person of the accused when arrested may be put in evidence upon his trial for burglary, even though the carrying of burglar’s tools constitutes a separate crime, where the property stolen at the time of the burglary is found in the possession of the accused, who claims that he acquired the same by purchase.</p> <p>2. Criminal law—the Habitual Criminal law has not been repealed. The Habitual Criminal act of 1883 has not been repealed. (Featherstone v. People, 194 Ill. 325, followed.)</p> <p>3. Same—when conviction under the Habitual Criminal act is proper. A conviction under the Habitual Criminal act is justified, even though the accused testifies that he was pardoned, where he admits three convictions, two of them the same as charged in the indictment, and only claims to have been pardoned on the third.</p> <p>4. Same—when instruction on possession of stolen property is not erroneous. An instruction is not erroneous which holds that the possession of stolen property, the proceeds of a burglary, larceny or robbery, soon after the commission of the offense, is prima facie evidence of the guilt of the person in whose possession it is found, and is sufficient to warrant a conviction unless such possession is satisfactorily explained, or unless there appears, from all the evidence, a reasonable doubt of the defendant’s guilt.</p>

Samuel L. Dwight, Judge, presiding. Rufus N. Ramsay died on November 11,1894, residing in Clinton county, this State. His son, E. P. Ramsay, was appointed administrator by the county court of that county on the 17th oí said month. A large number of claims were presented and allowed against the estate, aggregating $183,854.70. Among those claims was one in favor of Julia D. Ramsay, the widow of Rufus N., for $18,931.72, and another in favor pf G. VanHoorebeke for $2020.42.

<p>1. Appeals and errors—one cannot complain of error not affecting his interests. Where mortgagors have parted with their whole title to their grantee, they cannot, in case of foreclosure, urge as error provisions of the decree affecting the disposition of the title between their grantee and a subsequent purchaser from him.</p> <p>2. Mortgages—when accrued rent should not be applied upon a deficiency decree. A grantee of the mortgagors who assumes the encumbrance becomes the principal debtor and the mortgagors stand in the position of sureties for him, but they are not entitled to have rents which accrued prior to the filing of the foreclosure bill, and which were not subject to the lien of the mortgage, applied upon the deficiency decree, where there is nothing to show that their grantee is not able to discharge the obligation which he assumed.</p>

<p>Writ op Error to the County Court of Coles county; the Hon. John P. Harrah, Judge, presiding.</p>

Frank Baker, Judge, presiding. This is a bill, filed on February 1, 1901, by appellee against appellant for the purpose of removing a tax deed, as a cloud upon title, and declaring the same to be void.

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

<p>1. Laches—there can he no laches where there is no knowledge. Delay-will not bar relief in equity against fraud, where the injured party has been ignorant of the fraud practiced upon him until shortly before commencing his proceeding.</p> <p>2. Same—when laches in discovering fraud will not he imputed. Where the seller takes a purchase money mortgage, which he agrees to withhold from record until the purchaser has secured a building loan, with the understanding that the purchase mortgage should be the second lien, if the seller, upon discovering that the purchaser has placed a second lien upon the property appearing of record to be valid, inquires of the mortgagor and mortgagee if the same is hona fide and is assured by them that it is, he is not bound to make further inquiry to avoid the imputation of laches in discovering the mortgage was fraudulent.</p> <p>3. Equity—when party is entitled to have conveyances set aside. If the holder of a purchase money mortgage, -which was to be recorded as a second lien after the purchaser had secured a building loan, learns that the purchaser has placed a second mortgage upon the property which he is assured by the parties is valid, he may purchase the mortgage for his protection, and if he discovers that such mortgage was fraudulent and without consideration, may, after the mortgaged property has been swept away by foreclosure of the building loan lien, (the mortgagor being insolvent,) come into equity to set aside his conveyance of certain property made in payment for the second mortgage, and to cancel a deed to the same from his grantee to a third party without consideration; nor is his right barred because he destroyed the worthless mortgage and note after purchasing them and before discovering the fraud.</p>

<p>1. Robbery—conviction may be sustained though proof of character and denominations of money are not strict. The gist of the crime of robbery is the force or intimidation and the felonious taking from the person of another money or other thing of value against his will, and hence a conviction will not be reversed although the proof of the character and denominations of the money taken might not be sufficient to sustain a conviction for larceny.</p> <p>2. Same—when conviction will not be reversed as against the weight of evidence. A conviction of the crime of robbery, based upon the identification of the accused as complete and unequivocal as one witness could make it, will not necessarily be reversed because three witnesses testified to facts tending to establish an alibi.</p> <p>3. Same—when conviction will not be reversed for improper conduct of prosecuting attorney. If the evidence, under proper instructions, is sufficient to sustain a conviction of the crime of robbery, the persistent attempts of the assistant State’s attorney, in cross-examining the accused to show, notwithstanding the adverse rulings of the court, that the accused was living in an open state of adultery with the woman with whom he boarded, is not ground for reversal, where the rulings of the court were correct.</p>

<p>Appeal from the County Court of Cook county; the Hon. George K. Ingham, Judge, presiding.</p>

<p>1. Trial—duty of court to instruct jury where the facts are admitted. In an action by a theatrical performer against the manager of the company for terminating the contract of employment, if the facts are admitted it is the duty of the court to instruct the jury whether or not such facts, in law, amount to a legal justification of the plaintiffs discharge.</p> <p>2. Contracts—contract to render “satisfactory services” means satisfactory to the employer. If a theatrical performer contracts with the manager of a company to render “satisfactory services,” the manager, if dissatisfied, may discharge the performer for any reason which he may deem sufficient, where there is no provision in the contract in any manner limiting the manager in the exercise of his judgment as to what shall be deemed “satisfactory services.”</p>

<p>1. Highways—what essential to establish a way by prescription. In order to establish a way by prescription the use of the way must have been adverse, exclusive, continuous and uninterrupted for a period of twenty years, and with the knowledge of the owner of the land over which the way is claimed.</p> <p>2. Same—way by prescription must be shown to have been used under claim of right. To create the presumption of a grant of a right of way, the circumstances attending its use must be such as to make it appear that it was established for the benefit of the claimant, or that it was accompanied by a claim of right, or by such acts as manifested an intention to enjoy it without regard to the wishes of the owner, and that it has not been regarded by the parties merely as a license, revocable at the pleasure of the owner.</p> <p>3. Same—owner may testify as to what his intention was. While the acquiescence of the owner of the fee may be shown by his acts, yet he may testify as to what his intention was, and such testimony is to be considered in connection with all the other facts and circumstances of the case.</p>

Frank Baker, Judge, presiding. This is a bill, filed on May 10, 1901, in the circuit court of Cook county by the appellants, Ferdinand Engelthaler and his wife, for the purpose of construing the will of one Joseph Engelthaler, deceased, father of Perdinand Engelthaler, against the appellees, who were the heirs-at-law of the deceased testator, and others. The will was dated June 1, 1896. Joseph Engelthaler died on September 30, 1900.

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. R. S. Tuthill, Judge, presiding. The Smith & Jones Company, a corporation of Illinois, was formed in 1893 for the purpose of manufacturing boots and shoes, with a capital stock of $125,000, $60,000 of which was subscribed by J. C. Smith, $2500 by David Tilt and $62,500 by Arthur G. Jones.

<p>1. Appeals and errors—when freehold is involved in attachment suit. If the property attached in aid of an action of debt is real estate, and a third person intervenes and denies the title of the defendant and claims the land adversely, the title to the land is directly put in issue and a freehold is involved in the decision.</p> <p>2. Husband and wipe—df property belongs to wife the increase of the investment is hers. While a wife cannot hold property of her husband to hinder his creditors, yet if the property belongs to the wife it cannot be taken for the debts of the husband, and all the increase and legitimate outgrowth of the investment are as absolutely hers as the original capital.</p> <p>3. Same—producís of wife’s farm not liable for husband’s debts because he worlcs on farm. If husband and wife live together on the wife’s farm and he contributes personal labor only, such as is consistent with the common interest and the proper enjoyment of the property, the products will not belong to him nor be liable for his debts.</p> <p>4. Same—/act that husband works on wife’s farm does not enable his creditors to seize it. If the wife purchases property with money obtained from another source than her husband she will be protected in its possession and ownership, and the fact the husband lives in the family and does work on the place does not enable his creditors to seize the farm for his debts.</p>

<p>1. Attorneys at law—contempt proceedings and disbarment'proceedings are distinct. Contempt proceedings and disbarment proceedings are distinct and should not be combined.</p> <p>2. Same—suspension of attorney for contempt is not conclusive in subsequent proceeding for disbarment. A judgment of the circuit court finding an attorney guilty of contempt of court and suspending him from practice for six months is not conclusive upon the attorney in a subsequent proceeding in the Supreme Court for his disbarment for the same reasons for which he" was adjudged in contempt.</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. Philip Stein, Judge, presiding.

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

<p>1. Evidence—when authority of agent to execute instrument for corporation need not be proved. A corporation necessarily acts by its agents, and if the execution of an instrument for a corporation is not denied by verified plea, then the authority of the agent need not be proved.</p> <p>2. Same—;failure of city to deny execution of lease by verified plea is an admission of execution. Failure of a city to deny the execution of a lease by verified plea is an admission that it was executed by the city, and that the mayor, acting for the city, had authority to execute it, and in such case the lease is admissible in evidence without proof of its execution or the authority of the mayor.</p> <p>3. Same—section 33 of Practice act applies to municipal corporations. Section 33 of the Practice act, (Rev. Stat. 1874, p. 779,) which provides that no “person” shall be permitted to deny the execution of a written instrument except by verified pleas, establishes a rule of evidence embracing in its terms all persons, natural or artificial, and includes municipal corporations.</p> <p>4. Same—when lease is admissible against city without proof of regularity of steps taken by city authorities. If the lease sued upon is one which the defendant city had general power to make, the lease is admissible without preliminary proof that the authorities have taken the requisite steps to authorize the lease in the particular case, since, if they have not, the city must plead and prove such facts as render the particular lease illegal, if it desires to avoid the obligation. (Dement v. Rokker, 126 Ill. 174, distinguished.)</p> <p>5. Same—what need not be proved in every suit against city. A plaintiff is not required, in every suit against a city, to show that the city was not indebted beyond the constitutional limit, or that the expense involved in the contract sued upon did not exceed the appropriations.</p> <p>6. Same—when proposed method of proving ownership is improper. In an action against a city on a lease, the defendant has a right to prove that the plaintiff has conveyed his interest, or that it has been sold on execution, or that the estate was a limited one which had expired during the term; but it is not entitled to do so by naming over certain persons to a witness, on cross-examination, and asking him if such persons did not own a part of the premises.</p>

<p>Writ op Error to the Superior Court of Cook county; the Hon. Philip Stein, 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. R. W. Clifford, Judge, presiding.</p>

<p>1. Evidence—receipts may be explained by oral testimony. A party to whom receipts for rent have been given, may explain, by oral testimony, why the receipts ran in the name of another person than himself.</p> <p>2. Trial—court may refuse peremptory instruction asked after series has been given. The court may refuse a peremptory instruction to find for the plaintiff, asked after the issues have been submitted to the jury upon instructions given at the request of each party.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles G. Neely, Judge, presiding.</p>

<p>1. Default—when refusal to set aside default will he upheld. A judgment refusing to set aside default will not be reversed, on appeal, unless it appears there has been an abuse of discretion by the trial court, the rule being that both diligence and merit must be shown, and if defendant has not used due diligence to protect his rights it is not an abuse of discretion to refuse to vacate the default.</p> <p>2. Practice—counter-affidavits may he filed on a motion to set aside default. While counter-affidavits will not ordinarily be heard upon motion for a new trial or for a continuance, yet they may be filed and considered upon a motion to set aside a default and vacate the judgment; and if the affidavits and counter-affidavits flatly contradict each other, the action of the court in giving credence to one rather than the other cannot be assigned as error.</p> <p>3. Same—how to proceed where court overrules motion for leave to file hill of exceptions. If, after refusal of the court to set aside a judgment by default, the defendant prays an appeal and moves for leave to file a bill of exceptions, which prayer and motion are denied, the defendant should except to the action of the court and preserve such exception by a bill of exceptions, and if the judge refuses to sign and seal a bill of exceptions incorporating such ruling when properly presented, the remedy of the defendant is by mandamus and not by appeal or writ of error.</p>

S. C. Stough, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment of the superior court of Cook county for $2500, rendered in favor of the appellee and against the appellant in an action on the case prosecuted to recover damages on account of the death of Lawrence Collins, deceased.

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

<p>1. Evidence—admissibility of proof of the condition of walk at places other than that of accident. In an action against a city for injuries received by the plaintiff from falling over a stake which had been driven in the ground to fill a hole in a plank sidewalk and which had worked up above the level of the walk, evidence that there were other stakes in the same condition at other places in the walk is admissible, not to prove negligence by the city, but as tending to show that the city had notice of the condition of the walk, and that stakes so driven would work up above the level.</p> <p>2. Same—when evidence of subsequent repairs is admissible in rebuttal. If the plaintiff in a suit against a city introduces evidence as to the height above the sidewalk of the stake over which she stumbled, and the defendant proves a measurement taken after the injury from which the height appeared much less, the plaintiff may prove, in rebuttal, that the stake had been driven down before the taking of the measurement proved by the defendant.</p> <p>3. Same—evidence that others had stumbled over the same slake is admissible. In an action against a city for injuries received by plaintiff from stumbling over a stake in the sidewalk, evidence that others had stumbled over the stake is competent, not for the purpose of proving independent acts of negligence, but as tending to show that the common cause of the accident was dangerous.</p>

<p>1. Appeals and errors—case must relate directly to revenue to give Supreme Gourt jurisdiction. In order to give the Supreme Court jurisdiction of a direct appeal under the provision of section 88 of the Practice act, concerning appeals in cases involving revenue, the case must relate to the revenue directly, and not merely incidentally or remotely.</p> <p>2. Same—when the Supreme Gourt cannot entertain an appeal. The Supreme Court cannot entertain a direct appeal from an order denying an injunction and dismissing the bill, where the bill is to enjoin payments under a contract for a local improvement upon the grounds that the character and quality of the work and materials are inferior to those required by the ordinance and contract, that certain of the work was done at a fixed price and not by competitive bidding, and that the specifications contained anti-alien-labor and eight-hour-day clauses.</p>

Axel Chytraus, Judge, presiding. This was a suit by appellee on a promissory note for $2000, made by S. W. Chapman as principal and by the appellant, George M. Peck, as surety. The cause was tried upon one special count and the general issue. The defense to the note was, recoupment for damages sustained by appellant’s principal, S. W. Chapman, for the breach of an oral contract between Chapman and the appellee.

<p>1. Instructions—when instruction is calculated to mislead jury. An instruction which selects one item of evidence, or one fact disclosed by the -evidence, and states that a certain conclusion does not follow, as a. matter of law, from such fact, is calculated to mislead and confuse the jury.</p> <p>2. Same—when instruction in action against street railway is properly refused. In an action against a street railway company, an instruction is properly refused which holds that “no presumption of negligence arises against the defendant from the mere fact that the plaintiff was injured in connection with the defendant’s cars.”</p> <p>3. Same—instruction should be based upon the evidence. It is not error to refuse an instruction which is not based upon the evidence.</p> <p>4. Same—when objection to instruction is not well taken. An instruction authorizing the jury to find for the plaintiff, under certain facts, if they believe plaintiff was injured “by reason of the alleged negligence of the defendant,” is not subject to the objection that the jury could find for the plaintiff if she was injured by any act of the defendant alleged to be negligent.</p> <p>5. Street railways—cars should approach street crossings under control. Those in charge of a street car should so regulate its speed that a collision with a person having the right to cross the street may be avoided by the exercise of ordinary care.</p>

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

Henry B. Willis, Judge, presiding. This is an information in the nature of a quo warranto, filed on leave in the circuit court of DuPage county by the State’s attorney of that county against E. H. Gary, Jesse C. Wheaton and John Weisbrook, appellees, requiring them to show by what warrant and authority they claim, that there is such a drainage district as Union Drainage District No. 1 of the towns of Milton and Win-field in said DuPage county, Illinois, and by what warrant…

E. F. Dunne, Judge, presiding. The only question presented by this record is the construction and constitutionality of the act entitled “An act providing for a tax on gross premium receipts of insurance companies and associations other than life,” approved April 19, 1899, in force July 1, 1899, (Hurd’s Stat. 1899, p. 1042,) which is as follows: “Be it enacted by the People of the State of Illinois, represented in the General Assembly: That every insurance company or…

Doebance Dibell, Judge, presiding. The Appellate Court makes the following statement of facts in this case: “This was an action on the case, brought by appellee against the Illinois Steel Company, charging the latter with negligently causing the death of appellee’s intestate, Harry Walsh, on May 22, 1899.

<p>Writs op Error to the County Court of Cook county; the Hon. R. S. Farrand, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaugh, Judge, presiding.

<p>1. Contracts—when amount agreed to be paid for breach of contract is not controlling. In the absence of a specific statement that the amount agreed to be paid for breach of contract shall be liquidated damages, or even in cases where it is so stated, if the actual damages can he readily ascertained and it would be obnoxious to reason to enforce the provision, courts will regard the amount stated as a penalty, and limit the recovery to actual damages sustained.</p> <p>2. Same—when case for breach of contract must go to the jury. If the evidence tends to show a breach of a legal contract the plaintiff is entitled to have his case submitted to the jury, and it is error for the court, in such case, to direct a verdict for the defendant.</p>

Lucian Adams, Judge, presiding. This was a petition to condemn certain lands of appellant, lying in the town site of East Moline, for railroad purposes, presented by appellee to the county judge of Rock Island county on March 13, 1901, who endorsed thereon the day of presentation and set the hearing for March 25, 1901, and ordered summons to issue. Thereafter the appellant moved to quash the summons, but the motion was overruled. He then moved to dismiss the petition.

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

<p>1. Injunction—equity may enjoin tax levied in violation of law. A court of equity has jurisdiction to enjoin the collection of a tax not authorized by law and wholly illegal and void.</p> <p>2. Taxes—act of 1895, for assessing stock in loan associations, is valid. The act of 1895, (Laws of 1895, p. 300,) which provides for assessing the stock of mutual building and loan associations to the stockholders and the real estate to the association, is valid, and an assessment of the property of such associations can be lawfully made only in accordance with its terms. (In re St. Louis Loan and Investment Co. 194 Ill. 609, followed.)</p>

<p>1. Special assessments—count has power to inquire whether division of improvement into sections was to evade the statute. Courts may inquire whether the division of the improvement of a single street into sections, each'' costing less than $100,000 but aggregating more than that sum, was made to evade section 11 of the act of 1897, requiring proposed ordinances carrying $100,000 to be referred to a committee and published in full.</p> <p>2. Same—ordinances dividing improvement to evade statute are void. If no adequate cause is shown for dividing a single improvement into sections, each costing less than $100,000 but aggregating more than that sum, the ordinances are void, where they are all adopted at the same time and upon the night they were presented by the board, and each provides for the same kind of improvement on the same street, but for difierent, adjoining sections thereof.</p>

<p>Appeals and errors—-freehold not involved in proceeding to cancel certificate of sale as a cloud. A freehold is not involved, so as to permit a direct appeal to the Supreme Court, in a proceeding to set aside a certificate of sale as a cloud on title, since the certificate does not convey or purport to convey title.</p>

<p>1. Bucket-shops—when decision whether complainant keeps a bucket shop is necessary. Upon a bill to enjoin the defendant telegraph company from refusing to furnish market quotations to the complainant, if the sole defense is that the complainant keeps a bucket shop, the decision of that question is essential to the final disposition of the case, since, aside from any questions of pleading, the chancellor must deny the prayer if it appears to him that the aid of the court is sought to further a violation of law.</p> <p>2. Same—purpose of act of iSfy against bucket-shops. The object of the act of 1887, (Laws of 1887, p. 96,) to suppress bucket-shops, etc., is to prevent gambling in grain or other commodities, and is directed against the keeper of any place wherein is permitted the buying or selling of igrain or produce, on margins or otherwise, without any intention of actual delivery.</p> <p>3. Same—a party conducting business must know that the customers are buying in good faith. The fact that a party running a grain or produce exchange on market quotations does not inquire of his customers as to their intentions does not shield him from criminal responsibility under the act of 1887, since he must know, or in good faith have reason to believe, the buying and selling are bona fide and not within the prohibition of the statute.</p> <p>4. Same—what proof establishes the keeping of bucket-shop. Evidence that the main part of a party’s business is dealing in futures on margins, without any intention of delivering the grain sold or receiving that purchased, is sufficient to establish the keeping of a bucket-shop such as is prohibited by the act of 1887.</p> <p>5. Same—what does not establish bona fide intention to avoid violation of law. The fact that a stock and grain exchange requires its customers to sign contracts to receive the commodities purchased does not establish that the purchases were not within the prohibition of the statute, where the evidence also shows that any customer objecting to delivery had no difficulty in settling with the exchange by payment of differences.</p> <p>6. Evidence—what not relevant in bucket-shop case. In an action to enjoin the Chicago Board of Trade and a telegraph company from refusing to furnish complainant with market quotations, evidence that the board of trade conducted its business upon the same plan as that pursued by the complainant is irrelevant.</p> <p>7. Same—effect where a party refuses to testify on ground of privilege. In a civil action, if a "party, upon the ground of privilege, refuses to answer relevant questions or to produce evidence in his possession and control, the presumption is that the testimony, if given, or the evidence, if produced, would be unfavorable to him. (Boggs, J., does not concur.)</p> <p>8. Injunction—when enforcement of rule of board of trade should not be enjoined. A rule of a board of trade prohibiting its members from executing any orders for customers without a bona fide purchase and sale of property for actual delivery is not unreasonable nor in violation of law, and its enforcement should not be enjoined.</p>

Abner Smith, Judge, presiding. This is an action on the case, begun on February 24, 1896, by the appellee against the appellant company to recover damages for a personal injury. The trial in the circuit court resulted in verdict and judgment in favor of appellee. This judgement has been affirmed by the Appellate Court. The present appeal is prosecuted from such judgment of affirmance.

<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. E. W. Burke, Judge, presiding.</p>

Writ of Error to the Branch Appellate Court for the Fi.rst District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Francis Adams, Judge, presiding. This is an action on a replevin bond, begun in the circuit court of Cook county on August 6, 1896, by the plaintiff in error, James H. Gilbert, suing for the use of William A. Harris and Thomas J. McGimsie, against the defendants in error, Thomas W. Sprague and Amasa H. Wilson.

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

Murray F. Tuley, Judge, presiding. This is- a suit brought by appellee, against appellant, to recover for injuries sustained by her in a collision between a wagon and one of appellant’s street cars on which she was a passenger.

<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. Evidence—what competent as tending to show intent of deceased to become passenger on train. Where the principal controversy in an action to recover for the death of a boy is whether the deceased was a trespasser on the tracks or was crossing the tracks to take passage on a train then about due, it is not error to permit the boy’s father to testify that he had given the son a nickel to pay his fare home some half an hour before the happening of the accident, and that a nickel was all the money found in his possession after the accident.</p> <p>2. Instructions—instruction should not tell jury what acts constitute negligence. It is not proper for an instruction to tell the jury what acts or omissions constitute negligence, or that it was the duty of the deceased to have looked and listened, and that “he could not have failed to see the engine as it was approaching and he must have neglected to look.”</p> <p>3. Damages—Zato presumes a pecuniary loss to father from death of son. If the deceased is a minor and leaves a father entitled to his services, the law presumes there has been a pecuniary loss to the father from the son’s death, for which compensation, under the statute, may be given.</p>

<p>1. Wills—when attestation is in testator’s presence. If the testator is propped up in bed so that he can plainly see a table some ten feet away, in the same room, and can see enough of the act of signing to know that the witnesses and the will are in his presence and that the former are signing their names as witnesses to his will in accordance with his request, it is sufficient, even though the bodies of the witnesses, when the signing is done, are between the testator and the table, so that he cannot see the pen nor the letters traced by it, nor, probably, the hand that held the pen.</p> <p>2. Same—beneficiaries in a will are not competent to testify in its favor against heirs-at-law. Parties who are beneficiaries under a will and trustees to carry out its provisions cannot testify in favor of the will, where the heirs-at-law are resisting probate thereof.</p> <p>3. Same —proponent not limited to subscribing witnesses in circuit court. On appeal to the circuit court from an order of the county court denying probate, the proponent is not concluded by the testimony of a subscribing witness that the testator did not have testamentary capacity, but may prove that fact by other witnesses.</p> <p>4. Trial—when propositions are properly refused. Propositions presented to be held as the law of the case are properly refused where they are not in the nature of propositions of law, but merely statements and special findings of fact.</p>

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

Appeal, from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Jonas Hutchinson, Judge, presiding.

<p>1. Special assessments—when ordinance does not provide for two hinds of sidewalks. An ordinance providing for a “cement sidewalk” does not provide for two kinds of walks because the sidewalk is further described as a “cement-concrete-sand-and-gravel” walk, since the term “concrete sidewalk” is a generic term, and the further description is merely a statement of the ingredients.</p> <p>2. Same—when ordinance is not uncertain as to depth of sidewalk. An ordinance is not uncertain as to the depth of a sidewalk which provides that the walk shall be laid to the grade of the street, which is established; that the foundation of the walk be the surface of the ground excavated or filled to within eight and one-half inches of grade; that there be a layer of cinders four inches deep, then a layer of cement and crushed stone four inches deep, and on top of that a finishing coat of cement one-half an inch in thickness.</p> <p>3. Same—ordinance must be viewed as a whole. An ordinance must be viewed as a whole, and one part or section may be referred to for the purpose of explaining another part or section.</p> <p>4. Same—improvement resolution may be passed by a majority of the board. The first resolution recommending a local improvement and the final resolution adopted after the public hearing may be adopted by a majority of the board of local improvements.</p> <p>5. Same—section 7 of act of 1897 does not require ten days’ notice of public hearing. Section 7 of the Improvement act of 1897 is silent as to the number of days’ notice of the public hearing required, and in view of the subsequent action of the legislature in fixing such time at five days, (Laws of 1901, p. 103,) six days’ notice under the act of 1897 is not unreasonable.</p> <p>6. Same—judgment entered after act of 1901 took effect should not include cost of making assessment. A judgment of confirmation entered after the act of 1901 took effect is erroneous if it includes the cost of making and levying the assessment as provided by the ordinance and the engineer’s estimate, even though the proceeding was begun before the act of 1901 took effect.</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>

, 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.

Been B. Gower, Judge, presiding. The Appellate Court makes the following statement: “This was a suit brought by the county of Kankakee against Luc Dandurand for his board, lodging, support, care and medical treatment in the Kankakee county insane asylum, a department of its poor house. The declaration contained five counts. Defendant filed a plea to the jurisdiction of the court. A demurrer to this plea was sustained. The plea was amended, and demurrer again sustained to it.

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

<p>1. Pleading—when admission in answer is not binding. An allegation in the answer to a bill to foreclose a loan association mortgage, that the defendants executed, “as security for said loan, a bond and mortgage, copies of which are annexed as exhibits to said bill of complaint,” is not an admission that defendants had waived their estate of homestead in a legal manner, although both the mortgage and acknowledgment contain a clause releasing homestead, where the answer further alleges that defendants did not, in and by said mortgage, release or waive their homestead.</p> <p>2. Practice—when an objection that allegation is a statement of legal conclusion cannot prevail. An objection that an allegation in an answer to a bill to foreclose a mortgage is but a statement of a legal conclusion cannot be urged on appeal, where no objection was made to the introduction of evidence before the master tending to support such allegation, and no objections or exceptions to the master’s report were made upon that ground.</p> <p>3. Homestead—what essential to create lien on homestead. It is essential to the creation of a lien upon the homestead estate of the mortgagors, that it appear from the certificate of acknowledgment that the mortgagors acknowledged to the officer taking the acknowledgment that they have waived and relinquished their estate of homestead in the mortgaged premises.</p> <p>4. Mortgages—acknowledgment taken by stockholder in corporation mortgagee is void. An acknowledgment of a mortgage to a loan association, taken by a notary public who is a stockholder in the association, is void because of his financial interest in the debt secured, and the mortgage is inoperative as to the homestead estate of the mortgagors in the mortgaged premises, but it is binding except as to the homestead estate where its execution is proved by competent evidence, independently of the acknowledgment.</p> <p>5. Same—an acknowledgment of mortgage to corporation may be taken before officer who is not a stockholder. An acknowledgment of a mortgage to a corporation may be taken before a notary who is a director, officer or agent of the corporation but not a stockholder.</p> <p>6. Same—effect, as to notice, where certificate of acknowledgment is void. If the disqualifying interest of the officer who took the acknowledgment of a mortgage is not apparent upon the face of the mortgage or certificate, the recording of the mortgage is constructive notice of the mortgage to the extent of the lien created thereby.</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 A. Bishop, Judge, presiding.</p>

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

<p>1. Municipal corporations—city has power to acquire land for bridge purposes. A city organized under the general law has power to construct bridges, to deepen, widen or change the channels of water-courses, to erect docks and keep them in repair, and to acquire, by purchase, lease or gift, not to exceed four acres of land for bridge purposes.</p> <p>2. Same—right of city to contract for easement of right to swing bridge over property. A city has power, in connection with the widening of a river and the building of a new bridge, to acquire an easement consisting of the right to swing the bridge over ground owned by a milling company, and may agree, in consideration of such easement, which will necessitate the removal of the milling company’s boiler rooms, to excavate a vault under the street for its use as a boiler room, rent free, and to rebuild the milling company’s dock upon the new line of the river bank, and indemnify the company against damages from the city’s tortious acts.</p> <p>3. Same—effect where lawful contract by city is irregularly made. If a contract is within the power of a municipal corporation but is executed by officers not having authority to make it, the contract may be ratified by the city, and the city may be estopped to deny the validity of its acts in that respect.</p> <p>4. Same—when expense of work may be paid from bridge appropriation. The expense of carrying out a contract made by a city to acquire an easement of the right to swing a new bridge, about to be constructed, over private property not condemned, may properly be paid out of the appropriation for the cost of the bridge, the whole work being necessitated by the construction of such bridge.</p> <p>5. Same—city officers presumed to act for best interests of the city. In the absence of proof to the contrary, it will be presumed that the action of the corporation counsel in dismissing a condemnation petition for bridge extension as to a portion of the property, and of the mayor and commissioner of public works in executing a contract to acquire an easement of the right to swing the bridge over the property not condemned, was for the city’s interest.</p> <p>6. Same—whether city ratified contract is a question of fact. In an action at law on a contract executed by officers of the city having no authority, the question whether the city ratified the contract is one of fact, upon which the judgment of the Appellate Court is conclusive.</p>

William T. Hodson, Judge, presiding. This is an appeal from the confirmation of a special assessment, to-wit, $5750.10, to pay the cost of putting in and along certain streets running through the district assessed, within the limits of the city of Chicago, water pipes connected with the water-works system of the city, to supply the inhabitants of such district with water and for fire protection.

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

Truman E. Ames, Judge, presiding. This was an action of assumpsit brought by appellee, against appellant, in the circuit court of Christian county. The evidence showed that the appellee, John Murphy, came to this country from Ireland in 1878, and went to live with appellant, James O’Hara, who had married his (Murphy’s) sister; that he lived with O’Hara, working for him on his farm, until 1899, when they had a disagreement and appellee quit O’Hara’s service.

<p>Special assessments—when improvement constructed is essentially different from the one authorized. If a paving ordinance calls for a foundation layer six inches deep of the best quality of broken limestone, the board of improvements and the city have no power, after confirmation, to change the foundation layer to a seven-inch layer of rolling-mill slag, and where such change is made and the improvement constructed accordingly the objection is available upon application for sale. (People v. Whidden, 191 Ill. 374, explained.)</p>

<p>1. Taxes—when assessment as for “omitted taxes" cannot he sustained. An assessment against a railroad company as for “omitted” school taxes is not authorized by sections 278 and 279 of the Revenue act, where all school taxes levied upon the property during such years have been paid to the district for which they were levied although the levy was made for the wrong district, and where all school taxes levied for the right district have been extended against other property than that of the railroad company and been paid. (Ohio and Mississippi Railway Co. v. People, 123 Ill. 648, followed.)</p> <p>2. Same—county court cannot perform assessor’s duties on application for sale. If the local assessor, in making an assessment against railroad property, fails to so describe the property assessed as to show that it does not embrace any property properly assessable as “railroad track,” the county court, on application for judgment of sale, has no power to classify the property as “railroad track” and real estate other than “railroad track,” apportion the taxes according to such classification and render judgment for the amount it finds properly due upon real estate other than “railroad track.”</p> <p>3. Appeals and errors—when objection that an appeal was improperly allowed comes too late. An objection that an appeal was improperly allowed comes too late where no motion was made to dismiss the appeal, briefs are filed by both parties and the case is submitted to the court for decision upon the errors assigned.</p>

<p>1. Fellow-servants—relation does not depend upon acquaintance. Servants of the same master who are co-operating in the same work at the same time, under such conditions and circumstances that they may exercise an influence over each other promotive of proper caution for their own safety, are fellow-servants, irrespective of their acquaintanceship with each other or the length of time they have worked together.</p> <p>2. Same—when relation of fellow-servants exists. Where a large number of men employed by the same master through the same foreman and controlled by the same assistant foreman are engaged in painting the interior of a building, each gang of two or three doing the same kind of work and using the same kind of scaffolds, and working together indiscriminately for several weeks, the men composing two gangs working side by side on adjacent scaffolds are fellow-servants, so that the negligence of a member of one gang in unfastening a rope and allowing the scaffold on which the other gang was working to fall, cannot be imputed to the master.</p>

<p>Taxes—when collection of tax may be enjoined. If a party appearing of record to be the owner of notes and mortgages on April 1 has in fact assigned the same, his refusal to disclose to the board of review the names of his assignees does not justify the board of review in assessing the assigned notes and mortgages to him, and the tax based upon such assessment may be enjoined.</p>

W. G. Cochran, Judge, presiding. This was a petition for mandamus, filed in the circuit court of DeWitt county, to compel appellee to furnish appellant with electricity for lighting his house, as is… Held: the court awarded the writ of mandamus. Appellee appealed to the Appellate Court for the Third District, which court reversed the judgment of the circuit court, and the petitioner appealed to this court.

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