Volume 197 — Illinois Reports

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

<p>1. Amendments—amendment after term, must be based upon some memorial paper. The record in a criminal case may be amended after term by an order of court entered nunc pro tunc, when, by reason of a clerical misprision, it does not speak the truth; but the amendment must be based upon some official or quasi official note, memorandum or memorial paper remaining in the files of the case or upon the records of the court.</p> <p>2. Same—a proposed amendment cannot rest in recollection or upon ex parte affidavits. A fact proposed to be incorporated into the record of a criminal case after term, to supply an omission, cannot rest in the recollection of the judge or other person nor be based upon ex parte affidavits or testimony after the event has transpired.</p> <p>3. Same—short-hand reporter’s notes not sufficient basis for nunc pro tunc order. The stenographic notes of the court reporter relating to proceedings of the trial other than the evidence, are not such a note, memorandum or memorial paper as the law contemplates shall be used as the basis for a nunc pro tunc order amending the record in a criminal case. (Chicago, Milwaukee and St. Paul Railway Go. v. Walsh, 150 Ill. 607, and Sullivan v. JSddy, 154 id. 199, distinguished.)</p> <p>4. Criminal law—when record is insufficient to sustain conviction. A record is insufficient to sustain a conviction which fails to show that the jury was empaneled and sworn, that the accused was present at the trial or that the jury was in charge of a sworn officer; nor can the record be amended after term to show otherwise, by a nunc pro tunc order based upon the affidavit of the short-hand reporter, accompanied by excerpts from his stenographic notes, and of the clerk of the court.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of McDonough county; the Hon. John A. Gray, Judge, presiding.

Appear 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>1. Mandamus—constitutional provision for jurisdiction in mandamus construed. Section 2 of article 6 of the constitution, conferring original jurisdiction upon the Supreme Court in mandamus cases, only requires that court to take jurisdiction in such matters as pertain to the public interest, either on behalf of the State or some officer of the State, or in such cases of emergency as the court, exercising a sound legal discretion, deems proper to entertain.</p> <p>2. Same—when Supreme Court will not take original jurisdiction in mandamus. Leave to file a petition in the Supreme Court for mandamus to compel respondent to admit the relator’s children to certain schools will be denied as being a matter of local interest only.</p>

<p>1. Homestead—homestead not lost while intention to acquire new residence is conditional. If a person leaves his homestead with only a conditional intention of acquiring a residence elsewhere, he does not lose his homestead so long as his intention remains conditional.</p> <p>2. Same—when recovery in excess of homestead cannot he had in ejectment. A sale en masse, on execution, of homestead premises, is void at law if the homestead is not properly set off, and the purchaser at such sale cannot recover in ejectment the portion of the premises sold which is in excess of the value of the homestead estate; and this is true although the entire tract contains eighty acres and the improvements are all upon one forty.</p>

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

P. A. Pearce, Judge, presiding. This is an action of ejectment, brought by the appellant, Lucy Dagley, against the appellees, Andrew G. Black, executor of the last will of Silas W. Powell, deceased, and Robert J. Bailey, (the latter being merely a tenant of the executor,) for the recovery of a house and lot, consisting of six or seven acres in Norris City in White county. Appellees pleaded not guilty.

Edmund W. Burke, Judge, presiding. The following statement of facts as made by the Appellate Court is sufficiently full and accurate, and is adopted as the statement of this court: “Appellees contracted with the city of Chicago, on August 26, 1895, to curb, grade and pave a portion of Wabash avenue, in said city.

W. G. Cochran, Judge, presiding. This is a bill, filed on February 6, 1901, by the appellant, E. J. Miller, against the appellees, Mary Elizabeth McAlister and William McAlister and others, for the partition of the west half of the south-west quarter of section 12 in township 15, north range 6, east of the third principal meridian, in Moultrie county.

<p>1. Evidence—what tends to support allegation of negligence. Evidence that an inclined track from the stone quarry to the crusher was uneven and made of different kinds of rails, which could not he bolted together properly, and that it was not on a good foundation, the ties being blocked up from time to time as they gave way, tends to support an allegation that the track was negligently and defectively constructed and caused an extra strain upon the hook used in drawing loaded cars up the incline.</p> <p>2. Same—what tends to show that hook was defective. In an action by an employee for injuries sustained by the breaking of a hook used in pulling cars of stone up an inclined track, testimony of the “hooker-on,” who picked up the pieces of the hook after the accident, that there was a visible flaw and that he could see that the break was old and rusty, tends to show that the hook was defective and that defendant should have known that fact.</p> <p>3. Same—when question of contributory negligence is properly left to jury. Whether the plaintiff was guilty of contributory negligence is properly left to the jury under evidence that when the hook attached to the car going up the inclined track broke, he was standing beside the track near the junction of a curve, with a high wall behind him; that the track was uneven, and that, thinking the car would jump the track, he attempted to cross and was injured, whereas he would not have been had he stayed where he was.</p> <p>4. Evidence—when restriction on cross-examination is proper. If, on cross-examination of the plaintiff’s witness, he is presented with a written statement and asked if the signature thereto is not his, which he admits, it is proper for the court to refuse to allow the defendant to inquire of him as to the contents of the statement.</p> <p>5. Instructions—what not a proper subject for instruction. If the broken hook which caused the plaintiff’s injury is in the possession of the defendant but is not produced, although called for by the plaintiff, defendant’s counsel testifying as to his reasons for not producing it, whatever inference would naturally arise in the minds of the jury from the refusal to produce it, in view of the testimony and explanation of counsel, should not be interfered with by an instruction that no inference would arise from such refusal.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding.</p>

<p>1. Rehearings—delivery of petition to express company not sufficient. A petition for rehearing must be filed in the clerk’s office within the twenty-five days fixed by the rehearing rule, and it is not sufficient to show it was placed in an express office or in the post-office, directed to the clerk, within that time.</p> <p>2. Clerks—cleric can only file papers as of the date received. The clerk of the Supreme Court has no authority to file papers as of any other date than that on which they are actually received by him, and the determination whether papers shall be filed nunc pro tunc, where the question properly arises, is a judicial and not a ministerial function.</p> <p>Statement by the reporter.-— This case was reported in 196 Ill. 365, where the opinion of the court upon the merits of the case will be found. Subsequently, at the June term, 1902, a motion was made for leave to file petitions for rehearing nunc pro tunc as of May 12, 1902. This motion was supported by affidavit of J. Henry Kraft, attorney for appellant, which affidavit is, in part, as follows:</p> <p>“J. Henry Kraft, being first duly sworn, deposes and says that he is the attorney for the appellant in the above entitled cause; * * * that said cause having been reversed and remanded on April 16, 1902, the twenty-five days allowed by the rules of this court for the filing of the petition for rehearing itself expired on Sunday, May 11, 1902, giving appellant all day of May 12, 1902, on which to file such petition in this court. Affiant further says that he has practiced in this court for a number of years and is well acquainted with its practice in cases of this character; that it has become a custom in the office of the clerk of this court to file all papers sent to him by express as of the date on which the same are delivered to the express company to be forwarded to said clerk; that such custom is well known among printers of legal papers and among lawyers practicing in this court, and has been relied upon by them. Affiant further says that on May 12, 1902, he delivered thirteen copies of appellant’s petition for rehearing- to the United States Express Company, properly enclosed and addressed to the clerk of this court at Springfield, Illinois, and received from said company the receipt hereto attached as ‘Exhibit A;’ * * * that affiant, on said 12th day of May, 1902, also caused' to be mailed, properly addressed and postage prepaid, an additional copy of said petition for rehearing to the official reporter of this court. Affiant further says that said petitions for rehearing, and other enclosures hereinbefore mentioned, should have, according to the time schedules of said express company, reached Springfield from Chicago at five o’clock in the morning of May 13,1902, and should have been delivered to the clerk of this court before the opening of court. * - * Affiant further says that the clerk of this court has filed said petitions as of May 13,1902, instead of May 12,1902, and has notified this affiant that the same are too late. * * Wherefore affiant prays that the attached motion may be granted.”</p>

<p>Estoppel—what necessary to show plaintiff in replevin is estopped to claim property. To establish the defense that plaintiff in replevin is estopped to claim the property upon the ground that he was the owner of one of the executions and that his agent directed the levy, it is necessary to prove that the agent knew, at the time, that the property belonged to his principal and that he had authority to bind his principal in the premises.</p>

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

<p>1. Actions and defenses—effect where insurance company is consolidated after suit brought. If an action upon an insurance policy is brought against the company within the year limited by the policy but service is not had, but subsequently the company is consolidated with another and a new company formed, the latter company is liable on the policy, and the court may, under section 24 of the Practice act, permit amendments as to the parties and their corporate names.</p> <p>2. Waiver—pleading over after motion to quash summons is a waiver. If a motion to quash the summons is overruled and the defendant demurs and pleads over to the amended declaration, the defendant’s appearance is entered and the right to assign error upon the overruling of the motion to quash is waived.</p>

E. W. Burke, Judge, presiding. This was a suit in attachment, begun in the circuit court of Cook county by appellant, against appellee. The defendant filed a number of pleas, on which issue was taken, and the cause was submitted for trial to the court without a jury. The court found the issues for the defendant and rendered judgment accordingly, and upon appeal to the Appellate Court the same was affirmed.

<p>Information for disbarment.</p>

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

E. P. Vail, Judge, presiding. This is an action of ejectment brought by appellants, against appellee, in the circuit court of Cook county. It appears that in 1836 John C. Phillips and wife conveyed to Clark Hollenback the west sixty acres of the east half of the south-west quarter of section 4, township 37, north, range 14, east of the third principal meridian, in Cook county, and that appellee is the heir-at-law of Clark Hollenback.

Writ op Error to the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding. This is a prosecution for assault with intent to commit rape. There were two trials of the case. Upon the first trial there was a disagreement of the jury. At the February term, 1902, of the Knox county circuit court there was a second trial, resulting in a verdict of guilty. A motion for a new trial was made, npon the hearing of which affidavits were introduced.

<p>1. Deeds—parol evidence not admissible in court of law to change description in deed. Parol evidence of the acts and conversations of the grantor and grantee prior to the execution of the deed cannot be received to show that the description in the deed is wrong.</p> <p>2. Same—language of deed must govern in an action of ejectment. As between the grantor and grantee and those in privity with them, the language employed in the deed to describe the premises must control in an action of ejectment.</p> <p>3. Same—description of deed construed. Under a deed describing one acre of land as “beginning one hundred feet west of the center of the main track of the Peoria, Decatur and Evansville railroad, thence running west on the south line of Walnut street,” etc., the beginning point must be ascertained by measuring one hundred feet on the south line of Walnut street directly west from the center of such railroad track; and it is not proper to show, in ejectment, that the grantor and grantee had the line run at right angles with the railroad track, which ran at an angle to Walnut street, one hundred feet in a south-westerly direction until it intersected the south line of Walnut street, which point they took as the place of beginning.</p>

Writ op 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. John C. Carver, Judge, presiding.

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

Writ op 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.

Henry C. Ward, Judge, presiding. This case arose on objections, filed in the county court of Whiteside county by the appellant to the application of the collector for judgment against an order of sale of the bridge of appellant over the Mississippi river, to the middle of the stream, for taxes assessed thereon for the years 1896, 1897 and 1898. The county court, after hearing the issue made, entered judgment and an order of sale, and the bridge company appealed.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Murray E. Tuley, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Union county; the Hon. Joseph P. Robarts, Judge, presiding. /</p>

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. T. N. Green, Judg'e, presiding.</p> <p>This is an indictment for perjury against the plaintiff in error, found by the grand jury of Peoria county on May 22, 1901. Upon the trial the defendant was found guilty. Motions for new trial, and in arrest of judgment, were made and overruled, and judgment was pronounced, sentencing the plaintiff in error for an indeterminate term in the penitentiary. The present writ of error is sued out for the purpose of reviewing the judgment of conviction, so rendered against plaintiff in error.</p> <p>The indictment consists of four counts. The first count charges that, in a certain judicial proceeding, to-wit, a suit for divorce by plaintiff in error against Lena Hereford, his wife, pending in the circuit court of Peoria county, said court then and there having jurisdiction over said suit and the parties thereto, plaintiff in error upon the hearing of said cause willfully, corruptly, feloniously and falsely swore that he lived at No. 1529 South Adams street, Peoria; that he was and had been a resident of Illinois since he was born and had lived in Peoria for about fifteen years last past; that his wife, Lena Hereford, had separated from him for two years and two or three months last past, and for such time had refused to live with him; that he had tried to have her come back and live with him; that she refused so to do, and left him for the reason that he desired to come east from California; that she did not want to come east; that he was living but temporarily in Los Angeles, California; that his wife never had expressed any desire during the past two years and two or three months to come back and live with him; that he had requested her to do so, but that she had absolutely refused to come back and live with him during said period of time; that he did not know of any cause he had given her for leaving him; that he had always been to her a true, dutiful and chaste husband; and that he did not know in whose handwriting a certain letter, then and there shown to him, was; that he so swore as aforesaid, after having taken a lawful oath administered to him by Percival G-. Rennick, a deputy clerk of said circuit court having the authority to administer the oath to him; that the testimony so given by him was in regard to matters material to the issue then and there before the court, to-wit, the questions whether he was and had been an actual resident of Illinois for one whole year prior to the filing of the bill for divorce; also whether or not he was a resident of Peoria county at the time of filing said bill; also whether or not Lena Hereford, the defendant therein, had willfully deserted or absented herself from him without any reasonable cause for the space of two years prior to the filing of the bill for divorce, and whether or not she had refused to live with him during said two years, and whether or not he, during his marriage to her, had been a true, dutiful and chaste husband; that he knew, when he swore to the matters and things above stated, that the statements so made by him were false and untrue; that the said Lena did not desert him for or during the period of time aforesaid, and did not refuse to return and live with him; that he, during his married life with her, for a long period of time, to-wit, from January 1, 1897, to May 17,1901, had been unfaithful to her and on divers and sundry times had been guilty of adulterous intercourse with a certain woman named Cora Strubel, alias Cora Wildmuth; that all this he then and there knew; that said letter was in his handwriting, and he then and there knew that such was the fact.</p> <p>The-second count charges that in a certain judicial proceeding, to-wit, a suit for divorce by him against his wife, Lena Hereford, which was then and there heard and considered in open court in the circuit court of Peoria county by the court without a jury, the court had jurisdiction and authority over the suit and the parties thereto; that he, before he testified as a witness, took a lawful oath administered to him by the deputy clerk of said court, Percival G. Eennick, having authority to administer the oath; that after so taking said oath, he willfully, corruptly, feloniously and falsely swore that he had been a resident of Illinois for fifteen years, last past, prior to the time of giving his testimony; that this statement was false and he knew it to be false; that the testimony so given was in a matter material to the question of his residence in Illinois for one whole year next past before the date of filing the suit for divorce; that it was material to show that he had been a resident in the State for one whole year next before filing his bill, and said fact was a point in question; that he had not been a resident of said State for one whole year next before the filing of his bill and said fact was then and there a point in question; that he had not been a resident in said State for one whole year next before filing his bill for divorce, but had for, to-wit, three months of the aforesaid year resided out of said State, and this he then and there knew when he so falsely and corruptly swore, etc.</p> <p>The third count charges that in a certain judicial proceeding in the circuit court of Peoria county, by the court without a jury, the court then having authority to hold and conduct the proceeding, which was a divorce suit between plaintiff in error and Lena Hereford, his wife, plaintiff in error was a witness and then and there swore and gave testimony, and prior to the giving of such testimony took a lawful oath which was then and there required and administered to him by the deputy clerk of the court, one Percival G. Eennick, he having authority to administer said oath; that the point in question before the court was whether the defendant, Lena Hereford, had willfully deserted or absented herself from her husband without any reasonable cause for the space of two years prior to the date of filing the bill for divorce in said court; that he as such witness, after taking the oath aforesaid, did willfully, falsely, feloniously and corruptly swear that she had willfully deserted him and absented herself from him for a period of two years prior to the filing of said bill, without any reasonable cause; that this statement was untrue; that she did not willfully desert him or absent herself from him for a period of two years; that he knew that she had not deserted or absented herself from him when he so falsely and corruptly swore, etc.</p> <p>The fourth count charges that plaintiff in error was a witness in a judicial proceeding, to-wit, the divorce suit above described pending in said circuit court; that said court had authority to consider the cause and to administer oaths to witnesses therein, and administered to the plaintiff in error a lawful oath, by Percival G. Rennick, deputy clerk, said Rennick then and there having authority to administer said oath to him; that while then and there as a witness, after taking said oath, he willfully, feloniously, corruptly and falsely swore that during his married life he had been a dutiful, true and chaste husband and had never given her any reasonable cause to desert him; that he bad not written a certain letter then and there shown to him, which letter purported to be and was in his handwriting and sent to his wife; that his wife had deserted him and at all times for the fifteen years last past he had been a resident of Peoria county in Illinois, and never in such time had been a permanent resident in California; that all this he falsely swore, knowing the same to be false; that he had not been a true and dutiful husband, and he knew this; that his wife had not deserted nor absented herself from him, and he knew this; that he had been a permanent resident of California within two years last past, prior to April 4,1901, and this he knew; that he had by his own hand written the said letter to his wife, and this he knew; that all the matters and things above set forth as having been sworn to by him were material to establish that he as complainant in the divorce suit had resided in Illinois one whole year next before filing his bill, and that his wife had deserted him as therein charged, and that he was entitled to a divorce from her as prayed in the bill, and that he had not written to her for the purpose of preventing her coming to him; that all these matters were material to the issue before the court, and points in question in said suit, etc.</p>

<p>1. Dedication—dedication may be good at common law although insufficient for a statutory dedication. A dedication of a street, good at common law, may be made by a survey and plat, which is insufficient as a statutory dedication.</p> <p>2. Same—when possession of portion of street is not adverse to public. If the owner of land plats the same and marks a street of certain width thereon, which is opened and worked by the public a part of its width, the fact that the owner leaves his old fence in part of the street, in which he disclaimed any right, until he could build a new one, does not make his possession adverse to the public.</p> <p>3. Same—street may be opened as public necessity requires. So far as the public is concerned, unless the offer to dedicate the street is withdrawn the street may be opened and used, at the discretion of the public authorities, as the public necessity may require, and it is not necessary to an acceptance that the street should forthwith be opened when platted.</p> <p>4. Same—when acceptance of street by public is necessary. Where a municipality, as trustee for the public, and individual lot owners, have common rights and interests in having a street kept open, they may unite as complainants in a bill to prevent the invasion of their rights; but where only public rights are involved an acceptance of the street must be shown, and the city cannot rely upon the rights of individual owners.</p>

<p>Contracts—what essential to sustain a claim of damages by way of recoupment. In an action for the balance of the contract price of stone furnished by the plaintiff to the defendant, the latter can not be permitted to prove damages by reason of supposed delay in furnishing the stone, where there is no evidence as to when the stone was to be furnished nor when it was in fact furnished.</p>

<p>1. Verdict—when a verdict is sufficient to support judgment. In an action for negligence against both the lessor and the lessee of a street railway, a verdict finding the “defendant” guilty is sufficient to support a judgment against both defendants, the rule being, that a verdict will be sustained if by looking into the record it can be seen to be responsive.</p> <p>2. Negligence—both lessee and lessor of street railway are liable for negligence. When an injury results from the negligent operation of a railway, whether by the corporation to which the franchise is granted or its lessee, both the lessor and the lessee are liable to respond in damages.</p>

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

<p>Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of McDonough county; the Hon. John A. Gray, Judge, presiding.</p> <p>The Appellate Court makes the following statement of the facts in this case:</p> <p>“This was a bill in chancery, filed in the circuit court of McDonough county by the plaintiff in error, Henry C. Agnew, against the defendants in error, Macomb Building and Loan Association, Charles V. Chandler and John M. Keefer, (the latter two trustees named in the deed of trust in question,) to obtain a decree compelling a cancellation and satisfaction of record of a certain deed of trust which plaintiff in error gave to the association upon certain of his real estate, and which he claims he has paid, and charges that the defendants in error refused to cancel and satisfy same, although he requested them to do so before the bill was filed. A demurrer having been sustained to the bill, as amended, by the trial court, plaintiff in error excepted, and standing by it, a decree was entered dismissing it at his costs. * * *</p> <p>“The bill was filed November 22,1900, and, as amended, sets up that the Macomb Building and Loan Association is a corporation organized in 1882 under the laws of Illinois, for the purpose of raising funds to be loaned only among its members, with its principal office at the city of Macomb, in McDonough county, Illinois; that a copy of its by-laws is attached to the bill, marked ‘Exhibit A, ’ and made a part thereof; that April 15, 1898, plaintiff in error was a member of the association, owned twenty-eight shares of its capital stock, upon which he borrowed from it on that day §2800, and gave it a written obligation to re-pay same, and secured it by a deed of trust executed by himself and wife, which conveyed to said Chandler and Keefer certain of his real estate in trust, to secure the payment of said loan, which deed was duly recorded in the recorder’s office of said county, and a copy thereof attached to this bill, marked ‘Exhibit B,’ and made a part thereof; that from the time plaintiff in error became the owner of said shares and obtained said loan, until November 3, 1900, he paid all dues, interest and premiums provided by said deed of trust and said by-laws, and in all things complied with all the rules, regulations and requirements of the association and said deed of trust; that by reason of the interest and premiums paid by plaintiff in error and other parties who borrowed money from the association, all the shares of its capital stock increased in value, and became entitled to certain credits as a portion of the net profits of the association, so that on November 3, 1900, the shares owned by plaintiff in error were entitled to a credit of §122, in addition to the then withdrawal value thereof; that on July 31 of each year since the association was incorporated, its secretary credited upon its account books, to all the shares of stock thereof, the portion of said net profits to which each of said shares were at the time, respectively, entitled, and made report thereof in writing to its stockholders at their regular meetings in August of each year, and they received and approved his reports and directed the same spread upon its records, which has been done each year; that on July 31,1900, the credits to which the said stock belonging to plaintiff in error was entitled on account of such net profits were $122, in addition to the withdrawal value of same, and on that day said secretary credited said stock upon the account books of the association with said sum of $122, it being the portion of said net profits to which said stock was entitled; that said secretary made report in writing, verified by his affidavit, to the stockholders of the association at their regular annual meeting held in August, 1900, of the value of all the shares of stock of the association and of all credits returnable on account thereof, said report showing that the said shares owned by plaintiff in error were then entitled to a credit equal to the withdrawal value thereof, and said $122 in addition thereto, being the sum credited upon said account books to said stock by said secretary on July 31,1900; that the board of directors of the association, at their regular meeting held on the second Monday in July, 1900, appointed five of its stockholders, none of whom were directors, as a board of auditors to examine and audit the accounts of the association; that said auditors did examine and audit said accounts after July 31,1900, and after said secretary had credited said stock of plaintiff in error in said accounts with said $122 in addition to the withdrawal value thereof, they made report, in writing, to the stockholders of the association at their regular annual meeting held in August, 1900, stating that said accounts were correct; that the.stockholders of the association, at said annual meeting, received said report of the secretary and the report of said auditors, approved both of them, and ordered that each be spread upon the records of the association, and the same was done by its secretary; that the profits of the various shares of stock of the association have never been apportioned to said shares by it in any mapner other than as above stated; that said profits have never been apportioned by its board of directors, by resolution or otherwise, except that, when the shares of stock attained their full value by reason of the payment of dues and addition of profits apportioned in the manner herein stated, the board of directors would declare such stock fully matured; that thirty days before November 3, 1900, plaintiff in error gave the association notice in writing of his intention and desire to re-pay said loan, the full amount of which was then §2800, there being no arrearages due thereon, or on the shares of stock pledged to pay same, or upon the security appertaining thereto; and that the withdrawal value of said shares of stock held by plaintiff in error was then §907.86, which, with said §122 of profits apportioned thereto by the association, amounted to §1029.86, which plaintiff in error was entitled to be allowed in making settlement with the association for said loan, and which, being deducted from the amount thereof, left a balance due it of §1770.14, which plaintiff in error paid it, and which was all that was due it upon said loan; that the association is willing to make settlement with plaintiff in error by crediting his stock with said sum of §907.86, being the withdrawal value thereof, but claims that he is not entitled to an allowance of said sum of §122 in such settlement, and refused him such credit, and has transferred the credit of said §122 from his stock on its account books to the unearned profits of the association, claiming that its other shareholders are entitled to said profits instead of him; that the association claims that plaintiff in error is still indebted to it in said sum of §122 upon his shares of stock, and refused to cancel his said written obligation and deed of trust and surrender the same to him; that said deed of trust, as the same now appears unsatisfied, is a cloud upon the title to his said real estate; that he is entitled to have same released of record; that upon his paying said §1770.14 to the association, as hereinbefore stated, it was the duty of said Chandler and Keefer, as such trustees, to release same of record; that on November 10, 1900, he requested said Chandler and Keefer to release said deed of trust of record and both refused so to do, and that the association has, by its officers, instructed them not to release said deed of trust, and insists that they have no right to do so; and prays that the trustees be required to release the trust deed of record, and that the association be required to cancel the evidences of said loan, and for general relief.</p> <p>“ ‘Exhibit A’ shows that the constitution of the association contains the following:</p> <p>“ ‘Article 6, sec. 7. A borrower may re-pa3?- a loan at any time, but shall, at the time of re-payment, withdraw the shares upon which the loan was made.’</p> <p>“ ‘Article 8. Any stockholder may withdraw from the association upon giving thirty days’ notice of his or her intention so to do, when he or she shall be entitled to receive the amount paid in by him.’</p> <p>“And shows that among its by-laws is the following:</p> <p>“‘Article 6. Any stockholder withdrawing from the association shall be entitled to receive the amount paid in by him or her, with five per cent per annum, less proper fines and charges, provided no interest shall be paid until six months’ payment shall have been made.’”</p>

<p>1. Independent contractors—difference between independent contractor and a servant is determined from whole contract. The difference between an independent contractor and a mere servant is not determined solely by the retention of a certain kind or degree of supervision by the employer, but from the contract as a whole, and not by the phraseology of a single sentence or paragraph.</p> <p>2. Same—when builder of sewer is an independent contractor. A contractor engaged in building a sewer under a written contract with a city is an independent contractor as respects the men in his employ, notwithstanding the contract provides that the work shall be performed “under the immediate direction and superintendence of the commissioner of public works, and to his entire satisfaction, approval and acceptance.”</p> <p>3. Same—when city is not liable for death of an employee of sewer contractor. Failure of a sewer contractor to observe a specification in the contract requiring the sides of the ditch, when necessary, “to be effectually supported with suitable planks and timbers by the contractor, without expense to the city,” does not render the city liable for the death of an employee of the contractor, killed in consequence of such failure.</p>

<p>1. Municipal corporations—right of city to adopt plan for track elevation. If a city council, acting in good faith, for the best interests of the public, in the matter of elevating railroad tracks at the junction of two streets, determines that the-- safety of the public will be best conserved by providing a sub-way and supporting the tracks by means of walls in the street, courts will not declare such action unauthorized merely because the plan adopted requires that the street be widened to provide requisite street facilities.</p> <p>2. Same—what not an unlawful diversion of street. If the safety and convenience of the public demand the adoption of a plan of track elevation which makes necessary the appropriation of portions of the street for the structure to support the tracks, such appropriation is not an unlawful diversion of the street to the use of the railroad company.</p> <p>3. Same—when condemnation of land is not for private use. Condemnation by a city of a strip of land to be used for street purposes, such use being rendered necessary by the occupation of a portion of the street by sub-way walls erected by a railroad company in accordance with a plan of track elevation deemed by the city to be for the public interest and safety, is not a condemnation of property for private use, even though the company bears the expense.</p>

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

<p>1. Deeds—recording of deed raises rebuttable presumption of delivery. The execution and recording of a deed raise the presumption, in law, that the grantor intended to divest himself of title, and unless such presumption is rebutted it must be held the deed was delivered.</p> <p>2. Same—when presumption of delivery is conclusive. If a grantor executes a deed to his daughter to place the property beyond the reach of creditors, with the knowledge and consent of the grantee, and records the same, with her consent, for the purpose of making the conveyance effective against creditors, the grantor is concluded by the presumption of delivery arising from recording.</p> <p>3. Same—when courts will not aid either party to enforce conveyance. If a father deeds property to his daughter for the purpose of hindering or defrauding creditors, courts will not lend their aid to enforce an alleged parol promise by the grantee to hold the property in trust, nor, if the grantor and grantee are in pari delicto, will they afford any remedy to the grantee to disturb the grantor’s possession of the property.</p> <p>4. Trusts—when parol promise to hold land in trust will not be enforced. The rule that a parol promise to hold land in trust will be enforced in chancery where fraud has been practiced by the grantee upon the grantor, does not apply where the deed was made for the purpose of defrauding the grantor’s creditors.</p>

<p>1. Witnesses—disclaimer of interest does not render witness competent. Under section 7 of the Evidence act, if any party to a suit would, under sections 2 and 3 of the act, be incompetent to testify, he cannot be made a competent witness by releasing his interest.</p> <p>2. Same—naming party as a defendant does not make him an adverse party. Upon a bill by the heirs-at-law to contest a will and divest the legatees of all right in the estate, the dismissal of one of the heirs-at-law as a complainant and the naming him as a defendant does not make him an adverse party.</p> <p>3. Same—when party is not competent to testify on will contest. Upon a bill by the heirs-at-law to contest a will, an heir-at-law who has been named as a party defendant is incompetent to testify, on behalf of the contestants, as to the testamentary capacity of the deceased, or to detail conversations or give testimony as to facts alleged to have occurred before the death of the testator and tending to support the contestants’ claim of fraud and undue influence.</p> <p>4. Same—clause k of section 9 of Evidence act considered. The conversations or admissions to which an interested party may testify under clause 4 of section 2 of the Evidence act, are conversations or admissions by the interested party himself to a person since deceased, and not to conversations or admissions by the latter.</p>

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

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

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

<p>1. Wills'—when body of estate must be held to be intestate property. If a life interest is created and there is nothing in the will to show an intention on the part of the testator to dispose of the body of the estate, the latter will be intestate property.</p> <p>2. Same—devise construed as creating an active trust as to life estate. A devise to a trustee to hold the property for the testator’s two brothers and to pay the net income therefrom as soon as the net balance can be ascertained, three-eighths to one and five-eighths to the other, creates an active trust authorizing the trustee to hold the estate during the lives of the two brothers, respectively, the remainder being intestate property.</p>

Samuel L. Dwight, Judge, presiding. In this case a bill in chancery was filed in the circuit court of Montgomery county on March 24, 1899; by the appellants, Callahan & Son, against William W. Whitlow, John Ball, Daniel Pope and Thomas S. Edwards.

<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. Farlin Q. Ball, Judge, presiding.</p>

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

Joseph E. Gary, Judge, presiding. This is an action on the case for personal injuries, begun in the superior court of Cook county. Upon the trial a verdict was rendered for appellee in the sum of §2000, and judgment entered thereon. Upon appeal to the Appellate Court the judgment was affirmed, from which judgment this appeal is prayed.

<p>Partnership—when one partner may treat transfer of interest as a dissolution. If one partner transfers his interest in the firm upon consideration that the purchaser pay the seller’s obligation to the firm, the other partner 'may insist upon payment of such obligation, and if not paid may treat the transfer as effecting a dissolution, and may sell the partnership property to pay the debts of the partnership and wind up the firm; and in such case a bona fide purchaser will take the property free from the claims of the other partner’s creditors.</p>

<p>1. Special assessments—railroad right of way not ordinarily benefited by improvement of street. While land occupied solely as railroad right of way might, under some circumstances, be benefited by the improvement of an adjacent street, yet as a rule it cannot be.</p> <p>2. Same—when railroad right of way cannot be said to be benefited. Land devoted to right of way purposes only, and unconnected with depot grounds, should not be assessed for the improvement of an adjacent street upon the testimony of a witness that he believes the property will be benefited to the amount assessed in the roll, where it appears his testimony is based upon the mere conjecture that the land will be needed in the future for depot or freight house purposes, and not upon its present use.</p>

Charles G. Neely, Judge, presiding. During the years 1883,1884,1885,1886 and 1887 the appellee and one E. A, Hamill, as co-partners, were engaged in business as brokers and commission merchants on the board of trade in the city of Chicago. Daniel Butters, deceased, appellant’s testator, engaged the said firm of brokers to execute orders for the purchase and sale of grain on the board of trade.

<p>1. Criminal law—what will not sustain conviction of crime of assault. If the chief evidence tending .to connect the defendants with the crime of assault is the unsupported testimony of the prosecuting witness that he identified them by their faces and voices, the conviction cannot be sustained where the defendants and four other witnesses testify to facts which prove an alibi.</p> <p>2. Same—personal experience of judge in another case should not go against defendants. In a trial for assault, where the evidence against the defendants is slight, it is not proper for the judge to put his personal experience in another case of assault into the scales against defendants, and to refuse to allow them to prove that the place where the alleged assault was committed was a public one and that there were persons within hearing and seeing distance.</p>

Philip S. Post, Judge, presiding. This is an action of debt by the village of Lemont, appellant, against Anson B. Jenks, administrator of the estate of Nathaniel J. Brown, deceased, for the recovery of water tax levied and assessed by said village against said Nathaniel J. Brown, in accordance with the provisions of section 8 of chapter 42 of the ordinances of said village of Lemont, which chapter of said ordinances, after fixing the rates to be paid for the use of water,…

Owen P. Thompson, Judge, presiding. This is an action on the case, begun on September 7, 1900, by the appellee, as administratrix of the estate of Otto Menk, deceased, who was her husband, ag'ainst the appellant, the Staunton Coal Company, to recover damages for the death of her husband, while engaged, as an employe of the appellant, in a coal mine, belonging to, or operated by, the appellant. A plea of not guilty was filed, upon which issue was joined.

<p>Taxes—imported goods in original packages not subject to general tax. Imported goods in the original, unbroken packages, and upon which the duties have been paid, are not subject to general taxes. (In re Appeal of Pitkin & Brooks, 193 Ill. 268, followed.)</p>

Charles G-. Neely, Judge, presiding. This is a suit, begun on April 12,1899, by the appellee against the appellant, and one Gabriel Zaccone, upon an appeal bond, dated February 21,1898, executed by Gabriel Zaccone as principal, and William H. Rehm as surety unto Enock Halverson in the penal sum of $1000.00, which bond was given upon an appeal to the circuit court from a judgment of restitution by a justice of the peace in a forcible detainer suit, brought by appellee against…

<p>Appeal from the Circuit Court of Coles county; the Hon. Frank K.' Dunn, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding.</p>

<p>1. Judicial sales—slight inadequacy of price not groundfor refusing judicial sale. Mere inadequacy of price is not ground for disapproving a master’s sale, unless the inadequacy is so gross as to raise a presumption of fraud.</p> <p>2. Same—master must conform to provisions of decree regar cling notice. Where the court has exercised its judicial discretion as to the time and manner in which notice of the sale shall be given, the master has no discretion, but is bound to execute the decree as made.</p> <p>3. Same—when failure to observe the provisions of a decree as to notice is fatal. If the master has not conformed to the decree in giving notice of the sale, an objection upon that ground, if made before the master’s report is confirmed, must be sustained.</p> <p>4. Same—when provisions of decree as to notice are not followed. The provisions of a decree that notice be published four weeks prior to the sale and notices be posted in ten of the most public places in the neighborhood, are not complied with by the publishing of a notice four times, the first notice not being four weeks prior to the sale, and by the master’s posting one notice himself and delivering or mailing notices to other parties to post, none of which were posted for a sufficient period under the decree.</p>

<p>1. Appeals and errors—when decree dismissing bill to cancel deed will be sustained. A decree dismissing a bill to cancel a deed upon the ground of mental incapacity of the grantor will be upheld, on appeal, where the chancellor heard the evidence in open court, and where, although the evidence of the different parties is irreconcilable, the chancellor’s finding is not manifestly against the weight of evidence.</p> <p>2. Deed—what a sufficient delivery of deed to pass title. A deed from mother to son is sufficiently delivered to pass title to the grantee in the grantor’s lifetime, where the notary who took the acknowledgment and was about to hand the deed to the grantor was directed by her to give it to the grantee, which he did.</p>

<p>1. Wills—unambiguous words cannot be varied by evidence of extraneous facts. If the words of the testator as to the donee and the subject of the gift are unambiguous, such words cannot be varied by evidence of extraneous facts, however clearly a different intention may appear.</p> <p>2. Same—;false words of description may be rejected. When there is a latent ambiguity in the description of the object of a gift, and such ambiguity can be removed by rejecting false words, leaving a complete description, the court should reject them.</p> <p>3. Same—illustration of removing ambiguity by rejecting false words of description. Where the testator, in attempting to dispose of an undivided eighty acres of land, devises fifteen acres to each of two sons and fifty acres to a daughter, “of the undivided south-west three-fourths of the south half of the south-west quarter and the west half of the south-east quarter of section 33,” etc., the words “south-west three-fourths of the south half of the” may be rejected as meaningless, leaving a perfect description.</p> <p>4. Same—provisions of will not inconsistent with codicil must he given effect. In construing a will and a codicil the disposition made by the will should not be disturbed further than is absolutely necessary to give effect to the codicil.</p> <p>5. Same—language of codicil construed as to passing remainder. A codicil which devises land which by the will had already been given in fee to a daughter, to the testator’s wife, “for her sole use and benefit during her life,” but which makes no disposition of the remainder, leaves such remainder still in the daughter.</p>

<p>1. Quo warranto—proceeding is not a remedy of absolute right. A proceeding by information in the nature of quo warranto is not a matter of absolute right, and unreasonable delay or acquiescence on the part of the parties complaining will justify a refusal of leave to file the information.</p> <p>2. Same—when court may properly refuse leave to file an information. Leave to file an information in the nature of quo warranto to oust respondents from office as trustees of a village, upon the ground that the statute for incorporation had not been complied with, is properly refused where the village has exercised, without question, for a period of twenty years, the powers and functions of a municipal corporation, levied and collected taxes, improved streets and made other public improvements for which public money has been expended and municipal bonds issued and sold.</p>

<p>Appeal from the County Court of Kane county; the Hon. M. O. Southworth, 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>1. Executors and administrators—when administrator is properly removed. If an administrator moves to another county and neglects or refuses to file a petition to sell real estate of the decedent to pay claims which are being pressed, the county court, upon petition showing such facts, may issue a citation requiring the administrator to appear and file the petition, or in default thereof that he show cause why he should not be removed; and if, after personal service, he fails to appear, the court may remove him.</p> <p>2. Same—if county court has jurisdiction to remove administrator its order cannot be collaterally attacked. If the record shows facts which confer jurisdiction upon the county court to remove an administrator and appoint an administrator de bonis non, its order cannot be collaterally attacked in a proceeding to have a sale by the latter set aside; nor will a court of review, in a collateral proceeding, go behind the order to see if it is warranted by the evidence.</p> <p>3. Same—irregularities in removing administrator can only be urged in a direct proceeding. If the county court complies with all necessary provisions of the statute to give it jurisdiction of the person of an administrator and the subject matter of his removal, irregularities in the matter of his removal by the court can only be urged in a direct proceeding for reversal.</p> <p>4. Same—regularity of appointment of an administrator de bonis non cannot be collaterally attacked. If an administrator de bonis non is appointed by the proper court having jurisdiction, he is at least an administrator de facto, and the regularity of his appointment can not be questioned in a collateral proceeding.</p> <p>5. Judicial sales—when purchaser will be protected. If an administrator de bonis non is appointed by a court having jurisdiction and is legally authorized to file a petition and make the sale of the decedent’s real estate to pay debts, the rights of purchasers will be protected, in a collateral proceeding, against mere errors which may have intervened.</p> <p>6. Same—effect of court's failure to require an additional bond. The oversight of the county court in failing to require an administrator de bonis-non to give an additional bond when selling real estate will not defeat the title of parties who were not parties to the record and who obtained title by mesne conveyances from the purchaser at the sale, where the record shows faithful performance by the administrator of his duties and it does not appear that any one is injured by the omission.</p>

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

Murray F. Tuley, Judge, presiding. This is an action of forcible detainer, brought originally by appellee, Grace D. Richardson, against appellants, William S. Moore and W. A. Wait, for possession of two lots at the south-east corner of Madison avenue and Sixty-fourth street in Chicago. The action was brought before one justice of the peace in Cook county, and removed by change of venue to another justice of the peace.

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Plaintiff in error prosecutes this writ of error to reverse a judgment of the Appellate Court affirming a judgment against him for costs in the superior court of Cook county in an action on the case for personal injuries.

O. A. Harker, Judge, presiding. This is an information in the name of the People, by Herbert, State’s attorney, on the relation of Mohlenbrock, filed in the circuit court of Jackson county, for the purpose of testing the validity of the organization of the town of Campbell Hill under the general Incorporation act, broug'ht against the defendants, acting as the town officers of such village, requiring them to show by what warrant or authority they exercise the right to such…

<p>1. Brokers—duty of broker to keep principal informed of facts relating to consignment,. The law enjoins upon brokers or commission men the duty of keeping the principal informed of all facts and circumstances relating to the consignment which may make it necessary for the principal to take steps to protect his interests.</p> <p>2. Same—duty of broker to communicate name of purchaser to principal. If information as to the name of a purchaser is necessary in order to enable the principal to act with reference to the sale it is the duty of the broker to give such information, and he is not excused by the existence of a custom to the contrary.</p> <p>3. Same—when usages and customs are not valid. No usage or custom among brokers or agents is valid, as against the principal, if it conflicts with the terms of any agreement between the parties, or with the fundamental rules of law defining the rights of those occupying the relation of principal and agent.</p> <p>4. Same—when a storage company is liable as a commission merchant. If a cold storage company oilers its services in making sales of the stored property in order to secure business, making no specific charge except for storage, it is nevertheless to be regarded as acting for compensation, and becomes liable as a factor for neglect of duty, as though commissions were charged for making the sales.</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. S. O. Stough, Judge, presiding.

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

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

Truman E. Ames, Judge, presiding. The Appellate Court in deciding this case make the following statement: “This was a bill in equity, filed May 1, 1900, to foreclose a mortgage, dated November 27, 1899, on 290 acres securing three notes of the same date, one for §1100.00, due in one year, and two for §900.00 each, due two and three years after date, all bearing seven per cent interest, and given for a part of the purchase price for the land mortgaged.

<p>1. Wills—effect of the death of one tenant in common under a will. Where one or more of the named persons who would, under section 5 of the Conveyance act, take as tenants in common, die before the testator, the lapsed devises go as intestate property to the heirs-at-law of the testator.</p> <p>2. Same—what does not prevent lapsed devise from passing as intestate property. The fact that one tenant in common under a will dies some seven years before the testator does not,prevent the conclusion that the lapsed devise descended as intestate property, where there is nothing in the will to show an intention on the part of the testator to dispose of the same.</p>

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

H. VanSellar, Judge, presiding'. This is a suit, brought in the name of the administrator, for the benefit of the widow and next of kin, for the alleged wrongful neglect of appellant to keep the roof of the entry or roadway in its mine near a certain room 11 therein in a reasonably safe condition, by propping the same, or otherwise making it secure for the employes to work under it.

<p>1. Verdict—verdict may be amended by the court. A verdict may be amended by the court or construed with reference to the pleadings and evidence in the record.</p> <p>2. Same—when condemnation verdict is properly construed. If a condemnation petition describes the land condemned, by one description as an entirety, and then, by separate descriptions, as portions of lots 1 and 2, a verdict for the portion of “lot 1” described, without mentioning “lot 2,” is properly construed as covering the entire tract, where the number of square feet specified in the verdict corresponds with the number in both portions of lots 1 and 2 and the boundary line given in the verdict includes both portions.</p> <p>3. Bills of exception—rule where record contains no bill <rf exceptions. If the record contains no bill of exceptions showing the evidence heard on the trial, it will be presumed that the evidence was ample to sustain the judgment.</p>

Joseph E. Gary, Judge, presiding. This is an appeal from the Appellate Court for the First District affirming a judgment rendered in the superior court of Cook county, June term, 1899, sustaining a demurrer to appellant’s declaration in an action for damages for fraud and deceit.

<p>Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Kane county; the Hon. Henry B. Willis, Judge, presiding.</p>

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

<p>1. Wills—whether devisee takes afee depends upon whether a less estate is limited. If a devise imposes a personal liability upon the devisee, the devisee takes as a purchaser, but the question whether she takes a fee simple depends upon whether a less estate is limited.</p> <p>2. Same—devise of rents and profits is not always equivalent to devise of fee. A devise of the rents, income and profits of land is not always equivalent to a devise of the fee estate in the land, but only of such estate as by the express words of the will or by operation of law is given to the devisee.</p> <p>3. Same—intention of testator is to he gathered from whole will. The intention of the testator is to be gathered, not from one clause of the will alone, but from a view of the whole will and all its parts.</p> <p>4. Same—rule as to the construction of wills. Such a construction should be adopted, if it can be reasonably done, as will give force and effect to every word and clause of the will; and if a prior clause and a subsequent clause are repugnant, the former should be restrained or modified by the latter.</p> <p>5. Same—will construed as passing life estate to widow. Where a will gives to the testator’s wife “the house and lots in said town in which I now reside, * * * for and during her natural life; also all rents, income and profits arising from all my real estate which I may own (excepting said house and lots) until the eldest one of my children has attained the age of eighteen years, * * * after which my wife shall recover one-third only of the net rents and income of such real estate, the other two-thirds to be paid to and equally divided among my children,” but in a subsequent clause the testator devises “all my real estate to my children by my present wife in equal shares,” the widow takes only a life estate, and not a fee simple title, to one-third of the property.</p> <p>6. Same—express words of limitation not necessary to create less estate than afee. Express words of limitation are not necessary to create a less estate than a fee, since such fact may appear by necessary implication.</p>

<p>Appeals and errors—when Supreme Oourt cannot entertain writ of error. The Supreme Court cannot entertain a writ of error to review a judgment of conviction where there is no assignment of errors in the record.</p>

<p>Writ op Error to the County Court of Cook county; the Hon. R. H. Lovett, Judge, presiding.</p>

Truman E. Ames, Judge, presiding. This is a claim, originally filed on March 20, 1896, in the county court of Clinton county against the estate of Rufus N. Ramsay by the commissioners of the Southern… Held: and marked “held” by the court. Six propositions, to be held as law in the decision of the case, were submitted by appellant upon the trial below, but were marked refused by the court.

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

<p>Í. Charitable institutions—trustees of Illinois Asylum for Insane Criminals have power to appoint treasurer. Under .section 1 of the act of 1889, creating the Illinois Asylum for Insane Criminals, and providing that the asylum shall be under the control of the board of commissioners of the Chester penitentiary and subject to the rules governing trustees of State charitable institutions, and under sections 13, 14 and 16 of the act regulating such institutions, the commissioners of the penitentiary have power to appoint the warden to act as treasurer for Illinois Asylum for Insane Criminals.</p> <p>2. Bonds—when an acknowledgment of bond is prima facie sufficient. Under section 1 of the act relating to official bonds, the acknowledgment of an official bond, though taken before a notary public in the State of Missouri, is prima facie evidence of the execution of the bond, even though the certificate does not show the notary was authorized to take acknowledgments of official bonds under the laws of Missouri.</p> <p>3. In other respects this case is like Estate of Ramsay v. People, (ante, p. 572), the decision of which controls here.</p>

<p>Special assessments—cost of making assessment should not he in-eluded in assessment. Under the act of 1901 it is error to include in a confirmation judgment the cost of making and levying the assessment; nor has a court of review power to strike out the item of cost, which has entered into the assessment as spread, and direct the county court to enter a proper judgment without making a new assessment.</p>

<p>1. Bills and notes—what may be shown under plea of total or partial failure of consideration. Under sections 9 and 10 of the act on Negotiable Instruments it is competent to show, under a plea of total or partial failure of consideration, that the defendant was induced to execute the instrument sued upon by the false and fraudulent representations of the seller as to the value or character of the commodity which formed the consideration.</p> <p>2. Same—when tender of stock is unnecessary. When the stock for which a note is given is entirely worthless there is a total failure of consideration, and it is unnecessary for the defendant in a suit on the note to show return or oiler to return the stock.</p>

Theodore Brent ano, Judge, presiding. This is an action on the case, originally brought on February 6, 1893, by appellee, then a minor, by her next friend, Louis Lieserowitz, against the appellant company to recover damages for an injury received by appellee, and alleged to have been caused by the appellant’s negligence. The injury occurred on January 24, 1893, while the appellee was a minor between twelve and thirteen years of age.

Writ of Error to the Branch Appellate Court for the First District;-—-heard in that court on appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. This is an action on the case, brought by Robert Schmelling, defendant in error, against the Chicago, Burlington and Quincy Railroad Company, and plaintiff in error, the Chicago Terminal Transfer Railroad Company.

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

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Frank Baker, Judge, presiding.