Volume 198 — Illinois Reports

<p>1. Railroads — duty where a train of another company is discharging passengers in street. A railroad company having tracks in a street and actual knowledge that another company had tracks there and used a narrow space between the tracks of the two companies to discharge passengers, is charged with the duty of operating its trains at that place with due regard for the safety of passengers alighting from a train of the other company.</p> <p>2. Trial — token question of negligence is for the jury. Whether the engineer of defendant’s train was negligent is properly left to the jury, under evidence that he saw passengers alighting from the train of another company upon a narrow platform in the street between the tracks of the two companies; that he knew their only exit was across the track on which he was running; that he saw the plaintiff approaching the track but did not slacken his speed, which was from fifteen to thirty miles an hour, nor apply the brake until after the plaintiff was struck.</p> <p>3. Instructions — when instruction is properly refused. An instruction holding that defendant’s engineer had a right to presume that those in charge of the train of another company would observe the custom for suburban trains to avoid stopping at a station to unload passengers when a through train was about to arrive, is properly refused where the engineer testified that he knew the train had stopped and that passengers were alighting.</p>

<p>Mechanics’ liens — when contract sufficiently fixes time for completing work. A contract providing that the contractor shall furnish and set the stone in the building “to top of second floor by July 23, to top of third floor by July 29, and balance so as not to delay roof by August 4,1897,” fixes time for furnishing material and completing work at August 4, 1897, and is not rendered uncertain because the provision for payments fixes the times as “July 17, $1675; July 23, $1000; July 29, $2000; August 4, $1000; when cornice is set $2000; balance at completion.”</p>

Writ of Error to the Appellate Court for the First District; — heard in that court on appeal from the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.

<p>1. Equity — equity has no jurisdiction to entertain bill to cancel forged note. Equity will not take jurisdiction to cancel an alleged forged note or one the execution of which was obtained by fraud, since such facts would constitute an adequate defense in an action at law, although it contains a power of attorney to confess judgment.</p> <p>2. Same — mere convenience of remedy does not justify resort to equity. The mere fact that it may be more convenient to maintain an action or make a defense in equity than at law does not justify a resort to the former jurisdiction, if the remedy at law is adequate.</p> <p>3. Practice — when decree dismissing a bill should make no finding of facts. A decree dismissing, for want of jurisdiction, a bill to cancel an alleged forged note, should make no finding of facts which might prejudice the case if a suit at law should be brought.</p>

Jesse Holdom, Judge, presiding. This is an appeal from the decree of the superior court of Cook county sustaining a demurrer to a bill in equity filed by appellant to enforce the specific performance of a certain contract and dismissing the bill at the cost of appellant.

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

John G. Glenn, Judge, presiding. This is a petition or bill, filed on September 4, 1900, by the appellee, Nancy Brumback, against the appellant, Abby Brumback, and Arthur Brumback, and Thomas E. Burner, for the assignment of homestead and dower in, and for the partition of, about five hundred acres of land in Hancock county, to-wit: The south half of the northeast quarter, and the west half of the south-east quarter, and the south-east quarter of the south-east quarter of…

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

<p>1. Railroads — whether bell or whistle was sounded is a question of fact. If there is a sharp conflict in the evidence ^as to whether a train sounded a bell or whistle when approaching a highway crossing, the finding of the jury, the trial court and the Appellate Court in the negative is conclusive upon the Supreme Court that no bell or whistle was sounded.</p> <p>2. Same — whether failure to give warning misled deceased is for the jury. Whether defendant’s failure to sound a bell or whistle misled plaintiff’s intestate and caused her to drive upon the right of way under the belief that no train was approaching, the view being obscured, and whether, after being upon the right of way, she was guilty, of such negligent conduct as would defeat a recovery, are questions for the jury under proper instructions.</p> <p>3. Negligence — -when question of contributory negligence is for jury. Whether the plaintiff’s intestate was guilty of contributory negligence is for the jury, under evidence that she stopped her horse within a short distance of the crossing and sought by all means in her power to discover if a train was approaching; that she drove rapidly to the right of way and was suddenly confronted with a train coming at high speed, no bell or whistle having been sounded, and that in her excitement she attempted to cross the track instead of stopping or turning back.</p> <p>4. Same — rule whereperson is suddenly placed inperil. If a person, without his fault, is confronted with sudden danger, the obligation resting upon him to exercise due care for his safety does not require him to act with the same deliberation and foresight which might be required under ordinary circumstances.</p> <p>5. Evidence — when the admission of photographs is properly denied. Photographs of the scene of a railroad accident taken nine months after the accident, when the natural surroundings, as shown by the evidence, had changed, are properly denied admission.</p> <p>6. Instructions — when instruction is not subject to criticism. An instruction requiring the jury to find plaintiff's intestate was using due care for her safety “at the time and on the occasion of her being killed,” is not subject to the criticism that it confines the attention of the jury to her exercise of due care only at the precise moment she was struck by the train.</p>

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

<p>1. Bes judicata — doctrine is not limited to things actually litigated. The doctrine of res judicata is not limited to those things which are actually pleaded and litigated, but extends to every other matter properly involved in the litigation which might have been raised and determined therein.</p> <p>2. Same — when claim of easement is barred by foreclosure decree. If a defendant in foreclosure makes no claim to an easement in the premises, such claim is barred after the period of redemption has passed, where the foreclosure decree provides that if the premises are not redeemed the defendant shall be forever barred from all equity of redemption, and all claim in, of and to the premises.</p>

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

Writ of Error to the Appellate Court for the Third District; — heard in that court on writ of error to the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding. This is an action of trespass on the case, brought on April 7,1899, by the defendant in error, a minor, suing by his next friend, Hollis D. Fuller, against the plaintiff in error, who, at the time of the commencement of the suit, was also a minor, but since the trial has attained his majority.

<p>1. Equity — when bill to set aside deed is properly dismissed. A bill to set aside a deed upon the ground of mental incapacity and undue influence is properly dismissed, where all the witnesses agree that while the grantor was old and physically weak when the deed was made, he understood the business in hand and was wholly uninfluenced by the grantee.</p> <p>2. Same — when admission of improper evidence will not reverse. The admission of improper evidence in a chancery case will not reverse if there is sufficient unobjectionable evidence in the record to sustain the decree.</p>

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

<p>Writ of Error to the Circuit Court of Pike county; the Hon. Frank K. Dunn, Judge, presiding.</p> <p>This is an indictment for murder, found by the grand jury of Pike county at the November term, 1900, against the plaintiff in error, William Henry, and one Minnie Henry. Plaintiff in error, William Henry, and Minnie Henry were indicted jointly for the murder of one Charles Jennings on June 18, 1900. The case was tried at the November term, 1901, of the Pike county circuit court. The jury returned a verdict, finding Minnie Henry not guilty, and finding the plaintiff in error, William Henry, guilty, and fixing his punishment at twenty-one years’ imprisonment in the penitentiary. A motion for new trial was overruled, and sentence and judgment were rendered in accordance with the verdict. The present writ of' error is sued out for the purpose of reversing such judgment.</p> <p>The plaintiff in error, William Henry, was the brother-in-law of the deceased Charles Jennings. Alice Jennings, the wife of Charles Jennings, was the sister of plaintiff in error. Minnie Henry was the daughter-in-law of plaintiff in error, being the wife of plaintiff in error’s son, Charles Henry. In June, 1900, plaintiff in error lived in Nebo in Pike county. Charles Jennings lived upon a farm owned by his wife, Alice Jennings, situated about five miles south-west from Nebo, and about the same distance south-east of Pleasant Hill, Pleasant Hill being about five miles west of Nebo. Plaintiff in error owned a farm lying just north of, and adjoining, the farm of Charles Jennings and his wife, situated, as we understand the evidence, upon the road running north-west to Pleasant Hill. Upon this farm, so owned by plaintiff in error and lying north of the Jennings farm, Charles Henry and his wife, Minnie Henry, lived, Charles Henry being a tenant of his father, and apparently working the farm under the direction of his father. There was a small house on the plaintiff in error’s farm on the east side of the Pleasant Hill road, and about a quarter of a mile north or north-west from the house where Jennings and his wife lived on their farm.</p> <p>For some reason plaintiff in error and his sister, Alice Jennings, had not been on friendly terms for several years. He had not spoken to her for three years prior to June, 1900. Some ill-feeling also existed between Alice Jennings and her niece by marriage, Minnie Henry. On Thursday, June 14,1900, some cows, belonging to Charles Henry, strayed into a wheatfield, belonging to Charles Jennings and being a part of the farm, on which he lived with his wife. These cows trampled down or injured the wheat of Jennings, and,were taken np by him and impounded or distrained. Minnie Henry went over to the Jenning's farm after these cows, and, while she was there, some altercation occurred between her and her aunt-in-law, Alice Jennings. Upon-that occasion Mrs. Jennings ordered Minnie Henry to leave her premises, because, as the former says, of abusive language used toward her by Minnie Henry. Minnie Henry swears that Mrs. Jennings called her a vile name, and set a dog on her and drew a revolver on her; but Mrs. Jennings, while admitting that, at the time, she had a stick of wood in her hand, and her dog was by her side, says she did not set the dog on her, nor threaten to shoot her. Whatever may have been the actual fact as to what was said and done on Thursday, June 14, the occurrence of that day was reported to plaintiff in error William Henry, and aroused a feeling of anger in his breast against his sister and her husband.</p> <p>On Saturday, June 16, in the afternoon Charles Jennings and his wife were in Nebo. They were together in a phaeton drawn by two horses. They rode up the main street, which ran north and south, until they came to a street running east and west, when Jennings turned his horses to the west and drove westward. At the corners where he turned to the westward there are two stores, both fronting east, one, owned by a man named Turnbaugh on the north side of the street running west, and the other, owned by a man named Marion and located on the south side of the street running west. Plaintiff in error and his wife were at that time upon the porch of the store of Turnbaugh. When Jennings and his wife passed to the westward plaintiff in error saw them. He came down from the porch and ran toward the buggy or phaeton, calling upon Jennings to stop. The wife of plaintiff in error, standing by, caught him by the sleeve, and tried to restrain him, begging him to let them go. In her effort to stop her husband she tore the sleeve of his shirt. He replied, “I won’t let them go.” He tore himself loose from his wife, and hollered, “Hold on there, you damned son-of-a-bitch»” He was seen to stoop to the graveled street, as if reaching to pick up a rock, and followed some little distance to the west in the direction of the buggy or phaeton. As he followed, he used oaths, and-exclaimed “I’ll see you. I’ll get you. Go, God damn you, I’ll get you yet.” Jennings drove on, and stopped at the house of a man, named Franklin, where he remained some fifteen or twenty minutes, and then went to Pleasant Hill, reaching there late in the afternoon. When plaintiff in error found that Jennings refused to stop when he called to him, he finally returned to the store of Turnbaugh. which he had left in the manner already stated.</p> <p>While Charles Jennings, who is shown by the evidence to have been a weakly or sickly man and to have weighed about one hundred and thirty-five pounds, was in Pleasant Hill, he bought ten cents’ worth of cartridges, and, when asked by some one, if he was going to kill anybody, said “No,” but that “he intended to defend himself if he was attacked.” Charles Jennings then referred to the occurrence, which had taken place just before in Nebo, and said that he was the person, whom William Henry “was after.” One witness says that Jennings stated to him that he did not know what was the matter with the plaintiff in error, unless some one had been telling him lies. He also said that it was not necessary for him and plaintiff in error to have any trouble, and made this remark to the person with whom he was talking: “But you know, when Bill goes at a man, he wants to go to cut or shoot,” and the person, to whom he was talking, replied, “Yes, that’s Bill.”</p> <p>On the next day, Sunday, June 17, the deceased, Charles Jennings, remained at home. The plaintiff in error on Sunday morning went down to the farm occupied by his son, Charles Henry. The proof tends to show that he did not then see Charles Henry, and returned to his home in Nebo. On Monday morning the deceased Charles Jennings, having some wheat to sell, sent the same early in the morning to Pleasant Hill in a wagon. A little later, and between seven and eight o’clock, he started to Pleasant Hill in a phaeton, drawn by two horses, to look after the sale of the wheat, which he had so sent forward. His wife, Alice Jennings, was in the buggy or phaeton with him, 'desiring to take a ride to Pleasant Hill. On the same Monday morning, the plaintiff in error came down from Nebo with a horse and buggy to the farm, occupied by his son Charles Henry and the latter’s wife, Minnie Henry, lying, as above stated, just north of the Jennings farm. As Jennings and his wife drove towards the Charles Henry farm, where in a part of the yard plaintiff in error had hitched his horse and buggy, a meeting took place between the deceased Charles Jennings and the plaintiff in error, which resulted in the shooting of the former by the latter. As to what occurred in the roadway between the deceased, Charles Jennings, and the plaintiff in error before the death of the former, there is a conflict in the testimony.</p> <p>Alice Jennings, in her direct examination, when on the stand as a witness, testified as follows: ■ “As we got in sight of Charley Henry’s house, we saw Bill Henry come out of the house, in the road stooping over as if he were picking up something. I could not tell just at the time what he was picking up. He came on down the road to meet us, more of a run than a walk, I would call it. He would run a step or two and then walk fast. He came about eighty steps down the road to meet us. As he came in front of the horses, he threw a rock at us out of his right hand, grabbed one of the horses by the bridle bits, saying ‘God damn your hearts to hell; you damned black sons-of-bitches.’ He walked backward cursing us all the while. My husband was pleading, ‘Now, Bill, I don’t want to have any trouble with you; if you will only listen I will explain. ’ No, he would not listen. My husband came over that four or five times; I don’t know how many times, until we got in front of Charley Henry’s house, and then he stopped the horses. He let loose of the bridle bits, ran back and grabbed the lines out of my husband’s hands, and my husband said, ‘Bill, if you will only listen, I will explain.’ He said, ‘Where did them cows get on your corn at?’ My husband said, ‘They never got on my corn, they got on my wheat. ’ Bill says, ‘Where in hell is your wheat?’ My husband says, ‘A little patch upon the hills by the corn.’ He says, ‘Oh, hell; bring me my shot-gun; be God damned if I don’t shoot you both.’ I looked up to see who would bring the gun, and saw Charley Henry’s wife in the yard in front of the house. She went in and got the shot-gun, and brought it to the buggy. He takes the gun with his left hand, dropped the lines with his right hand. As he dropped the lines, I grabbed them, and then he stepped back, and then he fired the shot-gun. The horses sprang forward and run, and I heard him say, ‘Hold on there, God damn you, I want to wind both of you up.’ My husband fell back behind me, gave two groans and never spoke a word. I kept the horses in the road until I got to Mrs. Guthrie’s, and there I saw Mrs. Guthrie standing on the porch looking down the road. I called her to help me. She came out to the road, and we ran the horses into the bank next to the tree, and the tongue of the buggy broke, and we managed to get them tied. As I stepped out of the buggy I noticed smoke behind me. I noticed my husband was on fire. I ran into the house as Mrs. Guthrie ran to the field for her husband. I got a bucket of water and dashed it against my husband’s face, and when Mrs. Guthrie came I asked her to do something for me, but my husband was dead.”</p> <p>The plaintiff in error testified as follows: “I tied my horse. Minnie came to the door and I asked her where Charley was, and she said he was down in the field plowing. I told her I wanted to see him a bit, and I turned around and started and got into the road when I saw Charley Jennings and his wife coming. I walked on down until I got even with them, and I stepped up to speak with Charley. I put my hands on the wheels of the buggy. I asked him what he put up Charley’s cows for. He said because they got into his wheat. I said, ‘Where is your wheat?’ and he said, ‘Up on the hills by the corn,’ and I said, ‘There was no such a damned thing.’ She said, ‘Shoot him — shoot the God damned son-of-a-bitch.’ She grabbed the lines out of his hands, and he reached down and got a revolver and fired. I ran around in front of the horses, and they after me. I got to my bugfgy and called to Minnie to bring me my gun. When I got to my buggy I dodg'ed around that, and she brought me the gun. I wheeled around with the gun. I saw the revolver pointed at me and I fired.” When asked why he fired, he said, “Because he was making an attempt to shoot me.”</p> <p>Minnie Henry says that plaintiff in error came to the place and tied his horse at the gate-post in the southwest corner of the yard, around which there was no fence at that time, the post being at the corner of the horse lot and the horse being headed south-east and hitched to a buggy-post standing just out of the track north-west. She says that her husband was in the cornfield southwest of the house half a quarter away, and, when William Henry inquired for him, she told him where he was. She says that the plaintiff in error did not come into the house, and was tying the horse when he asked where Charley was. She states that at that time she was in the front door of the house facing west, and that the house contained one room; that Mr. Henry started to the field where Charley was, and that the usual way to go was down the big road and then down to the field. She also stated that, when the plaintiff in error started, she turned back “to my dishes.” She further proceeds to testify that she did not notice any one coming up the road, but, as her table was a couple of steps only from the door, she heard some one say something, and thinking it was plaintiff in error calling her, she stepped to the door and saw Mr. and Mrs. Jennings in the buggy and plaintiff in error between the wheels at the side of the buggy. Her testimony is as follows: “I stepped to the door and saw Mr. and Mrs. Jennings in the buggy and Mr. Henry between the wheels at the side of the buggy.' I heard Mr. Henry say, ‘What in the hell did you put Charley’s cows up for?’ Mr. Jennings said, ‘Because they were in my wheatfleld. ’ Mr. Henry says, ‘Where is your wheat?’ He says, ‘Up on the hill by the corn. ’ He said, ‘They were not any such a damned thing.’ Mr. Jennings said, ‘They were too.’ Mrs. Jennings said, ‘Shoot the damned son-of-a-bitch,’ and grabbed the lines out of his hands. Then Mr. Henry dashed in front of the horses. When she took the lines out of his hands, he grabbed around for the revolver. I can’t tell just which way. I saw him pick the revolver up, and Mr. Henry jumped and went in ahead of the horses and got out of the way. Just as he jumped Mr. Jennings shot. When be got in front of the horses, he hollered for me to bring the gun. He run right ahead of the horses, Mrs. Jennings driving right along after him. They wheeled the horses in after him as he got to the house, and I came there with the gun, and Mr. Henry wheeled round and shot as Mr. Jennings was ready to shoot again. I met him with the gun just back of his buggy. The distance from the door to where I met him was eleven yards.”</p> <p>Mrs. Jennings further says, “After we got up to Guthrie’s place, while we were trying to get the horses reconciled, my brother passed. Mrs. Guthrie says, ‘For God’s sake, stop and help us.’ He went by us as fast as the horses could go. * * * At the time Henry let loose of the bridle bits and came back and grabbed the lines out of my husband’s hands, the buggy was cramped to the left. He stopped the buggy a little bit south-west from the house. There is a window in the south side of Charley Henry’s house.” The buggy in question was in the court room at the time of the trial and the witness, going to the buggy, said: “That is the hole the shot-gun made after the shot went through my husband. It is ten inches from the bottom of the seat up to the hole. The hole is sixteen inches from the right side of the cushion. At the time the shot was fired the buggy was cramped to the left. William Henry stood at the time he fired on the right side of the buggy and stepped so, back from being between the wheels. * * * One shot was all I heard on that occasion of any kind. I know it was a shot-gun. It was only shot off once. I saw and heard a shot-gun fired. I never heard more than one shot fired during the whole time. I am sure of that. * * * I am not positive that he took a revolver with him on that occasion. As William Henry came down the road to meet us he was stooping over and picking up something. * * * He was in the track of the road when I first saw him stoop, south of the little walnut tree. We were still down the road and were afraid of him. He came on down toward us carrying something in his hand. He would run a step or two and then walk fast. My husband slowed the team up, walking them in a slow walk. The road is level along there. It frightened the horses a little when he throwed. He did not curse any until he grabbed the horses and threw the rock. When he threw the rock it scared the horses some. They jumped a little to the left. It was a fractious team. * * * Henry took hold of the right horse with his right hand. * * * We were about twenty or twenty-five steps north of the Hunter shanty, maybe not so far. * * * He held the horses by the bits until he walked backwards up there. Me and Charley were sitting in the buggy while he was holding the bits. I don’t know where the revolver was. I never seen it. We then owned a revolver. He had it six or seven years. I knew where it was kept. I did not look for it that morning. I suppose it was in the place where he always kept it. * * When he threw the rock the horses jumped a little to the left, but they did not get the buggy out of the track at all. Charley had hold of the lines. William held to the horses by the bits, and the team just walked on. William led the team by the bits eighty steps, just walking along there. He was walking out to one side a little past the horses’ heads, on the east side. He walked backwards. He took the right-hand horse by the bridle bits by the right hand, walking backwards and cursing us. He walked eighty steps that way. The horses were not fretting at that time. Charley was holding the lines. The whip was in the socket. - * * He kept the buggy in the track eighty steps, and he walked on the side of the track. When he got there, he stopped. That was north of the little ditch. * * He stopped the horses and let loose of the bits. Me and Charley was sitting there in the buggy, Charley hold of the lines. Charley was on the east side and me on the west side. He let go the horses’ bits and ran quickly back to the buggy. As he grabbed the lines, the horses turned to the west. It might have been half a second between the time he let go the bits and the time he grabbed the lines. If we had gone on we would have gone over him. Did not want to hurt him. * * "x" Charley never said nothing or done nothing after he seen he could not reason with him. We were sitting in the buggy quietly. Charley Henry’s wife brought the gun. She brought the gun to him in the road six or seven steps from the little walnut tree. When we saw her coming with the gun, Charley and I sat quietly in the buggy. I don’t think Charley made any effort to shoot. We saw the gun coming down the hill. William was standing between the wheels, and she came near enough to hand him the gun. He took the gun with his left hand, and let loose of the lines with his rig'ht hand. I grabbed them the instant he let loose. * * * j ¿on’t know that Charley had the revolver in his hands is the reason he did not take the lines. * * * I do not know what Charley was doing while I grabbed the lines. * * * When William took the gun he took a step or two back.”</p>

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

F.Bookw alter, Judge, presiding. This was a petition in the circuit court of Vermilion county by appellants, against the board of supervisors of that county, to compel it to create a new town under the provisions of section 1 of article 3 of the act of 1895 as amended. (3 Starr & Cur. Stat. p. 3919.) An answer was filed to the petition, and a demurrer thereto by the petitioners was overruled and the petition dismissed. Petitioners prosecute this appeal.

Marcus Kavanagh, Judge, presiding. This was an action for breach of covenant. The declaration sets out that a certain lease was executed by and between the city of Chicago, appellant, and William J. English, appellee, on the 4th day of June, 1892, by which said English leased to the city of Chicago a portion of the second floor of a certain building owned by him in the said city, to be used as an office for the waterworks of said city, at a rental of $1000 per annum.

<p>Writ op Error to the Appellate Court for the Second District; — heard in that court on appeal from the Circuit Court of McHenry county; the Hon. C. S. Donnelly, Judge, presiding.</p>

<p>1. Special assessments — six days’ notice of public hearing is sujfident. Section 7 of the Improvement act of 1897, providing that the improvement hoard shall fix a day for public consideration of the proposed improvement which shall not be less than ten days after the adoption of the resolution, does not require that ten days’ notice shall be given, but only a reasonable notice; and six days’ notice is not unreasonable.</p> <p>2. Same — when provision of section 7 of act of 1897 is complied with.</p> <p>The provision of section 7 of the act of 1897, requiring notices of public hearing to be mailed “to the person who paid the general taxes for the last preceding year on each parcel fronting on the improvement proposed,” is complied with where the notices were mailed in May, 1900, to persons who paid the general taxes in 1899, which were levied for the year 1898.</p> <p>3. Same — variance must be willful and substantial to constitute a valid objection. Under section 9 of the Improvement act of 1897 (Laws of 1897, p. 105,) an alleged variance between the recommendation of the board and the ordinance, on the one hand, and the amended resolution for the improvement on the other, which inflicts no injury upon the property owner, must appear to be willful or substantial in order that it may be a valid objection to confirmation.</p> <p>4. Same — when assessment roll is not defective. An assessment roll for grading and macadamizing a street is not defective because it fails to describe the improvement district by boundaries, as required by section 39 of the act of 1897, (Laws of 1897, p. 115,) where, after the commissioner was appointed but before the roll was filed, the legislature amended said section 39 (Laws of 1901, p. 106,) by limiting the necessity for describing the district to sewer improvements. (Yaggy v. City of Chicago, 194 Ill. 88, distinguished.)</p> <p>5. Same — when ordinance provides for a local improvement, and not mere repairs. An ordinance providing that a macadamized road-bed shall be scraped, cleaned, filled and rolled so as to present an even surface, and that a new coating of macadam six and one-half inches thick shall be placed thereon, provides for a local improvement and not merely for repair of the street, since it is not necessary to constitute a local improvement that the old material be entirely removed and replaced by material of a different character.</p>

<p>1. Actions and defenses — when bringing of attachment does not bar other remedies. The bringing of an attachment suit by a mortgagee to recover the proceeds of a sale of the mortgaged cattle, which suit is dismissed, upon the written stipulation of all the parties, without prejudice, does not preclude the mortgagee from claiming the fund upon interpleader by the commission company.</p> <p>2. Mortgages — acknowledging and, recording of chattel mortgage not necessary as between the parties. If a mortgagee takes possession of mortgaged chattels before any other right or lien attaches, his title under the mortgage is good against everybody, even though the mortgage is not acknowledged and recorded or the record thereof be irregular.</p> <p>3. Same — possession by mortgagee's agent is sufficient. If an agent of the mortgagee takes possession of the chattels by the latter’s order such possession is sufficient, and it is not necessary the'property be removed from the premises if the agent has full control.</p> <p>4. Same — there is a change of possession when the mortgagee takes control. There is a change of possession of mortgaged chattels whenever the mortgagee assumes control of the property, although the property is not removed from its location.</p> <p>5. Same — what sufficient possession of mortgaged cattle by mortgagee. If the mortgagee of cattle sends its agent to the ranch where they are pastured, and the agent notifies the mortgagor that he has come to take possession, they agreeing that the agent shall employ the former boss to look after them, who thereafter receives all his orders from the agent, who remains openly in possession, directs shipments and exercises sole control over the cattle, the latter are in the mortgagee’s possession.</p>

<p>1. Wills — a will cannot be set aside upon grounds not alleged in bill. If a bill to set aside a will alleges Want of mental capacity and undue influence as grounds for relief, proof that'the testatrix did not know the contents of the will would not authorize a decree for the complainants.</p> <p>2. Same — what sufficient proof that testatrix knew the contents of her will. Uncontradicted testimony that when the will was executed the testatrix said, in answer to questions by a subscribing witness, that the will was as she wanted it and that she had read it, is sufficient proof that she knew its contents.</p> <p>3. Same — burden of proving undue influence is upon contestants. The burden of proving undue influence in the execution of a will is upon the party alleging the same.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. A. N. Waterman, Judge, presiding.</p>

Philip Stein, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a decree of the superior court of Cook county in favor of appellee.

J. F. Hughes, Judge, presiding. This is a special action on the case, based upon section 132 of the Criminal Code, and brought by James Walden, the appellee, in the city court of Mattoon on September 1, 1900, against the appellants, George Kizer, David Kizer and John Kizer, to recover treble the sums of money, claimed to have been lost to the appellants at gaming by Frank Walden, appellee’s brother, at various times within the periods specified in the declaration.

<p>1. Railroads — section 12 of act relating to operation of railroads does not apply to switch yards. Section 12 of the act relating to operation of railroads, as amended in 1885, (Laws of 1885, p. 231,) requiring an engineer approaching a grade crossing of another railroad to stop his train and “positively ascertain that the way is clear” before proceeding, does not apply to switch yards consisting of an intricate system of tracks, some crossing each other, all used for switching purposes and belonging to the same company.</p> <p>2. Same — when violation of rule is not negligence per se. The violation of a rule of a stock yards company requiring a certain track to be used by out-going trains exclusively is not negligence per se on the part of an engineer using such track to enter the yards, where he never had notice of the rule, and there is evidence tending to show that the rule was not enforced but was disregarded habitually, with the knowledge and acquiescence of the company.</p> <p>3. Appeals and errors — Supreme Court does not weigh evidence in passing on refusal of peremptory instruction. If there is evidence that the plaintiff in a personal injury case was exercising due care for his safety, the fact that such evidence is contradicted does not authorize the Supreme Court to weigh the evidence, and thus determine that the trial court erred in refusing an instruction to find for the defendant.</p> <p>4. Same — when Supreme Court cannot say there is no evidence of negligence. If there is evidence that the defendant did not give signals and did not have the engine headlight lit, and it is conceded that the defendant did not send a man ahead, according to the usual custom, to ascertain whether the crossing was clear, the Supreme Court cannot say there was no evidence of negligence, and that the jury should have been instructed to find for the defendant.</p> <p>5. Evidence — evidence of environment and usual manner of conducting business is competent. In an action for personal injuries, evidence with reference to the location of buildings, tracks and cars, and of the usual manner of conducting the defendant’s business, is competent, as shedding light upon the. acts and conduct of parties.</p> <p>6. Instructions — when instruction does not limit plaintiff’s use of care to moment of injury. An instruction authorizing a verdict “if the jury believe, from the evidence, that the defendant is guilty of the acts of negligence charged in the declaration, and that the injury to the plaintiff complained of resulted therefrom while he was in the exercise of ordinary care for his own safety,” does not limit such care to the moment of injury.</p> <p>7. Same — when instruction on subject of plaintiff’s negligence is not objectionable. An instruction holding that the question whether the plaintiff was guilty of negligence which contributed to his injury and without which the accident would not have occurred is for the jury, is not subject to the objection that it authorizes a recovery notwithstanding plaintiff’s own negligence contributed to his injury, if it did not so far contribute as that without it the injury would not have occurred.</p>

<p>1. Minors — child under seten not chargeable with contributory negligence. Up to the age of seven years a child is regarded, as a matter of law, incapable of such conduct as shall constitute contributory negligence. (Chicago City Railway Co. v. Tuohy, 196 Ill. 410, followed.)</p> <p>2. Trial — when question whether place of injury was a street is for the jury. Whether or not the place of injury was in a public street is for the jury, where, although never platted as a street, the testimony tends to show that an arrangement was entered into by the city, the railroad company and certain property owners whereby certain streets were extended, embracing the place of injury, and that the same was in use as a street.</p> <p>3. Instructions — when instruction does not refer jury to declaration to determine material allegations. An instruction authorizing the jury to find for the plaintiff if they believe, from the evidence, the defendant was guilty of the negligence “charged in the declaration,” does not authorize the jury to determine the legal effect of the pleadings, but only to consider the narrations of fact to determine whether the same have been proved.</p>

<p>, 1. Conveyances — if there are opposing equities, the one first acquiring legal status will be sustained. If the equity of the wife in land held in the husband’s name is first in time, first in right and is first consummated by a conveyance vesting her with the legal title, that title will be sustained.</p> <p>2. Same — both parties must participate in fraud to avoid conveyance at suit of creditors. Under the Statute of Frauds, in order to set aside a conveyance upon the ground that it was made to hinder and delay creditors, it must appear that both parties participated in the fraud, as the mere fact that the conveyance may have delayed creditors does not bring the case within the statute. •</p> <p>3. Same — when wife’s title will be upheld as against husband’s creditors. If at the time of the conveyance by a husband to his wife of the legal title to land it was equitable and just that the title should bé placed in her, and there were no liens of the husband’s creditors upon the land at the time, the wife acting without intent to delay or hinder creditors, her title will be upheld, as against creditors of her husband, in case of his subsequent bankruptcy.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.</p> <p>This is an appeal from a decree of the superior court of Cook county dismissing a bill for specific performance filed by appellant to compel appellee to convey to him the legal title to certain lots situated in Wilmette, Cook county,-Illinois.</p> <p>It appears from the bill that appellee, a national bank doing business at Claremont, New Hampshire, was the owner of the lots in controversy, and in 1898 placed them in the hands of Edwin M. Clark, a real estate agent in Chicago, for sale; that in October, 1901, an offer of $6000 cash was made for the lots by the appellant and shortly thereafter refused by appellee, with the suggestion to Mr. Clark, “If you have a party who would offer $7000 cash for this property the offer would be worthy to submit to my directors; any figure under this would be useless;” that on.November 11,1901, appellant made an offer to Clark of $7000 cash, which offer was by him submitted to appellee; that on November 19, 1901, appellee caused the following letter to be written:</p> <p>“E. M. Clark, Esq., Chicago, Ill.:</p> <p>“November 19, 1901.</p> <p>“Dear Sir — I fulfilled my promise as stated in my last letter, namely, that I would present to my directors your client’s offer of $7000 cash for the Wilmette property which the bank owns, and I now report to you the action that my directors took upon this proposition. It is doubtless useless to write the same, because you say your party states that he will pay $7000 and not a cent more, but I will give you the proposition as delivered by my directors, and you can present it to him or not, as you think best.</p> <p>“It was voted that if we could realize, net, $7000 for the Wilmette property on or before January 1 next, that we would sell the same. This means that we are to receive $7000 free of all commissions, taxes and all other charges that may stand against the property. By this I mean that he would assume all taxes that have accrued for this year, also pay your commission, and make a settlement, if any is needed, with Messrs. Lyman & Patton, and with Mr. Patterson, in whose hands the property has been for sale. The records will show that there are no back taxes due, but there will be some taxes to pay on January 1, and my directors’ decision contemplates that the purchaser will assume these.</p> <p>“We took this property in December, 1897, and it cost us $6243. We have never charged any interest to the account, but the charges in the way of assessment and taxes for improvements upon the property has carried the price np so that it now stands us something over $9400. So you see that selling at $7000 we would be losing, then, something over $2400, saying nothing about the interest on our money. ’</p> <p>“My directors will not be disappointed if you do not take the property, as about half of them are opposed to selling it at this price anyway, and we all feel that there is going to be a time soon now when all that shore property is going to be of much greater value. But of this you ought to be a better judge than we, and you can also judge whether it will be worth while to submit the proposition that I have made, to your client.</p> <p>Yours truly, q-eo. A. Tenney, Cashier”</p> <p>—that the contents thereof were made known to appellant, and he, upon investigation, ascertained that all commissions, including a settlement with Lyman & Patton and Mr. Patterson, would be §350; that on November 25 he caused the sum of §100 to be paid to Clark and took his receipt therefor, in the following form:</p> <p>“Nov. 25, 1901.</p> <p>“Received of Ferris A. M. Gibbs the sum of one hundred ($100) dollars as part pay toward the purchase of lots three (3) to ten (10), both inclusive, and thirteen (13) to eighteen (18), both inclusive, in block seven (7), in L. L. Greenleaf’s re-subdivision of blocks twenty-nine (29) to thirty-four (34), Wilmette village, being three hundred feet south front on Lake avenue and four hundred feet north front on -Forest avenue, between Twelfth and Thirteenth streets, Wilmette, for the price of seventy-three hundred and fifty ($7350) dollars, subject only to the general taxes levied after the year 1900.</p> <p>Edwin M. Clark, Agent.”</p> <p>Mr. Clark, on giving the above receipt, notified the appellee that the deal had been closed upon its terms. Appellee had, at a meeting of its board of directors on November 25, 1901, before being notified of the sale, decided to withdraw its offer above set out, and its cashier, on the afternoon of that day; telegraphed Mr. Clark to that effect, and followed the telegram by a letter of withdrawal. When appellee received the notification from its agent of the acceptance of its offer, its cashier, Mr. Tenney, at once went to Chicago for the purpose of investigating the sale, and while there the receipt above set out was filed for record in the recorder’s office of Cook county by the appellant, it not appearing that the appellee v/as familiar with the contents thereof; that Mr. Tenney shortly returned to New Hampshire, and on December 3, 1901, the following letter was written by him to Mr. Clark:</p> <p>11E. 31. Clarh, Esq., Chicago, Ill.: “Dec- 3’ 1901'</p> <p>“Dear Sir — At the meeting of the board of directors, held on Monday last, it was decided to let our Wilmette property go at $7000 net, as per my letter of November 19, and we have authorized Lyman & Patton, of Chicago, to cause to be executed a contract of said sale, which same will embrace the conditions under which said sale was made, and upon the signing of which we will be ready to go ahead with our part of the transaction. You will doubtless receive due notice from Messrs. Lyman & Patton to this effect. ,Yora truly,</p> <p>Geo. A. Tennet, Cashier.”</p> <p>On receipt of this letter Messrs. Lyman & Patton delivered the abstract of title to appellant, who caused the same to be brought down to date, from which it appeared there were unpaid special assessments amounting to $1463.14, which were a lien upon said premises; that appellant refused to take said lots subject to said special assessments and appellee declined to pay them out of the purchase price; that during the month of December appellant tendered to appellee the sum of $7250 and demanded a deed to the premises, and appellee refused to accept the tender or do anything further in the matter, whereupon appellant filed his bill for specific performance. Appellee appeared and filed a general demurrer to the bill, which was sustained by the chancellor, and a decree entered dismissing the bill for want of equity.</p>

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

<p>1. Taxes — grant of power to tax will be strictly construed. In determining the meaning of a grant of power to levy taxes, strict construction will be given to that which is relied upon to confer the power, but the construction will be liberal in all that tends to protect the tax-payer.</p> <p>2. Same — when power of county to levy an additional tax under vote of people is exhausted. If the preamble to the county board’s resolution to submit the question of a tax levy in excess of seven and one-half mills.on the dollar recites that the purpose is to pay existing debts of the county, other than bonded, amounting to “about the sum of $100,000,” authority to levy such excess tax, conferred by an affirmative vote of the people upon the question, is exhausted when substantially $115,000 excess tax has been so raised.</p> <p>3. Same — essentials of county board's order for excess tax. It is essential to a good and valid order of the county board for an excess tax levy, that it shall disclose to the voters either the length of time the levies at the excessive rate shall continue or the amount to be raised by such excess levy.</p> <p>4. Same — county clerh, cannot enlarge resolution of county board. If the county board’s resolution recites the amount to be raised to meet the county indebtedness as “about the sum of $100,000,” the. fact that the county clerk, in printing the ballots, specifies that the additional tax shall be levied “until a sufficient amount is raised to meet the indebtedness of the county,” does not enlarge the resolution so as to confer power to levy excess tax until all county indebtedness is paid, notwithstanding it greatly exceeds $100,000.</p>

<p>1. Appeals and errors — ;freehold is involved in proceeding to establish highway. The interest acquired in the lands of others by proceedings taken by highway commissioners to establish a highway is a perpetual easement, and hence an appeal from a certiorari proceeding quashing the order of the commissioners vacating an old road and laying out a new one involves a freehold.</p> <p>2. Same — Appellate Court'has no power to review case involving freehold. The amendment in 1879 (Laws of 1879, p. 222,) of section 88 of the Practice act removed, by implication, all semblance of authority in the Appellate Court to review cases involving a freehold which might have been implied from section 88 as originally passed in 1877, and hence no force attaches to the provision of section 90 of the Practice act providing for the review by the Supreme Court of judgments of the Appellate Court in such cases.</p> <p>3. Same — practice where Appellate Court assumes jurisdiction in freehold case. If the Appellate Court assumes jurisdiction of a case involving a freehold, the Supreme Court, on further appeal, must reverse the Appellate Court’s judgment for want of jurisdiction, and remand the cause with directions to dismiss the appeal.</p>

<p>Appeals and errors — right of railroad company to perpetual easement in street involves a freehold. A freehold is involved in a suit by a railroad company to perpetually enjoin a village from interfering with the complainant’s right to maintain its railroad in a certain street, which right was conferred by ordinance and is alleged to constitute a perpetual easement in such street for railroad purposes.</p>

<p>1. Statutes — effect when journal fails to show that published act was properly passed. A statute which bears the signatures of the proper officers of both houses and of the executive will be presumed to have become a law pursuant to the requirements of the constitution; but this presumption is overcome if the journal fails to show that the act was passed in the mode prescribed by the constitution.</p> <p>2. Same — act of April 2j, 1899, relating to election of judges in Cook county, never became a law. The act approved April 24,1899, entitled “An act to provide for the election and time of election of judges of the superior court of Cook county,” (Laws of 1899, p. 152,) was changed, after its passage by .the Senate, at some time unknown, and never having been returned to the Senate nor passed by it as changed did not become a law.</p> <p>3. Constitutional law — legislature cannot extend term of judges of superior court of Cook county. The term of office of the judges of the superior court of Cook county is fixed by the constitution, and the legislature has no power to extend or diminish such term by changing the time for their election. (Const. of 1870, art. 4, sec. 28.)</p> <p>4. Same — legislature has no power to change time of election fixed by constitution. Under sections 12 and 14 of article 6 of the constitution the term of office of the judges of the circuit court of Cook county is six years, and the time for their election is fixed as the first Monday in June, 1873, and every six years thereafter, and the legislature cannot lawfully provide for an election at a different time or for a different term.</p> <p>5. Same — right of legislature to increase number of judges of superior court of Cook county. Since the constitution does not fix the time for holding the election for the office of judge of the superior court of Cook county, the legislature may at any time increase the number of such judges, when warranted by the population, and may also fix the time when the additional judges shall be elected, provided the term of office fixed by the constitution is not changed.</p> <p>6. Same — right of legislature to increase number of circuit judges in Cook county. The legislature has power, under the constitution, to increase the number of judges of the circuit court of Cook county when the population warrants such an increase, but the additional judges must be elected at the time fixed by the constitution.</p> <p>7. Same — act of 1901, increasing number of judges in Cook county, is unconstitutional. The provisions of the act of May 10,1901, in so far as they authorize the election of judges of the circuit court of Cook county for terms of about seven months and judges of the superior court for terms of about two years, are unconstitutional.</p> <p>8. Same — invalid portion of act of 1901 cannot he stricken out. The invalid portion of the act of 1901, which provides that the terms of office of the additional judges of the superior court of Cook county shall expire in 1904, cannot be stricken out so as to allow the constitutional provision as to such term to control and thus render the act valid, since the provision of the act requiring elections to be held in November, 1904, and every six years thereafter, could not be executed as intended by the legislature.</p> <p>9. Mandamus — when courts will compel holding of election. If officers disregard their duty to give notice of an election, courts will by mandamus compel the holding of the election; but the neglect of such officers does not change the term of the office, and the same will continue as from the expiration of the former term.</p>

<p>Benefit societies — effect of suicide by insured “whether sane or insane.” If the agreement between a benefit society and a member is that the company shall not be liable on the benefit certificate if his death shall result from his own suicidalvact, whether sane or insane, the society is not liable where the insured voluntarily takes poison with the purpose of ending his life and with the knowledge that such will be the effect; and it makes no difference that he is moved thereto by an insane impulse or that he is inca-' pable of forming a “rational intent.”</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. ElBridge Hanegy, Judge, presiding.</p> <p>This is an action of assumpsit, brought on January 6, 1898, in the circuit court of Cook county by the appellee, Fredericka Stern, administratrix with the will annexed of the estate of Marcus Stern, deceased, against the appellants, Sidney Loeb and August Gatzert, partners under the firm name of Loeb & Gatzert, upon the contract hereinafter mentioned. A general and special demurrer was filed to the original declaration and sustained. Thereupon, on April 28, 1898, appellee filed an amended declaration consisting of tyjo counts, the substance of which is hereinafter stated. The appellants filed a plea of general issue, and, by leave of court, certain additional pleas. The additional pleas were demurred to, and the demurrers thereto were sustained, so that the case was tried upon the issue, made upon the amended declaration and the plea of the general issue thereto. At the close of appellee’s evidence appellants moved the court in writing to exclude the plaintiff’s evidence from the jury, and to instruct the jury to find the issues for the appellants, tendering an instruction in writing to that effect; but the court overruled the motion and refused to give the instruction, to both of which rulings defendants below excepted. Thereupon appellants introduced their evidence. Counsel for the defendants below submitted to the court and asked the court to give twelve instructions, but all of said instructions were refused by the court, and exception was taken to such refusal. No instructions were asked on behalf of plaintiff below. At the close of the evidence the court instructed the jury in writing as follows: “The court instructs the jury in this case to render a verdict in favor of the plaintiff, and to assess the damages in the sum of $1022.73,” to which counsel for appellants excepted. Thereupon," the jury returned a verdict in accordance with the instruction of the court, and, after overruling motions for new trial and in arrest of judgment, the court rendered judgment upon the verdict. An appeal was taken to the Appellate Court where the judgment of the circuit court has been affirmed. The present appeal is prosecuted from such judgment of affirmance.</p> <p>The facts are substantially as follows: On February 20, 1893, one G. D. Glaser, acting for Marcus Stern of Philadelphia, Pennsylvania, purchased from appellants as co-partners under the firm name of Loeb & Gatzert, a principal note and certain interest notes, and a trust deed, securing the same, upon real estate in Cook county, executed by F. D. and C. D. Hess. The principal note was dated November 28, 1892, signed by Frederick D. and Caroline D. Hess of Chicago, and was for the sum of $6500.00 payable to their own order five years after date, with interest at six per cent payable semi-annually, and by them endorsed and made payable to the order of Marcus Stern. At the same time, ten interest notes of the same date, each for the sum of $195.00 were executed and endorsed in the same manner payable, respectively, on the 28th day of May and the 28th day of November in each of the years from 1893 to 1897, inclusive. The trust deed, securing these notes, was executed to the appellant, August Gatzert, as trustee.</p> <p>At the time the notes and mortgage were so sold, and as a part of the consideration of the purchase, the following contract was executed by appellants and delivered to Stern, to-wit:</p> <p>"Chicago, Feb. 20,1893.</p> <p>11 Mr. Marcus Stern, No. 943 N. Eighth St., Philadelphia, Pa.</p> <p>"Dear Sir — ¥e herewith hand you first mortgage of F. D. and C. D. Hess, dated November 28, 1892, for the amount of $6500.00, which, with accrued interest to date, amounts to $6588.69, for which we received check from Mr. G. D. Glaser, of this city, on your account. We hereby guarantee that the trust deed, securing the payment of principal and interest notes, which we hand you herewith, is a first lien upon the property covered in said deed, and that the title to said property is good in said F. D. and O. D. Hess, and agree to protect you from any loss, which might arise from any defect in said title. We also guarantee you the completion, free from all mechanics’ liens, of the four-story stone-front store and fiat building, which is now in process of completion upon said premises, and which is known as No. 6504 State street. We will also see to it that the taxes are paid on said property during the term of loan, and that the building will remain insured for ah amount of no less than $6500.00 during said time, which insurance policies we will hold as collateral security of the loan for your benefit. We also hold abstract of title and agree, furthermore, to take this mortgage back at par and accrued interest, less one per cent commission, provided you give us thirty days’ notice to such effect in writing. "Very respectfully yours,</p> <p>Loeb & Gatzert.”</p> <p>More than three years later, on August 10, 1896, a default then existing in the payment of the interest which fell due on May 28,1896, Marcus Stern caused to be served upon appellants the following notice, to-wit:</p> <p>“Atlantic City, N. J., 8/7/96. “Mess. Loeb &.Gatzert, Chicago, Ill.</p> <p>“Gentlemen — -In accordance with the provision in that respect, contained in your -writing of February 20,1893, wherein you agree to take back the note of $6500.00 and trust deed of Frederick D. and Caroline D. Hess, at par and accrued interest, less one per cent commission, I do hereby give notice that I desire to avail myself of the benefits of said provision, and do hereby notify you to take back said note and trust deed in accordance with the.terms of said provision, thirty days after receipt of this notice by you, and I hereby authorize G. D. Glaser to receive the amount of said note and interest less com-</p> <p>mission, for me.</p> <p>“Truly yours,</p> <p>Marcus Stern. ”</p> <p>Appellant Gatzert testified that the following conversation took place at the time of the service of said notice by Glaser: “I told him that we would not buy it back,</p> <p>because at the time he bought this mortgage I told him I would make this agreement simply because his father-in-law was coming to the World’s Fair in 1893, and he wanted to look at the property then, and if it didn’t suit him I would then take the mortgage back — we would take the mortgage back. For that reason there was an understanding in the nature of our agreement, and I told him we were not compelled to take back that mortgage. Mr. Glaser said, ‘Well, I simply serve you with this notice. ’ That is all he said. He said, ‘I have nothing to say, I serve you with this notice.” Appellant Loeb testified as follows: “I remember the conversation with Glaser which Mr. Gatzert had that time. He came in' and presented that letter from Mr. Stern, and said that he wanted his money. I was. present and we were very much surprised to see him come in after owning the mortgage for three years. We told him that that wasn’t the intent of that letter; that he told us at the time he bought the mortgage that he would not ask it of us, but that he was buying it for his father-in-law (Stern); that his father-in-law would be here during the World’s Fair, and he would take him out and show him the property, and we agreed to take it back, if his father-in-law did not like it at the time. Instead of that he keeps the mortgage for three years. We told him that we would not buy it back. He said that he would see about it, and went out of the office. He wanted his money. That is all he said.”</p> <p>After the service of this notice and the conversations above detailed, Glaser took the notes and trust deed to Mr. Strauss, an attorney, with instructions to proceed to foreclose it.</p> <p>No demand was made upon Loeb & Gatzert on or after the expiration of the thirty days provided in the above notice. Subsequently, on September 23, 1896, Marcus Stern died, and appellee was appointed administratrix with the will annexed of his estate.</p> <p>On or about January 22, 1897, appellee, as such administratrix, filed a bill to foreclose the trust deed in question, the makers thereof being in default in the payment of interest. No notice was given to appellants of the filing of this bill; but appellant, Gatzert, who was the trustee in the trust deed, was made a party defendant to the foreclosure proceeding. Appellant Loeb of the firm of Loeb & Gatzert was not made a party defendant.</p> <p>Appellant, Gatzert, appeared and filed his answer in the foreclosure suit on March 9, 1897, and afterwards a decree of sale was entered. The property was bid in on behalf of appellee, and on June 30,1897, a deficiency decree was entered against the mortgagors, and in favor of appellee, for §1089.67. Execution was duly issued on July 13, 1897, and was given to the sheriff to execute on the same day. On October 11,1897, the sheriff returned the writ “no property found,” having made demand upon both execution debtors, left with them a copy of the writ, and notified them to file a schedule. Thé sheriff returned “no schedule filed.” No part of the deficiency decree has been collected. Appellee commenced the present suit against the appellants upon the contract already set out to recover the amount of the deficiency decree less one per cent of the amount of the notes aforesaid. .Appellants defended upon the following grounds: (1) That no time being mentioned in the original agreement wherein the security might be returned, such security should have been returned within a reasonable time, and that three years after the making of the contract was not a reasonable time; (2) that no demand upon the appellants or tender of the securities was ever made on or after the expiration of the thirty days provided in the letter of August 7, 1896; (3) that the appellee waived her demand against the appellants and elected to retain the securities and foreclose same in the ordinary way; (4) that, if the appellee sought to hold the appellants to the terms of the letter of February 20, 1893, and demand and tender were properly made, yet the appellee pursued no remedy known to the law as against said appellants in her subsequent dealings with the securities; (5) that the letter of February 20, 1893, constituted a contract contrary to the provisions of the Anti-option Statute, and was therefore void.</p> <p>Upon the trial the court refused to permit the appellants’ witnesses to testify as to the conversations had at the time of the writing of the letter dated February 20, 1893; between Mr. G-atzert and Mr. Glaser, which testimony was offered for the purpose of showing what the parties at the time considered a reasonable time within which to exercise the option given to Marcus Stern in' which to return the securities.</p>

<p>1. Evidence — what does not show that trustee obtained loan for another party. The fact that the trustee in a deed of trust, from whom the grantors obtained the money secured by the deed, charged them a commission on the loan and on the extension, does no.t show that he obtained the loan for another party, where the notes were made to his order and he received payments of interest, etc., without anything to show that he was not the lender.</p> <p>2. Mortgages — purchaser of trust deed must, to protect his rights, give notice to grantor. One purchasing notes and a trust deed securing them must give notice to the grantor if he desires to preserve his rights under the trust deed against payments made to the former holder. (Schultz v. Sroeloioitz, 191 Ill. 249, distinguished.)</p>

<p>1. Evidence — when deposition is admissible under stipulation. Under a stipulation providing that depositions taken in a previous foreclosure case may be read in evidence by either party, and that “either party shall have the right to use such additional evidence as either may desire and as shall be held competent under the pleas therein,” objections may be made to the “additional” evidence but not to the depositions.</p> <p>2. Same — when objection that deposition was not properly identified is not well tahen. An objection that a deposition read in evidence was not properly identified as the one which counsel had stipulated might be read from the record of a former foreclosure case then on file in the Appellate Court is not well taken, where the transcript of the record sent to the Appellate Court in the former case, and which contained the deposition read in evidence, was identified by the circuit clerk.</p> <p>3. Same — when rule that grantor’s testimony cannot impeach notary’s certificate does not apply. The rule that the grantor’s testimony, although slightly corroborated, that the deed was a forgery is not sufficient to overcome the notary’s certificate, does not apply where the notary testifies that he does not know the grantor and had never seen him, and that while the seal and signature to the certificate of acknowledgment were genuine, yet he had at one time prepared a certificate of acknowledgment in blank for the grantee to some instrument,</p> <p>4. Sureties — when surety is released. The extension of the time of payment to a specified date and the surrender of collateral security, both being done without the knowledge or consent of the surety, releases the latter, even though the payee is induced to act by reason of the principal’s forgery of the surety’s name to a deed purporting to convey the surety’s farm to the principal, but of which deed the surety was ignorant.</p> <p>5. Same — when surety is released although contract is illegal. If a contract to extend the time of payment and to surrender collateral security, made without the knowledge or consent of the surety, is executed, the surety is released notwithstanding the contract is illegal. (Galbraith v. Fullerton, 53 Ill. 126, and Silmeyer v. Schaffer, 60 id. 479, distinguished.)</p>

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

Charles E. Fuller, Judge, presiding. This is a suit in chancery commenced in the circuit court of McHenry county to set aside as a cloud upon their title to certain real estate located in said county, two quit-claim deeds purporting to be made by the appellants to William Ryan, a deed from William Ryan to Fred J. Bunker, and a trust deed from Fred J. Bunker to J. S. Rogers, given to secure the payment of two promissory notes aggregating the sum of $3900, signed by Fred J.…

<p>Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

H. VanSellar, Judge, presiding. This is an appeal from the decree of the circuit court of Edgar county ordering the partition of certain lands according to the prayer of a bill to partition the same, filed by Ida M. Boatman against the appellants. Reed Boatman died in 1892, leaving a will, which was duly admitted to probate in Edgar county in the same year.

' 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. Philip Stein, Judge, presiding.

Joseph E. Gary, Judge, presiding. This is an action of assumpsit, brought .by the appellants in the superior court of Cook county, to recover upon an insurance policy for $5000 issued by the appellee upon the life of Robert A. Helliwell in their favor, as co-partners of said Helliwell.

<p>1. Deeds — deed in grantee’s possession is presumed to have been delivered. If a duly executed deed is in the grantee’s possession there is a presumption that it has been delivered, which can only be evercome by clear and convincing proof.</p> <p>2. Same — when evidence tends to show that deed was delivered. A deed from mother to daughter will be regarded as delivered, although unrecorded, where the notary who drew the same testifies that he delivered it to the daughter, whose husband testifies that he after-wards saw it in her possession, that it remained in her possession for some six years, and that he saw it in a box in their room three days after her death; and where the mother admits she signed some paper at the notary’s office, but claims she took possession of it then and afterwards destroyed it with her daughter’s consent, although it is proved that after her daughter’s death she went to the notary’s office and inquired for the deed.</p>

The State Council of the Catholic Knights of Illinois is a corporation organized under the provisions of an act to provide for the organization and management of corporations, associations or societies for the purpose of furnishing life indemnity or pecuniary benefits to widows, orphans, heirs, relatives and devisees of deceased members, or accident or permanent disability indemnity to members thereof, approved June 18, 1883, carrying on business in the town of Douglas, in…

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

<p>Creditors’ bills — when decree setting aside deed as in fraud of bankrupt's creditors is sustained. A decree setting aside a deed from a third party to the son of a bankrupt and ordering the property to be conveyed to the trustee as part of the bankrupt’s estate, is sustained by proof that the deed was made by such third party as part of the consideration demanded by the bankrupt for her signature to a deed to other property which had been sold on execution against the bankrupt and purchased by such third party, who was unable to make a re-sale of the property without getting the bankrupt’s signature to the deed therefor.</p>

<p>Appeal from the County Court of DeKalb county; the Hon. R. S. Farrand, 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. Axel Chytraus, Judge, presiding.</p>

<p>1. Special assessments — when description is not uncertain. That a provision in a sewer ordinance for tile-pipe slants, to be placed at the intersections of certain streets, fails to state whether they are to be placed in the center or at the side of such streets does not render the description uncertain, since it will be inferred that they are to be placed in the center of such streets.</p> <p>2. Same — when provision for house slants is not unreasonable. A provision in a sewer system ordinance for two house slants for each corner lot, — one for each street upon which it abuts, — is not unreasonable.</p> <p>3. Same — city may fix boundaries of sewer district. As an incident to its power to provide a sewer system a city may establish the boundaries of the district which shall be permitted to drain into the sewer; and the failure to assess property not within the boundaries of the sewer district and not entitled to the benefit of the drains is no ground for objection to confirmation.</p>

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

G. W. Thompson, Judge, presiding. This is a bill, filed on December 20, 1899, in the circuit court of Knox county by the appellants, Rachel Ann Heaton, widow of Edward Smith Heaton, deceased, and Thomas C. Heaton, Ella Graver, Lina W. Himes, and Eva Collinson, children and only heirs-at-law of said Edward Smith Heaton, against the appellee, Homer Gaines, for the purpose of redeeming 280 acres of land in said county from an alleged mortgage in the shape of an absolute deed,…

Elbridge Hanecy, Judge, presiding. This is an action of assumpsit, commenced by attachment by the appellant, against the appellee, in the circuit court of Cook county, on the ground that appellee was a non-resident of the State of Illinois. The attachment writ was returned not found as to the appellee, but was levied upon the equitable interest of the appellee in certain real estate situated in the city of Chicago.

<p>Appeal from the County Court of Stephenson county; the Hon. W. N. Cronkrite, Judge, presiding.</p>

<p>1. Appeals and errors — when finding by Appellate Court is not a finding of fact. If the Appellate Court, upon reversing a judgment in favor of the defendants in a suit on a note, recites in its judgment that it finds “that the note sued upon is upon its face” a joint note of a corporation and its general manager, such finding is not one of fact, but of law, as to the legal effect of the instrument.</p> <p>2. Bills and notes — effect of use of pronoun “1” or “we” in corporation note. Whether the pronoun “I” or the pronoun “we” is used in the body of a note, if it is signed by the corporation acting by its officer or officers, and bearing the corporate seal, it is the obligation of the corporation.</p> <p>3. Same — when note is the obligation of a corporation alone. A note reading, “Sixty days after date I or we promise to pay,” etc., and bearing the corporate seal, and signed in the name of the corporation, “per C. I. Williams, Sec., George J. Williams, Gen. Mangr.,” is not the joint note of the corporation and the general manager, notwithstanding the word “per” is not prefixed to his signature -nor his signature joined to the secretary’s by the word “and. ”</p>

<p>1. Special assessments — right of improvement board to change resolution at public hearing. Under section 8 of the Local Improvement act, as amended in 1901, (Laws of 1901, p. 104,) authorizing the board of improvements, at a public hearing, to change the scheme of improvement without a further public hearing, provided the change does not increase the cost of the improvement more than twenty per cent, the board may, under like conditions, make a change decreasing the cost.</p> <p>2. Same — unreasonableness of ordinance not considered solely with reference to objector’s property. The unreasonableness of an ordinance for a sewer system embracing a number of blocks will not be considered solely with reference to the property of the objector, which consists of unsubdivided tracts of ñve and ten acres lying in the district, where they are surrounded by territory in the proposed district which is subdivided into lots, blocks, streets and alleys. 3. Same — when amount assessed as benefits will not be disturbed. The fact that unsubdivided tracts of land used for truck farms will not be benefited by the construction of a sewer system to the amount assessed while used as truck farms does not authorize disturbing the amount of such benefits, where the evidence shows the same to be reasonable considering the chief value of the tracts, which is for use and sale as city lots.</p>

<p>Appeals and errors — effect of refusal of a peremptory instruction asked at close of all the evidence. The refusal of a peremptory instruction for the defendant, asked at the close of all the evidence, does not authorize the Supreme Court to weigh the evidence in deciding whether or not it justified the verdict, but merely preserves the naked legal question whether there is any evidence in the whole record which fairly tends to prove the plaintiff's case.</p>

A. H. Chetlain, Judge, presiding. This is a proceeding in chancery by Lucas Brodhead, in the superior court of Cook county, to foreclose two trust deeds in the nature of mortgages. The property against which foreclosure is sought is in litigation in another proceeding.

<p>Appeal from the County Court of Cook county; the Hon. Orrin 1ST. Carter, Judge, presiding.</p>

<p>Appeal from the Circuit Court of DeKalb county; the Hon. Charles A. Bishop, Judge, presiding.</p>

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

William Hartzell, Judge, presiding. Appellant brought this suit in the circuit court of Madison county for the use of one Smith, to recover the value of shares of capital stock owned by him in a corporation previously consolidated with another corporation forming the appellee, which was made defendant.

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

<p>1. Appeals and errors — when decree will not be reversed. If the verdict of the jury, under the evidence, is the only one which could properly have been given without it being th'e duty of the court to set it aside, a decree entered in accordance with such verdict will not be reversed.</p> <p>2. Same — when the admission of incompetent evidence will not reverse. In a suit to set aside a will for mental incapacity of the testator it is error to allow a transcript of an unsuccessful proceeding for the appointment of a conservator for the testator; but such error will not reverse where there is sufficient competent evidence to sustain the chancellor’s finding.</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 Henry county; the Hon. F. D. Ramsay, Judge, presiding.

Joseph E. Gary, Judge, presiding. This case comes into this court upon appeal from the Appellate Court for the First District. The plaintiff, Eleanor B. Weeks, recovered a verdict in the superior court of Cook county against the Chicago and Northwestern Railway Company for §10,000. Upon this verdict judgment was rendered, and upon appeal to the Appellate Court the judgment was reversed without re-, manding the cause.

<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. John Gibbons, Judge, presiding.</p>

<p>1. Trial — when motion to instruct for defendant is waived. If the defendant offers evidence in its behalf after the court has overruled its motion for peremptory instruction such motion is waived, and if not renewed at the close of all the evidence the question of the sufficiency of the evidence to sustain the verdict is not preserved for review as a question of law.</p> <p>2. Appeals and errors — bill of exceptions must show affirmatively that error intervened. To overcome the presumption that the trial court ruled correctly in refusing to permit a witness to answer questions the bill of exceptions must show affirmatively that error was committed, and it is necessary that what it is claimed the answers would have been be made to appear before it can be determined that it was prejudicial error to exclude them.</p> <p>3. Same — correct abstract instruction may be given. It is not error to give an instruction stating an abstract rule of law if it has no tendency to mislead the jury.</p> <p>4. Damages — elements which may be considered in estimating pecuniary loss. In estimating the pecuniary loss to the widow and minor children of the deceased the jury may consider the value of the future support and maintenance of the widow and minor children, and the value of the services of the deceased in the attention to and care, superintendence and education of the minor children, of which they have been deprived by his death.</p>

<p>1. Actions and defenses — what must appear in an action against several as joint obligors. Under section 35 of the Pratice act, and the common law, in an action against several as partners or joint obligors, if the joint liability is denied by part of the defendants by verified plea the burden is upon the plaintiff to show the joint liability of all the "defendants, including those who failed to file pleas, unless he amends and dismisses the suit as to such defendants as are not shown to be jointly liable with the others.</p> <p>2. Same — the evidence must show joint liability, even in absence of plea. In an action against several as joint obligors the evidence must show joint liability of all the defendants to entitle the plaintiff to judgment, even in the absence of a plea denying joint liability.</p>

Theodore Brentano, Judge, presiding. Silas W. Robinson, the appellee, brought this action in assumpsit in the superior court of Cook county to recover of the village of Park Ridge, the appellant, the balance of §2968.85 which he claimed the village owed him for constructing sidewalks in said village. The case was tried by the court without a jury by agreement and on a stipulation of facts.

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

Charles G. Neely, Judg'e, presiding. This was a bill of interpleader by the National Union, a fraternal beneficiary association, bringing into court the parties to this appeal for the purpose of having their conflicting claims to the benefit which became payable on the death of F. H. Marty, settled. Marty held a benefit certificate, in which the association promised to pay to Ms wife, Agnes Marty, $2000 upon the death of the member in good standing.

<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 Appellate Court for the Third District; — heard in that court on writ of error to the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.

<p>1. Appeals and errors — when chancellor’s finding will not be disturbed. The chancellor’s finding in favor of the defendants to a bill to set aside certain conveyances upon the ground of fraud, undue influence and want of mental capacity will not be disturbed, where the evidence is conflicting and the chancellor saw the witnesses and heard them testify.</p> <p>2. Fraud — absence of motive is to be taken into consideration. In a proceeding to set aside conveyances upon the ground of fraud, the absence of a motive for deception should be considered.</p> <p>3. Same — when conveyances should not be set aside for fraud or undue influence. The chancellor’s finding that certain conveyances made by complainant’s ward should not be set aside, will be upheld under evidence that the grantor was greatly indebted to the grantee and was hopelessly insolvent; that his grantee had advanced him money for several years to keep up his business; that all the property was taken at fair prices, but was totally insufficient to make up the grantee’s claim; that all of the property, with the exception of statutory exemptions, might have been taken by the grantee by legal process, and that although the grantor was sick at the time and very weak, he understood the nature of his act, and, while depressed over the transaction, said it was the best he could do, and acknowledged the instruments as his voluntary act.</p>

Charles A. Bishop, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a decree of the circuit court of Cook county construing the will of George 1ST. Hubbard, deceased, which was in the following form when filed for probate: “Hoeeertown, Mich., Jany 3d/189S. “In the name of God, amen, — I George N. Hubbard, being of sound and disposing mind and memory, calling to mind the frailty and uncertainties of human life, and…

Frank Baker, Judge, presiding. The appellants filed their bill in equity in the circuit court of Cook county, alleging that they were members in good standing of the First Welsh Methodist Episcopal Church of Chicago (sometimes called the “Bethany Church”) and had a beneficial interest in its property, and upon grounds set up in the bill as amended asked the court to declare a trust in favor of .said church in certain property then claimed, occupied and used by the appellee…

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

<p>1. Appeals and errors — no direct appeal lies to Supreme Court in case involving construction of a statute. The Supreme Court has no jurisdiction of a direct appeal upon the ground that the construction of a statute is involved, where its validity is not attacked.</p> <p>2. Same — consent of appellee does not give jurisdiction of subject matter. That the appellee does not challenge appellant’s statement that the case involves the question of the validity of a statute and the construction of the constitution does not give the Supreme Court jurisdiction of a direct appeal, where such statement is not borne out by the record.</p>