Volume 200 — Illinois Reports

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

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

<p>1. Receivers—when order appointing receiver cannot be collaterally attacked. If the court has jurisdiction of the parties and of the subject matter of a foreclosure proceeding, its order appointing a receiver and directing the application of the rents and profits cannot be collaterally attacked upon the ground that it erroneously directed the rents and profits collected during the period of redemption to be paid to the holder of the certificate of purchase.</p> <p>2. Lis pendens—party accepting a deed pendente lite is bovmd by the decree. One accepting a deed for the equity of redemption after the foreclosure sale and while the premises are in possession of a receiver under an order of court directing him to collect and pay the rents and profits during the period of redemption to the holder of the certificate of purchase, has no greater rights than his grantor, and is as much bound by the decree as he is; nor is it necessary that the proceedings be stayed until he be made a party by name and served with notice, or be otherwise brought into court.</p>

<p>1. Quo warranto—when objection that information was filed without leave of court is waived. An objection that an information in the nature of quo warranto was filed without leave of court is waived by voluntarily entering appearance and pleading to the merits.</p> <p>2. Instructions—party procuring instruction is bound thereby. If defendants to a quo warranto proceeding are permitted by the court to justify by introducing the drainage record of the organization of their district and procure an instruction that the findings of jurisdictional facts in the record ar & prima facie true, they cannot insist, upon appeal, that the court should have instructed the jury that such findings were conclusive unless impeached for fraud.</p> <p>3. Drain a&e—petition provided for in act of 1901 must be filed in town cleric's office. The petition provided for in the drainage act of 1901 (Laws of 1901, p. 158,) is required to be presented to the town clerk" and filed in his office, and it is not sufficient to leave the same in. the office of petitioner’s attorney until the time the order organizing the district is entered.</p> <p>4. Same—two municipalities cannot exercise authority over same territory for drainage purposes. If a city assumes jurisdiction of a creek or ditch within its corporate limits and improves the same for drainage purposes, that portion of the creek or ditch cannot be included in another drainage district organized under the act of 1901. (Laws of 1901, p. 157.)</p> <p>5. Same—scope of amendment of 1901. The amendment of 1901 of the Drainage act was not designed to bring into a drainage district organized thereunder, ditches and outlets of a city or village which have been constructed and improved by special assessment and are in use by said city or village for drainage purposes.</p> <p>6. Same—ditch made by special assessment is not voluntarily made. A ditch and its branches, made by special assessment, cannot be said to have been voluntarily made, within meaning of the act of 1901.</p>

<p>1. Judicial sales—fixtures cannot be levied upon and sold as personal property. Fixtures being attached to and a part of the realty cannot be levied upon by the sheriff as personal property and thus deprive the debtor of the right of redemption granted by statute.</p> <p>2. Practice—application to assign additional errors is addressed to discretion of court. An application to the Appellate Court to assign additional errors is addressed to the discretion of that court, and its action cannot be reviewed unless its discretion has been abused.</p>

<p>1. Wills—when residuary clause of will becomes inoperative. A residuary clause conditioned wholly upon the fact of the testator surviving his wife becomes inoperative if the wife survives.</p> <p>2. Same—when lapsed devises pass as intestate estate. Lapsed devises pass as intestate property to the heirs-at-law of the testator where no other disposition thereof is made-in the will.</p>

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

<p>1. Judgments and degrees—an order of probate court obtained by fraud may be set aside at later term. An order of the probate court obtained by fraud upon and without notice to an interested party may be set aside upon petition at a subsequent term.</p> <p>2. Same-—when party is entitled to have order admitting will to probate set aside. If the parties petitioning for the probate of a will knowingly and intentionally omit the name of one of the heirs-at-law, so that she has no notice of the order admitting the will to probate until too late to take an appeal, she may, under an allegation that if she had had notice she could have made a good defense to the petition for probate, maintain a petition at a subsequent term to have the order of probate set aside, notwithstanding she has filed a bill in chancery to contest the will and its probate.</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. E. F. Dunne, Judge, presiding.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.</p> <p>This is an intervening petition, filed by the appellant, David Strauss, claiming to be the holder by assignment of the certificate of sale hereinafter mentioned, issued in a certain cause in the circuit court of Cook county, wherein Nathan Becker was complainant and Berman Friend and others were defendants, and wherein certain of the defendants, to-wit, Emma Engel, Goldie Cohen and Joel J. Jackson, filed a cross-bill against said Berman Friend. The petition asks the court to order the master in chancery, who made the sale under the decree hereinafter mentioned, to execute a master’s deed of the property to the petitioner, David Strauss. Upon a hearing, appellant’s intervening petition was dismissed for want of equity. The present appeal is prosecuted from such decree or order of dismissal.</p> <p>In the cross-suit, so begun in said cause of Becker v. Friend et al., by the filing of a cross-bill by Emma Engel, Goldie Cohen and Joel J. Jackson, as above stated, a decree was entered on January 20,1891, and a supplemental decree on June 29,1891, and a further supplemental order or decree on November 14, 1892, in pursuance whereof one William Fennimore Cooper, a master in chancery, sold the east twenty-five feet of lot 3 in block 42 in school section addition to Chicago in Cook county, Illinois, on February 25, 1893, to Sophia Solomon for $6404.43, she being the highest and best bidder. The master thereupon issued his certificate of sale or purchase, certifying that said Sophia Solomon, her legal representatives or assigns, would be entitled to a deed of the said premises on May 26, 1894, unless the same should be redeemed according to law. This certificate of sale was assigned by Sophia Solomon to the intervening petitioner, David Strauss. The certificate of sale and the assignment' thereof to Strauss appear to have been recorded in the recorder’s office of Cook county on March 5, 1893. The decree or decrees, under which the said sale was made, came under the consideration of this court in the case of Friend v. Cohen, 160 Ill. 185, and the decree of the circuit court was there affirmed.</p> <p>The original intervening petition of the appellant, David Strauss, asking for the execution of the master’s deed to him, was filed on February 16, 1900. That petition was answered by the master, who disclaimed all interest in the matter, and stated that some time in the year 1894 he was requested by the solicitor of appellant to make a deed in pursuance of said certificate of sale, but declined to do so, because he had been notified by Gabriel Norden, solicitor for other parties in interest in the cause, that the said premises had been redeemed from the master’s sale at the sheriff’s office of Cook county; and that he, the master, then and there notified appellant’s solicitor that, if the property had been redeemed, he could not issue to him the master’s deed. On March 23, 1900, the appellant, David Strauss, filed an amended and supplemental intervening petition, in which the appellant charged that he had investigated and inquired concerning the rendition of the judgment, under which such redemption had been made with the sheriff of Cook county, and had found “that the entire proceedings both in the obtaining of said judgment and the issuance of said execution and the attempted redemption thereunder, are wholly fraudulent and void, and that the same were taken with a preconceived intention, on the part of the said cross-complainants and their attorney and others interested with them, of harassing and defrauding your petitioner in securing a deed to said premises by virtue of the sale heretofore made by the said master, as' aforesaid.” The amended and supplemental petition further states, that the said cross-complainants, Emma Engel, Goldie Cohen and Joel J. Jackson, executed a judgment note, dated February 26, 1894, to the order of Gabriel J. Worden, for the sum of §1280.00; that thereafter on February 28, 1894, judgment by confession was entered upon said note in favor of said Wbrden in the superior court of Cook county for the amount due thereon, together with interest and costs, and an execution issued and filed with the sheriff; that, on May 23, 1894, the sheriff returned said writ no part satisfied; that on said May 23, 1894, an alias execution was issued and filed with the sheriff, and there was endorsed thereon an assignment, together with the certificate of the clerk of said superior court that said judgment was on May 23, 1894, assigned to Caroline Tuckhorn, the appellee herein. Under said judgment and execution the sheriff on May 23, 1894, levied on all the interest of said Emma Engel, Goldie Cohen and Joel J. Jackson in said premises; that the sheriff, by virtue of said writ and levy, on June 19,1894, sold at public vendue said property for the sum of §7084.23, to Caroline Tuckhorn, said sum being the amount of redemption money, interest and costs to the day of sale, and that he issued a deed therefor to the said Caroline Tuckhorn, etc. The intervening petition further charges, that the execution of the judgment note was without any good or valuable consideration therefor.</p> <p>Caroline Tuckhorn, the appellee herein, filed an answer to the amended and supplemental petition of the appellant; and in her answer she sets up the master’s sale, as aforesaid, to Sophia Solomon for $6404.43; that the master distributed the proceeds of sale, paying to Sophia Solomon, as assignee of Berman Friend, the amount of the decree and interest, to-wit, $6124.20; that said master’s report of the sale was on March 11, 1893, approved by the court; that on February 26, 1894, Engel, Cohen and Jackson, owners of the equity of redemption, executed said judgment note above described to said Worden for legal services; that judgment was entered upon said note; that Worden on May 23,1894, assigned his judgment to Tuckhorn; that Tuckhorn, as assignee of said judgment, sued out an alias execution,, and placed it in the hands of the sheriff; that the sheriff levied upon the premises under said execution, as already stated; that Tuckhorn paid to the sheriff the sum of $7042.03, the amount for which the premises had been sold at the master’s sale with interest at the rate of eight per cent per annum from the date of the sale to the date of the redemption; that a certificate of redemption was duly issued by the sheriff and recorded; that the sheriff duly advertised the time and place of the sale of the premises, so levied upon by him under such alias execution, and sold the premises at public sale to Caroline Tuck-horn on June 19, 1894, for $7084.23, and executed a deed to her of the same date conveying the premises to her. The answer of the appellee further states that Sophia Solomon, upon such redemption being made by Caroline Tuckhorn, was entitled to the amount due upon said decree, and that the sheriff was ready to pay over the said amount to her, and has always been and is still ready to pay over to Sophia Solomon, or her assigns, the sums of money coming to her as aforesaid; that David Strauss had not up to October 15, 1894, any right or interest in said decree or in said premises. The answer denies that said Strauss is entitled to a deed to said premises, or has any interest therein, and further denies that the redemption was made for the fraudulent purpose of clouding the title of the petitioner. The answer of Tuckhorn further avers that said Strauss is not the bona fide holder of said certificate, but that, if he had become such owner, it was after said Tuckhorn had become the owner of the property through the sheriff’s deed executed to her; that she has been in the lawful possession of the premises since the execution of the deed to her by the sheriff. The answer further sets up that more than five years had passed after the period of redemption when David Strauss filed bis petition; that she, Tuckhorn, took the proper steps to redeem the property as a judgment creditor, and petitioner was aware that appellee received a. sheriff’s deed on June 19, 1894.</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>The following is a statement of the material facts in this case as made by the Appellate Court:</p> <p>“The Oakland Cemetery Association 'filed its bill in the superior court against Louise Boeger et al. for an accounting as to the proceeds of the sale of certain lands therein described, and the specific performance of an alleged contract of sale by said Louise Boeger to one William Rauguth of a certain two hundred and forty acres of land, which contract, it was charged, had been assigned to said cemetery association. The defendants answered the bill, specifically denying the equities claimed, and the cause was referred to a master to take testimony and report. After much testimony had been taken the complainant and Louise Boeger agreed upon a settlement, in pursuance of which Louise Boeger paid the association $2500 in cash, receiving in return therefor a conveyance of one acre of land and an agreement that the said suit should be dismissed, which was done the 2d of March, 1901. The dismissal was entered upon the filing of the following stipulation:</p> <p>“‘I hereby enter ray appearance as additional counsel for the complainant on this second day of March, 1901.</p> <p>N. H. Hanchette, of Counsel.’</p> <p>“ ‘It is hereby stipulated by and between the parties to the above entitled cause that said suit may be dismissed without costs to either party.</p> <p>February 20, 1901.</p> <p>The Oakland Cemetery Ass.,</p> <p>£cORP. SEAL. ]</p> <p>By William Ratjguth, Prest.</p> <p>Attest: Minnie Dietzel, Secy.</p> <p>N. H. Hanchette, of Counsel for Compl’t.</p> <p>Thatcher & Grifeen, Sols, for Defendants.’</p> <p>“Thereafter, upon the same day, under leave of court, the following written paper was filed in court:</p> <p>1 ‘ ‘And now comes the complainant and moves the court to set aside and vacate the order of dismissal this day entered in above case. Chester Firebaugh,</p> <p>Ossian Cameron,</p> <p>James J. Kelly,</p> <p>Solicitors for Complainants’</p> <p>“Upon the same day it was ordered that the motion to vacate the order of dismissal of said cause be continued.</p> <p>April 8, 1901, an intervening petition was filed in said cause by Ossian Cameron, James J. Kelly and Chester Firebaugh, appellants, none of whom were parties to the said cause, setting forth the making, at the date thereof, of the following agreement:</p> <p>“ ‘Chicago, August 2, 1900.</p> <p>‘ ‘ ‘This article of agreement, made and entered into on this second day of August, A. D. 1900, by and between the Oakland Cemetery Association, a corporation, and William Rauguth, parties of the first part, and Ossian Cameron and Chester Firebaugh, parties of the second part, witnesseth as'follows, to-wit:</p> <p>“ ‘Whereas, the said parties of the first part have a certain dispute or litigation with one William Boeger, Louise Boeger, his.wife, Louis Boeger, his son, and one Fulton H. Sears, in regard to the rights of the first party hereto in and to all of the following described real estate, to-wit: The west half (W. i) of the north-east quarter (N. E. i) and the north-west quarter (N. W. 1) of section twenty (20), all in township thirty-nine (39), north of range twelve (12), east of the-third principal meridian, situate in the county of Cook and State of Illinois; and whereas, it is necessary for the first party hereto, in order to obtain what the first party hereto claims to be his rights in and to all of said described real estate, to litigate the same with the said Boegers and the said Sears; and whereas, it is necessary for the first parties hereto to have attorneys and counsel to aid in and about prosecuting said litigation to obtain the rights and interests of the first parties hereto in and to said premises:</p> <p>“ ‘Now, therefore, it is hereby stipulated and agreed that the said parties of the first part hereto do hereby employ, engage and retain the said Ossian Cameron and the said Chester Firebaugh as the attorneys of the first parties hereto, to prosecute the said litigation; and it is hereby agreed that the said first parties hereto will, from time to time, advance and pay whatever costs or expenses may be necessary in and about the prosecution of the said litigation; and it is further hereby agreed that the said second parties hereto shall receive as their compensation for their services in and about the prosecution of said litigation on behalf of the first parties hereto, from the first parties hereto, one-third of whatever is realized or obtained as the result of any such litigation, or if any settlement is made pending any such litigation, then the second parties hereto shall receive one-third of whatever amount is obtained or received as a settlement of said matters in litigation. The fees of the second party herein are contingent upon the result of said litigation, as above expressed, they to receive one-third, as aforesaid, of the avails of said litigation, or of any settlement which is made in the case. All expenses and costs of said litigation, as aforesaid, to be advanced and paid by the first parties thereto.</p> <p>1 ‘ ‘It is understood that in case any settlement had in this case results in the first parties hereto, or either of them, obtaining the said lands and premises above set out, then the second parties hereto shall receive, from time to time, one-third of the benefits, avails and net earnings of said business.</p> <p>“ ‘Witness our hands and seals this second day of August, A. D. 1900.</p> <p>Oakland Cemetery Association,</p> <p>By William Ratjguth, Pres. [SEAL.]</p> <p>Minnie Dibtzel, Secy. [seal.]</p> <p>William Rauguth, [seal.]</p> <p>Ossian Cameron, [seal.]</p> <p>Chester Firebaugh. [seal.]</p> <p>“ ‘James J. Kelly is hereby employed as associate counsel in above case on same terms as above expressed, and is to receive in addition to, or besides what Firebaugh.and Cameron are to receive, one-sixth of the proceeds of above obligation, less a sum equal to the costs and expenses of said case.</p> <p>September 21, 1900. Oakland Cemetery Association,</p> <p>By William Rauguth, Pres.'</p> <p>“By the petition and affidavits in support thereof it was set forth that the petitioners had rendered services to the complainants, as solicitors for them in said suit, to the value of <¡¡>20,000.00; that the Oakland Cemetery Association and William Rauguth are now, and were each at all times mentioned in the petition, totally insolvent and have no effects or property out of which any debt of any kind could be collected; that the defendants to said bill have at all times known that the petitioners had a written agreement with the complainants, by which they, the petitioners, were to receive one-half the proceeds of said litigation; that by collusion between the complainants and defendants N. H. Hanchette was employed to appear as counsel for said complainants and consent to the dismissal of said bill without notice to or knowledge by petitioners. That said dismissal was so made for the purpose of defrauding petitioners out of that compensation to which, under said agreement, they were lawfully and equitably entitled.</p> <p>“The defendants demurred to said petition, which demurrer was sustained and the suit dismissed, the' court making the following finding: ‘The court being fully advised in the premises, finds that the complainant herein, for the purpose of defrauding said Chester Firebaugh, Ossian Cameron and James J. Kelly out of their fees as solicitors, made said stipulation to dismiss this suit without notice to said Firebaugh, Cameron and Kelly, and,combining and confederating with the defendants for the purpose aforesaid, caused this suit to be dismissed for the purpose aforesaid. But the court-finds that the contract for solicitors’ fees between the complainants and the said Firebaugh, Cameron and Kelly gave no interest in the subject matter of the suit, and that the complainant had the right to dismiss its suit.’ ”</p>

<p>Writ of Error to the Circuit Court of Crawford county; the Hon. E. E. Newlin, 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. Joseph E. Gary, Judge, presiding.</p> <p>This is an action on the case, brought by the appellee against the appellant to recover damages for injuries, ■suffered by appellee, while engaged, as an employe of appellant, in operating a passenger elevator in a building on Randolph street in Chicago of which appellant was lessee, and in which building appellant conducted his business. The plea of general issue was filed. The trial resultéd in verdict and judgment in favor of appellee for the sum of $2250.00. An appeal was taken to the Appellate Court where the judgment has been affirmed. The present appeal is prosecuted from such judgment of affirmance.</p> <p>The appellee was employed by the appellant to run the elevator up and down in the building, in which there were six floors or stories, for the purpose of carrying passengers. There was also in the service or employment of appellant an engineer by the name of George H. Neff, whose business it was, as engineer, to run the engine for the purpose of supplying the power for running and operating the elevator. The elevator was run by electricity. The electric machinery was on the roof, and, as one of the witnesses says, “with a little house built up there sheltering it, about four feet from a shaft where the elevator run up, four feet to one side; you get up to this room, where the electric machinery was, by getting off at the sixth floor and going around to a little pair of steps, and go up into the machinery room.” The evidence of the appellee tended to show, that the elevator car did not stop even with the floor on the first or bottom story, and on the sixth or top story. The accident occurred on the 9th day of September, 1897, in the middle of the day. The evidence of the appellee tended to show that, at that time, the engineer went up in the elevator to the room, where the electric machinery was,, on the roof for the purpose of trying to remedy or correct the failure of the elevator car to stop even with the floor and also a slight jar with which the elevator car would stop, when the lever, used for the purpose of moving the same, was thrown to the center; that the brake took hold a little too hard, making it uncomfortable for passeng'ers; that, when the engineer went up to the machinery room, he took with him a monkey-wrench; that, after the engineer went up to the sixth floor and into the motor room, he called to the appellee, and told him to run the car up and down, and stop at each floor, which appellee did; that the elevator car, after thus being moved up and down by appellee, failed to stop even with the floors; that appellee then went up to the sixth floor to report to the engineer, that the elevator lacked a foot and a half of coming to the main floor, and was told by him: “Go ahead and run it down and stop at each floor and see how near it will come to stop at each floor;” that, while appellee was so engaged in running the elevator up and down, the car began to rise rapidly, so that appellee was unable to control it, and finally it struck the roof, and appellee was precipitated out of the elevator some seven feet to the floor of the top story, and received the injuries, for which the present suit is brought. The evidence of the appellee also tends to show that, while the engineer was in the motor room, he was working with the machinery by screwing and unscrewing certain nuts upon the machinery with a view of tightening and loosening the brake; and that the effect of this manipulation of the machinery by the engineer was the cause of the loosening of the brake and of the inability of the appellee so to manage the lever as to control the elevator car. The evidence of the appellee also tends to show that, on the morning when the accident occurred, the appellant told appellee that he was subject to the orders of the engineer, and must do as the engineer told him. Indeed, the evidence of the appellee tends to show that appellant had reproved him for not obeying the engineer, and had said to him: “You do as the engineer says, or else I don’t want you; you are under him.”</p> <p>The evidence of the appellant tended to show'that the engineer did not touch the machinery or appliances' in the motor room, except to oil them, and that he had no monkey-wrench, and gave no orders to appellee to run the elevator up and down the shaft, while he was engaged in oiling it.</p> <p>The declaration consists of three counts. The first count charged that the engineer, whose duty it was to oversee the electric machinery, and manage the same, and see that the elevator was.in a reasonably safe condition to be controlled by appellee as the operator thereof, was an unskillful, ignorant and incompetent person. But, during the course of the trial, the first count of the declaration was withdrawn, or dismissed.</p> <p>The second count, which averred that the elevator was run by electric power and machinery located on the top of the building, intended to be controlled by means of a lever operated by the elevator man from inside of the elevator, charged that appellant carelessly and negligently failed to use reasonable care to have the elevator in reasonably safe condition for appellee to control the same, but, on the contrary, permitted it to be in such defective condition that it was not controllable by the lever, although, by the use of due diligence, appellant could easily have known of the defective condition of the elevator, and could easily have remedied the defects before plaintiff was injured.</p> <p>The third count averred and charged, that appellant “had also then and there in his employ a certain engineer, whose duty it was to take charge of the electric machinery, which ran the said elevator, which machinery was situated near the top of the shaft in which said elevator ran; and the plaintiff, in the course of his said employment, was then and there subject to the orders of the said engineer, and under obligations to obey the directions of the said engineer. And the defendant, by the said engineer and by divers other servants in that behalf, then and there attempted to make certain changes and alterations in the electric machinery of the said elevator, and, in so doing, loosened and altered the position of div.ers nuts, bolts and screws upon the said machinery, and disconnected divers switches, keys, wires and brushes upon the said machinery, and removed from their position divers brakes, controllers, automatic stops, connections, ropes, cables, wheels, drums and appliances upon the said machinery, so that, by reason of the condition of said machinery so produced, it was dangerous for any person, to be upon the said car of the said elevator, or to attempt to operate the same by means of the said lever upon the said elevator; of all of which the defendant, by due care and diligence, would have been aware, but of which the plaintiff was then and there ignorant. Whereupon it became and was the duty of the defendant not to place the plaintiff upon the said elevator, or order him to operate the lever upon the said elevator, while the said machinery was in the said dangerous condition. Yet, nevertheless, the defendant, by his certain servants in that behalf, who were not fellow-servants of the plaintiff, then and there, while said machinery was in the said dangerous condition, carelessly and negligently ordered and directed the plaintiff to be upon the said elevator, and to operate the same by means of the said lever; whereby, while the plaintiff was with all due care and dilig'ence upon the said elevator, and attempting to operate and control the same by means of the said lever, in obedience to the said orders of the defendant, the said elevator, by reason of the dangerous condition of the said machinery hereinbefore set forth, became uncontrollable, so that the plaintiff could not control the same by means of the said lever; and thereby the said elevator rose with great rapidity and struck with great force and violence against the upper part of the works of the said elevator machinery; and thereby the plaintiff was thrown out of the said elevator with great force and violence to the floor of the said building there, and was thereby greatly hurt,” etc.</p>

This is an appeal by George W. McClellan, executor of the last will and testament of Robert H. McClellan, deceased, from the decision of the board of review of JoDaviess county, upon the certificate of the Auditor of Public Accounts, under the provisions of section 35 of the Revenue act of 1898.

<p>Railroads—when party going upon depot platform is not mere licensee. One going to a railroad depot to deliver meals to mail clerks upon a train, in accordance with an agreement between them which had been carried out for many years with the knowledge and consent of the railroad company, is not a mere licensee, but may be regarded as upon the company’s premises by an implied invitation to transact her business there.</p>

Writ of Error to 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>1. Negligence—one acting as proprietor, though only an agent, is liable as principal. One operating a factory as owner and proprietor, so far as the public and the workmen employed are aware, is liable as principal for his negligence, notwithstanding he may have been acting as the agent for an undisclosed principal.</p> <p>2. Trial—when peremptory instruction for defendant is properly refused. An instruction to find for the defendant in a personal injury case is properly refused where the evidence tends to show that the defendant did not use reasonable care to provide a safe place for plaintiil’s intestate to work, and failed to warn him of the danger to which he was exposed by reason of such neglect of duty.</p>

<p>„ Appeal from the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding.</p>

<p>Appeal from the County Court of McHenry county; the Hon. O. H. Gilmore, Judge, presiding.</p>

<p>1. Special assessments—effect where a judgment confirming a new assessment is set aside. If a judgment confirming a new assessment is reversed upon the ground that the city had no power to vacate the former judgment and that the same remained in force and was a bar to the confirmation of the new assessment, the trial court may, upon notice, vacate its order setting aside the former judgment, and may, upon application of the collector, enter judgment of sale for the non-payment of the original assessment.</p> <p>2. Same—prolusions tending to make bids less favorable to public are illegal. Contracts for local improvements are required by law to be awarded to the responsible bidder offering to do the work for the lowest sum, and any provision in the specifications tending to increase the cost and make the bids less favorable to the property owners is illegal and void.</p> <p>3. Same—requirement of eight hour day in a public contract is illegal. A provision in the specifications for a local improvement which limits the right of the contractor and laborers to agree upon the number of hours to constitute a day’s work, and authorizes a forfeiture of the contract if the contractor allows laborers to work more than eight hours a day, is illegal and void.</p> <p>4. Same—free competitive bidding is a material right of the property owner. It is a material and important right of a property owner assessed for a local improvement that there shall be free competition in bidding, unrestricted by illegal conditions, the natural tendency of which is to increase the amount of the bids.</p> <p>5. Same—property owner must show that illegal provisions entered into the competition. Property owners must show that the provisions restricting competition and injurious to the public actually entered into the competition in some way, but they need not show such provisions increased the cost of the work. (Hamilton v. People, 194 Ill. 133, and Treat v. People, 195 id. 196, explained.)</p>

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

<p>1. Criminal law—section 98 of the Criminal Code, concerning confidence game, construed. The words “any other means, instrument or device, ” used in section 98 of the Criminal Code, concerning the confidence game, do not necessarily mean that which is actually given or exchanged for the money or property, bht include the method by which the victim was induced to part with his property.</p> <p>2. Same—acts constituting a confidence game. Inducing a person to -buy worthless stock from a third party, in reality a confederate, upon the false representation that certain parties in a distant city are trying to locate such party with a view to buying the stock at a good price, which representation is corroborated by bogus telegrams sent by another confederate, constitutes a confidence game, within the meaning of the statute.</p> <p>3. Same—when evidence of similar transactions is admissible. In a trial for obtaining money by means of a confidence game, evidence of similar transactions practiced by the accused upon other parties is' admissible, not for the purpose of showing a willingness on the part of the accused to commit the offense charged, but to show guilty knowledge of which he claims to be innocent.</p> <p>4. Same—when error in admitting evidence will not reverse. Error in admitting certain incompetent evidence will not be ground for reversing a judgment of conviction where the verdict must have been the same had such evidence not been admitted.</p> <p>5. Same—matter, of requiring bill of particulars is in discretion of the judge. Whether or not the State shall be required to furnish a bill of particulars in a criminal case rests in the sound legal discretion of the court.</p> <p>6. Same—naming of victim of a confidence game sufficiently identifies offense. If an indictment for obtaining money by means of a confidence game names the victim, the offense is sufficiently identified, and a conviction of the offense would bar a second prosecution.</p>

<p>1. Specific? performance—evidence of verbal contract must be clear to justify specific enforcement. To justify a decree of specific performance of a verbal contract relating to land, the contract must be certain and unambiguous and the proof clear and convincing.</p> <p>2. Laches—when a delay of eleven years will bar relief. Delay of eleven years to file a bill to enforce a verbal contract to permit complainant to redeem from a tax sale will bar relief, where complainant, during such time, treated the property as that of defendants, and claimed it only after it had greatly increased in value.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. R. S. Tuthill, Judge, presiding.</p> <p>This is a petition for partition, filed by the plaintiff in error, John H. Fitch, in the- circuit court of Cook county on August 21, 1897, against William Miller, the South Chicago Railroad Company, the city of Chicago, -VanArkle, Garrie S. French, Mary A. Fitch, Timothy S. Fitch and Beatrice Fitch, the latter being three of the plaintiffs in error. The petition or bill seeks partition of the south twenty acres of the east half of the south-east quarter of section 24, township 38 north, range 14 east of the third principal meridian in Cook county, Illinois, and alleges that the petitioner below, John H. Fitch, one of the plaintiffs in error here, and Mary A. Fitch, Timothy S. Fitch and Beatrice Fitch, defendants below and the three other plaintiffs in error here, are owners each of an undivided three thirty-seconds part of said twenty acres, and that Garrie S. French, one of the defendants below and one of the defendants in error here,, was the owner of the other five-eighths or twenty thirty-seconds of said twenty acres. The bill or petition prays for a partition, subject to such alleged cloud or lien as may have existed by reason of the circumstances hereinafter stated. The bill alleges that John Fitch was the owner of said twenty acres in his lifetime, and that he died intestate at Nettleton, Kansas, on July 20, 1878, leaving him surviving, as his only children and heirs-at-law, the plaintiffs in error, John H. Fitch, Mary A. Fitch, Timothy S. Fitch and Beatrice Fitch. It is also.alleged that said plaintiffs in error conveyed an undivided five-eighths of said premises to said Garrie S. French. By amendment to the bill the Illinois Central Railroad Company was made a defendant. William Miller filed an answer to the bill, denying that John Fitch owned any of said premises at the time of his death. Answers were filed by Garrie S. French and by Mary A. Fitch, Timothy S. Fitch and Beatrice Fitch, substantially admitting the allegations of the bill. William Miller, who resided in London, England, died testate on June 18, 1898, in England, and his death was suggested, and his unknown heirs and devisees were made defendants, and thereafter his executor and trustee and heirs filed an answer denying, substantially, the material allegations of the bill.</p> <p>On February 13,1900, after hearing had, the court below rendered a final decree in which, after finding that the city of Chicago had by condemnation acquired the title to a part of certain lots described in the bill, but not here in controversy, and that the South Chicago Railroad Company had acquired by condemnation the title to a certain strip of land for a right of way over a part of said premises, which had been leased to the Illinois Central Railroad Company, the court further found'that the complainant below, the plaintiff in error, John H. Fitch, had not proved the material allegations of his bill, and that the same was without equity, and dismissed the bill for want of equity. The present writ of error is prosecuted from the decree of the circuit court, so dismissing the bill.</p> <p>The material facts, as set up in. the pleadings and. shown by the proofs, are substantially as follows:</p> <p>On March 5, 1874, John Fitch was the owner of the twenty acres of ground here in controversy, and on that day executed a warranty deed, conveying said twenty acres, and also lot 156 in division 3 of the south shore subdivision of the north-east quarter of section 30 in said township 38, to William Miller of London, in the kingdom of Great Britain, in consideration of the sum of $30,000.00, which said deed was recorded in the recorder's office of Cook county on April 20,1874. The deed was executed by Fitch to Miller in pursuance of a sale, made by Fitch to Miller of the premises therein described; and Miller paid $5000.00 in cash to Fitch, and executed a mortgage upon the twenty acres in question to secure the balance of the purchase money, to-wit, the sum of $25,000.00, evidenced by two notes, one for $10,000.00, due in thirty days, and the other for $15,000.00, due in sixty days after March 5, 1874, which said mortgage was recorded in the recorder’s office of Cook county on April 23, 1874. The note for $10,000.00 was paid by Mil]er to Fitch, but the remaining note for $15,000.00 was not paid when it was due. In May, 1874, Fitch brought suit in assumpsit in the superior court of Cook county against Miller upon the note for $15,000.00.</p> <p>On October 5, 1875, a settlement or arrangement was made between Fitch and Miller, which was reduced to , writing by a written contract dated October 5,1875, which contract, however, was not under seal, and was signed and acknowledged by John Fitch, Elizabeth W. Fitch, his wife, and by William Miller by Thomas L. Parker, his attorney in fact, which said agreement was recorded on October 7, 1875, in said recorder’s office. Upon the same day, the suit brought by Pitch against Miller upon the note for $15,000.00 was dismissed by agreement.</p> <p>The contract of October 5, 1875, recites the execution of the deed of March 5, 1874, by John Pitch and wife to William Miller, conveying said twenty acres and said lot 156 for the consideration of $30,000.00, and also, the execution of the mortgage securing the payment of $25,-000.00; and also recites that “it has been agreed between the said John Pitch and the widow and devisee of Timothy S. Pitch, deceased, that the entire sum of $30,000.00, the purchase money of the said land herein described, should become and be treated as a loan of money from the said Miller and as security for the re-payment thereof and interest; that said Miller should retain as security the said lands hereinbefore described, which have been conveyed to him by said John Pitch and wife ashereinbefore set forth, and, in addition thereto and as additional security for the re-payment of the said entire sum, the said John Pitch and wife have on this date executed a certain mortgage for the sum of $7500.00 to said William Miller, with interest, conveying-” certain lots in certain blocks in south shore subdivision No. 5 in Cook county, “subject to prior encumbrance. And Elizabeth W. Pitch, widow and devisee of Timothy S. Pitch, as further security, has by her deed of mortgage, bearing even date herewith, conveyed to said William Miller all of” certain other blocks and lots in said south shore subdivision No. 5 “subject to prior encumbrance to Ezra B. McCagg, to secure a note of $7500.00 bearing even date herewith and payable to said William Miller in five years after date, with interest thereon at ten per cent per annum, out of property, or the proceeds thereof, received by her as devisee from the estate of Timothy S. Pitch, her husband, deceased, but not out of property acquired by her otherwise.” And said contract also recited that Miller and his wife had made a certain deed to John Fitch, as grantee, of said south twenty acres and of said lot 156, “which said deed has not been delivered, but is held in escrow in the hands of Robert Hervey of Chicago, representing said William Miller, to be delivered to said John Fitch on full payment of said sum of $30,00(100, and interest at the rate aforesaid, and at the time aforesaid and for the securing of the payment whereof the said deed is so held in escrow, and which sum is further secured by the mortgages hereinbefore described, made by the said John Fitch and wife and Elizabeth W. Fitch, respectively, on the property and for the sums, respectively, therein set forth, which mortgages are simply additional securities for the prompt and faithful payment of said sum of $30,000.00 with interest thereon.” The said agreement then proceeds as follows: ■ “Now, it is understood and agreed between the said parties and is hereby declared to be the true intent and meaning of said transaction, that, upon the full payment of the said sum of $30,000.00 and interest at ten per cent in five years from the date thereof, said interest being payable annually, the said deed, so held in escrow to said twenty acres, shall be duly delivered, and the respective mortgages executed at this date by John Fitch and wife and Elizabeth W. Fitch, respectively, shall be fully released and discharged of record, all of said property being held in the aggregate simply as security for the payment of the said sum of $30,000.00 and interest, and no other or greater sum.” It was also stated in the'contract that “it is agreed that the taxes shall be promptly paid by John Fitch and Elizabeth W. Fitch, and in case of default in the payment of interest, or of any taxes or assessments, then that the mortgage, hereby created on the twenty acres and lot 156 herein described, may be foreclosed on said default, said Miller having the power on any default to. declare the whole sum due and to foreclose.” It was also therein agreed that, on the full payment of the $30,000.00 and interest, and the closing up of the entire transaction, the mortgage from William Miller to John Pitch on the twenty acres therein described, and lot 156 aforesaid, should be discharged of record.</p> <p>The original deed from William Miller and wife to John Pitch, which was held in escrow by Eobert Hervey, was dated July 3, 1875, conveying the premises in question in consideration of §30,000.00. Late in the year 1875 John Pitch left Illinois, and went to Kansas to live. Upon learning of his death, which took place on July 20, 1878, Eobert Hervey handed over the deed he was holding in escrow to Thomas L. Parker, the agent of William Miller. On December 23, 1875, the mortgage which had been executed by William Miller to John Pitch to secure the two notes, one for §10,000.00 and the other for §15,000.00, was released, and the release deed dated-December 23, 1875, was recorded on that day, and was produced upon the hearing of this cause upon notice by the heirs of William Miller. The deed, however, in Hervey’s. bands was never delivered to John Fitch, nor was any demand made upon Hervey for it by either John Fitch in his lifetime, or by any of his heirs or representatives after his death.</p> <p>, The mortgages for §7500.00 each, referred to in the contract of October 5, 1875, were second mortgages,' and the first mortgage, to which they were subject, was foreclosed in the circuit court of the United States for the Northern District of Illinois, and the property was sold, leaving a deficiency unsátisfied of over §15,000.00, for which decree was entered on June 26, 1878, against John Fitch. The notes for §7500.00 secured by these mortgages are brought into court by Miller or his representatives, subject to the order and direction of the court, the mortgages securing them having been cut off by the foreclosure already named.</p>

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

<p>1. Wills—elements essential to probate. To entitle a will to probate it must be in writing, signed by the testator, pr in his presence by some one under his direction; it must be attested by two or more credible witnesses; two witnesses must testify they saw the testator sign the will or that he acknowledged the same to be his act and deed, and they must swear they believe the testator was of sound mind and memory at the time.</p> <p>2. Same—proponent is not limited to subscribing witnesses on appeal. On appeal to the circuit court from an order of the county court denying probate the proponent is not limited to the testimony of the subscribing witnesses, but may introduce any evidence which would be competent to establish the will in fchancery.</p> <p>3. Sam:e—statements of attestation clause entitled to due weight. The statements of the attestation clause are entitled to due weight, and the mere" inability of an attesting witness to recollect the facts therein stated will not defeat the probate.</p>

Theodore Brentano, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment for $6000 recovered by appellee in the Cook superior court for personal injuries.

<p>1. Administration—county court may allow claim to fund held in express trust. A bequest of a legacy to the testator’s wife for life and after her death to be paid to another creates an express trust, and the county court, under section 70 of the Administration act, may allow the claim against the wife’s estate as of the sixth class.</p> <p>2. Evidence—specific objection to evidence cannot be first urged on appeal. If the only objection to the admission of a copy of a will in evidence in the trial court is that it is incompetent, an objection that it was inadmissible because not accompanied by a properly certified order of the probate court cannot be urged on appeal.</p> <p>3. Practice—bill of exceptions should preserve motion to suppress depositions. Motions to suppress depositions, and the rulings thereon, should be preserved in the bill of exceptions, and the clerk can not make them a part of the record by merely including them in his transcript.</p>

<p>i. Taxes—a tax voluntarily paid cannot be recovered back, although illegal. The mere fact that the statute imposing a tax is unconstitutional and the tax for that reason illegal, does not authorize recovery of the amount paid, if it was paid voluntarily.</p> <p>2. Same—-fact that tax is paid unwillingly does not constitute duress or compulsion. The fact that a tax is paid unwillingly or with complaint is not of any legal importance, but there must, be some degree of compulsion, to which the tax-payer submits with notification of some sort equivalent to a reservation of rights.</p> <p>3. Same—when tax is not paid under duress or compulsion. The fact that a statute requires the payment by a foreign insurance company of a tax to the insurance superintendent as a condition to its right to continue business, and that the superintendent sent circulars to the company threatening to enforce the law if the tax was not paid, cannot be made the basis of a claim of duress or compulsion, where both the superintendent and the company believed the law valid, and it does not appear that the company paid the tax unwillingly and with a reservation of rights, or that the consequences feared from a refusal influenced the company’s action.</p>

<p>1. Bonds—improvement bonds are not negotiable. Bonds issued under section 86 of the Improvement act of 1897, to anticipate installments of a special assessment, are not negotiable, in the sense that a purchaser thereof is invested with any right superior to that of the contractor to whom the bonds were issued.</p> <p>2. Mechanics’ liens—sub-contractor's lien upon bonds is enforceable in a court of equity. The lien created by section 24 of the Mechanic’s Lien act of 1895 in favor of persons furnishing labor or material to a public contractor upon the money, bonds or vouchers due such contractor, may be enforced in a court of equity.</p> <p>3. Same—effect of provision of section 2Jf giving right of action on official bond. The provision of section 24 of the Mechanic’s Lien act of 1895, giving lienholders an action on the official bond of any municipal officer failing to withhold money, bonds or warrants after notice, is not a remedy for enforcing the lien, nor does it deprive the party of his right to proceed by a bill in equity.</p> <p>4. Same—lien may be enforced against purchaser of bonds. If a person entitled to a lien under section 24 of the Mechanic’s Lien act gives due notice to the municipal authorities of his claim, but such authorities, through inadvertence, deliver the bonds to the contractor in disregard of such notice, the lien may be enforced as against one who purchased the bonds from the contractor.</p>

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

William H. Gest, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Second District affirming a decree of the circuit court of Mercer county dismissing a bill in chancery for want of equity.

<p>Writ of Error to the County Court of Douglas county; the Hon. William H. Bassett, Judge, presiding.</p>

<p>1. Taxes—method prescribed for levying tax must be followed. The method prescribed by the legislature to subject property to taxation must be substantially followed before the property can be taken and sold in satisfaction of the tax.</p> <p>2. Same—when order of commissioners for road tax is insufficient. An order of highway commissioners reading, “Ordered levy a district road tax for labor purposes, forty cents on the last assessment roll,” is not a compliance with section 83 of the Road and Bridge act, which requires the amount needed to be fixed in dollars and cents or’by a stated per centum on each $100.</p> <p>3. Same—when posting of notices by cleric is insufficient. The posting of notices by the town clerk on the same day that the commissioners’ order for a district road tax was entered and eighteen days before the assessment roll was filed is not a compliance with section 88 of the Road and Bridge act, in the absence of proof that the notices remained posted after such roll was filed.</p> <p>4. Same—commissioners’ order and cleric’s notice are essential elements of a district road tax. Failure of commissioners to ascertain definitely the amount to be raised as a district road tax, and of the clerk to post notices within ten days after the amount of such tax has been filed in his office, are not mere irregularities but substantial omissions, which vitiate the levy.</p> <p>5. Same—oral statement of commissioners for an additional road and bridge tax is insufficient. A verbal statement by highway commissioners to the board of auditors that an additional levy of twenty cents on each $100 is needed, is not a compliance with section 14 of the Road and Bridge act, as amended in 1901, (Laws of 1901, p. 274,) requiring the commissioners, if of opinion an additional levy is needed, to certify the same to the board of auditors.</p> <p>6. Same—town auditors cannot consent to additional levy without certificate of commissioners. Consent by the hoard of town auditors and the assessor to an additional levy of road tax, given without a certificate, in xoriting, from the highway commissioners that in their opinion such additional levy is needed, is, under section 14 of the Road and Bridge act, as amended in 1901, insufficient to authorize a valid levy.</p>

<p>1. Eminent domain—when question of petitioner’s power to condemn is waived. The question of petitioner’s power to condemn is waived where defendants stipulate that their motion to dismiss the petition shall be denied, and an order to that effect is entered without objection, and where defendants’ attorney concedes, in open court, that petitioner has such power and voluntarily enters upon a hearing before a jury upon the question of damages.</p> <p>2. Same—admissibility of evidence showing adaptability of land for building. Oral evidence may be received_ in a condemnation pro-, ceeding to show the adaptability of the land, in the near future, for a warehouse' and railroad yards; but a plat prepared by the defendants of a possible but largely imaginary development of the land for such purposes, and not of any improvement the defendants had contemplated making, is not admissible.</p> <p>3. Same—-jury may be instructed that petitioner does not acquire the fee. An instruction in a condemnation case advising the jury that the petitioner did not acquire the fee by the condemnation proceeding is not prejudicial, where the jury are repeatedly directed in other instructions that they must assess and award the defendants the fair cash market value of the property taken.</p> <p>4. Same—rule as to sustaining condemnation verdicts. The amount of damages awarded in a condemnation case upon conflicting oral testimony and after the jury have viewed the premises will not be disturbed, on appeal, if within the range of the testimony, unless it is clear that injustice has been done or that passion or prejudice influenced the action of the jury.</p>

<p>1. Trial—what sufficient to go to jury in action for injury from a defective sidewalk. Refusal to take the case from the jury is sustained by evidence that the plaintiff, while passing over the sidewalk of a bridge at his ordinary gait, stepped upon a plank which gave way, allowing him to fall through the walk to his waist; that the walk was then and had been for a long time out of repair, and that plaintiff was permanently disabled by the injury.</p> <p>. 2. Evidence—what not too great latitude in testimony of condition of sidewalk. Testimony as to the condition'd! the sidewalk at or near the place where plaintiff was injured and at the time the witnesses traveled over it and observed its condition, is proper, as tending to establish notice to the city of the condition of the walk.</p> <p>3. Same—when allowing jurors to use magnifying glass is prejudicial error. In an action against a city for damages for injuries from a defective sidewalk, if there is a sharp conflict as to the condition of the sidewalk, and the stringers which supported it, it is prejudicial error to permit the jury to examine pieces of' the stringers through a magnifying glass for the purpose of discovering defects.</p> <p>4. Municipal corporations—city is not an insurer of its sidewalks. A city is only required to use reasonable care to keep its sidewalks in a reasonably safe condition.</p>

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.

Appeal iron the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Theodore Brentaho, Judge, presiding. This is an action to recover damages for a personal injury, begun on July 13, 1896, in the Superior Court of Cook county by the appellee against the appellant company. There have been two trials of the case. Upon the first trial the jury failed to agree.

<p>Appeals and errors—error in chancellor's finding of fact must be palpable to authorize a reversal. .Error in the chancellor’s finding as to facts from conflicting testimony heard in open court must be palpable to authorize a reversal.</p>

Joseph E. Gary, Judge, presiding. This is an action in assumpsit, commenced on May 25, 1899, by the appellant, Millie M. Dickerson, against the appellee, the Northwestern Mutual Life Insurance Company, upon a policy' of insurance, taken out on December 18, 1896, by Samuel H. Dickerson of Cleveland, Ohio, husband of appellee, for the sum of $2000.00, payable to his wife, the appellant.

Jonas Hutchinson, Judge, presiding. Anton Ryska, the appellee, brought this action on the case in the superior court of Cook county against the Illinois Steel Company, the appellant, to recover for a personal injury suffered by him while in its employ. The steel company had upon its premises several blast furnaces for the reduction of iron ore. They were cylindrical in form and about eighty feet high. The coke, lime and ore used in these furnaces were dumped into the top.

<p>1. Practice—objections and exceptions to judgment must be preserved by bill of exceptions. The authority to certify that an objection was made and an exception taken to the action of the court in entering judgment is in the presiding judge and not the clerk, and such matters can only be preserved for review by bill of exceptions.</p> <p>2. Same—bill of exceptions essential though case is tried without a jury. It is essential to the review of a case tried without a jury that an exception to the judgment of the court be preserved in the bill of exceptions, unless there are errors of law which appear on the face, of the record as properly made up by the clerk.</p>

<p>Mechanics’ liens—verbal contract must provide for payment within one year. A verbal contract will not support a claim for mechanic’s lien unless it provides that the work shall be completed and payment shall be made within one year from the date of the contract; and this is true notwithstanding the work was in fact completed within six months.</p>

<p>1. Wills—complainant in a will contest not competent to testify in her own behalf. Complainant in a bill to contest a will, to which the executor in his representative capacity and the legatees under the will are made defendants, is not competent to testify, in her own behalf, as to transactions occurring prior to and at the time of the execution of the will.</p> <p>2. Same—ability to transact ordinary business is too stringent a test of testamentaiy capacity. Complainant in a will contest cannot complain of instructions of the defendant making ability to transact ordinary business the test of testamentary capacity, since the test is more stringent than the law requires.</p> <p>3. Same—when instruction is not misleading. The use of the word “believed” instead of “believe,” in an instruction with reference to the belief of the subscribing witnesses that the testatrix was of sound mind and memory, is not misleading, where two of the subscribing witnesses testified that they “believed” the testatrix to be of sound mind and memory at the time she executed the will.</p> <p>4. Same—word “sane” is synonymous with “sound mind and memory.” The word “sane,” when used in an instruction with reference to testamentary capacity, is synonymous with “sound mind and memory,” and does not tend to mislead the jury by conveying to them the impression that in order to avoid the will it must appear that the testatrix was insane.</p> <p>5. Same—when instruction on subject of testamentary capacity is not harmful. An instruction that the testatrix had sufficient capacity to make a will if she “understood what she was doing” is not harmful, where the jury are fully informed, in other instructions given by both parties, as to what constitutes testamentary capacity.</p> <p>6. Same—-fact that testatrix misstates value of property does not necessarily defeat will. That the testatrix states to the scrivener that she possesses more property than she in fact owns or more than was found after her death, does not, as a matter of law, defeat the will, although such fact may be proved as bearing upon the question of her testamentary capacity.</p>

E. W. Burke, Judge, presiding. This is an action in case, begun in the circuit court of Cook county by appellee, the American Brake-Beam Company, a corporation of Chicago, against William A. Pungs, who had been acting for several years as its agent and superintendent, to recover a sum of money made up of items of overcharges, misappropriatious, etc. In 1892 the Michigan Railway Supply Company, a corporation at Detroit, Michigan, was engaged in the manufacture of railroad…

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.</p>

Marcus Kavanagh, Judge, presiding. Alfred Anderson, the appellant, brought suit in the superior court of Cook county against the appellee, the West Chicago Street Railroad Company, for damages for a personal injury received by him through its alleged negligence. A trial was had, resulting in a verdict for h:'m for §1250 damages, on which judgment was entered. On appeal to the Appellate Court the judgment of the superior court was reversed.

<p>Appeals and errors—it is essential to a right of appeal that party have an interest in subject matter of the suit. A lessee is not entitled to appeal from a judgment confirming a special assessment against leased premises where the judgment expressly excepts his leasehold interest, including the improvements, from liability for the assessment; and this is true notwithstanding he has covenanted to pay all taxes or assessments levied upon the premises.</p>

E. F. Dunne, Judge, presiding. On October 24, 1901, the judgment, theretofore entered in this case by the Appellate Court, was reversed, and the cause was remanded to the Appellate Court with directions to recite in its judgment the ultimate facts upon which it acted in rendering judgment against the appellant company.

G. W. Patton, Judge, presiding. This is an action of assumpsit on the common counts by the appellees, constituting a firm of attorneys in Chicago, to recover for retainer and legal services. The appellant filed with its plea of non-assumpsit an affidavit that it had a good defense on the merits to all of the plaintiffs’ demand except §150 thereof.

<p>1. Evidence—when receipts signed by teamsters are not admissible. Receipts signed by teamsters, stating they had received property in good condition from a warehouse, are not admissible in an action against the warehouseman for damage to the property while in storage, where the plaintiff has already admitted receipt of the property and there is no evidence that the teamsters had authority to bind thg plaintiff by the statement as to its condition.</p> <p>2. Instructions—when erroneous instruction is not harmful. The giving of an instruction for the plaintiff upon the measure of damages is not harmful to the defendant, even if erroneous, where the instruction given for the defendant upon the same subject states the opposite view, and it appears the damages would be less under plaintiff’s instruction than under that of the defendant.</p> <p>3. Same—party cannot complain of proposition stated in his own instruction. If the defendant’s instructions authorize the recovery of interest by the plaintiff, he cannot complain that it was error to give instructions for the plaintiff to the same effect.</p> <p>4. Bailments—warehouseman need not be instructed as to the care of flour. A public warehouseman must be presumed to know that flour should not be stored where it will be permeated with odors of chemicals or with noxious smells and gases, and failure of the owner to notify him of the sensitive quality of the flour will not relieve him from liability.</p>

<p>1. Variance—grounds of objection must be specifically made in the trial court. An objection to the admission of evidence on the ground of variance is waived unless the objection is specifically made and the grounds thereof pointed out in the trial court.</p> <p>2. Benefit societies—when forfeiture is not self-executing. If there is no provision in the application for membership, the certificate of membership or the application for re-instatement, or any bylaw, that false representations in an application for re-instatement shall render the certificate void, a forfeiture alleged to arise from such cause is not self-executing.</p> <p>3. Same—when right of forfeiture is waived. If a benefit society is fully advised by the beneficiary, after the member’s death, of the alleged false representations in the member’s application for reinstatement, and the society does not then insist upon a forfeiture upon that ground but recognizes the validity of the insurance by requiring the beneficiary to prepare proofs of death, an intention to waive the right of forfeiture follows as a legal result.</p> <p>4. Same—when society is bound by the acts of its president. A benefit society is bound by the acts of its president, in the absence of any proof that his ordinary powers as president were abridged by the by-laws of the society.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. Frank Perrin, Judge, presiding.</p>

<p>1. Appeals and errors—when right of appeal is not determined by amount of judgment. In a proceeding to enjoin the levy upon and sale of a lot under an execution and to remove the cloud upon the title arising from the apparent lien of the judgment, the amount of the judgment does not determine the right to appeal from the Appellate Court to the Supreme Court.</p> <p>2. Judgments and degrees—a decree cannot be vacated after term has elapsed. After a term has elaped a decree may he corrected, upon motion, in matters of form or for mere clerical errors; but the court cannot, after the term, change the decision, or set aside, modify or annul its decree.</p> <p>3. Same—error of law does not justify changing decree after term. No error of law will justify revising or annulling a decree at a subsequent term, in a summary way, upon a motion, but relief must be had by appeal or writ of error if the error appears on face' of the record, and if not, by bill of review or bill to impeach the decree.</p> <p>4. Same—statutory motion to correct error of fact does not apply to a decree. The statute abolishing the writ of error coram. iiobis and substituting therefor a motion authorizing the court to set aside a judgment at any time Within five years for an error of fact, does not apply to chancery cases.</p> <p>5. Same—decree cannot be amended upon evidence of solicitors contra-dieting the record. A decree regularly entered cannot be altered or amended at a subsequent term, even as to matters of form, upon the evidence of solicitors contradicting what appears of record.</p>

<p>Equity—when equity may expunge words “her bodily heirs” from deed. If the heirs of an intestate who had prepared a will but died before its execution, attempt to carry out its provisions by conveying the property to a trustee, who in turn conveys to each the property as devised by the will, and such heirs are not aware that the will limits the estate of one of their number to her and “her bodily heirs,” but the trustee, following the will, inserts such words in the deed to her, a court of equity may reform the deed by expunging them, where none of the parties knew the words were in the will or deed or intended them to be there.</p>

<p>1. Ejectment—what must be shown where a plaintiff relies upon section 7 of Limitation act. If plaintiff in ej ectment relies for his right of recovery upon section 7 of the Limitation act, he must prove not only that he had color of title and paid the taxes for seven successive years while the premises were vacant, but that he took possession after the seven years had elapsed.</p> <p>2. Same—what does not show possession. That the grantor of the plaintiff, by his agent, cut a small quantity of timber from the premises and at various times warned trespassers off does not show possession, within the meaning of the Limitation law, where the premises are an undefined part of an unenclosed tra.ct of swamp land, containing several thousand acres, from which persons residing in the vicinity indiscriminately cut timber.</p> <p>3. Res judicata—when Supreme Court’s decision upon matters of evidence is conclusive. If the Supreme Court, on appeal in an action of ejectment, decides that the acts proven by the plaintiff are not of a character which constitute possession, such decision is conclusive upon a subsequent trial, where additional testimony offered by the plaintiff merely proves more clearly the same acts or the same character of acts as were shown on the former trial.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.</p> <p>This is an action in assumpsit, begun in the circuit court of Cook county by appellees, James S. Kirk and others, co-partners doing business as James S. Kirk & Co., soap manufacturers, against the O. H. Jewell Filter Company, a corporation, to recover certain payments made by appellees for a large filtering apparatus which had been constructed by appellant for them, the declaration alleging that the filter was inefficient and not in accordance' to the contract and guaranty under which the same was purchased.</p> <p>The firm of James S. Kirk & Co. was conducting a soap factory on the Chicago river, about a quarter of a mile from Lake Michigan. The river water being polluted and unserviceable for use in the boilers of appellees and hydrant water being too expensive, the company applied to appellant to put in filters. Thereupon appellant submitted a proposition to construct two gravity filters, (minutely describing their construction,) the concluding paragraphs of the proposition being as follows: “We guarantee the capacity of these filters, and that they will operate mechanically in a thorough and be built in a workmanlike manner. The filter-tanks proper will have to be built within the place where they are to be located, which work we would commence immediately after you have the foundations ready. It is also understood that you will provide the power for revolving the stirring apparatus. We will furnish the above for the sum of $2500. These filters would have an easy capacity of filtering 15,000 gallons per hour, which is more than fifty per cent above your actual requirements; and we guarantee the filtrate will be clear and bright for the purpose for which they are needed, to render the river water and the condensed water suitable for your boilers shall be accomplished: Provided, however, that occasionally, should the condition of the water require, that you will, in addition to the filters, use a small amount of coagulant for assisting" in arresting the impurities, which might thus need to be retained upon the filtering bed.” The proposition was accepted and the filters were constructed, being completed February 3, 1897. Between that time and the first of November following", appellees made several unsuccessful attempts at using the boilers, and so notified appellant from time to time, and on the latter date requested appellant to remove the filters and re-pay to them the total “amount due,”—which amount included $1750 paid on the contract and other items for expenses in connecting up the boilers, etc. The filters were not removed nor was the money paid, and thereupon this suit was brought.</p> <p>The case was tried before the court, without a jury, and damages were awarded in the sum of $1996. The plaintiff remitted the sum of $24.22, and judgment was rendered for the remainder of the amount, $1971.78. To reverse the judgment of the Appellate Court affirming the judgment below, this appeal is prosecuted.</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. Dorrance Dibell, Judge, presiding.</p>

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

<p>Writ op Error to the Circuit Court of LaSalle county; the Hon. Charles Blanchard, Judge, presiding.</p>

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

Elbridge Hanecy, Judge, presiding. This is an action of assumpsit, brought by appellees, C. W. Elphicke & Co., against the appellant, the Iroquois Furnace Company, to recover damages for an alleged breach of contract. The contract was in writing, and was executed in February, 1891. The original declaration was filed on September 7, 1892. To the original declaration the plea of general issue was filed. On February 13, 1901, two .additional counts were filed.

Axel Chytraus, Judge, presiding. This is an action on the case, brought by the appellee in the superior court of Cook county to recover damages for an injury to her husband, which resulted in his death. The suit was brought against Jacob Beidler, the owner of the building in which was situated the elevator upon which appellee’s husband was a passenger at the time of the injury.

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

<p>Information for disbarment.</p>

<p>1. Insurance—what tends to show waiver of prompt payment of premiums. Evidence that the company, by its dealings with the insured, who was also its agent, waived, from time to time, prompt payment of installments of premiums, sometimes deducting the same from his commissions, tends to show a waiver of the prompt payment of a note of the insured for an over-due installment.</p> <p>2. Same—what admissible as tending to show that company regarded policy as in force. Evidence that a friend of the insured who called upon the company after the insured’s death was told that there were some unpaid premiums due upon the policy which were liens against it, and that if he desired to be sure of the policy he could pay the premiums himself, tends to show that the company did not at that time regard the policy as forfeited.</p> <p>3. Same—premium need not be paid before loss if waiver is general. If a waiver of the time for paying a premium is general and not for a specified time, it is not essential to the validity of the policy that such premium be paid or tendered before death of insured.</p> <p>4. Pleading—plea of general issue admits an allegation of change of name. A plea of the general issue, in an action on a life insurance policy, admits the capacity in which the defendant company is sued, together with a change of the company’s name and the assumption of liabilities as alleged in the declaration.</p> <p>5. Same—;failure to reply to special pleas may be waived. Failure of the plaintiff to reply to the defendant’s special pleas is waived by going to trial without objection, and is not such error as may be availed of after verdict.</p> <p>6. Variance—alleged variance must be pointed out at trial. In order to avail of a material variance between the allegations and proofs the testimony must be specifically objected to at the time it is offered, and the variance pointed out.</p> <p>7. Instructions—effect of giving of instruction assuming a question to be in issue. If a defendant insurance company procures an instruction that the plaintiff could not recover unless payment of a premium installment was made or was waived by the defendant, it cannot insist, on appeal or error, that the proof of such waiver was incompetent, upon the ground of variance.</p>

<p>1. Street railways—not actionable negligence to refuse to stop car to take on passenger. Failure or refusal to stop a car, on signal, to take on a passenger does not give rise to an action for damages for injuries received, by such person when attempting to board, the moving car.</p> <p>2. Same—when evidence tends to prove cause of action. Refusal to instruct to find for the defendant in an action against a street railway company is justified where the evidence tends to show that the plaintiff was thrown to the ground by a sudden jerk of the car after he had boarded .the car and while he was stepping from the run-board to take a seat in the car.</p> <p>3. Same—those in charge of car not required to prevent people from committing acts of negligence. Those in charge of a street car are not required to prevent people from committing acts of negligence in attempting to board cars, when they are moving slowly across railroad tracks or at places other than those set apart to receive or discharge passengers.</p> <p>4. Same—when evidence of custom of boarding moving cars is inadmissible. Evidence that it was customary for people .to board street cars as they were moving slowly across railroad tracks at a certain place is not admissible, in the absence of proof that such-practice was concurred in by the street car company.</p> <p>5. Same—not negligence per se for person to attempt to board moving oar. It is not negligence, as a matter of law, for a person to attempt to board a moving street car, but the question is one of fact, depending on the rate of speed of car and all the circumstances.</p> <p>6. Same—when it is not necessary to signal motorman to stop the car. If a large number of people approach a street car and get on with the knowledge of the conductor and motorman, it is not necessary that one of the last of the number shall signal the motorman or conductor, to manifest his desire to get on.</p> <p>7. Instructions—instruction should not attempt to minimize legitimate evidence. It is not proper for an instruction to inform the jury that even though some material fact may exist, nevertheless it does not follow that the plaintiff has not a good case, and thereby attempt to minimize legitimate evidence or destroy its legal effect.</p> <p>8. Negligence—voluntary intoxication does not excuse a person from exercising ordinary care. Voluntary intoxication will not excuse a person from exercising such care as may reasonably be expected from one who is sober.</p> <p>9. Appeals and errors—when objectionable instruction is not harmful. An instruction objectionable as being open to the construction that the plaintiff, although intoxicated, might recover if he was using such care as a prudent person ordinarily exercises under the same circumstances, is not harmful, where the evidence would not justify the jury in finding that the plaintiff was intoxicated.</p>

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

Prank D. Ramsay, Judge, presiding. This is an appeal from a decree assigning dower, and for partition, rendered by the circuit court of Henry county. Samuel J. Longshore died intestate in September, 1901, owning about one thousand acres of land in said county, leaving him surviving appellee Marie D. Long-shore, his widow, and his daughters, Ernestine Boltenstern, Hannah E. Longshore, Marie G. Longshore and Caroline IST. Longshore, and his son, the appellant, his heirs-at-law.

<p>Appeal from the Circuit Court of Cook cdunty; the Hon. R. W. Clifford, Judge, presiding.</p>

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

<p>1. Contracts—if a party waives conditions his devisee cannot revive them. If certain of the conditions of a contract by a father to give a house and lot to his daughter at his death are waived by the father, the devisee of the property cannot revive such conditions and thereby avoid specific performance of the contract.</p> <p>2. Laches—laches not imputed to one in possession. One .in possession of property under a contract for a conveyance is not guilty of laches in failing to enforce the contract.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. This is an indictment, found by the grand jury of Cook county against the plaintiff in error for the murder of one Hector McKenzie on October 10,1899, in said county. The cause was tried in January and February, 1900, in the criminal court of Cook county, and resulted in a verdict of murder with punishment of imprisonment in the penitentiary for twenty-five years.

<p>1. Special assessments—when objection that grade was not established is not available. A paving ordinance requiring the pavement, when completed, to be at “the established grade” of the street is not void, and the judgment of confirmation cannot be attacked upon application for sale upon the ground that a grade had not been established when the ordinance was passed.</p> <p>2. Same—defects in description should be taken advantage of at confirmation. If there is not an entire failure to specify the nature of the improvement, the fact that the ordinance may be lacking in some particulars affecting the ability of the commissioners or bidders to make an intelligent estimate of the cost does not furnish ground for objection upon application for judgment of sale.</p> <p>3. Same—application for sale not barred by section 15 of Limitation act. An application for judgment of sale for a delinquent special assessment is not a “civil action not otherwise provided for,” within the meaning of section 15 of the Limitation act, requiring such actions to be begun within five years; nor is there any statute limiting the time for making application.</p>

<p>1. Dedication—an insufficient statutory dedication may be good at common law. The signing and acknowledging of a plat by the agent of the owner instead of in person is not a good statutory dedication; but the dedication is good at common law, where the lots are sold by such owner and possession is given to the purchasers with reference to the plat.</p> <p>2. Same—the difference between statutory and common law dedications. A statutory dedication vests the legal title to the ground set apart for public purposes in the municipal corporation, while a common law dedication leaves the legal title in the original owner, charged with the same rights and interests in the public which it would have if the fee were vested in the corporation.</p> <p>3. Same—dedication cannot be withdrawn after owner has sold lots. A common law dedication cannot be withdrawn after the owner has sold lots and blocks by the description designated in the plat, and the streets and alleys indicated thereon may be opened by the municipal authorities at such time as the public interest may require, of which time they are the judges.</p> <p>4. Same—opening street is evidence of acceptance of dedication. After the right to withdraw a common law dedication is lost by the sale of lots with reference to the plat, the city may evidence its acceptance of the dedication at any time' by opening the street.</p> <p>5. Same—Statute of Limitations does not bar right of public in streets. The Statute of Limitations does not run against a municipal corporation in respect to property held for a public use.</p> <p>6. Same—when city is not estopped to open street. One who purchases two blocks of ground and builds a fence around the entire tract, so as to enclose the street between such blocks, which street had been dedicated as at common law, cannot hold the street, as against the city, although he has been in undisturbed possession for thirty years, where he was not misled as to the existence of the street and has erected no improvements thereon except the fence by which he enclosed it.</p>

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

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

Orrin N. Carter, Judge, presiding. This is an appeal from a judgment of sale for the third installment of a special assessment for paving Madison street from Western avenue to Homan avenue, rendered by the county court of Cook county upon the application of the county collector of that county. The appellants filed objections in the trial court and introduced evidence. Upon a hearing the court overruled all of the objections, and entered judgment of sale.

<p>Practice—Appellate Court briefs should not be filed in the Supreme Court. Under rule 15 of the Supreme Court (168 111. 13,) it is not permissible to use Appellate Court briefs in the Supreme Court except where it may be important to determine what questions were raised in the Appellate Court, when certified copies of the briefs and arguments used in that court may be filed in Supreme Court upon motion and leave granted.</p>

John R. Bonney, Judge, presiding. This is an appeal from a judgment of the county court of Clay county against the appellant, the Baltimore and Ohio Southwestern Railroad Company, for the balance of the unpaid city tax levied by the city of Flora on the property of appellant. The city of Flora, in August, 1901, passed an ordinance levying the city taxes for the year 1901.

Frank D. Bamsay, Judge, presiding. This is a bill in chancery by appellee, against appellant, in the court below, to remove a sheriff’s deed to appellant as a cloud upon complainant’s title to lots 5 and 6, block' 83, in Wallace’s addition to Sterling, which he claimed by virtue of a conveyance from Maria A. Lane.

<p>1. Municipal corporations—act of 1888, concerning tax for lighting streets, construed. The act of 1883, (Laws of 1883, p. 68,) authorizing cities and villages to levy and collect, annually, “in addition to all other taxes now authorized by law, a tax of not exceeding three mills on the dollar” for the purpose of lighting streets, etc., and providing that “nothing in this act shall be so construed as to increase the amount of aggregate taxes that may be levied in any one year by any city or village,” as provided in section 1 of article 8 of the City and Village act, neither adds to nor detracts from the powers of cities and villages organized under the general law.</p> <p>2. Same—power of village organized under the general law to levy a tax for street lighting. A city or village organized under the general law has power, irrespective of the act of 1883, (Laws of 1883, p. 68,) to provide for lighting the streets and to levy and collect taxes for that and other corporate purposes, provided the aggregate of taxes levied in one year, exclusive of the amount levied to pay bonded indebtedness or interest thereon, shall not exceed two per cent upon the valuation of the taxable property.</p>

<p>Taxes—three mill tax for lighting does not apply to cities organized under general law. Section 2 of the act of 1883, (Laws of 1883, p. 68,) purporting to confer upon municipal corporations power to levy an additional tax of three mills on the dollar for lighting purposes, does not apply to cities organized under the general law nor affect their power to levy taxes for corporate purposes, as specified in the City and Village act. (Baltimore and Ohio Southwestern Mailroad Co. v. People, ante, p. 541, followed.)</p>

’ Auditor’s certificate of appeal from decision of Board of Review of Will county. The board of review of Will county, upon a hearing, decided lot No. 2, block 19, original town of Joliet, to be exempt from taxation. The decision was reviewed by the Auditor of Public Accounts and disapproved, and the matter has been certified to this court in pursuance of the provisions of section 35 of the general Revenue act, approved February 25, 1898, (Starr & Cur.

A. K. Vickers, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the Fourth District reversing the judgment of the circuit court of Saline county without remanding the cause. The action is assumpsit, brought by the minor children of Joseph A. Irwin, deceased, by their guardian, against the appellee,.to recover upon an insurance policy issued upon the life of their father.

Charles Blanchard, Judge, presiding. This is a bill, filed on February 26,1902, in the circuit court of LaSalle county by the appellees, children and heirs of Thomas Newell and Sarah, his wife, against the appellant, alleging that Thomas Newell in his lifetime, and on February 28, 1856, bought a lot, known as lot 14 in the Troy Grove cemetery in the village of Troy Grove, and thereby became the owner of said lot, and entitled to the sole and exclusive right to use the same…

<p>1. Insurance—company is liable to penalty for agent’s unauthorized discrimination in rates. A life insurance company, under section 2 of the act of 1891, (Laws of 1891, p. 148,) is liable to the penalty provided in the act in case of a discrimination by its agent between insurants of the same class and equal expectation of life, notwithstanding the agent’s act was not authorized or ratified.</p> <p>2. Same—that an agent violated his instructions does not shield the company from liability. The legislature has a right to prescribe the conditions under which an insurance company may do business in this State, and by so doing business the company accepts such conditions, and cannot shield itself from responsibility for violations of the law by its ag'ent by showing that the agent violated his instructions.</p>

Appeal, from the Circuit Court of Bureau county; the Hon. W. H. Gest, Judge, presiding.

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

<p>1. Taxes—library tax and tax to pay interest on bonds not included in aggregate levy. In determining whether the aggregate tax levy for municipal purposes exceeds the two per cent limit imposed by law, the tax to pay interest on bonded indebtedness and the library tax should be excluded from consideration.</p> <p>2. Same—when city is not limited to three mills for lighting purposes. A city working under a special charter which does not limit the amount which it may raise for lighting the streets may levy any amount, so long as the aggregate municipal tax does not exceed the amount it is authorized by law to raise.</p> <p>3. Same—when act of 1883, authorizing three mill tax for lighting, does not apply. Section 2 of the act of 1883, (Laws of 1883, p. 69,) authorizing the levy of a tax of'three mills on the dollar for lighting the streets, does not apply to a city having a special charter which does not fix a less rate for such purpose.</p>

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

<p>1. Railroads—provision for attorney’s fees in suits for fires by locomotives construed. The recovery of attorney’s fees in suits for violations of sections 1 and IK of the act relating to fencing and operating railroads is dependent upon the recovery of damages, and hence the provision is in the nature of a penalty for violating t-he act, and not for resorting to the courts.</p> <p>2. Constitutional law—provision for attorney’s fees in suits for violating Railroad act is valid. The provision of sections 1 and IK of the act on fencing and operating railroads, authorizing the recovery of resulting damages and reasonable attorney’s fees in any court where suit is brought or to which the case may be appealed in case of violations of the act, is constitutional.</p>

<p>1. Carriers—liability of carrier for injury to goods in transit. Unless its liability is limited by contract a common carrier is liable for damage to goods in transit, either upon its own line or that of a connecting carrier.</p> <p>2. Same—when contract is a “through freight” contract. A contract by which a carrier guarantees a through rate of freight, and undertakes to transport the goods “to destination, if on its road, or otherwise to the place on its road where the same is to be delivered to any connecting carrier,” is a through freight contract, and the receiving carrier is liable beyond its terminus where the goods were carried through in the same car.</p>