Volume 201 — Illinois Reports

JohnH. Moffett, Judge, presiding. This is a bill in equity filed by the appellant in the Livingston count}*' circuit court to restrain the appellees, the board of managers of the Illinois State Reformatory and the general superintendent of the reformatory and ex officio secretary of said board, from removing him from the office of physician of said reformatory.

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

<p>1. Taxes—power of the State to tax shares of stock of national banks. The restrictions imposed by section 5219 of the Revised Statutes of the United States upon the power of a State to tax shares of stock in national banks are, that the tax rate shall not be greater than is assessed “upon other moneyed capital in the hands of individual citizens of such State,” and that shares of stock owned by non-residents shall be taxed where the bank is located.</p> <p>2. Same—term “moneyed capital,” used in act of Congress, construed. The term “moneyed capital,” used in section 5219 of the Revised Statutes of the United States, refers only to capital coming into competition writh that invested in national banks, and hence includes only such capital as is invested in State or private banks.</p> <p>3. Same—if State and private banks are taxed the same as national banks there is no discrimination. There is no discrimination against national banks, in the matter of taxation under a State law, if State and private banks in said State are taxed according to the same method.</p> <p>4. Same—value of.bank’s real estate is not to be deducted from value of stock. Shares of stock of every bank, State or private, in Illinois, as well as its real estate, must be assessed at the full fair cash value, and the assessed value of the real estate is not to be deducted from the value of the stock.</p> <p>5. Same—taxing tangible property to corporation and stock to holders is not double taxation. The taxing of tangible property to the corporation and of the shares of stock to the holders thereof is not double taxation. (People’s Loan Ass. v. Keith, 153 Ill. 609, and In re St. Louis Loan and Investment Co. 194 id. 609, explained.)</p> <p>6. Same—personal property of a national bank not taxable by State. The power of the State to tax tangible property of a national bank is confined by the United States statute to real estate.</p> <p>7. Same—proper method of taxing national banks in Illinois. Shares ; of stock in a national bank in Illinois should be assessed at their full fair cash value to the holders, without deducting from the aggregate assessed value thereof the assessed value of the bank’s real estate, which should be assessed to the corporation.</p>

<p>1. Conspiracy—conspiracy is not the gist of an action on the case. The unlawful act done in pursuance of a conspiracy, and not the fact of the conspiracy itself, is the gist of an action on the case for resulting damages.</p> <p>2. Malicious prosecution—suit on which an action for malicious prosecution is based must have terminated. In an- action for malicious prosecution of a suit without probable cause, the declaration must allege that the suit wjiich is the foundation of the action for malicious prosecution has been legally terminated.</p> <p>3. Same—w hat not an infringement of Bill of Bights- Refusal of the court to entertain an action for malicious prosecution while the suit complained of is pending for trial is not an infringement of the provision of the Bill of Rights that every person ought to find a certain remedy in the law for all injuries he may receive to person, property or reputation.</p> <p>4. Same—institution of a civil suit is not a malicious abuse of process. The actiomfor malicious abuse of process lies for the improper use of process after it has been issued, and not for maliciously causing the process to issue.</p> <p>5. Same—elements essential to action for malicious abuse of process. The existence of an, ulterior purpose, and an act, in the use of process, not proper in the regular prosecution of the suit, are two essential elements of an action for malicious abuse of process.</p>

<p>1. Dram-shops—elements essential to recovery for injury to nieans of support. In an action under the Dram-shop act for injury to plaintiff’s means of support, arising from her husband’s death, it is necessary that plaintiff prove the sale or gift of liquor by defendants to her husband, his consequent intoxication, and that such intoxication caused his death.</p> <p>2. Same—what evidence improper in action under Dram-shop act. In an action against partners in the saloon business for injury to the plaintiff’s means of support, it is error to allow a witness to state that he warned one of the partners that a gambling place was running in a room over the saloon but unconnected therewith except by outside stairs, in which room plaintiff’s intestate was killed.</p> <p>3. Same—plaintiff must prove facts showing liability under the statute. An instruction in an action under the Dram-shop act is erroneous, which substantially tells the jury that the defendants are liable, under the statute, for all damages sustained, not exceeding $5000, without proof of the facts necessary to create the liability.</p> <p>4. Same—liability does not rest alone upon sale or gift of liquor. The-liability, under the Dram-shop act, for injury to plaintiff’s means-of support does not rest alone upon the sale or gift of liquor, but also upon the intoxication resulting therefrom, and the consequent injury.</p> <p>5. Instructions—instruction leaving jury to determine material allegations is erroneous. An instruction authorizing a verdict for the plaintiff if the jury believe, from the evidence, that' she has established the material allegations of the declaration, is erroneous in leaving the jury to determine what allegations are material.</p> <p>6. Same—when instruction is misleading. An instruction holding-that negligence may be the proximate cause of an injury of which it is not the immediate cause is misleading where it cannot be connected with the case, there being no evidence of any negligent, act causing the injury.</p>

<p>1. Wills—uihat does not show want of testamentary capacity. Evidence that the testator’s physical and mental faculties had failed to some extent;' that he sometimes failed to recognize slight acquaintances at first sight; that he entertained religious views somewhat peculiar though common to many other people, and that he preferred fasting to medicine for indigestion, does not show want of testamentary capacity, where there is no evidence of any actual occurrence showing such want of capacity.</p> <p>2. Evidence—testimony that the testator “acted foolish” is improper. Testimony of a witness that the testator “acted foolish” when he went about the house should be stricken out, on motion, where the witness states no facts upon which her conclusion is based.</p> <p>3. ' Same—what testimony improper on issue of testamentary capacity. A statement by the testator’s sister, when asked what she thought of the testator’s mental condition from her talks -with him, that “me and my sister just talked and had a good cry over it; we seen his mind was gone,” should be stricken out, on motion.</p> <p>4. Same—opinions not relevant to the issue are incompetent. Witnesses who have testified to the mental soundness of the testator should not be compelled, over objection, on cross-examination, to'' give their opinions as to whether the testator was honest, truthful and wanted to do right, the only purpose of such questions being to raise an inference against the fairness of the will.</p>

<p>1. Statutes—particular provision controls general one. Of two provisions of a statute, one applying to cases generally and the other to a particular subject, the latter will prevail as to such.subject, and is treated as an exception to the general provision.</p> <p>2. Special assessments—improvement recommendation need not be signed by secretary and president of board. Section 9 of the Local Improvement act authorizes the signing, by at least a majority of the members of the improvement board, of the recommendation for an improvement, and the same need not be signed by the president and secretary as in case of the instruments required by section 6 to be so signed. ■</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. W. M. Farmer, Judge, presiding.</p>

Marcus Kavanagh, Judge, presiding. This was an action of trespass, brought in the superior court of Cook county by A. Burton, the appellee, against the appellants, Henry Janeway, William R. Jane-way and Henry L. Jane way, Jr., co-partners. An attachment in aid was. sued out and served on the ag'ent of the defendants, as garnishee. In his answer the garnishee admitted that he had in his hands moneys of the defendants in excess of the plaintiff’s demands.

<p>1. Special taxation—owner may object, on application for sale, that ordinance is void. A property owner may object, on application for judgment of sale for a special tax levied under the Sidewalk act of 1875, that the ordinance is void for insufficient description of the improvement.</p> <p>2. Same—when sidewalk ordinance is void for granting discretion to commissioner of public works. A sidewalk ordinance, passed under the act of 1875, is void for granting a discretion to the commissioner of public works, which leaves it optional whether torpedo gravel or some other gravel to be selected by the commissioner of public works is to be used in the finish coat.</p> <p>3. Same—when provision of sidewalk ordinance is not invalid. A provision in a sidewalk ordinance that the body of the walk may be composed of broken stone or coarse gravel not larger than will pass through a certain size ring is sufficiently specific, and a property owner may rightfully use either in building his walk.</p> <p>4. Same—purpose of provision requiring description of sidewalk materials. The purpose of the provision of the Sidewalk act of 3875 requiring the materials to be described, is not only to determine the cost and the question whether the constructed walk complies with the ordinance, but also to enable the property owner to properly construct his portion of the walk if he so desires.</p>

<p>1. Equity—when equity has jurisdiction to grant relief against contract on ground of fraud. One desiring' to avoid the legal effect of a contract upon the ground of fraud or misrepresentation as to the extent of the consideration received by one who occupied a fiduciary relation to him, may resort to equity to have the contract reformed or set aside, even though a suit at law has already been brought thereon.</p> <p>2. Same—equity may investigate contract between attorney and client. A court of equity may entertain a bill to investigate the alleged fraudulent conduct of an attorney in obtaining a contract from a client, and may set aside such contract if found to be unfair or obtained by undue advantage.</p> <p>3. Attorney and client—duty of an attorney in contracting with client. An attorney for heirs in the settlement of an estate may agree to collect life insurance policies and may contract for compensation contingent upon his success, but he must give his clients disinterested advice and.exercise the utmost good faith.</p> <p>4. Same—when an agreement for compensation is properly .set aside. A contract giving an attorney one-half the proceeds of life insurance policies for collecting them is properly set aside, where it appears the relation of attorney and client already existed between the parties, and that the contract was procured by the unwarranted representation of the attorney that the policies might never be collected, whereas there was no evidence of any disposition to contest them, and they were, in fact, paid without delay, upon proof of loss.</p>

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

<p>. Appeal from the Circuit Court of Champaign county; the Hon. Francis M. Wright, Judg-e, presiding.</p>

<p>Appeal from the Circuit Court of Warren county; thé Hon. George W. Thompson, Judge, presiding.</p>

<p>1. Trial—legal effect of motion at close of plaintiff’s evidence and at close of all the evidence is the same. A,motion to take a case from the jury, either at the close of the plaintiff’s evidence.or at the close of all the evidence, presents the naked legal question whether there is any evidence in tie record tending to support plaintiff’s case, and it is never a question of the weight of testimony.</p> <p>2. Same—when case against street railway should go to jury. A case against a street railway for not giving warning of the approach of the car to the crossing where plaintiff was struck should go to the jury if there is a conflict in the evidehce on the question of such warning.</p>

Charles Blanchard, Judge, presiding. This appeal is from a judgment of the Appellate Court affirming the judgment of the circuit court of Bureau county in a matter pending in that court on appeal by the First National Bank of Stuart, Iowa, from the county court of said county.

Charles G. Neely, Judge, presiding. For a number of years prior to May 1, 1888, William E. Hale and his brother, George W. Hale, were engaged in the elevator business under the firm name of W. E. Hale & Co., in the city of Chicago.

<p>1. Evidence—when evidence of physical condition of plaintiff is competent. Evidence of physicians as to the physical condition of the plaintiff, whom they had examined the day before the trial of a personal injury case, is competent, if the testimony, taken in connection with that of the plaintiff and another witness, sufficiently connects the injuries received by the plaintiff with the physical condition found by the physicians to exist.</p> <p>2. The decision of the other questions raised in this case is controlled by the cases of Illinois Steel Co. v. McFadden, 196 Ill. 344, and Same v. Sitar, 199 id. 116.</p>

<p>1. Release—release obtained by fraud is void and consideration need not be returned. A release of damages for personal injury is void if obtained by fraud and circumvention, and it is not necessary that the consideration be returned before a suit for damages for such injury is brought.</p> <p>2. Same—whether release was obtained by fraud is a question of fact. Whether a release of damages was obtained by fraud, and whether the party knew he was releasing his right of action for damages for his injury, are questions of fact, which are conclusively settled by the verdict of the jury and judgment of the Appellate Court.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. Charles G. Neely, Judge, presiding.

county; the Hon. S. L. Dwight, Judge, presiding. This is an action of ejectment brought by the plaintiff, against the defendants, in the Jasper county circuit court, to recover the possession of the south-west quarter of the north-east quarter of section 31, township 6, north, range 9, east of the third principal meridian.

<p>Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.</p> <p>This is a bill for partition, filed on January 15, 1901, in the circuit court of Macoupin county by the appellants, Anna Gary and Etta Gary, against the appellees herein for the partition of three hundred and sixty acres of land. The appellees are Sarah Gary, Mary Holliday, James Frederick Gary, William A. Gary, Henry H. Gary, William A. Gary as administrator of the estate of Thomas E. Gary, deceased, Elmer E. Gary, and certain judgment creditors of James Frederick Gary, to-wit, R. Newton, C. H. Burgdorff & Co., Jasper Johnson, John F. Collins, Mrs. A. Tompkins and A. B.' Rollins. The bill alleges that Thomas E. Gary died intestate July 20,1899, leaving him surviving his widow, the appellee, Sarah A. Gary, and, as his only children and heirs-at-law, the appellants Anna Gary and Etta Gary, and the appellees, Mary Holliday, James Frederick Gary, William A. Gary, Henry H. Gary and Elmer E. Gary. The bill, as originally filed and as subsequently amended, alleg’ed the payment by Thomas E. Gary in his lifetime at divers times to his seven children above named of divers large sums of money and other property as advancements. The bill alleges that the amount of the advancements, so made to the appellee, James Frederick Gary, was §2150.60. The bill also alleges that, on November 27, 1893, Thomas E„ Gary paid to his son, James Frederick Gary, the last item of said sum of §2150.60, to-wit, §500.00, and that the said James Frederick Gary then and there agreed with his father, Thomas E. Gary, that, in consideration of said sum of §500.00 and of the several sums of money and articles of property before that time advanced to him, he, the said James F. Gary, would relinquish all his right, title and interest in and to his expectancy in the estate •of his said father; that Thomas E. Gary, in consideration of said agreement on the part of James F. Gary to so release and convey to him his said expectancy, paid to James F. Gary §500.00, and that James F. Gary then and there received and accepted that sum in consideration thereof; “but that said relinquishment was not then, nor is the same now evidenced by any writing executed "by the said James Frederick Gary.” In the bill it was alleged that the sums of money, so received by way of advancements, were brought into court that the same might be considered by the court in determining the amount of the several interests in and to said lands. The bill also alleged, that certain persons, above named as judgment creditors, had obtained judgments against James Frederick Gary in Greene and Jersey counties, and were setting the same up. The bill prayed that James Frederick Gary mig'ht be declared by decree to be divested of his interest in said lands by virtue of said agreement with his father; that the levies made under the executions of said judgment creditors, and the certificates of said levies, so recorded, might be vacated and set aside, together with any sale and certificate of purchase executed by the sheriff under any of said executions; that said Mary Holliday, William A. Gary, Henry H. Gary and Elmer E. Gary be required to bring into court the several amounts so received as advancements; that an accounting be had; that dower and homestead be set off and assigned to the widow, Sarah Gary; that a partition of the residue of said lands be made under the direction of the court, said advancements being considered between the children above named, except James Frederick Gary, according to their rights, a one-sixth interest to each of said children except said James Frederick Gary; and that, in case a partition or assignment of dower and homestead could not be made without prejudice, etc., the premises to be sold and the proceeds to be distributed.</p> <p>A demurrer was filed to the original bill upon the-ground that James F. Gary had an interest in the property therein described, and was a necessary party, and that the allegations, whereby it was charged that James. F. Gary received from his father, Thomas E. Gary, certain sums of money by way of advancement, were not in accordance with the statute in such case made and. provided.</p> <p>An amendment was then filed to the bill, which set up-that advancements were made in various sums to the-seven children of Thomas E. Gary above named. The-amendment averred “that said advancements are not. charged in writing as required by the statute in such cases made and provided,” but that it was the oft expressed purpose of Thomas E. Gary to divide all of his estate among his six children, except James Frederick Gary, to the exclusion of James Frederick Gary, such exclusion being in pursuance of the agreement above set forth; that Thomas E. Gary, being old and feeble, died suddenly, and was thereby prohibited from carrying into effect his intention in this behalf; that his children assembled a few days after his funeral and mutually agreed that the amounts, received by each of them, should be deducted from the share of each child in -the final distribution of their father’s estate. The amendment also alleges that James Frederick Gary, at the time of receiving said sum of §500.00, being" the last item of said sum of §2150.60, on the 27th day of November, 1893, being then in financial stress, agreed with his father that, in consideration of the payment to him of the further sum of §500.00, “he would convey, assign and release to his father all his right, title, share and interest in and to any and all estate of which his father might thereafter die seized;” that Thomas E. Gary, in consideration of said agreement to release his said expectancy, paid to James Frederick Gary $500.00, “but that said agreement or conveyance was not then, nor is the same now, evidenced by any writing then or since executed by the said James Frederick Gary.”</p> <p>A demurrer was filed to the bill' as amended, upon the grounds that there was no legal advancement to James Frederick Gary “because it appears from said bill that the pretended advancement mentioned in said bill was not charged in writing as an advancement to his said son, James Frederick Gary;” that no valid agreement was made between Thomas E. Gary and his son, James Frederick Gary, by which the expectancy of the latter passed from him to his father; that there was no agreement respecting the interest of James Frederick Gary in the lands of his father, present or prospective, at the time of said payment, in writing or otherwise, signed, by Thomas 'E. and James Frederick Gary, and said pretended agreement was void under the Statute of Frauds in such case made and provided; that there is no time alleged within which the agreement was to be executed; and that complainants have not stated such a case as entitles them to any relief.</p> <p>The demurrer to the amended bill was sustained, and the complainants below, the present appellants, stood by their bill. Thereupon the court dismissed the bill as to the part thereof affected by the demurrer.</p> <p>Separate answers were filed by the judgment creditors above named, setting up that, upon the death of Thomas E. Gary, James Frederick Gary became seized by descent of an undivided one-seventh interest in said lands. These answers also set up the recovery of their respective judgments by said judgment creditors, and the levies made by the sheriff of Macoupin county upon the alleged interest of James Frederick Gary in said lands. The answer of R. Newton, one of the judgment creditors, sets out that not only were the executions under his judgments levied, but that a sale was had thereunder, at which he became the purchaser of the interest of James- Frederick Gary in said'premises on January-15, 1901, and prays that in case of a sale the amount of his certificate of sale, with interest, should be paid out of the share of said James F. Gary.</p> <p>The judgment creditors above named also filed a cross-bill, setting up their judgments and the proceedings thereunder as above stated, and also setting up that the brothers and sisters of James F. Gary were conspiring to hinder and delay his creditors, find that he has an interest in the lands. The cross-bill prays that the court will enter a decree, finding that James F. Gary has title to a one-seventh part of said real estate, and that said judgment creditors are.entitled to a lien thereon to the amount of their judgments, etc., and to that end, if sale is made, the amounts of their judgments may be paid out of the money realized from the sale of the share of said James F. Gary, subject to right of dower and homestead, etc. The appellants, Anna Gary and Etta Gary, answered the cross-bill, and admitted the validity of the judgments and the subsequent proceedings thereunder, but denied that James F. Gary had any interest in the land, and denied any conspiracy with him to hinder and defraud his creditors, or that he was insolvent, and denied that the judgments or levies were liens upon the land, and averred the judgment creditors were not entitled to be paid out of the proceeds of sale of said lands.</p> <p>The court rendered a final decree, in which it was recited that the judgment creditors filed a demurrer to the original bill, which was confined to the advancements, alleged to have been made to James Frederick Gary, and to the agreement or family arrangement, alleged to have been entered into between him and his father, and also recited "the allegations of the original bill and the sustaining of the demurrer thereto, and the allegations of the amended bill, and the filing- of a demurrer thereto, and the sustaining of the same, and that the complainants elected to stand by their bill, and that the same was dismissed in so far- as it related to said advancements and said agreement, because said advancements were not charged in writing in accordance with the statute, and because the agreement or some memorandum thereof, was not in writing. The decree also recited a reference of the cause to the master, and a hearing of the same upon bill, answers, cross-bill, -replications, etc. The decree also found that the alleged advancements were not legal, nor in accordance with the statute, but that the children of Thomas E. Gary had each of them waived any informality in regard to the same, and that the record of said advancements should stand as to the amounts alleged to have been made as advancements to said six children, except James F. Gary; that the total amount, advanced to said six children, was §4097.88; that Thomas E. Gary in his lifetime paid to James Frederick Gary §2150.60; that when he paid the last item of said sum, to-wit, §500.00, on November 27, 1893, James Frederick Gary agreed with his father as above stated; but that the sums of money, aggregating §2150.60, were not so charged as to constitute advancements, and that the same are to be wholly disregarded in the distribution and partition of the estate; that the agreement in regard to the expectancy was not sufficient in law, nor availing in equity as against the rights of the judgment creditors of James Frederick Gary, because the agreement was not in writing; that, upon the death of Thomas E. Gary, James Frederick Gary became seized by descent of an undivided one-seventh of said premises, and that the judgments and levies of executions are liens upon the same. The decree thereupon ordered and adjudged that partition be made among all the seven children, including' James Frederick Gary, of the premises aforesaid, taking into consideration said advancements; and the decree allots to James Frederick Gary an undivided one-seventh part of said land, not taking into consideration said sum of §2150.60 received by him, nor any part thereof; and it was decreed that said one-seventh part, so set off to said James Frederick Gary, was subject to the liens of said judgment creditors as aforesaid. It was further ordered in the decree that all proceedings under said sale by R. Newton and under said levies should be suspended during the appeal.</p> <p>The present appeal is prosecuted from the decree so entered, by the present appellants who are complainants below.</p>

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

<p>1. Wills—/act that testator is infirm does not invalidate his will. Old age and infirmity do not render a person incapable of making a will unless they have so far impaired his mind that he is incapable of understanding the business in which he is engaged at the time he makes the will.</p> <p>2. Same—when opinions of witnesses are entitled to little weight. Opinions of witnesses that a testator was forgetful and weak-minded are entitled to but little weight in the face of the positive testimony of many intimate business acquaintances that during the time such conditions were claimed to exist the testator was successfully pursuing his occupation, and was a sober, industrious and capable business man.</p> <p>3. Same—prejudice against a child not ground for setting aside a will. Prejudice of a testator against his child is not ground for setting aside a will unless it can be explained upon no other ground than that of an insane delusion.</p> <p>4. Same—unequal division of property does not show insanity or undue influence. An unequal division of the testator’s property amongst his children does not, of itself, justify the court in holding that the testator was insane or that he was unduly influenced by the favored child.</p> <p>5. Same—when verdict in will case will be set aside. A verdict finding against the validity of a will will be set aside upon appeal and a new trial granted where it clearly appears the jury acted in utter disregard of the evidence.</p> <p>6. Practice—when motion to strike cross-errors from the record will be denied. If the expenses attendant upon a will case have been allowed and taxed as costs, an appeal brings .up that part of the record, and a motion to strike from the files the cross-errors assigned upon the allowance of such expenses will be denied.</p>

<p>Writ of Error to the Appellate Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of Coles county; the Hon. Frank K. Dunn, Judge, presiding.</p>

<p>1. Mortgages—a deed intended as security for a debt is a mortgage. A deed intended as security for a debt is a mortgage although absolute in form, whether the intention is manifested by a written defeasance, a parol declaration or the acts of the parties.</p> <p>2. Same—agreement extinguishing equity of redemption must be fair. An agreement between a mortgagor and mortgagee, by which the mortgagor’s equity of redemption is extinguished and the entire estate is vested in the mortgagee, will not be sustained, in equity, unless the transaction is fair, and free from oppression, fraud or undue influence.</p> <p>3. Same—relation of parties may be considered in determining fairness of agreement. In determining whether an agreement for the extinguishment of the equity of redemption is fair and just to the mortgagor the relations of the parties will be inquired into.</p> <p>4. Attorney and client—attorney cannot profit by buying judgment against client. An attorney who induces a creditor of his client-to obtain judgment on his claim, which the attorney then purchases-for less than its face value with a view to selling his client’s property on execution, must, at least, credit his client with his profit in the transaction when advancing her the amount necessary to-redeem from the execution sale.</p> <p>5. Same—when agreement between attorney and client is not enforceable. An oral agreement to release an attorney from his bond to re-convey property to his client upon payment of the note which her deed to him was intended to'secure, and to allow him to keep the property in payment of his bill for legal services, part of which had been rendered in connection with such property, cannot be enforced against the client, particularly where the note had been paid and the bill for services contained many items of over-charge.</p> <p>6. Same—business transactions between attorney and client are closely scrutinized. Business transactions involving deeds, notes and mortgages, conducted between the parties as debtor and creditor while the relation of attorney and client existed between them, can only be sustained, when attacked by the client, upon proof that they were fair and honest, and any doubts must be resolved in favor of the client.</p> <p>7. Witnesses—when husband may testify in wife’s behalf. Under section 5 of the Evidence act a husband may testify in behalf of his wife where the litigation concerns her separate property.</p> <p>8. Laches—when delay in filing a hill to redeem does not amount to laches. Filing bill within ten years after a mortgage debt matures, to compel re-conveyance of land held as security under a deed absolute in form is sufficient to avoid the imputation of laches, where it appears the complainant tried for years to induce the defendant to re-convey, and for that purpose called frequently at his office but he repeatedly refused to see her and avoided her.</p>

Elbridge Hanecy, Judge, presiding. This is an action, of debt, brought by the People of the State of Illinois, at the relation of the Attorney General, against the Butler Street Foundry and Iron Company, a corporation organized under the laws of this State, with its place of business' in Cook county, to recover a penalty of $50 per day for a failure on its part to comply with the provisions of sections 7a. and 76 of “An act to provide for the punishment of persons,…

<p>1. Insurance —notice to agent of facts material to the risk is notice-to the insurer. Notice to the agent, at the time of the application for the insurance, of facts material to the risk is notice to the insurer, and will prevent it from insisting upon a forfeiture for causes within such agent’s knowledge.</p> <p>2. Same—when insurer is estopped to insist upon forfeiture. The'in- ■ surer is estopped to insist that statements in an application are warranties, the falsity of which forfeits the policy, where such statements are but the conclusions of the agent, put in by him in lieu of the facts disclosed to him by the assured.</p>

<p>1. Eminent domain—section 17 of Local Improvement act of 1897 construed. Under section 17 of the Local Improvement act of 1897 it is the duty of commissioners in assessing damages and benefits for opening or widening a street, a part of which has been previously donated to the public by the proprietor of adjoining land, to take such donation into consideration, and in their report allow or disallow the value of the land donated, as an offset to benefits.</p> <p>2. Same—when land donated should be taken into consideration in assessing benefits. If the grantor of the proprietor of land had previously donated a portion thereof for a street, the value of the land so donated should be appraised and applied as an offset to the benefits assessed against land abutting upon the strip donated, in a subsequent condemnation proceeding to widen the street at the place where such donation was made. (Shurtleff v. Chicago, 190 Ill. 473, distinguished.)</p>

<p>1. Jurisdiction—jurisdiction of subject matter has its soürce in the law. Jurisdiction of the subject matter has its source in the law creating and governing the court, and it must be exercised in the mode and to the extent prescribed by such law.</p> <p>2. Same—;judgment is a nullity if court has no jurisdiction. A judgment rendered by a court having no jurisdiction to hear the case is an absolute nullity, and may be attacked at any time and in any proceeding.</p> <p>3. Appeals and errors—transcript is essential to jurisdiction on appeal from justice of peace. The circuit court has no jurisdiction of the subject matter on appeal from a judgment of a justice of the peace if there is no transcript of the proceedings, as is required by section 25 of artice 9 of act relating to justices of the peace.</p> <p>4. Same—court may take jurisdiction if justice’s transcript is merely defective. The circuit court may take jurisdiction of an appeal from a judgment of a justice of the peace if the transcript certified by him is merely defective, since the court may require the defects to be remedied.</p> <p>5. Same—what not a transcript of proceedings in justice court—equitable relief. A paper filed in the circuit court, indicating that there had been some proceedings before a justice of the peace but not naming any party to identify the case and containing an unsigned form of certificate, is not a sufficient transcript to confer jurisdiction on the circuit court, and equity will set aside the judgment rendered on such appeal, as also a sale of property thereunder.</p>

John H. Moffett, Judge, presiding. This is a bill for .injunction, filed in October, 1901, in the circuit court of Logan county by the appellee, James A. Glenn, against the appellants, William V. Guttery, as president, and six other persons, composing the board of directors of the village of Middletown, and Walter Ray-born, clerk of said village, alleging that a certain street, shown oh the plats hereinafter mentioned and called Union street, runs east and west, and crosses…

<p>1. Wills—words of inheritance not essential to create estate in fee simple. Under the Conveyance act, words of inheritance are not now essential to create an estate in fee simple.</p> <p>2. Same—intention to limit fee simple devise must appear. Language used by the testator sufficient to pass a fee simple title will be given such effect in the absence of the expression of an intention to limit the fee to a less estate.</p> <p>3. Same—what does not limit fee simple title to a life estate. If a clause in a will provides that the sole survivor of the three devisees shall be “the sole owner in fee of all said premises,” his fee simple title is not reduced to a life estate by reason of the further declaration that he shall continue to be such owner during the rest of his life.</p> <p>4. Same—a testator cannot prohibit alienation of fee simple estate. A testator, after devising an estate in fee, cannot take from such estate the quality of inheritance or the right of the owner to alien the estate.</p> <p>5. Same—when a survivor takes afee simple title. A devise of described land to the testator’s brother and sisters in equal parts, the land not to be mortgaged or sold during the lifetime of the devisee unless absolutely necessary, and providing that the sole survivor shall be “the sole owner in fee of all said premises” and shall continue to be sole, owner the rest of his life, and may sell the premises if necessary for his support, passes a fee simple title to the sole survivor, where there is no disposition of any remainder other than a general residuary clause to the same devisees.</p>

<p>1. Evidence—what competent in suit for breach of contract. If the defendant in a suit for breach of a partially executed contract to purchase pig iron claims that plaintiff’s right of action was included, with his other demands, in a compromise, under which defendant executed notes and a trust deed to adjust the claims of its creditors, including the plaintiff, the notes and deed may be given in evidence, in connection with testimony of their prompt payment, to show compliance by defendant with the compromise.</p> <p>2. Instructions—when instruction upon rescission of contract is not misleading. An instruction holding that a “contract may be rescinded by consent of all the contracting parties, and this consent need not always be expressed in words,” does not authorize the jury to find a rescission without regard to whether the contracting parties had agreed to rescind or not.</p> <p>3. Sales—right of defendant to require plaintiff to show readiness to perform,. A plea of the general issue, in an action by the seller for breach of the defendant’s agreement to receive merchandise, puts the plaintiff upon proof of the material allegations of the declaration, and the court may, by instruction, require it to prove it was ready and willing to deliver the merchandise at the time and place and upon the terms agreed upon, even though the principal defense is waiver or rescission of the contract sued upon. a</p>

<p>1. Special taxation—“contiguous” to improvement means “abutting” upon the same. Under an ordinance authorizing the levy of a special tax upon land “contiguous” to the improvement, only such property as abuts upon the street to be improved can be taxed.</p> <p>2. Same—special tax commissioners bound to take notice of recorded deeds showing division of lots. Special tax commissioners are bound to know that certain lots originally platted as fronting upon the street to be improved have been divided into halves, where such division is shown by recorded deeds and possession and improvement of the property in accordance therewith.</p> <p>3. Same—effect where lots originally abutting on street are divided. If lots originally platted as fronting north upon the street to be improved by special tax upon contiguous property have been divided into north and south halves and sold, the south halves," if improved as one lot fronting upon a cross-street, cannot be specially taxed for the improvement as “contiguous” property.</p> <p>4. Same—what not notice of special tax. Notice “to the owners of abutting lots” of a special tax proceeding is not notice to owners of a tract of land fronting upon another street and not touching upon the street to be improved, even though such tract is composed of portions of lots originally platted as abutting upon the latter street.</p> <p>5. Same—collector has no authority to apportion tax. The county collector has no power to assess a special tax against lots not assessed by the commissioners, nor to apportion upon different parts of lots a special tax assessed against the lots as a whole.</p> <p>6. Tax deeds—when tax deed is invalid. A tax deed for property sold for a special tax is void where no valid special tax could have been levied against the property, ór where the sale is for a tax not in fact levied upon the property sold.</p> <p>7. Sams—when amount bid at tax sale need not be re-paid. Neither the amount paid at a tax sale by the holder of the tax deed nor the amount paid by him upon a sidewalk assessment in order to protect his title need be re-paid by the owner of the property, as a condition to relief, where the sale was void because the property was in no way liable for the tax.</p> <p>8. Judicial sales—purchaser is bound to know that tax was valid. A purchaser at a tax sale is bound to know, at his peril, that the property owner is in fact delinquent in the payment of a valid tax assessed against the property.</p> <p>9. Costs—when costs are properly adjudged against the defendant. The costs of a proceeding to set aside a tax deed as a cloud are properly adjudged against the defendant, where he.not only attempted to sustain an invalid title, but refused, when requested, to surrender his certificate of purchase before suit was brought.</p> <p>10. Judgments and decrees—order setting aside tax deed should not direct a re-conveyance. A decree setting aside a tax deed as null and void should not order the defendant to convey the property to the complainants, but should perpetually enjoin him and his heirs and assigns from asserting title to the property.</p> <p>11. Deeds—sufficiency of description of property conveyed. The description in a deed of property as being in “Frye’s addition” to a city is sufficient to identify property located in “Smith Frye’s addition,” where it appears there was ho other “Frye’s” addition.</p> <p>12. Same—when certificate of magistracy is unnecessary. Under the second clause of section 20 of the Conveyance statute, if a deed is acknowledged before a notary public in a foreign State a certificate of magistracy is unnecessary.</p>

<p>1. Appeals and errors—only parties interested in will can appeal from order of probate. Section 14 of the act relating to wills grants the right of appeal from an order allowing or disallowing probate only to persons interested in will.</p> <p>2. Mandamus—interest of party seeking to compel allowance of appeal must appear. The interest of a party in the suit must appear in his petition for mandamus to compel allowance of an appeal, either from averments of fact or from the record. (Smith v. Boisvert, 183 Ill. 318, and White Memorial Home v. Price, 195 id. 279, explained.)</p> <p>3. Same—when interest of party does not appear from petition. The interest of trustees of a cemetery in the matter of allowing an appeal from an order denying probate does not appear in a petition for mandamus containing a copy of the will, which bequeaths $1000 to a named person “if he is living, and if he is dead it goes to the improvement of the * * cemetery,” where there is no allegation that the person named as first legatee is dead.</p> <p>4. Wills—when trustees of cemetery have no interest in provision of a •will. A direction in a will to sell the property of the testatrix and to use the proceeds and the bank stock of the testatrix to build a vault in a certain cemetery for herself and her deceased husband, and “for other improvements,” passes no interest to the trustees of the cemetery.</p>

<p>1. Negligence—piling lumber on sidewalk in violation of ordinance is prima facie negligence. Piling lumber upon a sidewalk and permitting it to remain there in violation of an ordinance until it fell upon and killed plaintiff’s child is prima facie negligence on the part of the defendant.</p> <p>2. Same—when question of contributory negligence of mother is one of fact. Whether a mother was guilty of contributory negligence in permitting her four-year-old child to play about a pile of lumber is a question of fact, where there is a conflict in the evidence as to whether she knew the child was near the lumber pile, and also as to whether she had been requested to keep it away.</p> <p>3. Same—whether negligence of defendant was proximate cause of injury is a question of fact. Whether the negligence of the defendant in piling lumber on- a sidewalk in a public street where he knew the children of the neighborhood were in the habit of playing was the proximate cause of the injury occasioned by the falling of the lumber is a question of fact.</p> <p>4. Same—when negligence of a parent does not defeat recovery. The negligence of a mother in permitting her child to play upon the street does not defeat a recovery for injuries inflicted upon the child unless such negligence contributed to the injury.</p>

<p>1. Bills op review—what essential to relief on a bill of review. To ' entitle complainant to relief on a bill of review for newly discovered evidence, it is essential that the evidence be discovered after the original decree was entered; that it could not have been discovered before by the exercise of reasonable diligence; that it be material and of such a character as will produce a different result on the merits on another trial, and that it be not merely of a cumulative or impeaching character.</p> <p>2. Same—bill of review must fully inform defendant of issues tendered. A bill of review, grounded upon newly discovered evidence, should so clearly state the findings of the original decree that are put in controversy by the new evidence as to fully inform the defendant of the character of the issues tendered.</p> <p>3. Same—bill of review must be accompanied by proper testimony applicable to its allegations. A bill of review for newly discovered evidence must be accompanied by proper testimony applicable to its allegations, so that the court can see, from the allegations and the testimony, that the result will be different upon another trial.</p> <p>4. Same—allegations of bill and the proffered testimony must be considered together. The allegations of a bill of review for newly discovered evidence and the testimony proffered with the bill must be considered together in determining the sufficiency of the complainant’s showing of his right to the relief sought, and it is just as important that the proffered testimony be specific and cover the allegations of the bill, as it is that the allegations be specific and state the errors committed by. the court because of the absence of such proffered testimony.</p> <p>5. Same—it must appear that the new evidence could not have been discovered by reasonable diligence. It is an absolute essential of a bill of review for newly discovered evidence that it appear from the bill, or the affidavit thereto, that the evidence was in fact newly discovered, and that it could not, by the exercise of reasonable diligence, have been discovered and used before the publication of the original decree.</p> <p>6. Same—mere allegation of diligence in a bill of review is insufficient. A bill of review for newly discovered evidence must state facts and circumstances from which.the court can see, independently of the mere statement of the fact, that complainant has used reasonable diligence, and that, notwithstanding such diligence, he was unable to procure the evidence in time to use it at the original hearing or before publication of the decree.</p> <p>7. Same—what facts show a failure to use-diligence. Failure to use diligence in procuring alleged newly discovered evidence is shown where the original suit was pending six years, and the defendant, who is complainant in the bill of review, had three years after filing his answer to procure the evidence, all of which, with the exception of one affidavit, was obtained within forty miles of the trial county, there being no showing that he ever wrote, went or sent any one to that place to seek evidence for the original suit.</p> <p>8. Same—when affidavits to bill of review and petition therefor are insufficient. Affidavits to a bill of review and the petition therefor are insufficient where they show that the complainant was unwilling to swear unequivocally to the truth of the matters set forth.</p>

<p>1. Special taxation— Sidewalk act of 1875 is limited to construction of sidewalks. A city has no power, under the Sidewalk act of 1875, to pass an ordinance for the construction, by special taxation, of a sidewalk and curb, the latter to be set two feet from the edge of the walk and in no sense a part of it.</p> <p>2. Same—when judgment of sale is not conclusive as to legality of tax. Failure of the owner of property to object to the entry of judgment of sale for a special tax levied under an ordinance which the city had no power to pass, does not preclude him from attacking the validity of the tax and the judgment of sale collaterally.</p> <p>3. Tax sales—purchaser is bound to know that owner is in truth a delinquent. A purchaser at a delinquent tax sale is bound to know that the tax has been lawfully assessed against the owner and that he has failed to make payment.</p> <p>4. Same—when re-payment of an illegal tax is not a condition to relief against sale. Re-payment to the purchaser of the amount paid by him at the tax sale is not a condition precedent to the owner’s right to have the tax sale set aside or to enjoin the issue of a tax deed on such sale, where the tax is illegal and void.</p>

<p>1. Special assessments—when error to include cost of making assessment. It is error to include the cost of making and collecting a special assessment in a judgment of confirmation entered after the act of 1901, prohibiting such course, took effect.</p> <p>2. Same—when ordinance sufficiently specifies width of roadways. An ordinance sufficiently specifies the width of roadways to be paved which declares that such roadways comprise a specified number of feet upon each side of the center line of the streets named.</p> <p>3. Same—word “grade” includes all that need be done to put roadway in condition. An ordinance providing that the roadway of streets shall be graded need not specifically state "that the low places of the street shall be filled and the high places cut down, as the word “grade” naturally includes such action.</p> <p>4. Same—when ordinance is not uncertain with respect to grade. An ordinance is not uncertain as to grade which establishes a grade line with reference to a fixed datum, and provides that after the roadway is thoroughly graded and compacted and the pavement of a certain described thicknes's is placed thereon, the center surface of the finished roadway shall be three inches above the established grade of the streets.</p> <p>5. Same—variance must be willful or substantial to be available. A variance between the ordinance and the petition and between the first resolution of the board and the ordinance must be shown to be willful or substantial to be available as an objection to confirmation of the assessment.</p> <p>6. Same—the engineer’s estimate need not appear in extenso in board’s resolution. Section 7 of the Local Improvement act of 1897, providing that the board of improvements shall cause an estimate of the cost of a proposed improvement to be made, in writing, by the engineer, over his signature, “which shall be made a part of the record of such resolution,” does not require that such estimate be set out in extenso or in hcec verba in the resolution.</p> <p>7. Same—resolution may be adopted by majority of board. The final resolution for an improvement may be adopted by a majority of the board. (Gage v. Chicago, 196 Ill. 512, followed.)</p> <p>8. Same—notice of adjourned meetings is unnecessary. If sufficient notice of the first meeting to consider a proposed improvement is given, the board may adjourn the meeting from time to time, and it is the duty of parties desiring to present objections to attend the adjourned meeting without further notice.</p> <p>9. Same—five days’notice of public meeting is reasonable. Five days’ notice of the first public meeting of the improvement board for the consideration of a proposed improvement is reasonable.</p>

<p>Appeal from the Oounty Court of Douglas county; the Hon. William H. Bassett, Judge, presiding.</p>

W. G. Church, Judge, presiding. This is an application in the county court of Henderson county for judgment and sale of the right of way of the Atchison, Topeka and Santa Fe Railway Company, listed as the property of the Chicago, California and Santa Fe Railway Company, for non-payment of district taxes of road district No. 7, Henderson county, Illinois, and other lands. Objections to entry of judgment and sale were filed by the Atchison, Topeka and Santa Pe Railway Company.

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

Edmund W. Burke, Judge, presiding. This is a bill in chancery, filed in the circuit court of Cook county by the appellant, to enforce the specific performance of a verbal agreement for the purchase by her from the appellee Hicks of the premises known as 70 Ellen street, in the city of Chicago.

<p>1. Parent and child—child born in wedlock is presumed, to be legitimate. A'child born in lawful wedlock is presumed to be legitimate; and this presumption is not overcome by proof of ante-nuptial conception.</p> <p>2. Same—burden of proving illegitimacy is upon party asserting it. A child reared in lawful wedlock of its mother and her husband, and treated and recognized by the husband as his lawful child, is prima facie the child of the husband, and the burden of proving the com trary is upon the party asserting it.</p> <p>3. Same—what does not overcome the presumption of legitimacy. If a child born fifteen days after her mother’s marriage is treated and cared for by the husband as his child, the presumption of its legitimacy is not overcome by the fact that the mother was divorced from a former husband only twenty days before such marriage, particularly where the divorce was obtained by publication.</p> <p>4. Ante-nuptial contracts—what not payment upon ante-nuptial contract. The collection of rents by a widow, after she has repudiated ah ante-nuptial contract, in the belief that she is entitled to dower and homestead, does not constitute a payment upon the ante-nuptial contract.</p> <p>5. Same—when ante-nuptial contract does not bar widow’s award. A widow whose family consists, in part, of a child of the deceased husband, may repudiate an executory ante-nuptial contract releasing the widow’s award.</p> <p>6. Same—homestead cannot be waived by executory ante-nuptial contract. The homestead rights granted by statute cannot be waived by an executory ante-nuptial contract, even though the contract is made and acknowledged in conformity with the law relating to the release of homestead, where there is a minor child of the deceased householder, as well as the widow, who is interested in the preservation of the estate.</p> <p>7. Same—when an ante-nuptial contract is inoperative in toto. If an ante-nuptial contract providing for the payment of a gross sum for the release of the widow’s award, dower and homestead rights is declared inoperative as to the provision for'waiver of homestead and widow’s award, it is inoperative in toto and does not affect dower.</p> <p>8. Contracts—when public policy does not permit statute to be abrogated by contract.. Laws enacted out of concern for the public welfare as well as for the benefit of those directly affected by the law, in so far as they confer privileges and exemptions upon persons not only for their own benefit but also for the benefit of others dependent upon them, cannot be abrogated by personal agreements.</p>

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

Appear from the County Court of Cook county; the Hon. Orrin M. Carter, Judge, presiding. This is a proceeding' in the county court of Cook county for the confirmation of a special assessment to pay for curbing, grading and paving the east half of Cottage Grove avenue, from Drexel square to the center of Fifty-ninth street, in the city of Chicago.

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

<p>Appeals and errors—when a condemnation verdict will stand on appeal. Damages awarded by the jury in condemnation, if within the range of the evidence, will not be disturbed on appeal, where the evidence is conflicting and the jury viewed the premises.</p>

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

Ap'pjsal from the Circuit Court of Vermilion county; the Hon. P. Bookwalter, Judge, presiding.

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

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding. This is a bill, filed on March 29, 1899, in the superior court of Cook county to foreclose a trust deed and the principal and interest notes secured thereby, the com■plainants in the bill being the trustee, James H. Gilbert, and John E. Houston, the defendant in error, the owner of the notes.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Murray P. Tuley, Judge, presiding.</p>

<p>Appeal from the County Court of Coles county; the Hon. John P. Harrah, Judge, presiding.</p>

<p>1. Railroads—possession of right of way is notice of company’s rights. Possession by a railroad company of its right of way is notice to all subsequent purchasers of its rights in the premises.</p> <p>2. Same—what acts constitute visible possession of right of way. Setting side stakes, establishing and marking grades, cutting underbrush and ploughing and grading with men and teams constitute visible possession by a railroad company of its right of way.</p> <p>3. Contracts—agreement to convey right of way is not a mere license. An agreement to convey a right of way to a railroad company upon completion of its road is not a license, which may be revoked after the company enters upon the construction of its railroad, which it subsequently completes and puts in operation.</p> <p>4. Ejectment—when party cannot maintain ejectment. One acquiring the legal title to land after a railroad company has entered into possession of a right of way thereover by agreement with the then holders of the legal title and the party in possession, who held the equitable interest, and without notice of the unrecorded contract establishing the conditions under which the legal title was subsequently acquired, cannot maintain ejectment against the company to recover the land occupied as right of way.</p>

A. H. Chetlain, Judge, presiding. The appellees John B. Mason and Henry P. Kransz brought their bill in equity in the superior court of Cook county against the appellants, Nikolaus and Katharina Uedelhofen, to- foreclose, as a mortgage, a deed of trust on real estate given to secure the payment of appellants’ note for §1000, and interest. The note was payable to the order of the makers and endorsed in blank. The complainant Mason claimed to be the legal holder.

John P. Harrah, Judge, presiding. On April 1, 1901, Emeline Reat owned lots 13 and 16 in T. Bagley’s addition to Charleston, Coles county, and personal property consisting of notes secured by a mort.gage upon real estate in said county. This personal property was in Charleston in possession of George H. Jeffries on said date, and the property was assessed, and tax was levied against Jeffries as agent. At that time Emeline Reat was a resident of the State of California.

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. Elbridge Haneoy, Judg'e, presiding.

<p>1. Appeals and errors—what necessary in order that the revenue be involved. The revenue can only be involved, under thé issues, 1 where some of the authorities authorized by law are proceeding to assess or collect taxes under the law and questions arise between them and the tax-payers. :</p> <p>2. Same—when revenue is not involved on appeal. The revenue is not involved, for purposes of a direct appeal to the Supreme Court, in a controversy between two bodies of municipal authorities over the right to receive the proceeds of a tax already collected.</p>

George W. Thompson, Judge, presiding. In 1888 Johanna Leonard, a widow with children, purchased lot 11, in block 53, in the city of Galesburg, in Knox county, Illinois, and took possession of the same, and occupied the premises with her family as a homestead. She lived there until 1895, when she rented the premises to a tenant and went to her daughter, Margaret Powers, living in California.

<p>1. Marriage—effect of conveyance of land just before marriage. A voluntary conveyance of land by either party to an intended marriage without the knowledge of the other and shortly before the marriage is prima facie a fraud upon the dower rights of such other, and the burden is upon the grantee to establish its validity.</p> <p>2. Same—reasonable conveyance to provide for children is not fraudulent. A conveyance just previous to the grantor’s marriage is not fraudulent as to the rights of the intended wife, although made 'without her knowledge, if the advancement is shown to be reasonable and was intended as a provision for the grantor’s children.</p> <p>3. Same—a conveyance to carry out a valid contract is good as against dower. A conveyance made for the purpose of carrying out a previous valid contract is good as against the dower right of grantor’s intended wife, although made without her knowledge.</p> <p>4. Same—when deed to grantor’s son is valid as against dower of intended wife. A deed to the grantor’s son is valid, as against a claim of dower by the grantor’s wife, where the deed was recorded ten days before the grantor’s marriage, and was made in pursuance of a parol promise to the son, who had worked the farm for many years without pay, and who assumed, as consideration for the conveyance, the payment of certain debts and annuities.</p>

<p>1. Appeals and errors—when alleged insufficiency of evidence is the only point relied on for reversal. Plaintiff in error in a criminal case will be held to rely upon the alleged insufficiency of the evidence as the sole ground for reversal where his entire argument is devoted to that point, the instructions are not set out in the abstract, and no objections to the instructions nor to the rulings on evidence are pointed out or discussed.</p> <p>2. Same—only grounds for reversal contained in motion for new trial can be considered. No grounds for reversal other than those set out in the motion for new trial will be considered by the Supreme Court on direct review of a judgment in a case tried before a jury.</p> <p>3. Same—motion for new trial must be preserved in bill of exceptions. A motion for new trial, and the court’s ruling thereon, must be preserved in the bill of exceptions, and it is not sufficient that the clerk copy the said motion into the transcript of the record made by, him.</p>

<p>1. Practice—change inform of action does away with pleadings informer action. A change in the form of an action from debt to assumpsit does away with the pleadings in the former action, in the absence of any stipulation or order of the court to the contrary.</p> <p>2. Corporations—when execution of bond by corporation is not ultra vires. A corporation organized for “the purchase and sale of lumber, and all adjuncts for carrying on a general lumber business,” has power to execute a bond for the performance of a building contract in order to secure a sale of lumber to the contractor.</p> <p>3. Evidence—what competent as tending to show that execution of bond was to malee a sale. As tending to show that a bond executed for a lumber company by its salesman was executed to secure a sale of lumber to a contractor, evidence that similar bonds had been executed by the company, and that the company, in a subsequent letter, agreed to carry out the bond, is admissible.</p> <p>4. Same—ivhen not error to admit a letter purporting to ratify a bond. A letter from a corporation purporting to ratify a bond executed by its agent is admissible over an objection that it is “incompetent, irrelevant and immaterial,” not to aid the validity of the bond, but as tending to prove the corporation executed the bond.</p> <p>5. Contracts —what not such a breach of contract as precludes resort to bond. Failure of the owner to withhold payments on a building contract does not preclude bis resort to a bond given for the faithful performance of the contract, although the contract provides thatpayments shall be made in accordance with the Mechanic’s Lien act, as amended in 1891, fixes a time for making partial payments and final payments, and recites that the “twenty per cent agreed to be reserved shall be held by the proprietor as security,” etc.</p>

<p>Appeal from the Circuit Court of Fulton county; the Hon. George W. Thompson, Judge, presiding".</p>

<p>1. Special assessments—effect where an ordinance passed prior to 1897 is held defective. A special assessment ordinance passed under the law as it existed prior to the Local Improvement act of 1897, if subsequently held to be defective, may, under section 58 of such act of 1897, be corrected by passing a new, ordinance and making a new assessment.</p> <p>2. Same—estimate of cost js unnecessary if improvement is completed. In making a new assessment for improvement already completed the city is not required to do unnecessary things, such as the appointing of commissioners to make an estimate of cost.</p> <p>3. Same—effect where judgment annidling assessment does not remand. If a confirmation judgment is annulled by a judgment of the Supreme Court, it is the duty of the city, under sections 57, 58 and GO of the Improvement act of 1897, to make anew assessment, whether the cause was remanded or not.</p> <p>4. Appeals and errors—Supreme Court will not search for defects to sustain general objections. On appeal from a judgment of confirmation the Supreme Court will not search through the specifications to find support for general objections that the ordinance is defective in its description of the improvement.</p>

Writ op Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge; presiding.

Orrin N. Carter, Judge, presiding. This is an appeal from the judgment of sale for certain lots located in Cook county, Illinois, for the nonpayment of a special assessment levied by the city of Chicago for water service-pipes in West Superior street, from-North Forty-sixth avenue to North Fiftieth avenue, in said city. The proceedings for the special assessment were commenced and prosecuted under the Local Improvement act of 1897.

John H. Moffett, Judge, presiding. On the 18th day of August, 1897, the appellant Revilo Oliver and Mrs. Maude Barlow entered into two contracts for the exchange of lands and other property.

R. A. Russell, Judge, presiding. A petition was filed in the county court of McLean county by Ruth Ann Bunn, executrix of the last will and testament of Isaac K. Bunn, deceased, for leave to sell the real estate of the decedent to pay debts. She after-wards resigned as executrix, and the appellee, John P. Arnold, administrator de bonis non with the will annexed, was substituted. On a bearing an order of sale was entered.

<p>1. Bankruptcy—provable debt created by fraud not discharged. The words “while acting as an officer,” etc., used in section 17 of the Bankruptcy act, providing that a discharge in bankruptcy shall release the bankrupt’s provable debts, except such as “were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity,” refer to the word “defalcation,” and not to the word “fraud,” “embezzlement” or “misappropriation.”</p> <p>2. Same—fraud must be positive as distinguished from constructive. In order that a discharge in bankruptcy shall not release a provable debt created by fraud, the fraud must be positive, involving moral turpitude, and not merely constructive.</p> <p>3. Judgments and decrees—effect of affirmance by Appellate Court in case of disagreement. A judgment of affirmance by the Appellate Court entered because of the disagreement of two of the judges, the third having presided in the trial court, settles all controverted questions of fact and inferences of fact arising from facts proven, the same as other judgments of the Appellate Court in suits at law.</p> <p>4. Evidence—when objection to exclusion of testimony is waived. An objection that the court erred in ref using, to allow a defendant to testify as to his good faith in the transaction involved is waived, where the plaintiff withdrew his objection after it had been sustained, and stated that the testimony might be admitted without objection, but the defendant declined to avail himself of such withdrawal and did not testify.</p> <p>5. Appeals and errors—when question of illegality of contract is not presented. While parties to a suit cannot, by some act or omission of their own, compel courts to enforce contracts forbidden by law, yet the question of illegality cannot be considered by a court of review if there is some evidence that the contract was a legal one, and the record does not show, either in the pleadings, evidence or propositions of law, that the question was raised in the trial court.</p> <p>6. Same—when question of wrong theory of damages is not presented. An objection that the court adopted a wrong theory in assessing damages is not presented as a question of law, even though it appears from remarks embodied in the bill of exceptions that the court expressed views on the subject, where no proposition of law presenting the question was asked and there is nothing to show the court carried these views into its- findings or judgment.</p>

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

<p>1. Practice—each objector to confirmation judgment is not entitled to three peremptory challenges. If the objections to the entry of a judgment confirming an assessment are tried in one case, the objectors are together entitled to but three peremptory challenges, notwithstanding the objectors are represented by different counsel. (Schmidt v. Chicago and Northwestern Ry. Co. 83 Ill. 405, adhered to.)</p> <p>2. Same—manner of interposing challenges is discretionary with trial court. The manner in which the defendants shall interpose their peremptory challenges is a matter in the discretion of the trial court, and will not be reviewed unless such discretion is abused.</p> <p>3. Special assessments—what not admissible in confirmation proceeding. On application for judgment confirming a special assessment for water supply-pipes, copies of an ordinance and contracts by which it is sought to show that a certain private water company could be compelled to lay pipes in the territory subject to the assessment are not admissible.</p> <p>4. Trial—what is not improper restriction of cross-examinaiion. Refusal to require a witness for the city in a confirmation proceeding to state how his income from his real estate business compared with the amount he has stated he received from the city the previous year for testifying in special assessment cases, is not an improper restriction of cross-examination.</p>

Writ op Error to the Comity Court of Ford county; the Hon. E. B. Gower, Judge, presiding.