Volume 202 — Illinois Reports

<p>1. Contracts — when contract for school house is the obligation of the district. A contract for a school building, signed by the individual directors of the district, is the obligation of the district, where the contract recites that the board of directors is the party of the second part, that the parties “have hereunto set their hands,” and it is stipulated that the contractor completed the building for the district and that it was accepted by the board.</p> <p>2. Taxes — what assessment the basis for ascertaining amount of lawfulindebtedness. The assessment to be resorted to in ascertaining the extent to which a school district may lawfully become indebted is the last preceding assessment which has been completed by the final action of the State Board of Equalization.</p> <p>3. Same — indebtedness is valid to extent allowed by constitution. An indebtedness created by a contract for a school building is valid to the amount within the constitutional limit, even though the directors have attempted by the contract to create an indebtedness greater than the district could lawfully incur.</p> <p>4. Same — when levy for building purposes is valid. A two and one-half per cent levy for building purposes is valid if amount which such levy should raise does not exceed the amount to which the district may lawfully become indebted, even though the contract for the school building attempts to create an indebtedness beyond the constitutional limit.</p> <p>5. Same — effect of application of money in treasury to school building. Money in the treasury of a school district which may lawfully be applied to building a school house may be devoted to that purpose, and the district may become lawfully bound to pay any additional amount which will not cause the indebtedness of the district to exceed the constitutional limit of five per cent.</p> <p>6. Same — mere fact that money is in treasury has no effect. The fact that there is money in the treasury of a school district which may be applied to building a school house adds nothing to the power of the directors to make a contract for the building, where it is not shown that such money was applied to or set apart for that purpose.</p>

<p>1. Corporations — right of corporation to accept conveyance can only be questioned by the State. Whether a corporation having power to own and hold real estate for some purposes has exceeded its powers in accepting a certain conveyance is a question which can be raised only in a proceeding instituted in behalf of the State.</p> <p>2. Leases — the lessor may impose conditions on assignment consistent with lease. A lessor may refuse his consent to an assignment of a lease except upon condition that the lessee shall remain liable and that the assignment shall be subject to every provision of the lease, where the lease provides that it shall not be assigned without the lessor’s written consent, and that the “duties, conditions and covenants” in the lease shall extend to and bind assignees.</p> <p>3. Same — when liability of assignee is not terminated by a subsequent assignment. The liability of an assignee of a ground lease is not terminated by his subsequent assignment of the lease without the lessor’s consent, where the lessor’s written consent to the first assignment expressly provides that no further assignment of the lease shall be made without the lessor’s consent, in writing.</p> <p>4. Same — when assignee of lease is as fully liable as the lessee. An assignee of a ground lease who accepts the assignment under the lessor’s written consent, which specifies that the assignment is subject to every covenant, condition and provision of the lease, is bound, as fully as the lessee, to perform the conditions and covenants of the lease so long as he remains the assignee.</p> <p>5. Same — conditions of lessor’s written consent to assignment have same force as though in lease. Prohibitions against further assignment of a lease, contained in the lessor’s written consent to the first assignment, have the same legal effect as though they were incorporated in the lease.</p> <p>6. Same — lessor is not hound to forfeit lease for breach of a covenant. A lessor having power, under the lease, to declare it forfeited for breach of covenant, is not bound to declare a forfeiture for breach of a covenant against assignment without his consent or else consent to the assignment, but may enforce the covenant by any remedy the law affords for that purpose.</p> <p>7. Same — statutory rights of grantee of demised Idnds. The grantee of any demised lands, or the assignee of the lessor, may, under section 14 of the Landlord and Tenant act, employ all legal remedies for the non-performance of any agreements in the lease which the grantor or lessor might have employed.</p> <p>8. Appeals and errors — when objection is not available on appeal. An objection that the court, in the absence of defendant’s counsel, permitted complainant to amend the bill after all the testimony was in and the cause submitted, is not available on appeal, where the assignment of errors does not include the objection and the record as presented does not bear it out.</p> <p>9. Same — when chancellor’s finding must be accepted as correct. The chancellor’s finding as to the value of premises, based upon the opinions of witnesses expressed in open court, must be accepted as correct on appeal, if within the range of the evidence and not clearly against its weight.</p>

<p>1. Appeals and errors — when question of the sufficiency of the evidence is not presented. The question of the sufficiency of the evidence to sustain the plaintiff’s case is not presented for review, on appeal, where the defendant introduces his evidence after the refusal of his peremptory instruction and does not present the instruction again at the close of all the evidence.</p> <p>2. Same — when refused of additional instructions is proper. Refusal to give additional instructions, submitted after the argument of opposing counsel, is not error, where the given instructions cover all the legal phases of the case.</p>

Writ of Error to 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. R. W. Clifford, Judge, presiding. This was a bill in chancery brought by defendants in error, as trustees in a certain trust deed, to foreclose the same- as a mortgage.

Orrin N. Carter, Judge, presiding. On February 13,1897, a judgment was entered by the county court of Cobk county confirming a special assessment for curbing, filling and paving South Hamilton avenue from the south line of Archer avenue to the north curb line of Thirty-seventh street, in the city of Chicago.

N. E. Worthington, Judge, presiding. This is an appeal from a judgment of the circuit court of Peoria county in an action of ejectment for condition broken in a deed.

<p>1. Special assessments — section 56 of the act of 1897 does not have retrospective effect. Section 56 of the Local Improvement act of 1897, providing that a judgment of confirmation shall be alien upon the property for five years, does not have retrospective effect, so as to bar, after five years, an application for judgment of sale for an assessment confirmed before the act of 1897 took effect.</p> <p>2. Same — life of confirmation judgment not limited to five years by act of 1873. Section 48 of article 9 of the City and Village act, (Rev.</p> <p>Stat. 1874, p. 239,) providing that new assessments may be levied within five years if the city shall fail to collect the first one, does not limit the life of a confirmation judgment to five years.</p> <p>3. Limitations — statute does not run against a municipality. The Statute of Limitations does not run against a municipal corporation acting in the discharge of a public duty.</p>

Writ oe Error to the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding. This is an indictment against the plaintiff in error at the September term, 1902, of the Tazewell county circuit court for the crime of rape, alleged to have been committed on Leah Hickman, a female child of the age of eight years.

<p>1. Easements — permissive use does not ripen into a prescriptive right. To establish a way by prescription the use must have been adverse, under claim of right, exclusive and uninterrupted and with the knowledge of the owner of the land for a period of twenty years.</p> <p>2. Same — a claim of right is essential to a way by prescription. It is essential to a way by prescription that the use be under such circumstances as to indicate that it was claimed as a right and was not regarded by the parties as a privilege or license.</p> <p>3. Railroads — idhat does not establish prescriptive way under trestle bridge. A prescriptive right to a passageway for stock under a trestle bridge is not established by proof that it was used for more than twenty years without objection by the company, there being no evidence that such use was adverse or under claim of right as against the company; and the latter may, under such circumstances, at any time put in drain pipes and fill the ravine.</p>

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

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

<p>Writ op Error to the Superior Court of Cook county;, the Hon. A. H. Chetlain, Judge, presiding.</p>

R. S. Tuthill, Judge, presiding. This record brings up on appeal by appellant a decree of the circuit court of Cook county entered June 6, 1900, perpetually enjoining the appellant from laying down or constructing upon the street known as Stewart avenue, in the city of Chicago, at any point east of the west thirty-three feet of said avenue along and past lot 1, in block 1, in the United States Bank addition to Chicago, any railroad track or tracks in addition to the track…

Whit 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. Frank Baker, Judge, presiding.

<p>Writ of Error to the Circuit Court of Edgar county; the Hon. Frank K. Dunn, Judge, presiding.</p>

<p>1. Taxes — what makes a prima facie case of ownership of land taxed. action of debt for general taxes, under section 230 of the Revenue act, certified copies of the collector’s warrants, and the tax judgment, sale, redemption and. forfeiture record showing that the property was assessed to the defendant for the years in question, make a prima facie case of ownership in the defendant.</p> <p>2. Same — when party cannot attack validity of a tax judgment. One •who. appears as owner and objects to the validity of a tax upon application for a judgment of sale, but takes no appeal from the judgment rendered, cannot attack the validity of such judgment in a subsequent action of debt, under the statute, for general taxes.</p> <p>3. Appeals and errors — when point that statute is unconstitutional is waived., Failure to cite authorities or make an argument in support of an assertion that a statute is unconstitutional is a waiver of the point.</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. A. H. Chetlain, Judge, presiding.</p>

R S. Tuthill, Judge, presiding. This is an action, brought by appellee against the appellant .company to recover damages for personal injury.

Court of Macoupin county; the Hon. Bobert B. Shirley, Judge, presiding. This is a suit, brought by the appellee against the appellant company to recover damages for the destruction of certain property upon appellee’s farm by fire and sparks, emitted by an engine on one of appellant’s passing trains. A plea of not guilty was filed, and the trial resulted in a verdict and judgment in favor of appellee for §1390.00.

<p>1. Master and servant — duty of master to provide a reasonably safe place to work is positive. The duty of the master to provide a reasonably safe place for the servant to work is a positive one, and his non-compliance therewith is not one of the ordinary risks assumed by the servant.</p> <p>2. Same — master should anticipate reasonably apparent dangers to a servant. In maintaining a raised platform for storage, eight or nine feet high, in a room where employees are working, the master is charged with the duty of anticipating such dangers therefrom as would.be apparent to a reasonably prudent man.</p> <p>3. Same — whether raised plat form should have had a railing is a question for the jury. Whether a raised platform, eight or nine feet high, used for storage, should have been provided with a railing to prevent articles from falling upon servants who were placed to work on the floor below the edge of the platform, is a question of fact for the jury.</p> <p>4. Same — liability of master where his negligence and that -of a fellow-servant are combined. If an injury results from the negligence of the master combined with the negligence of a fellow-servant, and .the injury would not have- occurred had the master used due care for the safety of the injured servant, the master is liable.</p> <p>5. Same — when question of proximate cause is for the jury. Whether the act of negligence complained pf was the proximate cause of the injury is a question of fact for the jury, if the injury is so natural and direct as to follow the act of negligence in the ordinary course of events.</p> <p>6. Same — what not essential to right of recovery. In an action by a servant who was struck by a barrel which fell from an unprotected platform in the room where she was working, it is not indispensable to her right of recovery that she show the cause of the fall of the barrel, or that it was not caused by the force of nature or by some person unconnected with the defendant.</p> <p>7. Same — effect of other contributing causes of injury upon master’s liability. It is no defense to an action for negligence that the negligence of a third person or an inevitable accident or an inanimate thing contributed to the injury, if the negligence of the defendant was an efficient cause of the injury, without which it would not have occurred.</p> <p>8. Same — when case against master should he left to the jury. In an action by a servant for injuries caused' by a barrel falling from a platform in the room where she was working, the questions of proximate cause and assumed risk should be left to the jury, even though" the cause of the barrel’s fall is not shown, where the evidence tends to show it was not the act of a fellow-servant.</p>

<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>

<p>1. Mortgages — extent of right to possession wider trustee in deed, of trust. The right of one whose debt is secured by a trust deed to possession under the trustee ceases when the trust deed ceases to be a lien upon the property, as in case of foreclosure and sale.</p> <p>2. Same — possession after decree and sale is not under the trust deed. After foreclosure of a trust deed and a sale of the premises the rights of the one secured by the deed are merged in the decree and. sale, and her possession after the decree and sale is not possession under the trust deed, although so begun originally.</p> <p>3. Same — equity cawnot aid party who fails to take out deed upon certificate of purchase. One who fails to take out a deed upon her certificate of purchase at a foreclosure sale within .the time required by the statute has no rights which equity can protect, notwithstanding she has had continuous possession since before the entry of the foreclosure decree.</p> <p>4. Same — existence of an unpaid balance after sale does not extend the lien of the mortgage. The existence of an unpaid balance after a ¡foreclosure sale does not operate to extend the lien of the mortgage, since the force of the mortgage as a lien is expended when the decree is entered and the sale made.</p> <p>5. Same — mortgagor's title is not lost by failure to redeem. The legal title of a mortgagor remains in him until the execution of a deed,' and hence if the purchaser at the foreclosure sale fails 'to take out a deed within the time required by law, the legq.1 title remains in the mortgagor or his grantee, notwithstanding he failed to redeem.</p> <p>6. Same — holder of a certificate of purchase has no right to possession. The holder of a certificate of purchase at a foreclosure sale has no right to possession under the law, nor does the certificate itself convey any title.</p> <p>7. Limitations — title acquired by limitation is available for purposes of attack. One having title to land under a statute of limitations may maintain an action against one who has lost title to the land by the same statute.</p> <p>8. Beal property — legal and equitable title cannot be permanently separated except by trust. In the absence of an express active trust the legal -title and the equitable title to land cannot be permanently separated.</p> <p>9. Estoppel — what is essential where silence is the ground of estoppel. Where silence is the ground of estoppel it is essential that the party claimed to be estopped shall have knowledge of the facts and the other party be ignorant of the truth, and be misled into doing something he would not have done except for such silence.</p>

<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>

<p>1. Taxes — tax presumed to be legal and just- — burden of proof . One seeking to enjoin the collection of a personal property tax must overcome the presumption that the tax is legal and just.</p> <p>2. Same — taxable situs of profits from loan agencies in different States. Profits drawn out of loan agencies in'different States, owned and operated by one party and deposited in a central auditing office in a foreign State, are taxable at the residence of such party in this State, notwithstanding the principal sums upon which such profits are earned are re-invested by his agents and kept continuously in other jurisdictions as a part of the capital of the business.</p> <p>3. Same — when party cannot complain of assessment in different towns. One who voluntarily presents a schedule of property for assessment in the town where he resides and another in the town where he has his business office cannot insist it was error to extend taxes against him in both towns, where different property was assessed in each town.</p>

Appeal, from the Appellate Court for the Fourth District; — heard in that court on appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. This was an action on the case, brought in the city court of East St. Louis by appellee, against the appellant, to recover damages for an injury received by him while in its employ.

<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. James A. Creighton, Judge, presiding.</p>

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

John H. Moffett, Judge, presiding. This was a suit against the appellants, John A. Mc-Ayeal and Charles D. McAyeal, begun by attachment in the circuit court of Ford county by the appellee, Naomi Gullett. The declaration was in assumpsit on a promissory note for $1000, with eight per cent interest, payable to A. T. Gullett, dated December 14,1888, and due fourteen months after date. The appellee sued as legatee of A. T. Gullett, deceased.

Henry B. Willis., Judge, presiding. This is a bill in chancery filed in the circuit court of Kane county by appellants, against appellee, for an injunction.

<p>1. Special assessments — confirmation judgment must be void to be open to collateral attack. If the court has jurisdiction to enter a confirmation judgment, and the same is entered over the property owner’s objection, the judgment cannot be collaterally attacked unless subsequent proceedings have rendered it void.</p> <p>2. Same — city cannot vacate judgment and obtain another for the same improvement. A city has no power, after having obtained a judgment confirming a special assessment, to vacate such judgment of its own motion, pass a new ordinance for the same improvement and cause a new assessment to be confirmed against the same property, but the first judgment remains in full force and effect.</p> <p>3. Same — when property owner is estopped to insist that judgment is void. If a property owner objects to the entry of a second judgment of confirmation upon the ground that the ordinance provides for the same improvement for which the first judgment was entered, and such objection is sustained, he is estopped to question the validity of the first judgment upon application for judgment of sale to collect the same.</p>

<p>Intoxicating liquors — sales—title passes on delivery of liquor to carrier, although shipped O. O. D. Delivery of intoxicating liquor to an express company, although consigned O. O. D., passes title to the consignee, and the express agent, by knowingly delivering the liquor to the consignee and collecting and remitting therefor, is not liable as for selling liquor in violation of an ordinance.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. M. W. Schaefer, Judge, presiding.</p>

Writ op Error to 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. This is a writ of error to the Appellate Court for the Second District by the Bates Machine Company, appellant below, to reverse the decision of that court affirming a decree of the circuit court of Will county in a proceeding for an injunction and an accounting.

W. T. Hodson, Judge, presiding. > This is a petition, filed by the city of Chicago on August 10, 1901, in the -county court of Cook county, praying that steps be taken to levy a special assessment for the improvement of South Canal street from the south line of West Harrison street to the northwesterly line of the right of way of the Chicago, Burlington and Quincy railroad on Lumber street, by plastering curb walls, curbing with limestone curb-stones, grading and {laving…

■ Appeal from the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding. This is a bill, filed by Caroline Metzen, Caroline Uhrig and John Peter Metzen, the appellants, against John P. Schopp and others, appellees. The bill alleges that John P. Metzen died testate on April 3,1893, leaving a last will and testament dated March 30,1893, which was admitted to probate in April, 1893, in the county court of St. Clair county.

Original petition for habeas corpus. At the December term, 1902, of this court, the relator presented his petition for a writ of habeas corpus, directed to Thomas E. Barrett, sheriff of Cook county, to the end that he might be discharged from the custody of the sheriff, who is detaining him by reason of a mittimus issued by the criminal court of Cook county.

<p>Writ of Error to the Circuit Court of Cook county;, the Hon. John Gibbons, Judge, presiding.</p> <p>This was a bill in chancery filed in the circuit court of Cook county by the defendant in error, for an injunction restraining the plaintiff in error, and its president, and board of trustees, from forfeiting the right of the defendant in error to maintain and operate its railroad in Sterling street and Mizner avenue, in the village of Harlem, and from interfering with or destroying its railroad property located in said street and avenue, and to enjoin its lessor, the Chicago Terminal Transfer Railroad Company, from terminating the lease, and for á construction of the ordinances under which it is operating its railroad in said street and avenue in the village of Harlem The plaintiff in error answered the bill, denying the defendant in error was entitled to the relief prayed for therein, and filed a cross-bill setting up the same facts averred in the answer to the original bill, and prayed that the defendant in error be decreed to have forfeited its right to occupy said street and avenue with its railroad and railroad property, and that it be decreed to remove the same therefrom. An answer was filed to the cross-bill, and replications having been filed, the decree recites the case was tried in open court upon documentary and oral evidence, and a decree was entered dismissing the cross-bill for want of equity and granting the relief prayed for in the original bill, and a writ of error has been sued out by the village of Harlem to reverse said decree. No certificate of evidence was filed,' and the errors assigned are based solely upon the record, which contains only the pleadings, orders of court and final decree.</p>

<p>Appeal from the County Court of Livingston county; the Hon. Fred G. White, Judge, presiding.</p> <p>This is an appeal from a judgment of the county court of Livingston county, overruling" objections interposed by appellants to the application of Edward O. Reed, the relator, as county collector, for the sale of certain lots, blocks, tracts and parcels of real estate, belonging to the appellants, for the first installment of a special tax for paving and curbing parts of certain streets in the city of Pontiac.</p> <p>On June 27,1895, the city of Pontiac passed an ordinance,' providing for the paving and curbing of parts of certain streets in said city. A petition was filed in the county court for the appointment of commissioners to make an assessment, and levy a special tax against the lots, etc., abutting upon the improvement, and to pay all the costs thereof, except the street intersections, which were to be paid by general tax. The present appellants appeared,' and interposed objections to the confirmation of the assessment roll. Said objections were overruled, and judgment was entered confirming the assessment. Upon appeal to this court, said judgment of confirmation, based upon the ordinance of June 27,1895, was reversed, and the cause was remanded, as will be seen by reference to the case of Bradford v. City of Pontiac, 165 Ill. 612.</p> <p>A contract was entered into by the city of Pontiac with the Talbot Paving Company to do the work in accordance with the ordinance and specifications. The pavement contract under the ordinance of June 27,1895, was accepted by the city before December 6, 1895.</p> <p>After the reversal of said first judgment of confirmation by this court, the' cause was re-docketed; the former judgment of confirmation was vacated; and the city, upon its motion, was granted leave to dismiss the petition filed June 29, 1895, and said petition was dismissed without prejudice to the right of the city to file a supplemental proceeding to levy, assess, extend, and collect a new special tax upon and from the lots, blocks, tracts and parcels of land contiguous to said improvement, and to pay the balance due for the construction thereof, etc.</p> <p>A petition for mandamus was'filed by the People upon the relation of the Talbot Paving Company against the city of Pontiac to require that city to make a new assessment to pay the balance due the contractor, the Talbot Paving Company, for the construction of the local improvement, made under said ordinance of June 27,1895. The peremptory writ of mandamus was awarded by this court, as will be seen by reference to the case of People v. City of Pontiac, 185 Ill. 437. Thereupon, on August 17, 1900, the city passed a second ordinance, denominated an ordinance amendatory of the ordinance of June 27,1895, which ordinance of August 17,1900, provided for the levying of a new assessment for the work done and performed under the former ordinance. A petition was filed to the December term, 1900, of the county court of Livingston county for the appointment of commissioners to assess a new special tax for the balance of §9875.85, due for paving parts of Main, Madison, Mill and Washington streets in said city. To the confirmation of the assessment roll, made in pursuance of this second petition, the present appellants filed objections for the alleged reasons, among others, that the ordinance of June 27, 1895, was void, and could not be made the basis of an amendatory ordinance, or a second levy; that the supposed, ordinance of August 17,1900, being, founded upon an ordinance held by this court to be invalid, was itself void, and that a new and second assessment could not be made-, to pay for work, theretofore done under a void ordinance. These objections of the appellants were overruled, and. judgment was entered on March 29, 1901, confirming the-levy and assessment of August 17, 1900. The first installment of such assessment not having been paid by these appellants, their several lots, blocks, tracts .'and parcels of land were returned as delinquent, and application was thereafter made by relator, Edward 0. Reed, county collector, for judgment as above stated.</p> <p>No appeal was perfected by the present appellants from the judgment entered upon March 29,1901, confirming the levy and assessment under the ordinance of August 17,1900.</p>

<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. A. H. Chetlain, Judge, presiding.</p>

<p>Equity — when court of equity may enter personal judgment and require its payment. If a court of equity finds that the defendant to a bill for foreclosure and accounting is liable on the notes but not bound by the trust deed, it may enter a personal judgment for the amount due and require its payment by the defendant as a condition to relief on her cross-bill to cancel the trust deed as a cloud.</p>

<p>1. Appeals and errors — when amount involved is determined by the pleadings. If an appeal to the circuit court from an order allowing a claim against an estate is dismissed for want of prosecution, the amount involved is to be determined by the Supreme Court from the amended claim filed in the circuit court, upon the ground that where there is no trial of an issue of fact the amount involved is determined from the pleadings.</p> <p>2. Same — jurisdiction of Supreme Court under section 8 of the Appellate Court act. Under section 8 of the Appellate Court act, in all actions where there was no trial of an issue of fact in the lower court, appeals and writs of error may be prosecuted to the Supreme Court from the Appellate Court where the amount claimed in the pleadings exceeds $1000.</p> <p>3. Same —jurisdiction of Supreme Court not affected by statement in affidavit for continuance. If the amount stated in a claim filed in the circuit court against an estate exceeds $1000, the jurisdiction of the Supreme Court to entertain an appeal from the Appellate Court is not affected by a statement contained in an affidavit for continuance which may be construed as reducing the claim.</p> <p>4. Continuance — continuance is a matter of right if the affidavit discloses necessai-y facts. Under section 42 of the Practice act a party is entitled to a continuance as a matter of right, if his affidavit discloses the necessary facts.</p> <p>5. Same — when it is error to deny motion for continuance. It is error to deny a continuance where the affidavit discloses that the commissioner who took the deposition of an indispensable witness refuses to deliver or file the same except upon payment of illegal charges, and that the affiant has sued out another dedimus and will soon have the deposition ready to file.</p> <p>6. Pees and salaries — litigant not bound to pay illegal fees to obtain deposition. A litigant is not bound to pay illegal fees for the services of a notary in order to obtain possession of a deposition, and if such illegal fees are demanded the court should require the notary to accept the fees fixed by statute and file the deposition.</p> <p>■ 7. Same — court should supervise charges of commissioner under dedimus potestatum. If the authority of a notary public to take a deposition rests upon his appointment by the court as commissioner, his charges should be supervised by the court and restricted to the charges allowed other officers by the statute for like services.</p>

<p>1. Master and servant — rule where servant is injured when obeying master's orders. The master is liable where a servant is injured while obeying the master’s orders to do work in a dangerous manner, unless the danger is so imminent that a man of ordinary prudence would not incur it.</p> <p>2. Same — question whether danger was imminent is for the jury. If a servant knows the condition of the appliance by which he is injured and which he has used before, it is a question for the jury whether the danger from the tise of the appliance was so imminent and apparent that no man of ordinary prudence, having notice, would incur it.</p> <p>3. Trial — when instruction to find for defendants is properly refused. An instruction to find for defendants in an action by a servant for injuries is properly refused where the evidence tends to prove the appliance in use was defective, that defendants had notice of its defects, and that plaintiff, while he may have known of the defects, did not know their dangerous character. (Lake Erie and Western Railroad Co. v. Wilson, 189 Ill. 89, explained.)</p> <p>4. Same — opening a case to admit further testimony is discretionary. It is a matter of discretion with the court whether it will permit a party to introduce further testimony after he has closed his case, and the exercise of such discretion is not assignable as error.</p> <p>5. Instructions — instruction should not state that certain facts constitute negligence. An instruction in a personal injury case is erroneous which tells the jury that a certain state of facts constitutes negligence as a matter of law, and a modification thereof is proper which leaves the determination of that question to the jury.</p> <p>6. Arrest OP judgment — when objection to declaration is not ground for motion in arrest. It is only when the declaration is so defective that it will not sustain the judgment that an objection thereto may be availed of on motion in arrest in the trial court or on review in an appellate court.</p> <p>7. Same — inf erable facts deemed proven on motion in arrest. On motion in arrest of judgment the court will presume that every material fact alleged in the declaration or fairly inferable from what is alleged was proven on the trial.</p>

<p>1. Evidence — when evidence of custom in running cars on a double track is admissible. Evidence of the custom of a street railway company to run south-bound cars upon one track and north-bound cars ■on the other is admissible on questions of negligence and care in an action for the death of the plaintiff’s intestate, who was struck from behind by a north-bound car running upon the south-bound track, although the departure from such custom was not charged as negligence.</p> <p>2. Negligence — whether party used ordinary care for his safety is a question of fact. If one using a public street is aware that another person using the street is not exercising ordinary care for his safety, the question as to what he must do to avoid injury, in order to be relieved of the imputation of contributory negligence, depends upon the circumstances, and is a question of fact.</p> <p>3. Instructions — when an instruction invades province of the jury. An instruction that “one who uses the public 'streets has a right to expect from others using the same highway ordinary prudence and care to avoid accidents, and to rely upon that presumption in determining their own manner of using such street,” invades the province of the jury.</p> <p>■ 4. Same — an instruction should have its basis in the evidence. An instruction authorizing the jury, in assessing damages, to have regard to the value of the services of deceased and his superintendence and attention to the care of his family and the education of his children, of which they have been deprived by his death, is erroneous, where there is no evidence as to such matters.</p>

<p>Writ op Error to the Appellate Court for the First District; — heard in that court on appeal from the Superior Court of Cook county; the Hon. Jonas Hutchinson, Judge, presiding.</p>

<p>Writ oe Error to the Appellate Court for the Third District; — heard in that court on writ of error to the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding.-</p>

<p>1. Injunction — when order dissolving injunction is a final disposition of the case. An order dissolving an injunction for want of equity-apparent upon the face of the bill is a final disposition of the case where injunction is the only relief sought by the bill, and as such order, in effect, denies relief, it is proper to dismiss the bill.</p> <p>2. Street railroads — county hoard may grant rights to corporations only. The Street Railroad act of 1899 (Laws of 1899, p. 331,) by its terms authorizes the county boards to grant street railroad privileges over highways outside the corporate limits of cities, towns or villages only to companies incorporated under the general laws of Illinois, and not to individuals or partnerships.</p> <p>3. Same — act of 1899 cannot he construed to apply to individuals. The Street Railroad act of 1899 cannot be extended, by construction, to apply to individuals, since that would give to individuals the sovereign power of eminent domain, and cannot be adopted unless both the letter and the spirit of the act clearly so require.</p> <p>4. Same — legislative reason for limiting grant to corporations is not material. That no good reason may exist why individuals should not be entitled to the privileges conferred by the Street Railroad act of 1899 upon incorporated companies is not ground for extending its scope by construction, since the législative reason for limiting such powers to corporations is not a question for courts.</p> <p>5. Same — words “incorporated companies” cannot he construed to include individuals. The rule laid down by the legislature for the construction of statutes, that the word “person” or “persons” shall include bodies politic and corporate as well as individuals, does not authorize construing the words “incorporated companies” to include individuáis.. (Chicago Bock Go. v. Garrity, 115 111. 155, and McGann v. People, 194 id. 526, explained.)</p> <p>6. Same — word “company,” used in Street Railroad act, does not referió partnership. The words “such company,” used in section 3 of the Street Railroad act of 1899, refer back to the words “any company which has been or shall be incorporated under the general laws of this State,” used in section 1, and do not refer to partnerships.</p> <p>7. Constitutional law — right to operate street railway is not a constitutional right of individuals. The right to operate a street railway and exercise the power of eminent domain is a franchise conferred by sovereign power', and is not a calling or trade, the right to follow which is guaranteed by the constitution to every individual.</p>

<p>Appeal from the Appellate Court for the Third.District; — heard in that court on appeal from the Circuit Court of Douglas county; the Hon. W. G. Cochran, Judge, presiding.</p> <p>This is a bill, filed in the circuit court of Champaign county by the appellant, Lyda Gritten, against the appellee, Elizabeth Dickerson, praying for the cancellation of a deed, alleged to have beeii executed February 11, 1889, by Laban Gritten and his wife, the appellant Lyda Gritten, conveying to the appellee, Elizabeth Dickerson, six hundred and forty acres, being a section of land in that county, and for a decree that appellant had an inchoate right of dower in the land. The bill charged that Laban Gritten was the owner in fee of the premises» in question, and that the said deed, which purported to be signed by Laban Gritten and Lyda Gritten, his wife, by their respective marks, and to have been acknowledged by them on February 11, 1889, before one David Crawford, a notary public of Champaign, was not signed by the appellant, and that appellant not only did not sign the same or authorize her signature thereto, but had no knowledge of the existence of such deed until about the month of May, 1894; and that the said deed is a forgery.</p> <p>An answer was filed by the present appellee, defendant below, denying that Laban Gritten was ever the owner of the land. Appellee set up in her answer that a deed was made by Ezra Dickerson, her husband, to Laban Gritten, under the advice of the said Crawford, for the purpose of having a. conveyance made to Elizabeth Dickerson, appellee, Crawford advising that Ezra Dickerson could not make the conveyance to his wife, the appellee, but that it was necessary to make the same to a third person, and have the latter execute the conveyance. The amended answer also sets up that appellant knew the reason for making such deed, and voluntarily joined in the execution of the deed of February 11, 1889.</p> <p>The cause was referred to a- master in chancery to take the evidence and report his conclusions of law §.nd fact. The master found that the deed was not executed by appellant, but that the land was conveyed by Ezra Dickerson to Laban Gritten for the purpose of having Laban Gritten convey the saíne to Dickerson’s wife, the appellee; that such conveyance was accepted by him for that purpose and was acted upon by him accordingly; that no consideration ever passed from or to the said Laban Gritten, and that the latter was never in possession of the lalnd under the deed, and was never seized of an indefeasible estate of inheritance in the premises, and that appellant was not, and could not be, invested with an inchoate right of dower.</p> <p>The case came on for hearing upon exceptions to the master’s report. Appellant filed objections to all the master’s findings,- except the finding that she did not execute the deed in question, and except the finding as to the impeachment of the notary public, Crawford. Appellee also filed exceptions to the finding of the master'to the effect that appellant did not execute the deed. Upon the hearing the circuit court sustained the exceptions of appellant and overruled those of appellee, and found that the deed was not the deed of appellant, and that she had an inchoate right of dower in the premises, and decreed that the deed should be delivered up tó be canceled.</p> <p>An appeal was taken to the Appellate Court for the Third District, and -the Appellate Court rendered judgr mtent, reversing the decree of the circuit court, and remanding the cause with directions to the circuit court to dismiss the bill. The present appeal is prosecuted fróm the judgment so entered by the Appellate Court.</p>

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

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

Writ of Error to the Criminal Court of Cook county; the Hon. E. P, Dunne, Judge, presiding.

R. W. Clifford, Judge, presiding. This was an action on the case, brought by plaintiff in the circuit court of Cook county, to recover damages for the negligence of the defendant in failing to collect a draft for $1000, drawn by the plaintiff to the order of the defendant on W. M. Timberlake & Co. The damages were laid in the declaration at $1250.

R. W. Clifford, Judge, presiding. The following is a statement of the facts in this case made by the Appellate Court in deciding the case: “Appellee filed in the circuit court her bill to foreclose a mortgage, made by appellant to secure her note bearing date July 28, 1898, for §2610.00, payable to Martin D. and Milton D. Jones one year after date, with interest at seven per cent per annum. The note recites that it is secured by real estate in Cook county, Illinois.

<p>1. Public improvements — same petition of property owners cannot be used twice. If the ordinance based upon a petition of property owners is held invalid and the confirmation proceeding is dismissed, the same petition cannot be used by the improvement board as the basis for recommending another ordinance.</p> <p>2. Same — property owners' petition is essential to validity of ordinance. In cities, towns or villages having a population of less than 10,000 »a petition of the owners of at least one-half of the abutting property and of the majority of the resident property owners affected by the proposed improvement is essential to the jurisdiction of the improvement board and to the enactment of a valid ordinance.</p>

E. W. Cliffobd, Judge, presiding. This was a bill in chancery filed in the circuit court of Cook county by Henry Ives Cobb, the appellant, as the owner in fee simple of a lot situated on the west bank of Lake Michigan and abutting on the waters of the lake.

Joseph P. Robarts, Judge, presiding. This was a bill in chancery filed in the circuit court of Williamson county, praying for a partition of… Held: used, possessed, enjoyed and controlled for and during her natural life. “Third — At the death of my said wife it is my will that my said property be vested in my adopted daughter, Mary Jane Ralls, (whose name before her said adoption was Mary Jane Singleton,) to be by her, the said Mary Jane Ralls, (nee Singleton,) enjoyed and…

Auditor’s certificate for review of assessment. This is an appeal by W. A. Havemeyer & Co. from a decision of the board of review of Cook county, upon the certificate of the Auditor of Public Accounts, under the provisions of section 35 of the Revenue act of 1898.

<p>1. Special assessments — recommendation of hoard is prima facie evidence of compliance with statute. Objections that the record, of the resolution of the improvement board did not contain an itemized estimate of the cost and that no notice of a public hearing was mailed pursuant to law must be established by proof, since section 9 of the Local Improvement act makes the recommendation of the board prima facie evidence of compliance with all preliminary requirements of the statute.</p> <p>2. Same — when court’s finding as to reasonableness of improvement will not be disturbed. In a special assessment proceeding, if the trial judge, by agreement of the parties, views the street to be improved, with a view of determining the necessity for and reasonableness of the improvement, his finding in that regard will not be disturbed, on appeal, unless it is clear that error was committed.</p> <p>3. Same — when or dinance is not admissible in evidence. An ordinance authorizing a railroad company to lay tracks in the street to be improved, and requiring it to keep the street in repair and make new improvements for the width of its tracks when such improvements were made on th'e street, is" properly denied admission in evidence upon the hearing before jury on the question of benefits.</p>

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

P. Bookwalter, Judge, presiding. This was an action for slander, brought by the appellee, Emma L. Swank, in the circuit court of Vermilion county, against the appellant, Wesley Iles.

Writ of Error to 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. Elbridge Hanecy, Judge, presiding.

<p>1. Appeals and errors — Appellate Court must consider whether verdict was against the evidence. Whether the verdict was against the weight of the evidence is, when properly presented, a question which the Appellate Court is bound to consider.</p> <p>2. Same — it is presumed that Appellate Court considered the evidence. The Supreme Court will presume the Appellate Court considered the evidence, where its consideration was brought before the court by a proper bill of exceptions and assignment of errors..</p> <p>3. Same — error cannot be assigned on opinion of the Appellate Court. Error cannot be assigned upon the opinion of the Appellate Court, but only on its judgment.</p> <p>4. Same — when objection that verdict is against evidence does not apply to special findings. An objection that the verdict is against the weight of the evidence applies only to the general verdict and not to special findings, where the latter were not complained of as a ground of the motion for new trial.</p> <p>5. Same — when special findings cannot be assigned as error. Special findings not mentioned as a ground for new trial cannot he made the basis of an assignment of error in the Appellate Court.</p> <p>6. Same — when use of word “might” instead of “would” is not harmful. An instruction precluding the defendant’s recovery “if he knew or by the exercise of reasonable care might have known” of the danger, is not harmful in using the word “might” instead of “would.”</p> <p>7. Same — when error in admitting exhibit and allowing jury to take it is not reversible. Error in admitting in evidence as an exhibit a copy of a stenographic report and in allowing the jury to take it -with them to the jury room is not ground for reversal, where the jury had substantially the same written staterdent with them, given in evidence by the appellant, and where the verdict is supported by evidence other than the exhibit.</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. Philip Stein, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p> <p>This was a bill in chancery filed by Archibald Woodard in the circuit court of Cook county against Jacob Glos and Emma J. Glos, his wife, to set aside six tax deeds as clouds upon his title to twenty-three lots owned by him, located in the city of Chicago; also a quit-claim deed from Jacob Glos to Emma J. Glos, conveying to her all the interest in said lots which said Jacob Glos had acquired by two of said tax deeds. Answers and replications were filed. The case was referred to a master, and upon his report being filed and exceptions overruled thereto, a decree was entered setting aside all of said tax deeds upon the payment to Jacob Glos of §1424.43; also canceling said quit-claim deed from Jacob Glos to Emma J. Glos, and directing her to convey all interest acquired by her in said lots to Woodard within ten days, and decreeing that Woodard pay the costs. From that decree Emma J. Glos alone has prosecuted this appeal, and has assigned as error the action of the court in decreeing Woodard to be the owner of said lots; in setting aside the tax deeds under which she claims title; in canceling the quit-claim deed from Jacob Glos to her; in decreeing that she convey her interest in said premises to Woodard; in setting aside the tax deeds in which she was interested without requiring" Woodard to pay to her the amount of taxes, interest and costs paid by her and her grantor to acquire the same and thereunder, and in failing to award to her execution for her costs; and Woodard has assigned as cross-errors the action of the court in requiring him to pay to Jacob Glos the amount required to be paid to him by the decree, and in requiring him to pay the costs of suit.</p>

<p>Appeal from the Appellate Court for the Third District; — heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. F.,Bookwalter, Judge, presiding.</p> <p>This is an appeal from a judgment of the Appellate Court for the Third District affirming a judgment of the • circuit court of Vermilion county in favor of appellees, against the appellant company, for $1480.62 and costs.</p> <p>The appellees, M. Yeager and Phil Yeager, partners, brought a suit in assumpsit on a written contract entered into between themselves and the appellant, the Christopher & Simpson Architectural Iron and Foundry Company, to recover damages for breach of the contract. The appellees are building contractors, and had a contract with the United States to erect the post-office building at Elgin, Illinois. They entered into a,contract with the appellant, by which the appellant agreed to furnish the structural steel work needed for the building, in strict accordance with the plans and specifications as prepared by the supervising architect of the United States treasury department, and to complete and deliver the same in first-class condition, not later than April 20,1901. This contract was dated October 30, 1900, but was not signed till January 9,1901. By its terms it was also stipulated that if appellant should fail to provide the materials by the time limited, appellees might, after five days’ written notice, provide them themselves and deduct the cost from any money due appellant, or if, in appellees’ judgment, the failure of appellant was “sufficient action,” they might, at the expiration of the notice, terminate the contract and re-let the work on the best terms offered, at the expense of appellant. The specifications of appellees’ contract with the United States, referred to in the contract sued on, provided that shop drawings must be submitted in triplicate, and that no work could be done until after the approval of such drawings by the supervising architect; that all steel must be open-hearth steel, and that ample facilities should at all times be furnished the authorized agent of the government, both at the mills and at the shops, for the inspection of the material, and that no material should be made up, riveted, painted or shipped before it had passed inspection. Appellant pleaded the general issue; also, set-off for the value of the shop drawings furnished.</p> <p>■ It appears from letters admitted in evidence that appellant, though often requested and urg'ed to furnish the shop drawings, did not send them to the appellees until March 13, and then four drawings were sent in duplicate only, instead of in triplicate. These were not finally sent in and approved by the supervising architect until April 2, 1901. The same day the appellees were also informed of the appointment of Robert W. Hunt & Co. as government inspectors of the structural steel work. April 13 the inspectors wrote to appellees that they had been informed by appellant that the material had been ordered February 23, and that it was taken from stock at the Cambria Steel Company’s works. They also wrote that as the specifications called for mill inspection, they were not permitted to accept this material. The supervising architect afterwards waived the requirement of mill inspection, and the inspectors reported that the material stood the required tests, but it developed, about April 30, that the beams were not made out of open-hearth steel, but out of Bessemer steel. Appellees then endeavored to have -the supervising architect accept the Bessemer steel, but he absolutely refused to do so. Appellees then desired appellant to get open-hearth steel from stock', having secured the permission of the supervising architect that that would be acceptable, and informed the appellant that it could be procured from the Illinois Steel Company in about two weeks’ time. The appellant refused to pay the additional cost, and insisted on being allowed to furnish it from the mills at a delay of from six weeks to six months, as stated by it at various times. After much correspondence, on May 18 appellees sent appellant the five days’ notice stipulated for in the contract, but expressed themselves willing to extend the time for the delivery of the material for the first floor to June 1. This offer was not accepted by appellant, and appellees purchased the material from the Illinois Steel Company. Appellant still refusing to fulfill its contract, appellees let the contract for the remainder of the steel work to the Illinois Steel Company, having received bids for the same to the same amount from two different concerns. Appellees’ contract with the United States provided for a forfeiture of $28.80 per day as liquidated damages for every day’s delay after the time stipulated for the completion of the building.</p>

<p>Application for writ of habeas corpus.</p>

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

<p>Writ op Error to the Appellate Court for the First District; — -heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.</p> <p>George Wheatman and William Boulton, co-partners, and John Beaubien, filed their petition in the circuit court of Cook county on August 9, 1897, to enforce a sub-contractor’s lien on lot 45, block 1, etc., in the city of Chicago. The defendants were Thomas Brown, the owner and occupant of said lot, and Elizabeth Brown, his wife, and Theodore H. Schintz, trustee in two trust deeds executed to him by Brown and wife to secure two notes, one for §2500 and the other for §700, payable to Schintz, the first having been assigned by him to Jacob Huber and the second to Nicholas J. Mann, who were likewise defendants, together with certain persons claiming mechanics’ liens upon the lot under contracts with Brown for the erection of a building thereon and for labor and material for the same. The interests of the latter defendants are not involved in this writ of error. Brown and wife and Huber and Mann answered, but Schintz was defaulted. Huber and Mann in their answer set up the trust deeds and notes held by them, respectively, and prayed a foreclosure thereof. The cause was referred to the master to take testimony and report his findings, which he did, to which objections were filed and overruled and the same ordered to stand as exceptions to said report. He found against the claim of Huber and Mann, and that the petitions, intervening petitions, cross-petitions, and all answers claiming mechanics’ liens on the premises, should be dismissed for want of equity. The chancellor confirmed the master’s report as to all mechanic’s lien claims, but sustained exceptions thereto on behalf of Huber and Mann, and entered a decree in favor of the former for §1069.73 and costs, and in favor of the latter for §300.84 and costs, both subject to a receiver’s trust deed for §600. Brown and wife alone prosecuted an appeal to the Appellate Court for the First District, and the branch of that court affirmed the decree of the circuit court. To reverse that judgment of affirmance this writ of error has been sued out.</p> <p>The facts are undisputed. Thomas Brown, the owner of the lot in question, applied to Theodore H. Schintz for a loan of §3200 with which to erect a building on the same, to be secured by trust deeds upon the premises. Schintz agreed to make the loan, and Brown executed one note for §2500 on April 26, 1897, payable to his own order, due in five years, with interest notes of §75 each, due every six' months, and endorsed said several notes to the defendant in error Jacob Huber. He and his said wife also executed a trust deed upon the premises to Schintz, as trustee, to secure these notes, which was duly recorded April 27, 1897. On the same day he executed another note for $700, with interest coupons, which he endorsed to defendant in error Nicholas J. Mann, and he and his wife executed another trust deed of the same date to Schintz, trustee, to secure said last mentioned notes, conveying the same lot, which was also duly recorded May 5, 1897- Schintz agreed to advance the money on the loan as the building progressed and the mechanics erecting the same should become entitled to payment. On July 16, 1897, he made his two personal checks, payable to the order of Thomas Brown, on the Merchant’s Loan and Trust Company, and delivered the same to him, — one for §1075, which on the same day was endorsed by Brown to C. S. Mattice & Co., contractors on the building, and by them immediately endorsed to Wheat-man &. Boulton, sub-contractors; the other for §125, which on the same day Brown endorsed to C. S. Mattice & Co., and they immediately endorsed to James Dwyer, another sub-contractor. Neither of said checks was presented to the payee bank until the 19th day of July following, at which time payment was refused because, as stated by the bank, the drawer, Theodore H. Schintz, had on that day made an assignment for the benefit of his creditors. He had a balance on deposit in the bank when he made the checks and at the close of business hours on Saturday, July 17, amounting to about $2000, (more than enough to pay both checks;) and, so far as the evidence shows, that money remained in the bank at the time of the general assignment by Schintz. The Merchant’s Loan and Trust Company was located in, and Schintz and all the persons to whom the checks were issued and transferred resided in, the city of Chicago. The building in progress of erection on the lot was not completed at the time of the general assignment by Schintz, and learning of that fact the contractors abandoned the work. A receiver was then appointed for the premises, who was authorized by the court to borrow $600 to complete the building, which order was made by consent of all the parties in interest, the certificate of that loan'to be a first lien upon the premises and all assets in the receiver’s hands, together with the rents, etc. He accordingly borrowed $600, executing a trust deed to secure the same, with which he completed the building. That trust deed is by the final decree made a superior lien to the trust deeds held by Huber and Mann. Nothing was paid upon the building loan of $3200, unless the two checks above mentioned amounted to such payment. The correctness of the amounts found due Huber and Mann, if they are entitled to recover, is admitted.</p>

' Francis M. Wright, Judge, presiding. This was an action of assumpsit brought by the plaintiff, against the defendant, in the circuit court of Champaign county, to recover the contract price of ten cents per cubic yard for doing the grading for double-tracking the Illinois Central railroad for a distance of about three miles. The declaration contained two special counts and the common count of indebitatus assumpsit for work and' labor.

<p>Appeal from the County Court of Cook county; the-Hon. Philip S. Post, Judge, presiding.</p> <p>This was an application in the county court of Cook county for the confirmation of a special assessment to* pay the cost of constructing a brick sewer, with manholes and catch-basins, in West Madison street from. South Forty-eighth avenue to South Fifty-second avenue, in the city of Chicago. The appellants filed objections to the confirmation of said assessment as to their property, whiph were overruled and the assessment was. confirmed, and they have prosecuted this appeal.</p> <p>The boundaries and relative location of the streets and avenues of the drainage district created by the ordinance and adopted by the commissioners in spreading the assessment are shown, in a general way, by the following plat:</p> <p>[[Image here]]</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. E. F. Dunne, Judge, presiding.</p>

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

<p>1. Malicious prosecution — when case should go to jury. It is not error" to allow an action for malicious prosecution to go to the jury if the evidence tends to show malice and want of probable cause.</p> <p>2. Same — conspiracy is not the gist of an action for malicious prosecution. The unlawful acts done in pursuance of a conspiracy, and not the fact of the conspiracy itself, are the gist of an action for malicious prosecution.</p> <p>3. Same — when judgment may be had against one defendant. An action for malicious prosecution against several defendants alleged to have conspired together may be dismissed as to part of the defendants, and judgment may be recovered against the one of the two remaining defendants who was served with process.</p> <p>4. Evidence — everything done or said in pursuance of conspiracy is admissible against each conspirator. If the fact of a conspiracy between several persons is proven, everything said or done by either of the conspirators in furtherance of the conspiracy is admissible against the others, whether present at the time or not.</p>

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

<p>Appeal from the County Court of .Cook county; the Hon. Philip S. Post, Judge, presiding.</p>

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

<p>1. Wills — what does not prove want of testamentary capacity. Proof that the testator was enfeebled, to some extent,- with the usual infirmities of old age, both mentally and physically, does not establish a want of testamentary capacity.</p> <p>2. Same — value of non-expert testimony as to testamentary capacity. The value of the opinions of non-expert witnesses as to the testa•tor’s testamentary capacity depends upon the means of knowledge of the witnesses, the facts upon which their opinions are based and their capacity to correctly interpret such facts.</p> <p>3. Evidence — when letters from testator are competent on will contest. Letters from the testator tending to show a rational, business-like purpose to make a will substantially like the one in contest are competent, as tending to show the mental condition of the testator and to disprove the charges of undue influence,</p> <p>4. Same — when letters remote in point of time are competent. Letters from a testator, although too remote in point of time, if standing alone, to be competent upon the question of the testator’s mental condition, are nevertheless admissible if their subject matter is repeated in other letters which are competent in point of time.</p> <p>5. Same — certified transcript of testimony of subscribing witnesses at probate is admissible. Under section 7 of the act on wills, providing that on a will contest in chancery the “certificate of oath” of the subscribing witnesses at the probate shall be admissible, a certified transcript of their testimony at the probate is admissible on contest, notwithstanding the witnesses themselves have already testified to the same effect.</p> <p>6. Same — what questions not subject of non-expert testimony. Non-expert witnesses for contestant who stated they did not regard the testator as capable of transacting ordinary business, cannot be allowed to answer whether or not the testator had sufficient mind and memory to understand the will, to carry in his mind the nature and extent of his property or to understandingly execute a will.</p> <p>7. Same — widow incompetent if her interest lies with side offering her, On will contest, the widow of the testator, whether made a party complainant or defendant, is incompetent if her apparent interest in the pending litigation, at the time she is offered as a witness, lies with the side offering her testimony.</p> <p>8. Instructions- — instructions should be considered as a series. Instructions should be considered as a series in determining whether the jury has been correctly advised.</p> <p>9. Burden of proof — hu/rden of proof in will contest. The burden of proof in a will contest is upon the proponents to make aprima facie case by introducing the certificate of oath of the subscribing witnesses at the time of probate, but when this is done it devolves, upon the contestant to prove the allegations of his bill as to the testator’s incompetency by a preponderance of the evidence, since the legal presumption of sanity is added to the weight of the prima facie case which must be overcome.</p> <p>10. Appeals and errors — when allowance of afee of guardian ad' litem will he sustained. Under section 6 of the Chancery act, authorizing the court to appoint a guardian ad litem and tax a fee for his-services as costs, the court may, in the exercise of its legal discretion, allow a reasonable fee, it being presumed the court had knowledge of such services and the reasonable value thereof, and the allowance will stand on appeal, in the absence of evidence-showing an abuse of discretion.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. John C. Broady, Judge, presiding.</p>

Clair county; the Hon. William Hartzell, Judge, presiding. This is an action on the case, brought against appellant to recover damages for the death of appellee’s intestate, William A. Wing, which occurred January 12, 1901, in a rear-end collision in the city of Belleville, St. Clair county, Illinois, while said William A. Wing was riding in the caboose of a certain freight train of said defendant.