Volume 203 — Illinois Reports

Orrin N. Carter, Judge, presiding. This is an appeal from a judgment of the county court of Cook county, sustaining objections filed by appellees, and refusing judgment of sale at the July term, 1902, of said court in the matter of the application of Samuel B. Raymond, county treasurer and ex officio county collector of Cook county, for judgment against delinquent lands, and lots for special tax No. 04, levied and assessed by authority of the village of Wilmette for the…

Orrin N. Carter, Judge, presiding. This is an appeal from a judgment of the county court of Cook county, sustaining objections filed by appellees, and refusing judgment of sale at the July term of said court, 1902, in the matter of the application of Samuel B. Raymond, county treasurer and ex officio county collector of Cook county, for judgment against delinquent lands and lots for special tax No. 06, levied and assessed by authority of the village of Wilmette for the…

<p>1. Constitutional law—amendment of 1901 to section 7 of Improvement act is constitutional. The amendment of 1901 to section 7 of the Local Improvement act of 1897, (Laws of 1901, p. 104,) by which no resolution or public hearing is required in proceedings for the laying or renewing of sidewalks, water service-pipes or house drains, is constitutional.</p> <p>2. Same—when scope of amendatory act is as broad as the act it amends. An act to amend another act (giving its title) is as broad as the act it amends, and anything which might have been inserted in the original act may be provided for in the amendatory act without violating the constitutional provision that the subject of a statute must be embraced in its title.</p> <p>3. Same—the legislature may pass laws applicable to sidewalks, only. Under the constitution of this State the legislature may pass laws relative to the construction of sidewalks which are not applicable to other local improvements.</p> <p>4. Special assessments—when word “intersections” is not indefinite. The word “intersections,” used in a sidewalk ordinance, refers to sidewalk intersections, where they are described as being upon particular corners of certain streets and where the roadways of all intersecting streets and alleys are expressly excepted from the improvement.</p> <p>5. Same—when provisions for filling are not indefinite. Provisions of a sidewalk ordinance requiring necessary filling to be from earth free from clay, animal or vegetable matter, and to be compacted by wetting, when necessary, are not so indefinite and uncertain that no substantially correct estimate of cost can be made.</p> <p>6. Appeals and errors—when refusal to permit witness to repeat his testimony is presumed proper. Refusal of the court to permit a witness for an objector in a proceeding to confirm a special assessment to repeat his testimony at the instance of counsel for other objectors, will, on appeal, be presumed to be proper, where such testimony is not in the record.</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>

Frank Baker, Judge, presiding. This is an action on the case, brought by the appellee in the circuit court of Cook county, against the appellant, to recover damages for a personal injury alleged to have been sustained by her in consequence of the negligence of the appellant.

Original petition for mandamus. This is a petition for a writ of mandamus, filed in this court in the name of the People, on the relation of… Held: pursuant to call, on April 17, 1903, for the purpose of nominating a candidate for the office of judge of the Supreme Court for said district, he was duly nominated as a candidate of said party for the said •office; that on April 18,1903, said Vandeventer presented to the Secretary of State a certificate of his nomination in due…

<p>1. Instructions—when instruction does not characterize particular acts as negligence per se. An instruction providing that, if the jury “find, from the evidence, that the plaintiff was guilty of negligence” in attempting to do a certain thing, and if they further believe, “from the evidence, that such negligence was the cause of his injury,” then their verdict must be for the defendant, is. proper, and its refusal is reversible error where the only other instructions upon the subject are those requiring ordinary care by the plaintiff. (Magruder, C. J., and Carter, J., dissenting.)</p> <p>2. Same—when instruction is not a repetition of others. An instruction which seeks to apply a principle of law to the facts in the case as found by the jury is not a mere repetition of an instruction stating the principle of law in the abstract.</p>

<p>1. Wills-—power of disposed is no greater than the estate devised. A power of disposal accompanying a devise of a life estate is only co-extensive with the estate devised, unless there are other words in the will clearly indicating that a larger power was intended.</p> <p>2. Same—what does not authorize exercise of power of sale. Power given a life tenant to sell or convey his estate should circumstances or his necessity require, does not authorize an exercise of such power to enable the life tenant to discharge debts and liabilities voluntarily incurred by him.</p> <p>3. Jurisdiction—equity cannot construe will merely to settle legal title. A court of equity cannot construe a will for the sole purpose of settling the legal title between complainant and his children.</p> <p>4. Same—failure to question jurisdiction of subject matter not a waiver. Failure to question jurisdiction of the subject matter in the trial court is not a waiver, since such jurisdiction cannot be conferred by consent.</p> <p>5. Same—party cannot create a necessity for construing a will to settle legal title. A life tenant cannot, by entering into a contract to sell part of the land, create a necessity which will require a court of equity to entertain a bill to construe the will to settle legal title.</p>

Original petition for habeas corpus. This is a petition for a writ of habeas corpus, filed in this court at its April term, 1903, by William C. Halley, to be discharged from the custody of Thomas E. Barrett, sheriff of Cook county, in whose custody he then was by virtue of an order of commitment issued by the circuit court of said county in a certain chancery suit therein pending, wherein one William Lorimer was complainant and William C. Halley and others were defendants,…

<p>Appeal from the Circuit Court of Douglas county; the Hon. Solon Philbrick, Judge, presiding.</p>

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

<p>Appeal from the App ell áte 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>1. Appeals and errors—when instruction is properly refused. An instruction asked by the defendant is properly refused which undertakes to state the two principal issues in the case, and requires the plaintiff, as to the first issue, to establish it by a clear preponderance of the evidence.</p> <p>2. Special findings—special interrogatory must relate to controlling ultimate fact. It is proper to refuse a special interrogatory calling for a finding as to a mere evidentiary fact which would not control a general verdict.</p> <p>3. Highways—right of owner of fee to dig ditch for drainage. The owner of the fee in a public highway may dig ditches therein to drain his lands, provided his acts do not render the highway less safe, useful or convenient for the public.</p> <p>4. Trial—it is the province of the jury to weigh the probabilities. It is the province of the jury to weigh not only the facts testified to, but the circumstances and reasonable probabilities arising from such facts.</p>

Writ op Error to the Circuit Court of Randolph county; the Hon. William Hartzell, Judge, presiding. . Held: luncheon and refreshments served and where the library is kept. The People demurred to the plea, and the demurrer being overruled by the court, they elected to abide by their demurrer. The information was dismissed by the court, and the People have prosecuted this writ of error to reverse the judgment.

Jonas Hutchinson, Judge, presiding. This was an action of ejectment by Theodore H. Schintz, trustee, for the use of Jacob Huber, against appellants and their tenants. The action was based upon a trust deed securing a note by Thomas Brown of $2500, of even date, and conveying the premises described in the declaration.

Writ op Error to the Probate Court of Cook county; the Hon. C. S. Cutting, Judge, presiding. This is a writ of error sued out from this court to the probate court of Cook county to review an order of that court disapproving k guardian’s report of sale of real estate and ordering a re-sale of the property.

Henry B. Willis, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Second District affirming a judgment of the circuit court of Kane county in an action of replevin brought by-appellee to recover from appellants twenty-three head of cattle. A plea of justification was filed to the declaration, to which demurrers, special and general, were filed.

<p>Partition—heir may have partition subject to dower and homestead. An heir may maintain a bill for partition to have his interest set off in severalty, subject to dower and homestead.</p>

<p>1. Waiver—when objection to power of petitioner to condemn is waived. A defendant in a condemnation proceeding who files a cross-petition for damages, and submits that issue to the jury without objecting to the power of the petitioner to institute the proceeding, waives his right to raise that question.</p> <p>2. Presumptions—existence of power does not raise a presumption of its exercise. The existence of a power in a city to establish a dock line on a river does not raise a presumption that such dock line has been established.</p> <p>3. Eminent domain—when damages are confined to land described in petition. If defendant, by his instructions, interprets his cross-petition as claiming damages to lands not taken, it is not error to refuse instructions telling the jury that if the evidence showed petitioner was proposing to take lands not described in the petition the defendant would be entitled ,to their value.</p> <p>4. Same—land taken must be determined from the pleadings. It is not competent for the jury, in a condemnation case, to determine that land is being taken which is not described in the petition nor brought into the case by any pleading.</p> <p>5. Same—when attorney has no implied authority to bind petitioner by stipulation. An attorney who is conducting a condemnation suit for a corporation has no implied authority to bind the petitioner by a stipulation respecting its plans or methods of construction.</p> <p>0. Same—stipulation for method of construction should be made a part of the judgment. If a stipulation by the petitioner specifies a particular method of construction, which tends to reduce defendant’s damages, the condemnation judgment should vest the rights of the petitioner subject to the performance of the agreement.</p> <p>7. Same—when instruction in condemnation is misleading. An instruction in a condemnation suit is misleading which first tells the jury that the market value of land actually taken cannbt be reduced by benefits, and then states that such benefits must be confined not only to property not actually taken, but also to property of which the defendant will be actually deprived or which will be physically interfered with.</p> <p>8. Jury—31m/ cannot disregard testimony of an unimpeached witness. The jury, in a condemnation case, have no right to absolutely disregard the testimony of unimpeached witnesses upon the question of the value of the premises, merely as the result of the jury’s view of the premises.</p>

R. W. Clifford, Judge, presiding. This is an appeal from a decree of the circuit court entered February 6,1902, in a partition suit brought by an infant heir seeking partition of two pieces of real estate in Hyde Park, Illinois. The titles to both lots had clouds upon them, and the bill sought the removal of these also.

<p>1. Appeals and errors—rulings on evidence closely scrutinized if right of recovery is doubtful. If the evidence on which a right of recovery is based is doubtful, a court of review will closely scrutinize the rulings on evidence, and will reverse if there are any inaccuracies which might have prejudiced the losing party:</p> <p>2. Same—when error is not cured by remittitur. Error in admitting evidence upon the question of damages cannot be cured by remittitur, where there is nothing in the record to show to what extent such error affected the allowance of damages.</p> <p>3. Evidence—when testimony as to rate of speed should be excluded. Testimony by plaintiff in a personal injury case, upon the question whether the train was running faster than the ordinance limit of twenty miles, that he did not see the train until it was upon him, but that “I am told it must be going twenty-five or thirty miles an hour,” should be excluded from the jury on defendant’s motion.</p> <p>4. Same—when statement of physician is incompetent. A statement by a physician testifying as a witness for the plaintiff, that the latter had lost the power of hearing in his left ear, should be excluded when such testimony is not based upon the physician’s actual knowledge but upon the declarations of the plaintiff.</p>

<p>1. Practice—in chancery—not necessary to except to master’s legal conclusions. If the master in chancery states the facts correctly it is not necessary or proper to except to the legal conclusions drawn by him from such facts.</p> <p>2. Same—court’s reason for rendering decree is immaterial. A decree which, under the facts, is correct in law will be affirmed, whether reasons stated in the decree for rendering it are correct or not.</p> <p>3. Mechanics’ liens—right to Mechanic’s lien arises out of the contract. The right to a mechanic’s lien arises out of a contract between the owner, or one whom the owner has authorized to improve the property, and the contractor.</p> <p>4. Same—contract must fix times for performance and payment. Under section 6 of the Mechanic’s Lien act no lien can be had under the act unless the contract, whether written or verbal, fixes times for completion and payment within limits established by the act.</p> <p>5. Same—original contract controls sub-contract. Under section 22 of the Mechanic’s Lien act, relating to sub-contractors’ liens, the work must be done or materials furnished in pursuance of the original contract, and the latter necessarily controls the subcontract as to the time for completion and payment, so far as the owner is concerned.</p> <p>6. Same—a sub-contractor’s lien is dependent upon original contract. If the original contract is not sufficient, under the statute, to create a mechanic’s lien, no sub-contractor’s lien can be allowed. (Williams v. Rittenhouse & Embree Co. 198 Ill. 602, followed; Keeley Brewing Co. v. Neubauer Decorating Co. 194 id. 580, overruled.)</p>

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

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

<p>1. New trial—new trial not granted for purpose of impeaching witness. A new trial upon the ground of newly discovered evidence will not be granted for the purpose of allowing the impeachment of a witness, even though he be the plaintiff.</p> <p>2. Same—when new trial is properly denied. Evidence, discovered after the trial, that plaintiff in a personal injury case had lost three fingers when working for a certain railroad company, whereas he testified he had never been injured on such road, is not ground for new trial where no damages were claimed for the loss of such fingers, the injury complained of being to his spine and arm.</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. Farlin Q. Ball, Judge, presiding.</p>

George W. Thompson, Judge, presiding. Appellant and two other persons, by separate suits, sued the city of Galesburg, in the circuit court of Knox county, in an action of assumpsit, filing the_ common counts only, and laying the damages in each case in the sum of $364.40. The general issue was filed, and a stipulation was then entered into by all the plaintiffs in the several suits with the city that the suits should be consolidated and tried as one.

<p>1. Judgments and decrees—proceedings in confession of judgment are at law. A proceeding to confess judgment is not converted into a chancery proceeding by a motion to- open the judgment and allow the defendants to plead, although the court, in deciding the motion, is governed by equitable principles.</p> <p>2. Appeals and errors—appeal from decision of motion to vacate judgment by confession is at law. An appeal from a judgment entered after allowing a motion to open a judgment by confession to permit the defendants to plead is at law, and the judgment of the Appellate Court is final upon all controverted questions of fact.</p> <p>3. Same—Supreme Court cannot say whether the Appellate Court’s findings are sustained. Where the Appellate Court reverses on the facts without remanding and recites the facts found by it in its judgment, the Supreme Court cannot say whether such facts are supported by the evidence, but only whether they justify the judgment entered thereon.</p>

<p>1. Master and servant—when question of assumption of risk is for the jwry. The question of the assumption by a servant of the risk of injury is for the jury, where the evidence tends to show the risk existed only because of the master’s negligence in providing the servant a reasonably safe place to work.</p> <p>2. Same—servant not required to make inspection for defects. A servant is not bound, primarily, to search for latent defects and to test the safety of appliances furnished by the master, and he is not chargeable with notice of latent defects ascertainable only by special inspection.</p> <p>3. Fellow-servants—when question of fellow-servants is for jury. Whether an employee of the plaintiff’s master is a fellow-servant of the plaintiff is properly left to the jury, under evidence that the former employed the plaintiff, kept account of his time, gave him orders and acted as foreman when the president of the company was absent.</p> <p>4. Evidence—general objection does not raise point of improper cross-examination. A general objection to admission of evidence raises the questions of materiality and relevancy, only, and not the question of improper cross-examination.</p> <p>5. Same—it is proper to show whether defect was obvious. Upon the question of the assumption by a servant of the risk of a defective appliance it is proper to show whether such a defect was patent and obvious or ascertainable only by inspection.</p> <p>6. Same—fact that physician was paid to make examination is competent. In a personal injury case, the fact that a physician who is testifying for the defendant was paid to make an examination of the plaintiff for the purpose of giving testimony may be shown as affecting the weight of his testimony, and it is not reversible error to admit such testimony, even though it incidentally appears that such physician was paid by an accident company.</p> <p>7. Instructions—when instruction does not require too high a degree of care. An instruction for plaintiff in a personal injury case, holding that it was the master’s duty “to use all reasonable precautions to maintain and keep the sewer cover in a reasonably safe condition,” does not impose a higher degree of care upon the master than the law requires.</p> <p>8. Damages—what to be considered in estimating pecuniary loss. In estimating plaintiff’s pecuniary loss in case of a personal injury, all the consequences of such injury, future as well as past, which are shown by the evidence to be reasonably certain to result, are to be taken into consideration.</p>

Writ of Error to the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. This is a writ of error to the circuit court of Peoria county to -review the judgment of that court in overruling the motion of the plaintiff in error that he be set at liberty under the provisions of paragraph 623 of the Criminal Code, (1 Starr & Cur.

<p>1. Homestead—tobera homestead estate does not exist. A homestead estate does not exist in farm property where the premises have been abandoned as a residence by both husband and, wife with no intention of returning, and the farm is in possession of the husband’s tenant.</p> <p>2. Equity—evidence must support allegations to justify relief. A party is not entitled to relief upon grounds not alleged in the bill nor • upon proof of facts different from those alleged. •</p> <p>3. Same—tobera allegations are not supported by proof. Allegations in a bill to set aside a deed that the deed was without consideration and that complainant did not sign the d$ed so as to release her homestead are not supported by proof that the deed was for a valuable consideration, that the homestead had been abandoned and that the deed was made with the fraudulent intent to hinder complainant in collecting alimony.</p>

<p>1. Highways—statutory requirements as to notice of proceeding to lay out road are jurisdictional. The statutory requirements as to notice of proceeding to alter and lay out a public road are jurisdictional, and unless complied with the commissioners and justice of the peace have no authority to act.</p> <p>2. Same—duty of justice to continue hearing in case of service by posting notices. Under section 43 of the Road and Bridge act, relating to counties under township organization, if it proves necessary to obtain service upon non-residents by posting notices of the hearing of the proceeding to lay out a road, the justice of the peace must continue the hearing for a period not exceeding twelve days.</p> <p>3. Same—damages should be assessed to each owner separately. In a proceeding to lay out a public road the statute requires that the damages shall be assessed separately to each of the defendants entitled thereto.</p>

Writ op Error to the Circuit Court of Champaign county; the Hon. Francis M. Wright, Judge, presiding. This is a petition for mandamus, filed by the relator, L. W. Faulkner, in the circuit court of Champaign county, Illinois, against Mary B. Harris, Newton M. Harris, her husband, and the mayor and aldermen of the city of Champaign.

<p>1. Beal property—Joint tenancies are looked upon with disfavor in Illinois. Joint tenancies are not favored in Illinois, and under section 5 of the Conveyance act no estate in joint tenancy passes under any grant, devise or conveyance, other than to executors and trustees, unless the premises shall be expressly declared to pass, not in tenancy in common, but in joint tenancy.</p> <p>2. Same—when express declaration that estate is a joint tenancy is not necessary. If a grant or devise imparts the quality of survivorship to the estate a joint tenancy is created, even though it is not expressly declared that the estate is not a tenancy in common.</p> <p>3. Wills—when will does not create joint tenancy. A devise to the testator’s daughter and his wife, “jointly,” of certain described property, “to them and to their heirs and assigns forever, ” creates a tenancy in common, and not a joint tenancy, notwithstanding the use of the word “jointly.”</p>

Writ op Error to the Circuit Court of Fulton county; the Hon. George W. Thompson, Judge, presiding.

<p>Appeal from the Superior Court of Cook county; the Hon. Russell P. Goodwin, Judge, presiding.</p>

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

<p>Appeal from board of review of Pulton county.</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. Jonas Hutchinson, Judge, presiding.</p>

Louis; the Hon. Silas Cook, Judge, presiding. This is a suit brought by Daniel M. Raidy, who was in the employ of the Wabash Railroad Company as a switchman, against the Chicago and Alton Railroad Company.

<p>1. Special assessments—when ordinance is void. An ordinance predicated upon a recommendation of the board of improvements, increasing the estimate of cost after the public hearing and without any public hearing as to such increase, is void, and the court has no jurisdiction to confirm the assessment.</p> <p>2. Same—city may vacate confirmation judgment if ordinance is void. A confirmation judgment entered on a void ordinance may be set aside by the court at a subsequent term, on motion of the city, notwithstanding some payment has been made upon the assessment. (City of Chicago v. Nodeck, 202 Ill. 257, followed.)</p>

<p>1. Special assessments—what not essential to petition for supplemental assessment. A petition for a supplemental assessment, filed under section 59 of the Local Improvement act of 1897, (Laws of 1897, p. 121,) need not contain a statement of the cost of the original improvement, the amount collected and expended under the original assessment and the amount of the deficit.</p> <p>2. Same—city authorities presumed to have furnished commissioners with correct data. It will be presumed, until the contrary is shown, that the board of trustees, in a proceeding" to levy a supplemental special assessment, furnished the commissioners with correct data for making their estimate of the deficiency under the original assessment.</p> <p>3. Same—city not required to make accounting on supplemental assessment. In a proceeding to levy a supplemental assessment under section 59 of the act of 1897, the city cannot be required to make an accounting with reference to the original assessment.</p> <p>4. Same—supplemental assessment not barred by Statute of Limitations. The provision of section 60 of the act of 1897, authorizing a city, within five years from the confirmation of an assessment, to levy a new assessment against property upon which the city has failed to collect the assessment, has no application to a proceeding to levy a supplemental assessment.</p> <p>5. Same—what does not show that improvement has been fully paid for. Testimony by one of the contractors upon the improvement that he had received warrants to the full amount of his work and sold them and received the money, does not tend to show that the amount levied by the original assessment was sufficient to cover the cost of the improvement, including outside items.</p> <p>6. Same—:former judgment not res judicata upon question of benefits. Under section 59 of the act of 1897 it is no objection to a supplemental assessment that the original assessment has been adjudicated and collected, unless it shall appear that in the original case, upon proper issue made, it was specifically found, in terms, that the property objected for would be benefited no more than was originally assessed against it.</p> <p>7. Same—when propositions of law are properly refused. Propositions of law holding that the supplemental assessment was barred by limitation and that the original judgment of confirmation was res judicata upon the. question of benefits are properly refused by the court when offered at the hearing by the court, a jury being waived, upon the question of benefits.</p>

<p>1. Appeals and errors—when continuance is properly refused. A motion for continuance for an absent witness is properly overruled where the affidavit fails to state that such witness is the only one by whom the particular facts may be proved or that such facts are true, and which fails to show that his attendance could be procured at a subsequent term or to give any reason why his deposition had not been already procured.</p> <p>2. Master and servant—master must furnish servant a reasonably safe place to work. The master is bound to use reasonable care to provide his servants with a reasonably safe place to work, and he cannot escape liability for injury to a servant from a non-performance of such duty by having delegated it to another person who for some purposes was a fellow-servant of the injured party.</p> <p>3. Same—when case is properly left to the jury. An action by a servant against the master for personal injuries received from the breaking of a scaffold is properly left to the jury, where it appears that eight workmen, by the peremptory order of the foreman, were for a temporary purpose crowded upon the scaffold which was intended for but two, and that the defect in the lug which gave way was concealed, and unknown to the plaintiff.</p>

George W. Thompson, Judge, presiding. This was a bill for partition, filed in the circuit court of Fulton county by Charles Nott and Mary Fluke, against Jasper Berry, Sarah Miller, Florence Chapin and Snowden Smith, administrator of the estate of Isaac Berry, deceased.

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

Frank Baker, Judge, presiding. This is an appeal from a judgment of the circuit court of Cook county sustaining a demurrer to the amended petition filed in said court in the name of the People, on the relation of William P. Einne, against Frederick W. Blocki, commissioner of public works of the city of Chicago, praying for a writ of mandamus commanding him, as such commissioner, to remove certain switch tracks from Wallace street, one of the public streets of the city of…

<p>Writ op Error to the County Court of Cook county; the Hon. Orrin 1ST. Carter, Judge, presiding.</p>

<p>1. Damages—measure of, in action for injuries to horses in shipment. The measure of damages in an action for injuries to horses in shipment is the difference between what the horses were worth when received for shipment and when they reached their destination.</p> <p>2. Evidence—what incompetent upon question of damages. Where plaintiff in an action for injuries to horses in shipment was obliged to keep the horses for a month after their arrival at destination on account of their damaged condition, evidence as to what they sold for after he prepared them for market is immaterial and is properly denied admission.</p> <p>3. Same—right of plaintiff to testify as to market value of horses. In an action for injuries to horses in shipment, the plaintiff, who has had a large experience in selling horses, may testify as to the market value of horses at the point of destination, even though he has but a limited knowledge of that market, the weight to be given his testimony being for the jury.</p> <p>4. Instructions—when modifying instruction is not ground for reversal. Where an instruction asked by the defendant carrier holds that restrictions of the carrier’s liability in the bill of lading were binding upon the plaintiff if voluntarily signed by him, a modification which conditions such restrictions upon the absence of fraud by the carrier’s agent which would mislead the plaintiff is not ground for reversal, even though there is no evidence of such fraud.</p> <p>5. Same—when party cannot complain of instructions. A party can not complain of his opponent’s instructions if his own instructions are to the same effect.</p> <p>6. Carriers—carrier must show that shipper assented to terms of contract. The burden is upon the carrier to show that the shipper assented to restrictions upon its liability contained in the shipping contract, and in the absence of such evidence it is presumed that the shipper did not assent to such restrictions.</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. R. W. Clifford, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. E. P. Dunne, Judge, presiding".</p>

<p>1. Pleading—when declaration is sufficient to support judgment.' A declaration in a personal injury case is sufficient to support the .judgment even though it does not allege due care by deceased, where it alleges that defendant’s servants, knowing the perilous position of deceased, wantonly and willfully and without warning backed an engine upon him, in violation of a city ordinance, and that they might have stopped the engine before it struck him.</p> <p>2. Appeals and errors—whether a verdict is against the weight of evidence is not open to review by Supreme Court. Upon appeal in a personal injury case the appellant is entitled to the judgment of the Appellate Court as to whether the verdict is against the weight of the evidence, but in the Supreme Court the only question is whether there is any evidence fairly tending to support it.</p> <p>3. Evidence—what tends to prove that injury was wanton. Evidence that plaintiffs intestate was standing close to defendant’s track, with his back toward an approaching engine; that the engineer saw him and slowly backed the engine towards him without giving any warning and ran over him, although the engine might readily have been stopped before it struck him, tends to prove that the injury was wanton, as alleged.</p> <p>4. Same—what competent upon question of damages. In a personal injury case it is not proper to admit evidence of the pecuniary condition of the widow or next of kin, but it is not error to allow proof of the earnings of the deceased and that the widow and children were supported by him.</p> <p>5. Trial—permitting leading questions is largely discretionary with trial court. Permitting leading questions is a matter resting so largely in the discretion of the trial court that it will not work a reversal unless there is a manifest abuse of such discretion.</p> <p>6. Instructions—when reference to declaration is not ground for reversal. Reference in an instruction to the declaration, although not an approved practice, is not ground for a reversal where no question of law is submitted in that way and the several counts each contain a sufficient statement of the cause of action.</p>

Writ op Error to the Circuit Court of Randolph » county; the Hon. William Hartzell, Judge, presiding. This was an action of ejectment in the circuit court of Randolph county by plaintiffs in error to recover from defendants in error possession of ten acres of land in that county. It was admitted on the trial that Thomas Horrell was the common source of title.

Jesse Holdom, Judge, presiding. This is a bill in chancery filed by Bruce B. Barney on the 28th day of June, 1899, in the superior court of Cook county, against Ernest W. Bock, for the partition of certain real estate situated in the city of Chicago, fronting upon Lake Michigan and located east of Lincoln Park boulevard and north of Oak street extended, and which is designated as “park property” upon the following plat: [[Image here]] It was alleged that Barney was the owner…

Jesse Holdom, Judge, presiding. This was a bill in chancery, filed in the superior court of Cook county by the appellee, against the appellant, for an injunction.

<p>1. Taxes—board of review has no power to levy tax. A board of review has authority to assess property for the purpose of taxation, but it has no power to levy or extend the tax.</p> <p>2. Same—when money paid as for taxes may be recovered. Money paid in gopd faith by an administrator to the county treasurer upon the representation by the board of review that the amount was for back taxes upon his intestate’s property may be recovered back, where no entry of the alleged assessment was made upon the assessor’s books and no tax thereon extended by the clerk.</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. Joseph P. Robarts, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of Franklin county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>1. Contracts—when literal performance of contract cannot be insisted upon- Strict performance of a provision of a contract between landlord and tenant whereby the former agreed to pay the latter the reasonable value of certain fixtures or allow him to remove same whenever he delivered,possession of the premises to the landlord, cannot be insisted upon by the landlord, if, by a sale of the premises, he has put it out of the tenant’s power to deliver possession to him.</p> <p>2. Landlord and tenant—what amounts to conversion of'.property by la/ndlord. If a landlord agrees to pay Ms tenant the reasonable value of a barn erected by the latter or allow him to remove the same upon delivery of the premises under any lease, a sale of the property, including the barn, amounts to a conversion as to the barn, and the tenant is entitled to recover its value as it stood on the day the sale was made.</p> <p>3. Same—what does not relieve landlord from liability for funds converted. Where a landlord sells his farm, including a barn erected thereon by his tenant under an agreement that the latter would receive the reasonable value thereof on surrender of the premises, the fact that the tenant subsequently rents the farm and barn from the landlord’s grantee does not relieve the landlord from liability to pay the tenant the reasonable value of the barn.</p> <p>4. Interest—equity follows the law in allowance of interest. In a proceeding in equity to compel a party to account for proceeds of property converted to his use, it is proper to allow interest on the value of the property at the time of the conversion.</p> <p>5. Appeals and errors—objections to the master's findings must be made below. An objection that the master, on accounting, failed to make an allowance for rent for a certain period cannot be urged on appeal, where no objection or exception was taken to the master’s report upon that point.</p> <p>6. Fixtures—when blacksmith shop is not a fixture. A blacksmith shop moved by a tenant to the rented premises on runners and left upon the runners during the time it was on the rented premises is not a fixture.</p> <p>7. Same—when corn-crib is a fixture. A corn-crib erected by a tenant upon posts sunk fifteen inches in the ground is to be regarded as. a fixture, as between the tenant and a party who purchased the farm without notice of the verbal agreement between the tenant and the then owner of the farm for its removal.</p> <p>8. Costs—master not entitled to allowance for stenographer's fees. A master in chancery is not entitled to an allowance, as for official services, for the amount paid by him to a stenographer for taking the testimony.</p>

<p>1. Dower—effect where dower is assigned in a body, out of one lot. Dower to which the widow is entitled in each of several lots may be assigned to her in a body out of one or more of the lots, and in such case she becomes seized for life in the freehold estate as to such lot, and her rights are not contingent upon her occupancy thereof.</p> <p>2. Same—effect of decree assigning dou-er. In partition by heirs, if the court assigns one of the lots involved to the widow as her homestead and dower interest and partitions the remaining lots among the heirs in severalty, free and clear of the rights of the widow, the widow is invested with a life estate, and she may rent the lot without accounting to the heirs.</p>

<p>1. Pleading—notice of election to abide by plea is unnecessary. If a pleading is held bad on demurrer the pleader must abide by his pleading if he would have the decision on the demurrer reviewed, but it is not necessary that he give notice of his election to do so.</p> <p>2. Appeals and errors—when decision on demurrer is open to review. Where leave is given to plead over and another plea is filed, to which a demurrer is sustained, and no leave is taken to amend or plead over or other steps taken indicating an abandonment of the plea, the decision of the court on the demurrer is open for consideration by a court of review.</p> <p>3. Same—an exception to decision on pleadings is unnecessary. The pleadings are part of the record proper, and any alleged error in decisions upon the pleadings is reviewable, on appeal, without a bill of exceptions.</p> <p>4. Insurance—company may be estopped to insist upon a forfeiture. An insurance company is estopped to insist upon a forfeiture, if, after the cause of forfeiture has accrued, it treats with the assured in such manner as to recognize the policy as still subsisting.</p> <p>5. Same—when company is estopped to insist upon forfeiture. Taking security for over-due and unmatured premium notes and extending the time of their payment estops the company from insisting upon the failure to pay the former notes at maturity as ground of forfeiture, where the money to pay the notes was collected on the security and tendered after the death of the assured but before maturity of part of the notes.</p> <p>6. Same—a clause prohibiting verbal xoaiver does not apply to implied waiver. A clause in an insurance policy providing that no forfeiture shall be waived except by a writing signed by the officer having authority, applies to an express waiver, and not to a waiver implied by law from a course of conduct which estops the company from insisting upon a forfeiture.</p>

L. C. Ruth, Judge, presiding. This is an application in the county court of Cook county for the confirmation of a special assessment to pay for curbing, grading and paving with asphalt West Blackhawk street, in the city of Chicago, from the east curb line of North Paulina street to the westerly line of the street railway right of way on Elston avenue, in said city.

<p>1. Trial—when case must go to jury. If the evidence in favor of the plaintiff, together with all the legitimate conclusions to be drawn therefrom, fairly tends to sustain his cause of action, he is entitled to have the case submitted to the jury whether such evidence is weak or strong.</p> <p>2. Fellow-servants—qualification of rule that risk of an injwry ly fellow-servant is assumed. Assumption by a servant of the risk of injury from fellow-servants is subject to the implied undertaking of the master that he will use' due care to employ competent and prudent servants.</p> <p>3. Same—when question of assumption of risk of injury from another servant is for the jury. Whether plaintiff, who was a “coupler” on an elevated railroad, assumed the risk of injury from the acts of a1 motorman on the same road is a question for the jury, under evidence tending to show that the motorman was habitually reckless, which fact was known to defendant but not to plaintiff.</p> <p>4. Same— existence of relation of fellow-servants is ordinarily a question of fact. Whether servants of the same master are fellow-servants is ordinarily to be determined by the jury from a consideration of all the evidence and under proper instructions.</p> <p>5. Evidence—proof of reckless conduct not confined to acts similar to cause of injwry. In an action for injuries received through reckless backing of a motor car against the car which the plaintiff was uncoupling, proof of the general reputation of the motorman for recklessness is not confined to the method in which he usually performed acts similar to the one causing the injury.</p>

Writ of Error to the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding.

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

<p>Appeal from the Circuit Court of Douglas county; the Hon. W. G. Cochran, Judge, presiding.</p>

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

C. A. Bishop, Judge, presiding. This was a bill in chancery, filed October 15, 1901, by the appellee, Theodore D. Driscoll, as conservator of Mary Tindall, against the appellants, John Alexander Dowie, Orlando L. Tindall, Nancy H. Tindall and Elizabeth T. Milner, in the circuit court of DeKalb county, to set aside a deed from Mary Tindall to said Dowie, bearing date August 5,1901, conveying to him her homestead, located in Sycamore, in said county; also to set aside the…

<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. Theodore Bren-TANO, Judge, presiding.</p>

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

Theodore Brentano, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of' the superior court of Cook county in favor of appellees, and against appellant, for $5000. The action is trespass on the case.

<p>1. Negligence—if parties are jointly guilty of negligence either or all may be sued. If several persons are jointly guilty of negligence causing an injury, the injured party may sue any one or all of the parties, but if more than one is sued the negligence must be shown to be joint, and not the distinct act of one.</p> <p>2. Same—one using electricity must use care commensurate with danger. One using a highly dangerous agent, such as electricity, in a public business, must use care to avoid injury commensurate with the danger to the public.</p> <p>3. Same—what tends to show joint negligence. Evidence that the insulation of the wires of an electric light company which crossed a telephone company’s wires was bad; that the telephone wires were not protected in any way; that a pole for the electric light wires was unfit and was leaning, bringing the two sets of wires to within a few inches of each other, and that they came in contact during a storm, thereby doing injury, tends to show joint negligence of the companies.</p> <p>4. Telephone companies—what not the law as to protection of telephone company. It is not the law that the only protection for a telephone company from danger of contact with the wires of other companies is to remove its wires from the streets. (Chicago Telephone Co. v. Northwestern Telephone Co. 199 Ill. 324, explained.)</p> <p>5. Appeals and errors—question whether defendant should have discovered danger is one of fact. Whether the dangerous condition of a telephone wire which had become crossed with an electric light wire during a storm in the night should have been discovered by the telephone company in time to have prevented the injury, which occurred at 8:30 o’clock the next morning, is a question of fact conclusively settled by the judgment of the Appellate Court.</p>

Writ of 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. Jesse Holdom, Judge, presiding. This is a proceeding begun in the superior court of Cook county by J. M. Hogan and others to establish a mechanic’s lien. Frank Buchanan, in March, 1897, was the owner of four flat-buildings on Adams street, in the city of Chicago, then in process of erection.

Writ of Error to the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding. This is a writ of error to the circuit court of Cook county by plaintiff in error, seeking to reverse a decree wherein the defendant in error was held to be the owner in fee simple of certain real estate.

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

Writ of Error to the Criminal Court of Cook county; the Hon. Oliver H.'Horton, Judge, presiding.

<p>3. Appeals and errors—what necessary to involve a freehold. A freehold is involved only when the result of the litigation must be that one party will gain and another lose a freehold estate, or when the title is so put in issue by the pleadings that a decision of the case necessarily involves a decision of title.</p> <p>2. Same—when freehold is not involved. A freehold is not involved in a proceeding for mandamus to compel a street railroad company to lower its tunnel under a river so as to relieve navigation from unnecessary obstruction, where the title of the company to the soil and the paramount easement of navigation are admitted, the only question being as to whether the tunnel unnecessarily obstructs navigation.-</p> <p>3. Same—when franchise is not involved. Neither the franchise of a street railroad company nor the franchise of the city is involved in a proceeding by the city to compel the company to lower its tunnel under a river so it will not obstruct navigation, in accordance with the terms of the ordinance authorizing the construction of the tunnel.</p> <p>4. Same—when constitutional question is not involved. A proceeding by a city to compel a street railroad company to lower its tunnel under a river so that it will not obstruct navigation, does not involve the constitutional question of taking the property of the railroad company in question without compensation and without due process of law.</p>

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

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

Writ of Error to the Circuit Court of Cook county; the Hon. Murray P. Tuley, Judg'e, presiding. This was a bill for an injunction, filed in the circuit court of Cook county by the plaintiff in error, the Chicago Terminal Transfer Railroad Company, to restrain the defendant in error the city of Chicago from tearing up certain railroad tracks of the plaintiff in error.

Joseph P. Rob arts, Judge, presiding. This was a bill in chancery filed by Mary Ann Clapp in the circuit court of Cook county, as widow of James H. Clapp, deceased, against Georgianna Potter, Annie L. Wilcox and Albert G. Clapp, his children by a former marriage, for the assignment of dower and homestead in the real estate of which he died seized, the establishment of a resulting trust in said real estate to the extent her money had paid therefor, and for an accounting.

<p>1. Appeals and errors—when judgment need not exceed $1000 to authorize appeal. In actions ex contractu or ex delicto, if the damages are speculative in character and not susceptible of direct proof, an appeal lies from the Appellate Court without a certificate of importance, if the damages recovered, as shown by the judgment, are even $1000 or over.</p> <p>2. Bicycles—duty of person riding a bicycle close to street car. One riding a bicycle close to a street car, who is aware that cars usually stop at the far side of cross-streets and that the conductor usually gets off, should guard against running into passengers or the conductor, who has alighted to assist passengers.</p> <p>3. Same—when party cannot recover for injury received while riding bicycle. One who rides a bicycle at so high a rate of speed and so close to a street car that she cannot stop in time to avoid colliding with the conductor, who has stepped off the car at a usual stopping place to assist a passenger to alight, cannot recover from the company for injuries received in the collision.</p> <p>4. Same—a bicycle is a vehicle. A bicycle is a vehicle and is subject to the rules of law governing other vehicles, and the rider must use the same degree of care as drivers of other vehicles.</p> <p>5. Street railroads—conductor has a right to step from the car upon the street. A street car conductor has a right to be upon the street near his car for the purpose of assisting passengers to get on or off the car.</p> <p>6. Instructions—when instruction upon subject of ordinary care is erroneous. In a personal injury case it is not proper to give an instruction which limits the question of due care to the conduct of the plaintiff at the time of the injury, regardless of his conduct in placing himself in danger.</p> <p>7. Negligence—when question of contributory negligence is for the court. The question of contributory negligence is one of law for the court, if the undisputed evidence of its presence is so conclusive that the court would be compelled to set aside a verdict in opposition to it.</p>

<p>1. Appeals and errors—exception to overruling of demurrer is unnecessary. An exception to the overruling of a demurrer is not necessary in order to enable an appellate tribunal to review the action of the court, since the alleged error is one of law with respect to the pleadings, which are part of the record proper and may be reviewed without exceptions appearing of record.</p> <p>2. Damages—measure of damages for breach of covenant. The measure of damages for breach of a covenant in a deed is what the plaintiff actually lost by such breach.</p> <p>3. Same—basis for estimating damages where title partially fails. The value of the property at'the time of the conveyance is the basis for estimating damages in an action for breach of covenant where title partially fails.</p> <p>4. Evidence—statements of amount and receipt of consideration may be explained. The statements in a deed of the amount and the receipt of the consideration are formal recitals, the legal operation of which is to prevent a resulting trust, and they may be explained, varied or contradicted by parol evidence.</p> <p>5. Same—what a competent defense to suit for breach of covenant. In an action for breach of covenant of seizin upon the ground that the title to the soil and to the minerals had been severed and the latter sold to another, it is competent to show in defense that the grantee purchased with knowledge of such severance and that the consideration paid was merely for the surface.</p> <p>6. Pleading—when an allegation is surplusage. In an action for breach of covenant, which is defended on the ground that there had been a previous severance of the title as to the soil and minerals, an allegation in a plea that the reservation of the title to the minerals was omitted from the deed by mistake may be regarded as surplusage, as presenting facts cognizable only in a court of equity.</p>

<p>1. Special assessments—provision that engineer's estimate shall be made part of record of resolution is mandatory. The provision of sec-^on ^ t^ie kocal Improvement act of 1897, that the engineer’s itemized written estimate of the cost of the proposed improvement shall be made a part of the record of the first resolution, is for the information and protection of the property owners, and must be complied with. (McChesney v. Chicago, 201 Ill. 344, overruled.)</p> <p>2. Same—-when provision that engineer's estimate shall be made a part of resolution is not complied with. Section 7 of the Local Improvement act of 1897, requiring an itemized estimate of cost of a proposed improvement to be made in writing and signed by the engineer of the board, which shall be made a part of the record of the resolution, is not complied with in a resolution stating merely that the engineer had estimated the cost, in gross, at $84,000. (McChesney v. Chicago, supra, overruled.)</p> <p>3. Same—proceedings prior to adoption of ordinance are jurisdictional. The proceedings required by statute to be taken before adoption of a special assessment ordinance are jurisdictional, and without them no valid ordinance can be passed nor can a valid assessment be made.</p>