Volume 204 — Illinois Reports

<p>1. Appeals and errors—additional evidence is admissible upon a general remandment. If the remandment of a cause upon reversal is general, .without qualifications or directions, the cause stands for hearing as it did originally, and any competent evidence is admissible to prove the issues.</p> <p>2. Same—the rules of law and decisions of fact announced in opinion ■govern, although remandment is general. The rules of law and the decisions upon matters of fact then in the record, announced in the Supreme Court’s opinion upon reversing a judgment, govern the second hearing, even though the remandment is general.</p> <p>3. Same—question for decision on second appeal. If a cause is reversed upon its merits and remanded generally, the question for determination upon appeal from the decree rendered upon the second hearing is whether the new evidence introduced is sufficient to support the decree.</p> <p>4. Marriage—what essential to common law marriage. To constitute a legal marriage at common law the contract and consent must be_per verba de presentí, or if made per verba de futuro cumcopula, the copula must have been allowed upon the faith of the marriage promise as an acceptance of each other as man and wife.</p> <p>5. Same—presumptions arising from cohabitation may be overcome by other presumptions. The presumption of marriage arising from cohabitation and marriage relations may be overcome by other presumptions springing from the acts and declarations of the parties after cohabitation between them has ceased.</p> <p>6. Same—what not sufficient to show a common law marriage. Proof that the alleged husband spoke of and addressed the other party as his wife, and that he drew checks in her name as his wifé, is not sufficient to show a common law marriage, as against evidence showing the relation between them to be adulterous, and known by both of them to be such..</p>

<p>1. Constitutional law—whether a general law can be made applicable is a legislative question. Whether a general law can be made applicable in any case in which local or special legislation is not expressly prohibited is a question committed to the discretion of the legislature, and its conclusion is not subject to review.</p> <p>2. Same—statute operative in particular locality may be general. An act which is restricted in its operation to a particular county is not, for that reason alone, necessarily a local or special law.</p> <p>3. Same—legislature may provide for terms of court in each county by separate enactment. Under section 14 of article 6 of the constitution the legislature may fix the terms of court in each county by a separate enactment applicable to a single county.</p> <p>4. Counts—act of May 9,1903, was repealed by act of May 15,1903. The act of May 15,1903, (Laws of 1903, p. 144,) fixing the terms of circuit court in Jefferson county, supersedes and repeals, by implication, the act of May 9,1903, (Laws of 1903, p. 145,) fixing the terms of the same court at different times.</p>

<p>1. Limitations—section 20 of Limitation act construed. The words “when a cause of action has arisen” in a foreign State, used in section 20 of the Limitation act, mean, when the plaintiff has the right to sue the defendant in the courts of such foreign State, regardless of the place where the cause of action had its origin.</p> <p>2. Same—effect of section 20 of the Limitation act. An action on a promissory note cannot be maintained in Illinois, under section 20 of the Limitation act, where both the plaintiff and the defendant were non-residents of Illinois when the cause of action accrued and the defendant resided in a foreign State until the cause of action was barred by the laws of such State.</p>

Axel Chytraus, Judge, presiding. This is an action in assumpsit, brought by J. H. Farrar, a real estate broker, against Samuel P. Parmly, to recover commissions for procuring the sale of the Boone block in Chicago to W. D. Walker. The trial in the court below resulted in verdict and judgment for $5000.00 in favor of the appellee, Parrar.

Frank Baker, Judge, presiding. This is a bill, filed on July 1, 1902, by Annie D. Williams, the widow of John M. Williams, deceased, and Alan H. Williams, an infant son of said John M. Williams, deceased, suing by his next friend, to set aside the will of the said John M. Williams, deceased, upon the alleged ground that the testator was not of sound mind and memory at the time of making his will, but was of such great age and infirmity, and his mind and memory were so…

court on appeal from the Circuit Court of White county; the Hon. P. A. Pearce, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a judgment of the circuit court of White county.

<p>1. Bonds—bond prepared by obligor is construed most strongly against him. A bond prepared by the obligor will be most strongly construed against him in case of ambiguity.</p> <p>2. Same—rule as to construction of a written instrument. A qualifying phrase in a written instrument is to be confined to the last antecedent, unless there is something in the instrument which calls for a different construction.</p> <p>3. Same—what not a false answer to question in application for bond. The statement “$85 per month as salary or commissions,” in answer to a question as to compensation, contained in an application for an indemnity bond, is not false, where the party referred to received $10 per week in cash, the use of a flat worth $20 per month and a commission of two and one-half per cent on $1000 rent collected monthly by him.</p> <p>4. Guaranty—bond construed as to scope of guaranty. A bond prepared by a surety company guaranteeing an employer against “loss by reason of the dishonesty or fraud, amounting to larceny or embezzlement,” of an employee, is a guaranty against dishonesty or fraud of the employee, whether such as would render himTiable to indictment for larceny or embezzlement or not.</p>

Clair county; the Hon. B. R. Burroughs, Judge, presiding. Appellees, as the executor and legatees under the last will and testament of Michael Friederich, deceased, filed this bill' against appellant, the widow of the deceased, for the purpose of having her rights under his will settled and determined.

<p>1. Corporations—director may enforce bona fide judgment against corporation. A director of a corporation having a judgment against the corporation, obtained in good faith upon a bona fide indebtedness, may pursue the remedies afforded by law to enable him to collect the same.</p> <p>2. Evidence—party charging fraud and collusion must prove same. One alleging fraud and collusion between a director and the president of a corporation with reference to a judgment against the corporation obtained by such director has the burden of proof, where the charges are denied by the answer.</p>

Elbridge Hanecy, Judge, presiding. This is a bill originally filed on December 5, 1901, in the Circuit court of Cook county by the appellant, Edna I. Fowler, against the appellee, Harriet Fowler, and Charles H. Fowler and Bernard Fowler, for the purpose of enforcing the specific performance of a contract, alleged to be embodied in certain letters which passed between Charles H. Fowler and the attorney of appellant.

S. Murray Clark, Judge, presiding. This is a petition, filed in the county court of Vermilion county on July 25, 1902, to establish a drainage district under the provisions of the statute known as “An act to provide for the construction, reparation and protection of drains, ditches and levees, across the lauds of others, for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts,” approved and in force May 29,1879.

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. A. K. Vickers, Judge, presiding.

W. G. Cochean, Judge, presiding. Appellee, at the March term, 1901, of the DeWitt circuit court, filed his bill- against appellant, his wife, for the purpose of enforcing an alleged trust to certain real estate in the city of Clinton and for the transfer of title from her to himself. Appellee and appellant were married in 1866.

<p>' Appeal from the Circuit Court of Will county; the Hon. John Small, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This is an action of assumpsit, begun on September 4, 1900, in the superior court of Cook county by the appellee against the appellant to recover an amount, claimed to be due on account of certain merchandise, consisting of shoes, alleged to have been delivered to the appellant by the appellee. The declaration consisted of the common counts, and two special counts.

<p>1. Continuance—affidavit for continuance should state facts, and not conclusions. An affidavit for a continuance on the ground of an absent witness should state facts which will show the court that due diligence was used to be ready for trial and that the attendance of the desired witness can be produced if a continuance is granted, mere conclusions of the affiant being insufficient.</p> <p>2. New trial—when motion for new trial is properly denied. A motion for new trial in a criminal case is properly denied although based on an affidavit by the principal witness for the State that she swore falsely at the trial, where her testimony at such trial was corroborated by three other witnesses and no sufficient explanation is given in the affidavit as to why she perjured herself.</p>

Writ of Error to the 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.

Writ op Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. The grand jury, at the September term of the circuit court of Moultrie county, returned an indictment against Frank Glover, consisting of three counts.

Theodore Brent ano, Judge, presiding. The following is the statement of facts which precedes the opinion of the Appellate Court in this case: “Appellee, a baker by trade, aged fifty-five years, was injured while in the employ of appellant. His hand was caught between two iron rollers of an appliance used for mixing dough. This doug'h-mixer was a machine made up of two cylinders, like the cylinders of a common wringing machine used on a wash-tub.

<p>1. Executors and administrators—whatfacts constitute executor de son tort is for the court. What facts constitute the relation of executor de son tort is a question for the court, although the question whether such facts exist, if in controversy, is for the jury.</p> <p>2. 'Same—when party is executor de son tort. One who takes charge of the intestate personal estate of his son at the request of the latter, who desired that there be no administration, must hold and account for the same to the widow and minor heirs in the proportion fixed by the Statute of Descent, and his'attempt to carry out his son’s verbal directions for a different disposition of the estate places him in the position of an executor ¿Ze son tort.</p> <p>3. Same—one volunteering to distribute estate assumes the liabilities of an administrator. A father who attempts to take charge of and distribute his son’s intestate property without administration must exercise the same diligence in the collection of notes due the esr tate as though he were a regularly appointed administrator.</p> <p>4. Same—what acts of kindness do not create liability as administrator. The acts of kindness or charity which will not create a liability as an executor or administrator de son tort are limited to such transactions as directing a funeral, paying funeral expenses and temporarily preserving the estate from loss or waste.</p> <p>5. Same—when questions of set-off and estoppel cannot be litigated. In an action at law by the widow, as administratrix, to enforce the liability of the defendant as an. executor de son tort, the questions whether the plaintiff is individually estopped to enforce the demand or whether the amount claimed should be taken from her individual share of the estate cannot be litigated, such questions being of equity jurisdiction.</p>

<p>Appeal from the County Court of Vermilion county; the Hon. S. Murray Clark, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Douglas county; the Hon. W. G-. Cochran, Judge, presiding.</p>

<p>1. Guaranty—rule as to construing contract of guaranty. A contract of guaranty should he construed as favorably to the creditor as other written contracts.</p> <p>2. Same—when acceptance of a contract of guaranty is waived. Acceptance of a contract guaranteeing an agency contract is waived where it provides that the agent and his guarantor guarantee the fulfillment by the agent of his obligations and duties and “waive notice of acceptance of the above contract.”</p> <p>3. Same—effect of failure to notify guarantor of agent’s default. Failure to notify a guarantor of an agency contract of the agent’s default, even where not waived, has no other effect than to afford the guarantor a defense to the extent he sustains loss thereby.</p> <p>4. Appeals and errors—harmless error in an instruction will not reverse. Harmless error in an instruction will not reverse, particularly when any other verdict would have been unwarranted.</p> <p>5. Evidence—when statement of account is admissible against guarantor. A statement of account signed by an agent, showing the amount due from him to his principal, is admissible against the guarantor of the agency contract notwithstanding the agent has filed a petition in bankruptcy, where the statement is identified by a witness who testifies as to its correctness, which is not denied.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. Frank Baker, Judge, presiding. Plaintiff in error sues out this writ of error to the criminal court of Cook county to review a judgment and sentence pronounced against him in that court for the murder of Charlotte S. Nichol. The indictment contained two counts. The first count charges the plaintiff in error with having produced the death of the deceased by administering poison to her.

R. S. Tuthill; Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming the decree of the circuit court of Cook county in a proceeding in equity there instituted by appellant against appellees.

Writ op Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. This is a joint indictment, found by the grand jury at the January term, 1903, of the circuit court of Sangamon county against the plaintiff in error, Thomas Watts, and one Thomas Watts, Jr., and one Oliver Tomlin, for the larceny of eight hogs of the value of $100.00, being the property of Samuel H. Jones.

<p>1. Criminal law—plea of guilty admits all facts alleged and obviates proof. A plea of guilty admits every material fact alleged in the indictment, and it is not necessary that such facts be proved.</p> <p>2. Same—it is presumed the court heard evidence as to the age of party sentenced to reformatory. Where a party is sentenced to the reformatory on a plea of guilty, it will be presumed,If the record is silent upon the subject, that the court heard evidence as to the age of the offender, there being no statutory requirement that the finding of the court on that point shall be preserved.</p> <p>3. Same—what question does not properly arise upon writ of error. Whether the plaintiff in error is held in the place of his confinement without a warrant of commitment is a question which is not proper upon writ of error but which may be raised by habeas corpus.</p>

Robert B. Shirley, Judge, presiding. This is an action on the case, begun in the superior court of Cook county on April 27, 1900, by the appellee against the appellant company to recover damages for a personal injury. The Union Stock Yards and Transit Company and the Chicago Junction Railway Company appear to have been co-defendants below with the appellant, but the suit was dismissed against them, and allowed to stand as against the appellant.

Owen P. Thompson, Judge, presiding. Samuel Thornley, a resident of Morgan county, died on the 26th day of March, 1901. A will executed by him on the 24th day of September, 1875, was produced and offered for probate.

Writ op Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Jonas Hutchinson, Judge, presiding. This was originally an action of replevin brought on September 21, A. D. 1899, in the superior court of Cook county by the pl-ai.ntifl: in error, Alonson D. Perkins, as plaintiff, against the defendant in error, John A. Knisely, as defendant.

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Plaintiff in error filed her bill in the superior court of Cook county on March 29, 1901, against the defendant in error, for an accounting, to which he pleaded in bar a decree of the circuit court of Cook county entered January 20, 1881.

Orrin N. Carter, Judge, presiding. This is an application on the part of the ex officio county collector of Cook county for a judgment of sale for a delinquent special assessment for a water sjipply pipe in Michigan avenue, from One Hundred and Third street to a point 568 feet south-westerly of One Hundred and Fourth street, warrant No. 25,906, docket No. 24,739, confirmed March 14, 1901.

<p>1. Street railways—mss of street for street railway is legitimate. The use of part of a street for street railway purposes is legitimate, and the municipal authorities, acting for the public, may authorize the construction of a viaduct for the tracks, even though it excludes the public, to some extent, from the use of that part of the street.</p> <p>2. Estoppel—when village is estopped to demand removal of viaduct. A village is estopped to insist upon the removal from a -street of that part of a street railway viaduct exceeding the width of twenty feet, where the viaduct was built twenty-five feet wide by the company under the supposed authority of an ordinance and under the supervision of the village authorities, who made no objection until the viaduct was completed, and where the ground for the street was purchased by the company and dedicated to the village as part of its agreement for right of way, leaving thirty-two feet for street purposes.</p> <p>3. Equity—practice—rule where bill prays for general and special relief. Complainant may be denied the special relief prayed for in his bill, and under the prayer for general relief be granted such relief as he may be found to be entitled to under the allegations and proof.</p>

<p>1. Appeals and errors—when party is estopped to sue out writ of error. A defendant in error in the Supreme Court who fails to assign cross-error to support his contention that error arose from the absence of an alleged necessary party, cannot subsequently sue out an original writ of error in the same case and assign such point as error. [Page v. People, 99 111. 418, distinguished, and doctrine limited.)</p> <p>2. Same—party committing error is estopped to complain of same error. A. complainant-who fails to make a certain party a defendant to his bill to enjoin the removal of an obstruction from the street, is estopped to complain, on appeal, that the defendant erred in not making the same party a defendant to its cross-bill to compel such removal.</p> <p>3. Parties—«Viera mortgagee of railroad is not a necessary party. A mortgagee of a leasehold interest in a railroad, who is not in possession, is not a necessary party to a proceeding by a city against the owner and the lessee of the railroad to compel the removal of the track from the street as a nuisance, where the lessee had no interest upon which the mortgage could take effect, the right to occupy the street with tracks having expired by limitation under the grant from the city.</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. O. H. Horton, Judge, presiding.</p>

Edmund W. Burke, Judge, presiding. The following statement of the facts in this case is made by the Appellate Court as a preface to its… Held: and which opinion unquestionably was an important factor in the mind of Fitzgerald and tended largely to influence him in the making of the lease. “The master found that there was a mutual mistake of fact by the parties as to the strength of the building and the sufficiency of the existing walls and foundations to carry the two…

<p>1. Appeals and errors—presumption where the Appellate Court reverses without remanding. If the Appellate Court reverses a judgment at law without remanding the cause or making a finding of facts, it is presumed the reversal was upon the ground the evidence did not tend to prove a cause of action, and in such case the Supreme Court has jurisdiction to determine that question.</p> <p>2. Insurance—if terms of a contract are unambiguous neither party can be favored. If there is no ambiguity in the terms of an insurance contract neither party can be favored in its construction, and if the stipulations are such as the parties mightlawfully make, it is the duty of the court to enforce them.</p> <p>' 3. Same—when prohibition against use of gasoline is not dependent on increased hazard. A clause in a fire policy providing for the avoiding of the policy in case gasoline is kept or used is not dependent upon a preceding clause prohibiting an increase of the hazard, where the clauses are distinct and separated from each other by a semi-colon.</p> <p>4. Same—violation of a restriction as to use of gasoline avoids policy. Violation of a provision in afire policy permitting the use of gasoline for a stove on condition that no gasoline shall be kept in the building other than in the reservoir of the stove avoids the policy, and it is not incumbent on the insurer to show that such violation contributed to the loss.</p> <p>5. Same—violation of a policy by tenant is a violation by a landlord. Violation of the terms of a fire policy by a tenant pf the insured without his knowledge is a violation by the insured.</p>

Auditor’s certificate of appeal from action of board of review of Cook county. This is an appeal from the action of the board of review of Cook county under the provisions of section 35 of the Revenue law of 1898.

<p>1. Bes judicata—when judgment for rent is not res judicata. Under sections 127 and 135 of the Criminal Code a judgment for rent for premises knowingly leased for a gambling house may be set aside in equity, where the defense of illegality was not made in the suit for rent, although the defendant was aware of the facts.</p> <p>2. Equity—equity will not aid in recovering payments under illegal lease. Equity will not aid a lessee to recover payments made by him under a lease knowingly made by the lessor for a gambling house, in violation of the Criminal Code, even though payment was coerced by an execution issued upon a judgment for rent.</p>

<p>Appeals and errors—when Supreme Court cannot consult stipulation of facts. If the parties to an action enter into a written stipulation of the. evidentiary facts upon the question whether certain property is personal property or fixtures, the judgment of the Appellate Court upon that question is conclusive although different from that of the trial court, and the Supreme Court cannot consult the stipulation to determine the facts.</p>

<p>1. Special assessments—benefits cannot be apportioned between a leasehold and remainder. A judgment confirming a special assessment is in rem against the land itself, and the benefits assessed can not be apportioned against the leasehold and the remainder in fee as separate estates and separate judgments be entered as to each.</p> <p>2. Same—measure of benefits to city lots held by a street railroad company. The measure of benefits from a local improvement to city-lots owned by a street railroad company is the enhanced value of the property by reason of the construction of the improvement, notwithstanding the use is restricted to railroad purposes. (Illinois Central Railroad Co. v. Chicago, 141 Ill. 509, distinguished.)</p>

<p>1. Trial—motion to file additional plea at trial must be supported by reasonable excuse. A motion for leave to file an additional plea after the case is on trial is addressed to the discretion of the court, and should be supported by an affidavit showing a reasonable excuse for the defense not having been presented before.</p> <p>2. Same—when motion for leave to file additional plea is properly denied. A motion to file an additional plea at trial is properly denied where the case has been at issue under a-plea of the general issue for four years, a bill of particulars has been on file for three years and no excuse is shown for not sooner presenting the defense.</p> <p>3. Appeals and errors—what a waiver of an assignment of error. Failure to urge as error, in the briefs filed in the Appellate Court, the refusal of the trial court to grant instructions, is a waiver of the assignment of error on that point.</p> <p>4. Same—when Supreme Court cannot consider a point made in reply brief. A claim made in the reply brief filed in the Supreme Court that a certain point was made in a brief filed in the Appellate Court cannot be considered, where no certified copy of the Appellate Court brief relied upon is filed in the Supreme Court.</p>

Elbridge Hanecy, Judge, presiding. This case began in the probate court of Cook county as a claim of Michael Hagemann, the appellee, against the estate of his deceased brother, Fritz Hagemann, praying, in the alternative, for the- payment to him of the value of or the delivery to him of certain specific promissory notes described in said claim and in the inventory filed in said estate, aggregating $4000, and enumerated by the names of the makers, as follows: Wartzeck note,…

Writ of Error to the Circuit Court of Menard county; the Hon. Thomas Mehan, Judge, presiding. This is a bill, filed in the circuit court of Menard county on the 18th day of June, 1902, by the defendant in error, Mattie S. Fawbush, against the plaintiffs in error, Perry Joseph England, Maranda Miller, Mary Sheneman and Perry Joseph England, executor of the last will of Jesse England, deceased, for the purpose of setting aside the last will and testament of said Jesse England.

Frank D. Ramsay, Judge, presiding. This action was begun at the November term of the circuit court of Henry county, 1900, and is a bill for injunction against the city of Kewanee to restrain it from discharging certain offensive sewerage upon the lands of appellees, which adjoin said city on the east.

<p>1. Evidence—proof of seduction is competent in action for breach of promise. Seduction may be shown in aggravation of damages in an action for breach of promise of marriage although not charged in the declaration, if it occurred in consequence of the promise.</p> <p>2. Appeals and errors—when parly cannot complain of evidence on appeal. One who fails to object to a question until after it is answered, and pursues the witness with questions on the same subject upon cross-examination after the court’s refusal to strike out the answer, cannot complain of the evidence on appeal.</p>

<p>1. Wills—when proponents must show that will was executed during lucid interval. If the evidence in a will contest shows that the testatrix was afflicted with insanity of a permanent nature before the execution of the will, the burden is upon the proponents to show that the will was executed during a lucid interval. •</p> <p>2. Appeals and errors—when overruling exceptions to allegations in bill will not reverse. Allegations in a bill to contest a will that a conservator was appointed for the testatrix subsequent to the making of the will, and that her father and other relatives went insane, are unnecessary, but it is not reversible error to overrule exceptions thereto.</p> <p>3. Same—when error in admitting evidence will not reverse. Error in admitting evidence will not reverse where such evidence is merely cumulative, and where, under the whole evidence, the same result must have been reached had the objectionable evidence not been admitted.</p> <p>4. Trial—duty of court where objection is made to witness. When an objection is made to the competency of a witness, it is the duty of the court, before his evidence is taken, to determine his competency by a voir dire examination, and, if necessary, by hearing additional evidence.</p>

<p>Appeal from the Circuit Court of Schuyler county; the Hon. Thomas N. Mehan, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding.</p>

Writ op Error to the Circuit Court of Union county; the Hon. Joseph P. Robarts, Judge, presiding.

Richard M. Skinner, Judge, presiding. This is an appeal from a judgment of the county court of Bureau county against certain lots belonging to the appellant, Elizabeth Pierson, for a special tax levied for the purpose of building a sidewalk opposite said lots by the city of Spring Valley in said connty. The judgment is for $124.20 against two lots, described as lots 15 and 16 in block 7 Dalzell’s first addition to Spring Valley.

■ Appeal from the Circuit Court of Cook county; the Hon. Richard S, Farrand, Judge, presiding. This is an action of debt, begun on July 29, 1901, in the name of the People of the State of Illinois against appellant, the Elmwood Cemetery Company, to recover the amount alleged to be due for taxes upon certain real estate, for the non-payment of which the land was forfeited to the State.

Writ of Error to the Circuit Court of Iroquois county; the Hon. George W. Brown, Judge, presiding. This is an indictment returned on November 15, 1902, in the circuit court of Iroquois county, charging plaintiff in error, in three counts, with the crime of incest on October 18, 1902, with his niece, Belle L. Price. Two trials have been had, and in each the jury have found plaintiff in error guilty.

W. H. Gest, Judge, presiding. Appellee filed his bill in the circuit court of Rock Island county on April 26, 1899, against the appellant, for an injunction to restrain it from using for railroad tracks, switches, yards, etc., the south half of Mississippi street, (now called First avenue,) in the city of Rock Island.

<p>Constitutional law—entire act of 1901, increasing the number of judges in Cook county, is void. The entire act of 1901, to provide for additional judges of the circuit and superior courts of Cook county, (Laws of 1901, p. 130,) is void, since the provisions thereof held unconstitutional in People v. Knopf, 198 111. 340, are so connected with the remaining provisions that the latter cannot be sustained.</p>

<p>1. Special taxation—when special tax for sidewalk is invalid. A special tax for the construction of a sidewalk.is invalid where the grade for such .walk is not established by express terms or by reference to another ordinance fixing the same.</p> <p>2. Same—grade cannot be fixed by resolution. The only manner in which grades of streets can be established is by ordinance, a resolution for that purpose being insufficient.</p> <p>3. Same—when ordinance is indefinite as to grade. A sidewalk ordinance is indefinite with respect to grade which provides for an excavation of four inches below the established grade of the street, “except where it would be better and more practicable, on account of proper drainage, to excavate less or grade up at low places.” 1</p>

Appeal, from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Effingham county; the Hon. William M. Farmer, Judge, presiding.

<p>1. Judgments and degrees—competency of counter-affidavits on a motion to open judgment by default. Under a general motion by a corporation to open a judgment by default upon the ground that the party upon whom process was served was not the agent of such corporation, it is proper for the court to consider counter-affidavits upon the subject of such agency.</p> <p>2. Same—counter-affidavits on merits of case are not proper for consideration. A'judgment by default will not be opened unless the defendant shows aprima facie defense to the merits; but it is not proper to consider counter-affidavits controverting such defense, since the defendant has a right to submit that issue to a jury.</p> <p>3. Same—when an error in considering counter-affidavits is harmless. Error in considering counter-affidavits controverting defendant’s prima facie defense to the merits under a general motion to open a judgment by default is harmless, where no sufficient cause for opening the judgment is shown.</p> <p>4. Process—process may be served on agent of corporation. Service of process on a corporation may be had by leaving a copy with the president of the corporation, or, if he cannot be found in the' county, by leaving it with some of the officers specified in- the statute, or any agent of the corporation found in the county.</p>

Clair county; the Hon. M. W. Schaefer, Judge, presiding. This is an action in case, brought in the circuit court of St. Clair county against the-appellant company to recover damages for the death of the appellee’s intestate, August Schmidt. The trial resulted in verdict and judgment in favor of the appellee. An appeal was taken to the Appellate Court where the judgment was affirmed; and the present appeal is prosecuted from such judgment of affirmance.

Writ of Error to the Appellate Court for the Third District;—heard iu that court on appeal from the Circuit Court of Cass county; the Hon. Thomas N. Mehan, Judge, presiding.

<p>1. Benefit societies—when furnishing proof of death is waived. A benefit society, by sending out a circular letter to subordinate lodges denying liability on a certain benefit certificate upon the ground of non-payment of an assessment, waives its right to insist on failure to furnish proofs of death as ground' of forfeiture.</p> <p>2. Same—submitting claim to tribunal specified in by-laws is not compulsory. The beneficiary named in a benefit certificate is not bound to submit her claim for adjudication to the tribunal provided for in the by-laws before instituting suit in the courts.</p> <p>3. Same—effect where society has funds -of member in its hands. A benefit society which has in its possession and control funds of a deceased member sufficient to pay all overdue assessments up to the time of his death cannot forfeit the benefit certificate for non-payment of such assessments.</p>

Axel Chytratjs, Judge, presiding. This is an action for libel, begun on June 30, 1899, in the superior court of Cook county by appellee against appellant. The trial was before the court and a jury, and resulted in a verdict and judgment in favor of appellee for $1800.00. This judgment has been affirmed by the Appellate Court, and the present appeal is prosecuted from such judgment of affirmance.

<p>1. Ejectment—what does not preclude action of ejectment. Acceptance of a deed to premises occupied by a party holding a lease' from a receiver appointed in foreclosure proceedings does not preclude the grantee from maintaining ejectment against the tenant, where the declaration alleges unlawful withholding of the premises by the defendant, whose default admits the allegation.</p> <p>2. Same—section 6 of the Ejectment act construed. Section 6 of the Ejectment act, providing that if the premises are actually occupied the occupant shall be named defendant and all other persons claiming title or interest may be joined as defendants, does not require that such occupancy shall be exclusive in order to enable the plaintiff’to join as defendants other claimants.</p> <p>3. Same—purpose of sections 6 and 7 of Ejectment act. Sections 6 and 7 of the Ejectment act are each intended to enable a plaintiff in ejectment to litigate and settle questions of title or interest in the premises claimed by persons not in possession.</p> <p>4. Same—when the failure to name all occupants as defendants is not ground for reversal. Failure of plaintiff in ejectment to join as defendant a party occupying a portion of the building is not ground for reversal, as against the holder of a tax title who was joined as defendant with a tenant of the other portion of the building, where the holder of the tax title was in no way interested in the possession or occupancy of the omitted party.</p> <p>5. Pleading—when objection of non-joinder is not waived by failure to plead. Failure to plead the non-joinder in ejectment of an occupant of a portion of the premises is not a waiver of the objection, since such non-joinder, if a defense to the action, may be proved under the general issue, under section 19 of the Ejectment act.</p>

<p>1. Cloud on title—complainant must prove title in himself. Title in the complainant must be proved in order to authorize a decree setting aside a tax deed as a cloud.</p> <p>2. Same—what does not prove title. A deed to the south five acres of the east half of a certain block does not prove title to the east half of such block, where there is nothing to show that said east half did not contain more than five acres.</p> <p>3. Same—tax deed should not be set aside except as to property described. In setting aside a tax deed as a cloud the deed should not be canceled except as to the premises described in the bill as owned by complainant.</p> <p>4. Same—in absence of tender, complainant should pay costs. In absence of a tender of taxes, interest and costs prior to the filing of a bill to set aside a tax deed as a cloud, the complainant should be required to pay the costs.</p>

John J. Glenn, Judge, presiding. This is an action of assumpsit, brought in the circuit court of Hancock county by the appellee, Elizabeth Achterrath, against the Royal Circle, a fraternal insurance society, to recover on a certificate, issued by said society to one William Achterrath, husband of plaintiff below.

Appeal, from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding. This is a proceeding in chancery by Robert H. Tinker and F. G. Tibbits, who are the appellants here, against Thomas D. Gatlin and the heirs and devisees of Benjamin H. Campbell, deceased, seeking to discharge appellants’ liability upon a promissory note.

<p>Appeal from the Circuit 'Court of Will county; the Hon. R. W. Hilscher, Judge, presiding.</p>

Axel Chytraus, Judge, presiding. Mary Gertrude Gee, appellee, filed her bill of complaint in the superior court of Cook county, on March 21, 1901, against Benjamin F. Gee and others, praying for a receiver and an accounting, and for an order requiring appellant to pay the amount found to be due her upon such accounting, and in case of default in the payment thereof, for a sale of certain property devised to appellant by his father, Charles Gee, deceased.

Elbridge Hanecy, Judge, presiding. On January 25, 1890, John P. Altgeld leased from To-bias G. Richardson lots 4 and 5 in the assessor’s division of original lots 3, 4 and 5, in block 37, original town of Chicago, for the term of ninety-nine years, at an annual rental of $18,000, payable quarterly. On June 25, 1890, this leasehold estate was conveyed to the Unity Company, of which John P. Altgeld was president.

Writ op Error to the Criminal Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding. On August 2, 1902, an indictment was returned in the criminal court of Cook county charging plaintiff in error, in three counts, with the crime of rape on July 1, J902, in and upon a female child named Bessie Lamb, of the age of thirteen years.

<p>1. Special assessments—power of condemnation jury under section 23 of Improvement act of 1897. A jury, under section 23 of the Improvement act of 1897, in a proceeding to open a street by condemning land and paying therefor by special assessment, has power, only, to determine the questions of compensation and benefits.</p> <p>2. Same—what cannot be decided by jury in a proceeding to condemn land under Improvement act. In the proceeding provided for in the Improvement act of 1897 to condemn land for opening or extending streets and to assess the cost to the property benefited, the jury has no power to determine that such land is a highway by prescription which already belongs to the city.</p>

<p>1. Evidence—when boohs of a corporation are admissible as public boohs. The books of a private corporation, as between members of the corporation, are admissible, as public books, as evidence of the election of officers of the corporation and of other corporate acts and proceedings.</p> <p>2. Same—when boohs of corporation are subject to rules applicable to private boohs. In a foreclosure proceeding by a loan association against a member, the books of the association are admissible to prove the alleged indebtedness only after such preliminary proof as is required to entitle private books of account to admission.</p> <p>3. Same—essentials of preliminary proof where apartymahing entries does not hnow their correctness. If the party who made the entries in a book has no personal knowledge of their correctness but made them from memoranda furnished by another, the latter must testify to the correctness of the items, or there must be other proof of such fact to entitle the books to admission in evidence.</p>

Writ of Error to the Circuit Court of Boone county; the Hon. Charles E. Fuller, Judge, presiding. These consolidated causes are two bills, each to foreclose a mortgage.