Volume 205 — Illinois Reports

George W. Patton, Judge, presiding. This is a suit in assumpsit, brought by the appellee against the appellant company in the circuit court of McLean county to recover damages for a breach- of contract, alleged to have been made by the appellant company with the appellee to haul a car, loaded with scenery and theatrical property belonging to the appellee, from Decatur to Bloomington.

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

<p>Street railroahs—duty of servants in charge of street cars. It is the duty of servants operating street cars upon the public streets to be on the lookoht, and to take reasonable measures to avoid injuries to persons on the streets.</p>

Writ op Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.

<p>1. Appeals and errors—objection of variance cannot be first urged on appeal. An objection of variance between the plaintiff’s allegation and the proof introduced cannot be urged on appeal where it was not made in .the trial court.</p> <p>2. Master and servant—the ownership of an appliance furnished by master is not material. The ownership of a defective scaffolding furnished by a master to his servant is not material, where the scaffolding has been in the master’s possession and use a sufficient time for him to have discovered its defective condition.</p> <p>3. Same—servant not bound to make inspection for defects. A servant is not bound to inspect the appliance furnished him by his master for the purpose of discovering latent defects, as he may assume that the master has exercised reasonable care to see that the appliance is reasonably safe.</p>

<p>1. Corporations—rule as to amount involved in proceeding under section 8 of Corporation act. In a proceeding, under section 8 of the Corporation act, by a creditor of an insolvent corporation to reach unpaid balances on stock, the liability of each stockholder is distinct, and the amount involved, as to each, is the amount unpaid upon the stock held by him.</p> <p>2. Same—that stock is issued as fully paid does not exempt stockholder from liability. That stock in a corporation purports to be fully paid and non-assessable does not exempt the stockholders from liability, under section 8 of the Corporation act, for the unpaid balance due thereon.</p> <p>3. Same—purchasers of stock are chargeable urith notice of patent facts. One purchasing stock in a corporation under such circumstances that a person of ordinary intelligence would know the facts in relation thereto is chargeable with knowledge of such facts.</p> <p>4. Same—exchange of property for stock must be bona fide. An exchange of property for stock in a corporation must constitute a valid contract of bargain and sale in good faith and in the exercise of honest judgment.</p> <p>5. Same—creditor is not required to prove that stockholder was told of over-valuation. A creditor of an insolvent corporation is not required to prove that each purchaser of stock was told of the fraudulent over-valuation of the property given in exchange for the stock, it being sufficient if he establishes such facts as properly lead to, an inference of knowledge on the part of the purchaser.</p> <p>6. Same—what establishes notice that stock is not fully paid. Purchasers of stock in'a corporation capitalized for $1,000,000 who know the corporation has no money and no property except an interest in a patent transferred to it by the owner in exchange for all of the stock except two shares, are chargeable with notice that the property was over-valued and the stock not fully paid.</p>

Henry B. Willis, Judge, presiding. February 4,1895, appellant Christopher Bouton began suit in the circuit court of Cook county to foreclose a trust deed executed by appellees. Various other parties supposed to have some interest in the premises were made defendants, and among them was appellant James G; Wright, who is the only one of the other defendants it is necessary for us to consider in this appeal.

<p>1. Appeals and errors—when the Supreme Court cannot entertain appeal. The Supreme Court has no jurisdiction of a direct appeal in a proceeding to prevent enforcement of an ordinance requiring frontage consents for the establishment of a hospital, where the only questions involved are whether power to pass the ordinance was given by statute and whether the ordinance was reasonable.</p> <p>2. Same—Supreme Court has jurisdiction if ordinance infringes constitutional right. The Supreme Court has jurisdiction of a direct appeal in a proceeding to prevent the enforcement of an ordinance interfering with or denying an alleged constitutional right.</p>

<p>1. Judicial sales—the statute must be strictly followed in enforcing justice of peace judgment. In enforcing a judgment of a justice of the peace against real estate the statute must be strictly followed or no title will pass by virtue of the sale.</p> <p>2. Same—what essential to the validity of transcript and proceedings thereunder. A transcript of a judgment of a justice of the peace, and all proceedings thereunder, are void, .unless the transcript shows on its face the issue of an execution by the justice of the peace and its return nulla bona by the proper officer.</p> <p>3. Same—what not equivalent to a return nulla bona. The return of an execution “no part satisfied” is not equivalent to the return required by statute that the defendant has no personal property within the county sufficient to satisfy the judgment and costs, and is insufficient.</p>

on. Edward P. Vail, Judge, presiding. This is an action in assumpsit,, brought by. attachment on the ground of the non-residence of a part of the defendants, and begun on or about April 18, 1898, by the O. S. Richardson Fueling Company, for use of Levi Windmuller, against John Seymour, Richard A. Seymour, Elwyn W. Seymour and Antoine E. Cartier, co-partners as Seymour Transportation Company, for the price of coal, alleged to have been furnished at divers times between the…

-Edward P. Vail, Judge, presiding. . May 30, 1896, appellant sued Malcolm M. Jamieson and others, constituting the firm of Jamieson & Co., in the circuit court of Cook county, in assumpsit. The declaration consists of the common counts only, and includes counts on an account stated, a count for interest and a count for money had and received. Defendants pleaded the general issue.

<p>Solicitor’s fees—when court has jurisdiction to allow solicitor's fees. Pending appeals from a separate maintenance decree and from a contempt proceeding arising from defendant’s disregard of such decree, the trial court has jurisdiction to allow solicitor’s fees to complainant for services rendered after the decree, which were necessary in order to enforce complainant’s rights thereunder.</p>

Edmund W. Burke, Judge, presiding. This was a bill for injunction, filed by appellants, against appellee, in the circuit court of Cook county, August 8, 1894. A temporary injunction was granted, but on the hearing* it was dissolved and the bill dismissed-for want of equity. An appeal was prosecuted to the Appellate Court, where the decree of the circuit court was affirmed, and this appeal is prosecuted.

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

<p>1. New trial—when affidavits in support of motion for new trial are insufficient. Affidavits in support of a motion for a new trial upon the ground of newly discovered evidence are insufficient, where they fail to show that such evidence is so material and conclusive that it will probably lead to a different result on new trial or that due diligence was used to discover and produce it at the trial.</p> <p>2. Pleading—damages for permanent injury need not be declared for. Damages may be recovered to the whole extent of the injury in a personal injury case, even though the declaration describes the injury generally, without pointing out its permanency.</p>

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

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

John C. Garver, Judge, presiding. This case has been before us before, and is reported as Eggleston v. Royal Trust Co. 192 Ill. 101.

Charles G. Neely, Judge, presiding. This is a petition for mandamus, filed by appellant in the circuit court of Cook county on April 3, 1902, against appellee, as comptroller of the city of Chicago, to compel the latter to re-instate petitioner in the position of chief clerk in the comptroller’s office of the city.

Frank D. Ramsay, Judge, presiding. This suit was begun by appellant, W. Spencer Ryan, on November 22, 1900, filing his bill for injunction in the Mercer county circuit court, praying an injunction against J. Shirley Hamilton, the appellee, restraining him from practicing general medicine in or within eight miles of the village of Viola, in Mercer county, Illinois, in violation of the following contract: “12/1,1899. “The undersigned, J. S-.

<p>1. Fellow-servants—when question of fellow-servants is one of law. Whether the relation of fellow-servants exists is a question of law, where the facts upon which such relation depends are undisputed, and are so conclusive that all reasonable men must reach the same conclusion therefrom.</p> <p>2. Same—when employees are fellow-servants. Two “second helpers” working, respectively, on day and on night shifts in a foundry are fellow-servants, where each performs duties which endanger the other, which duties bring them together twice in each twenty-four hours, thereby enabling them to exercise a mutual influence upon each other promotive of proper caution for their safety.</p> <p>3. Same—when master is not liable for servant’s injury. The master is not liable for an injury to one servant caused by the negligence of another if he was not negligent in employing the servant who caused the injury and the duties of the two servants are such as make them fellow-servants under the law.</p>

Philip Stein, Judge, presiding. , The defendant Dorr E. Felt obtained from the United States letters patent in the year 1888 for an invention known as a “comptometer.” Felt associated with him in business the defendant Robert Tarrant, and thereafter a corporation was organized known as the Felt & Tarrant Manufacturing Company.

<p>1. Special assessments—when property owner is estopped to object to application for sale. Under section 66 of the Local Improvement act of 1897, (Laws of 1897, p. 125,) the overruling of a property-owner’s objections to the application for judgment of sale for the first and second installments of a special assessment bars defenses to application for sale for subsequent installments, except such as relate to the particular pending proceeding.</p> <p>2. Same-—objection to character of work done is waived by acceptance. Under section 66 of the Local Improvement act as amended in 1901, (Laws of 1901, p. Ill,) the objection that the work done upon an improvement does not conform to ordinance cannot be raised upon application for judgment of sale, if it appears the work has been accepted by the board of local improvements.</p> <p>3. Same—voluntary payment of installment is a waiver. Voluntary payment of an installment by a property owner or his agent is, under section 66 of the Local Improvement acts of 1897 and 1901, an assent to the confirmation of the assessment roll and a waiver of the right to object to judgment of sale for subsequent installments, except as to the legality of the pending proceeding.</p> <p>4. Same—term “legality of the pending proceeding” construed. The term “the legality of the pending proceeding,” used in section 66 of the Local Improvement act, relates to the proper returns, notices and formal matters pertaining, only to the particular proceeding under the application for judgment of sale.</p> <p>5. Constitutional law—section 66 of Local Improvement act, not unconstitutional. Section 66 of the Local Improvement act of 1897, as amended in 1901, (Laws of 1901, p. Ill,) is not unconstitutional, as being a legislative curtailment of judicial powers of inquiry or as violating section 29 of article 6 of the constitution, requiring laws relating to courts to be general and of uniform operation.</p>

Axel Chytraus, Judge, presiding. This is an appeal from that portion of a decree of the superior court of Cook county, entéred in a proceeding commenced by appellee under the Burnt Records act, to which appellant was made a party, which canceled and removed as a cloud upon its title a sheriff’s deed executed to appellant, purporting to convey to him a portion of the premises in controversy.

Writ of Error to the Circuit Court of Cook county; the Hon. R. S. Tuthill, Judge, presiding.

Colosttn D. Myers, Judge, presiding.. This bill was filed by Leodicy Dickerson to correct the description of the following described real estate, to-wit: The west half of the north-east quarter of section 29, township 22, range 4, east of the third principal meridian, McLean county, Illinois.

<p>1. Master and servant—experienced servant assumes ordinary risks. A servant who has had long experience in the use of hammers in the business of a blacksmith assumes the ordinary risks incident to the handling of such hammers.</p> <p>2. Same—when rule concerning promise to repair does not apply. The rule exempting a servant from liability of assuming the risk of a defect which the master has promised to repair does not apply to the use of common implements with which the servant is familiar.</p> <p>3. Same—effect of promise to repair a hand-hammer. A foreman’s promise to repair a “back-hammer,” used in the business of a blacksmith, does not exempt an experienced servant from assuming the ordinary risks of its use in its defective condition.</p>

Axel Chytraus, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment of the superior court of Cook county dismissing the petition of appellant praying for a writ of mandamus to the city of Chicago, the mayor and superintendent of police thereof, respectively, commanding them to place petitioner’s name upon the police pay rolls of said city of Chicago, to the end that petitioner might draw the pay'of a police patrolman.

<p>1. Taxes—“railroad track” does not mean merely the main track. The term “railroad track,” as used in the Revenue act with reference to the assessment thereof by the State Board of Equalization, is not limited to the main track, but includes side-tracks and switches and all real estate actually used for right of way.</p> <p>2. Same—State Board of Equalization has only statutory powers. The State Board of Equalization has no powers other than those conferred by statute, and hence has no power, and cannot be compelled by mandamus, to divide property returned as “railroad track” into two parts, one to be known as “main track” and the other as “railroad track other than main track.”</p> <p>3. Same—purpose of the provision for assessing railroad track. The Revenue act contemplates that the right of way of a railroad company shall be treated as a unit, and that the assessment of all real estate used for right of way purposes shall- be apportioned among all the taxing bodies through which the road runs, in the proportion which the length of the main track in each taxing body bears to the whole length of the road in the State.</p> <p>4. Same—company cannot escape assessment by returning real estate as railroad track. A railroad company cannot escape the assessment by local assessors of property not used for right of way purposes by returning such property to the State Board of Equalization as “railroad track.”</p> <p>5. Constitutional law—provision for assessing railroad track is constitutional. The provision of the Revenue act for the assessment of “railroad track” by the State Board of Equalization and the apportionment of the assessment among the several taxing bodies through which the road runs is constitutional.</p>

<p>Evidence—when expert may give opinion as to whether plaintiff was feigning injury. Permitting an expert in surgery to give an opinion, on re-direct examination, as to whether plaintiff was feigning injury, is not error, where the cross-examination tended along that line, and where it appears that the witness could tell with reasonable certainty, from his professional examination, whether the plaintiff could feign the physical conditions shown to exist.</p>

<p>1. Corporations—when an extraordinary dividend is “net income,” within meaning of will. An extraordinary cash dividend, declared after the stockholder’s death, consisting of money held during his lifetime in the company’s treasury as undivided profits, goes to the widow of the deceased stockholder under a provision of his will giving her the “net income” of the stock.</p> <p>2. Same—when stock dividends are part of the corpus of the estate., A “stock dividend,” evidencing a conversion by the corporation into capital of earnings accumulated during the stockholder’s lifetime, goes to the remainder-men, as part of the corpus of the trust estate, under a will devising the stock in trust, the “net income” to be paid to the testator’s widow for life and the residue to be divided among others at her death.</p> <p>3. Same—right to subscribe for additional stock is apart of the estate. Funds derived by trustees from the “right to subscribe” for additional capital stock at par are part of the trust estate in the original stock, held for the remainder-men after paying the “net income” to the life tenant, whether the trustees subscribed for the new stock or sold the right to others.</p>

Jesse Holdom, Judge, presiding. ' This was a bill in chancery filed by Charles Bonner against the Englewood Sash and Door Company, in the superior court of Cook county, for the partition of certain real estate described therein, it being alleged that each of said parties was the owner of the undivided one-half part thereof in fee simple.

R. W. Clifford, Judge, presiding. This is a bill, filed in the circuit court of Cook county on July 21, 1897, against the Calumet Electric Street Railway Company, John Parson, Arthur B. Leach, Levi H. Fuller, John C. McKeon, and Idea L. Hammond, administratrix of William A. Hammond, ‘deceased, for .the purpose of enforcing the specific performance of the following agreement, to-wit: “This memorandum of agreement, made and entered into by the undersigned this 17th day of…

Orrin N. Carter, Judge, presiding. In July, 1895, an ordinance was passed for the local improvement of a certain portion of Diversey street, in the city of Chicago, by curbing with limestone curbstones and filling and paving with cedar blocks upon hemlock plank foundation. On November 15, 1895, the appellant filed its petition in the county court for the making and confirmation of an assessment for such improvement. The estimated cost of the improvement was $25,536.43.

Charles A. Bishop, Judge, presiding. This is a bill in chancery in the circuit court of C-ook county by appellants, as the heirs of Herman G. Lange deceased, against his g'rantee, Sarah Anna Cullinan, and William J. Waddell, to set aside and cancel a warranty deed purporting to be made by him, in his lifetime, to her, conveying lot 9, in section 3, township 36, range 14, in the town of Dolton, in Cook county.

<p>Appeals and errors—assignment of errors must appear in the record. The Supreme Court cannot entertain an appeal from the Appellate Court where the record contains no assignment of errors on the record of that court, even though an assignment of errors appears in the abstract of the record.</p>

Elbridge Hanecy, Judge, presiding. This is an action of assumpsit, brought on December 8, 1897, in the circuit court of Cook county by Frederick C. Weir, since deceased, and the appellees, John Mc-Eechney and John McEechney, Jr., then constituting the firm of Weir, McEechney & Co., against the appellant, the city of Chicago.

<p>1. Quo warranto—granting leave to file information rests in sound discretion of court. Granting leave to file an information in the nature of a quo warranto rests in the sound discretion of the court, and unless such discretion is abused the judgment of the court will be affirmed by a court of review.</p> <p>2. Same—correct practice upon presentation of petition for quo warranto. Upon presentation of a petition for leave to file an information in the nature of quo warranto and the appearance of the respondent, it is proper practice to hear affidavits and counter affidavits as to the facts relied upon for the leave asked.</p> <p>3. Same—constitutionality of statute may be tested by quo warranto. Section 1 of the Quo Warranto act is broad enough to authorize the institution of a quo warranto proceeding to test the legality of a statute under which the respondent corporation is alleged to be usurping power.</p> <p>4. Constitutional law—what is a compliance with provision of constitution concerning title of acts. The general purpose of the provision of the constitution that no act shall embrace more than on,e subject, which shall be expressed in the title, is accomplished if the title is comprehensive enough to reasonably include, as falling within the general subject or the subordinate branches thereof, the several objects which the statute seeks to effect.</p> <p>5. Same—act of 1897, relating to gas companies, does not violate the constitutional provision as to title. The title of the act of 1897, being “An act in relation to gas companies,” (Laws of 1897, p. 177,) is broad enough to include the authority therein given for the merger or consolidation of such companies, notwithstanding the word “merger” or “consolidation” is not used in the title.</p> <p>6. Same—act of 1897, authorising merger of gas companies, is not special legislation. The act of 1897, authorizing the merger of gas companies, applies to, all gas companies doing business in the same city, and hence is not in violation of section 22 of article 4 of the constitution, prohibiting special laws granting exclusive privileges to any corporation, association or person.</p> <p>7. Corporations—right of legislature to authorise merger. In the absence of constitutional limitation the legislature has power to authorize the merger or consolidation of private corporations organized under the laws of this State.</p>

Writ of Error to the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding. This is a bill for an injunction, brought by the.

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. Philip Stein, Judge, presiding.

John Small, Judge, presiding. This is an action of trespass on the case for personal injuries, commenced in the circuit court of Kankakee county by Frank Turrell, appellee, against the Momence Stone Company, appellant, where, upon a trial before a jury, appellee was awarded damages in the sum of $1200.

<p>Writ of Error to the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.</p>

<p>Special assessments—effect where ordinance contains illegal item of cost. On reversal of a confirmation judgment because the ordinance illegally requires the cost of making and levying the assessment to be included in the assessment against the property benefited, the trial court may permit the assessment roll to be re-cast, so as to exclude such item, and allow a new hearing without requiring a new ordinance, estimate and proceeding.</p>

William Hartzell, Judge, presiding. This is an action of assumpsit brought by the appellee, against the appellant, in the circuit court of Madison county, to recover certain royalties alleged to be due upon a mining lease bearing date December 17, 1870, made by the appellee to the Abbey Coal and Mining Company and assigned by said coal and mining company on August 11, 1886, to the appellant.

<p>Judgments and degrees—filing and approval of appeal bond essential to stay judgment. The operation of a judgment is not stayed or superseded by the prayer for an appeal and the order granting the prayer and fixing a time for filing an appeal bond, but only by the filing and approval of the bond.</p>

<p>Appeal from the County Court of Macon county; the Hon. O. W. Smith, Judge, presiding.</p>

<p>1. Specific performance--when new agreement is no defense to specific performance. An alleged new agreement is no defense to an action to specifically enforce a bond for a conveyance where the conditions upon which the new agreement was to become effective were never complied with.</p> <p>2. Same—defense not shown to have been set -up in answer not considered on appeal. An- alleged defense not shown by the abstract of record to have been set up in the answer to a bill for specific performance cannot be considered on appeal.</p>

<p>1. Special assessments—when special assessment is due. A special assessment is .due and payable when the warrant for its collection is issued, and not before.</p> <p>2. Same—when advertisement shows prima facie date when assessment is due. A.n advertisement of delinquent special assessments which gives the number of each warrant and the date when it was certified for collection shows prima facie the date when the assessment was legally due,'and the notice need not show that the assessment had not been modified or set aside or the warrant recalled.</p> <p>3. Same—name of owner, if known, must be stated in notice. Failure to give the name of the owner of delinquent property in the advertised list, if known to the collector, renders the notice bad, and the fact that the collector has given the name correctly in the delinquent list is sufficient evidence that he knew it.</p> <p>4. " Same—collector not bound to search records of other offices to learn name of owner. If the name of an'owner of delinquent property does not appear in the advertised list nor in the delinquent list, the fact that it appeared in the original assessment roll does not charge the collector with notice of such name.</p> <p>5. Same—what competent as tending to show collector’s knowledge of name. As tending to show the collector’s knowledge of the name of a property owner omitted from the advertised list and the delinquent list, the delinquent list of the previous year giving such name correctly is competent evidence.</p> <p>6. Same—fees accruing after advertisement may be included in judgment. In rendering judgment of sale for delinquent special assessment it is not improper to add fees and costs accruing subsequent to the advertisement.</p> <p>7. Same—-what is required tobe shownby judgment. A judgment for taxes should be in favor of the People against the tract or tracts of land, or parts thereof, for the sum annexed to each, or such part thereof as the court finds to be due and payable, being the amount of taxes, special assessments, interest, penalties and costs due severally thereon.</p>

<p>1. Wills—when provision making life tenant a trustee is inoperative. A provision of a will appointing the widow as trustee is inoperative, where she is given, by the will, the sole use and benefit of all the property for life or until she re-marries, with remainder to others in their own right, and where the duties imposed upon her as trustee are no greater than her duties as a life tenant.</p> <p>. 2. Same—when will does not confer power of sale. The words “then remaining,” used in a provision of the will directing distribution, at the death of the widow, of the testator’s estate, “both real and personal, then remaining,” do not indicate an intention to authorize the widow to sell real estate, where there is no other provision in the will which creates a doubtful power of sa'le to which the words “then remaining” might refer. '</p> <p>3. Same—life tenant cannot use corpus of the estate. In the absence of a power of sale in any capacity, one entitled to the use and control of property for life or until she re-marries has no right to use the corpus of the estate without accounting for the same to those entitled to the fee upon her death or re-marriage.</p> <p>4. Same—contingent remainder defined. A contingent' remainder is one limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event.</p> <p>5. Same—when remainders are contingent. Remainders to take effect upon the re-marriage of the life tenant, or which, in case of her death without re-marrying, go to her daughters who have survived her and to grandchildren who have survived their parents but whose parents have died before the grandparent, the widow, are contingent.</p> <p>6. Same—what indicates a contingent remainder. The absence of any words devising or bequeathing property to any of the descendants of the testator except in directing distribution to them upon the death or re-marriage of the widow, indicates that the testator did not intend the remainder to vest until the death or re-marriage of the widow.</p> <p>7. Sam:e—when decree in a will case is binding upon unborn persons. A decree in a will case which is binding upon the representative of a class consisting of herself and any grandchildren of the. testator who may thereafter be born, is binding upon the latter.</p> <p>8. Equity—equity may appoint trustee to sell estate, if necessary. A court of equity has power to appoint a trustee to sell the real estate of a testator even where no trust is created by the will; but such power will not be exercised unless it be necessary to preserve the property to the life tenant and the remainder-men.</p> <p>9. Same—when equity will not appoint a trustee to sell real estate. A court of 'equity will not appoint a trustee to sell real estate simply to enable the life tenant to make an investment which will yield her a greater income.</p>

<p>Information for disbarment.</p>

<p>1. Ordinances—court may declare ordinance invalid for unreasonableness. An ordinance passed under a grant of power to legislate generally upon the subject may be held invalid by the courts, if clearly unreasonable, unjust or oppressive.</p> <p>2. Special assessments—when paving ordinance is unreasonable. An ordinance to lay two blocks of asphalt pavement, which requires the expense of tearing out a practically new macadam pavement in good condition at the single street intersection and of replacing it with asphalt, to be borne by the property owners in the two blocks, is void, as being unreasonable.</p>

Writ of Error to the Appellate Court for the Third District;—heard iu that court on writ of error to the Circuit Court of Ford county; the Hon. John H. Moffett, Judge, presiding.

<p>This case is controlled by the decision in Gage v. People ex rel. {ante, p. 547.)</p>

<p>1. Taxes—organisation of taxing body cannot be attacked on application for sale. In a collateral proceeding to collect a tax or assessment the court is without power to hear evidence for the purpose of determining whether the defacto corporation imposing the tax or levying the assessment was legally organized.</p> <p>2. Same—what objection is not available to defeat drainage assessment. Upon application for judgment of sale for a drainage assessment levied by a township drainage district organized under section 76 of the Drainage act, as amended in 1901, (Laws of 1901, p. 157,) the fact that the objector’s land lies in another township cannot be shown to defeat the assessment, since such objection goes to the organization of the defacto district. (Payson v. People, 175 Ill. 267, distinguished.)</p>

<p>1. Appeals and errors—revenue must be directly involved to authorize a direct appeal. To authorize a direct appeal to the Supreme Court upon the ground that the case relates to the revenue, the revenue must be directly, and not merely incidentally or remotely, involved.</p> <p>2. Same—when case does not relate to revenue. A proceeding to enjoin a county board from entering into a contract authorizing certain parties to search the county records for evidence of personal property omitted from the tax list, and to aid in collecting taxes thereon, does not directly involve the revenue.</p>

<p>1. Taxes—what not sufficient designation of town tase at town meeting. Designation of the purposes of a town tax on the record of the town meeting as “to defray the expenses of said town for the ensuing year” is not sufficiently definite and certain. (Wright v. People, 87 Ill. 582, distinguished.)</p> <p>2. Same—certificate of levy may be amended to correspond with town record. Upon application for judgment of sale for taxes the certificate of levy for town tax may be amended to correspond with the record of the town meeting as such record appears when introduced in evidence.</p> <p>3. Same—town record must be in evidence to justify amendment of certificate of levy. It is error to permit the certificate of levy of town taxes to be amended, upon application for sale, to correspond with the record of the town meeting, where such record is not introduced in evidence.</p> <p>4. Same—section lj of act on roads and bridges construed. Section 14 of the act entitled “Roads and Bridges,” as amended in 1901, (Laws of 1901, p. 274,) requires that both the certificate of the commissioners and the written consent of the board of auditors and the assessor shall specifically direct the particular purposes to which the additional road and bridge tax shall be applied.</p> <p>5. Same—tax cannot be levied at a special election. A tax which may be levied by vote of the electors at a regular or special town meeting cannot be authorized by the vote of the electors at a special election held for that purpose in the various precincts of the town.</p> <p>6. Same—when written consent to additional levy cannot be amended. The written consent of the board of town auditors and the assessor to an additional tax levy by the highway commissioners cannot be amended upon application for sale so as to definitely specify the particular purposes of the additional levy, where only two of the three necessary signers testify as to what was intended to be contained in such consent.</p> <p>7. Same—what necessary to justify amending written consent to additional tax. To justify amendment, upon application for sale, of the written consent of the auditors and the assessor to an additional tax levy, so as to show the particular purposes of the levy as required by section 14 of the act on roads and bridges, the,evidence must show that the signers not only knew the provisions of the statute and intended to comply therewith, but also that they in fact attempted such compliance.</p> <p>8. Same—written consent need not specify exact sum to be used for each purpose. Section 14 of the act on roads and bridges, as amended in 1901, requiring the written consent of the board of town auditors and the assessor to an additional tax levy to particularly specify the purposes of such levy, does not require that the exact sum to be used for each purpose therein mentioned shall be specified.</p> <p>9. Same—additional tax must not exceed amount estimated by highway commissioners. The board of town auditors and the assessor have no power, under section 14 of the act on roads and bridges, as amended in 1901, to authorize an additional tax levy for more than the amount estimated by the highway commissioners as needed.</p>

<p>Appeal from the County Court of McLean county; the Hon. R. A. Russell, Judge, presiding.</p>

<p>Railroads—what necessary to establish a prescriptive way under trestle bridge. To establish a way, by prescription, under a trestle bridge as a passageway for stock, the adverse use must be under circumstances indicating a claim of right, and not a mere privilege or license. (Chicago, Burlington and Quincy Bailroad Co. v. Ives, 202 Ill. 69, followed.)</p>

<p>1. Religious societies—church may establish a mission without becoming trustee of the people benefited. A church may establish a mission, purchase property and erect buildings for carrying on the mission work without becoming a trustee for the people benefited by the mission.</p> <p>2. Same—when express trust cannot be declared. An express trust to compel the conveyance of property to a newly organized church cannot be declared where the agreement out of which it is claimed such trust arises is not in writing.</p> <p>3. Same—what does not establish a resulting trust. To constitute a resulting trust in property in favor of a newly organized church it must appear that at the time of the purchase there was in existence a religious society, out of which the church was afterwards organized, which paid from its funds the purchase price or some definite part thereof, the legal title being conveyed to the other party to hold until the organization of the church.</p> <p>4. Same—what necessary to constitute a society. .In order to constitute a religious society there must be a membership of persons associated together, with such officers as are required, or, at least, a definite collective body acting as a society.</p>

<p>1. Redemption—when party carlnot redeem as a judgment creditor. One who purchases mortgaged property at an execution sale under his own judgment can redeem from a subsequent foreclosure sale only under section 18 of the act on judgments and decrees as a party interested, and his rights under such redemption are not paramount to the homestead estate of the mortgagor, even though the same was released in the mortgage.</p> <p>2. Same—effect of redemption under section 18 of Judgments and Decrees act. The only effect of redemption under section 18 of the act on judgments and decrees is to render null and void the sale and certificate of the master.</p> <p>3. Same—party redeeming under section 18 not subrogated to benefits of the foreclosure. One redeeming from a foreclosure sale under section 18 of act on judgments and decrees is not entitled to be subrogated to the rights and benefits of complainant in such foreclosure, to whom the homestead had been released by a clause in the mortgage foreclosed.</p> <p>4. Equity—decree must be authorized by allegations of bill. A decree cannot grant relief, although warranted by the evidence, where there are no allegations in the bill to which such evidence applies, notwithstanding a voluntary offer made in the answer, which was not accepted by the complainant, who filed a general replication.</p> <p>5. Homestead—effect of sale without setting off homestead—mortgages. Where homestead property is sold on execution without setting off the homestead estate, the purchaser takes the legal title to the excess over $1000 only, notwithstanding the property is covered by a prior mortgage in which the homestead estate is released and from the foreclosure of which he redeems.</p>

<p>Appeal from the County Court of Cook county; the Hon. Orrin 1ST. Carter, Judge, presiding.</p>

<p>1. Quo warranto—when plea does not show organization of a town under act of 1846. A plea to an information in the nature of quo warranto does not show the legal organization of a town under the act of 1845, .where it fails to show two-thirds of the votes cast at the mass meeting of the inhabitants were in favor of incorporation.</p> <p>2. Same—what does not show organization of village under act of 1872. Legal organization of a village under the act of 1872 is not shown by a plea which fails to aver that thirty voters of the town petitioned for submission to the voters of the question whether such town should become organized as a village.</p> <p>3. Same—when legal organization of a village cannot be attacked. The organization of a village cannot be attacked by information in the nature of quo warranto to oust the village officers, where for over twenty years the village has in many ways exercised corporate functions with the acquiescence of the general public and without objection by the public authorities, during which time the inhabitants have acquired property rights based upon its legality.</p> <p>4. Practice—when original documents will be stricken from files by Supreme Court. Original documents not shown by the transcript of the record nor transmitted by order of the trial court under rule 12 of the Supreme Court, but transmitted by counsel to the clerk of the Supreme Court to be presented to that court for inspection, will be stricken from the files.</p>

<p>1. Schools—when informality in certificate of school tax is not fatal. That the certificate of school directors fixes the rate at which the tax shall be extended instead of specifying the amount of money required, leaving the county clerk to ascertain the rate, does not invalidate the tax.</p> <p>2. Same—a school hoard, can levy hut two classes of taxes. A school board may levy but two classes of taxes,—one for educational purposes and one for building purposes,—and any bonded indebtedness incurred for either of such purposes must be paid out of the levy for that purpose, which levy cannot exceed the rate provided by statute. (Language in Baltimore and Ohio Southwestern Railway Co. v. People, 195 Ill. 423, criticised.)</p>

<p>1. Wills—what does not amount to undue influence. Inducing a favorable bequest or devise as the result of long acquaintance, kindly acts, upright conduct, or even reasonable persuasion, is not undue influence.</p> <p>2. Same—inequality in disposition of property does not establish undue influence. Inequality in the distribution of property by a will does not conclusively establish undue influence, but is a mere circumstance to be considered in connection with other circumstances.</p>

<p>Appeal from the County Court of Iroquois county; the Hon. Frank Harry, Judge, presiding.</p>

<p>1. Instructions—when inaccuracy in instruction will not reverse. Inaccuracy in an instruction which might have been calculated to mislead the jury if standing alone, will not reverse where, in the light of the other given instructions, it is clear the jury were not misled to the prejudice of the opposite party.</p> <p>2. Same—when erroneous instruction is not cured by correct one. An erroneous instruction which positively lays down a rule directly in conflict with a correct instruction is not cured by the latter, where it is.impossible to say which instruction the jury followed.</p> <p>3. Negligence—-jury cannot compare negligence of plaintiff and defendant in Illinois. In an action against a city for negligence, an instruction that “the fact that the plaintiff may in some way have contributed to the .injury sustained by him will not prevent his recovery if by ordinary care he could not have avoided the consequence to him of the defendant’s negligence,” is reversible error.</p>

<p>1. Bills and notes—what pledgee must prove where note is fraudulently put in circulation. The pledgee of a note fraudulently put in circulation has the burden of proving that he took the paper in good faith, for value, before maturity and in the usual course of business. (Hide and Leather Bank v. Alexander, 184 Ill. 416, followed.)</p> <p>2. Same—when agreement does not extend payment of note. An extension agreement signed only by the maker of a note secured by trust deed does not extend time of payment so as to protect the pledgee who took the note and trust deed after maturity, as collateral security for the trustee’s debt, where there is nothing in the papers to show who was the owner of the note, the legal title not appearing to be in the trustee.</p>