Volume 206 — Illinois Reports

<p>Writ op Error to the Circuit Court of Peoria county; the Hon. L. D. Puterbatjgh, Judge, presiding.</p>

Creditor’s certificate of appeal from decision of the board of review of Mercer county. Appellant is, and has been for many years, a resident and tax-payer of Preemption township, Mercer county. In 1902 he was cited before the board of review of that county and inquired of concerning his personal property subject to assessment.

George W. Thompson, Judge, presiding. This appeal is from a decree of the circuit court of Henderson county ordering appellant, Wyatt Stanley, and his wife, Helen T. Stanley, to convey to appellee, R. Newton Marshall, all that part of the north-west fractional quarter of section 5, in township 8, north, range 4, west, that lies directly south of the south-east quarter of section 82, in township 9, north, range 4, west, and all of the north-east fractional quarter of section…

<p>1. Eminent domain—when amount of verdict will not be disturbed on appeal. The amount of a condemnation verdict returned on conflicting testimony'and after a view of the premises by the jury will not be disturbed, on appeal, if within the range of the testimony, unless the amount is so excessive or inadequate as to show that the verdict was the result of passion or prejudice.</p> <p>2. Same—;jury have the right to take personal view into consideration. The jury, in condemnation, have a right, in determining their verdict, to consider the knowledge gained by their personal view of the premises as well as the testimony of the witnesses.</p> <p>3. Verdict—right of jury to experiment with averages. An experiment by a jury, consisting of adding together the several sums which each juror believed should be allowed and dividing the total amount by the number of jurors, does not invalidate the verdict, in the absence of any agreement binding them to agree upon the quotient as their verdict.</p> <p>4. New trial—when affidavit as to method taken in reaching verdict should not be considered. An affidavit by petitioner’s right of way agent, in support of a motion for new trial, stating that the jury arrived at their verdict by averages but which does not state that "affiant was present, must be regarded as made from information and should not be considered, since it will not be presumed the affiant was in the jury room, where he had no right to be.</p>

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

Charles G-. Neely, Judge, presiding. This is an appeal from a judgment entered by the Appellate Court for the First District affirming a judgment rendered by the circuit court of Cook county in.an action against appellee on a bond.

<p>, 1. Wills—courts favor construction which gives estate of inheritance to first devisee. Courts will give that construction to a will which will vest an estate of inheritance in the first devisee, unless other limiting and qualifying clauses clearly and unequivocally disclose a contrary intention.</p> <p>2. Same—when will passes a base fee. A devise of an estate in fee simple to the testator’s widow, followed by the qualification that if she re-marries she shall have only one-third of the estate, passes a base or determinable fee, and not merely a life estate.</p> <p>3. Same—rights of devisee of a base fee., The devisee of a base or determinable fee has the same rights as if the devise were in fee simple absolute, except that the determinable quality of the estate follows any conveyance thereof by her.</p>

A. Akers, Judge, presiding. This is a bill in chancery filed in the circuit court of Pike county by the appellants, the minor children of William L. Deemer, deceased, by their gudrdian, against . their adult sister, Nina Long, for the partition of one hundred and twenty acres of land located in said county, to which bill Sarah J. Kessinger and others claiming under her are made parties defendant, with the view of obtaining a holding to the effect that the title to said…

Auditor’s certificate of appeal from decision of board of review of Cook county. The board of assessors of Cook county assessed for taxation for the year 1903 certain improved real estate located in the business center of the city of Chicago, owned by the Northwestern University, which is under lease to the Illinois Trust Safety Deposit Company and in use by it for banking and safety deposit purposes.

Axel Chytraus, Judge, presiding. The bill in this case was filed June 24, 1902, by appellee, John L. Swensen, against Genevieve G. Bodelsen and Olaf H. Ahlgren, to set aside two certain deeds to property therein described, said deeds being executed, respectively, the 13th and 16th of September, 1901, there being three different pieces of property, known as the “Lake View,” “south side” and “west side” properties.

<p>1. New tbial—when motion to re-oven case is properly overruled. A motion to re-open a case and. permit the defendant to make his defense is properly overruled where the facts set up in his affidavit are not conclusive, being contradicted by the evidence in the case, and where he neglected to make such defense though having ample notice of thp hearing.</p> <p>2. Evidence—when not error to admit copies of checks in evidence. It is not error to admit copies of checks in evidence against the defendant in a creditor’s bill proceeding where the originals were destroyed by fire while in the defendant’s possession, he having ignored notice to produce them before their destruction, and where it is not claimed that such copies were incorrect.</p>

<p>1. Elections—burden of proof where illegal voting is charged. A charge of illegal voting, made on contest, involves a criminal offense on the part of the voter and dereliction of official duty on the part of'the election officers, and hence the burden is upon the contestant to overcome the presumptions of law as to the innocence of the voters and the regularity of the action of the election officials, by sufficient proof.</p> <p>2. Same—what evidence does not show illegal voting. Failure to find any record in the county or circuit court of naturalization papers alleged to be lost does not establish their non-existence, and consequent illegal voting, where it is proven that no record was made of many of the naturalization papers issued about the same time as those alleged to be lost.</p> <p>3. Same—county board cannot arbitrarily change election precincts. The power of county boards, under section 29 of the Election act, to change the boundaries of election precincts, must be exercised in accordance with the rules laid down in the succeeding section, and the latest time at which such change can be made is at an adjourned or special meeting of the board held in the month of August. (People v. Board of Supervisors, 185 Ill. 288, explained.)</p> <p>4. Same—proof of party affiliation raises presumption that voter voted withhisparty. Proof of party affiliation of a voter raises a presumption that he cast his ballot for- the nominees of his political party, and, in the absence of countervailing proof or circumstances, is accepted as determining for whom such ballot was cast.</p> <p>5. Same—when the votes of innocent electors are not rendered invalid. Votes of innocent electors will not be held invalid because of irregularities on the part of election officials which do not change the result of the election, unless the statute declares such irregularities to be fatal.</p> <p>6. Same—what does not affect interests of litigants on contest. The unauthorized act of election officials in writing the name of a candidate for a certain office on each ballot to supply the omission of the county clerk to have the name printed does not affect the interests of the litigants in a contest for some other office.</p> <p>7. Same—when ballot should not be rejected for distinguishing mark. If it appears from the face of the ballot that marks or writings were placed thereon as the result of an honest effort by the -voter to indicate his choice of candidates and not as an attempt to indicate the identity of the voter, the ballot should not be rejected for candidates for whom a choice is expressed according to law.</p> <p>8. Same—when ballot cannot be counted for either candidate. A ballot marked with a cross in the circle at the héad of one ticket and with a cross between the square and the name of a candidate for an office on the other ticket cannot be counted for either candidate for such office.</p> <p>9. Same—erased cross in circle at head of one ticket not a distinguishing mark. An erased cross in the circle at the head of one ticket is not such a distinguishing mark as renders the ballot invalid, where there is a cross in the circle at the head of another ticket.</p> <p>10. Same—effect where erased cross is in a square. A ballot marked with a cross in the square opposite the name of the candidate for the same office on each ticket, but which shows an attempt to erase the cross from one square, should be counted for the candidate whose cross is not erased.</p> <p>11. Same—marks indicating nervousness or inadvertence do not vitiate ballot. Pencil marks within or on the line of the circle in which the cross is marked, and which indicate nervousness or inadvertence on the part of the voter, do not vitiate the ballot.</p> <p>12. Same—effect where cross is scratched instead of marked. • A ballot on which the cross in the circle appears to have been scratched with the wood of the pencil instead of the lead is properly counted.</p> <p>13. Same—use of voter’s own pencil does not vitiate ballot. The use, without improper motive, of another pencil than that furnished by the election officers does not vitiate the ballot.</p> <p>14. Same—when ballot should not be rejected. A ballot having initials written on the dotted line below the printed words indicating the office to be filled should not be rejected, as bearing a distinguishing mark, where there was no one to be elected to such office in that precinct, which fact probably occurred to the voter' after starting to write the name of some one for whom he wished to vote to fill such office.</p> <p>15. Same—when ballot having figures on the back is properly counted. A ballot bearing figures upon its back should not be rejected for that reason, where it is shown that one of the judges of election marked them, on the ballot to keep tally upon the number taken from the envelopes as put up by the county clerk.</p>

<p>1. Appeals' and errors—when an error in overruling demurrer is harmless. Error in overruling a demurrer to one of two replications is harmless, where, even if the demurrer had been sustained, the trial court could have proceeded on the issue formed by the other replication and no different result would have followed.</p> <p>2. Pleading—when allegation in plea is a legal conclusion. An allegation that the cause of action did not accrue “within two years next before the commencement of the suit, to-wit, the filing of the declaration as amended,” is, as to the latter clause, a legal conclusion, and replication that the action did accrue “within two years next before the commencement of this suit,” does not present the issue whether the amendment was filed within the two years.</p> <p>3. Same—when replication raises an issue of law and fact. If a plea avers the cause of action did not accrue, “within two years next before the commencement of this suit, to-wit, the filing of the declaration as amended,” replication that the action did accrue within two years next before commencement of suit presents an issue of fact for the jury as to when the injury occurred and an issue of law for the court as to when the suit was commenced.</p> <p>4. Same—amendment re-stating same cause of action does not begin a new suit. Where an amendment to a declaration re-states, in different form, the same cause of action set up in the original declaration, the suit is commenced at the time the original summons was issued, and the time of filing the amendment relates back to the date of the summons.</p> <p>5. Same—allegation describing place of injury is unnecessary. If the venue of an action for personal injury is laid in the proper county it is unnecessary to allege with particularity the place where the injury occurred, although, if particularly alleged, the allegation must be proved as laid to avoid a variance.</p> <p>6. Same—particular place where an injwry occu/rred not an element of the causé of action. An amendment to a declaration in a personal injury case, which alleges that the place of the injury was on a different street from the one named in the original declaration, does not state a new cause of action, so as to be-open to a plea of the two year Statute of Limitations. (Wabash Western Railroad Co. v. Friedman, 146 Ill. 583, distinguished.)</p>

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

<p>1. Evidence—physician may give an opinion as to whether death was caused by strangulation. A physician called as an expert by plaintiff in an action on a benefit certificate may give his opinion as to whether, under the facts in evidence, the death of the insured was caused by strangulation, where he has seen several cases of hanging or has read upon the question in medical works.</p> <p>2. Insurance—when insured may contradict sworn proofs of death. A beneficiary who signed, without reading, sworn proofs of death prepared by the company’s agent, may introduce such proofs in evidence upon the question of notice, and, if no element of estoppel is present, may, after proper notice, give evidence contradicting the statement in such proofs that death was by suicide.</p> <p>3. Estoppel—elements essential to equitable estoppel. It is essential to equitable estoppel that one party has, by his conduct, willfully misrepresented a material fact with the intention of inducing the action of another person who, relying upon such representations in ignorance of their falsity, has so changed his position that he would suffer loss if the false conduct were repudiated.</p> <p>4. Same—what does not give rise to equitable estoppel. Negligence by the widow of the insured in omitting to read proofs of death prepared by the company’s agent, before signing them, does not raise an equitable estoppel, so as to preclude her from contradicting a statement in such proofs respecting cause of death.</p> <p>5. Burden of proof—when burden of proving suicide is upon the company. If the defendant benefit society files a special plea alleging that the insured committed suicide, in violation of the terms of the benefit certificate, the defendant has the burden of establishing such fact, notwithstanding the proofs of death introduced in evidence by the plaintiff contain an admission to that effect, making a prima facie case of suicide, which the plaintiff seeks to overcome by introducing contradictory evidence.</p>

<p>Appeals and errors—when foreclosure decree must be sustained. A foreclosure decree entered by default must be affirmed, on appeal, where it is warranted by the averments of the bill, which are sustained by the evidence and the findings of the master, to which no exceptions were taken.</p>

Axel Chytratjs, Judge, presiding. This is a bill in chancery filed in the superior court of Cook county by Norman J. Fellows, as executor aud trustee, against the heirs and devisees of Frank Fellows, deceased, to obtain a construction of the will of said Frank Fellows, which reads as follows: “I, Frank Fellows, make and declare this to be my last will: To my wife, Emma, I will all our household effects, furniture, etc., and the use of the house we now live in during her…

<p>Appeal from the Circuit Court of Lawrence county; the Hon. P. A. Pearce, Judge, presiding.</p>

Louis; the Hon. Silas Cook, Judge, presiding. This is an action of trespass on the case, brought to the August term, 1901, of the city court of East St. Louis by appellee against appellant to recover damages for personal injuries, received by appellee, while in the service of appellant, by reason of the alleged negligence of the appellant. The appellant filed a plea of not guilty.

William: M. Farmer, Judge, presiding. This is a bill, filed on August 14, 1902, in the circuit court of Jasper county by appellee, Deters, against Reka Huckstead, Ferdinand Huckstead, Anna Bartels and appellant, Theodore Forthman, for the specific performance of a contract, made by Reka and Ferdinand Huckstead with the appellee to convey to the latter eighty acres of land, to-wit, the west half of the south-east quarter of section 8, township 7 north range 8 east in said…

<p>1. Damages—rule as to damages in a personal injury case. In an action for personal injuries the damages are to be determined by the jury from the evidence, viewed in the light of their judgment and experience in the affairs of life, and they should be restricted to the evidence in the case and to proper elements of damage.</p> <p>2. Instructions—when jury should not be instructed to consider effect of injury. The jury in a personal injury case should not be instructed' to consider the “effect, if any, of the injury” to the plaintiff, where this might be construed by the jury as authorizing them to allow damages for some supposed injury to plaintiff’s business, based solely upon the fact that she sold out after the accident. (Chicago, Burlington and Quincy Railroad Co. v. Warner, 108 Ill. 538, distinguished.)</p> <p>3. Same—instructions must be regarded as a connected series. Instructions must be regarded as a connected series constituting a single charge, and, when so considered, if it is clear the jury could not have been misled or have drawn an improper inference from a single instruction, the judgment should not be reversed, even though such instruction, standing alone, is objectionable.</p> <p>4. Appeals and errors—opinion of Appellate Court is not reviewable. Although the statute requires the Appellate Court to file an opinion giving the reasons for its decision, it is the judgment of that court, and not the opinion, which is reviewable on appeal.</p> <p>5. Same—judgment is conclusive of facts, regardless of what is said in opinion. The judgment of the Appellate Cou.rt, on an appeal in a suit at law, is conclusive of the facts, regardless of what is said in the opinion.</p> <p>6. Same—question whether verdict is against the evidence is for the Appellate Couit. The law commits to the sound judgment of the Appellate Court the question whether the trial court erred in overruling a motion for new trial upon the ground the verdict is against the weight of the evidence, and if the error in that respect is clear, it is the duty of the Appellate Court to award a new trial.</p>

<p>Appeal from, the County Court of Lake county; the Hon. D. L. Jones, Judge, presiding.</p>

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

<p>1. Plats—parties purchasing lots with reference to platted street are entitled to have it remain open. As against the owner of a platted tract, and those claiming under him, parties purchasing lots with reference to the plat are entitled to have the streets designated thereon remain open, whether there has been a proper acceptance by the public authorities or not.</p> <p>2. Same—when platted street cannot be vacated. Parties purchasing land in a platted tract cannot vacate a street designated upon such plat, as against the rights of other persons who purchased lots in such tract with reference to the plat, whether the plat was sufficient to constitute a statutory dedication or not.</p>

<p>1. Master and servant—when knowledge by servant ofvmsafe condition does not defeat recovery. Knowledge by a servant of the unsafe condition of an appliance does not defeat a recovery for injury therefrom where he acted in obedience to the foreman’s orders, unless the danger was so imminent that an ordinarily prudent person would not have incurred it but would have refused to obey.</p> <p>2. Same—limits of rule that master need not take better care of servant than latter takes of himself. The rule that the mere fact of the existence of the relation of master and servant does not imply an obligation on the part of the master to take more care of the servant than the latter might reasonably be expected to take of himself, does not apply where the servant is acting under particular orders of the foreman.</p> <p>3. Evidence—when testimony given on former trial may be repeated. If the plaintiff, on cross-examination, is interrogated with reference to certain testimony given by him on a former trial, it is not error to permit him, on re-direct examination, to repeat the whole of his testimony on the former trial covering the points as to which he was cross-examined.</p> <p>4. Appeals and errors—Appellate Court’s judgment is final on controverted questions of fact. The judgment of the Appellate Court is final upon the controverted questions of fact whether or not the defendant was guilty of negligence, and whether or not the plaintiff was guilty of contributory negligence or assumed the risk.</p>

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

Theodore Brentano, Judge, presiding. This is an action in assumpsit, commenced on January 18, 1901, in the superior court of Cook county by the appellee against the appellants, Charles C. Landt and Will H. Moore, upon a lease, dated March 20,,1889, alleged to have been made by the appellee to one James M. Stebbins, leasing certain premises therein described for a term of fifty years from the first day of May, 1889, and ending the 30th day of April, 1939, at an annual rental…

<p>1. Evidence—when objection to oral evidence is waived. Failure of the defendant in foreclosure to object to oral evidence that complainants were the executors of the deceased mortgagee’s estate, waives the point that proper proof of the fact was not offered.</p> <p>2. Appeals and errors—appellant cannot complain of omissions of evidence from record. One appealing from a foreclosure decree who fails to include all of the evidence in the record cannot complain of such omission.</p> <p>3. Same—documentary evidence presumed to sustain decree. The trust deed and notes shown by the record to have been admitted in the foreclosure proceeding will be presumed, on appeal, to have been sufficient to sustain the decree, where the appellant fails to include • them in the record for the inspection of the reviewing court.</p>

O. P. Thompson, Judge, presiding. This is a bill in chancery, filed on September 11, 1902, in the circuit court of Jersey county by the appellee, Edward J. Vaughn, for the partition of one hundred and sixty acres of land, to-wit, the south-west quarter of section 10, township 8 north, range 10, west of the third principal meridian, in said county.

<p>1. Debtor and creditor—when creditor is not entitled to preference. A creditor of an insolvent is not entitled, upon the ground of superior diligence in discovering assets, to a preference in a special fund deposited by the insolvent with a trust company before insolvency, where all facts relative to such fund were reported by the receiver before the filing of the petition for preference.</p> <p>2. Same—when judgment creditor has no interest in money deposited, to secure appeal bond. Where money is deposited by a judgment debtor to secure a surety on appeal bond in a proceeding resulting in the reversal of the judgment, the fact that another judgment is recovered on second trial confers upon the judgment creditor no interest in such money superior to that of other creditors.</p>

W. C. Hooker, Judge, presiding. This was an application by the county treasurer and ex officio collector of Hancock county, Illinois, to the county court of that county, for a judgment against what is commonly called the Fort Madison Railroad and Toll Bridge for delinquent taxes of 1901, assessed by the local assessor.

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

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

<p>1. Landlord and tenant—provision for thirty days’ notice in lease construed. Under a lease providing that if the lessor failed to furnish sufficient water power to operate the machinery the lessee might' terminate the lease upon thirty days’ notice, if the lessor fails to furnish such power within thirty days after the notice the ' lessee has a reasonable time within which to remove his effects.</p> <p>2. Same—when word “forfeited," in lease, does not have its legal significance. The word “forfeited,” used in a lease in specifying the conditions under which the lessee may declare the lease “forfeited, terminated and at an end,” does not mean a legal forfeiture, such as calls for strict construction of the provision, since forfeiture for breach of conditions is the province of lessor and not of lessee.</p> <p>3. Same—removing property and delivering Teey is sufficient surrender. The removal of all the lessee’s effects from the leased premises and the delivery of the key to the lessor after the giving of the notice required by the lease to terminate the same is a sufficient surrender.</p> <p>4. Judgments and decrees—when amendment of judgment after term is proper. Under the Statute of Amendments and Jeofails it is not error for the court, after the term, to amend the record of the entry of a judgment for costs by striking out the words “and that execution issue therefor” and inserting in lieu thereof the words “to be paid in due course of administration.”</p>

H. M. Trimble, Judge, presiding. This case was begun in the circuit court of LaSalle county. A trial was had before a jury in the month of November, 1899. Upon this trial, at the close of the plaintiff’s testimony, the plaintiff dismissed his suit as to the city of LaSalle.

O. H. Horton, Judge, presiding. The facts in this case, as stated by the Appellate Court in their opinion, are as follows: “The appellant William B. Land, with other beneficiaries under the will of Nellie M. Land, deceased, and the appellant the Northern Trust Company, as trustee under said will, filed their bill seeking to have declared void the alleged marriage between said Nellie M. Land and the appellee Frank E. Land, and that said Frank be declared not to be entitled to…

<p>1. Roads and bridges—what essential to validity of additional road and bridge tax. Under section 14 of the act on roads and bridges, as amended in 1901, (Laws of 1901, p. 274,) it is essential to the validity of an additional road and bridge tax that the written consent of the town auditors and the assessor shall “definitely and specifically direct” the purposes to which such tax shall be applied.</p> <p>2. Same—bridge tax cannot be authorized by special election. The tax for building or repairing bridges in case of emergency, authorized by section 10 of article 6 of the Township Organization act to be levied by the vote of the electors at a special town meeting, can not be authorized by the vote of the electors at a special election upon such question held in the various precincts of the town.</p> <p>3. Township organization—essentials of a special town meeting. A special town meeting is an assemblage of the electors of the town, presided over by a moderator, at the same place appointed for the holding of the annual town meeting, and each town, for the purpose of the meeting, constitutes an election precinct.</p>

R. W. Clifford, Judge, presiding. This is an appeal from the Appellate Court for the First District to bring in review a judgment of that court affirming a judgment of the circuit court of Cook county-in an action brought by appellee, against appellant.

<p>1. Principal and agent—agreement that an agent shall have all he can make on land above fixed price is valid. In the absence of fraud, an agreement that an agent shall have as compensation for the sale of land all that he can obtain over a certain price is conclusive upon the parties.</p> <p>2. Contracts—when objection that contract was unilateral does not prevent specific enforcement. An objection that an option contract to sell land was unilateral does not preclude its specific performance, where its terms were accepted within the time limited and"before the option was withdrawn.</p> <p>3. Same—when filing bill to rescind does not prevent tender of performance. If the terms of an option contract to sell land are accepted, the vendor can not prevent a tender of performance by the vendee by filing a bill to rescind the contract before the expiration of the time stipulated in the contract for such performance.</p>

Joseph E. Gary, Judge, presiding. This is an appeal from the Appellate Court for the First District from a judgment obtained by Robert Carroll against the Chicago City Railway Company. The original judgment in the superior court was for the sum of $5000. The Appellate Court required a remittitur of $2000, and judgment was entered for the sum of $3000: The declaration consisted of six counts.

<p>1. Special assessments—if ordinance attempts to describe improvement the court has jurisdiction. If a special assessment ordinance contains a sufficient description of the proposed improvement to challenge the attention of the court, the court has jurisdiction to determine the legal sufficiency of such description, and its judg-ment cannot be collaterally attacked in that respect.</p> <p>2. Same—objection that ordinance did not state width of street not available on application for sale. Failure of a special assessment ordinance to state the width of the street to be paved, the other specifications for the improvement being sufficient, is not ground for an objection upon application for judgment of sale.</p>

<p>1. Constitutional law—act punishing bribery in elections is constitutional. Section 83 of Election act, punishing by disfranchisement any person soliciting a bribe to procure votes at an election, is not in violation of section 1 of article 7 of the constitution, authorizing disfranchisement for “infamous crimes,” since the crime of bribery, including bribery at elections, was deemed “infamous” at the time the constitution of 1870 was adopted.</p> <p>2. Indictment—sufficiency of indictment for soliciting bribe. An indictment for soliciting a bribe to procure votes for a candidate for office need not allege the party was a legal candidate.</p> <p>3. Appeals and errors—when question of error in examining jurors is not presented. The question of error in the examination of jurors is not raised for review on appeal, where the only statement of what occurred appears in the motion for new trial, which is not even supported by affidavit.</p> <p>4. Instructions—an instruction should not call especial attention to particular evidence. It is not error, in a criminal case, to modify an instruction by striking out that part thereof calling the especial attention of the jury to the evidence bearing upon the defendant’s good character.</p> <p>5. Same—instruction may refer to indictment. An instruction authorizing the jury to find the accused guilty if they believe, from the evidence, beyond a reasonable doubt, that he committed the crime “as charged in the indictment,” is not erroneous, where the indictment states all facts necessary to a conviction.</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. S. Tuthill, Judge, presiding.</p>

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

<p>1. Depositions—when presence of counsel is no objection to deposition. The presence of one of the counsel at the taking of a deposition upon written interrogatories is no objection to it, in the absence of a statute or a rule to that effect.</p> <p>2. Same—section j of Wills act and section S3 of Evidence act are independent. Section 4 of the Wills act, providing for the taking of the deposition of a subscribing witness to a will, and section 33 of the Evidence act, which prohibits the presence of counsel at the taking of the deposition by written interrogatories, are independent of each other.</p> <p>3. Same—deposition taken under section j of Wills act is good though counsel was present. The mere presence of one of the counsel at the taking of the deposition of a subscribing witness to a will, under section 4 of the Wills act, is not ground for striking the deposition from the files.</p> <p>4. Same—deposition taken for county court may be read in circuit court, on appeal. A deposition of a subscribing witness to a will, taken under section 4 of the Wills act, upon a commission issued by the county court, may be read in evidence in the circuit court on appeal from the county court’s order admitting the will to probate.</p> <p>5. Wills—parties confined to subscribing witnesses on appeal from an order allowing probate. On appeal from an order of the county court admitting a will to probate the parties are confined to the testimony of the subscribing witnesses.</p> <p>6. Same—testimony that testator was rational and under no restraint is sufficient. Testimony by a subscribing witness that the testator was “rational and under no restraint” is equivalent to a statement that he was of sound mind and memory.</p> <p>7. Same—effect ibhere oral testimony of subscribing witness tends to contradict his deposition. On appeal to the circuit court from an order admitting a will to probate, the chancellor is justified in regarding the deposition of one of the subscribing witnesses as representing his actual belief even though his oral testimony tends to impeach it, where the clear preponderance of the testimony is that the deposition was correctly taken.</p>

<p>1. Special taxation—substantial compliance with law is sufficient. Special taxes must be imposed by lawful authority and in substantial conformity with the power conferred; yet a natural and reasonable construction must be given to the ordinance levying such taxes, and a substantial compliance with the law is sufficient.</p> <p>2. Same—effect where a grade ordinance and a sidewalk ordinance are passed at the same time. A sidewalk ordinance referring to an ordinance establishing the grade is not invalid because both ordinances were passed at the same time and the grade ordinance had not been recorded when the sidewalk ordinance was passed, where the grade ordinance was in force when the property owner was entitled to build his walk.</p> <p>3. Same—sidewalk ordinance need not specify location of the property crossings. Failure of a sidewalk ordinance, passed under the Sidewalk act of 1875, to fix the location, number or method of construction of the crossings used in going from the lots to the street is not ground for refusing judgment of sale, where it is not shown that unnecessary crossings were put in or necessary ones omitted.</p> <p>4. Same—failure to publish entire ordinance as amended is not fatal. If a sidewalk ordinance is amended by correcting an error in the specification of the dimensions of the brick, and the amendatory ordinance is published as required by the law, it is not a valid objection, upon application for judgment of sale, that the entire ordinance, as amended, was not again published.</p> <p>5. Ordinances—form of enacting clause need not be strictly followed. A provision in a city charter prescribing the form of the enacting clause of ordinances is directory, and a failure to follow the prescribed form does not vitiate the ordinance.</p>

Philip Stein, Judge, presiding. This is an action on the case, brought by appellee in the superior court of Cook county, to recover damages for a personal injury occasioned through the alleged negligence of appellant. A trial before a jury resulted in a verdict for $2000 in favor of appellee.

<p>Special assessments—when ordinance for house drains is invalid for uncertainty. An ordinance for laying house drains which is so indefinite as to leave it uncertain whether such drains shall terminate at the lot lines or four feet inside of the curb line, between the roadway and sidewalk space, is invalid for uncertainty.</p>

<p>1. Special assessments—when not error to permit attorney for railroad company to appear. Permitting the attorney for a railroad company to appear, on motion of the attorney for the city, in a special assessment case, and introduce evidence to contradict evidence given by an objector tending to show that an unassessed lot owned by the company would be benefited by the improvement, is not error, where no new issue is thereby raised.</p> <p>2. Same—■what not competent upon question of benefits. It is proper, in a special assessment case, for the court to refuse to permit a witness introduced upon the question of benefits to give his opinion as to what the benefit from the improvement would be to the business being conducted by the occupant of the property.</p> <p>3. Same—when erroneous ruling will not reverse. Error in requiring a witness for the objector to answer the question, asked on cross-examination, whether he recalled any instance when the property was worth more after a street was paved than before, is not of sufficient importance to justify a reversal.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Appeal from the County.Court of Kankakee county; the Hon. A. F. Deselm, Judge, presiding.</p>

<p>L Injunction—damages for injury to business may be recovered in a suit on bond. In an action on an injunction bond damages may be allowed, where, by the issuance of the injunction, the plaintiff’s business was unavoidably suspended and thereby injured.</p> <p>2. Same—measure of damages for an injury to business. The rate of profits for a reasonable period next preceding the issuing of an injunction suspending the plaintiff’s business may be taken as the measure of damages in a suit on the bond, leaving the defendant to show, if he can, that by depression in trade or other causes the profits would have been less than formerly.</p> <p>3. Same—dissolution of injunction shows its wrongful issue. Dismissal of a bill for specific perform anee-and dissolution of an ancillary injunction are conclusive that the injunction was wrongfully issued.</p> <p>4. Same—counsel fees incurved in general defense of suit not allowable as damages. Where an injunction is ancillary to the principal relief sought by the bill and its dissolution is but incidental to the defense, counsel fees incurred in defending the suit generally cannot be allowed as damages in a suit on the injunction bond.</p> <p>5. Same—evidence as to counsel fees must be confined to allowable items. Counsel fees incurred in procuring dissolution of an injunction as incidental to the principal relief sought cannot be allowed as damages in a suit on the bond, where the evidence makes no discrimination between the services rendered in general defense of the suit and those rendered in procuring the dissolution.</p> <p>6. Same—what not a violation of injunction. Where a vendor of a stock of goods enjoins the vendee from carrying on the business pending the determination of the vendor’s suit for specific performance, the vendee may, as a creditor, attach the stock of goods without violating the injunction or defeating his right to damages for a suspension of his business caused by the wrongful issue of the injunction.</p>

<p>1. Benefit societies—a society stands as a trustee for the members. The members of a benefit society, and those persons named in the statute bearing certain relations to them, are the beneficiaries of all funds realized by the society, and the society stands as a trustee handling the funds.</p> <p>2. Same—in absence of statutory authority society cannot create surplus fund. In the absence of statutory authority a benefit society has no right to collect funds from the members in the way of dues and assessments in excess of the amount necessary to pay death losses, indemnities and reasonable expense of conducting the business.</p> <p>3. Same—when society cannot make bonds the medium for paying assessment. If a benefit society, by its constitution, devotes the surplus or guaranty fund created under section 8 of the act of 1883 (Laws of 1883, p. 107,) to the one object of paying assessments, the societ)r cannot make- bonds issued by it against the fund the medium of payment instead of the member’s interest in such fund.</p> <p>4. Same—when society must apply surplus fund to unpaid assessment without notice. Under a constitution providing that the surplus fund created under section 8 of the act of 1883 shall be used, “without notice, in payment of assessments,” it is the duty of the society, if a member entitled to the benefit of the fund shall fail to pay proper assessments, to apply such fund upon the assessments, without notice, so long as it is sufficient to pay them.</p> <p>5. Same—when society cannot make member’s right to surplus depend upon surrender of bond. If the constitution of a benefit society provides that the surplus fund shall be used, “without notice, in payment of assessments,” a bond issued to evidence a member’s share in such surplus cannot make his right to the application of the fund upon his unpaid assessments depend upon notice to the society in the form of an application to surrender the bond and apply his entire interest to such payment.</p> <p>6. Same—when acceptance of bond does not change member’s interest in surplus fund. Acceptance by a member of a benefit society of a bond containing provisions which are not in accord with the constitution of the society does not operate to change his interest, under the constitution and benefit certificate, in the surplus fund against which the bond was issued, where there is no question of estoppel in the transaction.</p> <p>7. Same—laws, rules and regulations construed strictly where a society attempts forfeiture. Where a benefit society is attempting to work a forfeiture of a member’s rights, the laws, rules and regulations of the society will be most strictly construed against it.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. O. H. Horton, Judge, presiding. This is an indictment for burglary, found by the grand jury of Cook county against the plaintiff in error. The jury returned a verdict, finding plaintiff in error guilty of burglary in manner and form as charged in the indictment, and fixed his punishment at imprisonment in the penitentiary.

<p>Writ op Error to the Circuit Court of DeKalb county; the Hon. Charles A. Bishop, Judge, presiding.</p>

• Appeal, from the Circuit Court of Cook county; the Hon. Prank Baker, Judge, presiding. This is a proceeding to condemn certain property for the use of schools, brought by or under the auspices of the board of education in the city of Chicago. Several lots, owned by different persons, were sought to be condemned, and there were about eighteen respondents or defendants. The present appeal, however, was taken by the appellant, Spohr, alone.

P. W. Gallagher, Judge, presiding. The appellee recovered a judgment before a justice of the peace of Fulton county for $75, the appellant not appearing.' The appellee prosecuted an appeal to the city court of Canton. The appellant appeared in that court and filed a set-off, whereupon the appellee moved the court to dismiss the appeal, which motion was allowed and the appeal was dismissed with a procedendo,.

John Small, Judge, presiding. Jackson street, in the city of Joliet, runs east and west, and is crossed at about right angles by the tracks of four railroad companies. On the east is the track of the Elgin, Joliet and Eastern, then in order on the west come three tracks of the Lake Shore, five tracks of the Chicago and Alton, and then five tracks of the Chicago, Santa Fe and California.

<p>1. Statutes—rule as to construction of statutes. A statute should be so construed, if possible, as to give to each word and sentence its ordinary and accepted meaning.</p> <p>2. Taxes—power of assessor and board of remew to change assessment each year. Under sections 9 and 12 of the Revenue act of 1898 (Laws of 1898, p. 40,) the assessor and board of review are without power, in the years intervening between the quadrennial general assessment of real estate, to increase or decrease the assessed value of such real estate except in case of changes in the improvements.</p> <p>3. Same—section 14 of Revenue act of 189S construed. Section 14 of the Revenue act of 1898 (Laws of 1898, p. 42,) is intended to require the assessor to make effective on the assessment roll the changes in value of real estate occurring, as provided in section 12 of the same act.</p>

<p>1. Practice—opinion of Appellate Courtis not binding where remandment is general. Where a decree is reversed by the Appellate Court and the cause is remanded generally without specific directions, the lower court is not required to proceed according to the opinion of the Appellate Court, but may permit amendment of the pleadings and hear the cause de novo.</p> <p>2. Pleading—pleadings must correspond with proofs to warrant a decree. If the evidence in a chancery case fails to sustain the case stated in the pleadings, the complainant is not entitled to a decree unless the pleadings are amended to conform to the proof.</p> <p>3. Evidence—when record of judgment approving executor's report is not admissible. The record of a judgment of the county court approving an executor’s report is not admissible in evidence against a stranger to the proceeding in order to charge him with notice of facts claimed to be shown by such report.</p> <p>4. Same—declarations by a grantor not admissible to discredit the title he conveyed. Declarations made after the defendant has joined in a trust deed conveying his interest in property are not admissible in evidence to impugn the title he has joined in making.</p> <p>5. Privity op estate—when privity of estate does not exist. Privity of estate does not exist between successive mortgagees, where their conveyances are distinct, based upon different considerations and running for different periods of time, and where the later mortgage includes more property than the earlier one.</p> <p>6. Trusts—when a cross-bill to establish a trust cannot be sustained. A cross-bill in foreclosure which seeks to establish a trust in the property upon the ground that a former recorded trust deed upon the property made to evidence a loan of trust-funds was fraudulently released cannot be sustained, where the evidence shows that such trust deed was a sham and that the maker thereof never received any loan of the trust fund nor any part thereof.</p>

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

M.' Kavanagh, Judge, presiding. This is an action of trespass on the case by Gustave Horn, appellee, against the London Guarantee and Accident Company, appellant, commenced in the superior court of Cook county, where, upon a trial before a jury, Horn was awarded damages in the sum of $800, and judgment was entered by the court upon the verdict for that amount.

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. Axel Chytraus, Judge, presiding.

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

<p>1. Evidence—admissibility of contradictory statements of witness made out of court. Statements of a witness made out of court, orally or in writing, if contradictory of a material point in his testimony in court, may be introduced in evidence after sufficient foundation is laid, as tending to discredit the witness.</p> <p>2. Same—what a sufficient foundation where statement of witness is in writing. A sufficient foundation for the introduction of a contradictory written statement signed by the witness is laid by showing the paper to him, allowing him to inspect and read it if he desires, and proving by him or others that his signature is genuine.</p> <p>3. Same—when impeaching proof must be permitted to go in. Where a proper foundation has been laid for the introduction of impeaching proof, if the witness admits that he made the contradictory statements imputed to him, as fully as is claimed, further proof of such fact may not be necessary, but if he denies or does not directly admit that he made the statements the impeaching proof should be permitted to be given.</p> <p>4. Same—when general objection will not suffice. A general objection to the admission in evidence of a writing offered as impeaching proof does not present for review the question whether part of the statements contained therein were inadmissible, as being mere opinions, if the writing was admissible for any purpose.</p>

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

Frank Baker, Judge, presiding. The bill filed in this case sets up the following facts: Monroe K. Binkley, the complainant, is a grocer, doing business in Chicago. Prior to October 1, 1897, he had furnished groceries and provisions, to the value of $550, to Nancy P. Coburn and her daughter, Ada B. Jarvis, which groceries and provisions were used by them as members of one family, for their joint and separate use and sustenance and upon their joint and several responsibility.

<p>1. Limitations—the right to foreclose not barred until debt is barred. Section 11 of the Limitation act, requiring mortgage or trust de.ed to be foreclosed within ten years from the time the right of action accrues, must be construed with section 16, applicable to promissory notes, and foreclosure is not barred until the debt is barred.</p> <p>2. Same—extension agreement need not be recorded in order to toll the statute. A written agreement extending the time of payment of a note secured by a recorded trust deed extends the period of limitation fixed by the statute for foreclosing, notwithstanding the extension agreement is not recorded.</p> <p>3. Mortgages—;failure to record extension agreement does not enhance rights of lienholders. Failure to record a written agreement extending time of payment of a note secured by a recorded trust deed does not enhance rights of holders of liens acquired subsequently to the recording of the trust deed, since the extension of the note keeps the trust deed alive without a separate extension.</p> <p>4. Estoppel—when the question of estoppel cannot be determined. Whether foreclosure of a trust deed was barred by estoppel by reason of complainant’s failure to assert his prior lien in a former suit to foreclose a junior mortgage cannot be determined by the Supreme Court, where the allegations of the bill in such former suit, which it is claimed were taken as confessed by complainant as “unknown owner,” are not shown in the record in any way.</p> <p>5. Appeals and errors—objection to allowance of master’s fees must be made below. Alleged error in allowing certain items of master’s fees cannot be considered on appeal, where the question was not raised in the trial court.</p>

<p>1. Trial—if evidence tends to prove allegations, case should goto jury. If the evidence tends to prove the allegations of the declaration in an action for a personal injury, the trial court should refuse to give an instruction to find for the defendant, and should submit the questions of fact to the jury under proper instructions.</p> <p>2. Evidence—when cross-examination is not unduly restricted,. If full cross-examination of a physician testifying in a personal injury case is permitted as to the manner in which he made the particular examination of plaintiff’s injuries, it is not error to refuse to permit cross-examination as to what was the usual custom of the witness in making examinations of that kind.</p> <p>3. Instructions—when instructions are properly refused. Instructions in an action for personal injuries are properly refused which are argumentative, and which attempt to specify what conduct upon the part of the plaintiff is imprudent or negligent.</p>

<p>Appeal from the County Court of Cook county; the Hon. L. C. Ruth, Judge, presiding.</p>

Philip Stein, Judge, presiding. This is a bill, filed June 21, 1901, to foreclose a trust deed dated October 1, 1900, from Charles O. Gantzer and wife to Will H. Moore, trustee, conveying a lot in Cook county to secure payment of two notes of even date therewith, one for $5500.00, and the other for $500.00, due in one year after date, with interest at six per cent per annum, payable semi-annually, the installments of interest being evidenced by four coupon notes, two being…

<p>Appeal from the County Court of Edgar county; the Hon. Walter S. Lemon, Judge, presiding.</p>

John H. Moffett, Judge, presiding. This is an appeal from the circuit court of McLean county to reverse a decree in favor of appellee, 'against appellants, for the assignment of dower.

Writ of Error to the Circuit Court of Greene county; the Hon. Robert B. Shirley, Judge, presiding.

<p>1. Trusts—what tends to establish a trust and rebut presumption of advancement. The fact that the entire estate of a husband or father has been placed in the name of his wife or child by conveyances, leaving him penniless at an advanced age, with other children having equal claims upon him, tends to rebut the presumption that such transactions were intended as advancements or settlements, and in such case the intention must control.</p> <p>2. Same—when conveyance must be given effect. A direct conveyance from father to daughter, even though intended to be in trust for the grantor, must be given effect where the Statute of Frauds is pleaded, unless fraud or imposition, out of which the law would raise a constructive trust, is established.</p> <p>3. Same—what does not defeat resulting trust. That the grantee in a deed to property purchased with funds of another assumes an encumbrance by the recitals of the deed alone, does not defeat the resulting trust to the extent of the deferred payment, where all the money paid upon the property was furnished by the purchaser, there being no intention that the grantor should pay anything. (Fleming v. McHale, 47 Ill. 282, adhered to.)</p>

<p>Appeal from the County Court of Livingston county; the Eon. F. E. Carrithers, Judge, presiding.</p>

<p>1. Negligence—effect where negligence charged is the omission of a duly suddenly arising. If the alleged negligence of the defendant’s servant is the omission of a duty suddenly and unexpectedly arising, it is incumbent on the plaintiff to show that under the circumstances the servant had an opportunity to discover the facts giving rise to the duty and also an opportunity to perform the duty.</p> <p>2. Street railways—right of motorman on approaching horse and wagon standing at side of street. A motorman in charge of a car approaching from the rear a horse and covered wagon standing still near the curb, is not required to stop the car nor to assume that the driver will suddenly start up and drive across the track when the car is too close to avoid a collision.</p> <p>3. Instructions—each party entitled to instructions on his theory, if there is a basis in the evidence. Each party is entitled to correct instructions upon his theory of the case if it has a basis in the evidence, and it is not the province of the court to weigh the evidence in passing upon such instructions.</p>

<p>Appeal from the County Court of Cook county; the Hon. L. C. Ruth, Judge, presiding.</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. Joseph E. Gary, Judge, presiding.