Volume 207 — Illinois Reports

<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. R. W. Clifford, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. John H. Moffett, Judge, presiding.</p>

<p>1. Cloud on title—prima facie proof of title does not warrant decree removing cloud. Prima facie proof of title in the complainant in a bill to remove a cloud does not warrant a decree canceling a tax deed as a cloud, unless it is alleged and proved that such deed is invalid and constitutes a cloud upon complainant’s title.</p> <p>2. Registration of title—an applicant must show a title good as against the ivorld. Evidence establishing title good as against the world is essential to warrant a decree awarding initial registration of title.</p> <p>3. Same—effect of failure to prove title. If an applicant for initial registration of the title in fee fails to establish such title in himself, he is not entitled either to registration of his own title or to a decree finding that the titles of the defendants are clouds upon such prima facie title as he may have shown, and the application should be dismissed.</p> <p>4. Same—defendant may insist, on appeal, that evidence of complainants title was insufficient. On appeal from a decree finding title in fee to be in the applicant for initial registration and finding defendant’s tax deed to be a cloud, the defendant may insist that the evidence of such title was insufficient to warrant the decree.</p> <p>5. Same—when title in fee is not established. Title in fee in an applicant for initial registration is not shown by proof of deeds and tax receipts unconnected with any chain of title from the government, and which fall short of establishing a title under the Statute of Limitations.</p>

<p>Appeal from the Appellate Court'for the Second District;—heard in that court on writ of error to the Circuit Court of Knox county; the Hon. John A. Gray, Judge, presiding.</p>

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

<p>1. Taxes—laws exempting property from taxation must be strictly construed. Laws exempting property from taxation must be strictly construed, and nothing will be held to be within the exemption which does not clearly appear to be so.</p> <p>2. Special assessments—property exempt from taxation not necessarily exempt from special assessment. Property which is by statute exempt from general taxation is not necessarily exempt from special assessment.</p> <p>3. Schools—school property not part of section 16 is subject to special assessments. School property, not being a part of section 16 of the township nor derived therefrom, is subject to special assessment, whether occupied for school purposes, vacant, or occupied by buildings from which the school receives rent.</p> <p>4. Same—special assessment proceeding as to school property not a suit against the State. A special assessment proceeding against school property held in trust by a city for the benefit of the schools of the city, and not a part of section 16 of the township nor derived therefrom, is not a suit against the State, nor do the lands belong to the State of Illinois.</p> <p>5. Same—payment of special assessment is proper application of school funds. Payment of a special assessment against school property for improvements of benefit to the property is a proper method of applying the-funds of the school district for benefit of its schools.</p> <p>6. Same—Chicago board of education has implied power to sue and be sued. Boards of education in cities having a population exceeding one hundred thousand have implied power to sue and be sued, although such power is not expressly given by sections 21, 22 and 23 of article 6 of the School law of 1889, prescribing the powers and duties of such boards.</p> <p>7. Same—a special assessment of school property not defeated because property cannot be sold. The fact that property held in trust by a city for school purposes cannot be sold for the purpose of collecting a special assessment against it does not defeat the assessment, since the law provides other methods by which the payment may be enforced.</p>

<p>Writ of Error to the Circuit Court of Perry county; the Hon. William Hartzell, Judge, presiding.</p>

W. P. Ellis, Judge, presiding. This is an application by the county collector of Jackson county, in the county court of said county, for a judgment of sale against certain lands of the appellees for a drainage tax extended against said lands- by the county clerk by virtue of a certificate of levy of the commissioners of the Big Lake special drainage district.

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

<p>1. Special assessments—it is conclusively presumed that improvement board’s action was voluntary. It is conclusively presumed that the improvement board acted of its own motion in preparing and submitting an improvement ordinance to the council, and that it treated an order from the council to prepare and submit the ordinance as a mere petition.</p> <p>2. Same—when ordinance is not uncertain in describing asphaltum. A provision in a paving ordinance that the asphaltum “shall be asphaltum obtained from Pitch Lake, in the island of Trinidad, or asphaltum which shall be equal in quality for paving purposes to that obtained from Pitch Lake,” etc., is valid and certain.</p> <p>3. Same—when provision for “back-filling” is valid. A provision in a paving ordinance for “back-filling” the combined curb and gutter is sufficiently definite where the grade of the street and the height of the curb are given, and the filling is specified to be of earth, to the width of four feet at the top of the curb and even therewith, and to slope down at a specified rate.</p> <p>4. Same—improvement board’s resolution need not go into detail. The resolution of the improvement board must prescribe the “extent, nature, kind, character and estimated cost” of the improvement, but a detailed description such as is essential to the validity of the ordinance is not required.</p>

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

<p>1. Registration op 'rvrsjES—proper foundation mustbelaidin registration suit for introduction of abstract of title. Abstracts of title or books of abstracts are not admissible in evidence in a proceeding for initial registration of title unless a proper foundation has been laid as in other cases.</p> <p>2. Same—applicant must prove title as against the world. An applicant for initial registration of title in fee simple must make such proof' as warrants registration of such title as against the world, and not merely such title as would be sufficient to authorize a decree removing a cloud.</p> <p>3. Same—cloud cannot be removed unless evidence justifies registration of title. Unless the applicant for initial registration of a title in fee simple shows a title which may be registered as against the world, the court cannot remove a tax deed alleged to be a cloud but must dismiss the application. (Glos v. Kingman & Co. ante, p. 26, followed.)</p>

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

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

<p>Special assessments—effect of anti-alien labor clause in specifications. The presence in the specifications for a public improvement of a clause prohibiting the employment of alien labor does not invalidate the special assessment, on application for a judgment of sale, unless the objector can show that such provision in some way actually entered into the competitive bidding. (McChesney v. People, 200 Ill. 146, followed.)</p>

<p>Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.</p>

R. S. Farrand, Judge, presiding. This is an action of trespass quare clausum fregit, brought by appellee, against appellant, in the circuit court of JoDaviess county, to the February term, 1902, of that court.

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

S. C. Stough, Judge, presiding. This is a'bill in chancery filed by appellant in the circuit court of Grundy county against his three daughters, Elizabeth Wilenou, Paulina Wilenou and Anna Handlon, and William Handlon, husband of Anna, to cancel and set aside as a cloud upon his title the record of a deed bearing date February 18, 1899, executed by the appellant to his said daughters, and purporting to convey to them his farm, containing four hundred and forty acres, located…

<p>Bills and notes—liability of guarantor not released by payee's negligence in demanding payment. One who unconditionally guarantees payment of a promissory note at maturity by endorsing it in blank is not released from liability although the payee delays notice of the maker’s non-payment until the latter, although solvent at the maturity of the note, has become insolvent and the guarantor is consequently unable to enforce payment against him.</p>

<p>1. Bills and notes—lato of place lohere note was delivered controls liability. In an action on a negotiable instrument the law of the place where the same was delivered and negotiated controls in determining liability thereon.</p> <p>2. Same—endorsement upon back of non-negotiable instrument creates no liability as an endorser. The signing by a third party of his name upon the back of a contract for the payment of money, which is not a negotiable instrument, does not create the liability of an endorser or guarantor within the law merchant.</p> <p>3. Same—when an instrument is not a promissory note. A written promise for the payment of a sum of money, with interest “and taxes,” is not a promissory note, where there is nothing in the instrument which renders the amount of such taxes certain.</p> <p>4. Same—when word “taxes” in written instrument cannot be rejected as surplusage. The word “taxes,” used in a written promise to pay a sum of money, with interest and taxes, refers to the taxes upon the instrument or the debt evidenced thereby, and is not so indefinite and uncertain as to be rejected as surplusage.</p>

J. H. Moffett, Judge, presiding. Mrs. Lemira P. Gillett, who was the widow of John D. Gillett, died testate on September 21, 1901. After her death the appraisers, appointed by the county court in the administration of the estate, set off to the appellee, Amaryllis T. Gillett, a daughter of Mrs. Lemira P. Gillett, an amount, equal in the aggregate to $2525.00, as a specific separate allowance.

M. W. Schaefer, Judge, presiding. This is a suit in assumpsit, brought to the March term, 1900, of the Madison county circuit court by Robert F. Foster against the city of Alton. Foster has since died, and his executrix, Sophia M. Foster, prosecutes this suit. The action is for the recovery of a balance alleged to be due the plaintiff from the city for the construction of a certain sewer.

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

W. T. Church, Judge, presiding. This is an appeal from a judgment of the county court of Henderson county adjudging that the estate of Robert Moir, deceased, was not subject to an inheritance tax. The deceased had resided in Oquawka, in Henderson county, for many years, where he owned his residence and was engaged in the business of banking, merchandising, loaning money and farming, and where he had accumulated a large fortune. His wife died in September, 1901.

Axel Chytraus, Judge, presiding. This is a bill, filed on December 13, 1901, in the Superior Court of ■ Cook county by the appellee, Nellie Carlin, against Jessie O. Darrow, Catherine Schilling, Jacob Glos and Henry L. Glos for the partition of two lots, known as lots 22 and 24 in block 2 of Douglas Park addition to Chicágo, and also for the removal of two tax deeds as clouds upon the title to the lots, sought to be partitioned.

<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. C. H. Donnelly, Judge, presiding.</p>

O. H. Harker, Judge, presiding. Appellees, on June 12, 1902, filed their bill of complaint in the circuit court of Massac county against appellant.

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

<p>1. Fellow-servants—when question whether miner and mule driver are fellow-servants is one of fact. Whether a miner and a mule driver in the mine are fellow-servants is properly submitted to the jury, where the evidence bearing on the question is conflicting.</p> <p>2. Instructions—effect where instructions for both parties proceed on wrong theory. In an action by a miner for injuries, if the defendant obtains an instruction applying certain provisions of the statute, respecting places of refuge, to the case, he cannot complain that the same provisions were applied in another instruction given for the plaintiff, even though the statute has, in fact, no application.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. B. S. Ttjthill, Judge, presiding.</p>

Jesse Holdom, Judge, presiding. This is an action of debt, brought in the superior court of Cook county by James H. Gilbert, who sues for the use of Kate McGuire, administratrix of the estate of Robert McGuire, deceased, against Catharine McGuire, Patrick O’Toole, Cornelius Hickey and Peter Fortune, upon a supersedeas bond signed by the defendants below, conditionéd that they would prosecute a certain writ of error with effect, and pay the plaintiff mentioned in the bond…

Axel Chytraus, Judge, presiding. This is an appeal from a decree of the superior court of Cook county, and the following statement of facts is taken, in part, from the recitals in the decree of that court, which recitals are accurate so far as we have adopted them: The appellee, complainant below, claims the title in fee simple to the property at 175 and 177 South Canal street, in the city of Chicago, which is known in this litigation as “complainant’s lot.” Appellant owns…

<p>1. Constitutional law—constitution does not authorize appeals to Supreme Court in criminal cases.' Section 11 of article 6 of the constitution; which provides that appeals and writs of error shall lie from the Appellate to the Supreme Court in criminal and other specified cases, is a limitation upon the power of the legislature to make the Appellate Court’s judgment final in such cases, and does not authorize an appeal in a criminal case, in the absence of legislation.</p> <p>2. Appeals and errors—an appeal is purely statutory. While a writ of error is in most cases a writ of right, an appeal is purely statutory, and in order to confer the right to an appeal there must be a statute prescribing the terms and conditions thereof.</p> <p>3. Same—law does not, provide for appeal in criminal case. There is no statute in Illinois authorizing an appeal in a criminal case, and the manner of reviewing such a case is by writ of error.</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 Vermilion county; the Hon. P. BooKWAL: ter, Judge, presiding.

<p>Limitations—when renting land is not a recognition of title. Renting land for pasturage without any lease describing the premises is not such a recognition of title as interrupts the running of the'Statute of Limitations in favor of the tenant as to a strip of land which had for many years been enclosed with the land of the tenant adjoining the tract rented for pasturage.</p>

<p>1. Limitations—possession must be exclusive to be notice of rights under unrecorded deed. Possession must be open, visible, exclusive, and of such a character that it will not be likely to be misunderstood, in order to operate as notice of the possessor’s' rights under an unrecorded deed.</p> <p>2. Real pbopehty—widow's latent equities waived by joining in deed by owner of record title. Latent equities of a widow under an unrecorded deed to her first husband are waived where she joins in a deed by her second husband, who holds an apparently perfect record title to the property, running back to the government.</p>

Clair county; the Hon. William Hartzell, Judge, presiding... This is a bill for partition, accounting, etc., filed on August 28, 1902, (and afterwards amended on June 8, 1908, for the purpose of making Fannie Rudolph a party) by Eliza Rudolph (in-her own behalf and as conservatrix of the estate of Frederick W. Rudolph, deceased), and Minnie A. Rudolph, and Edgar Rudolph, against Herman Rudolph, Aurelia Rudolph, Corinne Rudolph and Fannie Thornbury Rudolph.

<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. C. H. Donnelly, Judge, presiding.</p>

Solon Philbrick, Judge, presiding. This is an action of assumpsit, begun in the circuit court of Champaign county by the appellant, against the appellee.

Writ op Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding. This is a bill for an accounting and relief, filed in the superior court of Cook county by the plaintiff in error, Jacob Ellis, against the defendants in error, Jacob Wolfe and the Conrad Seipp Brewing Company.

<p>1. Bailments —when miller is not liable for loss of grain by fire. A miller who mixes grain under an agreement with the owner that he will keep an equal quantity on hand, of the same grade, subject to the owner’s order, is not liable for loss by fire if he keeps his agreement and uses proper care for the safety of the grain and the prevention of fire.</p> <p>2. Same—when time of the agreement is not material. Whether the agreement permitting a miller to mix grain was made at the .time the grain was received or at a later period is not material, if the grain was intact at the time of such agreement.</p> <p>3. Same—bailee without reward is held to reasonable diligence, only. A miller who receives grain for safe keeping to accommodate the owner and without reward, is only held to the use of ordinary care and diligence in caring for the grain.</p>

<p>1. Divorce—when recital of decree must prevail. A specific recital in a divorce decree that the defendant had been guilty of adultery must prevail on writ of error, where the certificate of evidence does not purport to contain all evidence'on which the court acted.</p> <p>2. Same—when wife may be given title to real estate in lieu of alimony. A court of equity may assign to the wife, as alimony, part of the husband’s real estate in fee where special equities exist, as that her earnings went toward the purchase of the property.</p>

<p>Appeal from the County Court of Stephenson county; the Hon. A. J. Clarity, Judge, presiding.</p>

Writ of Error to the Superior Court of Cook county; • the Hon. Axel Chytraus, Judge, presiding. This is a petition for mandamus, filed in the Superior Court of Cook county on January 17,1903, by the People upon the relation of Frank 0.

<p>' Writ op Error to the Circuit Court of Randolph county; the Hon. B. R. Burroughs, Judge, presiding.</p>

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

<p>1. Appeals and errors—when an order amending judgment is not final. An order amending the record of a prior judgment sustaining objections and refusing judgment of sale for taxes is not such a final order as is subject to appeal or writ of error, where the amendment does not change the judgment in such a manner as to affect the rights of the parties thereunder.</p> <p>2. Judgments and decrees—when amendment of record of judgment does not change rights of parties. Where all of the objections to an application for judgment of sale go to the jurisdiction of the court, an order “that all of said objections be and are hereby sustained and that application for judgment is hereby refused,” is not changed, so as to affect the rights of the parties, by striking the words “all of said” from the record of the order.</p>

<p>Appeal from the Circuit Court of Clay county; the Hon. S. L. Dwight, Judge, presiding.</p>

<p>Appeal from the Circuit Court of DeKalb county; the Hon. Charles A. Bishop, Judge, presiding.</p>

Original petition for mandamus. This is a petition for mandamus, filed .in this court at the October term, 1902, by Hillel Lodge No. 72, Independent Order Bnai Brith, in the name of the People of the State of Illinois, against James A. Rose, Secretary of State of Illinois.

County Court of Cook county; the Hon. L. C. Ruth, Judge, presiding. This is an appeal from the county court of Cook county, wherein a judgment and order of sale on delinquent city special warrant No. 30,512, for the first installment for a sewer in West Madison street, in the city of Chicago, was had upon the application of the county collector of said county.

C. S. Cutting, Judge,’ presiding. ' This is an appeal from an order, entered by the probate court of Cook county on May 26, 1903, revoking the letters of administration issued to Joseph H. Strong of Cook county upon the estate of Jeremiah Ahearn, deceased, and granting letters of administration de bonis non to Peter A. Dignan, on the petition of Mary Lavis, a resident of Massachusetts.

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. R. B. Shirley, Judge, presiding.</p>

<p>1. Trial—scope of cross-examination is largely within the discretion of trial cowrt. The scope of cross-examination is largely within the discretion of the trial court, being governed by the direct testimony of the witness and the circumstances attending the giving of his evidence.</p> <p>2. Same—witness may be cross-examined as to all bearings of his direct testimony. A witness may be cross-examined as to his direct testimony in all of its bearings, and as to whatever goes to explain, modify or discredit the same.</p> <p>3. Same—counsel entitled to reasonable latitude in argument to jury. In argument to the jury counsel are entitled to make reasonable comment upon the evidence and the conduct of witnesses, it being a question largely in the discretion of the trial court whether, under the circumstances, alleged abuse by counsel of such privilege should be ground for new trial.</p> <p>4. Same—when absence of judge from the court room will not reverse. Retirement of the trial judge from the court room to chambers, leaving the door open, while the argument to the jury was going on, although not approved practice, is not ground for reversal, where no rights of the parties were prejudiced thereby.</p>

<p>1. Special taxation—city must prove compliance with ordinance. It is essential to the right of a city to recover a judgment for a special tax for the construction of a sidewalk, that the city shall affirmatively prove that the ordinance has been complied with.</p> <p>2. Same—what not a bill of cost such as is required by the Sidewalk act of 1875. A statement of the total amount of the cost of a sidewalk, charging one-half to material and one-half to laying the walk, is not such an itemized bill of cost as is required by section 3 of the Sidewalk act of 1875.</p> <p>3. Same—provisions of the Sidewalk act of 1875 must be complied with. The provisions of the Sidewalk act of 1875 are for the protection of the property owner, and no special tax can be allowed thereunder without a substantial compliance with such provisions.</p>

<p>Freehold—;freehold not1involved in ordinary petition to sell land to pay debts. A freehold is not involved in an ordinary petition by an administrator to sell land to pay debts of the decedent unless the title to the real estate is put in issue.</p>

Writ op Error to the Circuit Court of Kendall county; the Hon. Charles A. Bishop, Judge, presiding. This is a bill in chancery, filed in the circuit court of Kendall county on June 10,1899, by the plaintiff in error, George D. Wormley and all of the defendants in error except John T. Wormley, (said defendants in error, except John T. Wormley, being- ten in number,) as complainauts, against defendant in error, John T. Wormley, as defendant.

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

<p>1. Wills—when power of appointment is discretionary as to amount. Where a will, after devising a life estate to the testator’s wife, provides that at her death “one-half of the property then in her possession is to be divided equally between my heirs and one-half to be divided between her heirs in the manner in which she may decide,” the wife’s power of appointment is discretionary as to the portions of the one-half of the property which shall be given to her heirs, respectively, provided each one is given some portion.</p> <p>2. Same—power of appointment construed as to division of property. A wife, given power of appointment by will to distribute one-half of certain property remaining at her death to the heirs of the testator, equally, and one-half to her own heirs “in such manner as she may decide,” is not bound to give to her own heirs equal shares by reason of a further provision that one of them, named, shall, in addition to a certain specific legacy, “share equally with the heirs in the whole estate,” the meaning being that the designated heir must be given at least as.much as any of the others.</p> <p>3. Same—doctrine of illusory appointment does not obtain in Illinois. The doctrine of illusory appointment, under which a court of equity might grant relief where one or more members of a class were given a mere nominal share of an estate by the exercise of a power of appointment, leaving the amount discretionary with the donee of the power but requiring each member of the class to receive something, does not obtain in Illinois.</p>

L. D. Puterbaugh, Judge, presiding. In 1889 Rouse, Hazard & Co., a corporation, engaged in the business of manufacturing bicycles in the city of Peoria. On August 3, 1895, S. B. Hazard and Harry Gr. Rouse owned the entire stock of the corporation.

Philip Stein, Judge, presiding. This is an action of trespass on the case by appellee, plaintiff below, against appellant, a corporation, defendant below, in the superior court of Cook county, to recover damages claimed by appellee for injuries sustained by him on September 15, 1899, while working for appellant in its chocolate factory in the city of Chicag'o. Appellee was injured b;r his fingers getting caught in the ■uncovered, revolving cog-wheels of a machine at and…

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

Auditor’s certificate of appeal to review decision of board of review of Montgomery county. • The board of review of Montgomery county assessed appellant, as guardian, the sum of $4330.00 on a total cash value of personal property; and appellant claims that said property was exempt from taxation for the year 1903.

<p>1. Street railways—party is liable for wanton injury to trespasser. A street car company is not bound to exercise toward a newsboy stealing a ride the care due to a passenger, but it is bound not to inflict wanton or willful injury upon him.</p> <p>2. Same—case must go to the jury if conflicting evidence tends to show wanton injury. Evidence that conductor in charge of defendant’s east-bound car by his «threatening attitude compelled a trespassing newsboy to jump from the rapidly moving car, in consequence of which he fell upon the track and was run over and killed by a west-bound car, requires the submission, of the case to the jury although the evidence is contradicted.</p> <p>3. Pleading—when an objection must be taken by special demurrer. An objection that a count in a declaration for negligence avers different sets of facts, either of which will justify a recovery, must be pointed out by special demurrer.</p> <p>4. Same—when charges in count for negligence are divisible. Where a single count charges that the conductor of defendant’s east-bound car wantonly compelled plaintiff’s intestate to jump from the moving car, causing him to fall in a helpless condition on the west-bound track, and that the motorman of the west-bound car wantonly ran over and killed-said intestate, the charges are divisible, and in the absence of demurrer, proof of the former charge will warrant a recovery, even though the motorman west-bound was without fault.-</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. Philip Stein, Judge, presiding.</p>

L. Honoke, Judge, presiding. This was a bill in chahcery filed by the appellant, a resident and tax-payer of the city of Chicago, in the circuit court of Cook county, against the city of Chicago, its mayor, Carter H. Harrison, and Lawrence E. McCann, its comptroller, to enjoin the issue and sale of $4,000,000 twenty-year three and one-half per cent bonds of the city about to be issued and sold, the proceeds arising from the sale of which were to be used in paying an equal…

Axel Chytraus, Judge, presiding. This is a bill-in chancery, filed on January 23, 1903, in the superior court of Cook county by the Continental Insurance Company against Henry Yates, as insurance superintendent of Illinois, which, as originally filed and as amended, prayed that said Yates should be enjoined from setting out by letter, or otherwise causing to be published, any statement derogatory to the interests of complainant, and denying that complainant is licensed by…

R. D. W. Holder, Judge, presiding. This is an action of ejectment, begun on August 24, 1903, in the circuit court of Randolph county by the appellant against the appellee. The trial, which was before the court without a jury, resulted in a judgment entered on September 24,1903, in favor of the defendant below, appellee here, and against plaintiff below, appellant here, for costs of suit. The present appeal is prosecuted from the judgment so entered.

<p>1. Elections—/urisdietion on contest is limited to the question of who was elected. The jurisdiction of the court in an election contest is limited to the question who was elected, and questions as to the regularity of respondent’s nomination and his eligibility to office cannot be considered.</p> <p>2. Same—eligibility to an office must be questioned by quo warranto. Whether a party elected to office possesses the required qualifications for eligibility can only be determined by an information in the nature of quo warranto.</p> <p>3. Same—rule as to validity of nominations. Under section 10 of the Ballot act, certificates of nomination and nomination papers are deemed valid unless objected to, and in case of objection the decision of the board of town auditors, or board of election commissioners, where such board exists is final.</p> <p>4. Practice—party not entitled to amendment regardless of what it is to be. A party is not entitled, as of right, to have leave to amend a pléading regardless of what the amendment is to be, and there is no presumption that a proposed amendment will be a proper one.</p> <p>5. Same—when it is not error to refuse leave to amend. It is not error to refuse to allow leave to amend a pleading where the proposed amendment is. not presented and where there is no means of determining whether the amendment will be proper.</p>

<p>1. Appeals and errors—effect where the Appellate Court recites the facts in its judgment. Where the Appellate Court recites the ultimate facts in its judgment reversing a judgment in a suit at law without remanding the cause because it finds the facts different from those found by the trial court, the only question for the Supreme Court is whether the facts found by the Appellate Court will support its judgment.</p> <p>2. Same—when appellant cannot complain of evidence. Plaintiff in an insurance case cannot complain that the court considered a certain exhibit as a part of the insurance contract, where no exception was taken to the proposition of law holding it to be such.</p>

<p>1. Trusts—when trust created by will is active. A will requiring the trustee named therein to sell and convey all real estate and reinvest the proceeds according to his judgment, hold, manage, lease, care for and invest and re-invest the trust estate as he sees fit, for a period of five years, paying the net income to the beneficiaries after two years and transferring the property to the beneficiaries at the end of the five years, creates an active trust.</p> <p>2. Same—when trust is not void for uncertainty of its objects. A trust created by will is not void for the uncertainty of its objects, where it is clear that the first objects of the bounty of the testator are her children and the second objects the issue of such children as died before the expiration of the trust period, the main purpose being to preclude the husbands or wives of her children from participation in the estate.</p> <p>3. Wills—where two clauses of a will are repugnant the later one pre-' vails. Where two clauses of a will are so repugnant that one of them must fall, the later clause, being the last expression of the intention of the testator, must prevail.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. Holland A. Russell, Judge, presiding.</p> <p>Williston Pish, arid Louis Boisot, (John A. Rose, of counsel,) for appellant.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. L. D. Püterbaugh, Judge, presiding.</p> <p>“Mrs. .Emelia Bontjes, a widow, bought a half lot, fifty feet wide and three hundred and twenty-three feet deep, upon a bluff in a residence district in the city of Peoria, at a cost of over $5000, and in 1894 built thereon a dwelling house,, which she has ever since occupied as her home. She also built a barn. She expended about $13,000 in improvements. Her family consists of herself, her daughter, her daughter’s husband and their little child. When she bought this tract and built her house thereon, the lot next east, one hundred feet wide, had upon it a brick house, designed for and occupied by a private family. Its main rooms and most of its windows faced west. Mrs. Bontjes built her house with the rooms and windows mainly on the east side. Thus the living apartments and most of the windows of the two houses face each other. There is a space of thirty or thirty-five feet between the two houses, two or three feet of which is owned by Mrs. Bontjes and the. rest is part of the lot on which the brick house stands. Next to the brick house is a walk by which to pass between the front and rear of those premises, and between that walk and Mrs. Bontjes’ lot line is a driveway for teams and carriages, used in connection with the brick house and the only means of access to the brick house for conveyances. The front of each lot is occupied by a terraced slope to" the street, which is nearly one hundred feet below. In October, 1898, a corporation was organized under the laws of this State, named ‘The Deaconess Home and Hospital of the Central Illinois Conference,’ having its office and principal place of business at Peoria. Its purpose was declared to be ‘to establish and maintain a Deaconess home and hospital in co-operation with the Methodist Episcopal Deaconess Society,’ and ‘to provide for and carry on all the varied religious, educational, humane and philanthropic work which may properly come within the province of such an organization, in accordance with the discipline of the Methodist Episcopal Church of the United States. ’ In November, 1898, the society purchased the brick residence and the lot on which it stood, for §12,000, and established there a Deaconess home. In the spring of 1900 it made some changes in the interior of the. building, and on May 24, 1900, it opened there a hospital for the care and treatment of the sick and injured, which it has ever since maintained. On November 1, 1900, Mrs. Bontjes filed a bill in the court below to enjoin the Deaconess Home from further carrying on and operating said home and hospital. The facts which she claimed entitled her to that relief are set out at length in the bill. The defendant answered, admitting some allegations and denying others. The cause was referred to a master to take and report proofs, with his conclusions of law and fact. The proofs were taken from January to May, 1901. The master’s report was in favor of complainant. Defendant filed objections thereto, which the master overruled. The report was filed in court, and defendant filed exceptions thereto. The court did not act directly upon these exceptions, but entered a decree finding the facts in detail, ending with the conclusion that defendant’s hospital is a private nuisance and ought to be abated; that the equities are with the complainant, and she has no adequate remedy at law. It was decreed that defendant be permanently restrained from carrying on or operating a hospital in the building on defendant’s said premises ‘during the continuance of the relative proximity of the complainant’s said residence and the building of defendant heretofore used on its said lot as a hospital, and of the present internal and external construction of defendant’s said building.’ This is an appeal by defendant from said decree.</p> <p>“Prom the time the hospital was opened till the testimony was closed, the hospital had been run at substantially its full capacity. During- the first ten months it bad one hundred and fifty to one hundred and sixty patients. The barn back of the brick house was made an annex to the hospital to increase its capacity. Prom complainant’s living rooms, up-stairs and down, the operations of the hospital were often visible day and night. What was said in the operating room during an operation in summer time, when the windows were necessarily open, was often heard in the bed-rooms in complainant’s house. The inmates of complainant’s house, looking from its rooms, saw patients in the hospital entirely nude and others partially disrobed while surgical and other operations were being performed upon them. They saw surgical instruments, naked human limbs held aloft and a fountain syringe used upon patients. They saw the bedding changed under patients too ill to be removed from the bed. They heard moans and groans, and paticnts crying and vomiting. When surgical operations took place at night they were performed under a bunch of six electric lig'hts, which made complainant’s rooms opposite light enough to read by, unless the reflection was excluded by keeping the shades down, which was not practicable in warm weather, when ventilation made it necessary to keep complainant’s windows open. Soiled and bloody bandages and other unsightly articles from the sick room were deposited in a receptacle in the back .yard and afterwards taken out by a scavenger in such- a way as to make the sight offensive. Whenever a patient died or recovered, the mattress, quilts and sheets, and the rubber cloth used on the patient’s bed, were ventilated in the back yard near complainant’s yard and in full view. As defendant’s barn or annex was only fifty feet from the hospital proper, the space for such ventilation was limited. This 'airing of bedding was of daily occurrence. The odor of iodoform and other drugs from the hospital pervaded complainant’s house, passing through the open windows in the summer time and through the cold air duct in the winter, this effect being afterwards obviated for the winter by taking in the cold air for the furnace from a different side of the house. Ambulances conveying sick patients or persons injured in accidents came in over the driveway at all hours of the day and night, passing close to complainant’s living rooms and bed-rooms. Physicians were daily driving in over that driveway, hitching their horses there, and frequently driving away late at night or in the early hours of the morning, after attending patients and performing surgical operations. If it was warm weather, complainant’s windows were necessarily open, and also the hospital windows, and the sounds connected with the receipt and handling of persons seriously hurt or very ill, both outside and also inside the hospital, would very often be heard in complainant’s house. From time to time coffins were brought to the hospital and afterwards removed with dead bodies in. them. This was generally done at night, in which case complainant and her family were usually awakened by the noises and aware of the cause. It has, however, been done several times during the meal time, and the ambulance would be but a few feet from complainant’s dining room. Sometimes the dead patient was not removed in a coffin, but on a litter, the form showing through a cloth laid over the body. Patients who had sufficiently recovered to take exercise were caused to walk back and forth between the houses, attended and supported by a nurse. In such cases sometimes the patient was wrapped in a blanket or the head was bandaged. In very warm weather patients were brought out and placed on the front porch or in the front yard, and placed in easy chairs and hammocks. The nurses fanned the patients and administered medicines to them, and took their temperature, in the front yard. Women about to be confined, and who had come to the hospital for confinement, sat upon the front porch in hot weather, clad in loose garments. These uses by defendant of its front yard and porch precluded complainant and her family from using her adjoining front yard and porch, and especially were they debarred from entertaining their guests and callers upon her front yard and porch. We have not stated all the offensive details given in complainant’s proof, but only an outline thereof. Defendant’s proof did not overcome the case thus made. Two persons who have at different times acted as superintendent of the hospital testified they were unable to see how some of those things could have occurred and that some others must have arisen from disobedience of rules by attendants, and officers of defendant expressed their desire to do what they reasonably could to avoid giving offense, but no substantial attempt was made to deny the main specific facts detailed in complainant’s proof. The events and incidents we have referred to greatly disturbed the comfort and nerves and sleep of the inmates of complainant’s home, and she and her family were greatly annoyed and distressed in mind. Complainant was deprived of the ordinary use and enjoyment of her property. In the main these sights and sounds and smells were not abnormal, but were the usual and necessary accompaniments of a busy hospital, conducted with a view to the proper treatment of persons who are in great pain and distress.”</p> <p>The foregoing statement of the facts of this case appears in the opinion of the Appellate Court herein, and such statement has been adopted by ns.</p> <p>It further appears that typhoid fever and erysipelas were treated at this hospital, and the medical evidence was to the effect that these diseases were contagious and might be contracted in the Bontjes residence when the windows of the hospital were open and the wind was blowing from that direction. It further appears that both appellee and her daughter were made sick and nervous by the sights, sounds, odors and influences to which they were subjected by this institution; that neither was able to regain her health at home, but both were obliged to go elsewhere for several weeks to recover.</p> <p>The Appellate Court affirmed the decree rendered on the circuit, and the case comes to this court by a further appeal.</p>

<p>1. Appeals and errors—whether freehold is involved on bill to remove cloud depends upon nature of cloud. Whether a freehold is involved on a bill to remove a cloud upon title to real estate depends upon the nature of the alleged cloud.</p> <p>2. Bamm—freehold not involved on bill to cancel conditional contract to convey. A freehold is not involved on a bill to cancel an executory or conditional contract to convey land, even though the defendants claim they have performed the contract up to the time of the filing of the bill but do not seek any conveyance nor ask any relief.</p>

F. D. Shamhart, Judge, presiding. The appellant company owns 'and operates its railway through the townships of Hunt City, Willow Hill, St. Marie, Fox, and the village of Hunt City in Jasper county, which property was duly assessed for taxation ■ for the year 1902 by the State Board of Equalization, and taxes were extended thereon by the county clerk of Jasper county according to the several certificates of levy for taxes, filed with him for the year 1902.

<p>1. Master and servant—when master is liable for injury to servant who obeyed command. Where the servant is ordered by the master to work in a place known by both of them to be in a degree dangerous, the master will be liable for a resulting injury to the servant, unless the danger was so great that an ordinarily prudent person would have refused to obey the order, which is a question for the jury under the evidence.</p> <p>2. Variance—objection of variance cannot be first raised on appeal. An objection of a variance between the declaration and the proof cannot be raised for the first time on appeal.</p>

Writ op Error to the Circuit Court of Hamilton county; the Hon. P. A. Pearce, Judge, presiding. This litigation includes three separate and independent proceedings.

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. M. W. Schaefer, Judge, presiding.</p> <p>This is an action, brought by appellee against the appellant company to recover damages for the death of appellee’s intestate, Robert Bowen, which occurred while said Bowen was at work for the appellant company in its coal mine, known as the “Richland mine,” on the Illinois Central railroad between the city of Belle-ville and the village of Freeburg in St. Clair county. The trial was before the court and a jury, resulting in a verdict in favor of appellee, as administrator, for $3000.00. Motion for new' trial was overruled, and judgment was rendered upon the verdict. An appeal was taken to the Appellate Court, where the judgment has been affirmed. The present appeal is prosecuted from such judgment of affirmance.</p> <p>The second amended declaration consisted of four counts. The third and fourth counts were taken from the jury by the court, and the cause was submitted on the first and second counts, to which the general issue of not guilty was pleaded. The first and second counts, are substantially the same, and, as is ,said by the Appellate Court, “charge the appellant with negligence in the act of its manager or foreman in permitting a loaded coal box or car to be and to remain on the tramway or track in appellant’s coal mine, whereby a collision occurred with certain other cars, driven by appellee’s intestate, causing his death.”</p> <p>The facts, as stated by the Appellate Court in their opinion deciding this case, are substantially as follows:</p> <p>“Through an entry leading from the bottom of the shaft to the working rooms, a distance of eleven hundred feet, was a track or tramway, over which ran the .cars, used in moving the coal taken from the mine. Near the working rooms is a switch, called a ‘parting, ’ connecting the room tracks with the main or entry track. Mules were used in moving the cars. Robert Bowen, the deceased, was an entry driver, whose duty it was to haul the cars between the switch and the bottom of the shaft. The room drivers brought the loaded cars from the rooms to the switch. Peter Zink was pit-boss and mine manager. Proof is made that, on the day of the injury, Zink, the manager, came to the switch where the trains or loads were made up for conveyance to the bottom of the shaft, complained that the coal was not moving fast enough, hitched a mule to a load of four cars, and started down the entry for the shaft. From the switch there is a sharp decline in the entry track for a distance of seventy-five or one hundred feet, and, in going down, it is necessary to ‘sprag’ the wheels, in order to control the speed of the cars. ■ Near the foot, and beyond this steeper grade, the track is depressed or sunken three or four inches. This is called the ‘swag. ’ When Zink with his load reached the swag and had removed the sprags, as the evidence tends to prove, he called out, ‘All right, come ahead,’ and moved on. Bowen, who was waiting at the switch, immediately started with his load, and at the swag collided with a car, left there by Zink, and received the injuries from which he died.”</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding.</p> <p>This is an appeal from the judgment of the Appellate Court for the First District affirming the decree of the circuit court of Cook county rendered upon a bill filed in that court by Mathias Schmitz against Joseph H. Ernst and Andrew J. Ernst, administrator of the estate of Adolph C. Ernst, deceased, for the dissolution of the partnership, which had existed for many years prior to the filing of the bill, between said Mathias Schmitz and Joseph H. and Adolph C. Ernst in the real estate and loan business in the city of Chicago, and for an accounting. Answers and replications were filed, and Joseph H. Ernst filed a cross-bill. The case was referred to a master in chancery to take proofs and report his conclusions as to the law and the facts. Subsequent to the filing of the bill Mathias Schmitz died, and his executor, Nicholas J. Schmitz, was substituted as complainant. Joseph H. Ernst has also died, and his executrix, Katharina S. Ernst, has been substituted as defendant. The firm was organized in the year 1872. Adolph C. Ernst became a mem ber thereof in 1890 and it continued in active business until 1899. The master reported that Joseph H. Ernst was indebted to Mathias Schmitz in the sum of $2685.08 and Andrew J. Ernst was indebted to Mathias Schmitz in the sum of $1556.94, and it was decreed that said sums be paid to Nicholas J. Schmitz, as executor of Mathias Schmitz, deceased, by their respective personal representatives in the due course of administration. Katharina S. Ernst, as executrix, alone prosecuted an appeal.</p>

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

<p>Appeal from the Circuit Court of Knox county; the Hon. G. W. Thompson, 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 Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.

<p>1. Constitutional law—privilege of contracting is both a liberty and a property right. Employer and employee may agree that the labor of the latter may be paid for with the property of the former, or the laborer may agree to work in payment of a pre-existing debt, and in either case the rights of the parties are free from interference by the legislature.</p> <p>2. Same—legislature cannot prohibit parties from making lawful contracts. The legislature has no power to provide that one possessed of property may not sell it to another and agree with the purchaser that the latter shall work in payment.</p> <p>3. Same—when law is void for unjust discrimination. The exclusion of farmers from the operation of an act prohibiting employers from setting off debts of employees against claims for wages creates an unjust discrimination, which invalidates the act.</p> <p>4. Same—act of 1891, concerning wages of miners, is unconstitutional. The act of 1891, (Laws of 1891, p. 212,) prohibiting persons or corporations engaged in mining or manufacture from setting off debts of employees, for goods purchased from the employer, against claims for wages by such employees, is unconstitutional.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Warren county; the Hon. John A. Gray, Judge, presiding.</p>

<p>1. Appeals and errors—statutory conditions.for appeal must be complied with. The right of appeal is conferred by statute, and can only be exercised by complying with the statutory conditions.</p> <p>2. Same—time fixed by trial court for filing bond does not extend statutory time for filing transcript. The fact that the time fixed by the trial court for filing the appeal bond and bill of exceptions extends beyond the second day of the succeeding term of the Appellate Court does not extend the time fixed by section 72 of the Practice act for filing the transcript.</p> <p>3. Same—section 72 of Practice act controls time for filing transcript. If twenty days intervene between the last day of the term of the trial court and the sitting of the court to which an appeal is taken, the transcript must be filed on or before the second day of the term, as required by section 72 of the Practice act, unless the appellate tribunal grants further time for good cause shown.</p>

R. S. Tuthill, Judge, presiding. This was a suit in assumpsit in the circuit court of Cook county by appellee, against appellant, which resulted in a verdict of $1420 for appellee, and judgment thereon for that amount. The judgment has been affirmed by the Appellate Court for the First District, and the case is now brought to this court by appeal.