Volume 208 — Illinois Reports

<p>Appeal from the County Court of Moultrie county; the Hon. E. D. Hutchinson, Judge, presiding.</p>

<p>1. Criminal law—what tends to show knowledge that the property was stolen. That one from whom the accused is charged with receiving stolen property had some $700 worth of jewelry, which he offered at much less than its value, and that the accused did not list the articles which he bought, in a book kept for the purpose, but at first denied the purchase to the police, is sufficient to go to the jury upon the question of his guilty knowledge.</p> <p>2. Same—what is sufficient proof of venue. It is sufficient proof of venue if the evidence, as a whole, leaves no reasonable doubt as to the act having been committed at the place laid in the indictment, even though no one testifies, in express words, where the offense was committed.</p>

<p>3. Variance—when question of variance is not raised. A motion to instruct the jury to find ior the defendant upon the ground of a variance between the pleadings and proof does not raise the question of variance for review, unless the defendant indicates specifically in what the variance consists.</p> <p>2. Evidence—testimony as to condition of broken bolts is not expert testimony. Testimony as to the appearance of broken bolts found in a piece of an exploded boiler and fire-box is not such evidence as calls for the qualification of the witnesses as experts.</p> <p>3. Same—what sufficient to go to .jury as to cause of a boiler explosion. Evidence that the broken parts of an exploded locomotive boiler and fire-box showed old breaks and that the crown-sheet was encrusted with hard mud and sediment, thus allowing the bolts to become so heated that'the threads “slipped,” is sufficient, though contradicted, to go to the jury upon the question of the cause of the explosion.</p>

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

Writ op Error to the Appellate Court for the Second-District;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaugh, Judge, presiding,

A. K. Vickers, Judge, presiding. This is a bill for partition, filed in the circuit court of Massac county on March 11, 1902, by the appellant against the appellees for the partition of a piece of land described in the bill as follows: “One-half of a tract or parcel of land, situated in the county of Massac and State of Illinois, in front of the town of Brooklyn and bounded as follows, viz.: Commencing at lot No. 1 and running to lot No. 30 in length, and commencing at low…

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of DeKalb county; the Hon. Henry B. Willis, Judge, presiding.

Jesse Holdom, Judge, presiding. This was a bill filed in the superior court of Cook county by the appellant, against the appellee, to restrain appellee from interfering with her possession of certain premises described in the bill, by writ of possession, forcible detainer or otherwise, and for other relief.

Axel Chateaus, Judge, presiding. This was a bill in chancery filed in the superior court of Cook county by Louis O. Kohtz, the executor and, trustee therein named, -to obtain a construction of the will of Theodore Harz, deceased.

<p>Appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaugh, Judge, presiding.</p>

<p>Appeals and errors—alleged error cannot be shown by affidavit in Supreme Court. Death of one of the complainants in a bill in chancery before the entry of the decree dismissing the bill, which fact is not shown by the record in that court, cannot be shown in the Supreme Court by affidavit as ground for reversal.</p>

<p>1. Wills—party not entitled to a ¡jury in a proceeding to probate will. Whether an instrument in writing is entitled to probate as a will is a question for the determination of the court without a jury, both in the county or probate court and on appeal to circuit court.</p> <p>2. Same—party desiring jury trial should file bill to contest will. One desiring to broaden the inquiry necessary in a proceeding to probate a will and have a jury trial upon the question of the testator’s testamentary capacity should resort to a bill in chancery to contest the will.</p> <p>3. Trial by jury—purpose of constitutional guaranty of trial by jury. The constitutional provision that the right of trial by jury “as heretofore enjoyed” shall remain inviolate, was designed to secure the right as it had theretofore been enjoyed in tribunals which exercised common law jurisdiction, and was not intended to confer such right in cases where it had not formerly existed.</p>

<p>Witnesses—/acts showing that witness is a partisan may be proven. That an expert witness receives additional compensation and frequently testifies in damage cases for the defendant street railway company may be shown, as bearing upon the question of the weight and value of his testimony.</p>

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. George W. Brown, Judge, presiding.

<p>1 • Practice—correct practice where abstract of record is incomplete. If the abstract of record filed in the Appellate Court in a divorce case by the husband is incomplete, the appellee should be allowed to file an additional abstract at cost of appellant, and if appellee is financially unable "to do so, appellant should be ruled to furnish a complete abstract or supply appellee with funds required.</p> <p>2. Divor'ce—alimony and solicitor's fees rest in sound discretion of the court. The allowance of alimony and solicitor’s fees in a divorce case rests in the discretion of the court, in view of the evidence, the relation of the parties and their condition in life, and the Supreme Court will not interfere unless such discretion is abused.</p>

H. B. Willis, Judge, presiding. This is a condemnation proceeding, begun in the circuit court of Kane county on July 1, 1903, by the filing of a petition by the appellant company against appellees to condemn, under the statute in regard to eminent domain, a strip of land of a uniform width of one hundred feet across the farm of appellee, Fred J. Humiston, to be used by the appellant for right of way purposes.

<p>1. Evidence—what not conclusive evidence of delivery of deed. That the testimony of the only eye-witness to the alleged delivery of a deed is not contradicted by direct testimony does not conclusively establish such delivery, when the statements of the witness are shown to be inconsistent, and where the weight of evidence tends to show the grantee never saw the deed until after the grantor’s death, when she found it and had her name written in a blank space.</p> <p>2. Appeals and errors—chancellor’s opportunity to observe witnesses has weight in sustaining his findings. The chancellor’s opportunity to observe witnesses when testifying in open court is entitled to be given due weight and consideration by the Supreme Court when reviewing his findings, which must stand, in such case, unless clearly against the weight of the evidence.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Bureau county; the Hon. George W. Brown, Judge, presiding.</p>

<p>Special assessments—what renders ordinance void. Failure' of the hoard of local improvements to include in the record of its first resolution for the improvement the itemized estimate of cost presented to the board by the engineer, renders the ordinance, based on such resolution, void.</p>

Elbridge Hanecy, Judge, presiding. It appears from the record that on December 1, 1894, Joseph Salomon was appointed by the probate court of Cook county administrator to collect of the estate of George Wincox, deceased; 'that on February 11, 1897, Jesse Holdom was appointed by said probate court administrator of said estate; that on March 4,1897, Salomon filed his account as administrator to collect in said court, showing receipts $29,857.02, disbursements $5030.65, balance…

P. Bookwalteb, Judge, presiding. This suit was brought to the January term, 1901, of the circuit court of Vermilion county, and resulted in a verdict for $4144.50 in favor of the plaintiff, Pagner, and after a remittitur of $373.80 had been entered and a motion for a new trial overruled, judgment was entered against appellant, Watson, for $3770.70.

<p>This case is controlled by the decision in McDonald v. Holdom, (ante, p. 128.)</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. Jonas Hutchinson, Judge, presiding.</p>

Clair county; the Hon. M. W. Schaefer, Judge, presiding'. Appellee, on the morning of December 15, 1901, at about 4:20 o’clock, was injured while performing his duties in the switch yards of appellant at Venice, Illinois, by one of appellant’s cars. The car passed over his leg, necessitating- its amputation below the knee. Appellee broug'ht an action on the case in the circuit court of St. Clair county, and was by the verdict of a jury awarded $11,000 damages.

<p>1. Appeals and errors—/acis recited in Appellate Court's judgment are conclusive. The ultimate facts recited in the judgment of the Appellate Court reversing a judgment at law without remanding are conclusive upon the Supreme Court, although the facts (except the question whether the plaintiff suffered damage and the extent thereof) are covered by a stipulation between the parties.</p> <p>2. Same—when finding of, Appellate Court is conclusive against recovery. A finding in the judgment of the Appellate Court that the plaintiff suffered no damage by interference with his ingress to or egress from his premises from the construction of an additional railroad track by the defendant is conclusive against his right of recovery, where such interference was the only damage which the evidence tended to support, and where the facts recited by the Appellate Court are sufficient to sustain its judgment.</p>

<p>1. Principal and agent—general rule as to ratification. One may ratify an act done by another if he could himself have done the same thing in the first instance.</p> <p>2. Same—legal effect of all facts need not be understood to make ratification binding. While a person is entitled to know all the material facts.before he will be bound by ratifying the act of an agent, yet it is not essential that the legal effect of the transaction, and particularly of other transactions ancillary thereto, be explained to him by the parties claiming the benefit of the ratification.</p> <p>3. Insurance—insured may ratify the agent’s transfer of insurance. Where an agent employed to procure fire insurance receives notice from one of the companies carrying the risk to cancel its policy, and without notice to the insured transfers the insurance to another company, if the insured, after the loss and being informed of the facts, elects to accept the new policy and surrenders the old one he cannot hold the former company liable, even though the other companies, in adjusting the loss, treated the former policy as subsisting in figuring the total insurance.</p>

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

J. B. Vaughn, Judge, presiding. An election was held on April 21,1908, and the appellant, upon the canvass of the vote by the city council, was held to have been duly elected mayor of the city of Alton, and qualified as such. The appellee, who had been mayor for the preceding term, was a candidate for reelection, and upon the appellant being sworn into office filed his petition in the city court of the city of Alton to contest the election of the appellant.

<p>. Special assessments—when court should refuse to enforce an ordinance. A paving ordinance which, if enforced as adopted, will impose a double burden of taxation as to street intersections provided for in former ordinánces under which the .work is proceeding, is oppressive, and the court has no power to hold it inoperative as to such street intersections and enforce it as to the remainder of the improvement. (Noonan v. People, 183 Ill. 52, distinguished.)</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.

<p>1. Fellow-servants—plaintiff must allege and prove that relation of fellow-servants does not exist. In an action by a servant against the master for an injury alleged to have occurred through the negligence of another servant, the plaintiff must allege and prove that the relation between him and such servant was such as to render the master liable for the latter’s negligence. (Chicago and Alton Railroad Co. v. House, 172 Ill. 601, and Hartley v. Chicago and Alton Railroad Co. 197 id. 440, explained.)</p> <p>2. Same—when question should be submitted to the jury. If there is any evidence tending to prove the required averment that plaintiff and the servant whose alleged negligence caused the injury were not fellow-servants, that issue must be submitted to the jury.</p> <p>3. Same—when question of fellow-servants is one of law. If there is no controversy about the facts, which are such.that a verdict finding that the parties were not fellow-servants would not be sustained by the evidence, the question whether such relation exists is one' of law for the court, and should not be submitted to the jury.</p> <p>4. Same—general test as to fellow-servants stated. Servants of a common master are fellow-servants where they are co-operating, at the time of the injury, in the particular business in hand, or their usual duties are of a nature to bring them into habitual association, or into such relations that they can exercise an influence upon each other promotive of proper caution.</p> <p>5. Same—persona? acquaintance or previous personal association is not the test as to fellow-servants. The rule as to relation of fellow-servants does not rest, in any degree, upon personal acquaintance or previous actual association between the servants, but upon the relation of their duties to each other and the respective positions they hold.</p> <p>6. Same—rule as to particular business in hand must be given reasonable interpretation. The first branch of the fellow-servant rule respecting co-operation in the particular work on hand must be given a reasonable interpretation, and is not restricted, on the one hand, to identical work, nor, on the other, does it embrace the general business of the master.</p> <p>7. Same—servants on separate cable trains are not necessarily co-operating in particular business. A gripman and conductor on the same cable train are directly co-operating in the particular business in hand, but they are not necessarily co-operating, in the particular business, with the gripmen and conductors on other cable trains which may be following them.</p> <p>8. Same—when gripman and conductors on separate cable trains are fellow-servants. Gripmen and conductors whose duties are to run their trains in such a manner as not'to injure those in charge of trains next preceding or following them, and having power and opportunity to exert the influence required, are fellow-servants with other men in the service running such preceding or following trains, within the second branch of the fellow-servant rule.</p>

<p>1. Taxes—it is the duty of board of review to cause assessment books to be changed. Under the statute, where the board of review makes a change in an assessment it is its duty to cause the assessment books to be changed to correspond with its action and show the record thereof.</p> <p>2. Same—it is presumed the board of review caused assessment books to be changed. It will be presumed that the board of review caused the assessment books to be changed to correspond with its action 'in changing an assessment, in the absence of anything showing the contrary.</p> <p>3. Same—the board of review cannot arbitrarily fix assessment. The board of review cannot*arbitrarily fix an assessment, but must, in case an assessment is increased, cause the assessment books to show the reason for such increase, either by the re-valuation of scheduled articles, or by listing, classifying and valuing property claimed to be owned by the tax-payer but omitted from schedule.</p> <p>4. Same—valuation of property cannot be reviewed by the courts. The valuation fixed by the board of review upon property cannot be reviewed by the courts upon the ground that it is excessive, in the absence of fraud or want of jurisdiction.</p> <p>5. Same—equity may review decision of the board of reviere in assessing omitted property. A court of equity may review the decision of the board of review in assessing omitted property, provided the complain ant produces the record of the board showing that the increase in his assessment was in fact caused by the assessment of property claimed to be owned by him but omitted from his schedule.</p> <p>6. Same—tax-payer must produce record of board of review. A taxpayer cannot enjoin the collection of a tax upon an assessment increased by the board of review by merely denying that he possesses any property other than that which he has listed, but must produce the record of the board of review, from which its action must be determined.</p> <p>7. Same—effect where board does not ehter its-decision on assessment boolcs. If the assessment books fail to show the action of the board of review, or if, in case of the assessment of omitted property, the kind and class of such property are not shown on the books, the assessment is invalid unless such omission is in some way cured.</p>

that court on appeal from the Circuit Court of Cook county; the Hon. H. B. Willis, Judge, presiding. This is an appeal from an affirmance by the Appellate Court of the judgment of the circuit court of Cook county in a suit by appellee to recover the balance due on a contract of sale of a quantity of iron pipe by appellee. to appellants. August 13, 1896, the Telluride Power Transmission Company contracted with one T. B. Rhodes for the erection of a flume and pipe line.

<p>Appeals and errors—when an alleged error cannot be considered. Alleged error in a foreclosure decree.in allowing the deficiency, if any, after sale, as a seventh-class claim against the estates of the makers of the note and trust deed, cannot be considered on appeal, where no sale had been had when the appeal was taken, the existence of a deficiency, and its amount, being then undetermined.</p>

<p>Appeals and errors—party cannot malee one case in her bill and another on writ of error. A plaintiff in a chancery suit cannot make one case by her bill in the lower court, and, having failed there, urge a different one on writ of error.</p>

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

<p>1. Pledge—holder of collateral may purchase same without breach of trust. The holder of stock pledged as collateral security for a note may purchase'the stock from the pledger without any violation of his duty, or he may agree with the pledgor to take the stock in satisfaction of the note.</p> <p>2. Sales—when failure to read the bill of sale is not ground for relief. Failure of the vendor to read a bill of sale is not ground for rescission, where he knew and fully understood the contents of the bill and was not deceived in any manner with respect thereto.</p>

Russell P. Goodwin, Judge, presiding. This is a proceeding commenced by the appellant in the superior court of Cook county under an ordinance passed by the city council of the city of Chicago on April 2, 1902, for the opening of Lake View avenue from St. James place to Roslyn place, in the city of Chicago.

M. F. Tulev, Judge, ■ presiding. On February 26, 1892, Joseph Charboneau exhibited his bill in the circuit court of Cook county against the appellant the Chicago Trust and Savings Bank, Daniel H. Tolman and the Midland Company for injunction and relief. By a supplemental bill the appellants Cornelia T. Williams and Delmon W. Horton were made defendants.

Philip Stein, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment for $2500 entered upon a verdict rendered by a jury in the superior court of Cook county against appellant, in an action on the case prosecuted- to recover damages on account of the death of John White.

O. H. Horton, Judge, presiding. This was an action of forcible detainer, commenced on July 30, 1901, by appellees, partners, kno.wn as Mark Manufacturing Company, against appellant, the Schumann Piano Company, a corporation, before a justice of the peace in Cook county,’ to recover possession of the first, fourth and fifth floors of a building known as Nos. 123 and 125 LaSalle avenue, in the city of Chicago.

George W. Thompson, Judge, presiding. On November 30,1901, a bill for an injunction was filed by Edward White and others, appellees, against appellants, in the circuit court of Fulton county. The court permitted the complainants to amend their bill, and, as amended, a demurrer was interposed by appellants, which was overruled. A decree pro confesso was entered, and an injunction was awarded in accordance with the prayer of the bill.

John L. Healy, Judge, presiding. Appellant filed his bill in the circuit court of Cook county to contest the will of Margaret'Jane Spence. Said testatrix and the appellant were brother and sister and jointly owned five hundred and ninety-one acres of land in Iroquois county, which they had farmed in partnership for many years.

Farlin Q. Ball, Judge, presiding. Appellant, Barney Graff, in July, 1901, was jointly indicted with Ben Ettelson, Dave Ettelson, Fred Alexander and George Saméis,, charged with a conspiracy to obtain money from the Buffalo German Insurance Company, and the Rochester German Insurance Company of Rochester, 2ST. Y., by false pretenses, with intent to cheat and defraud said companies.

<p>1. Actions and defenses—suit to enjoin State officials from misuse of public funds is not an action against the State. In equity the money in the State treasury belongs to the people, and a suit by a taxpayer to enjoin misappropriation by State officials of such money is not a suit against the State.</p> <p>2. Injunction—public officials may be enjoined from devoting public funds to purpose not authorized by law. Public officials charged by law with the duty of making certificates or warrants authorizing payment of money from the State treasury may be restrained from issuing such certificates or warrants for purposes not authorized by law, and the State Treasurer may be enjoined from paying them.</p> <p>3. Same—payment of money in pursuance of an unconstitutional law is not “authorized by law.” An appropriation of public funds in pursuance of an unconstitutional statute is not authorized by law and may be restrained by injunction.</p> <p>4. Constitutional law—when practical construction by other departments of government will not control. The meaning of a constitutional provision is to be ascertained primarily from the language employed, and it is only when ambiguity is found and the meaning is doubtful that the extrinsic aid of practical construction given by other departments of the government will be resorted to.</p> <p>5. Same—when acts of legislative and executive departments are not entitled to great weight as practical aids in construction. Acts of the legislative and executive departments are not entitled to great weight as aids to construction of a provision of the constitution, where the acts of the same departments, nearer in point of time to the adoption of the constitution, present an opposite construction.</p> <p>6. Same—proviso is considered in construing constitutional provision. In construing a constitutional provision containing a proviso both the body of the provision and the proviso must be considered, since a proviso may qualify the body of the provision although it cannot enlarge the scope or force thereof.</p> <p>7. Same—constitutional provision prohibiting appropriations in aid of canals construed. Separate section 3 of the constitution, relating to the control and management of the Illinois and Michigan canal and prohibiting appropriations in aid of railroads or canals, etc., prohibits an appropriation by the legislature in aid of the Illinois and Michigan canal, and limits the power of the legislature, in the matter of such aid, to directing the use of the surplus earnings of the canal for its enlargement or extension. (Hanr, C. J., and Wilkin, J., dissenting.)</p> <p>8. Same—when question that constitutional provision impairs contract cannot he raised. The question that a provision of the State constitution impairs the obligation of contract between the United States and the State cannot be raised in a suit by a tax-payer to enjoin State officials from disbursing State funds in pursuance of a statute which violates such constitutional provision.</p>

<p>1. Special assessments—what does not invalidate acts of superintendent of special assessments. Where the report, certificate and affidavit of the superintendent of special assessments show that he acted in his proper official capacity, .the assessment is not invalidated by reason of a superfluous order of the court appointing him superintendent of special assessments in the particular proceeding.</p> <p>2. Same—limits of improvement district is a legislative question. The limits of a district embracing the improvement to be built by special assessment rest in the discretion of the city, and the courts will interfere only to correct a clear abuse of such discretion.</p> <p>3. Same—when assessment is not void as for a double improvement. A special assessment for the construction of cement sidewalks on a system of streets is not invalid as for a double improvement, where there is nothing in the record to show an abuse of the city’s discretion in creating the improvement district, nor that the streets named are so separate that sidewalks upon one do not benefit property upon others. (People v. Latham, 203 Ill. 9, distinguished.)</p>

<p>Taxes—taxable situs of credits is at owner's residence. Credits, stocks and bonds, which in law accompany the person of their owner, have their taxable situs where he resides in this State, although they, are in the hands of non-resident agents but not for the transaction of the owner’s business, of which they constitute the subject matter or stock in trade.</p>

Jesse Holdom, Judge, presiding. This is a bill of interpleader filed in the superior court of Cook county by the Illinois Trust and Saving's Bank against Lewis H. Davis, John Shepherd and John E. Shepherd, partners under the firm name of Davis & Shepherd, doing business in Chicago, and the Fidelity Fire Insurance Company of Baltimore, offering to bring into court the amount of a deposit in said bank of $12,-016.79 in the name of said insurance company, subject to the check…

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

<p>1. Drain AGm-rright of party to change natural water-course onhis own land. One may change the course of a natural water-course on his own land if he restores it to the original channel before it reaches the lands of another, provided such change does not cast upon the lands of an adjoining owner water not naturally flowing there.</p> <p>2. Injunction—when digging of drainage ditch will not be enjoined. A court of equity will not enjoin the construction of a ditch upon defendant’s own land where actual experience for many years, under practically the same conditions, has demonstrated there is no reasonable ground to fear complainant will suffer material injury.</p>

<p>1. Trust—the evidence must be clear to establish trust. Evidence to 'establish a trust must be clear and satisfactory, not only as to the existence of the trust, but also as to its terms and conditions.</p> <p>2. Same—what does not tend to establish trust. The purchase by a surety upon the bond of an insolvent guardian who had misappropriated his ward’s money, of judgments against such guardian in favor of third parties, is consistent with his right to protect his own interests as far as possible, and does not tend to show that the purchase was in trust, for the benefit of the guardian and minors.</p> <p>3. Same—chancellor’s finding not disturbed unless clearly against the evidence. The chancellor’s finding against the existence of a trust will not be disturbed, on appeal, unless clearly against the evidence, where such finding is based upon oral testimony given in open court.</p>

<p>1. Actions and defenses—nature of action at law not changed because prosecuted in form of claim against estate. A right of action at law against a person while living remains an action of the same nature, whether it is brought against the administrator or executor in the circuit court or filed in the county court as a claim against the estate.</p> <p>2. Courts—when presentation of a claim does not require exercise of equitable jurisdiction by county court. Presentation of a claim against the estate of a deceased agent does not require the exercise of equitable jurisdiction by the county court where no breach of trust is involved, the claim being a money demand based upon a single alleged mistake in the agent’s account, for which an action at law might have been maintained against the executor.</p> <p>3. Same—when the Supreme Court ca/ivnot review facts in proceeding against estate begun in county court. Section 89 of the Practice act precludes the Supreme Court from reviewing the facts, on appeal from the Appellate Court, in a proceeding against an estate begun in the county court, where the county court, in passing upon the claim, does not exercise its equitable powers.</p>

<p>1. Evidence—parly may put Ms hypothetical case as he claims it has been proven. A party seeking the opinion of an expert may, within reasonable limits, put his hypothetical case as he claims it has been proven and take the opinion of the witness thereon, leaving the jury to determine whether the case as put is the one proven.</p> <p>2. Same—the proper course where opposite party considers hypothetical question unfair. If a party considers that his opponent’s hypothetical question does not fairly cover the evidence, he may, on cross-examination, change the question so as to cover the facts which he believes are applicable to the case and shown by the evidence, and failing to do so he cannot complain of the question on appeal.</p> <p>3. Instructions—when instruction as to duty of a city in caring for sidewalks is not prejudicial. An instruction requiring a city to use reasonable care to keep its sidewalks in “good and reasonably safe condition” is not prejudicial because of the use of the word “good,” where several instructions for each party announce the correct rule, and where the city, in one of its own instructions, uses the words “sound and sufficient” with respect to the sidewalks.</p> <p>4. Same—refusal of correct instruction not applicable to the facts is not error. Refusal, in an action against a city for injury from'a defective sidewalk, of instructions requiring a person who knows of the unsafe condition of a sidewalk to exercise care and diligence is not error, where the plaintiff was a stranger in the city, had never been on the sidewalk before and did not know its condition.</p>

<p>1. Eminent domain—power of eminenfidomain can be exercised only as prescribed by the legislature. The power of eminent domain is incident to sovereignty and inherent in the State, and can be exercised only on the occasion, in the mode and by the agency prescribed by the legislature."</p> <p>2. Same—foreign corporation cannot exercise power of eminent domain except by consent of the legislature. The legislature may delegate the power of eminent domain to a foreign corporation, but the latter can exercise such power only when so delegated, notwithstanding its power in that respect granted by its charter.</p> <p>3. Same—acts authorizing condemnation must be strictly construed. The power of eminent domain is in derogation of common right, and all acts conferring such power must be strictly construed and the power denied unless clearly conferred both by the letter and the spirit of the act.</p> <p>4. Same—it is for the courts to say whether the statutory conditions for exercise of power exist. The question under what conditions the power of eminent domain may be exercised is purely legislative, but it is for the courts to decide, when called upon, whether the statutory conditions authorizing the exercise of such power exist.</p> <p>5. Railroads—act of 1899 is only authority for foreign corporations to condemn property. The act of 1899, (Laws of 1899, p. 116,) relating to the purchase by foreign corporations of railroad or toll bridges or railroads or parts of railroads in Illinois, is the only authority for the exercise of the power of eminent domain in Illinois.</p> <p>6. Same—act of 1899 construed. The act of 1899, (Laws of 3899, p. 116,) authorizing a foreign corporation to purchase a railroad ' in Illinois and to thereafter exercise the powers possessed by the company whose road was purchased, including the power of eminent domain, by its terms expressly forbids the purchase of any parallel or competing line.</p> <p>7. Same—when a foreign corporation cannot exercise power of eminent domain under act of1899. A foreign corporation cannot exercise the po wer of eminent domain in Illinois, under the act of 1899, by virtue of its purchase of a line of railroad in Illinois, where such line runs parallel to the line of the petitioner in another State, the two being separated only by the boundary river and running from connected points on opposite sides of the river.</p> <p>8. Same—-foreign corporation cannot claim power to condemn, regardless of legality of its purchase. Where, on motion to dismiss a petition by a foreign corporation to condemn land, the petitioner, in attempting to establish its right to exercise such power under the act of 1899, shows the purchase of a railroad which, by the express terms of the act, is prohibited, the petition must be dismissed, notwithstanding the legality of the petitioner’s purchase has not been questioned by the State on quo warranto. (Thomas v. St. Louis, Belleville and Southern Railway Co. 164 Ill. 634, distinguished.)</p>

<p>1. Master and servant—when ease should go to the jury. An action by a- servant for injuries should go to the jury where the evidence tends to prove that the master did not exercise ordinary care to provide the servant a reasonably safe place to work, and that the master had knowledge of the danger but that the servant did not know of the danger and had not equal means of knowledge with the master.</p> <p>2. Same—effect where servant has some "knowledge of danger. That a servant had some knowledge of the danger of obedience to the command of the foreman, who knew of the danger fully, does not defeat a recovery for injury received in carrying out the order, if he acted with the degree of care which an ordinarily prudent man would have exercised under the circumstances.</p> <p>3. Same—what equivalent to re-affirmance of order. Where a servant is ordered by the foreman to work in a tunnel and is assured by the foreman there is no danger of a cave-in, the fact that the foreman, after ordering other men to leave the work on account of the danger, which order was not understood by the plaintiff, knowingly permitted the plaintiff to again enter at the request of another servant, amounts to an affirmance of his earlier order to work in the tunnel.</p> <p>4. Same—servant not required to make inspection for latent dangers. While a servant ordered to work in a tunnel cannot close his eyes to obvious dangers, yet he is not required to make an investigation as to the character of the soil and the latent danger therefrom, but may rely upon the master’s performance of his duty to exercise ordinary care to see that the place is reasonably safe.</p> <p>5. Damages—when instruction as to measure of damages is not improper. An instruction as to the measure of damages for personal injury is not improper which authorizes the jury to take into consideration the effect, if any, of the injury in the future upon plaintiff’s ability “to work in his ordinary and former line of labor.”</p> <p>6. Instructions—when instruction is properly modified. An instruction in a personal injury case advising the jury that defendant was not liable for an injury arising from such conduct and commands on its partas might be expected of a reasonably prudent person, is properly modified by inserting the words “having due regard to the safety of plaintiff.”</p>

<p>1. Inheritance tax—term “expectation” means where title is vested but possession is deferred. The term “expectation,” used in section 1 of the Inheritance Tax act, where a person shall become beneficially entitled, in possession or expectation, to any property or income thereof, means a condition where the title is vested and indefeasible, the right to immediate enjoyment being postponed.</p> <p>2. Same—condition authorizing imposition of tax is actual ownership. The condition contemplated by the Inheritance Tax act which shall authorize the imposition of the tax is one of actual ownership, —the possession of a title to something which can be conveyed.</p> <p>3. Same—what estates are not subject to inheritance tax. A contingent estate cannot be taxed, under the Inheritance Tax act, until it becomes vested, nor can an estate which is vested subject to defeasance be taxed until it becomes indefeasible. (Ayers v. Chicago Title and Trust Co. 187 Ill. 42, explained.)</p> <p>4. Same—when the imposition of an inheritance tax must be postponed. Where the person who is, or will ultimately be, entitled to the beneficial interest in a remainder cannot be identified or the proportion thereof to which he will succeed cannot be determined, the imposition of an inheritance tax must be postponed until such matters can be definitely ascertained.</p>

<p>1. Judicial sales—a widow may bid at administrator’s sale held to pay her award. A widow is entitled to ask that real estate other than the homestead shall be sold if necessary to pay the amount adjudged as her award, and she may in good faith bid at the sale.</p> <p>2. Same—when administrator’s report that he sold property for cash is not fraudulent. -A report of sale by an administrator stating that he sold the property for cash is not fraudulent by reason of the fact that instead of cash he received from the widow a receipt for the amount of her adjudged award against the estate, 'Which amount she had in good faith bid at the sale.</p> <p>3. Same—;failure to set off homestead cannot be complained of in collateralproceeding. Failure to set off the homestead of the widow and children in an administrator’s sale subject to such homestead, at which the widow was the purchaser, bidding the amount of her widow’s award,cannot be complained of in a collateral proceeding.</p> <p>4. Homestead—when widow has absolute right to dispose of homestead. Where property is sold by the administrator to the widow subject to dower and homestead, the dower interest becomes merged in the fee, and the widow hás a right to dispose of the homestead estate by releasing the same in a trust deed without the consent or concurrence of the minor children, since their homestead interest is subordinate to that of the widow.</p>

<p>1. Trial—what sufficient to entitle plaintiff to have question of due care go to jv/ry. Testimony by the plaintiff that he looked in both directions for trains on approaching railroad crossing, slowed his team to a walk and looked again as he drew nearer, is sufficient to entitle him to have the question of due care submitted to the jury, even though Ms testimony is contradicted.</p> <p>2. Evidence—existence of obstructions to sound and view may be considered. The existence of obstructions to sound and view may be considered, in connection with the other facts and circumstances, upon question of due care by one approaching a railroad crossing.</p> <p>3. Same—testimony that witnesses did not hear locomotive bell is proper. . Testimony that witnesses did not hear the locomotive bell ringing, although they did not know definitely whether it was ringing or not, is admissible upon the question of the ringing of the bell.</p> <p>4. Same—court cannot weigh the evidence in giving instructions. The trial court cannot exercise its judgment as to the weight of the evidence in giving or refusing instructions, even though the evidence upon which an offered instruction is based is slight.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. Charles G. Neely, Judge, presiding. Plaintiff in error was indicted at the September term, 1902, of the criminal court of Cook county, for the crime of robbery.

<p>Wills—when will passes to remainder-men funds arising from in liquidated banks. A devise to the widow, for life, of all “the use, interest, dividends and profits” on shares of bank stock with remainder to children who survive the widow, passes to the remainder-men, as part of the corpus of the estate, money received by the widow arising from shares of the stock in certain of the banks which went into voluntary liquidation in her lifetime.</p> <p>2. Same—when words may be read into will. If it is clear, on the face of'a will, that the testator has not accurately or completely expressed his meaning by the words used, and it is also clear what are the words he has omitted, such words may be supplied in order to effectuate the intention as collected from the context.</p> <p>3. Same—slock dividend passes to remainder-men. A stock dividend arising from a conversion by the corporation into capital stock of earnings accumulated during the testator’s lifetime passes to the remainder-men, and not to the life tenant, under a will devising the use, interest, dividends and profits of such stock to the widow for life with remainder to children surviving her.</p>

<p>1. Instructions—when instruction is not misleading. An instruction that in a suit on a note the defendant must establish the failure of consideration, set up in his plea, by a preponderance, and that the “burden of proving any defense to the note is upon the defendant,” is not misleading, as meaning that the word “any” referred to other defenses than failure of consideration..</p> <p>2. Actions' and defenses—when action is a suit upon a note. An action under the consolidated common counts and special counts upon a promissory note, complete in itself, is a suit upon the note, notwithstanding it is against the guarantor instead of the maker and the defendant files special pleas setting up a contemporaneous written contract, which it may be necessary to consider upon a final determination of the case.</p> <p>3. Trial—specifying objection to evidence waives other objections. An objection at trial that a certificate of protest is incompetent, as relating to matters between other persons than the parties to the suit, waives the right to object, on appeal, that the certificate itself is insufficient.</p> <p>4. Bills and notes—inland bills are subject to protest. Under the statute in relation to the duties of notaries public, an inland bill of exchange, such as a promissory note, is subject to protest.</p> <p>5. Same—special defense by guarantor of note—what must be shown. To sustain a special defense by a guarantor that the holder of the note had money of the maker in his hands which he should have applied on the note, but which, by fraudulent agreement with the maker, he was released from paying, the guarantor must show that the money was such as the holder had a right to apply upon the note, and which, as to the guarantor, it was his duty to apply.</p> <p>6. Set-off—assignment after suit brought not admissible to establish set-off. Since the claim sought to be set off against plaintiff’s demand must have been owned by the defendant when the suit was brought, an assignment of an open account, made on the day of the trial, is not admissible to prove a sale of the account to defendant.</p> <p>7. Same—pihat is not the subject of set-off. Unliquidated damages arising out of contracts or covenants disconnected from the subject matter of the plaintiff’s demand are not proper subjects of set-off under the statute.</p>

<p>1. Wills—when party takes no interest under a will. A will giving a life estate to the testator’s daughter, with remainder, in case she dies without leaving a child, to the testator’s brothers and sisters, and in case any of the latter are dead at the time of the daughter’s death the share of any such to go to his or her children, passes no interest to a child of a brother who died before the death of the testator, there being no provision for such contingency.</p> <p>2. Same—when remainder is contingent. A remainder to the brothers and sisters of the testator in case of death of the life tenant without leaving children is contingent, where it is further provided by the will that in case of the death of any brother or sister before the death of the life tenant the share of such deceased brother or sister shall go to his or her children, not by descent, but as purchasers under the will.</p> <p>3. Partition—remainder-men not entitled to partition while remainder is contingent. Partition of an estate in remainder subject to the life estate cannot be had if the persons in whom the remainder will vest cannot be definitely ascertained until death of the life tenant.</p> <p>4. Same—when complainant is not entitled to partition. Under section 1 of the Partition act, providing that where lands are held in tenancy in common any person interested therein may compel a partition, a person is not entitled to partition unless he can show that he owns an interest as tenant in common with defendants.</p>

<p>1. Variance—a variance must be pointed out with particularity. A variance between the allegations and the proof, if relied upon as the ground of a motion to instruct the jury to find for the defendant, must be particularly, specified in the motion.</p> <p>2. Same—when variance in date of bill of particulars is not material. Variance between date of the bill Of particulars, as to the night plaintiff lost money at gambling, and the date proved, is not rhaterial, where it does not appear plaintiff was ever in defendant’s place on any other occasion.</p> <p>3. Gambling—loser may sue proprietor of gaming house or the employee played with. One losing by gambling with a person employed to play for the “house” by the proprietor of the gambling house where the play took place, may sue either the proprietor or the employee.</p> <p>4. Same—effect where a game is played with “chips.” That a poker game is played with “chips,” for which the players deposit with the house the amount of money represented by the “chips,” instead of for cash stakes, does not make the losses any the less the “loss of money or other valuable thing,” within the meaning of the statute.</p> <p>5. Same—what constitutes a “sitting" at draw poker. All that transpires in a game of draw poker from the time certain players begin playing together on one occasion until they cease playing together on such occasion is one “sitting,” within the meaning of the statute, regardless of the number of hands played.</p> <p>6. Same—who are “winners” at draw poker. All persons who win more than they lose at one sitting of draw poker are “winners” to that amount, within the meaning of the statute, and are liable therefor to the persons losing, resort to equity being open, if necessary, to adjust the losses between the various parties.</p> <p>7. Statutes—limits of the rule requiring strict construction of penal statute. The rule requiring strict construction of a penal statute should not be so rigidly applied as to defeat the'true intent and meaning of the statute.</p>

<p>1. Witnesses—when husband is competent to testify against wife. In litigation respecting the wife’s separate property and in which she would, if unmarried, be the defendant, the husband is competent to testify for or against her, under the exceptions to section 5 of the Evidence act.</p> <p>2. Vendor and purchaser—purchasers are protected against unrecorded deeds. A purchaser from the holder of the record title is entitled to protection against an unrecorded deed in the absence of notice, actual or constructive, of the existence of such deed.</p> <p>3. Notice—when record of mortgage is not constructive notice. The record of a mortgage upon the land, given by a person not in possession, is not constructive notice of an unrecorded deed from the holder of the record title to the mortgagor, where the former does not appear to be a party to the mortgage. (Ogden v. Haven, 24 Ill. 57, and Morrison v. Morrison, 140 id. 560, distinguished.)</p> <p>4. Same—inadequacy of consideration not constructive notice of prior unrecorded deed. Inadequacy of the consideration paid for land is not of itself constructive notice to the purchaser of the existence of a prior unrecorded deed from her grantor to a third party.</p> <p>5. Same—when notice to husband is not chargeable to wife. Notice by a husband of an unrecorded deed to his former wife is not chargeable to his second wife, whom he induced to purchase the property, where it is clear that in withholding such deed from record as well as in concealing the facts from his second wife he was actuated by a fraudulent and selfish purpose.</p> <p>6. Laches—when delay in bringing suit is not excused. A delay of five years by complainants before attacking defendant’s title, after the latter took open and visible possession of the land under a recorded deed, is not excused by the fact that a third party falsely told them the defendant had no deed.</p> <p>7. Same—when laches will bar relief. Unexcused delay by complainants in asserting their rights under an unrecorded deed to their mother until' twelve years after her death, she never having been in possession, and for five years after the defendant took possession under a recorded deed from the holder of the record title, will bar relief.</p>

<p>1. Corporations—over-valuation of property taken in payment for stock is binding on corporation. Fraudulent over-valuation of property turned over to a corporation by stockholders in payment of their subscriptions, while it renders the transaction voidable as to creditors and other stockholders prejudiced thereby, is binding upon the corporation, and as between the corporation and such stockholders the stock subscription is fully paid.</p> <p>2. Same—stockholder is primarily liable for unpaid balance on slock. Under section 8 of the Corporation act a stockholder is directly liable to creditors of the corporation for an unpaid balance on his stpck, and the creditor may sue the corporation and garnish the stockholder at the same time without obtaining a judgment and having an execution returned nulla bona.</p> <p>3. Same—when right of action acones under section 8 of Corporation act. The right of action by a creditor of a corporation against a stockholder to reach an unpaid balance on his subscription, under section 8 of the Corporation act, accrues when the debt against the corporation is due, and the Statute of Limitations begins at that time to run in favor of the stockholder.</p> <p>4. Same—when right of action accrues under section S5 of Corporation act. When a stock subscription is paid in fraudulently over-valued property, the right of action in favor of a creditor of the corporation against the stockholder accrues whenever- the corporation ceases doing business leaving debts unpaid, and he may enforce such right of action in equity, under section 25 of the Corporation act, without a judgment at law.</p> <p>5. Statute of Limitations—right of action against stockholder is governed by five year statute. The right of action by a creditor of a corporation against a stockholder, under the statute, to the extent of the unpaid portion of his stock, is a “civil action, not otherwise provided for,” within the meaning of section 15 of the Limitation act, and is governed by the five year statute.</p> <p>6. Same—effect where two methods for enforcing liability áre provided. Where two methods are provided by statute by which a creditor of a corporation may enforce the liability of a stockholder for his unpaid stock subscription, the Statute of Limitations begins to run as to both methods whenever a right accrues to the creditor under either method to proceed directly against the stockholder.</p> <p>7. Same—electing to proceed under section 49 of Chancery act does not extend period of limitation. Electing to proceed by an ordinary creditor’s bill under section 49 of the Chancery act instead of by filing a bill under section 25 of the Corporation act against a stockholder to reach an unpaid stock subscription in a corporation which has ceased doing business leaving debts unpaid, does not extend the period of limitation which bars the right of action.</p> <p>8. Same—what does not prevent application of Statute of Limitations. That a creditor of a corporation did not know of the fraudulent over-valuation of property given in payment for stock, by which it was made to appear that such stock was fully paid, does not amount to such fraudulent concealment of the cause of action, within the meaning of section 22 of the Limitation act, as prevents the running of the statute.</p> <p>9. Trial by jury—ivhat not a denial of right of trial by jury. Permitting a creditor of a corporation which has ceased doing business-leaving debts unpaid, to proceed against the stockholders for unpaid stock subscriptions without reducing his claim to a judgment at law is not a denial of the right of trial by jury, within the meaning of the constitution.</p>

<p>1. Estoppel—when party is estopped to raise constitutional question. A corporation which contracts with a casualty company to permit the latter to inspect the corporation’s books in so far as they pertain to compensation paid to its employees, is estopped to complain that an order of court enforcing such contract is in violation of the constitutional guaranty against searches and seizures.</p> <p>2. Constitutional law—when an order to produce books is not in violation of constitution. An order of court to produce books, which limits the examination to such matters as are pertinent to the issue, does not infringe the constitutional guaranty against unreasonable searches and seizures.</p> <p>3. Contempt—party may be punished for contempt though order is erroneous. ' A party may be punished for contempt for refusing to obey an order of a circuit court, however improvidently or erroneously made, if the court had jurisdiction of the parties and the subject matter and had power to make the order.</p> <p>4. Evidence—right to order production of books not limited to time of trial. Under section 9 of the Evidence act the power of the court to order the production of books and writings “upon motion and good and sufficient cause shown” is not limited to the time of trial.</p> <p>5. Same—when order to produce boolcs is proper. Where the contract between plaintiff and defendant authorizes the plaintiff to inspect certain books of the defendant at all reasonable times, the court has power, in case of defendant’s refusal, to order the production. of such books before the trial, if needed to enable the plaintiff to prepare his case.</p> <p>6. Same—when bill of discovery or subpoena duces tecum is unnecessary. Under section 9 of the Evidence act, if the affidavits in support of a motion to produce books show good cause, the court may order the production of such books without requiring a bill of discovery or issuing a subpoena duces tecum.</p>

James S. Baume, Judge, presiding. On September 26, 1901, Patrick Ivory, the appellee, filed a bill in the circuit court of Jo Daviess county to foreclose a mortgage upon certain lands in that county. Henry Ortmeier, Lotta Ortmeier, Martin M. Mitchell, Luther Geddings, August Gerke and Herman Janssen were made parties defendant. The complainant after-wards dismissed his bill as to the defendants Martin Mitchell and Luther Geddings. .

Truman E. Ames, Judge, presiding. This is a bill, filed on February 28, 1902, in Christian county by the appellees against the appellant, praying that a certain deed, executed by John Pittenger, Sr., during his lifetime, and the appellee, Julia A. Pittenger, his wife, conveying- eighty acres of land, described in the bill, to the appellant, John B. Pittenger, their son, be set aside, canceled and declared null and void, and that the appellees, complainants below, and the…

<p>■ 1. Fraud—application of rule that one alleging fraud must prove it. The fact that an alleged fraudulent transaction is between relatives does not change the rule that one alleging fraud in a creditor’s bill must prove it by a preponderance, the relationship being merely a circumstance to excite suspicion.</p> <p>2. EviDENCE-^pariy voluntarily putting witness on the stand cannot impeach him. A complainant who voluntarily puts the defendant upon the stand and makes him his own witness cannot impeach him, although he is not bound by the conclusions of the witness and may contradict him by other witnesses.</p> <p>3. Practice—not error for court to refuse to hear testimony pending exceptions to master’s report. It is not error, in a chancery case, for the court to refuse to hear additional testimony pending the determination of exceptions to the master’s report, there being nothing to bring the case within any exception to the general rule.</p>

<p>1. Evidence—unauthenticated files of alleged suit in foreign State not admissible. Unauthenticated papers purporting to show the commencement of an attachment suit before a justice of the peace in a foreign State, the garnishment of money of defendant and settlement of the suit are not admissible in evidence to prove such facts.</p> <p>2. Criminal law—when giving instruction as to effect of confession is error. Giving an instruction stating the legal effect of a confession of guilt is error, where the effect thereof is to mislead the jury into believing that alleged admissions of facts criminating in their nature amount to a confession.</p> <p>3. Same—confession defined. A confession is a voluntary declaration by a person charged with crime of his agency or participation in the crime, and not merely a declaration or admission of facts criminating in their nature or tending to show guilt.</p>

<p>1. Evidence—when admitting opinions of physicians is error. Permitting physicians to give opinions that plaintiff’s foot was injured by being caught between two uneven surfaces, instead of allowing them to describe the injury or limiting their opinions to what might have caused it, is reversible error, where such testimony is the only evidence corroborative of plaintiff’s testimony as to manner of injury, which is contradicted by thé defendant’s witnesses.</p> <p>2. Instructions—when instruction in action for negligence is erroneous. An instruction in an action for personal injuries to defendant’s servant is erroneous which holds defendant liable if it had notice of the defect, regardless of the time such notice was received, and which entirely ignores the question of assumed risk which was involved in the case.</p> <p>3. Same—instruction authorising recovery must embrace all essential facts. An instruction which amounts to a direction to find for the plaintiff if the jury believe the facts stated in the instruction to have been proven must embrace all the facts essential to a recovery upon that theory of the case.</p> <p>4. Appeals and errors—the Appellate Court should weigh the evidence upon proper assignment of error. Under an assignment of error that the verdict is contrary to the weight of the evidence it is the duty of the Appellate Court to weigh and consider the evidence upon controverted questions of fact.</p> <p>5. Same—the Supreme Court cannot consider assignment of error that Appellate Court did not iveigh the evidence. Thq Supreme Court qannot consider an assignment of error that the Appellate Court refused to weigh or consider the evidence on controverted questions of fact, since error cannot be assigned upon the opinion of the Appellate Court.</p>

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

W. W. Duncan, Judge, presiding. This is an appeal from a decree of the circuit court of Pope county dismissing a bill for an injunction which had been filed by the appellant railroad company and Jacob W. Michell, and assessing damages againstappellants for the wrongful suing out of the injunction writ.

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

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