Volume 210 — Illinois Reports

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

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

Writ op 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. Evidence—effect where party seeks to prove an admission by opposite party. If a party seeks to prove an admission by his adversary as tending to support his cause of action or defense, the adversary is entitled to prove such other parts of the conversation as tend to explain, or even destroy, the admission.</p> <p>2. Same—what evidence in rebuttal is properly admitted. In rebuttal of testimony that plaintiff in a personal injury case remained silent when her husband, in a conversation with certain callers, stated that the accident was her own fault, it is proper to permit the plaintiff to testify as to the conversation, even though she states such callers claimed to represent the defendant and were seeking to effect a compromise.</p> <p>3. Same—plaintiff may testify she asked the conductor to let her off street car at certain place. Plaintiff in an action against a street railway company may testify that she asked the conductor to let her off at a certain place, notwithstanding the lapse of time between such request and the time she arrived at her destination, as tending to show notice to defendant’s servants of her intention to alight.</p> <p>4. Same—non-expert witness may state that the car was going fast. A non-expert witness may characterize the speed of a street car as .fast, even though unable to estimate the speed in miles per hour.</p> <p>5. Same—non-medical witness may state that person was sick. A non-medical witness may state that plaintiff in a personal injury case was sick or in a nervous condition after the injury.</p> <p>6. Same—statements made to physician during treatment are competent. It is proper to permit a physician testifying as to the injuries of the plaintiff in a personal injury case to state what the plaintiff said to him in describing her condition during actual treatment and in direct connection therewith.</p> <p>7. Same—rule as to hypothetical questions. Counsel may embrace in hypothetical questions such facts as he deems established by the evidence, and if opposite counsel does not consider that all the relevant facts are included in the questions he may include them on cross-examination.</p> <p>8. Same—permitting plaintiff’s husband to state that she “complained” is not reversible error. Permitting the husband of the plaintiff in a personal injury case to state that after her injury, when she walked any considerable distance, she “complained,” is not reversible error.</p> <p>9. Appeals and buboes—when party cannot complain of questions and remarks. A party cannot complain of questions put by counsel, and remarks with reference thereto by the court on objection, where no ruling is insisted upon and no exception taken to the court’s failure to rule thereon.</p> <p>10. Instructions—when instruction as to carrier’s duty is not misleading. An instruction correctly defining a carrier’s duty toward passengers is not misleading in omitting the element of the passenger’s exercise of care, where other instructions require the plaintiff to have been in the exercise of due care for her safety.</p> <p>11. Same—when instruction as to preponderance of the evidence is correct. An instruction is not objectionable which states that while the law requires the plaintiff to prove her case by a preponderance</p> <p>■ of the evidence, yet if the preponderance in her favor is but slight it is sufficient for the jury to find in her favor.</p> <p>12. Same—when instructions are properly refused. Instructions are properly refused where their substance is embodied in others given, or where they are not based upon the evidence.</p>

Paul McWilliams, Judge, presiding. This is an appeal from a decree of the circuit court of Madison county sustaining a demurrer to a bill for an injunction, dismissing the bill, which was filed by Valentine Wolf, a citizen arid tax-payer of the city of Alton, and dissolving a temporary injunction which restrained Alexander W. Hope, as judge of the city court of the city of Alton, from receiving, and various officers of said city from allowing and paying to said Hope, as…

<p>Corporations—what not ground for dissolution. Alleged mismanagement is not ground for the dissolution of a solvent corporation at the suit of a minority stockholder, where the stock and assets of the corporation have greatly increased in value under the management of defendant officers and the irregularities complained of were corrected as soon as complainant made objection.</p>

<p>1. Appeals and errors—when Supreme Court will not consider an alleged error. On appeal to the Supreme Court from the Appellate Court by the same appellant, error assigned on the record of the trial court will not be considered if not presented by appellant’s brief to the Appellate Court.</p> <p>2. Electric companies—right to put cable under sidewalk limited to actual space needed. An ordinance granting an electric company the right to put a cable under a sidewalk does not entitle the company to permanently occupy the entire space under the walk, but only so much as is needed for the cable and any devices used to support it and keep persons from coming in contact with it.</p> <p>3. Same—ordinary care in use of electricity is care commensurate with danger. Ordinary care to be exercised by a person or corporation operating an electric plant for profit, to prevent injury to others from the electric current, requires greater precaution and skill than where the element used in the conduct of a business is less dangerous.</p> <p>4. Same—what does not relieve a company from liability. The accidental placing of plaintiff's hand upon a defectively insulated electric wire strung under an elevated sidewalk by authority of an ordinance, while he was under the walk to ascertain the location and cause of a fire occasioned by the wire, is not an act of trespass which relieves the electric company from liability, if such liability is otherwise established. 5. Negligence—what tends to show negligence on part of electric company. Failure of an electric company to use some device to guard its wires strung under an elevated sidewalk so that no person could inadvertently touch them tends to show lack of ordinary care.</p> <p>6. Trial—when the question of contributory negligence is for the jury. Whether or not the plaintiff’s act in going under an elevated sidewalk to ascertain the location and cause of a fire in the walk, where he received an injury from accidentally placing his hand upon defendant’s defectively insulated electric wire strung underneath the walk by permission from the city, constitutes contributory negligence, is a question of fact for the jury.</p>

<p>Attorneys at law—what not ground for making rule absolute on information for disbarment. An admission of former conviction of crime in an answer to an information for disbarment is not ground for making the rule absolute, where the answer also avers pardon of the respondent, an upright life from the time of conviction to the time of admission,—thirteen years,—there being no attempt to conceal the conviction from the court upon application for admission.</p>

<p>1. Pleading—answer to informationfor disbarment which contains impertinent matter will be stricken from files. An answer to an information for disbarment will be stricken from the files, on motion, where it is not confined to the issues but contains many scandalous and impertinent matters so intermixed with those which may be material that it is not possible to separate them by striking out parts of the answer.</p> <p>2. Same—practice of pleading evidence will not be tolerated. The practice of pleading the evidence, and much other matter that cannot even be evidence, will not be tolerated.</p>

Joseph E. Gary, Judge, presiding. The relator, Cobden G. Gray, a police patrolman, filed a petition for mandamus against appellants, in the superior court of Cook county, on May 19, 1902, to compel the city of Chicago and the general superintendent of police, O’Neill, to place petitioner’s name upon the roster of police patrolmen, from which it had been omitted and excluded by one Joseph Ripley, a former general superintendent of police of said city, and to place his name…

Elbridge Hanecy, Judge, presiding. Margaret A. Bonney filed a bill for divorce against the appellant in the circuit court of Cook county on the ground of extreme and repeated cruelty. The appellant entered his appearance and filed an answer admitting the allegations of the bill, and on December 19, 1899, a decree of divorce was entered in accordance with the prayer of the bill.

S. L. Dwight, Judge, presiding. This is an appeal from a decree rendered by the circuit court of Shelby county setting aside a deed to the north half of the north-west quarter of section 29, town 10, north, range 5, east of the third principal meridian, in Shelby county, Illinois. The bill herein was filed by Anna E. Shepard (nee Small) on January 21,1901, against Amos W. Walker, the appellant.

<p>1. Pleading—declaration by servant for injury must state facts showing master’s duty. A declaration in an action by a servant against the master for personal injury must state facts from which the law will raise a duty from defendant to the plaintiff, otherwise it is insufficient to support a judgment.</p> <p>2. Same—what allegation does not show a violation of duty by master. An allegation that plaintiff’s intestate was in the defendant’s employ and was lawfully upon a certain side-track used by defendant, and was in the exercise of due care, when another servant of defendant, not a fellow-servant of the plaintiff, pushed a car upon him, does not show a violation of any duty by the defendant.</p> <p>3. Same—new declaration stating new case does not relate back. If a declaration fails to state a cause of action, a new declaration stating a cause of action does not relate back to the commencement of the original suit, and is barred if the period of limitation has run.</p> <p>4. Same—failure to object to filing of new declaration not a waiver of plea of limitation. Failure of the defendant to object and except to the filing of a new declaration is not a waiver of his right to plead the Statute of Limitations.</p> <p>5. Same—allowing amendment not adjudication as to whether cause of action is same. Allowing an amended declaration to be filed in a personal injury case is not conclusive that the causes of action set up in the original and amended declarations .are the same, notwithstanding section 23 of the Practice act. (Chicago City Railway Co. v. Cooney, 196 Ill. 466, and Fish v. Farwell, 160 id. 236, followed.)</p>

<p>1. Special assessments—court may grant separate hearings on different classes of legal objections. The county court may, in a proper case, grant separate hearings on different classes of legal objections to a special assessment; but separate hearings are not a matter of right, and will not be allowed where the same inquiry is involved as to the different pieces of property assessed.</p> <p>2. Same—effect where separate hearings are granted on legal objections. One who acquiesces in separate hearings of the different classes of legal objections to a special assessment is entitled to a bill of exceptions showing only such evidence as was offered by him and the other objectors who participated in the hearing of the same class of legal objections.</p> <p>3. Same—failure to enter order for a separate hearing will not reverse. Failure of the court to enter an order of record for separate hearings on the different classes of legal objections to a special assessment is not ground for reversal.</p>

<p>1. Appeals and errors—effect of remittitur reducing amount of the judgment. The court may, at the same term at which judgment was entered, require the entry of a remittitur to cure a mistake in the addition of undisputed items in defendant’s set-off, and where the appeal allowed from the original judgment has not been perfected, the judgment appealed from must be regarded as for the amount to which it was reduced by the remittitur.</p> <p>2. Same—when amount involved must be determined from transcript. If an issue of fact is tried in assumpsit showing the defendant to be entitled to a certain amount as a set-off, the amount involved must be determined from the evidence as it appears in transcript.</p> <p>3. Same—rule as to amount involved when defendant denies cause of action and files set-off. If the defendant denies the existence of the cause of action and files a plea of set-off, the amount involved, in case of a judgment for plaintiff, is the amount of the judgment added to amount of the set-off which the evidence tends to prove.</p>

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

<p>1. Evidence—when proof of reputation is competent upon the question of due care. Proof that plaintiff’s intestate, who was killed by the explosion of the boiler of the locomotive he was running, had the reputation of being a careful and competent engineer and a sober man is competent upon the question of ordinary care, where there are no living witnesses as to what was done by him just prior to the explosion.</p> <p>2. Same—non-expert witnesses may testify whether breaks in bolts appeared new or old. Non-expert witnesses, in an action for damages caused by a boiler explosion, may be allowed to testify whether or not breaks in the stay-bolts of the boiler had the, appearance of old or new breaks, in connection with the facts, so far as they can be described in words, on which their conclusions are based.</p> <p>3. Same—admissibility of age and mileage of exploded locomotive. As tending to support the plaintiff’s allegation that the locomotive which exploded was in an unsafe condition and repair and the boiler thereof deficient in strength, it is proper to allow proof as to when the locomotive was built, the mileage it had made and that it had once been in a collision.</p> <p>4. Same—when objection to evidence must be specific. An objection that evidence is variant from the pleadings, or that the inquiry, on cross-examination, is not within the limits of the examination in chief, must specifically point out the ground of the objection.</p> <p>5. Same—what is proper cross-examination as to testing for broken stay-bolts. If a witness has stated in chief that there is no way of determining whether stay-bolts are cracked without taking the engine to pieces, it is proper, on cross-examination, to show that if hollow stay-bolts were used, cracks therein could be detected by leakage of water and steam.</p> <p>6. Damages—/act that widow and next of kin are entitled to life insur- ■- anee money is immaterial. The receipt of mortuary benefits by the widow and next of kin upon the life of the deceased, from a source wholly independent of defendant railroad company, is not ground for abatement of the pecuniary loss to the widow and next of kin occasioned by the death of the deceased.</p>

rd in that court on appeal from the Superior Court of Cook county; the Hon. Jonas Hutchinson, Judge, presiding. \ This is an action on the case brought by the appellee, against the appellant, in the superior court of Cook county, to recover damages for an alleged personal injury sustained by the appellee while on her way to take a train at appellant’s suburban station at Thirty-first street, in the city of Chicago, by falling down a flight of stone steps which connected said…

Axel Chytraus, Judge, presiding. This was a bill in chancery filed by the appellant, against the appellee, in the superior court of Cook county for the surrender and cancellation of a policy of insurance issued by appellant upon the life of Ernst Seifert, in which appellee was named as beneficiary, on the ground the policy was obtained by means of the false and fraudulent representations made by Seifert to the appellant at the time the policy was issued.

<p>1. Appeals and errors—effect of remandment with specific directions. A specific direction, on remandment by the Supreme Court, “to proceed in conformity with the views expressed,” limits the power, of the trial court to the entry of final judgment if the Supreme Court decided the issues involved upon their merits; but if the issues were not determined, a re-trial may be had notwithstanding such direction, and evidence ottered by either party which falls within the principles announced must be received.</p> <p>2. Same—what finding does not preclude receiving additional evidence. A finding by the Supreme Court, in its opinion, that the presumption of marriage raised by the proof was overcome by the evidence raising a contrary presumption, does not preclude, on re-trial, the introduction of evidence tending to show a contract of marriage, notwithstanding the cause was remanded with directions to proceed in conformity with the views expressed in the opinion,- there being no finding against the fact of marriage.</p> <p>3. Witnesses—when alleged widow cannot testify to marriage. A . woman whose claim as being the lawful widow is denied by others having or asserting interests, as heirs, in the estate of her alleged husband, is incompetent to testify to the fact of her marriage in a proceeding in which she seeks, as distributee, a portion of all his personal property, until her status as a widow has been established by the adjudication of a competent court.</p>

Writ op Error to the Circuit Court of Cook county; the Hon. E. P. Dunne, Judge, presiding. The Sanitary District of Chicago brought its suit in the circuit court to condemn a strip of land extending from Madison to Randolph street along the river bank, which was a part of the original town of Chicago platted by the canal commissioners in 1836, or thereabouts. The strip in question originally lay within the boundaries of West Water street, as shown upon that plat.

Jesse Holdom, Judge, presiding. The Appellate Court for the First District reversed a decree of the superior court of Cook county which dismissed the bill of the Chicago Landlords’ Protective Bureau against Martin C. Koebel and Frank O. Campe for an injunction and remanded the cause, with directions to the latter court to enter its. decree granting the relief prayed. To reverse that judgment of affirmance this appeal is prosecuted.

<p>1. Railroads—clear proof is required to establish prescriptive right to passageway under trestle. To establish a prescriptive right to a passageway for stock through a ravine under a railroad bridge all the elements necessary to the existence of such right must be clearly proven.</p> <p>2. Same—building of trestle bridge raises no implication that it was intended to let stock undm\ The building of a trestle bridge over a ravine or water-course crossed by a railroad right of way raises no implication of law that the bridge was so built in order to permit the passage of stock thereunder.</p> <p>3. Same—what not sufficient notice to company of adverse claim. A declaration by the owner of a farm to a section foreman that he claimed a right of passageway under a trestle bridge for his stock is not of itself notice to the company of such claim.</p> <p>4. Same—what is not an assertion of a claim of right. Placing gates or temporary fences across the spans of a trestle bridge to prevent stock from passing from one field to another at will is, not an assertion of a claim of right on the part of the owner of the farm to use the passageway under the trestle for stock.</p> <p>5. Principal and agent—what essential to make notice to agent notice to principal. To make notice to an agent notice to his principal the nature of the agency must be such that the law will presume that the agent communicated the notice to his principal or it must be established as a fact that he did so.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

<p>Criminal law—what essential to conviction for assault with intent to rape. Proof of urgent solicitations to submit to sexual intercourse, though accompanied by assault, will not sustain an indictment for assault with intent to commit rape, unless it appears, beyond reasonable doubt, that the accused intended to accomplish the act by force and without the consent of the female.</p>

<p>1. Appeals and errors—a proceeding to disconnect territory from town involves afranchis.e. The question of the right of township officers to exercise authority over land sbught to be disconnected from one town and added to another involves a franchise.</p> <p>2. Certiorari—what necessary to entitle party to sue out certiorari. To entitle a party to sue out a writ of certiorari he must have been a party to the proceeding which he seeks to review and have an interest in such proceeding which is direct and immediate.</p> <p>3. Same—what does not show immediate or direct interest. The statement that the relator is a tax-payer and that the taxing officers of the township or county will be put to trouble and expense in collecting taxes from disconnected territory does not show such-immediate or direct interest as entitles the relator to a writ of certiorari to review the proceedings disconnecting such territory.</p>

<p>1. Trial—what sufficient to justify submission of question of ownership of engine to jury. Evidence that the locomotive which caused plaintiff’s injury bore the abbreviation of defendant’s corporate name is sufficient, in the absence of any evidence by the defendant upon that question, to justify submissiomof the question of the ownership and control of the engine to the jury.</p> <p>2. Evidence—what does not destroy presumption of ownership from name on engine. That the engine which caused plaintiff’s injury was not running upon the defendant’s tracks at the time but upon a track used by several railroad companies, does not destroy, although it may weaken, the presumption of ownership arising from the fact that the engine bore defendant’s corporate name.</p> <p>3. Same—effect where statements of witnesses are shown by cross-examination to be hearsay. It is for the jury to say what weight shall be given to the statements of witnesses as to matters whereof their knowledge is shown by cross-examination to be based largely upon hearsay, where their evidence is allowed to go to the jury without objection and no motion is made to strike it out.</p> <p>4. Same—immaterial allegations in a personal injury case need, not be proved. Immaterial allegations need not be proven in an action for personal injury if enough of the declaration is proven to make out a case.</p> <p>5. Same—what allegation in personal injury case need not be proven. An averment that the plaintiff in a personal injury case was on the locomotive “in the performance of his duties as a servant” of his employer need not be proven where it is shown he was rightfully upon the locomotive, although by the direction of his foreman he was eating his supper at the time the injury occurred.</p> <p>6. Damages—when an appeal is prosecuted for delay, damages will be assessed. Where it appears that the defense made in an action for damage for personal injury is without merit and that an appeal is prosecuted to the Supreme Court for delay, the judgment of the Appellate Court will be affirmed with five per cent damages,</p>

<p>1. Fraud—degree of prudence exercised in fraudulent transaction is a question of fact. In an action for deceit, based upon alleged false representations by the defendant that the note and trust deed he sold to plaintiff were a valid and first lien upon the premises, the degree of care exercised by the plaintiff in the transaction is a question of fact for the jury.-</p> <p>2. Same—representation that a trust deed is a first lien is one of fact. A false representation that a deed is a first lien upon the premises, and that there were no other mortgages or trust deeds upon the premises ahead of or prior to it, is a representation of fact, and not a mere opinion.</p> <p>3. Same—effect where examination of record would have disclosed falsity of representations. In an action of deceit for falsely representing a trust deed to be a-first lien upon the premises, the fact that an examination of the records would have disclosed the falsity of the representation does not relieve the defendant from liability, where the false representation was made to induce action by the plaintiff, who did rely and act thereon to his injury.</p> <p>4. Appeals and errors—when objection to instructions will not be considered. Objections to instructions will not be considered by the Supreme Court where no mention of the instructions complained of was made in the written motion for new trial as ground thereof.</p> <p>5. Same—when objection that improper evidence was admitted will not be considered. An objection that improper evidence was admitted will not be considered by the Supreme Court where no exception appears to the overruling of the objection made to the admission of the evidence complained of.</p> <p>6. Same—objections not raised iwAppellate Court cannot be considered. Objections to instructions and to the admission of evidence cannot be considered by the Supreme Court where they were not urged in the brief filed in the Appellate Court, as shown by a certified copy.</p> <p>7. Same—objection based upon opinion of Appellate Court will not be considered. An objection based upon the opinion of the Appellate Court will not be considered by the Supreme Court, as it is the judgment, and not the opinion, of the Appellate Court which is subject to review.</p> <p>8. Instructions—when words “material inducement” do not need explanation. An instruction in an action of deceit which states the effect of defendant’s fraudulent statements, representations and acts “with respect to a material inducement to the transaction,” is not erroneous in not defining the words “material inducement.” (Baker & Beddick v. Bummers, 201 Ill. 52, distinguished.)</p>

that court on appeal from the Circuit Court of Madison county; the Hon. Paul McWilliams, Judge, presiding. This is an action in case, brought on May 6, 1902, in the circuit court of Madison county by appellee against appellant to recover damages for injuries, received by the appellee on February 8, 1902, while appellee was in the service of the appellant. A plea of general issue of not guilty was filed by the appellant.

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

<p>Appeal from the Circuit Court of Champaign county; the Hon. William C. Johns, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.</p>

W. H. Hinebaugh, Judge, presiding. This was a proceeding instituted by the Illinois, Iowa and Minnesota Railway Company, in the county court of Kane county, for condemnation of a right of way across appellees’ farm, in said county.

<p>Instructions—court is not bound to reiterate principles of law. It is not error to refuse to give an instruction attempting to cover the points contained in several instructions already given.</p>

<p>1. Sidewalks—obstruction caused by loading goods must be reasonable and temporary. An abutting owner may temporarily obstruct the sidewalk when reasonably necessary for the loading or unloading of goods, but he has no right to so conduct his business of receiving and delivering goods as to substantially appropriate the sidewalk to his own use.</p> <p>2. Same—when abutting owner must use care to keep sidewalk in safe condition. An abutting owner who, by piling his goods upon the sidewalk, forces pedestrians to use a limited portion of the walk for passage, must use reasonable care to see that such portion is kept in reasonably safe condition.</p> <p>3. Proximate cause—the effect of intervening negligent act of third •person. The intervening negligent act of a third person does not relieve the author of an earlier act of negligence from responsibility, where the intervening act is of a nature which could have been reasonably anticipated, and in such case the earlier negligent act, if it contributed to the injury, may be regarded as the proximate cause.</p>

Frank Baker, Judge, presiding. Appellee, the town of Cicero, filed a petition in the. circuit court of Cook county praying for a writ of mandamus, directed to the city of Chicago and to the… Held: all of which the court refused, and rendered judgment awarding the writ of mandamus in conformity with the prayer of the petition. From that judgment the city of Chicago appeals to this court.

Writ op Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Jesse HolDOM, Judge, presiding. Frederic Ullmann, and N. W. Hacker, for defendants in error.

Axel Chytraus, Judge, presiding. This is a bill, filed in the superior court of Cook county on September 24, 1903, by appellees as complainants, who were owners of certain lots in block 4 of the first division of Riverside, against the village of Riverside as defendant, to restrain the latter from opening an alleged highway, intended, as is claimed by appellant, to be a pleasure driveway, but intended, as is claimed by appellees, to be a public road and highway, across a…

<p>1; Deeds—when failure to reserve interest does not divest it. If a deed specifically declares what interests of the grantor are conveyed, the fact that no other interests are mentioned does not operate to divest them.</p> <p>2. Partition—it is presumed that the proper course was pursued in assigning dower. In the absence of anything to the contrary appearing in the partition proceeding, particularly in the decree or the report of the commissioners, it will be presumed the proper course was pursued in assigning dower.</p>

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

Writ op Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Calhoun county; the Hon. T. N. Mehan, Judge, presiding. This was an action of debt brought by Anton Schulte, plaintiff in error, in the circuit court of Calhoun county, against Tobias Schleeper and Joseph Menke; defendants in error. The declaration consisted of two counts.

E. W. Burke, Judg-e, presiding. This is a bill in chancery, filed on January 13, 1902, by the appellee against the appellant for a divorce, charging the appellant with willful desertion and absence from the appellee without a reasonable cause for the space of two years from December 15, 1899. The bill sets up that the marriage took place in Brooklyn, New York, in October, 1892, and that one child now living was born of the union.

<p>1. Evidence—when record of former suit is not admissible to prove mental incapacity. The record of a former suit, in which there was a verdict of a jury finding the complainant mentally incompetent to make the deed sought to be set aside, is not admissible in a subsequent suit by the-defendant to the former suit against strangers to that proceeding to set aside a deed to them from the same grantor upon the same ground.</p> <p>2. Same—when the admission of incompetent evidence will not reverse. Admission of incompetent evidence which would have been fatal in a suit at law will not reverse in a chancery case, where the verdict of the jury was but advisory and the decree rendered upon a consideration of the whole evidence, and there is sufficient competent evidence in the record to sustain the decree.</p> <p>3. Equity—when grantee must be reimbursed on setting aside deed for mental incapacity of grantor. Where the grantee in a deed given in consideration of future support-has fully performed the agreement and the transaction is "fair, the deed will not be set aside at the suit of an heir who stood by while the contract was being performed, except upon restitution to the grantee of his expenditures, even though the grantor was mentally incompetent.</p> <p>4. Same—when equity may retain jurisdiction. Equity having acquired jurisdiction of a proceeding to set aside a deed upon the ground of mental incapacity of the deceased grantor may adjust the equities of the parties without requiring the grantee to present his claim in the county court, where the latter is entitled to reimbursement as a condition to the setting aside of the deed.</p>

L. C. Ruth, Judge, presiding. This is a proceeding in the county court of DuPage county for the confirmation of a special assessment of the city of Naperville for the construction of a connected system of cast-iron water pipes, with hydrants and valves, in the streets, alleys and avenues of said city.

<p>1. Inheritance tax—county court has jurisdiction of a proceeding to collect inheritance tax. Section 4 of the Inheritance Tax act, requiring an administrator or executor “to make application to the court having jurisdiction of his accounts” in the event of questions arising as to apportionment of inheritance taxes, does not oust the county court of jurisdiction of a proceeding to collect an inheritance tax, although the estate has been certified to the circuit court for settlement.</p> <p>2. Same—amendment of 1901, exempting educational bequests, is not retroactive. The amendment of 1901 to the Inheritance Tax act, exempting bequests for educational purposes from the provisions, of the act, is not retroactive, and if a bequest for educational purposes was subject to an inheritance tax at the time of testator’s death the tax may be collected, notwithstanding the proceeding was not begun until after said amendment took effect.</p> <p>3. Same—lands situated in foreign State are not subject to inheritance tax. Lands situated in States other than Illinois, and belonging to one who was a resident of Illinois at the time of his death, are not subject to our Inheritance Tax law.</p> <p>4. Same—when doctrine of equitable conversion does not apply. An inheritance tax upon funds derived from the sale of lands situated in foreign States cannot be collected in a suit at law upon the ground of equitable conversion.by will, since the doctrine of equitable conversion is not given effect in courts of law.</p> <p>5. Same—when expense of defending will should be deducted in computing tax. Expenses incurred by executors in defending the will and sustaining its validity when attacked by the heirs should be deducted from the amount upon which an inheritance tax is to be computed, where the action of the executors operated in the interest of the State, as the recipient of the tax, which would have been materially less had the will been set aside.</p> <p>6. Same—when section 2 of act does not apply. Section 2 of the In- ’ heritance Tax act, exempting from the tax a life estate devised or bequeathed to the wife, has no application where the wife renounces the will and elects to take other interests in the testator’s property than the life estate devised or bequeathed to her.</p> <p>7. Pleading—when amendment relates back to beginning of suit. An amendment to an application of a county treasurer to fix an inheritance tax, which corrects the rates at which such tax shall be computed under the same facts alleged in the original application, relates back to the commencement of the proceeding, and is not subject to the bar of the Statute of Limitations.</p>

P. A. Pearce, Judge, presiding. On August 7, 1901, the .¿Etna Life Insurance Company filed its bill in the circuit court of Jefferson county to foreclose a mortgage executed by George W. Beckman on certain real estate in that county. George W. Beck-man, James Mitchell, Susan Mitchell, Henry Buettner, Margaret Buettner, Ferdinand Buettner and Margaretha Buettner were made defendants. The suit was after-wards dismissed as to the first three above named defendants.

Theodore Brentano, Judge, presiding. The complainant, George E. Cox, filed his bill in the superior court of Cook county against defendant, Walter A. Spurgin, for the partition of certain real estate situated in that county. The facts appearing from the bill are as follows: The premises in question were acquired and owned by one John Spurgin and wife, who resided in Warren county, Illinois, each owning an undivided one-half interest therein.

Writ of Error to the Circuit Court of Champaign county; the Hon. F. M. Wright, Judge, presiding.

Writ op Error to the Criminal Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. The grand jury of Cook county, on the 28th day of May, 1903, returned an indictment into the criminal court of said county charging Ceorge Cunningham with having committed the crime of rape upon one Irene Callahan, a female child under the age of fourteen years.

<p>Appeals and errors—appellant must furnish a complete abstract. One bringing a case to the Supreme Court must furnish a complete abstract of the record, properly indexed, sufficient for the determination of the errors and exceptions relied upon without an examination of the record, in default whereof judgment will be affirmed.</p>

<p>1. Statutes—when amendment to an original act repeals intervening amendment. An amendment of certain sections of an original act, which amendment repeals all acts or parts of acts in conflict therewith, repeals a prior amendment of the same sections which contains no repealing clause hut merely changes the wording of the original sections, thereby becoming a part of the original act. (L. <& N. B. B. Co. v. Bast St. Louis, 134 Ill. 656, explained.)</p> <p>2. Same—amendment of 1901 to section 38 of Improvement act of 1897 is valid. The amendment of 1901 to section 38 of the Local Improvement act of 1897, concerning the appointment of the commissioner to spread a special assessment, is valid, and the act of 1899, amending said section 38, is repealed by the act of 1901, although no specific reference is made thereto.</p> <p>3. Same—improper appointment of commissioner is not ground for dismissing the petition. Improper appointment of the commissioner to spread a special assessment is not ground for dismissing the petition, but only for setting the assessment aside and properly appointing a commissioner to spread the new assessment.</p>

<p>1. Evidence—what does not sustain a judgment for unpaid personal tax. In an action of debt for personal property taxes, if the county collector’s return is not in evidence the liability may be shown by proving the assessment, extension of the taxes and their non-payment; but the return of the town collector, coupled with the testimony of a clerk in the county 'treasurer’s office that books showed the taxes to be unpaid, is not sufficient to sustain a judgment.</p> <p>2. Pleading—declaration in action of debt for taxes must show liability. Liability for taxes is statutory, and a declaration in action of debt for taxes must state facts from which the legal liability, under the statute, results as a conclusion of law.</p> <p>3. Taxes—persona? property of broker is assessable at his place of business. Under section 13 of the Revenue act the personal property of a broker which he employs in his business is to be listed and assessed in the town where the business is carried on.</p> <p>4. Same—what not an increase of individual assessment. If a person does business as a broker in a firm name implying an association of persons, the property employed in the business is properly assessed to the ostensible partnership, and an original assessment thereof by the board of review in the partnership name cannot be regarded as an increase in the broker’s individual assessment.</p> <p>5. Same—when tax-payer’s right to be heardis not violated. The right of a tax-payer to be heard upon the correctness of the valuation of his property for assessment is sufficiently protected by a provision for a hearing after the assessment has been made, and a general statute fixing the time fo'r such hearing is sufficient notice to the tax-payer.</p> <p>6. Same—notice to owner of original assessment by board of review is necessary. In case of an original assessment by the board of review there must be notice to the property owner and an opportunity for a hearing of some description, as a condition precedent to charging him with a tax. (Wabash, St. Louis and Pacific (Railway Co. v. Johnson, 108 Ill. 11, distinguished.)</p> <p>7. Same—board of review, in making an original assessment, must list property. In making original assessments the board of review is required to proceed as an assessor would, and to make a list of the property assessed, setting down in the column opposite the separate kinds of property the assessed value thereof, and has no power to assess a lump sum as the value of all the property of a tax-payer.</p>

<p>Appeals and eeeoes—chancellor’s findings of fact mil not be lightly disturbed. A finding of the chancellor upon the question of mental capacity of the grantor in a deed, based upon conflicting opinions of witnesses heard in open court, will be upheld, on appeal, unless clearly contrary to the weight of the evidence.</p>

<p>Instructions—when instruction as to disregarding testimony of witness is erroneous. An instruction permitting the jury to disregard the entire testimony of a witness who they b.elieve has willfully sworn falsely to a material matter, “except in so far as it may be corroborated by other credible evidence which they do believe,” etc., is erroneous, in requiring the credible evidence to be believed.</p>

E. W, Burke, Judge, presiding. This is an action in assumpsit brought by the plaintiff, the village of Morgan Park, to recover alleged overcharges for official fees made by Philip Knopf, county clerk of Cook county, for services rendered in the issuance of tax deeds.

<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. Frank K. Dunn, Judge, presiding.</p>

James R Creighton, Judge, presiding. This is a bill for partition filed by the complainants, Hannah Odum and Richard Odum, against the defendant, Mary A. Mason, in the circuit court of Franklin county.

Elbridge Hanecy, Judge, presiding. On August 7, 1900, appellant filed his petition in the circuit court of Cook county for a writ of mandamus directed to the city of Chicago, Carter H. Harrison, as mayor thereof, Joseph Kipley, superintendent of police, and John W. Ela and others, civil service commissioners, commanding them to place the name of appellant upon the pay-roll of the department of police of said city as sergeant of police, and to command the said civil service…

Edmund W. Burke, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment for $5000 rendered by the circuit court of Cook county in a suit brought by Annie E. Collins, administratrix of the estate of John L. Collins, deceased, against the Masonic Fraternity Temple Association, to recover damages for the death of said John L. Collins, occasioned through the alleged negligence of appellant.

Robert B. Shirley, Judge, presiding. This is a petition for mandamus, filed on September 3, 1904, by the relator, William Z. Partello, against J. S. McCullough, Auditor of Public Accounts, praying for a writ of mandamus, commanding the Auditor to execute and deliver to the relator a warrant on the Treasurer of the State of Illinois for $28,000.00, with interest from April 27, 1893, for the payment to the relator of a balance, alleged to be due to him for labor and materials,…

Writ op Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.

Elbridge Hanecy, Judge, presiding. The following statement of facts has been made by the Appellate Court, and precedes, as a preface, the opinion of that court deciding this case, to-wit: “This is a bill for divorce filed by appellee, charging appellant with adultery and extreme and repeated cruelty.

<p>1. Pleadings—what may he alleged in answer to hill for specific performance. ' An allegation in an answer to a cross-bill for specific performance that the only consideration for the agreement was the restitution to defendant of property which cross-complainant had wrongfully withheld from her when acting as her agent presents a good defense, and to sustain exceptions thereto is error.</p> <p>2. Specific performance—to defeat specific performance. Upon a bill for specific performance any circumstance may be shown, although independent of the writing sought to be enforced, making it inequitable to enforce the same.</p> <p>3. Res judicata—when judgment is not res judicata. A judgment is not an estoppel or bar to matters arising out of the action where it has been reversed by a court of review.</p> <p>4. Same—verdict not confirmed hy judgment is not res judicata. A proceeding in court resulting in a verdict does not constitute estoppel or res judicata while a motion for new trial is pending and undetermined.</p>

<p>1. Constitutional law—legislature has power to provide for the appointment of election judges by the county court. The provision of section 13 of article 2 of the Election act of 1885, (Laws of 1885, p. 150,) authorizing the confirmation and appointment of judges and clerks of election by the county court, is not unconstitutional as special legislation nor as violating the constitutional division -of the powers of the government into legislative, executive and judicial. (People v. Hoffman, 116 Ill. 587, adhered to.)</p> <p>2. Same—provision of section 13 of article 2 of JSlection act, concerning punishment of election officers for contempt, is valid. The provision .of section 13 of article 2 of the Election act of 1885, making judges and clerks of election officers of the court, and authorizing the court to try contempt proceedings against them in a summary way in open court without formal pleadings is not unconstitutional, as depriving the defendants of liberty without due process of law.</p> <p>3. Elections—section 13 of article 2 of JSlection act of 1885 construed. The “misbehavior” of election judges and clerks which the county court may punish by a contempt proceeding is not misbehavior at the mere caprice of the county court, but means misconduct in connection with the duties of their office, in violation of law or their instructions respecting such duties.</p> <p>4. Contempt—fact act is indictable' does not preclude punishment by contempt. The fact that an act is indictable or punishable otherwise does not deprive a court of the power to punish it as a contempt.</p> <p>5. Same—what act of election judges is punishable as a contempt. The act of election judges in permitting, in many different instances, the names of registered voters to be used and entered on the poll books twice, without proper investigation or requiring the affidavit required of a non-registered voter, is such misbehavior as is punishable, under the statute, as a contempt.</p> <p>Cartwright and Scott, JJ., dissenting.</p>

William Hartzell, Judge, presiding. This is an action in case, begun on December 22,1902, in the circuit court of Randolph county by the appellee, as administratrix of the estate of her deceased husband, William S. Marshall, against the appellant company to recover damages for the death of said William S. Marshall. The plea of the general issue was filed. The trial in the court below resulted in verdict and judgment in favor of appellee for $5000.00.

<p>Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>Original petition for mandamus.</p>

Axel Chytraus, Judge, presiding. This is a proceeding in chancery, brought in the superior court of Cook county by Valentine Hofmann, the appellant, to set aside a judgment theretofore entered by default against him in a suit in assumpsit in said superior court wherein James D. Burris was plaintiff; also to restrain Ernest J. Magerstadt, sheriff of said county, from enforcing the collection of said judgment under an execution theretofore issued to him, 'and praying that said…

<p>1. Taxes—section 256 of Bevenue act construed. Section 256 of the Revenue act, creating a lien to indemnify an agent or representative for paying taxes on property of his principal, refers to agents or representatives who at the time fixed for assessing property have possession of property of others which they are required by section 6 of the same act to list in their own names, as agents or representatives.</p> <p>2. Executors and administrators—when executors are not personally liable for taxes. Executors are not personally liable for taxes assessed by the board of review after the death of the testator for the years for which, during his lifetime, he had omitted to return his property for assessment.</p> <p>3. Same—basis of executor’s personal liability for taxes. The personal liability of agents or representatives for taxes arises from the statutory duty imposed upon them to list for taxation the property of others in their possession and the statutory lien on such property to secure re-imbursement for all taxes paid by them.</p>

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

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the City-Court of East St. Louis; the Hon. M. W. 'Schaefer, Judge, presiding.

W. H. Hinebaugh, Judge, presiding. Appellee is a corporation organized under the general law of 1872 as a street and interurban railroad company, for the purpose of constructing electric street railways in a number of towns, beginning with Princeton, in Bureau county, going thence to Ladd, thence to Spring Valley, thence to LaSalle, Utica, Ottawa and Marseilles, in LaSalle county.

Writ of Error to the Circuit Court of Pope county; the Hou. W. H. Duncan, Judge, presiding. This is a bill for partition, filed in the circuit court of Pope county on April 2, 1903, by the defendant in error, Henry B. Pierce,- against the plaintiff in error, Niven McConnell, and one Prank Staubitz, asking for the partition of the minerals on,'in and under the lands therein described.

<p>1. Burnt records—what sufficient to entitle petitioner to decree. In a burnt records proceeding, proof of the chain of title set out in the petition showing color of title made in good faith, possession and payment of taxes for seven successive years and the destruction of the records, entitles the petitioner to a decree unless the defendant shows a better title.</p> <p>2. Tax deeds—effect of introducing tax deed in burnt records case. Introduction of a tax deed in evidence in a burnt records proceeding is not sufficient to establish a title in the defendant unless the notice on which the deed is founded is also introduced.</p> <p>3. Same—cleric’s certificate must be made on day advertised for sale. A tax deed is itivalid where the record introduced in evidence shows that the certificate of the county clerk to the record of the judgment and order of sale was not made on the day advertised for the sale, as required by law.</p> <p>4. Costs—proper distribution of costs on setting aside tax titles quit-claimed. A decree in a burnt records proceeding setting aside tax titles quit-claimed by the holder should provide for re-payment to the grantee of her proportion of the taxes, interest and costs.</p>