Volume 211 — Illinois Reports

William M. Farmer, Judge, presiding. This was an action on the case in the circuit court of Marion county, brought by appellee to recover for personal injuries received by him while in a freight car containing personal property belonging to him, at Salem, in that county. The injury is charged to have resulted from the negligent act of the plaintiff in driving a train of cars with great violence against the freight car in question.

<p>1. Criminal law—verdict is ordinarily conclusive of weight of evidence. The verdict of the jury in a criminal case is conclusive of the weight of the evidence and the credibility of witnesses unless it is reasonably clear that it is erroneous.</p> <p>2. Same—what not material in prosecution for perjury. Where the principal witness in a perjury case is himself afterward indicted for perjury in swearing that the accused gave certain testimony in a garnishment proceeding, whether the garnishment was regular and the judgment therein valid are not material questions.</p> <p>3. Instructions—when instructions in criminal case are sufficient. It is sufficient if the series of instructions in a criminal case, considered as a whole, fully and fairly announce the law applicable to the theory of the prosecution and of the defense.</p> <p>4. Same—when omission of the words “from the evidence” is not fatal. Omission of the words “from the evidence” from an instruction conditioned upon the belief of the jury “beyond a reasonable doubt” is not ground for reversal if other instructions require the belief of the jury to arise from the evidence.</p> <p>5. Record—record cannot be impeached by mere affidavits. The record of a criminal case showing proper arraignment and plea can not be impeached by affidavits.</p>

Russell P. Goodwin, Judge, presiding. This was a bill in chancery filed in the superior court of Cook county by the appellee, a resident and tax-payer of the city of Chicago, against the city of Chicago, its mayor and certain other officers of said city, to enjoin said city from constructing by day labor a portion of section D of the Lawrence avenue main conduit for intercepting sewers.

<p>1. Dram-shops—dram-shops are not, as a matter of law, injurious to neighboring real estate. Courts will not declare, as matter of law, that dram-shops are prejudicial or injurious to neighboring real estate because of an ordinance requiring consent of a majority of the owners to an application for a license to keep a dram-shop.</p> <p>2. Same—tenant in common may sign dram-shop petition for his proportionate interest. Tenants in common may judge for themselves whether the keeping of a dram-shop in the vicinity of their property will be injurious, and each may sign a dram-shop petition as the representative of his proportionate interest in the property according to its frontage.</p> <p>3. Same—minor cannot sign dram-shop petition. A minor is not a competent person to sign a dram-shop petition as representing the frontage of the real estate owned by him.</p> <p>4. Same—when a guardian's signature is in individual capacity. A guardian’s signature to a dram-shop petition will be considered as executed in her individual capacity, where she owns a dower interest in the property signed for and there is nothing indicating that she signed in her capacity as guardian.</p>

Jesse Holdom, Judge, presiding. Appellant, The Hub, filed a bill in the superior court of Cook county against John J. Hanberg, county treasurer of that county, to restrain him from collecting certain taxes which had been extended against it by the county clerk of said county and for the collection of which appellee held a warrant. A temporary injunction was issued in compliance with the prayer of the bill.

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

Colostin D. Myers, Judge, presiding. This is an action in assumpsit, brought on May 11, 1901, in the circuit court of McLean county by appellee, V. E. Howell, against the appellants, J. P. Evans, Cora E. Evans, Rowland W. Evans, Fred R. Evans, William V. Evans, and Susan M. Evans, heirs of one J. W. Evans, deceased, upon a party-wall agreement under seal to recover latter’s proportion of the cost of the party walls, as fixed in the agreement.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p>

A. H. Chetlain, Judge, presiding. George Todd, one of the appellees, filed a bill in the superior court of Cook county against Anderson E. Martin and Alvah T. Martin, who are attorneys at law, and Wabash Shoe Company, for an accounting. Todd had been secretary and treasurer of that company. The bill charged that the Martins had received and collected certain moneys belonging to Todd and wrongfully appropriated the same to their own use.

<p>1. Special assessments—when it is proper to enter default against objector. Default is properly entered at the hearing of objections in a special assessment proceeding where the objector fails to appear after notice and makes no attempt to sustain objections.</p> <p>2. Same—when motion to set aside default is properly denied. A motion to set aside a default is properly denied where the evidence in support of the motion fails to show that the defendant was not negligent in suffering default or that he had a meritorious defense.</p> <p>3. Appeals and errors—court will not search transcript for error. The Supreme Court will not search the transcript of the record to find grounds for reversal which have not been made to appear in the abstract of record.</p> <p>4. Same—points made in reply brief for first time are not considered. Under rule 15 of the Supreme Court (204 Ill. 14) a point not made in appellant’s original brief will not be considered, though urged in the reply brief.</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. Elbridge Hanecy, Judge, presiding.

Writ of Error to the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding. This was an application in the circuit court of Cook county by Wilhelmine Mickow to register title in fee simple to certain lots in the city of Chicago, pursuant to an act concerning land titles, in force May 1, 1897, commonly known as the Land Registration act.

Elbridge Hanecy, Judge, presiding. This was a bill in chancery filed by the appellant, against the appellees, in the circuit court of Cook county, for the purpose of having the court fix the value on May 1, 1901, of lot 2 in the county clerk’s subdivision of block 120 in school section addition to Chicago, exclusive of the buildings thereon, under the terms of a thirty-year lease, bearing date May 1,1881, made by the father of the appellees, during his lifetime, to the…

Writ op Error to the Appellate .Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of Wabash county; the Hon. P. A. Pearce, Judge, presiding.

<p>1. Appeals and errors—when assignment of-error cannot bepassed upon. An assignment of error requiring inspection of plats or surveys cannot be passed upon by the Supreme Court, where the plats and surveys are not incorporated in the bill of exceptions nor shown in the abstract of the record.</p> <p>2. Same—error in passing upon propositions of law or instructions must be pointed out. An assignment of error that the trial court erred in passing upon propositions of law or instructions cannot be considered by the Supreme Court, where the errors are not indicated in the brief and argument.</p>

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

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Theodore Brent ano, Judge, presiding. At the April term, 1902, of the criminal court of Cook county, the two plaintiffs in error, William J. Gallagher and John O’Donnell, were indicted, with five others, for the crime of conspiracy to do a certain illegal act injurious to the administration of public justice.

<p>1. Adverse possession—what elements essential to adverse possession. Adverse possession, to be sufficient to defeat title of the real owner, must be hostile, actual, visible, notorious and exclusive, and must be continuous and under claim of title; and all of these elements must be established by clear proof.</p> <p>2. Res judicata—judgment in forcible detainer not an adjudication of title. A judgment in forcible detainer is not an adjudication of title, since the only inquiry in such case is the right to immediate possession of the premises.</p> <p>3. Rehearings—argumentative petition will be stricken from the files. A petition for rehearing which re-argues the case in violation of rule 30 of the court will be stricken from the files.</p>

<p>1. Res Judicata—when questions are res judicata though not presented. When litigation is prosecuted to an appellate tribunal and passed upon, all questions relating to the same subject matter which were open to consideration and could have been presented are res judicata, whether they were presented or not.</p> <p>2. Same—all abjections to an ordinance must be raised on first appeal. Upon reversal of a judgment of confirmation upon the ground of insufficient description of the improvement, new objections which existed when the assessment was confirmed cannot be urged to the validity of the ordinance when the cause is re-docketed, nothing having been done in the meantime to call for new objections.</p> <p>3. Same—ivhen dismissal of petition is not a bar. Dismissal of a petition for a new assessment upon the ground that it was brought under the wrong statute does not bar a subsequent petition under the statute authorizing its presentation.</p> <p>4. Special assessments—when appointment of commissioners is unnecessary. Appointment of commissioners to estimate the deficit is not necessary in a proceeding to levy a supplemental assessment under the City and Village act of 1872, where the work is completed and accepted, bonds and vouchers issued in payment, and amount of the deficit is a mere matter of computation.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. ,0. H. Horton, Judge, presiding.</p>

John Gibbons, Judge, presiding. This was an action on the case, brought by appellant, Antoinette Gage, against George W. Springer, Charles S. Clarke and William McGrew, appellees, in the circuit court of Cook county.

Writ of Error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. The complainant, David B. Lyman,- receiver of the Third National Bank of Chicago, insolvent, filed his bill in the superior court of Cook county for the purpose of setting aside certain special assessment proceedings in the county court of that county, and for an injunction to restrain the sale of property described in the bill to pay a special assessment.

Benjamin R. Burroughs, Judge, presiding. This suit is an action on the case brought by William Campbell, appellee, against the appellant coal company, a corporation, the plaintiff having been engaged in said mine as a driver. The declaration consists of three counts, in all of which it is charged that on the 11th day of December, 1901, the plaintiff was in the employ of the defendant as driver.

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Cir- ' cuit Court of Cook county; the Hon. E. W. Burke, Judge, presiding.</p>

<p>1. Special assessments—when property is not subject to a supplemental assessment. A verdict of the jury, upon the question of benefits in a special assessment proceeding, that the property is not assessed more nor less than it will he benefited by the improvement nor more nor less than its proportionate share of the cost, is res judicata upon the question of benefits, and the property is not subject to supplemental assessment.</p> <p>2. Same—street improvement is not confined to surface work. A proceeding for improving a street by special assessment is not limited to the improving of the surface as a highway, but includes all improvements usually placed in streets which are of a character to be paid for by special assessment.</p> <p>3. Same—release in contractor’s vouchers does not preclude a supplemental assessment. The release of the city’s liability provided by section 63 of article 9 of the City and Village act to be contained in vouchers issued to the contractor for work to be paid for by special assessment, does not preclude a supplemental assessment in case of a deficiency in the original assessment.</p> <p>4. Same—extras must be within general t&rms of original description. Where the items constituting the extras on a local improvement are not apparently provided for in the ordinance, the city must show that they come within the general terms of the original description of the improvement or they cannot be paid for out of the assessment levied for the improvement.</p> <p>5. Same—interest on contractor’s vouchers is part of the cost of the improvement. Interest upon the vouchers issued to the contractor for a local improvement to be paid for by a special assessment is part of the cost of the improvement.</p>

<p>Appeals and errors—mere construction of franchise does not authorize direct appeal. A question of the mere construction of a franchise, the existence of which is not questioned, does not authorize an appeal directly from the trial court to the Supreme Court.</p>

<p>Motion for leave to file petition for mandamus.</p>

<p>1. Equity—equity has no jurisdiction over purely political matters. A court of equity has no jurisdiction to enjoin particular action by the Secretary of State in the performance of his official duty in purely political matters, and any order entered by a court of equity assuming such jurisdiction is void.</p> <p>2. Mandamus—relator must show a clear legal right to writ. To establish the right to a writ of mandamus the relator must show a clear legal right to the relief sought and a clear legal duty upon the part of the respondent to do the act the performance of which is sought to be enforced.</p> <p>3. Elections—authority of chairman and secretary of county central committee to call convention is not prestimed. It will not be presumed, in aid of a motion for leave to file a petition for mandamus, that the chairman and secretary of the county central committee had authority to call a convention of delegates, where the petition is silent in that respect.</p> <p>4. Same—when mandamus will not be awarded. Mandamus will not be awarded to compel the Secretary of State to certify the relator’s name as the nominee of a certain convention where the petition fails to show that the convention was a legal one, called by parties regularly and duly authorized to call it.</p>

<p>1. Instructions—error in limiting number of instructions must be prejudicial to reverse. Error in arbitrarily limiting the number of instructions to be given is not ground for reversal unless it operates to exclude an instruction which the party was entitled to have.</p> <p>2. Negligence—whether a passenger was negligent in stepping from moving car is not a question of law. Whether a passenger was guilty of contributory negligence in attempting to alight from or board a moving car is a question of fact under the surrounding circumstances, and not a question of law for the court.</p>

<p>1. Elections—what not an election to stand by certain certificate of nomination. Filing objections to one of two certificates of nomination by the same party for the same office is not such an election by the objecting nominee to stand by the other certificate as will bar him from representation' under the certificate objected to, when the latter is held by the proper tribunal to be the only valid certificate.</p> <p>2. Same—decision of county judges as to validity of certificate of nomination is final. Where a candidate nominated by two conventions of the same party under the same party appellation for the same office files objections to one of the two certificates of nomination, the decision of the county judges to whom the matter is referable that the certificate of nomination objected to is valid is final, and the objecting nominee is entitled to have his name go upon the ticket in accordance with such certificate.</p>

Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Flon. John Gibbons, Judge, presiding.

<p>1. Appeals and Errors—when rulings on propositions of law cannot be reviewed. Rulings of the trial court upon propositions of law will not be reviewed, on appeal, in a case wherein neither of the parties was entitled to a jury trial, since section 41 of the Practice act applies only to trials, by agreement, without a jury.</p> <p>2. Wills—effect where subscribing witnesses to will are dead. If the will appears to have been regularly executed and the signatures of the testator and of the deceased subscribing witnesses are proved to be genuine, the inference arises that the witnesses believed the testator to be of sound mind and memory, even though there is no recital to that effect in the attestation clause.</p> <p>3. Same—when will is prima facie entitled to probate. A will is prima facie entitled to probate although the subscribing witnesses are dead and there is no formal recital in the attestation clause that they believed the testator to be of sound mind and memory, where the will, on its face, appears to be regularly executed, the signatures of the testator and the witnesses are shown to be genuine, and there is proof that the testator, at the time the will was made, transacted intelligently the ordinary business affairs of life.</p>

<p>Appeal from the Appellate Court for the Second District ;■—heard in that court on appeal from the Circuit Court of JoDaviess county; tie Hon. James S. BaumE, 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 Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.

Writ or Error to the Circuit Court of Williamson county; the Hon. W. M. BuTlLR, Judge# presiding. In September, 1884, Allen L. Ralls and Sallie A. R., his wife, filed in the county court of Williamson county a petition for the adoption of Mary J. Singleton as their child. In 1885 the said Mary J. was married to one John Boyd and in 1892 died intestate, leaving her husband and Alec and Mattie Boyd, her children and only heirs-at-law.

<p>1. Dram-shops—park frontage must be counted in estimating frontage. Park frontage bordering upon the street where a dram-shop is proposed to be opened must be included in estimating total frontage under an ordinance requiring consent of a majority of the property owners according to frontage.</p> <p>2. Same—board of park commissioners is a "property owner” as respects frontage consent. The board of park commissioners, for the purpose of consenting or refusing to give consent to the granting of a license to open a dram-shop upon a street on which the park abuts, is a property owner, within the meaning of an ordinance requiring consent of property owners according to frontage.</p> <p>3. Same—the frontage cannot be counted if consent is paid for. Frontage signed for by an owner of property to aid the applicant for a dram-shop license to secure sufficient frontage consents cannot be lawfully counted as signed for if the consent to sign was procured by paying the owner money, or other valuable consideration.</p> <p>4. Same—property owner may zvithdraw consent before final action. A property owner who has signed an application for a dram-shop license has a right to withdraw his consent at any time before the tribunal created by law to determine the matter submitted by the application has finally acted.</p> <p>' 5. Same—frontage may be signed for by an authorized agent. Frontage consents may be signed by authorized agents of the owners of the property signed for.</p>

<p>Inheritance tax—gift made in expectation of death is taxable, regardless of intent to defraud. An interest transferred by deed, grant, sale or gift is taxable, under section 1 of the Inheritance Tax act, (Laws of 1895, p. 302,) if made in expectation of death or having death in view, whether there was a fraudulent intent to thereby evade the law or not. 1</p>

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. S. TuTiiirr, Judge, presiding.

Frank D. Ramsay, Judge, presiding. Appellee, Rowse, filed his bill in the circuit court of Whiteside county to remove a sheriff’s deed to appellant for an undivided one-third interest in the premises, as a cloud upon complainant’s title to lots 5 and 6, block 33, in Wallace’s addition to the city of Sterling.

<p>1. Bills and notes—parol evidence is admissible to show there was no consideration for endorsement. As between an endorsee and his immediate endorser, parol proof is admissible to show there was no consideration for the endorsement.</p> <p>2. Same •—when an endorsement is without consideration. Endorsement of a note by the holder on delivering it to the guarantor of the note in exchange for a note of equal amount executed by the guarantor because of his liability upon the former note is without consideration, and is not available as a set-off in a suit upon the latter note.</p> <p>3. Appeals and errors—when irregularity in appointing referee cannot be availed of. An irregularity in the appointment of a referee, consisting of the fact that he was described in the order of court as one of the masters in chancery of that court, cannot be first availed of on appeal.</p>

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

Writ oB 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. A. H. ChETLain, Judge, presiding. x

<p>1. Evidence—what not competent to prove contents of lost affidavit for replevin writ. In an action on a replevin bond, if the aEdavit for the writ is lost or destroyed its contents cannot be proved by showing a custom of the clerk to copy certain statements contained in replevin aEdavits into the writs, there being no testimony that he did so in the -particular case.</p> <p>2. Same—what not competent in action on replevin bond. Proof of an alleged agreement that the return of the property which was made was to be accepted in full discharge of liability on the replevin bond is not competent in a suit on the bond, where counsel have stipulated that the only issue of fact to be determined is whether the property taken under the writ was returned.</p> <p>3. Stipulations—stipulations by counsel as to the issues are binding on clients. Stipulations made by counsel restricting the issues to certain facts are binding upon their clients, and the parties must be limited to the issues so stipulated.</p> <p>4. Replevin—failure to prosecute replevin suit renders plaintiff liable. Failure of plaintiff in replevin to prosecute the suit renders him liable upon the bond for nominal damages at least.</p> <p>5. Same—measure of damages in suit on replevin bond. If the plaintiff in replevin, after judgment of return, fails to return all of the property, and that which is returned is injured, the measure of damages in a suit on his bond is the value of the goods not returned, with legal interest from the time of the replevin, and deterioration in value of those returned resulting from the injury, with legal interest from the date of their return.</p>

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

D. L. Jones, Judge, presiding. On September 10, 1903, the Chicago and Milwaukee Electric Railroad Company, the appellant, filed a petition in the county court of Lake county to condemn two tracts of land, one lying in the city of Fort Sheridan and the other in the village of North Chicago, both in Lake county.

Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding. This is an action of trespass on the case, brought on August 21, 1 goo, by the appellee against the appellant company in the Superior court of Cook county to recover damages for a personal injury.

<p>1. Evidence—range of testimony as to effect of injury on plaintiff’s mental condition. As tending to show the effect of plaintiff’s injury upon his mental condition, it is competent to show such condition^ before the injury and also continuously from and after the injury, and any witness having any knowledge upon the subject during any part of the time covered by the inquiry is competent to testify, the weight of his testimony being for the jury.</p> <p>2. Trial—ivhen improper remark of counsel will not reverse. A remark by counsel for the plaintiff on a second trial to the effect that he was “satisfied at the end of the other trial” will not reverse, where an objection to the remark is sustained and the remark criticised by the court and where the verdict is amply sustained in other respects.</p>

<p>Triai,—what must be assumed by court on motion to direct verdict. On motion to direct a verdict for defendant in an action for breach of contract, the court is bound to assume not only that a contract was made, but that it was the contract testified to by the plaintiff and not the one which defendant’s witnesses said he offered to make.</p>

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

<p>1. Tax deeds—tax deed is prima facie evidence of validity of process. A tax deed is prima facie evidence' of the sufficiency and validity of the process upon which the sale was made and that the sale was conducted in the manner required by law.</p> <p>2. Evidence—when records certified by "clerk of county court” are not admissible. Copies of records and certificates of which the county clerk is the legal custodian are not admissible in evidence if certified by the “clerk of the county court,” since the offices are distinct although held by the same person.</p> <p>3. Same—what recital cannot be certified to by county clerk. A recital in the tax judgment sale, redemption and forfeiture record, and in the certificates of sale, that the sale opened upon a certain day, is not a statement of fact authorized by statute to be made and certified to by the county clerk.</p>

Writ op Error to the Circuit Court of Greene county; tire Hon. O. P. Thompson, Judge, presiding. On October 22, 1903, plaintiff in error, Henry J. Cummings, was fined $25 by a justice of the peace of Greene county for hunting game with a gun without having a license, as prescribed by section 25 of chapter 61 of Hurd’s Statutes of 1903.

Writ op Error to the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding.

Writ oE Error to the Criminal Court of Cook county; the Hon.- A. IT. Ci-iETlain, Judge, presiding. This is an indictment of the plaintiff in error by a grand jury of Cook county for the murder of his wife, Ellen T. Nordgren. Plaintiff in error was tried in the criminal court of Cook county in February, 1903, and found guilty by the jury of the offense charged against him.

Philip Stein, Judge, presiding. This is an appeal from a judgment of the Appellate Court, affirming a judgment of the superior court of Cook county against appellants.

C. M. Walker, Judge, presiding. On July 31, 1901, Margaret Lang filed a bill in the circuit court of Cook county against John Kaiser, praying that the legal title to certain premises in the city of Chicago, known as No. 234 Vine street, be decreed as held in trust for her by Kaiser, and that he be ordered to convey such title to her; also for an accounting of certain moneys alleged to be held in trust by him for the complainant, and for an order requiring him to pay to her…

Appear from the Circuit Court of Cook county; the Hon. F. A. Smith, Judge, presiding.

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Knox county; the Hon. George W. -Thompson, Judge, presiding.

<p>Appeal from the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Montgomery county; the Hon. Wm. M. Farmer, Judge, presiding.</p>

<p>1. Master and servant—master not liable for foreman’s negligence in performing duties as co-laborer. A master is not liable for the negligence of his foreman in performing, as a co-laborer of the injured servant, a duty which is not a personal one which the master owes to the servant.</p> <p>2. Same—master liable for foreman’s improper exercise of authority. The master is liable for his foreman’s negligent and improper exercise of his authority which causes injury to a servant.</p> <p>3. Same—master liable for negligent performance of personal duties. The master is liable for the negligent performance of personal duties to his servants delegated to another person as a vice-principal, whether such person is a foreman or common laborer or whatever his position may be.</p> <p>4. Evidence—agent’s narration of past events docs not bind the principal. A declaration made by a foreman when visiting an injured servant as to circumstances connected with the accident causing the injury is not binding on the master, and cannot be proved except for purpose of impeachment, after proper foundation laid.</p>

<p>1. Habeas corpus—order of court as to custody of child is a final order. In habeas corpus proceedings for the custody of a child the order of the court having competent jurisdiction is a final order, which may be reviewed on writ of error, and is res judicata on subsequent application to another court, where the facts are the same and there has been no change in the conditions existing when the order was made. (Wilkin, Cartwright and Scott, JJ., dissenting.)</p> <p>2. Parent and child—parent’s right to custody of child is paramount. The right of a parent to the custody of his children is superior to that of any other person when the parent is a fit person to have the custody and is able to provide them with the necessaries of life and administer to their requirements according to their best interests.</p> <p>3. Same—financial interest of child is not controlling. The interest of the child, which is the controlling element in the decision of the court as to the question who shall be entitled to his custody, is not his financial interest alone, although such interest is not to be disregarded.</p>

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. P. Vair, Judge, presiding. This is an action on the case, brought on January 6, I902, in the circuit court of Cook county by appellee, as administrator of John F. McHale, deceased, and against appellant to recover damages for injuries to the deceased, resulting in his death, alleged to have been caused by the negligence of the appellant.

Writ or Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Robert B. Shirley, Judge, presiding.

C. H. Donnelly, Judge, presiding. This is a bill filed by appellant, Martha A. Rodman, the legal owner and holder of a note secured by trust deed, to redeem from a prior mortgage made to Martha A. Quick, both upon the same farm located in Lake county, and which prior mortgage was foreclosed without appellant being made a party to the proceeding.

<p>1. Costs—fee bills cannot be levied before demand for payment. Section 28 of the Costs act does not authorize the levy of a cost or fee bill upon land unless payment of the bill shall not be made within thirty days after demand for payment.</p> <p>2. Judicial saeES—when sale will be set aside. A sale en masse of the interest in remainder in two tracts of land to the life tenant for one-tenth of its value, to satisfy a bill for costs in litigation in which he was an attorney and an interested party, will be set aside, where he procured the cost bill to be levied without the statutory demand for payment and refused to bid on either tract separately, although either was worth much more than the amount of the cost.</p> <p>3. Laches—laches is not ordinarily imputed to remainder-men. Laches is not ordinarily imputed to remainder-men during the continuance of the preceding estate, since the Statute of Limitations does not operate against them.</p> <p>4. Champerty—defense of champerty is available only in suit between parties. The defense of champerty can only be interposed in an action between the parties to the champertous contract, and does not furnish ground for refusing relief in the proceeding to which the champertous contract relates.</p> <p>5. Res judicata—when right to set aside sale is not res judicata. The right of remainder-men to have a sale of their interest set aside is not res judicata by reason of their failure to ask such relief by cross-bill in a prior proceeding by the life tenant against the same defendant to have the sale of the life estate set aside, where, although the remainder-men were made parties defendant to that suit, the sales were made at different times, in distinct proceedings and by different officers of different courts.</p> <p>6. Judgments and decrees—what should be provided in decree granting conditional relief. A decree setting aside a sheriff’s sale and allowing redemption upon performance by complainants of certain specified conditions, should provide that in case of non-performance of the conditions within the time limited by the decree the bill shall be dismissed at complainant’s cost.</p>

AppeIar from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Will county; the Hon. John Smarr, Judge, presiding. This is an action on the case, brought by Frederick Hiller, appellee, against the Chicago Telephone Company and the Economy Light and Power Company, appellants, to recover for personal injuries sustained by him in Joliet, Illinois.

<p>1. Covenants—inchoate right to dower is an encumbrance. An inchoate right to dower is an encumbrance, within the meaning of the terms of a general warranty deed.</p> <p>2. Specific performance—party not required to accept a deed subject to inchoate right of dower. A proposed purchaser of land who has contracted for a title free from encumbrance is not required to accept a deed subject to an inchoate right of dower, but he is entitled, if he so elects, to such a deed as the seller can give, with a proportionate abatement of the price if the amount of the deduction can be ascertained. ■</p> <p>3. Same—value of an inchoate right of dower cannot be determined by master. The value of an inchoate dower interest, even if it could be ascertained, cannot be determined by the master in chancery, since such question involves the exercise of judicial power.</p> <p>4. Same—when deduction cannot be made for inchoate dower interest. In ordering specific performance of a contract for the sale of land which does not fix a sum as liquidated damages for failure of the wife to join in the deed, the chancellor has no power to provide for a deduction from the purchase price of any sum as the value of the inchoate right of dower.</p> <p>5. Same—when specific performance cannot be decreed. Specific performance of a contract to convey land cannot be decreed where the party who in fact made the contract and who was the only party in interest is not a party to the suit, it being proved that the nominal purchaser had no interest in the contract and knew nothing of it or its terms.</p> <p>6. Same—correct practice where seller’s wife. refuses to sign deed. In the absence of any provision in a contract for the sale of land fixing a sum as liquidated damages for failure of the seller’s wife to sign the deed, the court, on application for specific performance by the purchaser, can only require the seller to convey, and must leave the purchaser to rely on his covenants of warranty.</p> <p>7. Evidence—value of inchoate right of dower cannot be determined by mortality tables. The value of an inchoate right of dower cannot be approximately ascertained by the use of mortality tables.</p> <p>8. Parties—one having stibstantial beneficial interest should be made party to suit in equity. One having a substantial beneficial interest in the subject matter of a suit in equity should be made a party to the suit.</p>

<p>1. Trial—motion to direct a verdict does not require weighing the evidence. On a motion to direct a verdict the real question is whether there is any evidence tending to support the material allegations of the declaration, and not whether, upon weighing the evidence, a verdict against the party making the motion would have to be set aside. (Language in Simmons v. Chicago and Tomah Railroad Co. no III 340, criticised.)</p> <p>2. Same—rule as to directing verdict in suit at law applies to will contest. In a proceeding in equity to contest a will upon the ground of undue influence or lack of testamentary capacity the same rule regarding directing a verdict applies as in a suit at law.</p> <p>3. Wills—old age and physical infirmity are not evidence of a want of testamentary capacity. To sustain a charge of want of sufficient mental capacity to make a will, something more than physical suffering, disease and old age must be shown.</p> <p>4. Same—anxiety to have a will made is not undue influence. Undue influence on the part of certain beneficiaries under the will is not established by proof that they were anxious to have the testator make a will of some kind in the expectation of being beneficiaries, there being no proof of any attempt to influence the testator to make any particular disposition of his property.</p>

Joseph E. Gary, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county in favor of appellee for $2500, for damages for personal injuries sustained by appellee as the result of an accident to appellant’s train running south on Wabash avenue, in the city of Chicago, appdlee being a passenger thereon, October 13, 1899.

<p>1. Parent and child—burden is on parent to show that conveyance was fair. In case of a conveyance from a child recently of age to a parent, the burden is upon the latter, or those claiming under him, to show that the transaction was free from fraud or influence growing out of the fiduciary relation of the parties.</p> <p>2. Same—when conveyance should be sustained. A conveyance from a child recently of age to a parent should be upheld, where it is clear that it was voluntarily made, free from fraud, and was for the best interest of the child in saving the estate, which he was rapidly wasting through his spendthrift habits.</p> <p>3. Evidence—what evidence rebuts presumption that deed was not voluntarily made. The presumption that a deed from a child recently of age to a parent was not voluntarily or understandingly made, is rebutted by" proof that the grantor subsequently testified, in two proceedings in court, that he conveyed the property to his father and received the consideration, not questioning the validity of the deed.</p> <p>4. Estoppel—when child is estopped to question the validity of deed. A son who contests the will of his father, claiming title as heir-at-laV to land which he had conveyed to his father by deed, is estopped, when defeated in that proceeding, to subsequently attack the validity of the deed.</p> <p>5. Laches—one seeking to avoid deed must act promptly. One seeking to avoid a deed upon the ground of fraud or undue influence in its execution must act promptly after full knowledge of the facts, particularly after the death of the grantee, or he will be deemed to have affirmed the deed.</p>

<p>1. Fraudulent conveyances—when return of execution nulla bona is not essential to jurisdiction. The issue of an execution and its return nulla bona are not essential to jurisdiction of the court to entertain a bill to remove an alleged fraudulent conveyance of land from out the way of an execution and subje.ct the same to the lien of the judgment.</p> <p>2. Evidence—what are not privileged communications. Statements made by clients in the presence of third parties, or of the opposite party or his attorneys, are not of that confidential nature that the clients may insist shall not be disclosed by the attorneys.</p> <p>3. Contracts—when validity of contract is immaterial. In a proceeding by a judgment debtor to set aside a conveyance made in pursuance of a contract between the judgment creditor and his wife, the question whether the contract was against public policy, in that it provided, in part, for the entry of a decree of divorce, is immaterial.</p> <p>4. Judgments and decrees—levy of execution on land not a satisfaction of judgment. The levy of an execution upon land of sufficient value to satisfy it does not operate, while the levy remains undisposed of, as such a satisfaction of the judgment as will bar an attempt to collect the judgment by other means.</p> <p>5. Same—what does not affect force of judgment. Where the title to land upon which an attachment is levied does not stand in the attachment debtor, a judgment creditor who has bid at the attachment sale may decline to perfect his bid, and in such case the attempted sale is not a satisfaction of the judgments or executions which precludes a further attempt to collect them.</p> <p>6. Costs—when wife may be decreed to pay part of costs. In a proceeding to remove a fraudulent conveyance from the way of an execution it is not error to decree that the wife of the holder of the legal title shall be liable, with the other defendants, for the costs, where, although her interest, at most, was an inchoate right of dower, she voluntarily filed an -answer denying the charges in the bill and appeared by counsel on the hearing and attempted to support her answer by proof.</p>

Charles Blanchard, Judge, presiding. This is an appeal from a decree of the circuit court of LaSalle county ordering certain premises to be sold in a partition proceeding begun by appellees against appellants. On March 10, 1888, a prior partition was had of certain lands of which Adam Diller died seized, the eighty-acre tract involved in this suit being then set off to his widow as and for her homestead and dower, the remainder not being then divided.

William L. Pond, Judge, presiding. This was a condemnation proceeding, brought by the Illinois, Iowa and Minnesota Railway Company, appellant, in the county court of DeKalb county, on March 7, 1904, to condemn a strip of land, one hundred feet in width, through two tracts of land in said county, one of said tracts containing .i 60 acres and belonging to appellees, Alvin, James and Wilson Easterbrook, and the other containing 40 acres and owned by appellee, Priscilla…

E. E. Dunne, Judge, presiding. This suit was brought in the circuit court of Cook county by George Beidler and others, who are owners as tenants in common of the lots hereinafter mentioned, against the Sanitary District of Chicago, to recover as damages the amount expended by plaintiffs in deepening or lowering the canals hereinafter referred to, and in repairing certain docks fronting on said canals and the south branch of the Chicago river, and for permanent injury to said…