Volume 212 — Illinois Reports

Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. S. TuThird, Judge, presiding. This is an action on the case brought by the appellees, against the appellant, to recover for damages to their building resulting from the use of dynamite in the construction of a tunnel for the city.

<p>1. Continuance—statement that former judgment was set aside does not show meritorious defense. A statement in an affidavit by a defendant for continuance that a former judgment against the defendant had been set aside, without stating upon what ground, does not show a meritorious defense.</p> <p>2. Same—when sickness of counsel is not ground for continuance. Si'ckness on the part of counsel for defendant is not ground for continuance, where the case has been twice tried and records made of the trials and there is no statement in the affidavit that remaining counsel were unable to fairly and fully present whatever defense existed.</p> <p>3. Same—when refusal to grant continuance will not reverse. Refusal to grant a continuance upon grounds other than statutory will not reverse, unless the court of review can see that the trial court abused its discretion.</p> <p>4. Evidence—length of time sidewalk has been defective is competent on question of notice. Proof of the length of time a sidewalk has been continuously out of repair immediately prior to the plaintiff's injury therefrom is competent upon the question of notice, where the city is denying that the walk was out of repair or that it had notice that it was.</p> <p>5. Triad—trial cotirt has reasonable discretion as to when proceedings shall be had. The trial court, in the discharge of its business, must be allowed a reasonable discretion as to when arguments and other proceedings shall be had and the length of time counsel may occupy in argument.</p> <p>6. Appeads and errors—whether the verdict was excessive is a question settled in Appellate Court. Whether the verdict in a suit at law was excessive or the result of passion or prejudice is a question of fact conclusively settled by the judgment of the Appellate Court.</p> <p>7. Costs—when appellee must pay all costs of appeal. On appeal by a city from a judgment for a sidewalk injury, if the appellee enters a remittitur of a part of the judgment to which he was not entitled, and the judgment, after deducting the remittitur, is affirmed, the appellee should pay all costs of the appeal.</p>

Philip Stein, Judge, presiding. This is an action on the case, brought by Katherine Kolander, administratrix of the estate of Joseph Kolander, deceased, to recover damages for injuries, resulting in the death of the deceased, while he was in the service of the appellant company.

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

Appeae from the Circuit Court of Kane county; the Hon. H. B. Wieeis, Judge, presiding. This is a bill filed by the appellant in the circuit court of Kane county, by which he seeks to have declared void the third and fourth clauses of his father’s will, on the ground that they violate the rule against perpetuities. The testator, John J. Schuknecht, died in 1898, leaving the complainant, his only son, and three grandchildren, sons of the complainant.

<p>1. Instructions—instructions should be accurate if the facts are calculated to excite sympathy. In actions sounding purely in damages, if the evidence is conflicting and the facts calculated to excite sympathy, the instructions to the jury must be clear, accurate and concise.</p> <p>2. Same—when instruction as to damages, is misleading. An instruction in a personal injury suit is misleading which authorizes the jury, in estimating the damages, to take into consideration the “present physical condition of the plaintiff as shown by the evidence,” without requiring that such condition be found to be the result of the injury.</p> <p>3. Trial—great latitude should be allowed in cross-examination if the plaintiff’s symptoms may be feigned. Wide latitude in cross-examination of the plaintiff in a personal injury case should be allowed where the extent of her disabilities is in dispute and the character thereof such that the symptoms may be feigned.</p>

Orrin N. Carter, Judge, presiding. This was an application for the confirmation of a special assessment, made under a supplemental petition filed on December 24, 1901, in the county court of Cook county, for the purpose of securing the necessary funds to satisfy the unpaid balance of the cost of making an • improvement of State street, in the city of Chicago, under the Local Improvement act. The county court sustained an objection filed,by appellees, and the city appeals.

Writ oE Error to the County Court of Coles county; the Hon. T. N. CoEER, Judge, presiding.

Charles G. Neely, Judge, presiding. The Appellate Court for the First District affirmed a judgment of the circuit court of Cook county for the costs of suit in an action by appellant against appellees.

John Gibbons, Judge, presiding. The original bill in this case was filed on August 5, 1901, by the People to foreclose liens against real estate forfeited to the State for the non-payment of the taxes of two or more years, by virtue of-section 253 of chapter 120 of the Revised Statutes, being the Revenue act. (3 Starr & Curt. Ann. Stat. ■—-2d ed.—p. 3507).

<p>Appeal, from the Circuit Court of Sangamon county • the Hon. James A. Creighton, Judge, presiding. 0</p>

Writ or Error to the Circuit Court of Cook county; the Hon. M. F. Tulry, Judge, presiding.

<p>Appear from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Richland county; the FEon. P. A. Pearce, Judge, presiding.</p> <p>At the April term, 1903, of the circuit court of Richland county the appellee, Edwin C. Kingsbury, filed his bill to restrain the appellant, Harry B. Andrews, from engaging in the newspaper business in the city of Olney, either as proprietor, editor, manager, or in any way whatever, either for himself or anyone else, for a period of five years, as provided in a certain alleged contract executed between the parties. A temporary injunction was issued as prayed, and upon a hearing it was made perpetual for the period of five years from November 2, 1901. An appeal was prayed to the Appellate Court for the Fourth District, where the decree of the circuit court was affirmed, and this appeal has been taken.</p> <p>On November 2, 1901, the appellant made a bill of sale of the printing plant of a certain newspaper known as the Olney Advocate to appellee, and on the sixth of the same month executed the following instrument:</p> <p>“I, Harry B. Andrews, having sold the Olney Advocate, a weekly newspaper published at Olney, Illinois, and transferred all my right, title and interest to the same, including good will, to E. C. Kingsbury, I hereby agree not to engage in the newspaper business in the city of Olney, either as proprietor, editor, manager, or in any way whatever, either for myself or anyone else, for the period of five years from the date of this ágreement, provided that E. C. Kingsbury remains in the newspaper business in Olney for that length of time.”</p> <p>Until about December 2, 1902, Andrews kept the terms of said, contract, but on that date purchased an interest in a newspaper in the city of Olney known as the Olney Times, and shortly thereafter an article appeared in that paper stating that “with this issue of the Olney Times the business and editorial management of the Times Printing Company will be under the direction and control of H. B. Andrews.” Immediately after the appearance of that article, and after Andrews had taken charge of the Olney Times, this bill for an injunction was filed.</p> <p>Appellant, in his answer to the bill, set up that he was not the proprietor or owner of the Olney Advocate at the time of the sale to the complainant, but that it was owned by his wife, and that he was merely the manager for her; that the sale of the paper was negotiated by one H. H. Kingsbury, acting as complainant’s agent, and that after the completion of the sale and transfer of the property the said agent wrote the contract above set forth and appellant signed it; that it was not part of the sale of the property, and was signed by the defendant without the knowledge of his wife; that the newspaper known as the Olney Times occupied h different field from the Olney Advocate, and they were in no sense competitors.</p>

George W. Brown, Judge, presiding. Appellees, the drainage commissioners of drainage district No. 1 of the town of Bristol, Kendall county, filed their petition for a writ of mandamus directed to appellant, requiring appellant to construct, enlarge, deepen and widen the waterwáy over and across the right of way of appellant, and to construct a railroad bridge across the waterway so widened and deepened along appellant’s railroad. Appellant demurred to the petition.

<p>1. Homestead—when agreement to relinquish homestead estate is valid. Where there are no minor children interested in the homestead estate, the husband and wife may, by agreement, bar dower of the wife and relinquish her interest in the homestead estate.</p> <p>2. Forcible detainer—what not proper issues in forcible detainer. In forcible detainer the questions whether the plaintiff had executed a deed to defendant’s husband, which had been lost or destroyed, and whether plaintiff’s deed should be corrected on account of an alleged mistake in the grantee’s name, cannot be investigated.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Charles B. Garnsey, Judge, presiding.</p>

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

<p>1. Construction—rule of ejzisdem generis not applied if larger intent is clear. The rule of ejusdem generis will not be applied where, from the whole instrument, a larger intent may be gathered which will be defeated by the application of the rule.</p> <p>2. Same—rule of ejusdem generis should not be applied to deprive words of all meaning. The restriction of general words of a deed to things ejusdem generis must not be carried to the extent of depriving the general words of all meaning, as where the particular enumeration is so exhaustive as to leave nothing which can be termed ejusdem generis.</p> <p>3. Deeds—when rule of ejusdem generis zvill not be applied to asszimption clause. The words “and claims of any and every description,” used in the assumption clause of a warranty deed made subject to “existing mortgages, liens, taxes and claims of any and every description, which the party of the second part assumes and agrees to pay,” are not to be restricted to claims shown of record to be encumbrances upon the property.</p> <p>4. Same—parol evidence competent to identify claims assumed. If the identity of the mortgages, liens, taxes and claims, of any and every description, assumed by the grantee are left in doubt by the terms of the deed, parol evidence is admissible to show what claims were embraced in the language used, since it is presumed they were assumed as part of the consideration.</p> <p>5. Same—effect zvhere deed assuming encumbrances is made to trustee. If the grantee who assumes existing encumbrances holds title for the benefit of another who paid the consideration, the beneficiary, in case of a deficiency, is liable therefor, and he cannot relieve himself from such liability by any language put in the deed made to him by the grantee, who held title for his benefit.</p> <p>6. Same—the acceptance of deed with knowledge of assumption clause binds grantee. Although a grantee does not sign a deed to him containing a clause assuming encumbrances, yet if he accepts the deed and places it upon record with knowledge of its contents he is bound as effectually as though he had executed the deed.</p> <p>7. Same—charge upon land may be created by contract. A clause in a deed whereby the grantee assumes and agrees to pay “existing mortgages, liens, taxes and claims of any and every description,” creates a charge upon the land conveyed, which covers accepted orders in favor of persons having claims for labor or material furnished for the erection of a building on the land.</p> <p>8. Equity—right of mortgagor to enforce assumption agreement. If the purchaser of mortgaged property assumes the payment of the mortgage debt, the mortgagor may proceed in equity to compel the purchaser, to whom the mortgagor stands in the relation of a surety, to discharge the debt for his protection.</p> <p>9. Same—right of intervenor cannot be defeated by dismissal of suit. An intervenor has the right to claim the benefit of the original suit and prosecute it to judgment, and such right cannot be defeated by dismissal after notice of the filing of the intervening petition.</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. E. F. DunnE, Judge, presiding.</p> <p>This is an action on the case, brought on May 18, 1895, by the appellee against the appellant company to recover damages for personal injuries, claimed to have been received by appellee on December 31, 1894, by being struck by one of appellant’s electric street railway cars at or near the intersection of Sixty-third street and Madison avenue in the city of Chicago. The ad .damnum was laid at $25,000.00. The plea of the general issue was filed, and the case has been tried three times. In the first two trials the juries were unable to agree. The last jury rendered a verdict in favor of appellee for 12,500.00, of which the trial judge required a remittitur of $8500.00, and judgment was entered against appellant for $4000.00. Upon appeal to the Appellate Court; the latter judgment has been affirmed, and the present appeal is prosecuted from such judgment of affirmance.</p>

<p>1. Wiles—when will creates contingent remainder. A will providing that upon the death or re-marriage of the widow the trust in her favor shall cease and the trust property- remaining shall “thereupon go to and the title to the real estate become vested” in the surviving children and the descendants of any children who have died in the meantime, creates a remainder contingent upon survival at the termination -of the trust.</p> <p>2. Same—when executrix has full poiver as sole trustee. If a will devises the testator’s property in trust to his executors or the survivor of them, but one of the persons nominated fails to qualify and dies, the other person nominated, upon qualifying and accepting the trus^becomes vested with all the power, as sole executor and trustee, which would have vested in both had the other qualified.</p> <p>3. Same—when trustees have power to use corpus of estate. A devise to the executors in trust for the sole benefit of the widow for life or until re-marriage, with power to them to sell, let, exchange, encumber or convey all, each and every portion of the real and personal property, and in their discretion to re-invest or lend the proceeds or any part thereof, authorizes the trustees to encroach upon the corpus of the estate if necessary to the preservation of the property and the support of the widow.</p> <p>4. Trusts—discretionary powers of trustee cannot be delegated. A trustee may act through an agent in the performance of ministerial duties, but the performance of duties involving the exercise of discretion and judgment cannot be delegated.</p> <p>5. Same—effect where trustee is incompetent to act. If a trustee, by reason of age or infirmity, becomes incompetent to act in the discharge of duties involving the exercise of discretion or judgment, a court of equity may appoint a new trustee, but the powers and duties of trustee cannot be transferred to another by contract.</p>

<p>1. Trial—failure to prove immaterial averment not ground for directing verdict. Failure to prove an averment that certain semaphores erected and used by certain railroads, including the defendant, were under the control of the servants of such companies, whereas the proof showed they were operated by the servants of one company only, is not ground for directing a verdict for the defendant, where no negligence in the management of the semaphore is charged.</p> <p>2. Negligence—zvhat does not affect right of recovery. The right to recover against a railroad company for the death of a fireman employed by another company, caused by a collision at the crossing of the roads, is not affected by the question whether or not the engineer with whom the fireman was working was negligent in not watching for defendant’s train instead of relying altogether upon the semaphore lights.</p> <p>3. Same—what does not bar recovery. That the engineer with .whom plaintiff's intestate was working as fireman was running at a speed prohibited by ordinance at the time it collided with defendant’s train at the crossing of the two roads does not bar the right to recover from the defendant company for the consequent death of the fireman.</p> <p>4. Evidence—what testimony is not a mere conclusion. Where the semaphore at a railroad crossing is torn down by the collision which caused the death of plaintiff’s intestate, witnesses who passed over the crossing frequently that night may testify that the semaphore was in good order and working all right prior to the collision, such testimony being properly regarded as statements of fact rather than conclusions.</p> <p>5. Same—what admissible as tending to show position of semaphore lights. Where the semaphores on parallel tracks at a railroad crossing are operated by the same wire and with the same result, testimony that at the time of the accident complained of a red light was displayed on one of the tracks tends to show that a red light was also displayed on the parallel track, there being no evidence that the semaphores were not in usual working order.</p> <p>C. & A. R. R. Co. v. Vipond, 112 Ill. App. 558, affirmed.</p>

<p>Appear from the County Court of Cook county; the-Hon. R. A. Russere, Judge, presiding.</p>

<p>1. Practice—objections to master’s rulings should be renewed as exceptions. Objections to the master’s rulings on evidence should be made before his report is returned, and if not acted upon favorably by the master should be renewed as exceptions to the report before the chancellor.</p> <p>2. Registration oE titles-—objections, to be preserved, should be made to report of examiner of titles. In a proceeding for registration of title the same rules apply to the mode of preserving for review objections to the report of the examiner of titles as are applicable to objections to the report of the master in chancery.</p> <p>3. Same—objection to report of examiner is in nature of a special demurrer. An objection to the report of the examiner of titles is in the nature of a special demurrer, and it must point out the grounds of the objection with clearness and certainty.</p> <p>4. Same—what does not preserve question'of sufficiency of preliminary proof. An objection that the examiner erred in finding that the applicant for initial registration of title was seized of a title in fee is not sufficiently specific to preserve the question as to the sufficiency of the preliminary proof for the admission of abstracts of title in evidence.</p> <p>5. Same—applicant is not required to show invalidity of the defendant’s claims. If an applicant for initial registration of title establishes title in himself, he is not required to affirmatively show the invalidity of defendant’s claims of title.</p>

Writ oe Error to the Circuit Court of Lee county; the Hon. R. S. Earrand, Judge, presiding. This is a writ of error to the circuit court of Lee county, to reverse the judgment of that court in a quo warranto proceeding by plaintiff in error, against defendants in error, to oust the latter from the office of drainage commissioners.

<p>1. Waiver—when sufficiency of verification of burnt records petition is waived. Failure to challenge the sufficiency of the verification of a burnt records petition until after final decree is a waiver of the objection.</p> <p>2. Burnt records—proceeding under Burnt Records act is a suit in equity. A proceeding under the Burnt Records act is a suit in equity, and the rules governing courts of equity control the proceeding so far as they are applicable.</p> <p>3. Same—presumptions are indulged to support decree. If the court, in a burnt records proceeding, finds that it has jurisdiction of the parties and the subject matter, its decree, based upon such finding, imports verity unless contradicted by some other portions of-the record, and all presumptions will be indulged which are necessary to support it.</p> <p>4. Same—defense of former adjudication should be set up by plea or answer. Defendant to a burnt records proceeding who desires to question the right of petitioner to file the petition upon the ground that a former petition had been filed by petitioner’s grantor, which had ripened into a decree, should do so by plea or answer, and cannot raise the question, after final decree, on the petition.</p> <p>5. Practice—correct practice where defendant is dissatisfied with action on demurrer. After final decree in a burnt records proceeding, if defendant is dissatisfied with the disposal of his demurrer to the petition he should move the court to vacate the decree and set aside the order overruling the demurrer and ordering that the petition be taken pro confesso as to him.</p>

<p>Writ op Error to the Criminal Court of Cook county; the Hon. E. E. Dunne, Judge, presiding.</p>

Axel Chytraus, Judge, presiding. This was a bill in chancery filed by the appellant in the superior court of Cook county to obtain a construction of the will of Dominick Mullanny, deceased, and the three codicils attached thereto, and for the appointment of a trustee. The will bore date March 6, 1896. The testator died September 20, 1901, and the will and codicils were admitted to probate by the probate court of Cook county October 30, 1901.

<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. Philip Stein, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding.</p> <p>This is a bill, filed in the circuit court of Cook county on May 19, 1902, by the appellees to set aside three tax deeds held by the appellant, Jacob Glos, and claimed to be clouds upon the title of appellees to lots 1 and 2 in block x in Walter S. Dray’s addition to Park Manor in Cook county. One deed, known as No. 4529K, was issued upon a sale for delinquent general taxes for the year 1895; the second deed, known as No. 488 xK, was issued upon sale for delinquent special assessment warrant No. 19,582; and the third deed, known as 4883K,' was issued upon sale for delinquent special assessment warrant No. 20,601. All three sales were made at the general sale for taxes in Cook county in 1896, and the sale of the year 1896 for delinquent taxes and special assessments was advertised in the delinquent list for that year to commence on August 10, 1896. Judgments were rendered against the property in controversy on July 15, 1896, for delinquent general taxes for the year 1895, and for delinquent special assessment warrants Nos. 19,582 and 20,601.</p> <p>The bill sets out the proceedings in full, upon which the tax deeds were issued, and the same were received in evidence without objection upon the ground of variance. The bill alleges “that by reason of the many uncertainties, insufficiencies and irregularities in said proceedings, affidavits and notices above set forth, and for want of proper proceedings, affidavits and notices,, and for want of compliance with the statute, in such case made and provided, said deeds conveyed no title whatsoever to said defendant Jacob Glos;” and that said deeds, for want of compliance with the statute, were null and void. The bill also alleged “that no notice of such purchases or either or any of them, written or printed, or partly written and partly printed, stating when the pretended purchaser of the premises at such tax sales as aforesaid, purchased the lands or lots, or in whose name the said premises, lands or lots were taxed or assessed, or the description of the lands or lots purchased, or of the premises of your orators, or for what year said premises, lands or lots were taxed or assessed, or when the time of redemption would expire, was served upon the said firm of Hall, Dresser & Co. (who it is alleged were agents of complainants for said premises)', or upon any or either of them as is required by the statute in such cases made and provided, nor was any such notice as aforesaid served upon your orators, or any or either of them, at the time when such notices should have been served, or at any time, and your orators further show that the said firm of Hall, Dresser & Co. and your orator Julia Blanche Hanford, could have been found upon diligent inquiry in the county of Cook at three months before the expiration of the time of redemption and each of them on such pretended sales as aforesaid.”</p> <p>The appellant filed a general demurrer to the bill, which demurrer was overruled. Thereupon the defendant filed an answer, denying that said tax sales and tax deeds were null and void, and claiming that his title was good and valid, and, in his answer, saying “that all the proceedings concerning the levy, assessment warrant, collector’s return, advertisement, judgment, sale, issuance of certificates and of deeds of said premises because of delinquent taxes and special assessments, were strictly regular, legal, proper and valid, and that, by virtue of said tax sales and deeds, this defendant acquired a.valid legal title to said premises, and now holds the legal title to the same.” The original bill was amended by leave of court. A demurrer was filed to the bill as amended, and overruled. Thereupon the defendant filed an answer to the bill as amended, containing the same denials, and the same averments, as the answer to the original bill. Replications were filed, and proofs documentary and oral were introduced.</p> <p>On March 21, 1904, the court rendered a decree in conformity with the prayer of the bill, finding that said tax deeds were null and void, and constituted clouds upon the title of complainants, and should be removed; and ordered, adjudged and decreed “that the said deeds of conveyance from the said Philip Knopf, county clerk, to the defendant herein, Jacob Glos, described, in the bill of complaint herein and recorded in the recorder’s office of the said county of Cook, as described in said bill of complaint, be, and the same are each of them hereby set aside and declared null and void as against the complainants, their heirs and assigns as a cloud upon the title of complainants, and that the said deeds be delivered up and canceled.”</p> <p>The present appeal is prosecuted from the decree so rendered.</p>

Appear from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Siras Cook; Judge, presiding. Appellant; a corporation, was engaged in manufacturing steel and iron at East St. Louis, Illinois. It has in use for moving heavy articles a machine called a “crane.” A crane is composed in part of two large steel girders extending entirely across the room in which it is situated.

<p>1. Appeals and Errors—what not a waiver of error in refusing peremptory instruction. By asking and procuring instructions submitting to the jury the question whether plaintiff assumed the risk of injury, after the court’s refusal of an instruction directing a verdict ior defendant, the defendant does not waive his right to assign such refusal hs error.</p> <p>2. Master and servant—cases where a promise to repair suspends assumption of risk. The cases where a promise by the master to repair suspends the servant’s assumption of risk, are those where particular skill and experience are necessary to know and appreciate the defect and its danger or where machinery or materials are used of which the servant can have but little knowledge.</p> <p>3. Same—when promise to repair does not suspend risk. The master’s promise to repair a defect does not suspend the servant’s assumption of the risk where the servant is engaged in ordinary labor or with tools of simple construction, which the servant understands as fully as the master.</p> <p>4. Same—time for which promise to repair suspends assumption of risk. If the master’s promise is to make repairs by a fixed time the promise does not suspend the servant’s assumption of the risk beyond that time, and if the promise is indefinite as to time the servant cannot work longer than a reasonable time for making the repairs without again assuming the risk.</p> <p>5. Same—when a servant assumes risk. An experienced sign painter who works for three days upon a bulletin board after exacting a promise from his foreman to put an additional brace upon the board, which could have been done within a few hours, assumes the risk of injury consequent upon the absence of the brace, where he has full knowledge of the defect and the danger therefrom.</p>

Writ oe Error to the Circuit Court of Cook county; the Hon. E. E. Dunne, Judge, presiding. A motion has been made to dismiss the writ of error heretofore sued out herein by Joseph H. Strong, administrator of the estate of Frederick Koss, deceased, which motion has been reserved to the hearing.

<p>1. Appeals and Errors—existence of verbal contract is a question of fact. The question of the existence of a verbal contract between the deceased and a claimant against his estate is one of fact, upon which the judgment of the Appellate Court is final.</p> <p>2. Removal oe causes'—right to remove cause must be exercised before pleading. Under the act of Congress one entitled to remove a cause from a State court to the Federal court must file his petition before he is required by law or ruled by the State court to answer or plead.</p> <p>3. Same—when party is not entitled to remove cause. A nonresident heir who files objections in the county court to the allowance of a claim against the estate, appeals to the circuit court and from there to the Appellate Court, is not entitled, upon remandment of the case to the circuit court, to petition for removal of the case to the Federal court.</p> <p>Mayer v. Schneider, 112 Ill. App. 628, affirmed.</p>

<p>Appeal from the County Court of Cook county; the Hon. F. W. ShonkwilEr, Judge, presiding. •</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. C. M. Walker, Judge, presiding.</p>

. Writ oe Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Kendall county; the Hon. George W. Brown, Judge, presiding. Edward Martin died testate on the third day of December, 1893, upon the farm where he had resided for many years, at Red Hook, Duchess county, New York. He was an unmarried man, and his sister, Serena Martin, prior to her death, which occurred in 1877, had been his house-keeper' for many years.

J. W. Magic, Judge, presiding. Dennis Kelly, the appellee, filed his petition, on November 19, r'901, in the circuit court of Cook county, to establish and confirm title in him to certain lots in the city of Chicago, under the act of the legislature commonly referred to as the Burnt Records act.

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

AVriT oe Error to the Appellate Court for the Second District-heard in that court on writ of error to the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.

<p>Appeal from the Circuit Court of Cook county; the Hon. E. E. Dunne, Judge, presiding.</p>

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

<p>1. Wills—what necessary to create a trust. While the use of the words “in trust” is not essential to the creation of a trust, yet it is necessary that some language, unequivocal in character, shall be used from which an intention to create a trust can be attributed to the testator.</p> <p>2. Same—when will does not create a trust. A devise to the testator’s wife “of all my property, both real and personal, to her use during her life or as long as she shall remain my widow, to receive all the rents and profits thereof for the benefit of my family,” does not create a trust in the income, with the wife and children as equal beneficiaries. (Allen v. McFarland, 150 Ill. 455, followed.)</p> <p>3. Same—when will creates a determinable life estate. A devise to the testator’s wife of all the property, both real and personal, during her life or as long as she remains the testator’s widow, to receive the rents and profits thereof for the benefit of the testator’s family, creates a life estate in the wife in all the property, determinable upon her re-marriage.</p> <p>4. Same—when provision directing purchase of land is not void. A provision of will directing the executor to purchase a certain amount of land for one of the testator’s sons is not void for uncertainty if it is possible to ascertain from the will the description of the land or the amount which shall be paid for it.</p> <p>5. Same—provision directing purchase of land construed. A provision of a will directing that as soon as a certain farm is paid for the testator’s wife shall purchase eighty acres of land for a certain son, to be paid for out of the proceeds of all the land owned at the time, provided that if the wife die before said farm is fully paid for then the son shall have a certain eighty acres, is not void for uncertainty nor repugnant to a subsequent clause directing an equal division of all the testator’s property among his children after the wife’s death.</p> <p>6. Same—-every effort should be made to reconcile alleged repugnant clauses. The rejection of one clause of a will for the purpose of upholding another will not be resorted to except in case of necessity.</p> <p>7. Same—when children take a vested estate in remainder. A clause in a will directing that after the death of the testator’s wife all property, both real and personal, shall be divided equally among all the testator’s children, creates a remainder in such children vesting at the testator’s death, there being no reason for postponing the division other than to let in the life estate.</p> <p>8. Same—when remainder-men are not entitled to partition during life estate. Where a will devises real estate to the widow for life or during widowhood, and there is a subsequent general direction that after the death of the wife the property shall be equally divided among the testator’s children, the children are not entitled to partition until the particular estate of the wife is extinguished by her death or re-marriage.</p> <p>9. Same—-effect where life tenant invests personal property in land. Where a widow having an interest in personal property for life or during widowhood sells the same and invests the proceeds in land, taking title in herself and a son, if the remainder-men do not challenge her power to make the investment but deny her right to take title, the title should be placed in her for life or during widowhood, with remainder to the persons entitled to the remainder in the personal property under the will.</p>

Colostin D. MyErS, Judge, presiding. This is a bill, filed on March 17, 1903, in the circuit court of McLean county by the appellee against the appellants, Elizabeth Brennaman and her husband, John Brennaman, and one Henry C. Bishop for the purpose of having a trust declared in favor of appellee in lot 2, block 6 Phoenix’s addition to the city of Bloomington.

Philip Stein, Judge, presiding. This was an action on the case, brought in the superior court of Cook county on October 20, 1899, by Dominick Coggins, appellee, against the Chicago and Eastern Illinois Railroad Company and the Chicago and Western Indiana Railroad Company, the appellants, to recover for personal injuries received by Coggins from being struck by a locomotive attached to a train of cars and belonging to and operated by the first above named railroad company.

Writ oE Error to the Circuit Court of Cook county; the Hon. C. G. NEERY, Judge, presiding. This was a bill in chancery filed by the plaintiff in error, against the defendant in error, to set aside a deed made by plaintiff in error to defendant in error on April 19, 1901, and recorded in the office of the recorder of deeds in Cook county, to a house and lot located in the city of Chicago, and known as No. 18 Colorado avenue.

Writ of Hrror to the Appellate Court for the Fix'st District ;■—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Farein Q. Bale, Judge, presiding.

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. R. Kimbrough, Judge, presiding.</p>

M. O. SouThwortpi, Judge, presiding. Leonard B. Merrifield, a resident of the city of Ottawa, LaSalle county, Illinois, departed this life intestate on April 15, 1903, leaving him surviving Mary C. Merrifield, his widow, and Louis W. Merrifield and Lilla M. Wood, his children and sole heirs-at-law. At the time of his death he was about sixty-five years of age. He had up to a few months prior to his death been actively engaged in business and had accumulated a fortune.

<p>Appeal from the. Appellate Court for the Fourth District heard in that court on appeal from the Circuit Court of Jackson county; the Hoñ. O. A. HarkER, Judge, presiding.</p>

<p>1. Constitutional law—legislative classification of cities by population cannot be arbitrary. Irq order that legislative classification of municipal corporations according to population shall avoid falling within the constitutional prohibition against special or local legislation, there must be some reasonable relation between the situation and circumstances of the municipalities classified and the purposes to be attained by the statute.</p> <p>2. Same—when classification is arbitrary. A legislative classification of cities by population for the purpose of regulating consents of property owners to local improvements to be paid for by special assessment is arbitrary and void which places in one class very large cities and very small ones and in the other cities' of intermediate size, for which different regulations are made.</p> <p>3. Same—amendments of 1903 to section 4 of Local Improvement act are void. The amendments of May 11 and May 15, 1903, to section 4 of the Local Improvement act of 1897, (Laws of 1903, p. 101,) are void, as in violation of section 22 of article 4 of the constitution, prohibiting special legislation respecting municipal corporations.</p> <p>4. Same—amendment of 1899 to section 4 of Local Improvement act is in force. The amendments of May 11 and May 15, 1903, to section 4 of the Local Improvement act of 1897 being unconstitutional, the amendment of 1899 to the same section, (Laws of 1899, p. 95,) requiring a property owner’s petition as a prerequisite to the passage of an ordinance for an improvement to be paid for by special assessment or special taxation in municipalities containing less than 50,000 inhabitants, is still in force.</p>

<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. Charles Blanchard, Judge, presiding.</p>

<p>1. Special assessments—omitting the preamble and engineer’s signature from record of estimate is not fatal. Omission of the preamble and the engineer’s signature to the estimate of cost, when making the estimate part of the record of the first resolution for the improvement, is not a substantial deviation from the requirements of the statute.</p> <p>2. Same—when notice of public hearing is sufficient. A notice of public hearing which contains the substance of the resolution and estimate is sufficient, although the preamble and engineer’s signature to the estimate are omitted.</p> <p>3. Same—resolution need not give description of improvement in detail. The resolution for an improvement must state the extent, character and estimated cost of the proposed improvement, but it need not describe the improvement in such detail as is required in the ordinance.</p> <p>4. Same—when description of catch-basin covers is prima facie sufficient. A description of catch-basin covers as being of iron, of given weight, “of the same size and pattern as those used in new work by the city of Chicago during the year 1902,” is prima facie sufficient to authorize confirmation of the assessment without proof of kind of catch-basin covers used in Chicago in new work in the year 1902. (Washburn v. City of Chicago, 202 Ill. 210, distinguished.)</p>

<p>1. Redemption—token a party cannot maintain bill to redeem. One having no interest in land, legal or equitable, at the time a deed was executed by the owner to a third party, cannot maintain a bill to redeem upon the theory that the d,eed is in fact a mortgage because of an agreement by the grantee to convey the land to him upon payment of a certain sum.</p> <p>2. Same—when party has no legal or equitable interest in land. The fact that a deed is made in pursuance of an arrangement whereby the grantee releases a mortgage upon other land which was turned in by the mortgagor as part consideration for the deed and the mortgage indebtedness canceled to that extent, does not give the mortgagor a legal or equitable interest which will enable him to maintain a bill to redeem upon the ground that the deed was intended as a mortgage.</p> <p>Conkey v.Rex, in Ill. App. 121, reversed.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Eminent domain—a condemnation proceeding cannot be reviewed by writ of error. Condemnation of private property for public use under the Eminent Domain act is a special, statutory and summary proceeding, which may be reviewed by appeal, as provided by the act itself, but not by writ of error, the right to the writ not being expressly given by the statute.</p>

Joseph E. Gary, Judge; presiding. This is an action on the case, brought by appellee, Charles J. Lannon, against the Chicago City Railway Company, appellant, and the Pabst Brewing Company, to recover for personal injuries sustained by him on June 4, 1901, while riding as a passenger on one of appellant’s cars. On the morning in question, appellee, who was a bricklayer, boarded a car bound for the stock yards.

R. W. Clifford, Judge, presiding. This is a petition for mandamus, filed by George R. Mc-Neill, making the city of Chicago, Carter H. Harrison, as mayor of said city of Chicago, Joseph H. Kipley, as superintendent of police of said city of Chicago, and Robert Dindblom, Edward M. Carroll and John W. Ludwig, as civil service commissioners of said city, parties defendant, whereby the petitioner sought to obtain an order of the court directing that his name, as police patrolman…

Appear from the Branch Appellate Court*for the First District;—heard in that court on appeal from Circuit Court of Cook county; the Hon. M. F. TurEy, Judge, presiding.

F. M. ShonkwilEr, Judge, presiding. January 6, 1896, the city council of the city of Chicago passed an ordinance for the improvement, by special assessment, of Hamlin avenue from West Chicago avenue to West North avenue, in said city.

<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 Flon. R. S. Tuthill, Judge, presiding.</p>

<p>Motion to dismiss writ of error.</p>

Appear from the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding. On January 8,1893, the city council of the city of Chicago passed an ordinance for the improvement of West Madison street from Crawford avenue to West Forty-sixth street. A petition was filed in the county court for the levy of a special assessment to pay for the same, and on July 11, 1893, a judgment of confirmation was rendered.

<p>AppEae from the County Court of Macon county; the Hon. O. W. Smith, Judge, presiding.</p>

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

Joseph E. Gary, Judge, presiding. This was an action of assumpsit, commenced in the superior court of Cook county by the appellant upon a benefit certificate issued upon the life of her husband, Joseph H. Wood, in which she was named as beneficiary, by the Order of the Protectors, a fraternal benevolent insurance association organized under the laws of the State of New Jersey, the obligations of which had been assumed by appellee, the Supreme Ruling of the Fraternal Mystic…

<p>Writ OF Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>Appeal from the County Court of Piatt county; the Hon. F. M. ShonkwilER, Judge, presiding.</p>

<p>Motion for leave to file petition for writ of habeas corpus.</p>

<p>1. Taxes—the presumption is that a tax was legally levied. The presumption is that a tax was legally levied, and the burden is upon an objecting tax-payer to prove the contrary.</p> <p>2. Abstract oe record—when petition should be set out in abstract. One relying upon the alleged insufficiency of a petition for an election to return to the cash system of paying road taxes as invalidating the tax, should set out the petition in the abstract of record and show that the election was, in fact, held under that petition.</p>

<p>1. Criminal law—reasonable doubt of guilt must arise from the whole evidence. The reasonable doubt of guilt which will justify the jury in finding the accused not guilty must be based upon the whole of the evidence, and not upon any particular fact.</p> <p>2. Same—knowledge that goods were -stolen may be proved by circtunstances. In a prosecution for receiving stolen goods the fact that the accused knew the goods to have been stolen may be shown by circumstances.</p> <p>3. Same—when assumption of fact in instruction is not harmful. Assumption in an instruction, in a prosecution for receiving stolen goods, that the accused received the goods is harmless, where that fact is abundantly proven and practically conceded by the accused.</p>

<p>Appeals and Errors—when appeal will be dismissed. An appeal will be dismissed where the real purpose is not to obtain a reversal of the decree but to have it affirmed, there being no actual controversy of fact or law to be decided.</p>

Writ oE Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Co'urt of Cook county;. the Hon. John Gibbons, Judge, presiding.

<p>1. Laches—when Ming of a petition to sell real estate may be barred. The right to file a petition to sell real estate to pay debts may be barred by a delay of seven years, although mere lapse of time, if a sufficient excuse is given for the delay, will not bar the proceeding.</p> <p>2. Same—what does not excuse a delay in Ming petition to sell real estate. A delay of nineteen years before filing a petition to sell land subject to the dower interest of the widow to pay debts of the estate is not excused by the fact that tfie property had but recently advanced to such value as, in the opinion of the creditors, would justify a sale subject to dower.</p>

<p>Motion for leave to file petition for writ of habeas corpus.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. L. Honoré, Judge, presiding.

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

<p>1. Insane delusions—insane delusion defined. An insane delusion is a belief in something impossible in the nature of things, or impossible under the circumstances surrounding the person entertaining it, which no rational person would entertain and which refuses to yield to evidence or reason.</p> <p>2. Same—belief in religious creed, in so far as it pertains to future existence, is not an insane delusion. Belief in a religious creed, in so far as it pertains to an existence after death, is not an insane delusion, since there is no test by which it can be tried and its truth or falsity demonstrated.</p> <p>3. Same—what is not evidence of an insane delusion. Belief in Swedenhorgianism and enthusiasm shown in promulgating its faith furnish no evidence of monomania, insane delusion or insanity.</p> <p>4. Appeals and errors—in contest of will the Supreme Court will review the evidence. In a will contest case which comes directly to the Supreme Court from the court of original jurisdiction, the Supreme Court, upon a proper assignment of error, will review the facts, and will reverse the decree if it is manifestly against the weight of evidence.</p>

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. Jonas Hutchinson, Judge, presiding.

<p>Practice—when denial of motion to set aside order of dismissal is proper. Denial of a motion to set aside an order of dismissal for want of prosecution will be upheld where the dilatory course pursued by the complainant during the entire period the suit was pending clearly shows that she did not desire to have the case heard and determined but desired it should remain pending for some ulterior ■purpose.</p>

Information for disbarment. This is an information filed in this court by the State’s attorney of Cook county, at the instance of the grievance committee of .the Chicago Bar Association, against the respondent, Richard John, an attorney of this court, charging him with having fraudulently converted to his own use the sum of $65, which was collected by him, as attorney at law for Elise Wasserman, upon a promissory note for that amount entrusted to him for collection by her.

Writ oE Error to the Appellate Court'for the First District —heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.

Theodore BrEntano, Judge, presiding., This is an appeal from a decree of the superior court of Cook county, setting aside, as a cloud upon complainant’s title, a tax deed to two lots and an adjoining court in the city of Chicago, which deed had been issued to appellant, Glos, by the county clerk of Cook county.

<p>Appeals and errors—jurisdiction of Appellate and Supreme Courts cannot be invoked at same time. One who prosecutes an appeal to the Appellate Court from a decree in chancery cannot, while the appeal is pending, invoke the jurisdiction of the Supreme Court by writ of error, notwithstanding he is in doubt as to which court has jurisdiction.</p>

John L. Thompson, Judge, presiding. This is an appeal from the judgment of the county court of Saline county, rendered against the lands of appellant, and ordering the same sold for the payment of a drainage tax or penalty of $10 assessed agaiilst the land under the provisions of sections 200 and 201 of chapter 42 of Hurd’s Statutes of 1897.