Volume 213 — Illinois Reports

Frank Baker, Judge, presiding. The following is a statement of the facts in this case, as made by the Appellate Court in their opinion deciding it, with the exception of the parts omitted where stars occur, to-wit: “James Ryce, on February 19, 1890, was a member of' the police force of the city of Chicago in good standing, and on that day received a certificate of insurance from the appellant association, in which the appellee, Mary Ryce, then his wife, was named…

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

<p>Appeal from the County Court of Lake county; the Hon. D. L. Jones, Judge, presiding.</p>

Writ oe Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Axel Ci-iytraus, Judge, presiding.

<p>Special assessments—when a railroad company cannot be assessed for pavement. A street railway ordinance which requires the company to pave at its own cost the space between its rails when any street in which its tracks are laid is paved by the city, does not authorize a special assessment against the company for a pavement on a street wherein it has the right to lay its tracks but in which no track has been laid.</p>

<p>1. Jurisdiction—when objection is waived by appearance. Discrepancies between the names published in the application for judgment of sale and those given in the judgment, sale and redemption record are waived by general appearance of the parties and the filing of objections calling for the exercise of jurisdiction by the court and a decision on the merits.</p> <p>2. Special assessments—it is not proper to enter two judgments against same lots. After judgment of sale for a delinquent special assessment has been entered, the court is without power to enter a second judgment against the same lots, even though the first judgment is invalid because not signed by the judge, where the second judgment does not purport to be an amendment or correction of the first.</p>

<p>1. Appeals and Errors—no presumption of error obtains in absence of complete record. In the absence of a complete record in a chancery case no presumption of error obtains, but the presumptions are in favor of regular and correct action on the part of the chancellor.</p> <p>2. Same—dtity of plaintiff in error to bring up record. While it is not the duty of the defeated party in a chancery case to see that the oral proof is preserved by a certificate of evidence or by recitals in the decree, yet on appeal or error by him he should bring up all the evidence that is so preserved before he can insist that the decree is not supported thereby.</p> <p>3. Same—section 67 of Practice act governs appeal in building and loan receivership. The right of appeal from a final order in a building and loan association receivership is governed by section 67 of' the Practice act, under which it is error for the chancellor to require the appeal bond to be filed within five days.</p> <p>4. Same—matter of costs is discretionary in case of partial reversal. In case of a partial reversal the costs may be apportioned as the reviewing court, in its discretion, shall deem just and proper.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Special assessments—first resolution need not state how improvement is to be paid for. The law does not require the first resolution for an improvement to state how the improvement is to be paid for in order that a property owner may be advised of the probable cost thereof to him individually.</p> <p>2. Same—engineer’s signature to estimate need not be incorporated in record of first resolution. If the engineer’s estimate of cost, itemized to the satisfaction of the board, is incorporated in the record of the first resolution, it is not essential that other parts of the engineer’s report, including his signature, be so incorporated.</p>

W. D. Pond, Judge, presiding. This was a proceeding under the Eminent Domain act, commenced in the county court of DeKalb county by the appellant to acquire a right of way across the farm of appellees. The appellees filed a cross-petition claiming damages to lands not taken.

Writ oE Error to the Appellate Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.

Writ of Error to the Criminal Court of Cook county; the Hon. R. W. Clifford, Judge, presiding. This is a writ of error, sued out of this court by Charles Wistrand, the plaintiff in error, to review a judgment of the criminal court of Cook county whereby plaintiff in error was adjudged guilty of the crime of rape and sentenced to the penitentiary for a term of two years. The indictment consisted of three counts.

Writ oB Error to the Circuit Court of Cook county; the Hon. R. W. CliBBord, Judge, presiding. On September 9, 1901, the defendant in error Harvey H. Talcott filed his application to register the title to a certain lot located in the city of Chicago, under the provisions of the “Act concerning land titles,” alleging that he was the owner in fee and in possession by a tenant, and that the plaintiff in error Jacob Glos had some interest therein under two alleged tax deeds.

<p>Appeal from the County Court of Coles county; the Hon. T. N. CoEER, Judge, presiding.</p>

<p>1. Special assessments—when estimate is made part of resolution. Copying an estimate of cost, except the caption and the signature of the engineer, into the resolution for the improvement, which estimate is itemized to the satisfaction of the board of local improvements, is a sufficient compliance with section 7 of the Local Improvement act of 1897.</p> <p>2. Same—what need not be set forth in first resolution for an improvement. The first resolution of the board of local improvements for paving an alley, which describes the locality and character of the improvement, is not insufficient because it fails to give the width of the alley or to state how the improvement shall be paid for.</p> <p>3. Same—what does not justify court in holding ordinance unreasonable. The fact that witnesses may think an improvement is unnecessary does not justify a court in substituting its judgment for that of the municipal authorities in determining' whether or not the ordinance providing for the improvement is reasonable.</p> <p>4. Same—when description of broken stones for concrete is not indefinite. The language of a. paving ordinance in requiring the use in the concrete of “seven parts best quality of broken limestone, 01-other stone which shall be equal in quality for concrete purposes,” is not substantially uncertain in using the words “or other stone.”</p>

<p>Appeal from the County Court of Cook county; the Hon. W. H. HinEbaugii, Judge, presiding.</p>

Murray F. TulEy, Judge, presiding. This was a bill in chancery filed by the appellee in the circuit court of Cook county to foreclose a trust deed in the nature of a mortgage given to secure a series of promissory notes, upon which there remained due as principal the sum of $5300.

W. C. Johns, Judge, presiding. Appellant, Florence Butman, as administratrix of the estate of Jonathan W. Butman, deceased, and in her own right, as widow and heir-at-law of said Butman, filed a bill in chancery to the January term, 1904, of the circuit court of Macon county, for the purpose of compelling the specific performance of a contract to convey certain real estate.

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

Theodore Brentano, Judge, presiding. This was a proceeding brought in the superior court of Cook county by Auguste Zinkel and Albertine Boldt, children of Albertine Onasch, deceased, to partition a certain lot in the city of Chicago, the legal title to which had been in said Albertine Onasch at the time of her death.

AppEai, 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. TuTiiile, Judge, presiding.

<p>1. Fraud—what not necessary to maintain action for deceit to recover amount of encumbrance. To maintain an action of deceit for amount of an encumbrance upon property falsely represented to be unencumbered, it is not essential that plaintiff shall have removed the encumbrance or that his title shall have been swept away thereby.</p> <p>2. Same—when principal is responsible for an agent’s fraud. A land owner who refers a prospective buyer to his agent for information as to the title, representing him to be a reliable man, is responsible for the false representations of such agent with respect to the title.</p> <p>3. Evidence—what is competent in action for deceit—damages. In an action of deceit to recover the amount of an encumbrance up.on land falsely represented to be unencumbered, proof of the value of the land is proper, since the measure of damages is the amount of .the encumbrance if it is less than the value of the land.</p> <p>4. Appeals and Errors—when party cannot object that fact is not proved. One cannot complain, on appeal, that a fact was not proved if proper proof thereof was prevented by his objection.</p>

<p>Drainage—when a prima facie case cannot prevail in drainage assessment. The prima facie case of benefits made by the assessment roll in a drainage assessment case cannot prevail where the competent evidence in the case clearly shows the assessment grossly excessive.</p>

<p>Appear from the County Court of Pope county; the Hon. W. A. Whiteside, Judge, presiding.</p>

<p>1. Criminal law—it is not a matter of right for private attorney to assist prosecution. Granting permission to an attorney whose services are gratuitous or paid for by private parties to appear as an assistant to the State’s attorney is a matter resting in the discretion of the court, whose duty it is to see that the criminal law is not used to gratify personal ends and to permit such assistance, only, as fairness and justice may require, without oppression to defendant.</p> <p>2. Same—section 6a of act of zpoy relating to State’s attorneys construed. Section 6a of the act regarding State’s attorneys, added in 1903, (Laws of 1903, p. 85,) prohibiting State’s attorneys from receiving any reward from private persons for performance of official duties, does not limit the court’s discretion to permit counsel, paid by private parties, to assist the State’s attorney in prosecuting a criminal case.</p> <p>3. Same—when homicide in defense of habitation is justifiable. As distinguished from homicide in self-defense in a public place, where a reasonable belief of danger to life or great bodily injury is necessary to a justification, homicide in defense of habitation is justifiable if the victim was manifestly intending, and endeavoring in a violent and tumultuous manner, to enter the habitation for the purpose of assaulting or offering personal violence to any person dwelling therein.</p> <p>4. Same—one may, if necessary, take life in defense of habitation. A man may, within his own house, use all needful force to keep an aggressor out, even to the taking of such aggressor’s life.</p> <p>5- Same—peril of life or of great bodily harm not essential to justify defense of habitation. A man in his own habitation may resist with force an unlawful, violent entry by one whose purpose is to assault or offer violence to him, even to the extent of taking the aggressor’s life, although the circumstances may not be such as to justify á belief of actual peril to life or great bodily harm.</p> <p>6. Instructions—when instructions should not be given. Instructions in a criminal case which are not based upon the evidence, or which are misleading, useless, irrelevant or confusing, should not be given.</p> <p>7. Same—when instruction as to duty of jury in considering evidence is improper. An instruction telling the jury that their power and duty to judge the effect of the evidence are not arbitrary, but should be exercised with legal discretion and in subordination to the rules of evidence, is improper, where there is no explanation of legal discretion nor of the rules of evidence to which their judgment should be subordinate.</p> <p>8. Same—instruction permitting the jury to fix punishment for manslaughter is erroneous. An instruction informing the jury that one who is guilty of manslaughter is to be imprisoned for his natural life or any number of years, and if they found accused guilty they should fix his punishment by their verdict, is erroneous.</p>

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

Writ oE Error to the Circuit Court of Logan county; the Hon. George W. Patton, Judge, presiding.

<p>1. Instructions—effect of the Supreme Court’s approval of an instruction. A decision of the Supreme Court approving an instruction must be regarded only as deciding that the instruction is not subject to the objections urged against it in the particular case.</p> <p>2. Damages—plaintiff in a personal injury case may recover fiiture damages. An action for personal injury being for a single wrong, the plaintiff is entitled to recover all damages, present or prospective, which necessarily result from the injury; and a part of such damages are future pain and suffering and inability to labor.</p> <p>3. Same—evidence must show' that future damages are reasonably certain to result. An assessment of prospective damages in á personal injury case must be based upon evidence showing that it is reasonably certain the plaintiff will suffer such damages, and the nature and extent thereof.</p> <p>4. Instructions—when instruction as to future damages is not objectionable. An instruction allowing the jury to give the plaintiff damages for “such future suffering and loss of health, if any, as the jury may believe, from the evidence before them in this case,” she will sustain by reason of such injuries, is not objectionable as allowing the jury to consider speculative damages.</p> <p>5. Trial—when question of future damages is properly left to the jury. If the evidence in a personal injury case shows that the plaintiff has not recovered from her injuries, the question of how long and to what extent she will suffer in the future is a question necessarily left to the jury, to be determined from the evidence.</p>

<p>1. Taxes-—highway commissioners’ certificate need not specify amount required for each purpose. Section 119 of the Road and Bridge act does-not require that the certificate of the highway commissioners for a road and bridge tax levy shall state the specific amount required for each of the purposes named. (C., I. & W. Ry. Co. v. People, 212 Ill. 518, followed.)</p> <p>2. Same—when levy for town tax cannot be validated by amendment. If the statute authorizing the levy of a town tax has not, in fact, been complied with, the levy cannot be made valid by allowing amendments of certificates or' proceedings upon an application for a judgment of sale.</p>

<p>1. Wills—language construed as not passing the title to bank stock. A clause in a will directing the trustees of all' the testator’s property “to pay unto my said wife, from the time of my decease as long as she shall live, an annuity of $2000 a year, and also all dividends that may be declared dttring the time last mentioned” on certain bank stock, does not pass the title in the bank stock to the wife, but merely the right to the dividends during her life.</p> <p>2. Trusts—tvhen an estate is liable for assessment on national bank stock. Where a trustee distributes the trust estate, consisting, in part, of stock in an insolvent national bank, leaving unpaid an assessment previously ordered by the comptroller under the authority of the Federal statute, each distributee receiving more than the amount of the assessment, the trustee and the distributees are each liable, in equity, for the assessment.</p> <p>3. Limitations-—statute limiting filing of claims against estate does not bar assessment on national bank stock. The remedy provided by the Federal statute authorizing the levy of an assessment against the estate of the holder of stock in an insolvent national bank may be enforced as long as the assets can be reached, regardless of the expiration of the statutory period for filing claims against the estate.</p> <p>4. Equity—objection of adequate remedy at law must be raised below. Objection of adequate remedy at law will not be considered on appeal when not raised below by demurrer or answer to the bill.</p>

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

J. D. Madding, Judge, presiding. This is an appeal from a judgment of the county court of Lawrence county confirming .the corrected assessment roll of benefits and damages.returned by the jury in Allison Ditch District No. 2, a district organized under the Levee act and comprising lands located in said county, so far as it applies to the lands of appellants.

Jesse Holdom, Judge, presiding. This was a bill for an injunction hied on August 31, 1903, in the superior court of Cook county, by Kate Knox, the appellee, against Charles H. Slack, the appellant, to restrain the latter from interfering with a certain steam pipe which transmitted steam from a boiler owned by appellant to certain tables and a hot water tank owned by the appellee. A temporary injunction was issued in accordance with the prayer of the bill.

<p>1. Taxes—what is not a sufficient levy of county taxes. Under section 121 of the Revenue act a resolution of the county board directing the clerk to extend the amount of seventy-five cents on each $100 valuation for the “current expenses” of the county is not sufficient, it being the purpose of the statute that the board shall determine the amount of all taxes to 'be raised for county purposes and state the amount for each purpose separately, leaving the clerk to determine the rate per cent. (Mix v. People, 72 Ill. 241, and Chicago and Alton Railroad Co. v. People, 155 id. 276, distinguished;)</p> <p>2. Same—designation of town tax as for "town purposes” is not sufficient. A town tax is invalid where the clerk’s certificate recites that the annual town meeting had voted to levy a certain amount for “town purposes,” without reciting the particular purposes and the amount required for each.</p> <p>3. Same—when statement attached to clerk’s certificate is a part thereof. A statement under the hand of the town clerk, attached to his certificate of levy of a town tax, specifying the purposes of the tax and the amount required for each, and corresponding with the record of the annual town meeting introduced in evidence, is properly treated as a part of the certificate.</p> <p>4. Same—the right of electors to vote tax levy in anticipation of demands. Under the Township Organization act the electors, at the annual town meeting, may levy taxes in anticipation of demands that will thereafter arise against the town for services rendered by its officers, and for other proper charges of like character.</p> <p>5. Sams—effect where there is a deficiency for payment of audited demands. Claims and demands audited by the board of town auditors should be paid immediately if there is sufficient money in the proper fund or funds, the deficiency, if any, to be included by the town clerk in the next certificate of levy made by him, in addition to, the amount of the levy made by the electors at the annual town meeting.</p> <p>6., SamS—a certificate of road tax levy need not specify amount required for each purpose. It is not necessary .that the highway commissioners’ certificate of levy of road and bridge taxes,- made under section 119 of the Road and Bridge act, shall specify the amounts required for the several purposes. (Cincinnati, Indianapolis and Western Railway Co. v. People, 212 Ill. 518, followed.)</p> <p>7. Sams-—filing original certificate of levy is fatal to tax. Filing, by the town clerk, of the original certificate of levy made by the highway commissioners in a town under the “cash” system, instead of the certified copy required by section 16 of the Road and Bridge act, invalidates the tax, and the irregularity cannot be cured on application for judgment of sale by filing a certified copy.</p> <p>8. Sams—zvhat not a valid objection to city tax. The fact that the amounts levied in a tax levy ordinance for the various purposes are less than the amounts appropriated for the same purposes in the appropriation ordinance is not a valid objection to the tax.</p>

<p>1. IeeEGitimates—courts will not presume that marriage was to avoid result of prosecution. Courts will not presume that one arrested for bastardy who marries the prosecutrix did so to avoid the consequences of the prosecution, but will rather assume that if there was any doubt of his paternity of the child he would have resisted the prosecution and refused marriage.</p> <p>2. Same—domicile of father at time of birth of child does not control right to inherit in other States. The law of the domicile of ,the father at the time of the birth of an illegitimate child does not control the question of the effect of a subsequent marriage with the mother, in so far as it affects the right of the child to inherit real property in another State, since the descent of real estate is governed by the law of the situs.</p> <p>3. Same—lazv legitimating child is a rule of property. Section 3 of the Statute of Descent, which provides that an illegitimate child whose parents have intermarried and whose father' has acknowledged him as his child shall be legitimate, is a rule of descent of real property, and one bringing himself within the rule may inherit land in Illinois even though he could not inherit land in the State where the father resided at the birth of the child.</p> <p>4. Partition—when court cannot refuse partition.- Where the rights of minors are not involved a court of equity cannot refuse to grant partition if the parties have brought themselves within the provisions of the statute authorizing the same.</p> <p>5. Same—decreeing partition before estate is settled is not reversible error. Entering a decree for partition or sale before the estate is finally settled is not reversible error although the practice is not approved, but in case a sale is ordered the personal representative should be brought into court, and the court should control the time of sale, or the funds arising therefrom, to protect the interests of creditors of the estate. (Wieicin, Cartwright and Hand, JJ., dissenting.)</p>

<p>1. Evidence—proper inquiry as to earning capacity of plaintiff. In allowing damages for the impairment, by the injury, of plaintiff’s ability to work, the proper inquiry is the comparative capacity of plaintiff to earn money at time of and after he received the injury.</p> <p>2. Same—when evidence of prior earning capacity is incompetent. Proof of the -large salary received by the plaintiff ten years before the injury, when he was younger and more capable and was in a different employment, and of his salary in a later employment dependent upon too many collateral circumstances to show his earning capacity at the time of the injury, is incompetent.</p> <p>3. Same—X-ray photographs are admissible after proper preliminary .proof. An X-ray photograph or skiograph made by an expert, who testifies that- he was regularly engaged in the business of taking such photographs for physicians and that he took the negative and developed the photograph in question and that -it -was an accurate and correct representation, is admissible in evidence..</p> <p>4. Triad—jury may take photographs given in evidence to the jury room. Photographs or skiographs given in evidence may be taken by the jury to the jury room upon their retirement to consider of their verdict.</p>

W. T. Church, Judge, presiding. This was an application made by appellant to the county court of Mercer county, at the June term, 1904, seeking judgment against the real estate of appellee for delinquent taxes of the year 1903.

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

<p>1. Executors and administrators—when executor is a trustee. Where a will devises a distinct part of the real estate to the “executor” in trust, with directions to sell the same and re-invest the proceeds in trust for specified purposes, a sale made by him in pursuance of the directions in the will is a sale in his capacity as trustee, and no bond by him is necessary to the validity of the sale where none is required by the terms of the will.</p> <p>2. Same—section 7 of the Administration act does not apply to executor acting as trustee. Section 7 of the Administration act) requiring an additional bond by an executor in case it becomes necessary to sell real estate, does not apply to an executor when making a sale in his capacity as trustee under a will devising to him a distinct portion.of the real estate in trust, with directions to sell the same and re-invest the proceeds in trust for certain purposes.</p> <p>3. Trusts—when a sale need not be made within one year. A trustee directed by the will to sell the trust estate in single tracts or en masse, at public or private sale, as soon after the probate of the will as he shall think best, or to lease the lands for one year and postpone the sale, in his discretion, is not obliged to make the sale within one year in order to convey a good title, as such provisions are directory.</p> <p>4. Same—trustee bound to know effect of proposed contest of will on selling price of land. A trustee who knows<of a proposed contest of the will and that the same is a matter of public notoriety is bound to know that the selling price of the land will be depreciated thereby, and if his power of sale is not limited to any particular time and there is nothing calling for haste, it is his duty not to sell the land until he can get an adequate price.</p> <p>5. Same—tmstee not obliged to accept inadequate bid because he has advertised the sale. A trustee having power to sell land at private or public sale, in single tracts or en masse, for the best price attainable, is not obliged to accept an inadequate bid by reason of the fact that he has advertised the sale and received bids therefor at the time fixed by the advertisements.</p> <p>6. Same—when sale by trustee is a breach of trust. A sale of land by a trustee for an inadequate price, at a time known to him to be disadvantageous, is a breach of trust, where there was jio necessity for making the sale at that time.</p> <p>7. Equity—on demurrer to evidence the evidence most favorable to complainants must be taken as true. Upon disposing of a chancery case upon demurrer to the evidence it is the duty of the court to take as true the evidence most favorable to complainants.</p> <p>8. Same—when refusal to allow amendment is error. If it is apparent no injury can be done to the defendant by allowing the complainants, before the close of the evidence, to amend their bill by introducing a material matter germane to the suit, it is error to deny leave to amend merely because previous amendments had been allowed.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.</p>

Murray F. TulEy, Judge, presiding. This is an action on the case brought by Henry Strathmann, appellee, against the Chicago North Shore Street Railway Company and the North Chicago Electric Railway Company, the appellants, to recover damages for personal injuries.

<p>1. Taxes—failure of assessor to “view" land does not defeat the tax. Failure of the assessor to view land assessed for taxation is but an irregularity which does not defeat the tax levied on such assessment.</p> <p>2. Same—board of assessors not required to view property it assesses. Section 12 of the Revenue act does not require the board of assessors of Cook county to actually view the property assessed by it if the same has been viewed by a deputy assessor.</p> <p>3. Same—assessor in toivn of Cook county is an ex officio deputy for board of assessors. An assessor elected for a town in Cook county is ex officio a deputy to the board of assessors, and his assessments are subject to revision by the board.</p> <p>4. Same—proper person to whom to apply for information as to valuation. Under section 27 of the Revenue act of 1898 the chief clerk of the board of assessors is the proper person to give information to property owners in Cook county as to the valuation placed upon their property by the assessor or board of review.</p> <p>5. Same—reliance on information from an unauthorised person does not vitiate assessment. Reliance by tax-payer in Cook county upon information as to the valuation of his property for taxation obtained from the local town assessor instead of from the chief clerk of the board of assessors does not vitiate the assessment, even though he is misled thereby.</p> <p>6. Same—failure to publish list of assessments does not vitiate tax. Failure to publish a list of assessments in any of the modes provided by the statute does not constitute a valid objection to the application of the county treasurer for judgment of sale.</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. B. R. Burroughs, Judge, presiding. This is an appeal from the Appellate Court for the Fourth District to reverse a judgment in that court in favor of appellee, against appellant, in an action of assumpsit upon a certificate of deposit issued by the defendant to one J. F. Wassell and endorsed by him to plaintiff.

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

Robert B. Shirley, Judge, presiding. This was an action on the case brought by the appellee in the circuit court of Cook county, against the appellant, to recover damages for an injury to her person claimed to have been sustained by her in consequence of the car of appellant, upon which she was a passenger, being suddenly started as she was about to leave the car and before she had time to alight upon the street, whereby she was thrown down and injured.

<p>1. Taxes—only question on appeal from decision of board of review is liability of property to taxation. In a proceeding in the Supreme Court to review the decision of the board of review the only question for consideration is whether the property is liable to taxation, and not whether it was correctly valued.</p> <p>2. Same—presumption is in favor of legality of assessment. One seeking to overthrow the decision of the board of review must affirmatively show sufficient grounds for so doing, as the presumption is in favor of the regularity and legality of the assessment.</p> <p>3. Same—mining rights are real estate and are taxable as such. Mining rights are real estate and should be taxed as such to the owner thereof.</p> <p>4. Same—effect where mining rights are assessed to owner of soil. The fact that land is assessed for its full value, including mining rights, to the owner of the soil, does not release a purchaser of such mining rights from liability for taxes thereon assessed to him after the severance, since the over-valuation can be complained of only by the person affected.</p>

<p>1. Criminal law—statements of counsel derogatory to the accused are proper if based on facts. It is not improper for a prosecuting attorney to reflect unfavorably upon the accused or denounce his wickedness,—even to indulge in invective,—if his remarks are based upon evidence competent and pertinent to be decided by jury.</p> <p>2. Same—when a statement by the prosecuting attorney will not reverse. A statement by the prosecuting attorney in his argument to the jury on the trial of one accused of rape, that “if the evidence be true the defendant has been as low as the most lecherous animal that ever crawled on earth,” is not ground for reversal, where the evidence is such as to show the statement was well merited.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. Axel ChyTraus, Judge, presiding.</p>

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

Abner Smith, Judge, presiding. This was an action on the case, brought in the circuit court of Cook county, on September 25, 1897, by James F. Swift, the appellee, against the Illinois Central Railroad Company, appellant, to recover damages for a personal injury received by appellee on November 10, 1896, on account of the falling of a pile-driver through the alleged negligence of appellant.

<p>1. Electric companies—the use of electricity for profit requires care commensurate with danger. Electricity is a silent, deadly and instantaneous force, and a company handling it is bound to know the dangers incident to its use in public streets, and while such a company is not an insurer of the safety of the public, it is bound to guard against accidents by care commensurate with the danger.</p> <p>2. Same—when recovery cannot be had for defective insulation. Defective insulation of an electric light wire does not give rise to an action for negligence against the electric light company for the death of a telephone lineman who, with full knowledge of the conditions and dangers, allowed a telephone wire to come in contact with an electric light wire, thinking there was no current turned on.</p> <p>3. Same—company owes no duty to public to give warning before turning on atrrent. Failure of an electric light company to blow its whistle before turning on its current, as it was in the habit of doing to warn its own employees, is not a breach of duty towards other persons, where there is no proof of an agreement or understanding that the warning is to be given for their benefit or that the company knew they were relying thereon.</p>

Murray F. TulEy, Judge, presiding. Harris Stern, on the 9th day of July, 1903, filed a bill in chancery in the circuit court of Cook county against Jacob Glos to set aside as a cloud upon his title to lot 5, in block 2, in Brainard & Evans’ addition to the city of Chicago, a tax sale certificate based upon a tax sale made in the year 1900 for a delinquent special assessment upon said lot falling due in the year 1899; lalso to cancel any tax deed which may have been issued at…

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

Richard M. Skinner, Judge, presiding. This was a bill in chancery filed on the 9th day of January, 1904, in the circuit court of Bureau county, by the appellant, against the appellees, to set aside the will, and the probate thereof, of Robert Sharp, deceased, on the ground of mental incapacity and undue influence.

<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 Ci-iytraus, Judge, presiding.</p>

Writ oe Error to the Appellate Court for the First, District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Jonas - Hutchinson, Judge, presiding......

<p>1. Special assessments—what not sufficient proof of non-compliance with section 75.' Non-compliance with section 75'of the Local Improvement act as amended in 1901, requiring steps for letting the contract to be taken within fifteen days from final determination of an appeal or writ of error, is not established by proof that the confirmation judgment was affirmed by the Supreme Court in February and an order for an advertisement for bids was entered the following July.</p> <p>2. Same—a judgment for special assessment mast be certain in amount. A judgment for a delinquent special assessment is fatally defective which fails to show, in terms or by reference, the amount, in dollars and cents, due for the assessment and costs.</p> <p>3. Same—what does not show amount of judgment. Numerals placed in a column of the schedule áttached to the order of sale, headed “total,” do not show the amount of the judgment where there is no dollar-marlc or character, either at the head of the column or elsewhere, to show what the numerals were designed to represent.</p> <p>4. Same—when clause reciting obtaining of jurisdiction by notice is unnecessary. The jurisdictional clause contained in the statutory form of a judgment of sale, which is a recital that the court has obtained jurisdiction by giving notice, is unnecessary, where the record shows that jurisdiction was acquired by the appearance of the parties and a hearing of the objections.</p> <p>5. Same—what omission from the statutory form of judgment of sale is proper, Omission of the words "or so much of each of them as shall be sufficient” from the statutory form prescribed by section 191 of the Revenue act for a judgment for a delinquent special assessment against the several lots or tracts is proper since the change made by section 202 of the Revenue act in the method of sale.</p>

Appear from the Appellate Court for the First District;— heard in that court on appeal ‘from the Superior Court of Cook county; the Hon. JESSE Hordom, Judge, presiding.

<p>Appeals and errors—when grounds urged for reversal present no question of law. On appeal from an affirmance by the Appellate Court of a judgment in assumpsit, objections that the verdict is not sustained by the evidence, that the grounds urged in support of the judgment are inconsistent with appellee’s theory in the trial court, and that there was no evidence of a contract for any definite period, present no question of law for the Supreme Court, where no instruction to take the case from the jury was asked, the submission to the jury being on instructions given for both parties.</p>

<p>1. - Appeals and errors—when construction of the constitution is involved. Whether or not the alleged wrongful delay of a city in bringing a condemnation suit to trial and in electing to abandon the proceeding after judgment and after defendants have incurred expense in carrying on the litigation, constitutes a damage to private property for public use for which compensation is recoverable involves the construction of the constitution, and an appeal lies directly to the Supreme Court.</p> <p>2. Eminent domain—a city is liable for damage from wrongful delay in condemnation. The wrongful delay by a city in bringing a condemnation suit to trial and in electing to abandon the suit after judgment, which prevented the sale of the land by the owner before the property had decreased in value, is a damage to private property for public use within the meaning of the statute, for which the city is liable to the owner.</p> <p>3. Same—owner of land at time of wrongful delay may recover damages. The person owning land at the time when the wrongful delay by a city in bringing a condemnation suit to trial and in making its election to abandon the proceeding occurred is the party entitled to recover damages sustained through such wrongful delay.</p> <p>4. Same—when defendant cannot recover expense of defending an abandoned condemnation suit. The expense of defending a condemnation suit abandoned after judgment cannot be recovered by the defendant as damages, where the suit was abandoned by the petitioner prior to the act of July 1, 1897, authorizing the allowance of costs, expenses and attorneys’ fees in such event.</p> <p>5. Practice—preparation of trial calendar must be under control of court. It is improper practice to allow counsel for the city to make up the trial calendar of the city’s condemnation cases to suit his own convenience.</p> <p>6. Estoppel—when city is estopped to claim that party should have applied to court for speedy trial. Where counsel for the city is given and assumes the right to make up and control the trial calendar of condemnation suits, the city is estopped, in a suit for damages for wrongful delay in bringing a condemnation suit to trial, to urge that the defendant should have applied to the court to have his case set for trial instead of to the corporation counsel.</p>

<p>Appeal from the County Court of Lee county; the Hon." Robert H. Scott, Judge, presiding.</p>

Jonas Hutchinson, Judge, presiding. This was a motion to vacate a judgment by confession, entered on May 6, 1903. The motion to vacate was denied, and the order denying it was entered on May 16, 1903, by the Superior court of Cook county. An appeal from said order was taken to the Appellate Court, and the Appellate Court affirmed the order denying the motion to vacate the judgment, granting at the same time a certificate of importance.

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 Hón. Philip Stein, Judge, presiding.

Marcus Kavanagh, Judge, presiding. On June 21, 1900, John Cichowicz brought an action on the case in the superior court of Cook county against the International Packing Company, the appellee, to recover damages for a personal injury. The defendant defaulted, and on July io, 1900, judgment was rendered by the court for $5000 in favor of the plaintiff.

<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. W. Burke, Judge, presiding.</p>

Writ oe Error to the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding. On July 11, 1904, the county collector of Cook county applied to the county court of that county for judgment for the delinquent fourth installment of a special assessment levied against certain lots in the city of Chicago belonging to Henry H. Gage.

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

Writ oe Error to the Circuit Court of Edgar county; the Hon. E. R. Kimbrough, Judge, presiding.

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

<p>Appear from the.Circuit Court of Iroquois county; the Hon. R. W. HirschEr, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ogle county; the Hon. O. E. Heard, Judge, presiding.</p>

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

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

<p>Writ oE Error to the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.</p>

Charles B. McCrory, Judge, presiding. At the June term, 1904, of the county court of Adams county the county collector made application for judgment and order of sale against appellant’s property for delinquent tax for the year 1903. Appellant filed seventeen objections, covering $473.55 of the county tax, $21.99 °f th£ district school tax, $8.62 of the tax of the village of Golden and $277.90 of the road and bridge tax of the various townships.

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

R. S. Tuthill, Judge, presiding. On August 5, 1903, appellees, as children and heirs of Johann Mech, filed their bill in the circuit court, of Cook county to partition certain real estate in the city of Chicago known as No. 904 Wolfram street.

<p>Appeal from the County Court of Vermilion county; the Hon. S. Murray Clark, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. J. H. MoBBETT, Judge, presiding.</p>

<p>1. Taxes—what a sufficient determination of aggregate amount of county tax. A resolution of the county board fixing the rate to be levied upon the $100 valuation for a tax for county purposes is an indirect determination of the aggregate amount required, and is not so uncertain in that respect as to invalidate the tax.</p> <p>2. Same—the county board’s resolution should state the separate amount for each purpose. Under section 121 of the Revenue act, if the county tax is required for several purposes the county board’s resolution should state the amount required for each purpose separately.</p> <p>3. Same—additional road and bridge tax must be for a contingency. The additional road and bridge tax of forty cents on the $100, authorized by section 14 of the Road and Bridge act, cannot be levied unless the highway commissioners have certified that there is a contingency justifying the additional levy, since the latter can not be used to pay the ordinary expenses provided for in section 13, incurred in the usual way.</p>

Appear from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. On February 24, 1890, Christiana O’Connor was the owner of three houses on Clark street and three houses on Rush street, together with the real estate on which said houses were erected, in the city of Chicago.

<p>Appeal from the County Court of Adams county; the Hon. Charles B. McCrory, Judge, presiding.</p>

' Appeal from the Appellate Court for the Second District;—heard in that court on appeal from Circuit Court of Lake county; the Hon. C. H. Donnelly, Judge, presiding.

<p>1. Railroads—duty of railroad company in taking men to and from work. It is the duty of a railroad company, in taking track men to and from their work, to furnish a reasonably safe place in which to ride.</p> <p>2. Same—not negligence per se for workman to ride on top of box-car. If the box-car furnished by a railroad company to transport its servants from work is overcrowded with men and tools it is not negligence per se for some of them to ride on top of the car.</p> <p>3. Same—what does not preclude recovery for low-bridge accident. The presence of tell-tales or whip-lashes suspended over the track does not preclude recovery for the killing of a section man struck by a low viaduct when standing on top of a box-car while returning from work, where it is not shown that he had notice of the viaduct or observed the tell-tales or appreciated their meaning.</p> <p>4. Evidence—when refusal to allow witnesses to state that car was not overcrowded is not error. Refusal to permit witnesses for defendant to state that the box-car furnished by it to transport its workmen from their work was not overcrowded is not error, where the jury are fully advised by the evidence as to the size of the car, the number of men therein and the space occupied by tools.</p>

AppEae from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Theodore BrENTano, Judge, presiding.

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

<p>1. Taxes—ivhen the levy of county tax is insufficient. A resolution of the county board directing the levy of seventy-five cents on each $100 valuation as a county tax for all the various purposes for which the county might require money, and without stating the amounts required for each purpose separately, is not such a levy as will sustain the tax.</p> <p>2. Same—when district road tax is invalid. The preliminary steps necessary, to constitute a valid levy by the board of supervisors of the arrearages of a district road tax of a town under the labor system are lacking where there is no affidavit of delinquency by the overseer of highways and nothing to show that the tax list had ever been in his hands.</p> <p>3. Same-—filing certiñed copy of tax levy ordinance with county clerk is essential to validity of city tax. The filing of a certified copy of the tax levy ordinance with the county clerk is essential to the validity .of the city tax, and if the paper filed does not purport ■ to be a certified copy the court has no power to permit the addition of a-certificate to the paper under the guise of an amendment.</p>

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

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

Appeae from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon.- Frank Baker, Judge,-presiding.

William Rippin, Judge, presiding. This is an appeal from an order of the county court of JoDaviess county, entered on September 3, 1904, dismissing the petition of the appellant, Caroline Lang, and one Grant M. Heiserman, for the granting of letters of administration with the will annexed to M. H. Cleary on the estate of Wilhelmina Kettler, deceased, and ordering that the said Matthew Friesenecker proceed with the administration of said estate, as by law empowered.

J. W. Mack, Judge, presiding. This is a bill in chancery filed by the appellant, against the appellees, in the circuit court of Cook county, to enjoin the collection of a tax extended upon an assessment made by the board of assessors of Cook county upon its personal property situated in the township of New Trier, in said county, for the year 1902. The court sustained a demurrer to the bill and dismissed it for want of equity, and an appeal has been prosecuted to this court.

<p>Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.</p>

<p>1. Special assessments—a supplemental assessment cannot be made before work is completed and deficiency determined. 'A supplemental assessment, under section 59 of the Local Improvement act, cannot be made before .the improvement is completed and the deficiency ascertained.</p> <p>2. Same—improvement' not completed %mtil accepted by board. An improvement is not completed, so that the deficiency may be ascertained, until the board of local improvements has accepted the improvement as complying with the contract and ordinance and has ascertained the cost thereof.</p> <p>3. Same—confirmation judgment is prima facie an adjudication of beneMs. A judgment confirming a special assessment is prima facie an adjudication that the property has been assessed as much as it will be benefited by the improvement. (McChesney v. Chicago, 188 Ill. 423, and Chicago v. Noonan, 210 id. 18, followed and distinguished from Cody v. Town of Cicero, 203 id. 322.)</p>

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Will county; the Hon. John Small, 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>

Writ or Error to the Superior Court of Cook county: the Hon. Elbridge HanEcy, Judge, presiding. This is an action on the case commenced in the superior court of Cook county by the plaintiff in error against the defendant in error, to recover damages to certain real estate situated upon Madison avenue, in the city of Chicago, upon which is located a store and flat-building.

<p>1. Pleading—what is a sufficient averment in absence of a demurrer. In the absence of a demurrer, an averment in a declaration for nuisance that the noxious odors emitted from substances deposited by the defendant upon a lot adjoining plaintiff’s premises “caused much sickness in plaintiff’s immediate vicinity, and plaintiff and her family have been sick, sore, lame and disabled as the result of the presence of said substances,” is a sufficient averment that the noxious odors came upon plaintiff’s premises.</p> <p>2. Nuisance—in case of temporary nuisance, only damages sustained before suit may be proved. In an action for a temporary nuisance caused by depositing soap stock upon a lot adjoining the plaintiff’s premises, the plaintiff’s right of recovery is limited to the damages sustained up to the commencement of the suit.</p>