Volume 215 — Illinois Reports

M. F. TulEY, Judge, presiding. This was a foreclosure proceeding instituted in the circuit court of Cook county, in which the International Building, Loan and Investment Union, a corporation, sought to foreclose two trust deeds executed to secure indebtedness to said corporation.

R. S. TuThill, Judge, presiding. The original bill in this case, filed by the appellant on May 20, 1897, against the widow and children of Peter Wallace, deceased, and Helen A. Butler, and Michael Conrad, sought to reform and correct a deed, executed by Peter Wallace to appellant on November 22, 1893, and recorded on December 8, 1893, as to the description of the property therein conveyed; and to remove a certificate of levy and sheriff’s deed to the said Helen A. Butler as…

<p>Municipal corporations—when funds from a sale of improvement bonds cannot be used to pay outstanding warrants. An ordinance authorizing the issue and sale of bonds to create a fund for the payment of the city’s portion of the cost of making permanent municipal improvements does not, in the absence of an express provision to that effect, authorize the use of the fund to pay outstanding tax anticipation warrants the proceeds of which have been used to pay for permanent municipal improvements constructed prior to the passage of the ordinance.</p>

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. E. F. Dunne, Judge, presiding. The following is the statement of the facts in this case, made by the Appellate Court: “Laura P. Raisor, appellant, sued appellee in case for negligence causing the death of her husband, Isaac S. Raisor. The declaration was demurred to by appellee.

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 Pión. John L. PIealy, Judge, presiding.

R. S. Farrand, Judge, presiding. Appellant filed his bill in the circuit court of JoDaviess county against the county clerk of that county, the city of Galena and the president and ten members of the board of school directors of the school district of the' city of Galena, (or school'district No. 120,) in said county, iii which he sought a perpetual injunction against the computation, extension and collection of all of the school taxes of that district levied by the city…

<p>1. Statutes—repeal by implication is not favored. A repeal of an enactment by reason of alleged repugnancy to a later act is not favored, and only results if the two acts are wholly irreconcilable.</p> <p>2. Municipal corporations—adoption of general law does not affect consistent provisions of special charter. Adoption by a municipal corporation of the provisions of the general Incorporation act does not affect the provisions 'of its former special charter not inconsistent with or repugnant to the provisions of the general law.</p> <p>3. Same—special charter provisions concerning Chicago water fund are in force. Sections 13 and 32 of the act of 1863, revising the special charter of the city of Chicago and requiring the city treasurer to keep money received from water-loan bonds and water rents in a separate fund and prohibiting its use for any other purpose than that for which it was received, were not abrogated by the city’s adoption of the general Incorporation act of 1872, but are in full force and effect.</p>

M. Kavanagi-i, Judge, presiding. This appeal is prosecuted by the appellant, J. Vernon Cal-kins, to reverse the judgment of the Appellate Court for the First District which affirmed the decree of the superior court of Cook county rendered against appellant and in favor of appellee, William P. Worth, finding that said Worth is entitled to $noo of a fund of $2200 on deposit in the Northern Trust Company, being the proceeds of a principal note for $2000 and two $50 interest…

William M. Farmer, Judge, presiding. This is a bill, filed in the circuit court of Christian county by the appellant against the appellee for contribution, the prayer being in part “that the court will decree to your orator the right to have the said Peter Michels contribute his pro rata share of said indebtedness paid by your orator on account of the suretyship of your orator and the said Peter Michels of the said C. L. Wanack as aforesaid,” etc. The appellee demurred to…

Writ oE Error to the County Court of Macoupin county; the Hon. J. B. Vaughn, Judge, presiding. William Carling, Sr., died intestate in Macoupin county on November 21, 1903, leaving him surviving Sarah E. Car-ling, his widow, and John M. Carling, William Carling, Jr., and Sarah E. Metcalf, as his children and sole heirs-at-law.

Writ op Error-to the Circuit Court of LaSalle county; the Hon. H. M. Trimbtp, Judge, presiding. This is a writ of error, sued out from this court on November 23, 1904, for the purpose of reviewing a decree entered by the circuit court of LaSalle county on November 1, 1899, and certain orders entered, in pursuance of proceedings under said decree, in December, 1899, and February and March, 1900.

<p>Appeals and errors—zvhen freehold is not involved. A freehold is not involved in a proceeding by an administratrix to sell land to pay debts unless some question is raised in regard to the title to the land, and is not involved where the only issue is whether there are valid claims unpaid authorizing sale of land to pay them.</p>

Writ. oE Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.

<p>Writ op Error to the County Court of Randolph county; the Hon. S. L. Taylor, Judge, presiding.</p>

Writ oE Error to the Circuit Court of St. Clair county; the Hon. M. W. SchabeEr, Judge, presiding. This is a writ of error, sued out to reverse a decree of the St. Clair county circuit court in favor of defendant in error. The action is partition brought by plaintiff in error against defendant in error. The facts are substantially as follows: Theresia Thiem was the owner in fee simple of lots 42 and 43 in Bissell & Pensoneau’s addition to Belleville.

<p>' 1. Special assessments—fact that no petition of property owners zvas filed must be proved. The recommendation of the board of local improvements is prima facie evidence that the preliminary requirements of the law have been complied with, and casts upon the persons objecting that no property owners’ petition was filed, the burden of proving that fact.</p> <p>2. Same—when provision for "fitting’ is not invalid. A provision of a paving ordinance requiring the roadway to be brought to proper sub-grade and rolled and “if settlements occur the depressions shall be filled,” all filling to be “of suitable material found on the work, designated by the engineer,” is not invalid as vesting the engineer with discretionary power to designate the filling material.</p> <p>3. Same—what is not an improper delegation of discretionary pozver. If a paving ordinance specifies the dimensions of the curbstones, a provision that “the radius of corner curbs shall be six feet, or as the engineer may specify,” does not delegate such discretionary power to the engineer with respect to the radius of the corner curbs as invalidates the ordinance.</p> <p>4. Same—when failure of ordinance to establish grade for part of street is not fatal. Failure of an ordinance to establish the grade for part of the improvement is not fatal when there is a general ordinance which established the grade of the street for the other part of the improvement and such grade may be easily ascertained by a competent engineer from the evidence at hand.</p>

Writ or Error to the Appellate Court for the Third District ;—heard in that coúrt on appeal from Circuit Court of Tazewell county; the Hon. T. N. Grrrn, Judge, presiding. At the December term, 1903, of the circuit court of Tazewell county, defendant in error began an action of trespass on the case for the breach of warranty of a breeding jack sold to him by plaintiff in error.

<p>1. Railroads—when party is not a trespasser. A stock shipper having transportation from shipping point to destination has the right, when a junction is reached where his cars are switched to another road, to go into the yards for the purpose of looking after his stock, and in so doing is not a trespasser.</p> <p>. 2. Evidence—when admitting parol proof is not reversible error. Permitting the son of the plaintiff’s intestate to testify that he found in his father’s satchel, after he was killed, transportation over the defendant’s road to the destination of the stock shipment he was accompanying, is not reversible error, although the transportation was not produced in evidence, where there is no controversy over the contents thereof.</p>

John A. Gray, Judge, presiding. This is an action of debt, brought to the September term, 1903, of the McDonough county circuit court by the appel-' lant, the town of Bethel, against the appellee, Jacob Pruett, to recover a penalty for suEering an alleged obstruction to remain in a public highway after being notified by the highway commissioners of said town to remove the same.

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

William S. Dewey, Judge, presiding. This is an application of the county collector of Alexander county to the June term, 1904, of the county court of that county for a judgment against lands, lots and other real estate for taxes due thereon for the year 1903. In the collector’s list of delinquent property was the bridge approach of the Illinois Central Railroad Company to the railroad bridge across the Ohio river at Cairo in said county.

<p>1. Negligence—zvhat does not relieve street car company from liability for collision. If a street car company is guilty of negligence in running its car against a hired carriage in which plaintiff was riding, it is not relieved of liability because the driver of the carriage was also negligent.</p> <p>2. Same—when street car company is not liable for injury. If the accident which caused plaintiff’s injury is attributable solely to the fact that the driver of the carriage in which she was riding negligently turned upon the track when the defendant’s street car was too near for the motorman to stop it, the defendant is not liable, and is entitled to have the jury so instructed where there is evidence on which to base the instruction.</p> <p>3. Instructions—party entitled to instruction applying specifically to his theory. A party is entitled to an instruction which applies directly and specifically to his theory of the facts which there is evidence tending to prove, even though general instructions have been given stating approved rules of law applicable to any case where negligence is charged.</p> <p>4. Same—when refusal of specific instruction is not reversible error. Refusal of an instruction applying specifically to the defendant’s theory of the case is not reversible error, where another specific instruction is given at its request containing a fair statement of the defendant’s theory of the. case, the facts which its evidence tends to prove and the rule of law applicable thereto.</p>

<p>Writ of Error to the Circuit Court of Edgar county; the Hon. James W. Craig, 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. Philip Stein, Judge, presiding. The defendant in error, a fraternal benefit society, was incorporated on June 22, 1897, under “An act to provide for the organization and management of fraternal beneficiary societies,” etc., approved and in force June 22, 1893, as amended by an act in force July 1, 1895.

Writ OE Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Mason county; the Hon. Harry HigbeE, Judge, presiding.

<p>1. Appeals and Errors—refoisal to act on motion does not authorize appeal. Unless authorized by statute there can be no appeal from the refusal of the court to hear or act upon a motion.</p> <p>2. Same—party cannot appeal from judgment in his favor. If defendant to a condemnation proceeding moves to dismiss the petition, but the court, instead of considering that motion, dismisses the proceeding upon the written motion of the petitioner, the defendant has no ground for appeal. .</p> <p>3. Practice—want of jurisdiction of subject matter does not affect right to dismiss- suit. If the court has no jurisdiction of the subject matter of a suit it may dismiss the suit of its own motion or at the suggestion of either party or of a stranger.</p> <p>4. Cloud on title—cloud on title defined. A cloud on title is an outstanding claim or encumbrance which, if valid, would affect or impair the title of the owner of the land, and which appears upon the face to be valid but may be shown by extrinsic evidence to be invalid.</p> <p>5. Same—instrument void on its face is not a cloud. An instrument or proceeding which is on its face plainly illegal or void does not constitute a cloud, and there is no occasion for the interference of a court to nullify or set it aside.</p> <p>6. Same—court of law cannot remove cloud. In a proceeding to condemn land the court has no jurisdiction to declare the statute and ordinance under which the proceeding was instituted, void, as a cloud upon the defendant’s title to the land condemned.'</p>

, Appear from the Circuit Court of Shelby county; the Hon. S. L. Dwight, Judge, presiding. This is an appeal from a decree for partition entered by the circuit court of Shelby county in a suit brought by appellee, against appellant. Appellant and appellee are the only living children of James and Emily Henry.

H. H. Kerr, Judge, presiding. Union drainage district No. 1 of the townships of Pella and Brenton, in Ford county, Illinois, was organized under the act of May 29, 1879, f°r the construction of drains, ditches and levees for agricultural, sanitary and mining purposes. The district was fully organized, the assessment made, the contract let and most of the work completed.

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

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. W. CriEEord, Judge, presiding. In November, 1897, the Greenwald Furniture Company, a corporation, was conducting a retail furniture business at Nos. 4611 and 4613 Wentworth avenue, Chicago. Katy Greenwald was the president and Joseph Greenwald was the secretary of the corporation.

<p>Appeals and Errors—when neither a freehold nor franchise is involved. Neither a freehold nor a franchise is involved in a proceeding for mandamus to compel the removal of an alleged obstruction placed in a street under authority of an ordinance granting the right for ten years or any time prior thereto, at the discretion of the mayor, it being conceded that the land on which the alleged obstruction is built is part of the street, the ownership of which is in the city and the public.</p>

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

F. W. Burke, Judge, presiding. This is an action on the case brought by appellee in the circuit Court of Cook county to recover damages for negligently causing the death of appellee’s intestate. The case has been tried three times before a jury in the circuit court of Cook county. At the first trial a peremptory instruction was given, at the close of all the evidence, directing a verdict for the defendant, but a new trial was subsequently granted.

Joseph E. Gary, Judge, presiding. The appellee, the People of the State of Illinois ex rel. the Union Trust Company, filed its petition in the superior court of Cook county against the city of Chicago and its mayor and board of aldermen, praying for a writ of mandamus to compel them to provide, by proper appropriation, for the payment of certain indebtedness of the city.

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

<p>1. Accord and satisfaction—when acceptance of offer satisfies demand. If the money or check tendered is.so offered as to amount to a condition that its acceptance will be in satisfaction of the demand, its acceptance by the creditor will constitute satisfaction, although he protests at the time that the amount received is not all that is due or that he does not accept it in full satisfaction.</p> <p>2. Same—creditor has no alternative except to reject the offer or accept it. Where the money or check is offered in full satisfaction of a disputed demand, the creditor, in the absence of a waiver of the condition by the debtor, has no alternative except to reject the offer or accept it, and if he accepts it the acceptance includes the condition of satisfaction, although he protests to the contrary.</p> <p>3. Same—what not a waiver of condition by debtor. That the debtor who has made an offer of a check in full satisfaction of the creditor’s demand makes no formal objection to the statement of the creditor that there was still a balance due him, beyond saying that he did not owe more than the amount of the check, does not amount to a waiver of the condition of his offer that the acceptance of the check should constitute full satisfaction.</p>

<p>Writ oe Error to the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.</p>

M. W. Thompson, Judge, presiding. In May, 1894, appellee exhibited his bill in chancery in the Vermilion circuit court against appellant, praying for a mandatory injunction against the latter requiring him to connect a certain tile drain leading from the farm of appellee to that of appellant and to desist from further disconnecting the same.

<p>1. Drainage—what a proper ground of objection to assessment. In a proceeding to levy an assessment in a drainage district already organized under the Levee act, it is competent for the land owners to obj ect on the ground that the parties making the assessment were not, under the law, competent to make the same.</p> <p>2. Same—what are not final orders in drainage assessment. In a proceeding to levy assessment for repairs, improvement and maintenance of ditches in a district already organized under the Levee act, orders granting the prayer of the petition and authorizing commissioners to spread the assessment are not final orders, and may be set aside by the court at the term to which the hearing of the objections to the report of the commissioners is continued.</p> <p>3. Appeals and errors—when order in drainage assessment can not be appealed from. An order vacating former orders on the hearing of the argument of objections to the report of the commissioners in a proceeding to levy an assessment for repairs in a district organized under the Levee act, but which fails to make any disposition of the case or dismiss the petition, is not a final order, from which an appeal will lie.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding. .</p>

<p>1. Eminent domain—jury should consider fact that re-construction of building must comply with city ordinances. If in a proceeding to condemn land to widen a street the improvement requires the removal of the front of a building for one-third of its depth, the defendant is entitled to have the jury instructed that if the building is susceptible of re-construction such re-construction must be subject to the ordinances of the city, which, under the evidence, would require heavy re-enforcement of the standing walls.</p> <p>2. Same—what the jury must consider in awarding damages for taking part of building. In awarding damages for the taking of a portion of a building for the purpose of widening a street, the jury must either consider the remainder worthless and allow the whole value of the building or consider what can be done with the remainder and the cost of doing so.</p> <p>3. Same—what evidence should be admitted on the question of benefits. In a condemnation proceeding to widen a street, if a witness for the city testifies that the widening of the street would bene-' fit the property and bring business into the street as widened, the defendant is entitled to have the jury informed whether the witness had taken into account that defendant would have to pay for a new pavement and sidewalk, or whether he based his estimate on a finished street.</p> <p>4. Same—what should be considered by thefijury on question of damages and benefits. In a condemnation proceeding to widen a street the defendant is entitled to have the jury consider the fact that a new pavement and sidewalk will have to be built and the fact that such improvements are made in the city at the entire expense of the property owners.</p> <p>5. Instructions—inadvertent use of wrong word not ground of refusal. The inadvertent use of the word “is” instead of “if” in an instruction is not ground for its refusal by the court, if the meaning is plain notwithstanding the error.</p>

<p>1. Construction—when a practical construction by legislative and executive departments will be given great weight. Contemporaneous, uniform and practical construction of a constitutional provision or statute by the legislative department and the executive officers charged with the duty of enforcing the provision or statute will be given great weight by the courts, and will, in general, be allowed to control where the construction is doubtful.</p> <p>2. Counties—right of Cook county board to provide for payment of the salaries of assistants to State’s attorney. Section f of article 10 of the constitution, in view of the long, uniform and practical construction placed thereon by the legislature and the board of county commissioners of Cook county, is held to be sufficiently broad, to justify the action of the county board in appropriating money for the payment of salaries for necessary assistants to the State’s attorney of Cook county.</p>

Philip Stein, Judge, presiding. This is an action on the case, brought on May 8, 1902, by the appellee, as administrator of the estate of Herbert S. Lundahl, deceased, against the appellant company to recover damages for an injury, resulting in the death of appellee’s intestate. The trial resulted in verdict and judgment in favor of the appellee, which judgment has been affirmed by the Appellate Court; and the present appeal is prosecuted from such judgment of affirmance.

Writ oE Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of McDonough county; the Hon. Geo. W. Thompson, Judge, presiding.

Theodore Brentano, Judge, presiding. This is a bill, filed in the Superior Court of Cook county on July 21, 1904, by the appellant against the appellees, the West Chicago Park Commissioners, the town of West Chicago, and John J. Hanberg, county treasurer and ex officio county collector of Cook county, praying for an injunction against the West Chicago Park Commissioners, and the town of West Chicago, restraining and enjoining them from issuing, selling or otherwise disposing…

Writ or Error to the Circuit Court of Cook county; the Hon. J. W. Mack, Judge, presiding. This is a bill, filed on January 14, 1902, by the plaintiff in error against Chauncey J. Blair, and John C. Neely, trustee, to redeem certain premises from a foreclosure sale, in pursuance of an alleged verbal agreement for the extension of the time of redemption. Answers were filed by the defendants in error denying the existence of any agreement for redemption.

<p>1. Evidence—proof of the intention of parties to deal in options may he circumstantial. That the parties to dealings in grain intended to settle by way of differences in the market value of the grain and the option price need not be proven by express declarations or statements of the parties but may be established by the attending circumstances of the transaction.</p> <p>2. Same—what competent in suit to recover money paid for options. Although section 132 of the Criminal Code limits the right of recovery of money paid for an option in grain to money paid within six months before suit begun, yet the statement of the manager of the branch office which conducted the business, explaining the method of doing the business, is competent as characterizing the transactions, without regard to the fact that it was made more than six months before suit begun.</p>

Solon Philbricic, Judge, presiding. This was a bill filed by appellees, Isaiah Wilson and William H. Lafferty, to quiet title to the west half of the northeast quarter of section 35, township 20, north, range 2, east of the third principal meridian, situated in DeWitt county.

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

Writ of Error to the Criminal Court of Cook county; the Hon. M. Kavanagh, Judge, presiding. The plaintiff in error, Daniel D. C. Kipley, was indicted at the April term, 1902, of the criminal court of Cook county, on the charge of murdering one Joseph J. Hopkins. Upon a trial before the court and a jury at the June term he was found guilty of manslaughter, and his punishment fixed at imprisonment in the penitentiary.

C. H. Donnelly, Judge, presiding. This is an action of trespass on the case, brought by the widow and daughter of one John P.'McIntyre, deceased, under section 9 of the Dram-shop act, the daughter,… Held: and it was shown by the medical testimony and is not controverted, that the immediate cause of death was suffocation.”

<p>1. Taxes—meaning of term “net receipts” of an insurance company. The term “net receipts” of a foreign insurance company, as used in section 30 of the act relating to fire, marine and inland navigation insurance, as amended in 1879, (Laws of 1879, p. 179,) means the gross receipts less operating expenses, not including fire losses, and does not mean “net profits.”</p> <p>2. Evidence—when evidence of experts as to understood meaning of word is inadmissible. Evidence of insurance experts as to the meaning of the term “net receipts,” used in section 30 of the act relating to fire, marine and inland navigation insurance companies, as the same is understood in Cook county, is not admissible, for the reasons that the meaning of the term is a question of law, and that the statute is applicable to the entire State and not to Cook county alone.</p>

M. Kavanagh, Judge, presiding. - This is an action on the case brought by Inga Newmiller, against the Chicago Union Traction Company, to recover damages for personal injuries alleged to have been sustained by her while a passenger upon one of its cars.

<p>1. Special interrogatories—special interrogatories shotdd be submitted to counsel. Special interrogatories, although prepared by the court of its own motion, should be submitted to counsel, so as to enable them to present other interrogatories or direct their arguments against giving the ones submitted to them.</p> <p>2. Same—when special interrogatory relates to evidentiary fact. In an action for the death of a small boy killed at a street crossing at a point where neither he nor the motorneer could see each other until at the moment of the collision, special interrogatories as to whether the car ran into the boy or the boy ran into the car relate to immaterial evidentiary facts, and should not be given.</p> <p>3. Same—ivhen special interrogatory is improper as not based on the evidence. A special interrogatory requiring the jury to say whether defendant’s servants were guilty of wantonness or recklessness in driving and managing the car in question should not be given where there is no evidence of willful or wanton conduct by such servants.</p> <p>4. Instructions—when instruction as to wanton injury is misleading. An instruction stating that in order to sustain a count charging defendant’s servants with willfully and wantonly driving the car upon the deceased it was not necessary to prove an intention to drive the car upon deceased is misleading, where the jury are not told in that or any other instruction what it was necessary to prove to sustain the charge.</p> <p>5. Negligence—what must be shown to sustain charge of wanton injury. While it is not necessary, to sustain a charge of willful or wanton injury, that plaintiff prove an intention on the part of defendant's servants to drive the street car upon the deceased or. that they entertained an ill-will towards him, yet it is necessary, in such case, to prove not negligence, merely, of any degree, but such conduct as will show a general intent to inflict injury.</p> <p>6. Same—in mere negligence there is no wrongful purpose. In mere negligence there is no wrongful purpose to do the act or omit the duty constituting the negligence complained of, but there may be such a dereliction of duty as will furnish evidence of a willful or wanton act.</p>

<p>1. Evidence—when declarations of deceased person are admissible. Admissions and declarations of a deceased person against his interest, tending to show delivery of a note intended as collateral security for money received by him from his mother for investment, are admissible in evidence, as against his wife, in a suit wherein she defends as devisee and legatee of the husband.</p> <p>2. Same—when principles governing gifts causa mortis do not apply. The principles governing gifts causa mortis, or testamentary dispositions of property, or the relation of principal and agent, do not apply to a transaction whereby a son, in expectation of death, places in the custody of a third person collateral previously set apart by him as security for money received by him from his mother for investment, even though the custodian was to return the collateral to the son in case of his recovery. ,</p>

<p>1. Special assessments—substantial compliance with statute in describing improvement is sufficient. A substantial compliance with the requirements of the statute as to the description of the improvement in the ordinance is all that is required.</p> <p>2. Same—when description of grades is sufficient. The description, in a paving ordinance, of the grade for a roadway, gutters and curbs is sufficient when, if considered with the terms of a general ordinance of the city given in evidence, any contractor or person experienced in constructing pavements could substantially comply with the improvement ordinance according to its intent.</p> <p>3. Same—question of benefits not dependent on particular use of property. The question of the extent of benefit to property from the paving of a street is not to be determined by the particular use to which the owner is putting the property at the time.</p>

John A, Gray, Judge, presiding. Appellee obtained a judgment in an action of ejectment against appellant in the Hancock circuit court at the October term, 1904, and appellant prosecutes this appeal and assigns errors upon the record. At the hearing appellant offered twelve propositions of law to be held or refused by the court, and the court held two of them and refused all the others, and appellant excepted, and the questions of law are by them presented.

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

Philip Stein, Judge, presiding. This is an action on the case by appellee, against appellant, to recover for personal injuries sustained by him on December 16, 1901, by the alleged negligence of appellant in the operation of an electric car going south on Halsted street, near Thirty-eighth place, in the city of Chicago.

<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. JESSE Holdom, Judge, presiding.</p>

Appear from the Appellate Court for the First District;— heard in that court on writ of error to the Superior Court of Cook county; the Hon. AxER ChyTraus, Judge, presiding.

<p>1. Negligence—proof must correspond with averments of declaration. If the plaintiff sets out in the declaration the negligent acts of the defendant relied upon for a recovery he must establish those negligent acts, and cannot recover on proof of other acts not averred as a ground of recovery even though the acts proven show that the defendant company was guilty of negligence which caused the injury.</p> <p>2. Same—direct testimony that switch was open is not necessary. To sustain an averment that an open switch caused defendant’s car to jump the track, thereby inflicting the plaintiff’s injury, direct testimony that the switch was open is not essential, if the circumstances proven are sufficient to enable the jury, without acting as unreasonable men within the eye of the law, to find, from the evidence, that the cause of the derailment in question was an open switch.</p> <p>3. Appeals and errors—when Supreme Court must sustain refusal to direct a verdict. . In determining whether the trial court erred in submitting a case to the jury, evidence on the part of the defendant contradicting that of the plaintiff cannót be considered, and if there is any evidence in the record tending to support the cause of action alleged, the Supreme Court is bound to affirm the action of the trial court and the Appellate Court in holding that the case should be submitted to the jury.</p>

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

<p>InEormation for disbarment.</p>

<p>1. Mandamus—mandamus is not a writ of right. The granting of a writ of mandamus is discretionary with the court, in view of all the existing facts and with due regard to the consequences which will result. / ^</p> <p>2. Same—when private citizen cannot enforce public right. A person may, in his capacity as a private citizen, institute a proceeding for mandamus for the protection of a public right, but he is not entitled to the writ if the public right has been lost or the public is estopped to assert it.</p> <p>3. Municipal corporations—when city may lose rights by nonuser. While a municipal corporation does not lose its rights in a public street by non-user alone, yet if there are other circumstances which are sufficient, with such non-user, to raise the presumption of abandonment, such rights will be deemed lost.</p> <p>4. Same—when doctrine of equitable estoppel applies to a municipal corporation. Where a party, acting in good faith under the affirmative action of a city, has made such lasting and valuable improvements in a street that it would be highly inequitable and unjust to destroy the rights so acquired, the doctrine of equitable estoppel will be applied.</p> <p>5. Same—when the public is estopped to assert right. Where a city, for a valuable consideration, grants to a railroad company the right to erect structures and lay tracks on a portion of a public street constituting the river front, leaving a portion of the street of ample width for unobstructed travel, and the company incurs great expense in making permanent improvements in reliance on the grant, the public, which has apparently acquiesced in such action for many years, is estopped to assert the right to have such improvements removed.</p>

<p>1. Judgments and decrees—court may inquire into jurisdiction of court of foreign State to enter decree. Courts of this State may inquire into the proceedings, judgment or decree of a court of a .foreign State, to determine whether that court had jurisdiction of the subject matter and of the parties.</p> <p>■ 2. Same—when foreign decree of divorce is void. A decree of divorce entered by a court of a foreign State will be held .void by a court in this State where the evidence shows the complainant practiced fraud upon the foreign court with respect to the time of his residence and in concealing the address of the defendant, which was well known to him, thus causing that court to wrongfully assume jurisdiction.</p> <p>3. Laches—laches cannot be imputed before notice of the facts. Laches on the part of a wife in not seeking to set aside a decree of divorce obtained by her husband until after his death cannot be imputed, where she testifies, without contradiction, that she did not know of the decree until after his death, although she knew he was living with another woman.</p> <p>4. Interest—interest not allozved on widow’s award. In a proceeding by a widow to obtain the widow’s award set off by the commissioners, interest is not allowable on the award from the date it was set off. (Stunz v. Stunz, 131 Ill. 210, followed.)</p>

Dwight C. Haven, Judge, presiding. A petition was filed in the county court of Will county for the organization of the Spring Creek drainage district. Upon a hearing the court found that the petition was signed by a majority of the owners representing the necessary area of land; that the land was subject to overflow and required drainage; that the district should be formed as prayed; and three commissioners were appointed to carry into effect the order of the court.

E. E. Dunne, Judge, presiding. This is an appeal, by virtue of a certificate of importance, from a judgment of the Appellate Court for the First District reversing a decretal order of the circuit court of Cook county allowing and taxing as cost a solicitor’s fee of $300 for complainant’s solicitor, entered in a chancery suit pending in that court, brought to have the resignation of the Illinois Trust and Savings Bank, the trustee named in the will of William G. Wilson,…

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. A. W. Hope, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Champaign county; the Hon. Solon Philbricic, Judge, presiding.</p>

<p>1. Municipal corporations—street cannot be repaired by special assessment. After a street has been improved by special assessment it is the duty of the city to keep it in repair, and the funds for this purpose should be provided by general taxation, and not by special assessment.</p> <p>2. Same—city’s determination as to what is a local improvement is not conclusive. The power of a city to determine what is a local improvement Is subject to review by the courts, and ordinances which, in view of the circumstances and conditions, are unreasonable, unjust and oppressive will be declared invalid.</p> <p>3. Special assessments—when improvement is not a matter of repairs. Laying a new asphalt pavement after removing the old pavement down to the concrete foundation is not a matter of mere repairs, notwithstanding the old foundation is to be used for the new pavement after it has been partially renewed, and such work may be paid for by special assessment.</p> <p>4. Same-—city may determine zuhether a pavement shall be repaired or renewed. It is within the power of a city council to determine whether a pavement shall be repaired or re-built, and its decision to re-build will not be held unreasonable where the evidence shows that the pavement has been twice extensively repaired, but has since become so worn down and full of holes and cracks that it would be impracticable to restore the surface by patching.</p>

<p>Writ oe Error to the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.</p>

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

Writ or Error to the Circuit Court of Jersey county; the Hon. Robert B. Shirley, Judge, presiding.

James W. Craig, Judge, presiding. This is a bill in chancery, filed on February 26, 1903, by the appellant against the appellees, alleging that appellant is the owner in fee simple of lot 10 in block 4, north, range 2, east of the public square in Hezekiah Cunningham’s addition to Danville in Vermilion county; that Charles Johnson is the holder of a tax deed, dated March 24, 1892, conveying one-fifteenth east side of said lot, which said tax deed is alleged to be a cloud…

<p>1. Estoppel—what essential to application of doctrine of equitable estoppel. In order that the doctrine of equitable estoppel may be applied, it is essential that the party claiming the estoppel should not only have relied upon the acts or representations of the other, but that he was destitute of knowledge and of any convenient and available means of knowledge of the true facts.</p> <p>2. Notice—possession of tenants is notice of landlord’s rights. Possession of tenants is constructive notice of the legal or equitable rights of the landlord under whom they hold and to whom they pay the rent, even though the legal title stands in another’s name.</p> <p>3. Statute oE Erauds—when equity may enforce parol trust. A voluntary conveyance by father and mother to their son for the sole purpose of his re-conveying the legal title to the mother creates a parol trust, which, though voidable under some conditions, is not void, and, where the mother continues to retain possession of the property, a court of equity will protect her rights and enforce the trust notwithstanding the Statute of Erauds.</p>

Jesse Holdom, Judge, presiding. The appellant, James D. Lynch, filed his bill for relief in the superior court of Cook county against the county of Cook, the city of Chicago, and William C. Halley, Thomas F. Judge and John W. Houston, the board of election commissioners of the city of Chicago.

R. M. Skinner, Judge, presiding. This is an appeal from a judgment of the Appellate Court, affirming a judgment of the circuit court of Bureau county, entered upon the verdict of a jury in an action on the case originating in that court at the suit of appellee, plaintiff below. The amount of the verdict and judgment was $3000.00. On November 13, 1902, the appellant company was operating a coal mine. The shaft was from 468 to 470 feet deep.

<p>1. Criminal law'—great latitude is allowed in cross-examining an "approver.” In cross-examining a witness jointly indicted with the accused, and who, in testifying for the People after having been granted a separate trial, establishes his own guilt and implicates the accused, great latitude should be allowed; and it is error for the court to refuse to permit inquiry as to whether or not he expected if he testified for the People he would be more lightly punished than if he did not.</p> <p>2. Same—physician'cannot base his conclusions on a patient’s history of the case. In a trial for producing an abortion, causing death, a physician who testifies in the case cannot base his conclusion that the deceased had been pregnant prior to his examination of her but was not then pregnant, upon the history of the case as detailed by her and not upon the result of his examination,</p> <p>3. Same—when instruction as to credibility of witness should not be refused. A11 instruction in a criminal case which states the correct rule as to. impeachment of a witness should not be refused because it singles out a particular witness and directs the attention of the jury to his testimony, where he was the only witness sought to be impeached and there is no other instruction given which fairly supplies its place.</p>

Julian W. Mack, Judge, presiding. This is a bill in chancery filed by the appellant, Edward Roby, as a citizen, resident and tax-payer of the city of Chicago, in the circuit court of Cook county, against the city of Chicago, in which it is averred that the public streets of said city are unlawfully occupied by certain street railways; that the corporations operating said street railways collect annually lafge sums of money as fares from the persons riding on their street…

Jesse Holdom, Judge, presiding. This was an action on the case commenced by the appellant, against the appellee, in the superior court of Cook county, to recover damages alleged to have been sustained by the appellant in consequence of the increased use by the appellee of its 200-foot right of way between Twenty-second and Twenty-fifth streets, in the city of Chicago, by erecting thereon more than a single or double track railroad, in violation of the terms of the grant of…

<p>1. Mandamus—mandamus is not a writ of right. In the exercise of its discretion the court may refuse a writ of mandamus, even though the petitioner has a legal right for which mandamus is a proper remedy, if the writ will not operate impartially, or will create confusion and disorder, or will not promote substantial justice, or where its purpose is to settle mere abstract rights unaccompanied by practical benefits.</p> <p>2. Same—when petitioner has no direct interest. A private citizen has no direct interest which entitles him to a writ of mandamus to compel the extension of taxes at a higher rate than that used, where the only purpose of the writ is to increase the revenue of certain departments of the municipality which are not complaining, and the effect would be to increase, and not lessen, his burden of taxation.</p> <p>3. Constitutional law—party cannot ask courts to determine validity of statute as an abstract question of law. A party has no standing to ask the courts to determine the constitutionality of a statute as a rnere abstract question of law.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>1. Benefit societies—when proof that society obtained certificate by fraud is proper. Proof that an affidavit used by a benefit society to obtain possession of a benefit certificate was obtained by false representations and intimidation employed by the person who procured it, is competent without proof that such person was then authorized to act as agent of the society, since ratification of his act is established by the facts that the society used the affidavit to obtain the certificate and retained the latter after the evidence disclosed the fraud employed in procuring the affidavit.</p> <p>2. Trial —when refusal of a peremptory instruction is proper. Refusal to direct a verdict in favor of the defendant benefit society upon the ground that the issuance of the certificate was procured by false representations and collusion of the assured and his physician is proper, where the testimony upon that phase of the case is conflicting.</p> <p>3. Instructions—reference to the declaration is not improper. It is not improper for an instruction to authorize the jury to return a verdict for the plaintiffs if they believe, from a preponderance of the evidence, that they “have made out their case as laid in their declaration.”</p>

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

Paul McWilliams, Judge, presiding. This was an action of trover, brought in the city court of Litchfield by Mary A. Southworth, the appellee, against the First National Bank of Litchfield, Illinois, the appellant, to recover the value of a promissory note and real estate mortgage securing it, which, it is claimed, have been converted by appellant. The general issue was the only plea filed.