Volume 216 — Illinois Reports

<p>1. STATUTES-rule for construing statute conferring privileges on corporations. A statute granting powers, privileges or immunities to corporations must be held to apply to domestic corporations only, unless the intent to make it apply to foreign corporations also is clearly expressed in the terms of the act.</p> <p>2. Inheritance tax—tax is not laid upon the property itself. An inheritance or succession tax is not laid upon the property inherited or devised, but upon the right to take the property by descent or devise, which is a right owing its existence to the authority of a legislative enactment and subject to legislative abrogation or regulation.</p> <p>3. Same—right of the legislature to make distinctions between classes. In levying an inheritance or succession tax the legislature may make it applicable to one class of persons or corporations and inapplicable to another class, provided the tax is uniform as to the class upon which it operates.</p> <p>4. Same—amendatory act of 1901 does not apply to foreign corporations. The amendatory act of 1901, (Laws of 1901, p.' 269,) exempting from inheritance tax property devised to the use of a religious, educational or charitable corporation having no power to make dividends or distribute profits, does not apply to corporations organized under laws of other States.</p> <p>5. Constitutional law—act of 1901, exempting certain corporations from inheritance tax, not unconstitutional. The act of 1901, exempting from inheritance tax property devised to the use of religious, educational or charitable corporations, does not violate the constitutional rule of uniformity of taxation by reason of its failure to extend the immunity to foreign corporations.</p> <p>6. Same—a corporation is not a “citizen" within constitutional meaning. A corporation is not a citizen within the meaning of section 2 of article 4 of the constitution of the United States, declaring the citizens of each State to be entitled to the privileges and immunities of citizens of the several States, nor within the meaning of the fourteenth amendment.</p> <p>7. Same—when foreign corporation is not a person within the jurisdiction of a State. A foreign corporation is not, as to any other State than that where it was created,- a “person within its jurisdiction,” within the meaning of the fourteenth amendment, until it has complied with the laws of such State authorizing 'it to do business there.</p>

Frank D. Ramsay, Judge, presiding. This is an action of trespass on the case, brought in the circuit court of Mercer county on June 30, 1904, by the appellee against the appellant to recover damages, resulting to plaintiff from an injury inflicted upon him by being thrown from a wagon, drawn by mules upon a public highway, by reason of said mules becoming frightened, and turning over said wagon, because of the alleged negligence of appellant in running an automobile, in…

<p>. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

Writ or Error to the County Court of Coles county; the Hon. T. N. CoEEr, Judge, presiding. On January 8, 1903, a petition was filed in the county court of Coles county for the organization of the Polecat drainage district. The petition was set for hearing February 5, 1903, and the notices were given as required by law.

Solon Philbrick, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Third District affirming a decree of the circuit court of Macon county, which sustained a demurrer to and dismissed the bill of appellants against appellees. The bill is called by counsel for appellants a creditors’ bill, but it is rather a bill to construe the last will of Ida A. Downing, who died testate in said Macon county February 13, 1898.

<p>1. Elections—when petition to contest election is defective. A petition to contest an election to the office of circuit clerk which fails to state that the petitioner is an elector of the county is open to demurrer.</p> <p>2. Same—what not equivalent to averment that petitioner is an elector. An averment in a petition to contest an election that the petitioner resided in the county is not equivalent to an averment that he was an elector of the county.</p> <p>3. Same—right to contest election is purely statutory. The right to contest an election is created and controlled wholly by statute.</p>

<p>Negligence—contributory negligence by plaintiff precludes recovery. If the injury to the plaintiff would not have happened had she been in the exercise of ordinary care for her safety she is not entitled to recover, even though the defendant was negligent, there being no claim of willful or wanton injury.</p>

M. Kavanagh, Judge, presiding. This was a bill in chancery filed by the appellee, a building and loan association, against the appellants, husband-and wife, in the superior court of Cook county, to foreclose a mortgage bearing date December 2, 1895, given by appellants to the appellee, upon premises upon which the appellants resided as a homestead, to secure the payment to the appellee of the sum of $3950 for money loaned by it to them, with interest and penalties, which…

<p>1. Wills—when right to take is not limited to grandchildren in esse at testator’s death. A clause of a will providing that all of the testator’s estate “shall be divided among all of the children” of his son and daughter “that shall attain the age of twenty-one if a female and twenty-five if a male,” does not restrict the right to take to grandchildren in esse at the testator’s death.</p> <p>2. Same—when trust violates rule against perpetuities. A trust created by will which places the testator’s property in the hands of a trustee, there to remain during the lives of his son and daughter, and after both have died to remain in the trust fund until the youngest child of such son or daughter has reached the age of twenty-one years if a female and twenty-five years if a male, violates the rule against perpetuities.</p> <p>3. Same—when trust provision must be held void. Where the trust created by will is an entire and complete scheme for disposing of the testator’s property, which will be defeated if part of the trust provision is held valid and part void, in case a portion of the provision is void the entire provision must be held void, and the trust fund falls under the operation of the Statute of Descent and vests in the legal heirs of the testator.</p>

Writ or Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.

<p>1. Constitutional law—act fixing rate of interest on special assessment bonds is valid. The statute fixing the rate of interest on special assessment installments and bonds at five per cent is not unconstitutional, as precluding the right of property owners to contract, through the city, for a less rate.</p> <p>2. Special assessments'—objection of another suit pending is removed by dismissal of-such suit. An objection to a special assessment proceeding that another proceeding for the same improvement is pending is removed by the dismissal of such other proceeding by the city, and upon proof of such dismissal the court may go on to a final determination of the case.</p> <p>3. Same—when confirmation judgment must be reversed in part. Alteration of an assessment roll after its filing, by erasing one lot number and inserting the number of another lot and writing in the name of another person as the owner, is ground for reversing the judgment as to the property so inserted but does not invalidate the entire assessment roll.</p>

Appear from the Superior Court of Cook county; the Hon. Jesse Hordom, Judge, presiding.

Circuit Court of Morgan county; the Hon. O. P. Thompson, Judge, presiding. Held: in accordance with the view expressed by the Appellate Court, that the appellee was entitled to re-purchase the said prairie farm from said Henry B. Rankin under the terms of a contract between the appellee and Henry B. Rankin called “Additional to lease,” and entered a decree for the specific performance of said contract of…

<p>1. Limitations—possession must be adverse in order to give rise to rights. Possession of land for twenty years, in order to give rise to rights under the Statute of Limitations, must have been adverse, and not upon invitation and with the consent of the owner of the legal title.</p> <p>2. Real property—when contract does not convey land. A contract whereby the owner of land agrees to give to his daughter the income of the land, after deducting repairs and taxes, from and after the year succeeding the date of the contract, provided he did not get into circumstances where he would need the income himself, which contract provided the owner should not pay the deficiency if the tenant did not pay the rent, does not convey the land itself.</p> <p>3. Contracts—a sealed contract may be surrendered by parol agreement. An executory sealed contract cannot be altered, modified or changed by parol agreement, but it may be surrendered and canceled by an executed parol agreement.</p>

Writ of Error to the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.

<p>1. Deeds—what a sufficient delivery of a voluntary conveyance. A voluntary conveyance handed by the grantor to the notary, with directions to keep it in his possession in a safe place and as soon as possible after the grantor’s death to “place it upon record,” is well delivered, where the notary carries out the instructions after the grantor’s death and turns the deed over to the grantee, who accepts it, and where it is clear the grantor reserved no control over the deed after handing it to the notary.</p> <p>2. Same—failure to affix revenue stamps is not fatal to deed or its delivery. The fact that the revenue stamps had not been affixed to a deed when it was delivered by the grantor into the notary’s possession does not affect the efficacy of the deed nor the force of its delivery.</p> <p>3. Same—third party having deed in possession may deliver it after grantor’s death. Where the grantor places a deed in the hands of a third person, to be held and delivered to the grantee, and divests himself of power to recall the deed during his lifetime, the third party may carry out the grantor’s instructions after the latter’s death and make a valid delivery of the deed to the grantee.</p>

<p>1. Ejectment—what establishes a prima facie title. A prima facie title in the plaintiff in ejectment is established by proof of conveyances of record showing title in the plaintiff, together with proof of possession by the plaintiff's grantors, even though possession by the plaintiff is not proved.</p> <p>2. Same—what does not overcome prima facie proof of title. Prima facie proof of title, consisting of a recorded warranty deed from the plaintiff’s grantor together with proof of possession in the latter, is not overcome by proof of a contract for a deed executed by the same grantor many years after the warranty deed was executed and recorded but while she was still in possession.</p> <p>3. Contracts—when contract for deed is notice that party does not claim to own fee. A contract to make a deed for certain land for a railroad right of way and also for “all the right, title and interest which said party of the first part may have” in certain other premises, is notice to the railroad company that the proposed grantor did not claim to own the fee of the latter premises, particularly where there is a warranty deed on record showing she had long before parted with the title in fee to such premises.</p> <p>4. License—licensee cannot acquire a greater interest than the licensor possesses. A tenant at will cannot, by executing a contract for a deed, create in the proposed vendee a greater interest than that of a tenant at will, even though the contract be regarded as a license to enter upon the land, under which the proposed vendee took possession.</p> <p>5. Same—personal privileges, do not pass under a foreclosure sale. A purchaser of railroad property, on foreclosure, does not acquire a personal privilege of the mortgagor company existing by virtue of a mere license to occupy land as a tenant at will.</p> <p>6. Actions and defenses-—when assumpsit is not a proper remedy. One holding possession of land under a contract for a deed, made by a mere tenant at will, is a trespasser so far as the owner of the land is concerned, and there is no implication of a contract to pay for the use and occupation, which would support an action of assumpsit by the owner.</p> <p>7. Same—when bringing of assumpsit does not bar ejectment. The bringing of a suit in assumpsit for the use and occupancy of land, which is dismissed as soon as the plaintiffs discovered they had mistaken their remedy, does not bar a subsequent action of ejectment to recover possession of the land.</p> <p>8. Wills—rule requiring a will to be first probated at testator’s domicile is not absolute. The general rule that a will must be probated, in the first instance, at the testator’s domicile, is subject to the exception that it may be probated in any county in any State where the testator left assets, particularly real estate.</p> <p>9. Trusts—when a trust is not executed by the Statute of Uses. Where a trustee is required to hold the legal title in order to perform his duties, such as investing the proceeds or principal or applying the income, raising a certain sum of money for some prescribed purpose from the income, or protecting the estate for a given time or until the death of some person or until division, the trust is active, and is not executed by the Statute of Uses.</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. Russell P. Goodwin, Judge, presiding.

<p>1. Deeds—interest which does not vest by deed remains in the grantor. All interest in the title to land which the grantor possessed and which did not vest in some other person by the deed remains in the grantor and his heirs in analogy to the rule as applied to wills, which, since the abolishment of the livery of seizin, is also applicable to deeds.</p> <p>2. Same-—effect where deed creates remainder in person unborn. Where a deed creates a life estate with remainder in fee to vest contingently in unborn children of the life tenant, the fee to revert to tlje grantor if the contingency does not occur, the contingent interest remains in the grantor and his heirs subject to its being divested by the happening of the contingency, and does not remain in abeyance. (Inconsistent expressions in Frazer v. Supervisors, 74 Ill. 282, criticised.)</p> <p>3. Limitations—when payments operate to toll the Statute of Limitations. Payments of interest on an over-due mortgage, by the person owning the life estate and the reversionary interest in the mortgaged premises, operate to arrest the running of the Statute of Limitations, both as to the life estate and the reversionary estate, even though the latter is subject to divestmént upon the happening of a contingency, provided that at the time the payments were made the contingency had not happened.</p> <p>4. Contracts—token amount to be forfeited for breach is properly treated as liquidated, damages. The amount expressly stated in a contract for the sale of land to be retained by the vendor as liquidated damages upon breach of the contract by the vendee is properly treated as liquidated damages rather than as a penalty, where there is no fraud or circumvention and nothing to indicate that the amount is unconscionable or disproportionate to the actual damages sustained.</p>

E. E. Dunne, Judge, presiding. On September 29, 1904, the appellee, Herman Vollenweider, filed his bill in the circuit court of Cook county against the appellant, Magdalena Vollenweider, by which he sought to set aside a certain deed of conveyance from him to her.

M. Kavanagh, Judge, presiding. This action is brought by appellee, against appellant, to recover damages for injuries sustained by being thrown from one of appellant’s cable trains upon which she was a passenger, at the intersection of Wabash avenue and Twenty-second street, in the city of Chicago, on the 19th day of September, 1901. The cause of action is set out in the original declaration, consisting of two counts and two additional counts.

<p>1. Appeals and Errors—amount involved in a suit to subject property to the payment of a debt is the amount of the debt. The amount involved in a suit to subject property to the payment of an indebtedness Is the amount of indebtedness, and not the value of the property.</p> <p>2. Same—amount involved when suit was begun controls jurisdiction. The amount involved, so far as jurisdiction to review the case is concerned, is the amount in controversy when the suit was begun, without the addition of the interest which has accrued while the suit was pending.</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 Hoti. R. S. TuThire, Judge, presiding. The following statement of facts in this case is made by the Appellate Court: “Appellee Johnson filed his bill of complaint against Peter F. Kaehler, in his lifetime, for an accounting.

E. M. Shonkwiler, Judge, presiding. This is an appeal from an order of the county court of Piatt county, sustaining objections of the Peoria and Eastern Railway Company to the rendition of judgment in the sum of $105.51 against its property for delinquent school tax, levied for building purposes by the directors' of school district No. 7 of said county.

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

G. W. Thompson, Judge, presiding. On January 25, 1904,- James Reid, a resident of Fulton county, died leaving a last will, which was subsequently probated and admitted to record in that county, and is as follows: “Know all men by these presents, that I, James Reid, of Young Hickory township, in the county of Fulton and State of Illinois, being in good health of body and sound and disposing state of mind and memory, and being desirous of settling my worldly affairs while I…

<p>1. Justices of the peace—rule where jurisdiction depends on a fact to be determined by the justice. Where the jurisdiction of an inferior court, such as a justice of the peace, depends upon a fact which the court is required to ascertain and settle, if the court has jurisdiction of the parties its decision of the question of fact is conclusive in a collateral proceeding.</p> <p>2. Same—jurisdiction of justice of the peace is never presumed. Jurisdiction of a justice of the peace is never presumed but must appear, or the judgment will be void and subject to collateral attack; but if jurisdiction appears the same rules are applicable as in case of courts of general jurisdiction.</p> <p>3. Same—judgment for plaintiff in replevin is a finding that the justice had jurisdiction. Where the affidavit for replevin before a justice of the peace states the value of the property at an amount within his jurisdiction, he has jurisdiction to issue the writ and try the question of the value of the property at the hearing, and a judgment in favor of the plaintiff by default is, in effect, a finding, as a question of fact, that the value of the property was within the jurisdiction of the justice.</p> <p>4. Same—when judgment in replevin is res judicata as to value of property. If the affidavit for replevin before a justice of the peace states the value of the property to be $200, and the justice issues the writ and obtains personal service on the defendant, who defaults, a judgment in favor of the plaintiff is conclusive, as between the parties in a collateral proceeding, that the value of the property was within the jurisdiction of the justice.</p> <p>5. Same—affidavit for replevin before justice of the peace must state value of property. The affidavit for replevin before a justice of the peace must state the value of the property, since his jurisdiction depends upon such value; and if the affidavit states the value to be over $200 the justice has no jurisdiction to issue the writ, and any judgment rendered by him is void.</p> <p>6. Same—when judgment of justice of peace is conclusive in a collateral proceeding. The judgment of a justice of the peace for the plaintiff in a replevin suit, where jurisdiction to issue the writ appears on the face of the proceedings and personal service was had on the defendant, who suffered default, is conclusive, in a collateral proceeding, of every defense which might have been made. (Barnes v. Barber, 1 Gilm. 401, explained.)</p>

Solon Philbrick, Judge, presiding. This is a bill for partition of eighty acres of land, being the west half of the south-west quarter of section 9, township 20 north, range 14 west of the second principal meridian, filed on November 19, 1903, in the circuit court of Champaign county, where the land was situated, by the appellees, George R. Coleman and Jennie Minnie Onnen, against the appellant, Gerd Henry Coleman, and the appellees, Henry Johnson, administrator of the…

Hon. M. Kavanagh, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment -of the superior court of Cook county in favor 'of the appellee for the sum of $4385.45, in an action of indebitatus assumpsit brought by the appellee, against the appellant, to recover for his services and expenses as technical engineer while in the employ of the appellant in the United States.

<p>1. Appeals and Errors—asking general instructions does not waive error in refusing peremptory one. A defendant in an action for negligence, whose instruction to find in its favor, asked at the close of the evidence, is refused, is not estopped to assert, on appeal, that there was no proof of negligence on its part nor of due care on the part of the plaintiff, by afterwards asking and obtaining instructions submitting those questions to the jury.</p> <p>2. Railroads—duty of railroad company in constructing cattle-guard fences. In constructing cattle-guard fences railroad companies are not required to build them so far from the tracks that a person riding on the edge of a flat-car, with his feet hanging down, could under all circumstances pass the fence in safety.</p> <p>3. Same—when person riding on car must use a high degree of care. One choosing to ride on the edge of a flat-car, with his feet hanging down, is bound to know that the position is dangerous, and must exercise a high degree of care to avoid injury by reason of his feet coming in contact with stationary objects upon the right of way near the track.</p> <p>4. Same—conductor is not presumed to have authority to invite persons to ride. An undertaking by a railroad company to transport a person is not shown by proof that when he and other track-omen were returning on foot from where they had been unloading a car they were overtaken by an engine and flat-car and got upon the car at the invitation of the conductor, where there is no proof that the conductor was authorized to carry the men or that he had general authority to carry employees to and from their work.</p>

Writ or Error to the Circuit Court of Cook county; the Hon. Murray E. Tuley, Judge, presiding. Charles P. Williams, residing at Stonington, Conn., died testate October 28, 1879.

Richard S. Tuthill, Judge, presiding. This is an appeal from a judgment of the Appellate Court, dismissing appellant’s appeal to that court from an order of the circuit court o'f Cook county, dismissing appellee’s bill of complaint on his own motion.

<p>Writ of Error to the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding.</p>

<p>1. Municipal corporations—permitting a sealed bid to be changed after opening is improper. Permitting a sealed bid upon public work to be materially changed after it has been opened by the proper authorities is in violation of the purpose and intent of the law.</p> <p>2. Same—when change in bid is material. Permitting a bidder on public work, after his bid had been opened, to agree to install three feed water-purifiers in addition to the three specified in his bid, and to agree to complete the work in much less time than he had specified, time having been made an essential element of each bid and a bonus offered for each day gained on the time specified, amounts to a material change in the bid and destroys competition.</p>

<p>1. Special assessments—city has discretion as to making local improvements. In passing ordinances for making local improvements by special assessment the city council is clothed with discretion to determine, what improvement is required, its nature and character, when it shall be made and the manner of its construction; and such discretion, when honestly exercised, is not reviewable by the courts.</p> <p>2. Same—when court may look beyond face of ordinance. If it is made to appear that a special assessment ordinance is unreasonable or oppressive, or if, from evidence aliunde or otherwise, it appears the ordinance was passed in a particular manner as an evasion of law, courts will look beyond the mere face of the ordinance to . its effect and operation and judge it accordingly.</p> <p>3. Same—limits of powers of board of local improvements. The power of the board of local improvements ends with its submission to the council of the ordinance for the proposed improvement with its recommendation and estimate, at which time the discretion of the city council begins.</p> <p>4. Same—what is not ground for holding that several improvements were parts of one scheme. The mere fact that two or more improvements of the same character, aggregating over $100,000 in cost, are so related to each other in point of locality that they might have been included in one scheme, is not ground, óf itself, for holding the ordinance invalid as an evasion of section n of the Improvement act, requiring ordinances for improvements costing over $100,000 to be referred and published. (Kerfoot v. Chicago, 195 Ill. 229, distinguished.)</p>

<p>Appeal from the County Court of Madison county; the Hon. J. E. Hillskotter, Judge, presiding.</p>

<p>1. Dedication—city has no right in streets shown on plat until dedication is accepted. A municipal corporation acquires no rights in streets, alleys or public grounds shown upon a plat until it has accepted the dedication.</p> <p>2. Same-—what not an acceptance of dedication. The fact that a platted tract was included within the territorial limits of the village upon its incorporation does not amount to an acceptance of the dedication of the streets, alleys and public grounds shown on map.</p> <p>3. Same—owner may recall dedication if not accepted within a reasonable time. Where a dedication of streets and alleys is offered before the municipal corporation is organized, the fee remains in abeyance until the municipality has corporate existence to accept or reject the offer, but the owner may withdraw the dedication if it is not accepted within a reasonable time.</p>

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

<p>1. Appeals and errors—when finding of fact cannot be questioned for insufficiency of evidence. 'A finding of fact in a judgment cannot be questioned upon the ground of an insufficiency of the evidence to sustain it where there is no bill of exceptions in the record.</p> <p>2. Same—when bill of exceptions is not necessary. A bill of exceptions is not necessary to the consideration of an alleged error which already appears in the record and judgment of the court.</p> <p>3. Eminent domain—extent to which special benefits to property may be considered by jury. In a condemnation proceeding to open a street the jury may consider the question of special benefits from the proposed improvement only to the extent of offsetting or reducing the damages to that portion of the property not actually taken for the improvement.</p> <p>4. Special assessments—effect of condemnation judgment on subsequent special assessment. A verdict and judgment in a condemnation proceeding to open a street, finding damages to property not actually taken, are a bar to a subsequent assessment of such property to pay for the improvement, but the verdict and judgment merely finding that there are no damages to property not- taken are not a bar to such an assessment.</p> <p>5. Same—when property not taken for an improvement may be specially assessed. One whose land is condemned for opening a street must be paid full value for that part of the land which is actually taken, but if the part which is not actually taken is enhanced in value by reason of the improvement it may be specially assessed,under the constitution, to pay for the improvement.</p>

R. M. Skinner, Judge, presiding. The appellee, the Illinois Valley Railway Company, filed its petition in the circuit court of LaSalle county, against appellants, to condemn a right of way across the north-west quarter and a part of the south-west quarter of section 13, in LaSalle township, in said county, for a proposed line of railway extending from Princeton, in Bureau county, to Joliet, in Will county.

Writ or Error to the Circuit Court of Lawrence county; the Hon. E. E. Newlin, Judge, presiding. Defendants in error exhibited their bill in chancery to the October term, 1904, of the circuit court of Lawrence county, praying for an injunction restraining plaintiff in error from repairing or re-building any line of levee or embankment on the north and east sides of plaintiff in error’s land.

Appear from the Branch Appellate Court for the First District;'—-heard in that court on appeal from the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.

William C. Johns, Judge, presiding. This was a bill in chancery filed by Clara E. Humphrey, the appellee, against Polly A. Trower, Sallie F. Sayer, Jacob Galster, George W. Julian, the Merchants’ and Farmers’ State Bank of Sullivan and B. F. Rork in the circuit court of Moultrie county, to require Polly A. Trower to specifically perform the provisions of the following instruments in writing: “Charleston, III., Aug. 20, ’77. “For and in consideration of moneys to me in hand…

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding. An appeal is prosecuted from a judgment of the Appellate Court for the First District affirming a judgment of the circuit court of Cook county awarding a writ of mandamus against appellants.

<p>1. Pleading—what is not a statement of different causes of action. If different counts charge the same acts of negligence by the defendant from which the cause of action arose, they do not state different causes of action by reason of the fact that the mode or manner in which such negligence caused the injury is differently stated in each count.</p> <p>2-, Negligence—one placed in sudden peril is not bound to exercise the highest degree of care. The law does not require that one placed in sudden peril shall exercise the highest degree of self-possession, coolness and skill, but only such as an ordinarily prudent and careful person would exercise in like situation and under like circumstances.</p> <p>3. Same—whether deceased was guilty of contributory negligence is a question of fact. Whether the deceased, under the influence of great fear when placed in sudden peril, so conducted himself as to incur the imputation of contributory negligence is to be determined by the jury as a question of fact.</p>

<p>1. Wills—what constitutes a valid will is a legislative question. What will constitute a valid will or a valid attestation of a will is a legislative question, the only legitimate function of the courts being to declare and. enforce the law as enacted by the legislature.</p> <p>' 2. Same—attesting witness must be a subscribing witness. Attestation of a will is the act of witnessing the actual execution of the instrument and subscribing the name of the witness in testimony of that fact, and it is not competent to prove a will by a person who was present and witnessed its execution but who did not sign as an attesting witness.</p> <p>3. Same—will must be attested in presence of .testator. Under the statute a will must be signed by the subscribing witness in the presence of the testator, and it is not sufficient that the witnesses merely acknowledge their signatures in the testator’s presence.</p> <p>4. Same—“presence” means within the actual personal knowledge of testator. The “presence” of the testator means contiguity, with an uninterrupted view between the testator and the subscribing witnesses, so that the testator'can, if so disposed, see'the act of attestation, whether in the same- room or an adjoining room.</p> <p>5. Same—fact that testator is blind does not change rule requiring personal knowledge of attestation. Even though the testator is blind, the act of attesting his will must be brought within his actual personal knowledge through the medium of other senses in order to have been in his “presence,” as that word is used in the statute.</p> <p>6. Same—what is not a sufficient attestation of will. A will is not sufficiently attested, under the statute, if the subscribing witnesses signed their names where it was impossible for the testator to have personal knowledge of their act, even though he had requested them to sign, saw them take the will into an adjoining room and saw the signatures on the will when it was brought back.</p>

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

M. Kavanagh, Judge, presiding. On July 11, 1904, a bill was filed in the superior court of Cook county for the partition of certain real estate in the city of Chicago between Jacob Kiebel, Anna K. Kiebel, Edward J. Leiclc, Casper J. Leiclc, Alfonse M. Leick and Isabel May Leiclc, the last four being minors. The premises being reported not susceptible of partition were appraised at $9000 and a decree of sale entered.

<p>1. Criminal law—when refusal of instruction as to rule of presumed innocence is not fatal. Refusal of an instruction stating the rule of presumed innocence separately is not ground for reversal where the rule is correctly and clearly stated in another instruction, although in connection with some other proper rule or guide as to its application.</p> <p>2. Same—when rule of presumed innocence is sufficiently presented. The rule of presumed innocence is sufficiently presented to the jury in an instruction stating that “all the presumptions of the law, independent of the evidence, are in favor of innocence, and every person is presumed to be innocent until he is proven guilty.”</p> <p>3. Same—when the rule as to conviction on circumstantial evidence is sufficiently presented. The rule concerning conviction on circumstantial evidence is sufficiently presented by an instruction stating that where conviction is sought on circumstantial evidence alone, “the People must not only show, by a preponderance of the evidence and beyond a reasonable doubt, that the alleged facts and circumstances are true, but they must be such facts and circumstances as are absolutely incompatible upon any reasonable hypothesis other than that of the guilt of the accused.”</p>

<p>1. Witnesses—when parties to a suit are incompetent witnesses. In a suit wherein the complainant, a half-brother of the defendant, sues as heir of the mother and the defendant defends as legatee of the father, neither is competent to testify in his own behalf as against the other, nor is the husband of the defendant competent.</p> <p>2. Appeals and errors—the chancellor is presumed to have not considered incompetent evidence. It is presumed, on appeal in a chancery case, that the chancellor did not consider the incompetent evidence, and the decree will be sustained if there is sufficient competent evidence to support it.</p> <p>3. Trusts—cestui que trust may pursue proceeds of trust properly. As against the trustee and her heirs the cestui que trust may pursue the proceeds of trust property and charge with the original trust any property in which such proceeds may be invested.</p>

Charles A. Bishop, Judge, presiding. The original bill in this case was filed on October n, 1904, by the appellant, George Wilder and two others, to-wit, C. H. Hitchcock and E. W. Dunton, alleging that they were residents of Aurora in Kane county, and owners of real and personal property in said city, and tax-payers, and that said Wilder was the owner in fee of lot 9 in block 19, in Stephen E. Gale’s addition to West Aurora; that Hitchcock was the owner in fee of lot 3 in…

Theodore Brentano, Judge, presiding. This is a bill, filed on March 22, 1904, in the Superior Court of Cook county by appellee against appellant to set aside two tax deeds, conveying to appellant lot 24, block 8, in McChesney’s Hyde Park Homestead subdivision of the south half of the south half of the north-east quarter of section 22, township 38, north, range 14, east of the third principal meridian in Cook county, Illinois; the first deed being dated August 26, 1902,…

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

<p>Taxes—newspaper containing delinquent list must be filed with the clerk of the county court. The newspaper containing the delinquent list must be filed with the clerk of the county court in order to give the county court jurisdiction of an application for judgment of sale, and it is not sufficient that it was filed with the county clerk.</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. Elbridge Hanecy, Judge, presiding.</p>

F. A. Smith, Judge, presiding. This was an action on the case commenced in the circuit court of Cook county by the appellee, against the appellant, to recover damages by reason of an alleged libel which it is averred the appellant had published of and concerning the appellee in a certain publication called 'Leaves of Healing, of which the appellant was the editor. The declaration contained three counts.

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Champaign county; the Hon. F. M. Wright, Judge, presiding.

E. P. Vail, Judge, presiding. This was an action of assumpsit, commenced by plaintiff, against the defendant, in the circuit court of Cook county. The case was tried before a jury, and resulted in a verdict and judgment against the defendant for the sum of $15,000. An appeal was prosecuted to the Appellate Court for the First District, where the judgment was reversed and the cause was remanded for a new trial; (88 Ill.

<p>1. Eminent domain—averments as to title are binding on the petitioner. The averments as to the nature or extent of the estate or title of the defendants are not binding upon the defendants, and upon a proper issue the court may determine such question; but the averments are binding upon the petitioner, and the defendants are hot required to establish their title. '</p> <p>2. Same—interest of defendants should be stated in petition. A corporation seeking to condemn land should ascertain the title to the premises before commencing the proceeding and name in the petition the owner of the premises, and if the title is less than a fee simple or subject to an easement such facts should be stated in the petition.</p> <p>3. Same—there must be some issue made as to title to justify a decision thereof. While the Eminent Domain act contemplates only a petition and cross-petition, yet the record must show some sort of objection, issue or traverse to justify a decision by the court as to title.</p> <p>4. Same—when general market value is not a criterion as to value of land taken. Land covered by freight and passenger terminals and forming an integral part of an extensive railway system has a special value to the owner by reason of its particular use, and the general market value of other property is not the criterion for ascertaining compensation in condemnation, although it may tend to throw some light on the actual value.</p> <p>5. Same—what competent in showing value of railroad terminal property. As bearing upon the question of the value of railroad terminal property sought to be condemned, it is proper to prove the amount of business transacted, the capacity of such property for such business, and its capacity for expansion to meet the increasing demands .of business.</p> <p>6. Same—when witnesses are competent to testify as to value. In a proceeding by a sanitary district to condemn a strip of land occupied by a railroad company as a freight and passenger terminal, witnesses who know the value of the property to the owner as a terminal are competent to testify, even though they are not familiar with the market price, per square foot, of land in that locality^ and have never dealt in real estate in that way.</p> <p>7. Same—capacity for yielding profits is an important element where land has no 'market value. Where land condemned has no general market value owing to the particular use to which it is put, one of the important considerations in determining its value is its productiveness and capacity for yielding profits to the owner.</p> <p>8. Same—when instruction as to effect of evidence of tax returns is not erroneous. Where returns of property for taxation, not made by the owner but by its lessee, have been admitted in evidence in a condemnation proceeding, it is not error to instruct the jury that such returns are not conclusive upon the subject of value.</p> <p>9. Same—in absence of a stipulation, damages are properly assessed on basis of immediate taking. Damages in condemnation are properly assessed upon the basis of the taking of immediate possession by the petitioner upon payment of compensation, in the absence of any agreed plan or stipulation as to the time or manner of taking possession tending to restrict the damages which would- result from the exercise of the petitioner’s legal right to take such immediate possession.</p>

Appear from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. The city of Chicago commenced a proceeding in the superior court of Cook county for the purpose of widening West Randolph street, in said city, from Halsted street to Sangamon street, and to levy a special assessment on the property benefited to pay for the property taken or damaged.

R. W. Hiuschfr, Judge, presiding. This is a suit, brought by the appellee against the appellant city on November 21, 1903, in the circuit court of Ford county to recover damages for personal injuries, sustained by appellee through a fall on March 28, 1903, upon a sidewalk in said city. The trial below resulted in verdict and judgment in favor of appellee. An appeal was taken to the Appellate Court where the judgment has been affirmed.

. Appear from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. This case has been here before, as will be seen by reference to Cowan v. Kane, 211 Ill. 572. After the decree was reversed, and the cause remanded by order of this court, entered on October 24, 1904, the cause was re-docketed in the court below on November 30, 1904.

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Marion county; the Hon. S. L. Dwight, Judge, presiding.</p>

Clair county; the Hon. R. D'. W. Holder, Judge, presiding. This is an action in assumpsit, begun by appellee against appellant on November 24, 1903, by attachment in the circuit court of St. Clair county. The writ of attachment was levied on appellant’s interest in certain land situated in that county.