Volume 218 — Illinois Reports

Joseph E. Gary, Judge, presiding. This is an action in case, brought by the appellee against the appellant companies to recover damages for a personal injury, resulting from a collision between a street car and a wagon. The plea to the declaration was the general issue. The trial of the cause resulted in verdict and judgment in favor of the appellee for $8000.00.

W. H. Hinebaugh, Judge, presiding. On June 8, 1896, the city council of the city of Chicago passed an ordinance for the paving of Warren avenue from Homan avenue to Fall street.

<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. Chas. A. Bishop, Judge, presiding.</p> <p>The Appellate Court has made the following statement of facts in this case as a preface to its opinion deciding the case, to-wit :</p> <p>“Appellant was engaged in operating an electric line of street railway upon and along Indiana avenue in the city of Chicago. Indiana avenue runs north and south and Fortieth street runs east and west, crossing Indiana avenue at right angles. Running along Fortieth street are steam railroad tracks which cross Indiana avenue at grade. Immediately south of Fortieth street the South Side Elevated railroad runs east and west across Indiana avenue. On the south-east corner of Fortieth street and Indiana avenue there is constructed an entrance and stairway to the elevated structure.</p> <p>“Appellee claims that, on the evening of October n, 1899, in company with his two sons and one D. C. Thickston, he visited at the house of a friend on Princeton avenue between Forty-seventh and Forty-eighth streets, and between 10 and 10:30 o’clock they started to return to their homes. They walked to Forty-seventh street and took a car going east on the Forty-seventh street line. Upon arriving at Indiana avenue they transferred to a north-bound car on Indiana avenue. When they reached Fortieth street, the car stopped, as is the custom, before crossing the railroad tracks at Fortieth street, for the purpose of enabling the conductor of the car to go forward and ascertain if it was safe for the street car to pass over the tracks. As soon as the car stopped, the conductor went ahead to see if there was any danger, and, seeing that the way was clear, signaled the motorman to start ahead. The motorman in charge of the car started the car forward, and took it across the railroad tracks,</p> <p>“Appellee claims that, when he entered the Indiana avenue car, the conductor was informed that they wished to stop on -the south side of Fortieth street. When the car stopped, appellee and his son, William, left their seats in the car and went out upon the rear platform of the car. The son stepped off the car safely. Appellee, following closely behind him, had one foot on the step and the other upon the ground in the act of alighting from the car, and the car started, and he was thrown to the ground, receiving the injuries complained of.”</p> <p>The trial below resulted in verdict and judgment in favor of appellee. An appeal was taken to the Appellate Court and the Appellate Court has affirmed the judgment of the trial court. The present appeal is prosecuted from such judgment of affirmance.</p>

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

Elbridge Hanecy, Judge, presiding. Appellee brought an action of assumpsit against appellant, in the superior court of Cook county, to recover for certain water charges paid by it under protest. An agreed state of facts was entered of record, and upon the case being submitted to the court without a jury, judgment was entered against appellant for $1849, together with interest and costs of suit.

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

Appear from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding. Held: in substance, (1) that they were the holders of the legal title, in fee simple, of the premises in question; (2) that the lien of the judgment of the United States court was never perfected into a title and that no title passed to appellants by virtue thereof; (3) that the lien of the judgment of the circuit court of the United…

<p>1. Special assessments—court costs not considered in determining whether ordinance must be published. Section 11 of Local Improvement act of 1897, requiring an ordinance to be referred and published if the estimate of cost exceeds $100,000, does not require that the court costs, which under the statute must be paid by general taxation and which are not included in a particular estimate, shall be taken into consideration in determining whether the ordinance should have been published.</p> <p>2. Same—description in resolution need not be as complete as in an ordinance. The resolution for a local improvement need not contain all the details required in an ordinance, it being sufficient if it describes the improvement in a general way, with sufficient certainty, taken in connection with the estimate, to reasonably advise the property owners as to the nature of the proposed improvement.</p> <p>3. Same—when objection of variance should be overruled. An objection of variance between the notice of public hearing and the first resolution, based upon the fact that the notice failed to state that the right of way of a street railway company in the street to be paved was excepted from the improvement, as appeared from the resolution, is unsubstantial and cannot prevail.</p> <p>4. Same—when reasonableness of ordinance will be upheld. If the greater weight of evidence is to the effect that the pavement at a certain street intersection is old and worn out and the witnesses so testifying are not attacked, the holding of the county court that the ordinance requiring a new pavement at such intersection is not unreasonable will be upheld, on appeal.</p> <p>5. Same—when overruling of objection to assessment roll will be sustained. Overruling of an objection to the introduction of the assessment roll in evidence upon the ground that no affidavit showing compliance with the statute had been filed will be sustained on appeal, where the record shows that affidavits are attached to the assessment roll, and it is not pointed out by the appellant wherein they are claimed to be defective.</p> <p>6. Same—when verdict is in proper form. A verdict in a special assessment case finding that the property of the objectors is not assessed more than it will be benefited nor more than its proportionate share of the cost of the improvement is in accord with the statute and is in proper form, and it is not necessary that the words “specially benefited” be used.</p>

Murray F. Tuley, Judge, presiding. On January 25, 1904, Aura W. Barker filed her-petition in the circuit court of Cook county against Mitchell J. Smiley praying for an assignment of her dower in certain premises commonly known as No. 2815 Prairie avenue, in the city of Chicago. The principal facts as alleged in the petition are as follows: On December 26, 1867, the petitioner was married to one Samuel B. Barker, who died on or about December 30, 1903.

Jesse Holdom, Judge, presiding. This is a bill, filed on November 13, 1903, in the Superior Court of Cook county by the appellee against the appellant to enjoin the appellant and his agents and employes from selling, giving away, delivering or exhibiting to any person or corporation whatsoever any copy of a medical work, entitled “A Treatise on Gynecology,” of which appellee, who is a physician, is the author, and of which the appellant, who was also a physician—though not…

<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>

W. H. Hinebaugh, Judge, presiding. This is a special assessment proceeding, in which judgment of confirmation was entered on May 3, 1905, from which the present appeal is prosecuted. The special assessment was for paving Ogden avenue from Warren avenue to West Twelfth street.

<p>1. Waters—effect of grant of land bordering on lake. A grant of land bounding upon a natural lake or body of water meandered by the government extends to the water’s edge in its natural condition, while the ownership of the bed of the lake is in the State in trust for the people for the purpose of fishing, boating and the like.</p> <p>2. Same—effect of gradual accretions or encroachments. The owner of land bordering on a meandered lake acquires title to the land formed by gradual accretions and loses title to that submerged by gradual encroachments of the water.</p> <p>3. Same—owner does not lose title by sudden flooding of land. Where there is a sudden and marked change in the shore line and the lands of the adjoining owner are flooded, such as by the building of a dam or the changing of the course of a stream, the adjoining owner does not lose his title to the lands so submerged.</p> <p>4. Same—in Illinois the common law rule is not the test of whether waters are navigable. In Illinois the common law rule that waters were navigable only where the tide ebbed and flowed is not the test whether waters are navigable, and waters which are navigable in fact are navigable in law; but the common law rule governs so far as it relates to questions of boundary and ownership.</p> <p>5. Same—in Illinois the public have an easement of navigation in waters navigable in fact. In Illinois the public have an easement of navigation in waters which are navigable in fact, regardless of the ownership' of the underlying soil; and the question whether waters are navigable depends upon whether they are of sufficient depth to afford a channel for useful commerce of practical utility to the public.</p> <p>6. Same—what are and what are not “navigable waters.” The fact that a body of water is deep enough in places for hunters and fishermen to pass over it in small boats does not render such body navigable within the meaning of the law, but the public may have a right of navigation in places where the water is deep enough, even though the body of water is not navigable in all its parts.</p> <p>7. Same—right to hunt and fish is not incident to the right of navigation. The right of navigation does not carry with it, as incident thereto, the right to hunt and fish in the waters where the easement of navigation exists.</p> <p>8. Game—land owner has exclusive right to hunt and fish on his own property. While there is no absolute ownership of fish and game in their natural state while at liberty, yet they become the property of the owner of the soil when taken thereon, and the exclusive right to take them within the limits of his land is in him.</p> <p>9. Same—rights of owner of soil covered by navigable waters. The owner of the soil has the absolute right to use and enjoy the same, even when covered by navigable waters, so long as he does not interfere with the public easement of navigation, pollute the stream or diminish the supply; but the right of the public is limited to the easement of navigation.</p>

Charles T. Moore, Judge, presiding. This is an action on the case brought by William Bub in the circuit court of Madison county, against the Staunton Coal Company, to recover for personal injuries sustained.

<p>1. Street railways—it is the company’s duty to deliver reasonably safe cars to a motorman. A servant of a street car company-engaged in delivering a car to a motorman to replace one going in for repair is discharging a personal obligation of the company, and the company is liable for such servant’s negligence in delivering a car without a motor handle or with a handle which does not fit the car and with which the car cannot be reversed.</p> <p>2. Master and servant—when negligence of a fellow-servant does not defeat recovery. Although an injury may be chargeable in part to the negligence of a fellow-servant, yet if the negligence of a vice-principal of the master contributed to the injury and the injury would not have occurred but for such negligence the master is liable.</p> <p>3. Instructions—when refusal of instruction will not reverse. Refusal of an instruction for the defendant in a personal injury suit will not work reversal where other instructions given at its request secure to it all the benefit which could have been derived from the refused instruction.</p>

<p>1. Parties—when president of corporation has a right of appeal. The president of a board of trade corporation, who has been made a party, as representing the corporation, by the complainant in a suit involving the validity of a by-law or rule of the corporation, has the right, where the decision of the court is adverse to the validity of the rule, to have such decision reviewed on appeal.</p> <p>2. Corporations—-members of the Chicago Board of Trade are bound by its rules. Members of the Chicago Board of Trade are bound by its lawful rules, regulations and by-laws, since they bind themselves in writing to obedience thereto as a condition precedent to membership.</p> <p>3. Same—section 6 of rule 20 of the Chicago Board of Trade is valid. Section 6 of rule 20 of the Chicago Board of Trade, providing that when a margin is deposited to secure a sale or purchase, if the parties, after the contract is closed, cannot agree to whom the margin shall be paid, the president of the board shall appoint a committee to determine that question, which determination, when certified to the depository by the president of the board, shall authorize payment by the depository, is valid and binding upon members in the absence of fraud on the part of the tribunal appointed to act.</p> <p>4. Same—member of board of trade must invoke remedies provided by its mies. A member of the Chicago Board of Trade can not resort to a court of equity for relief in a matter for the hearing of which the rules of the board provide a tribunal, unless he has first submitted the matter to such tribunal, which, by fraud or otherwise, has refused to proceed to a hearing and determination of the matter; and this is true whether the matter relates to his membership rights or his property rights. (People v. Board of Trade, 45 Ill. 112, and Pitcher v. Same, 121 id. 412, followed.)</p> <p>5. Contracts—parties may agree to submit matters in dispute to tribunals other than courts. Parties may make valid and binding agreements to submit questions in dispute to the arbitrament of persons or tribunals other than the regularly organized courts.</p>

R. W. Clifford, Judge, presiding. This was an action on the case brought by the appellee, against appellant, to recover for personal injuries.

<p>1. Pleading—when objection that bill is multifarious is waived. Piling answers to a bill and voluntarily submitting the cause for a hearing on the merits after a demurrer to the bill is overruled is a waiver by defendants of their objection that the bill is multifarious.</p> <p>2. Evidence—when proof of declarations against one’s interest is competent. In a proceeding to set aside a will and certain deeds made by the same person, declarations against interest by one of the grantees who was not a legatee under the will, to the effect that he considered the grantor to be of unsound mind, are competent upon the issue as to the validity of the deed to the party making such declaration, and if the defendants desire to have such evidence restricted to that issue they should ask an instruction to that effect.</p> <p>3. Appeals and Errors—when objection to the evidence is not essential. A proceeding to cancel a will and certain deeds is, so far as the deeds are concerned, an ordinary proceeding in chancery, in which the verdict of the jury is merely advisory; and it is not essential, in order to preserve for review the contention that incompetent evidence was admitted, that objection thereto should have been formally made and exception taken to the ruling of the court.</p> <p>4. Same—matters appearing only in motion for new trial are not preserved for review on appeal. Improper remarks by the trial judge are not preserved for review where they do not appear in the record except as set forth in the motion for new trial; nor can other alleged errors which appear solely from the recitals of the motion for new trial be considered by a court of review.</p> <p>5. Same—when entering decree without general verdict is not fatal. Entering a decree in a will case in which the jury did not return a general verdict but only answers to special interrogatories is not fatal, where the answers returned to the special interrogatories contain the substance of a general verdict and no objection is made or attention called to the absence of a general verdict.</p> <p>6. Special verdicts—when the statute authorising general or special verdicts does not apply. The statute authorizing a general or special verdict by the jury in all civil proceedings does not apply to those proceedings in chancery where the verdict of a jury upon an issue of fact is merely advisory.</p>

<p>1. Judgments and decrees—foreign decree, duly certified, can only be questioned for jurisdictional matters. Where a transcript of a decree entered by the court of another State, duly certified, is offered in evidence in this State, no questions are open to inquiry except questions of jurisdiction, including fraud affecting the jurisdiction or the discretion of the court to exercise such jurisdiction.</p> <p>2. Same—a foreign decree is conclusive of merits if court had jurisdiction. A decree entered by a court of one State, if it had jurisdiction, has the same force and effect in other States as in the State where it was rendered, and is conclusive of the merits of the controversy even though fraud not affecting the jurisdiction may have intervened.</p> <p>3. Same—if record is silent as to jurisdictional facts, jurisdiction is presumed. A presumption of jurisdiction obtains where a court of general jurisdiction proceeds to adjudicate a cause; but this presumption applies only when the record is silent upon the question, and if there is an affirmative showing in the record that there was no jurisdiction the decree is void and is open to direct or collateral attack.</p> <p>4. Same—when finding of court as to jurisdiction is not conclusive. If the record itself shows that a jurisdictional notice was not given as required by law, or that the finding of jurisdiction upon which the court acted was insufficient, jurisdiction does not attach, notwithstanding the finding of the court as to jurisdiction and the recital in the decree that notice was given.</p> <p>5. Same—when foreign decree of divorce is void. A foreign decree of divorce is void where the record shows that the affidavit of non-residence required by the laws of the foreign State to be filed as the jurisdictional basis of the warning notice had not been signed or sworn to, and where there is no finding by the court that the affidavit was filed, and there is nothing in the record from which the presumption could arise that any other paper had been filed as the affidavit, although there is a finding of jurisdiction by the court and a recital in the decree that the warning notice was given.</p>

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

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

Writ or Error to the Superior Court of Cook county; the Hon. Jrssr Holdom, Judge, presiding.

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. Jesse Hordom, Judge, presiding. 'This is a bill of interpleader, filed on July 17, 1902, in the Superior Court of Cook county by the New York Life Insurance Company against appellants and appellee, setting forth that, on June 10, 1901, the New York Life Insurance Company of the State of New York issued a policy of insurance upon the…

Writ of Error to the Circuit Court of Cook county; the Hon. F. A. Smith, Judge, presiding. Defendant in error, John G. Shedd, filed a bill in chancery October 1, 1901, in the circuit court of Cook county, against plaintiff in error Henry L. Glos, to set aside a tax deed issued to him by the county clerk May 5, 1899. A summons was issued and on October 2, 1901, served upon Glos.

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

W. C. Johns, Judge, presiding. This is an action of ejectment, begun on July 28, 1904, in the circuit court-of Macon county by the appellees, John M. Green, James F. Green and Emma D. Green Hulse, all of whom are non-residents of this State, against the appellant, Henry D. Weigel, to recover ten acres of land in said county, described as the east half of the west half of the north-east quarter of the north-west quarter of section 16, town 17, north range 2, east of the third…

<p>1. Pleading—recovery on executed contract may be had under common counts. A recovery on an executed contract for a public improvement, which has been completed and accepted and is in use by the city, may be had under the common counts even though the special counts are insufficient, where nothing remains to be done except for the city to pay the amount due the plaintiff.</p> <p>2. Contracts—when city should bear expense of back masonry in tunnel. The expense of back masonry in a tunnel should be borne by the city, and not by the contractor, where the necessity for its erection was caused by the negligence of the engineers of the city in running the line of the tunnel, the construction of which, under the terms of the contract, was to be under the direction of the city engineer.</p> <p>3. Same—when penalty for delay cannot be enforced by city. A per diem penalty for delay in constructing a tunnel cannot be enforced by a city against the contractor where the delay was caused by suspending work during litigation concerning the proper construction of the contract, which was finally determined in favor of the contractor and against the city.</p> <p>4. Actions and defenses—when pendency of another suit is not a bar. An action by a contractor to recover from a city the balance due under a contract for a public improvement, completed and in use by the city, is not barred by the mere pendency of a chancery suit by a tax-payer to enjoin the city from making any further payments under the contract, where the pendency of such suit is not pleaded, no injunction in the chancery suit was issued and no cross-bill filed therein by the contractor.</p>

Writ or Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. M. W. Schaefer, Judge, presiding. The plaintiff in error brought suit in the circuit court of St. Clair county against the defendant in error upon two judgments, aggregating the sum of $3202.38, rendered in his favor by the circuit court of the city of St. Louis, State of Missouri, against the defendant in error.

B. B. Dunne, Judge, presiding. On April 4, 1 goo, James Burlong, as receiver, filed his bill in the circuit court of Cook county to set aside two tax deeds issued by the county clerk of Cook county to appellant Jacob Glos for lot 25, block 47, in Carpenter’s addition to Chicago.

Information for disbarment. This is an information filed in this .court by John J. Healy, State’s attorney of Cook county, praying that the name of Morris Frisch, the respondent, be stricken from the rolls of this court as an attorney and counselor at law.

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

<p>1. Special assessments—contiguity of lot to street to be paved is not essential. It is not essential that property shall abut upon the street to be paved in order to authorize a special assessment against it to pay for the improvement, the test being whether or not the property is presently benefited by the improvement.</p> <p>2. Same—section 19 of the act of 1897, as to contents of affidavit, refers to cases where property is taken or damaged. Section 19 of the Local Improvement act of 1897, (Laws of 1897, p. 108,) specifying the contents of the affidavit of the superintendent of special assessments to the assessment roll, applies only to cases where property is taken or damaged, and not to special assessments for improvements not involving the taking or damaging of property.</p> <p>3. Same—Ming of a plat with assessment roll is not essential. Failure to show the lots of a certain objector on a plat filed with the assessment roll and petition in a paving assessment proceeding does not invalidate the confirmation judgment, since a plat is not an essential part of the petition, and if filed, is mere surplusage.</p> <p>4. Same—it is presumed that party to whom notice was given was the last party paying taxes. Under section 41 of the Local Improvement act of 1897, providing for notice by mail “to each of the said persons paying the taxes on the respective parcels during the last preceding year in which taxes were paid,” it will be presumed that the person to whom notice was given, as alleged in a bill to enjoin the collection of the assessment, was the last party to pay the taxes.</p> <p>5. Pleading—when allegations of bill do not raise a constitutional question. Allegations of a bill charging a certain section of a statute, designating it by number, to be unconstitutional on specified grounds, which section is found not subject to the objection urged, are not sufficient to present the question of the constitutionality of another section, not especially referred to, to which the objection might have applied.</p>

<p>Information for disbarment.</p>

<p>InEormation for disbarment.</p>

<p>1. Rape—when manner of proving the venue is not prejudicial error. Permitting the People to prove the venue, in a prosecution for rape, by girls who testified they were under fourteen years of age and had often been to the defendant’s room and that it was in Cook county is not prejudicial error, as tending to impress the jury that the defendant had been guilty of improper conduct with them, there being no attempt to prove that fact.</p> <p>2. Same—when confession of guilt is properly admitted. A written confession by one accused of rape, in which he stated that he had on various occasions had sexual intercourse with the prosecutrix and another girl also under fourteen years of age, is properly admitted in evidence, where the jury are instructed to disregard all evidence of the offense as to the latter girl and consider only that applicable to the charge in the indictment.</p> <p>3. Same—when proof of reputation as a peaceable citizen is not admissible. In a prosecution for rape, where the accused is allowed to prove his general reputation- for chastity, it is not error to refuse to admit proof of his general reputation as a peaceable and quiet citizen, his reputation in that respect not being in issue.</p> <p>4. Appeals and Errors-—when judgment of conviction will not be reversed. Where the evidence of the defendant’s guilt is undisputed and there is nothing to show that he did not have a fair trial, a judgment of conviction on a verdict which, under the evidence, could not have properly been other than guilty, will not be reversed for errors not contributing to the conviction.</p>

Appear from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Montgomery county; the Hon. William M. Farmer, Judge, presiding.

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

A. K. Vickers, Judge, presiding. This was a bill filed in the circuit court of Union county seeking to have a deed absolute on its face declared to be a mortgage and to permit a redemption therefrom. The bill was originally filed by one George W. Smith against Ida M. Browning, who was defaulted.

Writ of Error to the County Court of Monroe county; the Hon. Paul C. Brey, Judge, presiding. This is a writ of error sued out to review a record of the county court of Monroe county. The facts are as follows: In 1883 one James Canniff was the owner of certain lands in Monroe county. On July 9 of that year he borrowed $1000 from the trustees of schools of one of the townships of that county.

Writ of Error to the County Court of Cook county; the Hon. W. H. Hinebaugh, Judge, presiding. On March 24, 1902, the city of Chicago filed its petition in the county court of Cook county for a supplemental or new assessment, under the law of 1897, for the purpose of collecting the unpaid balance of the cost of improving Hamlin avenue from Chicago avenue to North avenue. This is the fourth time this proceeding has been before this court.

Writ of Error to the Criminal Court of Cook county; the Hon. W. M. McEwen, Judge, presiding. Victor Roland O’Shea, the plaintiff in error, was indicted in the criminal court of Cook county, on September 22, 1902, for the murder of his wife, Amy M. O’Shea, on September 10, 1902. A trial was had, which, on November 15, 1904, resulted in a disagreement of the jury. Upon a second trial the jury found him guilty of manslaughter.

Writ of Error to the Criminal Court of Cook county; the Hon. George Kersten, Judge, presiding. This was an indictment of the plaintiff in error by the grand jury of Cook county on July 30, 1904, charging him with larceny in violation of an act of the legislature of Illinois approved May 13, 1903, whereby an administrator who, without good cause, fails or refuses to account for or pay over money or other property when legally required so to do, is made guilty of larceny.

E. F. Dunne, Judge, presiding. The appellant, on the third day of January, 1894, filed four bills in chancery in the circuit court of Cook county to foreclose four separate trust deeds, all executed by Howard Butcher on June 7, 1890, upon contiguous parcels of land located in the village of Western Springs, in said county.

<p>Specific performance—when contract is too uncertain to be specifically enforced. A provision in a lease that “should the party of the first part conclude to sell this property, then the second party is to have the first chance to buy the same,” no price being stated nor any method provided for ascertaining the price, is too uncertain to be specifically enforced as an agreement to convey to the party of the second part.</p>

<p>1. Special assessments—failure of an ordinance to establish grades does not defeat jurisdiction of court. Failure of a special assessment ordinance to fix the grade for the improvement does not deprive the court of jurisdiction to confirm the assessment, and the objection is not available on application of judgment of sale for the tax.</p> <p>2. Same—proceedings for confirmation and for sale may be entertained at a probate term. Under the provisions of section 51 of the Local Improvement act and section 5 of the County Court act, the county court has jurisdiction to confirm a special assessment or render judgment of sale for delinquent assessments at a probate term.</p>

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

Writ of Error to the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding. On October 6, 1903, plaintiff in error was indicted by the grand jury of St. Clair county for the murder of his wife, Virginia Parsons, by shooting her with a pistol on the 21st day of July, 1903, at their home in the city of East St. Louis. To the indictment a plea of not guilty was entered.

Dorrance Dibell, Judge, presiding. This was a bill filed to construe the will of Helen L. Huling, who died testate leaving an estate of the value of about $230,000 in personal property and a homestead at Kankakee, Illinois, of the value of about $8000.

<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>

<p>1. Appeals and errors—when a finding of facts by Appellate Court is conclusive. A finding by the Appellate Court, in reversing a judgment for the plaintiff in an action for negligence, that the fallen wire which caused the death of the plaintiff’s intestate was not at any time owned or controlled by the defendant and that the defendant was guilty of no negligence which caused or contributed to the death of such intestate, is conclusive of the facts.</p> <p>2. Negligence—when judgment in favor of one defendant releases the other. If the liability of a telephone company for the death of a person who took hold of a live wire rests upon the alleged negligence of the city, which was in control and possession of the wire by permission of the telephone company, a judgment in favor of the city releases the telephone company from liability under the doctrine of respondeat superior.</p>

<p>1. Evidence—crime charged in an information for disbarment must be proved beyond a reasonable doubt. In Illinois, except in cases of slander and libel, when a criminal offense is charged by the pleadings and must be established to sustain the cause of action or maintain the defense the presumption of innocence arises, and the crime charged must be proved beyond a reasonable doubt; and this rule applies in an information for disbarment of an attorney.</p> <p>2. Disbarment—when evidence is not sufficient to justify disbarment. An information for disbarment charging the respondent with the crime of conspiring with a court bailiff to bribe jurors and inducing the bailiff to abscond to avoid testifying against the respondent before the grand jury, is not sustained where the only evidence tending to sustain the charges is the testimony of the bailiff, which is denied in toto by the respondent and is largely discredited by the evidence of apparently disinterested witnesses and by facts and circumstances proven.</p>

Mazzini Slusser, Judge, presiding. This was an application by the county collector of Du-Page county, made at the June term, 1905, of the county court of that county, for judgment and order of sale against certain property belonging to S. R. Harris, the appellant, located in the village of Lombard, upon which a special tax, levied by authority of the village board of said village, remained due and unpaid.

<p>1. Evidence—hypothetical questions must be based upon the evidence. In an action by an attorney for fees for services rendered, an hypothetical question put by defendant to expert witnesses calling for their opinion as to whether the proceeding instituted by the attorney was a necessary and proper one to “get possession” of leased property is properly refused, where it ignores the evidence that plaintiff’s contract of employment covered other matters besides the recovery of possession of the property.</p> <p>2. Same—questions as to reasonableness of attorney’s charges should cover the matter of his employment. A question as to what would be a fair and customary charge for certain services by an attorney is properly refused in an action by the attorney for fees, where a considerable portion of the services which the plaintiff was employed to perform is not included in the question.</p>

<p>1. Special assessments—want of property owner’s petition is no objection to application for sale. An objection that there was no property owner’s petition for a local improvement does not go to the jurisdiction of the court to confirm the assessment and cannot be urged as a defense to an application for judgment of sale. •</p> <p>2. Same—objection that no notice of application for judgment of confirmation zvas mailed is good. On application for judgment of sale it is a valid objection that no notices of the application for judgment of confirmation were mailed to the persons entitled by law to receive them, provided such fact appears from the face of the record of the confirmation proceeding.</p> <p>3. Same—when a court of review cannot presume that notices were mailed. Where, on application for judgment of sale, an objection that no notices of the application to confirm the assessment were mailed is stricken from the files, the fact that the record of the confirmation proceeding is not contained in the record of the proceeding for judgment of sale does not authorize a court of review to presume that the confirmation proceeding was régular and that the notices were mailed as required by law.</p> <p>4. Same—fact that improvement is different from one authorised may be shown on application for sale. Property owners are entitled to show, in defense of an application for judgment of sale, that the improvement constructed was a different one from that authorized by the ordinance and for which the assessment was levied.</p> <p>5. Same—what cannot be urged in defense of application for judgment of sale. Objections to an application for judgment of sale setting forth that the objectors had been overcharged, for the reason that there had not been laid the number of square yards or lineal feet of pavement alleged to have been laid, are properly stricken from the files.</p>

John Gibbons, Judge, presiding. The Douglas Park Building Association, one of the appellants, filed its bill in the circuit court of Cook county against appellee tó foreclose a mortgage on the premises in question. A decree of foreclosure was entered by default, and upon a report of sale being made a deficiency decree was rendered for $205.

<p>1. Appeals and errors—when freehold is involved. A freehold is involved, on appeal from an order admitting will to probate, even though the will does not, in terms, devise real estate, if it appears from the record that the deceased owned real estate which would pass under the residuary clause of the will.</p> <p>2. Wills—when an order denying probate is not res judicata. Dismissal of an appeal to the circuit court from an order of the county court denying probate of a will leaves the judgment of the county court in full force; but if the proponent chooses to dismiss his petition in the circuit court then the whole proceeding is at an end and there is no bar to a new proceeding.</p> <p>3. Same—on appeal to circuit court party may establish will by any competent proof. On appeal to the circuit court from an order of the county court denying probate the proponent may support the will by any evidence competent to establish a will in chancery, that is, by any evidence which proves the requisites of a valid will.</p> <p>4. Same-—requisites of a valid will. The requisites of a valid will of a person competent to make a will are, that it shall be reduced to writing and signed by the testator or by some person in his presence and by his direction, and attested in the presence of the testator by two or more credible witnesses.</p> <p>5. Same—when order admitting will to probate will be upheld. Where one subscribing witness testifies that the testator signed the will in the presence of the witnesses and the other witness testifies to the contrary, but the testimony of the latter is contradicted by his own affidavit made in the county court, the action of the circuit court in holding that the will was signed by the testator in the presence of the witnesses (which was the only controverted question of fact) and in admitting the will to probate will be upheld.</p>

<p>1. Taxes—railroad in whose name tax was assessed may object to tax. A railroad company in whose name lands are taxed may object to an application for judgment of sale without averment or proof that it is interested in the land.</p> <p>2. Same—when failure of levy ordinance to specify objects of tax in detail is not fatal. Failure of a tax levy ordinance to specify in detail the objects and purposes for which the tax was levied is not fatal, where it refers to the appropriation ordinance, which contains such information in detail. (Spring Valley Coal Co. v. People, 157 Ill. 543, followed.)</p> <p>3. Same—land used as reservoir by railroad is “railroad track.” Land adjoining the right of way of a railroad and used as a reservoir to supply water for locomotives is “railroad track” and is properly assessed as such by the State Board of Equalization; and if all of the tract is not in use as a reservoir it is the duty of the local assessor to assess the portion not used and so describe it as tp identify it, but a tax based on his assessment of the entire tract is invalid.</p> <p>4. Same—additional county tax may be levied before the September meeting following the election. Where the county board, at its September meeting, authorizes the calling of an election to vote on an additional tax levy, and the election is held, resulting in a vote to levy the same, the county board may act immediately and levy the tax at a special meeting, without waiting until the following regular September meeting.</p> <p>5. Same—record must show that resolution for additional tax levy was adopted. The record of the meeting of the county board must show that the resolution for an additional county tax authorized by vote of the people was adopted, and it is not sufficient that the record shows such resolution was “offered.”</p>

Emery C. Graves, Judge, presiding. Henry county is under township organization. It has a population of less than 125,000.

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

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

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

Writ of Error to the Appellate Court for the Eirst District ;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding. J. J. Jacobs, the plaintiff in error, was found guilty by the criminal court of Cook county of the crime of unlawfully setting up and promoting a lottery for money, and was sentenced to pay a fine of $1475.

<p>1. Ejectment—when plaintiff is prima facie entitled to recover. Where, in ejectment, the plaintiff and defendant claim through a common source of title, if the plaintiff shows title in himself from such common source he is entitled to recover unless the defendant overcomes, by competent proof, the prima facie case of plaintiff.</p> <p>2. Prats—when plat is not good as a statutory plat. A plat acknowledged by a commissioner of deeds of the State of Illinois in the State of New York is not a good statutory plat, and does not have the effect to convey to the city the fee to the streets, alleys and other public grounds shown in the plat.</p> <p>3. Same—blank space, having no designation, does not show a dedication. A blank space on a plat, which is not designated as any street, alley or other public ground, does not show a dedication and does not sustain a city’s claim of a common law dedication where there is no proof of an intention by the grantor to dedicate the land to public use and an acceptance thereof by the public for such use.</p> <p>4. Dedication—acceptance after withdrawal is without force. Even if a plat constitutes, on its face, an offer to dedicate to the city land represented by a blank space, a conveyance of the land by the proprietor operates as a withdrawal of the offer, and subsequent acceptance by the city is without effect.</p>

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

R. W. HilschER, Judge, presiding. This was an action on the case, brought in the circuit court of Kankakee county by Joseph Trah, the appellee, against the Village of Grant Park, the appellant, to recover damages occasioned to appellee’s lots by the construction of a cement sidewalk by appellant in front and along the side of said lots. The village filed the general issue. A trial before a jury resulted in a verdict for $1260 in favor of the plaintiff.

Appear from the Circuit Court of Saline county; the Hon. A. K. Vickers, Judge, presiding. The appellee, A. J. Webber, filed a bill for an injunction in the circuit court of Saline county, to the April term, 1904, to restrain the county collector of Saline county from collecting certain personal taxes assessed against appellee for the year 1903.

Appear from the Appellate Court for the First District ;■—■ heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. TurEy, Judge, presiding. The appellee filed his bill in the circuit court of Cook county against appellants to enjoin the expenditure of $150,-000 for the year 1905 by the board of local improvements for the purchase of improvement bonds issued upon special assessments.

Writ of Error to the Circuit Court of Union county; the Hon. A. K. Vickers, Judge, presiding.

<p>Appeal from the County Court' of Knox county; the Hon. J. D. Welsh, Judge, presiding.</p>

<p>Appeal from the County Court of Christian county; the Hon. James H. Forrester, Judge, presiding. .</p>

O. P. Thompson, Judge, presiding. This is a bill, filed by the appellant against the appellee to reform a contract for the sale or exchange of certain lands, and for a specific performance of the contract when so reformed. The appellee here, defendant below, demurred to the bill. The demurrer was sustained, and the appellant, complainant below, elected to stand by his bill. Thereupon a decree or order was entered dismissing the bill.

<p>1. Master and servant—when master is liable though the negligence of fellow-servant contributes to injury. The negligent act of one of two boys riding, in the discharge of their duties, in an elevator in the building where they were employed, in throwing the other down, causing his foot to project over the floor of the elevator, where it was crushed when the elevator passed the top of the entrance, does not excuse the master from liability if the accident would not have happened had the master not been negligent in permitting such a construction of the entrance.</p> <p>2. Same—whether a minor employee assumed risk or used due care is a question of fact. Whether an employee fourteen years old used due care in riding upon an elevator in the discharge of his duties or assumed the risk of a defective construction of one of the entrances to the shaft are questions of fact for the jury, there being no evidence that he knew of the defective construction or had been notified thereof and told how to avoid the danger.</p> <p>3. Evidence—when expert testimony not admissible. Whether placing the door of the entrance to an elevator shaft on the line of the wall furthest from the shaft, thus leaving a space of ten inches from the bottom to the top of the entrance between the door and a passing elevator, is as safe as though the door had been placed on the line of the wall next to the shaft, is a question which may be determined by the jury without the aid of expert testimony as to whether the construction adopted was proper.</p>

<p>Special assessments-—variation from ordinance as to size of cobble-stones does not make a different improvement. A variation from the terms of the ordinance in the size of some of the cobblestones used in a pavement does not make the improvement a different one from that provided for by the ordinance, and the objection is not available upon application for judgment of sale for the tax.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Ejectment—who is within meaning of Occupying Claimant’s act. The Occupying Claimant’s act (now sections 52 to 61 of the Ejectment act) applies only to a defendant evicted from land for which he can show a plain, clear and connected title in law or equity, deduced from the record of some public office, without actual notice of an adverse title in like manner derived from record.</p> <p>2. Same—defendant is not entitled to improvements unless he brings himself within Occupying Claimant’s act. A successful plaintiff in ejectment, if he does not claim mesne profits, is entitled to the improvements placed thereon by the defendant unless the latter can bring himself within the Occupying Claimant’s act; but if the plaintiff claims mesne profits the defendant is entitled to set "off the value of the improvements up to the amount of the plaintiff’s claim.</p> <p>3. Same—when defendant is not entitled to improvements. A defendant in ejectment who placed improvements on the premises with full knowledge that the title was upon a condition subsequent,</p> <p>for breach of which the estate was afterwards forfeited, is not entitled to be reimbursed for the improvements, either under the provisions of the Occupying Claimant’s act or under a petition in the nature of a bill in equity.</p> <p>4. Real property—when the real owner must pay for improvements. If the real owner of land seeks the aid of a court of equity to establish his title or to recover land, he may be required to do equity by compensating the defendant for improvements put upon the property in good faith or by innocent mistake, to the extent they have enhanced the value of the property. (Cable v. Ellis, 120 Ill. 136, explained.)</p>

<p>1. Special assessments—when objection that an improvement' differs from one provided for may be raised. On application for judgment of sale it may be shown in defense that the improvement constructed was different from the one provided for in the ordinance, where it is not shown that the proceeding provided for by section 84 of the Local Improvement act, determining that matter, has been had.</p> <p>2. Same—finding that the improvement was not the one provided for is error if the ordinance was not proved. A judgment sustaining an objection to an application for judgment of sale upon the ground that the improvement constructed was not the one provided for in the ordinance is error, where the bill of exceptions purports to contain all the evidence yet does not contain the ordinance.</p>

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. On December 31, 1902, Charles A. Morrill died testate. On January 13, 1903, letters testamentary were issued by the probate court of Cook county to the Merchants’ Loan and Trust Company, the defendant in error, being the executor named in the will.

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. Jesse Hordom, Judge, presiding.

<p>Appeal from the County Court of Livingston county; the Hon. C. F. H. Carrithers, Judge, presiding.</p>

Writ of Error to the City Court of Mattoon; the Hon. L. C. Henley, Judge, presiding. Sara E. P. Noyes, the defendant in error, obtained an injunction in the city court of the city of Mattoon against said city and Loomis & Rose, contractors, restraining them from constructing a certain sidewalk which the city, by an ordinance, had theretofore ordered laid.

W. H. Gest, Judge, presiding. This is an appeal prosecuted by H. Clay Merritt, the appellant, from a judgment of the Appellate Court for the Second District affirming a judgment of the circuit court of Henry county for $2111.92 in favor of Charles P. Dewey, the appellee, against the appellant.

ElbridGE HanEcy, Judge, presiding. Upon March 20, 1889, appellee, James C. McCullough, entered into a written lease with James M. Stebbins for certain property for a term of fifty years, commencing May 1, 1889, at a yearly rental of $1050 for. the first sixteen years, payable in quarterly installments.

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

Writ of Error to the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Plaintiff in error, Isaac Creighton, filed his bill in the circuit court of Vermilion county against his daughter, the defendant in error, Sarah C. Roe, in which he sought to have set aside and canceled the recording of a certain deed executed by him and his wife, Olinda C. Creighton, to his daughter, and which he claimed was never delivered.

<p>1. Bail—discharge of the principal in bankruptcy releases bail. Discharge of the principal in bankruptcy from all liability to pay the indebtedness which a bail bond in a civil action was given to secure deprives the bail of his right to seize and surrender the principal, and hence releases the bail from liability on the bond even though he does not procure the entry of a formal exoneretur in court, as he is entitled to do under section 24 of the act relating to bail in civil cases.</p> <p>2. Same—issue and return of ca. sa. after discharge in bankruptcy is without effect. The issue and return of a capias ad satisfaciendum after the prisoner has been discharged in bankruptcy from liability for the indebtedness has no efficacy to fix the liability of the surety on the bail bond given to secure the indebtedness.</p>

<p>Wills—extrinsic evidence not admissible to correct an alleged mistake in describing land. Extrinsic evidence is not admissible to show that the testator or scrivener, in describing a tract of land containing 55.87 acres as being in section “24” intended to say section “14,” even though the evidence shows the testator owned no land in section 24 but did own one tract in section 14 containing 55.87 acres, and that there was no other tract of that exact area in the township.</p>

Axel Chytraus, Judge, presiding. This is a bill for separate maintenance, filed by appellee against appellant, who appeared and answered. A replication was filed to the answer, and upon a hearing of the cause the court entered a decree in favor of appellee, the complainant in the court below. Appellant took an appeal from the decree, entered by the superior court of Cook county, to the Appellate Court for the First District.

Appear from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Richard S. Farrand, Judge, presiding.